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What are the arguments against the majority's desire for punishment?

I Preliminary Reflections In the chapter "Political Theory" of his new book, The Grammar of Criminal Law, (1) George Fletcher deals with four schools of thought in political theory: libertarianism, liberalism, communitarianism, and perfectionism. He raises questions about how these different theories understand the role of punishment in state criminal law. Libertarianism starts out from the idea that only clearly definable harm toward other Citizens may be criminalized; therefore libertarian philosophy "leads to a strong emphasis on the harm principle" [158]. In principle, liberalism holds the same idea. Additionally, with its "distinction between the Right and the Good" [162], liberalism resists as far as possible any moralized account of what is to be declared punishable by state law. In contrast, communitarianism and perfectionism seem less hesitant "to adapt the institutions of the criminal law to some purpose other than the straightforward sanctioning of wrongful deeds" [176]; that is, their adherents are tempted to go beyond indisputable violations of the law and consider that interferences with vested interests are liable to punishment. When Fletcher writes about communitarianism, the subject of criminal law is not mentioned. He is more forthcoming when discussing perfectionism, and stresses the fundamentally different beliefs among perfectionists, libertarians, and liberals: "In Kantian terms, the shift from a libertarian or liberal way of thinking to a perfectionist agenda is signalled by promoting the good over the right" [177]. Perfectionists "take the moral as the guide to the legislative activities of the state" [177]. In the case of perfectionism, according to Fletcher, "states would enforce moral strictures on the taboo against suicide, on keeping promises, on perfecting one's talents, and on coming to the aid of others" [177]. It is concerned with "perfecting the character of its citizens" [178], because "the perfectionist approach to criminal justice focuses hard on the person and his or her need for improvement" [179]. From Fletcher's exemplary juxtaposition of libertarianism and liberalism, on the one hand, and communitarianism and perfectionism, on the other hand, we shall try to gain new insight for understanding other areas of criminal law that cannot be justified from a libertarian or a liberal point of view. We shall see that perfectionists do not demand punishment of deeds in the narrow field of personal perfection only, and that communitarian belief, for its part, may be a source of reasons for punishment that Fletcher does not take notice of. We shall also propose control by "reflective equilibrium" as a criterion for the acceptability of a majority's desire for punishment. This principle, which holds that our basic theoretical conceptions and our well-considered individual opinions have to confront and moderate each other, will help to clarify answers to some of the questions raised by Fletcher. The idea that criminal law has to protect individual rights is sometimes questioned for the fundamental reason that such an idea cannot (or at least cannot completely) account for the true reasons of criminalization from a time-specific, individualistic, liberal position. For, the focus may be on behavior that "offends the homogeneous beliefs of society,"2 even though such behavior does not infringe upon anybody's individual rights or upon clearly definable goods. In the view of critics of libertarian or liberal positions, criminalization of what we shall call "behavioral offenses"--for want of a better rendering of the German word Verhaltensdelikte--is the accepted norm. They do not see it as an exception to the rule that only individual infringements of rights are punishable, but rather as a totally acceptable case of punishment of intolerable behaviour, and only partially covered by the classic concern with the punishment of harm. (3) In the following pages we focus our attention on this criticism of classic-liberal criminal law based on the theory of "behavioral offenses. …