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内容提示: THE PRACTICE OF PUNISHMENT THE PRACTICE OFPUNISHMENTTowards a theory of restorative justiceWesley CraggLondon and New York First published 1992by Routledge11 New Fetter Lane, London EC4P 4EESimultaneously published in the USA and Canadaby Routledgea division of Routledge, Chapman and Hall, Inc.29 West 35th Street, New York, NY 10001Transferred to Digital Printing 2002Routledge is an imprint of the Taylor & Francis GroupThis edition published in the Taylor & Francis e-Library, 2005.“To purchase your ow...

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THE PRACTICE OF PUNISHMENT THE PRACTICE OFPUNISHMENTTowards a theory of restorative justiceWesley CraggLondon and New York First published 1992by Routledge11 New Fetter Lane, London EC4P 4EESimultaneously published in the USA and Canadaby Routledgea division of Routledge, Chapman and Hall, Inc.29 West 35th Street, New York, NY 10001Transferred to Digital Printing 2002Routledge is an imprint of the Taylor & Francis GroupThis edition published in the Taylor & Francis e-Library, 2005.“To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection ofthousands of eBooks please go to www.eBookstore.tandf.co.uk.”© 1992 Wesley CraggAll rights reserved. No part of this book may be reprinted orreproduced or utilized in any form or by any electronic,mechanical, or other means, now known or hereafterinvented, including photocopying and recording, or in anyinformation storage or retrieval system, without permission inwriting from the publishers.British Library Cataloguing in Publication DataA catalogue record for thisbook is available from theBritish Library.Library of Congress Cataloging in Publication DataCragg, Wesley.The practice of punishment: towards a theory of restorativejustice/Wesley Cragg.p. cm.—(Readings in applied ethics)Includes bibliographical references and index.1. Punishment. 2. Corrections—Philosophy.I. Title. II. Series.K5103.C73 1992345′077–dc20[342.577] 91–22364ISBN 0-203-40682-6 Master e-book ISBNISBN 0-203-71506-3 (Adobe eReader Format)ISBN 0-415-04149-X (Print Edition) To the cause of penal reformandthose who work for it CONTENTS Preface vii An Introduction 11 PUNISHMENT AS RETRIBUTION 82 THE POINT OF PUNISHMENT: FORWARD-LOOKINGACCOUNTS 243 TWO HYBRID THEORIES 47Part I: H.L.A.Hart’s compromise solution 48Part II: Teleological retributivism 544 THE FUNCTION OF LAW AND THE NATURE OF LEGALOBLIGATION 645 THE ENFORCEMENT OF LAW 83Part I: The function of enforcement 83Part II: The practical dimensions of enforcement— policing andadjudication 96Part III: Enforcement, reform, and the concept of diversion 1036 TOWARDS A THEORY OF SENTENCING:RESPONSIBILITY, GUILT AND THE IDEA OF ACRIMINAL OFFENCE 112Part I: The nature of the task 115Part II: The principle of responsibility and the concept of guilt 120Part III: Weighing the seriousness of offences 1307 SENTENCING AND THE IDEA OF RESTORATIVEJUSTICE 138Part I: Two preliminary sentencing options 138Part II: Sentencing as conflict resolution 145 Part III: Practical implications 1528 TOWARDS A PHILOSOPHY OF PUNISHMENT 166 Notes 177 Bibliography 200 Index 206vi PREFACEThe motivation for writing this book comes from twenty-five years’ experienceas a volunteer with the John Howard Society, a complex Canadian organizationworking locally, provincially, and nationally with people in conflict with thelaw. Over the course of those years, I have assisted offenders both inside andoutside of prison, played an advocacy role, and studied proposals for penalreform in the company of other volunteers and with professional staff. All of thishas given me first-hand knowledge of the radical changes that have beensweeping through sentencing and corrections for more than two decades, andthat have resulted in widespread loss of confidence in the efficacy ofpunishment, or at least harsh punishment, as a deterrent, and in the value ofrehabilitation. Principles that have dominated sentencing theory and practice formuch of this century are now very much in doubt.These events have stimulated new thinking about the purpose of punishment.In spite of this fact, however, there remains a serious vacuum at the level ofsentencing theory and practice. From a practical point of view, this has meantthat it has become very difficult to formulate consistent, fair, and humane criteriafor evaluating legislative, judicial, and correctional developments.My purpose in writing this book is to fill that vacuum. I begin by examiningthe traditional philosophical accounts of punishment with a view to discoveringwhy they have failed to provide an adequate basis for designing a coherent andhumane approach to sentencing and corrections. I then turn to a discussion of thefunction of law and the nature of legal obligation with the aim of discovering thebasic principles that ought to guide law enforcement. The function of law, Iargue, is to reduce justified recourse to violence in the resolution of disputes.Understanding the implications of this for coercing compliance with the lawallows the construction of a theory of punishment built on principles common topolicing, adjudication, sentencing, and corrections, an account, furthermore, thatis able to capture the strengths of the traditional theories of punishment whileavoiding their defects.I have been aided in my efforts by many people whose contribution I wish toacknowledge. First are many John Howard friends, both volunteers andprofessionals, who have assisted and encouraged me in many ways. In particular, Graham Stewart, now the Executive Director of the John Howard Society ofOntario, deserves special thanks. His wealth of experience and analytical insighthave been invaluable.Many others have also offered assistance. Conrad Brunk’s counsel, and hisknowledge of the peace and conflict studies literature, assisted me to bring mythoughts on those subjects into focus. Anthony Duff read portions of themanuscript and offered helpful advice. Anthony Duff, David Garland, andMartin Wright provided invaluable assistance in identifying importantdevelopments in penology and penal reform in Britain. Leslie Wilkins’hospitality provided the occasion for a week-end of conversation from which Ilearned a good deal.Early drafts of various sections of the book were read in a number of settings:special Nordic Conferences of the International Society for Philosophy of Lawand Social Philosophy (IVR) in Iceland, Finland and Canada, the University ofWestern Ontario Department of Philosophy, Laurentian University colloquia;and meetings of the Canadian Section of the IVR. I am grateful for many helpfulcomments received in those various settings. Laurentian University colleagues,particularly Henri Pallard, Brian Donohue, Gary Clarke, Michel Giroux, andAshley Thomson, have been generous with their time and assistance.Finally, I am grateful for the assistance of my wife, Mary, Daintry Clarke, andPat Seguin, all of whom have contributed to the final stages in the writing andediting process.There remains a word to say on the use of gender-specific pronouns. Clearconventions on this subject have yet to emerge. I have been reluctant to followthe advice of some people simply to avoid the use of third person singularpronouns altogether. The weight of punishment falls on specific individuals. Totalk only in the plural obscures this fact. I have resolved the problem byswitching gender from chapter to chapter: odd numbered chapters use themasculine form, even numbered chapters the feminine form of relevant pronouns.viii AN INTRODUCTIONPunishments and rewards are pervasive features of social life. We meet bothalmost everywhere. As parents, we must come to terms with both and seek toassess their proper role in the education and discipline of our children. Asemployers and employees, we must wrestle with their role in ordering productiverelationships. Contract negotiations are unavoidably about both. What is a justwage for this job in contrast to that one? Are pay scales equitable? Under whatconditions should an employer have the right to discipline an employee? Whatkinds of disciplinary responses are justified under what conditions and for whatreasons? And so on. In our social lives, we find ourselves wondering whethersomeone’s snub was a tit for tat, or what the neighbours up the street did todeserve the anger directed their way.Punishment and reward give rise to perplexing questions. Is corporalpunishment morally acceptable in the home, or in school? Should we userewards to encourage our children, for example, to respect others, or to do theirhomework, or to shovel the neighbour’s sidewalk? Where is the line properlydrawn between punishment and abuse or intimidation?The answers to these questions are not easily found. They become even moredifficult and controversial when the focus is on state punishment. The power ofthe state to punish is enormous. The state is able to execute, incarcerate for longperiods of time, extract heavy fines, and require restitution and compensation.Though the notions of punishment and reward are not easily separated,1 thefocus for this book will be the practice of punishment, particularly punishment asit is inflicted by the state. However, the discussion will not centre exclusively onstate punishment. Rather, my intention is to explore the relationship of statepunishment to the informal common sense understandings of the purpose ofpunishment that are a part of everyday life. I shall argue that reforming penalinstitutions and correctional practices can only succeed where widely heldinformal understandings and formal patterns of punishment are brought intoharmony with each other. The demand for state punishment comes from peoplewhose understanding is shaped by common sense notions which are then used toevaluate the state’s response to what they regard as harmful or offensivebehaviour.2 Rejecting these understandings as simplistic, or ‘barbarian’, or as irrelevant to the development of social policy which, it might be argued, ought tobe shaped by modern scientific accounts of human behaviour is mistaken in myview and renders the task of reform difficult or, what is worse, impossible.Launching into a systematic discussion of punishment requires somepreliminary justification, however. There is a sense, of course, in which thediscussion of punishment is virtually unavoidable in our complex society.Punishment is an accepted feature of our everyday lives. It is a pervasive featureof family life, education, employment, games, the law and so on. Few peoplethink that we could do without it. Hence, there is an obvious sense in which thefact of punishment is not controversial. Why then does the practice warrant asustained evaluation?Two responses to this question are possible, one radical in nature, the othermore practical and closer to everyday concerns. The radical response wouldsuggest that the practice of punishment in modern societies such as our own is sodeeply flawed and the principle that human beings have a right to inflict pain andsuffering on wrongdoers is so suspect that punishment should in principle beabolished and replaced with a humane alternative.The sense of moral outrage implicit in this response is not altogetherunjustified, as we shall see. However, to approach an evaluation of punishmentin this spirit is in effect to reject a basic feature of criminal law as it has evolvedover hundreds of years. What is more, most of those who reflect critically on ourculture can see the unavoidability of punishment as we practise it in spite ofconcerns with specific aspects of its administration. To suggest therefore thatstate punishment is by its very nature radically suspect is likely to be rejected asthoroughly impractical or utopian. There seems a wide consensus thatpunishment, for all its warts, is needed for the protection of society and itsmembers. My question is therefore directed to the great majority in our society who, asjust described, are not prepared to reject punishment out of hand. Rephrased itnow reads: are there reasons of a pragmatic and down-to-earth variety forthinking that punishment as it is practised in our contemporary western Europeanand North American societies is in need of careful scrutiny?There are many reasons for thinking that the appropriate answer to thisquestion is ‘yes’. To begin with, we are at a point in our history where sharpdisagreements have emerged on what punishments are morally appropriate oracceptable for criminal activity. The persistence of capital punishment as apublic issue is perhaps the best example of this fact. There is also widely shareduneasiness with the treatment of offenders by our courts and correctionalinstitutions. What are not widely shared are the grounds for this concern.There are, on the one hand, many people who think our courts have becomeoffender oriented, handing out unjustifiably lenient sentences for seriousoffences. Correctional institutions are not infrequently described as resorts.Parole boards have in recent years been subjected to fierce criticism for theirdecisions. Meanwhile, confidence in the capacity of our system to rehabilitate or2 THE PRACTICE OF PUNISHMENT deter has been declining. This has led some to conclude that offenders should beostracized from normal society and forced to live under austere conditions withlimited access to treatment, education, recreation, and social activities of a sortthe rest of us enjoy and take for granted. It is not uncommon, for example, to hearcommentators suggest that those who have committed serious crimes like murderor violent assault should be regarded as having forfeited the right to be treatedwith dignity and should be either permanently isolated from normal society insome way or executed.In contrast to these attitudes are the views of many others, spearheaded oftenby organizations committed to penal reform, that our approach to punishmenthas become excessively punitive and counter-productive.Do these attitudes reflect more than just the normal range of opinions found onmost topics in our society? There are good reasons to think that they do. There istoday much less agreement on the administration of punishment than there hasbeen for many decades. Research has revealed surprisingly wide disparities insentencing among judges. Evaluation of rehabilitation-oriented programmes incorrectional institutions has resulted in widely shared discouragement about theirefficacy. The ‘nothing works’ syndrome is now common among correctionalofficials, and academics. The goals of reform and rehabilitation whose valueshave dominated the field of corrections virtually since the turn of the centuryhave been sharply criticized and widely abandoned. And while deterrence is stilla mainstay of sentencing rhetoric, the value of most sentences as either generalor specific deterrents is very much in doubt. In short, the justifications ofpunishment that have dominated sentencing and corrections through most of thiscentury have lost their capacity to persuade. What has taken their place is‘justice-oriented’ sentencing, whose goal is to assign punishments fairly byreference to what is deserved. In short, we seem to be returning to just retributionas the goal of punishment.This ‘reformation’ in punishment theory has begun to have a dramatic effecton how the task of sentencing offenders is carried out. While the goal ofrehabilitation dominated sentencing, judges required wide discretion to fulfiltheir responsibilities. This in turn resulted in wide disparities in sentences handeddown for apparently similar offences. Many people have now concluded thatwide judicial discretion is itself a serious source of injustice.3 As a consequencemany jurisdictions have implemented policies designed to reduce disparities insentencing by reducing and in some cases virtually eliminating judicial discretionin deciding sentences.Changing attitudes toward the role and purpose of punishment have impactedon the practice of punishment in two other significant ways. The focus on justsentences has directed attention to questions of fairness as well as questions ofoffender rights. However, it has also opened the door to increasingly harshsentencing practices. There are two reasons for this. First, considerations offairness that require that like cases be treated alike have increased the pressure fordeterminate sentences. This in turn has undermined rehabilitation-orientedAN INTRODUCTION 3 practices like remission of time for good behaviour and early releasemechanisms like parole which have the effect of reducing the time offendersspend in prison in ways that are not directly related to the seriousness of the crimecommitted.4Second, desert-oriented theories of punishment provide guidance to sentencingauthorities once the types of punishment for various offences have beenestablished. On the other hand, their advocates have not reached common viewson acceptable ranges of punishment. Some advocates of the desert model ofpunishment support capital punishment, for example. Others are opposed.5 Somehave argued for very limited use of imprisonment and very short sentences,while others advocate harsh sentencing policies, for example life imprisonmentfor serious crimes.6 In a public climate of fear and uncertainty, this aspect of ajust deserts approach to punishment seems to have opened the door to increasingseverity in sentencing policy, as evidenced by prison overcrowding and vastlyexpanding capital budgets for prison construction, among other things.Another weakness of desert-oriented punishment is that it provides littleguidance on how those sentenced to imprisonment should spend their time whileimprisoned. This fact combined with discouragement about the effectiveness ofrehabilitation and a lack of public sympathy for those who break the law hasresulted in a serious vacuum in correctional policy. Increasingly our prisonsresemble warehouses whose primary function is incapacitation for the durationof an offender’s sentence.One concrete sign of public unease with how offenders are dealt with by ourcriminal justice systems is the rush on the part of governments in recent years toappoint inquiries and commissions whose mandate is to review sentencing andcorrectional practices. Equally disconcerting is the unease with which the authorsof resulting reports have greeted their own recommendations. Willard Gaylin andDavid Rothman, writing in the ‘Introduction’ of Doing Justice, one of the mostinfluential early defences of the justice model of punishment, describe theirsolution as ‘one of despair not hope’. The desert model they advocate isdescribed as ‘intellectual and moralistic’, emphasizing ‘justice not mercy’ andturning back on ‘generosity and charity, compassion and love’ (von Hirsch 1976:xxxix). The Canadian Sentencing Commission, having undertaken a task similarto that of the American Committee eleven years earlier, endorses a similar modelof sentencing but is equally pessimistic in that endorsement. Punishment cannotbe justified, they imply. Yet contemporary society insists, apparently withoutsound reason, that punishment be inflicted for criminal acts. The best that we cando is to limit the damage that punishment inevitably inflicts (Archambault 1987:145).Finally, at the level of pure theory, we find a similar range of difficultiesarising. Pure retributivist theories are notoriously difficult to defend and widelythought to be indistinguishable from the thoroughly disreputable goal of revenge.7The chief rivals of retributivist accounts of punishment are forward-lookingand utilitarian in nature. These theories have been widely criticized both on4 THE PRACTICE OF PUNISHMENT empirical grounds—actual rehabilitative regimes have not generated resultsrequired to justify their continuance—and for their inability to providesentencing criteria that respect fundamental moral principles, particularly widelyshared notions of justice.What is more, though each theory seems to require the other if punishment isto be justified, they also seem to be incompatible.All of this suggests, then, that there is ample reason for thinking thatpunishment as it is practised in western liberal democracies in the late twentiethcentury needs careful and sustained scrutiny.How to proceed?The account offered thus far suggests that we are unlikely to make progress bymoving case by case through current sentencing and correctional practices andcurrent criminal law. Our current system is too badly fragmented and the currentmalaise too pervasive. Approaching our task by plunging into abstract theorizingis equally unpromising. This is because the work of recent theorists has resultedin justifications that either embrace the status quo uncritically or are inapplicablein anything but utopian settings.8Consequently, I propose to begin from an assessment of what I shall suggestare deeply held beliefs about punishment and its function in our modernsocieties. They are four in number.1 Something like punishment as we understand it is an unavoidable element ofmodern social life.The strength of this belief is evidenced by the abrupt and derisive publicrejection that invariably greets proposals for the abolition of punishment.The strength of the belief is also indicated by the fact that it is accepted as aground level reality both by formal commissions like the CanadianSentencing Commission and by most theorists writing on the subject.92 The practice of punishment, reflecting as it does the evolution of ourcriminal justice system and the kinds of penalties it typically imposes forcriminal acts, from imprisonment to fines, is in principle defensible andunderstandable.This belief reflects the common view that the way our society approachesthe enforcement of law, though perhaps capable of improvement and evensubstantial improvement, is none the less intelligible and defensible. 3 Punishment as it is practised in North American and western Europeansocieties is in need of significant reforms.This belief is perhaps less widely shared than the others. Yet it reflects therealities of the evolution of our penal system. At various times in the lastcentury, our societies have been persuaded that serious penal reform wasrequired. Movements for penal reform have given rise to significant changesin what we view as legitimate punishments and how those punishments areAN INTRODUCTION 5 administered. The most recent evidence of this fact is the gradual rejectionof capital punishment as legitimate punishment by most western liberaldemocracies since the last war. Yet many of the reforms introduced withpublic support in the past are now suspect. And there are significant effortsto reintroduce harsher sentencing practices.4 Any account of punishment to be useful must provide us with criteria forevaluating whether current practices are in need of reform, and whetherconcrete proposals for reform constitute genuine improvements.Many discussions of punishment fail this test, as we shall see in whatfollows.I propose to start with practical concerns and practical problems. Most of us havein fact thought a good deal about punishment in one form or another throughoutour lives: as children faced with parental disapproval and discipline, as parentsconfronted with the need to establish and maintain family discipline, asemployees and employers, as friends and neighbours, and just as citizensrequired to obey the law. Most of us have therefore given thought to who shouldbe punished under what conditions and for what reasons. It is also true that themoral dimensions of punishment have been and continue to be widely explored,though not always as systematically as philosophers would like. Finally, it isrelatively obvious to those familiar with everyday accounts of punishment andwith the philosophical literature on the subject that philosophical discussions onthis subject tend to echo common sense views on the subject. For all of thesereasons, to begin a study of punishment with practical concerns and practicalinsights seems, at first glance at any rate, a sound strategy.I shall not ignore theory, however. Rather, what I am proposing is somethingmore akin to a dialogue between theory and practice. Philosophy of punishmentis practical philosophy. It is important therefore that it engage experience in practical ways.A guide to the argumentThe purpose of the first three chapters is to evaluate traditional approaches to thejustification of punishment: retributivism, utilitarian theories and two relativelyrecent attempts to capture the virtues of each of these theories in a single hybridaccount. One of the purposes of the discussion will be to show how thesetraditional theories arise naturally from practical concerns to which harmful andoffensive behaviour give rise. However, on careful examination, none of them isable to provide an account of punishment that is free of serious practical andmoral objections. Neither can the theories be combined in a way which capturesonly their virtues while avoiding their objectionable qualities.We are left then with a dilemma. Although punishment is widely thought to bean unavoidable feature of the criminal law, the practice of punishment seems tobe very difficult to justify taken by itself.10 This suggests that, to understand the6 THE PRACTICE OF PUNISHMENT necessity for punishment, we need to turn to an examination of the need for lawand the role of punishment as a part of legal systems.Legal systems arise, I shall suggest, in response to a universal human need forcooperation as well as human vulnerability to violence, or to the use of force as ameans for achieving human objectives. Law provides a potentially useful way ofresolving disputes in a manner that encourages cooperation and reduces recourseto the use of force in the settling of disputes. Legal systems seek to accomplishthese goals by giving designated officials the authority to make, change,interpret, and enforce laws. The use of this authority is morally justified, I shallargue, when it reduces recourse to the morally justified use of force in disputesettlement.Legal systems can fulfil these basic functions only if those who fall under thelaw’s authority are confident that for the most part others with whom theyinteract can be trusted to live within the law. The proper function ofenforcement, then, is threefold: to demonstrate that for the most part people arelaw abiding and that those responsible for enforcement are committed tofulfilling their responsibilities conscientiously; to persuade people to obey thelaw when they might otherwise fail to do so; and to provide assistance to those whoneed help in obeying the law. I shall argue that each of these functions does in fact play a central role in bothpolicing and adjudication in modern western societies. Furthermore, once weunderstand enforcement to have these three functions, not only are thecomplexities of both policing and adjudication more easily understood, but therelationship of each to sentencing and the development of correction policiesbecomes evident. This in turn provides an interesting perspective from which toboth understand and evaluate much of the general contemporary unease withsentencing as well as the persistent and persuasive demands for significantreforms that have dominated public policy debates in recent years.We now have a setting in which to understand the role of sentencing andcorrections. The function of a sentence, this account suggests, is the resolution ofdisputes to which criminal offences give rise in ways designed to sustainconfidence in the capacity of the law to fulfil its legitimate functions on the partof victims of crime and the public at large. To do this effectively, the sentencingprocess must demonstrate commitment on the part of authorities to lawenforcement, while seeking to persuade and enable offenders to live within thelaw.The function of enforcement is therefore essentially restorative. And the goalof sentencing is restorative justice. As we shall see, what results is a theory ofpunishment that captures the essential features of the traditional accounts,accepts the inevitability of punishment as a feature of criminal justice, but goesbeyond the traditional accounts by suggesting that, while punishment isunavoidable, imposing hard treatment is not the purpose of sentencing but ratherits result. The purpose of sentencing is and ought to be restorative justice.AN INTRODUCTION 7 1PUNISHMENT AS RETRIBUTIONThere is a straight-forward sense in which punishment could be said to be anatural feature of human existence. History, literature, and religion confirm itscentral role in human relationships from the dawn of society. It is perhaps thesense that punishment is an inevitable or unavoidable feature of social life thatleads many people to dismiss as impractical, or silly, or hopelessly utopian allsuggestions that punishment is something we could and should do without.At the same time, there is another side to the picture. Even while admitting itssocially fundamental character, many acknowledge that punishment has manytroubling features. We may agree that punishment is an essential tool for parents,teachers, employers and employees, the courts and so on. Yet we are oftenconcerned with how that tool is employed by those in positions of authority.Knowledge of the history of punishment does little to allay that concern. Lookingat the past from the perspective of today’s values, it is hard not to be appalled atwhat has been justified in the name of punishment.It is no doubt these troubling features that have led some people to experimentwith the task of describing a world in which punishment was allotted no place.Neither is the project as other-worldly as some might at first suggest. After all,for most of human history, corporal punishment has been seen as essential to theeducation of children. Yet this assumption has been frequently and persuasivelycriticized over the course of the last half-century to the point where corporalpunishment has been virtually eliminated from our educational systems. Equally,the once unbridled right of parents to use corporal punishment is now beingprogressively curtailed.Perhaps more important than these developments is the fact that punishmentseems to conflict with values like forgiveness, mercy, compassion, andbenevolence, all of which reflect non-punitive ways of solving problems ofhuman conflict. Punishment sets out to cause suffering. Its approach isessentially negative and coercive. In contrast, the values in tension with it arepositive, forward-looking and build on cooperation.None of this would convince most of us to set aside punishment asunnecessary or outdated. However, these considerations do suggest that thepractice of punishment is not unproblematic. Neither are appropriate forms of punishment easily described, structured, or justified. As a result, we are left in aposition of considerable moral tension. If punishment is an inevitable feature ofsocial life, under what conditions is inflicting punishment justified?The common viewOne way of answering this question is to try to construct a common sense pictureof punishment based on everyday experiences. This should not be a difficult taskin the first instance if it is as common as I have suggested. And it may help us tounderstand the features of punishment as we commonly experience it. We canthen ask whether, given its basic properties, punishment as we normallyencounter it is unavoidable in some form.One fundamental feature of human relationships is that they are rule governed.Since the function of a rule is to prohibit what otherwise might be done, ruleenforcement seems unavoidable. If those who broke the rules were treated nodifferently from those who followed them, we would normally conclude that therule had ceased to apply. It does not follow that in every case where there is noenforcement there is no rule. In times of emergency, there may be no time forenforcement. Alternatively, ignoring a breach of the rules may be politicallyexpedient, and so on. All that having been said, however, if no one ever reactedwhen a rule was broken, that would in normal circumstances be grounds forconcluding that there was no rule.Normally, we can also determine the strength of a community’s commitmentto a rule by determining how it is enforced. The g...