Making Guilt Productive

Abstract

What productive role can guilt play in criminal law? Some authors have argued that in the context of a broader penance theory, guilt can offer a plausible justification for criminal punishment. In this chapter, I will argue that such a justification fails. It does so, first, because it grants the state too much authority over the inner feelings of offenders, and second, because such a justification of criminal punishment solely based on the penance rationale allows for disproportionate punishment. Nonetheless, I will argue that guilt within a penance account can play a different, albeit more limited, role in criminal law, namely as a justification for addressing criminal wrongdoing via restorative justice. In restorative justice settings, the productive potential of guilt can be developed, as such settings promote the expression of feelings of guilt, reconciliation between the affected parties, and reparation for the victim.