ABSTRACT

In Good and Evil and in A Common Humanity (as well as in parts of Romulus, My Father), Rai Gaita gives a sensitive, illuminating and profound account of the ways in which we can respond to moral wrongs – to wrongs that we do or suffer, to wrongs done or suffered by those close to us (as friends, family, colleagues or fellow citizens), and to wrongs done or suffered by strangers with whom we share nothing more (but nothing less) than our common humanity (Gaita 2004; Gaita 2000; Gaita 1998). Three central elements of his account can be picked out by the idea of recognition. First, it emphasizes the recognition of wrongs as wrongs: what matters is not (merely) that someone has suffered harm or loss that can be identified and understood in non-moral terms, but that he has been wronged. Second, it emphasizes the recognition of both the victim and the perpetrator as fellows: even if no more intimate bonds connect us, their humanity makes a claim on our attention and concern, and sets limits to our will. And third, it emphasizes the importance of the recognition of my own wrongdoing, and of its implications, in remorse: remorse is not a response to an independently understood wrong; rather, it is the form that a recognition of my wrong takes. Gaita’s focus in his discussions of responses to wrongdoing is, primarily, on

our non-institutional dealings with each other, and on the understanding of our own wrongdoing that we can achieve (if we can achieve it at all) only through a first-personal searching of our own souls. He sometimes attends to ways in which judges address wrongdoing in the courts, notably in the Eichmann trial (Gaita 2000: 54-55, 136-44) and the Mabo case (Gaita 2000: Chs 4-5): but he is primarily concerned with our more informal responses, whether individual or collective, to wrongs understood in moral rather than in legal terms; and when he does discuss the ways in which the law can respond to moral wrongs, he is talking about such large-scale, terrible wrongs as genocide and the Holocaust, rather than about the kinds of wrong that occupy our criminal courts every day. However, it is worth asking whether, and how, a vision of the kind that Gaita articulates could inform a system of criminal justice: whether it offers us a way of understanding, if not what in fact goes on, at least what could or should go on, in the various institutional practices that make up a system of criminal law – and thus, of course, a way of engaging

critically with what actually goes on in our existing institutions. I will argue in the following three sections that we can develop a morally plausible conception of the criminal law, of criminal trials and of criminal punishment, that gives a central place to some of the themes that structure Gaita’s account of responses to moral wrongs (I will have more to say about criminal law and criminal trials than about punishment, since they have received less adequate philosophical attention).1 Such a conception offers us an ideal of criminal law – one far distant from our actual situation, and one that arouses some familiar liberal worries about the reach of the criminal law; but I will not have space to address such worries here.