NON-STATE PUNISHMENT

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.