Expressive Punishment and Political Authority

In this paper I consider a possible objection to the expressive or communicative theory of punishment.The objection centres on the state's right to punish-that is, according to the theories I am interested in, the state's right to intervene in a citizen's life and impose a sanction in order to express deserved condemnation.My question is twofold: 1) what view of state authority seems to be implied by the alleged right of the state to punish, and 2) is that view of state authority compatible with our best theories of how the state gains authority over its citizens?I begin by reviewing some different conceptions of what authority is.I argue that the expressive theory of punishment cannot co-opt simply any account of state authority in order to establish the right to punish.Because the right to punish must, on the expressive theory, include the right to issue deserved condemnation, the account of state authority implied by the expressive theory must include some account of (epistemic) moral authority.Nevertheless, epistemic authority is not enough by itself It must be accompanied by political authority: the right to rule.I therefore suggest that, on the face of it, the expressive view is committed to a conception of state authority in which epistemic and political authority are united, such as on what I call the Solomon model, in which the ruler (Solomon) gains political authority because of his wisdom.However, if the expressive theory is committed to seeing the Solomon model as the ideal case of state authority, then it will understandably raise the hackles of liberals who see individual autonomy as a fundamental value: Solomon, one might think, is the ideal case of paternalistic authority.Having developed this criticism of the expressive view, I look at the resources of the expressive theory for dealing with it.I look at R.A. Duf's attack on the notion of contentindependent authority as it applies to criminal law.However, I argue that content-independent authority is simply the right to rule and that Duff and other expressive theorists are committed to the state possessing such a right.Therefore, this move of Duff's will not solve the problem.A better solution, I argue, might lie in the idea ofdemocratic authority.