2024
Murphy, Colleen; Wexler, Lesley
Non-State Punishment Journal Article
In: University of Illinois Law Review, vol. 2024, iss. 3, pp. 819-892, 2024.
Abstract | Links | BibTeX | Tags: amnesties, punishment, transitional justice
@article{Wexler2024,
title = {Non-State Punishment},
author = {Colleen Murphy and Lesley Wexler },
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591601, Download article from SSRN},
year = {2024},
date = {2024-07-01},
urldate = {2024-07-01},
journal = {University of Illinois Law Review},
volume = {2024},
issue = {3},
pages = {819-892},
abstract = {How should we think about the Jewish community’s punishment of Jewish kapos, councilmembers, and police officers after the Holocaust? Or of Americans who fire, divorce, or shun participants in the January 6 attempted auto-coup? In the American context, the invocation of ‘cancel culture’ or ‘wokeness’ reflects concern about the defensibility of non-state practices of accountability. Setting aside for our purposes an analysis of the political uses and abuses of these terms, we focus here on a presumption underlying these complaints: actors are impermissibly, illegitimately, and disproportionately being held to account by non-state actors.
Citizens, corporations, and civil society organizations are vocally and visibly taking accountability for wrongdoing into their own hands. Such non-state accountability practices are particularly fraught because they raise fundamental questions about the proper regulatory role of the state and of law with respect to private responses to wrongdoing. Theories of criminal punishment currently explain why the state can and ought to respond to certain categories of criminal wrongdoing and the unique standing of the state to punish in the form of incarceration. However, such theories do not provide straightforward guidance for non-state punishment as regards: who has the standing to engage in punishment; what would constitute adequate due process; and how to assess proportionality.
To begin to address the range of issues non-state punishment raises, we argue it is a mistake to lump into a single normative category all practices of non-state punishment. This paper provides a conceptual map of four categories of punishment: ordinary state punishment, ordinary non-state punishment, transitional state punishment, and transitional non-state punishment. The map distinguishes punishment along two dimensions, which affect the specific questions of standing and justifiability to which a given instance of punishment gives rise. The first dimension is the type of justice punishment promotes (ordinary justice or transitional justice). The second dimension is the agent meting out punishment (state actors or non-state actors). Each category of punishment faces distinct questions of standing and justifiability.
Our conceptual map makes four contributions. First, it adds to a burgeoning discussion in legal theory and philosophy grounded in a recognition that the state does not have a monopoly over punishment. Second, it supplements an ongoing discussion in transitional justice literature and practice that emphasizes the problems with placing the state as the focal point of transitional justice. Our third contribution is to provide a framework for understanding and assessing American ‘cancel culture.’ For the universe of cancel culture cases that count as punishment, some cases are cases of ordinary non-state punishment, while others are cases of non-state transitional punishment. As we discuss, some pushback on so-called American cancel culture is category confusion or contestation about the need for transitional rather than ordinary justice and disagreement about which type of punishment, is in fact, occurring. Our framework also provides resources for the critical evaluation of defenses or critiques advanced of particular cases of non-state punishment. Fourth, our analysis of punishment provides a model that can be used to conceptualize other processes of accountability pursued by state and non-state actors, including reparations and truth-telling.},
keywords = {amnesties, punishment, transitional justice},
pubstate = {published},
tppubtype = {article}
}
How should we think about the Jewish community’s punishment of Jewish kapos, councilmembers, and police officers after the Holocaust? Or of Americans who fire, divorce, or shun participants in the January 6 attempted auto-coup? In the American context, the invocation of ‘cancel culture’ or ‘wokeness’ reflects concern about the defensibility of non-state practices of accountability. Setting aside for our purposes an analysis of the political uses and abuses of these terms, we focus here on a presumption underlying these complaints: actors are impermissibly, illegitimately, and disproportionately being held to account by non-state actors.
Citizens, corporations, and civil society organizations are vocally and visibly taking accountability for wrongdoing into their own hands. Such non-state accountability practices are particularly fraught because they raise fundamental questions about the proper regulatory role of the state and of law with respect to private responses to wrongdoing. Theories of criminal punishment currently explain why the state can and ought to respond to certain categories of criminal wrongdoing and the unique standing of the state to punish in the form of incarceration. However, such theories do not provide straightforward guidance for non-state punishment as regards: who has the standing to engage in punishment; what would constitute adequate due process; and how to assess proportionality.
To begin to address the range of issues non-state punishment raises, we argue it is a mistake to lump into a single normative category all practices of non-state punishment. This paper provides a conceptual map of four categories of punishment: ordinary state punishment, ordinary non-state punishment, transitional state punishment, and transitional non-state punishment. The map distinguishes punishment along two dimensions, which affect the specific questions of standing and justifiability to which a given instance of punishment gives rise. The first dimension is the type of justice punishment promotes (ordinary justice or transitional justice). The second dimension is the agent meting out punishment (state actors or non-state actors). Each category of punishment faces distinct questions of standing and justifiability.
Our conceptual map makes four contributions. First, it adds to a burgeoning discussion in legal theory and philosophy grounded in a recognition that the state does not have a monopoly over punishment. Second, it supplements an ongoing discussion in transitional justice literature and practice that emphasizes the problems with placing the state as the focal point of transitional justice. Our third contribution is to provide a framework for understanding and assessing American ‘cancel culture.’ For the universe of cancel culture cases that count as punishment, some cases are cases of ordinary non-state punishment, while others are cases of non-state transitional punishment. As we discuss, some pushback on so-called American cancel culture is category confusion or contestation about the need for transitional rather than ordinary justice and disagreement about which type of punishment, is in fact, occurring. Our framework also provides resources for the critical evaluation of defenses or critiques advanced of particular cases of non-state punishment. Fourth, our analysis of punishment provides a model that can be used to conceptualize other processes of accountability pursued by state and non-state actors, including reparations and truth-telling.
Citizens, corporations, and civil society organizations are vocally and visibly taking accountability for wrongdoing into their own hands. Such non-state accountability practices are particularly fraught because they raise fundamental questions about the proper regulatory role of the state and of law with respect to private responses to wrongdoing. Theories of criminal punishment currently explain why the state can and ought to respond to certain categories of criminal wrongdoing and the unique standing of the state to punish in the form of incarceration. However, such theories do not provide straightforward guidance for non-state punishment as regards: who has the standing to engage in punishment; what would constitute adequate due process; and how to assess proportionality.
To begin to address the range of issues non-state punishment raises, we argue it is a mistake to lump into a single normative category all practices of non-state punishment. This paper provides a conceptual map of four categories of punishment: ordinary state punishment, ordinary non-state punishment, transitional state punishment, and transitional non-state punishment. The map distinguishes punishment along two dimensions, which affect the specific questions of standing and justifiability to which a given instance of punishment gives rise. The first dimension is the type of justice punishment promotes (ordinary justice or transitional justice). The second dimension is the agent meting out punishment (state actors or non-state actors). Each category of punishment faces distinct questions of standing and justifiability.
Our conceptual map makes four contributions. First, it adds to a burgeoning discussion in legal theory and philosophy grounded in a recognition that the state does not have a monopoly over punishment. Second, it supplements an ongoing discussion in transitional justice literature and practice that emphasizes the problems with placing the state as the focal point of transitional justice. Our third contribution is to provide a framework for understanding and assessing American ‘cancel culture.’ For the universe of cancel culture cases that count as punishment, some cases are cases of ordinary non-state punishment, while others are cases of non-state transitional punishment. As we discuss, some pushback on so-called American cancel culture is category confusion or contestation about the need for transitional rather than ordinary justice and disagreement about which type of punishment, is in fact, occurring. Our framework also provides resources for the critical evaluation of defenses or critiques advanced of particular cases of non-state punishment. Fourth, our analysis of punishment provides a model that can be used to conceptualize other processes of accountability pursued by state and non-state actors, including reparations and truth-telling.
2023
Murphy, Colleen
Minimum Moral Thresholds at War’s End Book Chapter
In: Parsons, Graham; Wilson, Mark A. (Ed.): How to End a War; Essays on Justice, Peace, and Repair, pp. 92–110, Cambridge University Press, 2023, ISBN: 9781108992640.
Abstract | Links | BibTeX | Tags: armed conflict, ethics, just war theory, transitional justice
@inbook{Murphy2023b,
title = {Minimum Moral Thresholds at War’s End},
author = {Colleen Murphy},
editor = {Graham Parsons and Mark A. Wilson},
doi = {10.1017/9781108992640.006},
isbn = {9781108992640},
year = {2023},
date = {2023-03-09},
urldate = {2023-03-09},
booktitle = {How to End a War; Essays on Justice, Peace, and Repair},
pages = {92--110},
publisher = {Cambridge University Press},
abstract = {This chapter explores the normative lessons offered by the structurally analogous descriptive and normative limitations of just war theory and transitional justice. Just war theory provides normative prescriptions for the onset, conduct during, ending, and aftermath of war. Transitional justice provides normative prescriptions for dealing with widespread human rights violations characteristically committed during conflict and/or periods of repression. Both just war theory and transitional justice provide normative prescriptions for profoundly non-ideal circumstances. Yet a yawning gap remains between the normative picture of just war and of transitional justice on the one hand, and the descriptive reality of contemporary conflicts and transitional justice practices on the other. To engage with the reality of each practice in a way that will prove actionable for its participants, new forms of normative guidance are needed.
},
keywords = {armed conflict, ethics, just war theory, transitional justice},
pubstate = {published},
tppubtype = {inbook}
}
This chapter explores the normative lessons offered by the structurally analogous descriptive and normative limitations of just war theory and transitional justice. Just war theory provides normative prescriptions for the onset, conduct during, ending, and aftermath of war. Transitional justice provides normative prescriptions for dealing with widespread human rights violations characteristically committed during conflict and/or periods of repression. Both just war theory and transitional justice provide normative prescriptions for profoundly non-ideal circumstances. Yet a yawning gap remains between the normative picture of just war and of transitional justice on the one hand, and the descriptive reality of contemporary conflicts and transitional justice practices on the other. To engage with the reality of each practice in a way that will prove actionable for its participants, new forms of normative guidance are needed.
2020
Murphy, Colleen
III—On Principled Compromise: When Does a Process of Transitional Justice Qualify as Just? Journal Article
In: Proceedings of the Aristotelian Society, vol. 120, no. 1, pp. 47–70, 2020, ISSN: 1467-9264.
Abstract | Links | BibTeX | Tags: compromises, transitional justice
@article{Murphy2020,
title = {III—On Principled Compromise: When Does a Process of Transitional Justice Qualify as Just?},
author = {Colleen Murphy},
doi = {10.1093/arisoc/aoaa003},
issn = {1467-9264},
year = {2020},
date = {2020-04-01},
urldate = {2020-04-01},
journal = {Proceedings of the Aristotelian Society},
volume = {120},
number = {1},
pages = {47--70},
publisher = {Oxford University Press (OUP)},
abstract = {Processes of transitional justice (for instance, amnesty, truth commissions, reparations, trials) deal with large-scale wrongdoing committed during extended periods of conflict or repression. This paper discusses three common moral objections to processes of transitional justice, which I label shaking hands with the devil, selling victims short, and entrenching the status quo. Given the scale of wrongdoing and the context in which transitional justice processes are adopted, compromise is necessary. To respond to these objections, I argue, it is necessary to articulate the conditions that make a compromise principled. I defend three criteria that distinguish principled from unprincipled compromises.},
keywords = {compromises, transitional justice},
pubstate = {published},
tppubtype = {article}
}
Processes of transitional justice (for instance, amnesty, truth commissions, reparations, trials) deal with large-scale wrongdoing committed during extended periods of conflict or repression. This paper discusses three common moral objections to processes of transitional justice, which I label shaking hands with the devil, selling victims short, and entrenching the status quo. Given the scale of wrongdoing and the context in which transitional justice processes are adopted, compromise is necessary. To respond to these objections, I argue, it is necessary to articulate the conditions that make a compromise principled. I defend three criteria that distinguish principled from unprincipled compromises.
2018
Wexler, Lesley; Robbennolt, Jennifer K.; Murphy, Colleen
#MeToo, Time's Up, and Theories of Justice Working paper
University of Illinois College of Law Legal Studies Research Paper No. 18-14, 2018, ISSN: 1556-5068.
Abstract | Links | BibTeX | Tags: restorative justice, transitional justice, workplace
@workingpaper{Wexler2018,
title = {#MeToo, Time's Up, and Theories of Justice},
author = {Lesley Wexler and Jennifer K. Robbennolt and Colleen Murphy},
doi = {10.2139/ssrn.3135442},
issn = {1556-5068},
year = {2018},
date = {2018-03-06},
urldate = {2018-03-06},
issue = {18-14},
publisher = {Elsevier BV},
abstract = {Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned.
This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace.
We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, we highlight the need for holism and mixed types of responses in trying to spur societal change. },
howpublished = {University of Illinois College of Law Legal Studies Research Paper No. 18-14},
keywords = {restorative justice, transitional justice, workplace},
pubstate = {published},
tppubtype = {workingpaper}
}
Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned.
This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace.
We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, we highlight the need for holism and mixed types of responses in trying to spur societal change.
This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace.
We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, we highlight the need for holism and mixed types of responses in trying to spur societal change.
2017
Murphy, Colleen
International Criminal Trials and the Circumstances of Justice Journal Article
In: Criminal Law and Philosophy, vol. 12, no. 4, pp. 575–585, 2017, ISSN: 1871-9805.
Abstract | Links | BibTeX | Tags: international criminal trials, transitional justice
@article{Murphy2017b,
title = {International Criminal Trials and the Circumstances of Justice},
author = {Colleen Murphy},
doi = {10.1007/s11572-017-9441-x},
issn = {1871-9805},
year = {2017},
date = {2017-09-16},
urldate = {2017-09-16},
journal = {Criminal Law and Philosophy},
volume = {12},
number = {4},
pages = {575--585},
publisher = {Springer Science and Business Media LLC},
abstract = {Transitional justice is broadly understood to refer to formal efforts to deal with past wrongs in the midst of a transition from an extended period of conflict or repression to democracy. In this paper, I consider the role of international criminal trials in transitional justice. I argue that such trials may contribute to transitional justice, but such contributions are conditional on two main factors. The first factor is time. The second factor is what other transitional justice responses are adopted domestically.},
keywords = {international criminal trials, transitional justice},
pubstate = {published},
tppubtype = {article}
}
Transitional justice is broadly understood to refer to formal efforts to deal with past wrongs in the midst of a transition from an extended period of conflict or repression to democracy. In this paper, I consider the role of international criminal trials in transitional justice. I argue that such trials may contribute to transitional justice, but such contributions are conditional on two main factors. The first factor is time. The second factor is what other transitional justice responses are adopted domestically.
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