Comment: Breivik case challenges many moral and legal assumptions

By ANTONY DUFF
Published on 25/08/2012 01:15

This case challenges us, intellectually and morally. It challenges our understanding of the distinction between legal sanity and insanity.

A person is sane, and criminally responsible, if he can engage in rational thought and action and in rational discussion of his actions, beliefs and values. Breivik planned his crimes carefully and offered a detailed explanation of why he committed them. But could we really engage him in a critical discussion not just about his political beliefs, but about whether such beliefs could justify his actions?

Perhaps the court was right to hold that he should be treated as a responsible agent – that the Norwegian people should, through the court, try to engage with him as someone who is within the reach of reason. But such engagement requires moral courage and imagination.

The case also challenges our understanding of punishment. If we think of punishment as a retributive burden that should somehow convey the nature and seriousness of the crime, the difficulty of comprehending his crimes makes it difficult to imagine what punishment could do justice to them.

The case challenges our understanding of rehabilitation. What kind of rehabilitation is possible for someone who committed such crimes? The rehabilitative is that the offender comes to recognise the wrongs he committed and makes his peace with his fellow citizens; but how could we imagine a repentant Breivik making his peace with his fellow Norwegians?

These are challenges to a political ideal of community. In a decent society, we recognise each other as fellow citizens. This includes those who commit crimes: we must punish them, but we must treat them as fellow citizens, during and after their punishment. Anders Breivik challenges that ideal: but perhaps the Norwegians are showing that it is a challenge to which they can rise.

• Antony Duff is emeritus professor in the Department of Philosophy at the University of Stirling.