DEMOCRACY AND
PUNISHMENT
Chris Bennett
Dept of Philosophy
University of Sheffield
c.bennett@sheffield.ac.uk
The Hirst Case
• Convicted murderer John Hirst appealed against a UK
High Court decision that denying prisoners the right to
vote was legal
• He took his case to the European Court of Human Rights,
and won
• The EctHR judged that the UK ban on voting for prisoners
contravened the European Convention on Human Rights
• As a party to the Convention, the UK has an obligation to
abide by the judgements of ECtHR
The ECtHR judgement
• Article 3 of Protocol One: ‘free and fair elections’
• The Court agreed that voting rights might be restricted, but only
in the service of a legitimate aim and in a proportionate way
• ‘it was not apparent that there was any direct link between the
facts of any individual case and the removal of the right to vote’
• ‘there was no evidence that Parliament had ever sought to
weigh the competing interests or to assess the proportionality
of a blanket ban on the right of a convicted prisoner to vote. It
could not be said that there was any substantive debate by
members of the legislature on the continued justification, in the
light of modern day penal policy and of current human rights
standards, for maintaining such a general restriction on the
right of prisoners to vote.’
Questions about democracy and
punishment
• Should prisoners have the right to vote?
• What is the importance of the right to vote?
• Is it a right that can be forfeited?
• Who should decide fundamental questions of human
rights: the European Court; British courts; or the British
legislature?
• The role of courts v legislature in a democracy
• The role of national self-determination as against transnational
legal institutions
Who should decide on fundamental
rights?
• Law v. Democracy?
• Is it undemocratic that the European Convention constrains the
decisions of elected legislatures?
• Is it undemocratic that unelected judges make decisions about
fundamental political and human rights?
Who should decide on fundamental
rights?
• Should democracies’ decisions about rights stand, even if
they are wrong, or at least disputable?
• Democratic legitimacy
• A democratic ‘right to do wrong’?
Prisoners and the vote
• The basis and scope of enfranchisement
• ‘All affected interests’ (Goodin)?
• ‘No taxation without representation’?
• Those capable of participating in collective self-government?
• Forfeiting the right to vote
• ‘Rights are conditional on responsibilities’
• Protecting democracy from corruption
• Forfeiture
• Symbolic punishment
Law v. Democracy
• Constitutional legal rights are:
• Supreme in authority
• Rigid/entrenched
• Morally loaded
• Abstract and general
• Constitutional rights are a ‘pre-commitment device;’
helping us avoid the ‘tyranny of the majority’
• But how can it be democratically legitimate for one
generation to tie future generations?
• It gives great power to judges to place their interpretation
on abstract constitutional provisions.
A democratic ‘right to do wrong’?
• Issues where there is some right answer, but reasonable
•
•
•
•
disagreement about what it is
Distinguish substantive correctness from procedural
fairness
The fairest way to determine the answer for the group
might be to give each person exactly the same say about
the answer
Hence the priority, or authority, of democracy in conditions
of uncertainty?
But in that case, democratic decision can make some
actions permissible that would not otherwise have been
permissible?