I argue that contemporary liberal theory cannot give a general justification for the institution or practice of punishment, i.e., a justification that would hold across a broad range of reasonably realistic conditions. I examine the general justifications offered by three prominent contemporary liberal theorists and show how their justifications fail in light of the possibility of an alternative to punishment. I argue that, because of their common commitments regarding the nature of justification, these theorists have decisive reasons to reject punishment (...) in favor of a non-punitive alternative. I demonstrate the possibility of this alternative by means of a careful examination of the nature of punishment, isolating one essential characteristic—the aim to impose suffering—and showing how this characteristic need not guide enforcement. There is logical space for a forceful and coercive, yet non-punitive method of enforcement. This fact poses difficulties for many classical and contemporary justifications of punishment, but it poses particularly crippling problems for general liberal justifications. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

Since the middle of the 20th century, philosophers and legal scholars have debated the precise definition of punishment. This chapter surveys the debate, identifies six potential conditions of punishment, and critically reviews each of them: 1) the response condition, which holds that punishment must be in response to wrongdoing, 2) the culpability condition, which holds that punishment must be of a person morally responsible for wrongdoing, 3) the authority condition, which holds that punishment must be imposed by a relevant authority, (...) 4) the hard treatment condition, which holds that punishment must impose hard consequences on the punishee, 5) the intentionality condition, which holds that punishment must be intentional, and 6) the censure condition, which holds that punishment must communicate disapproval. The article argues that it is often unclear that there is a version of the condition that provides optimal lexical fit. It discusses the implications of this analysis, and concludes that there may be less reason to worry about the lack of an authoritative definition than has sometimes been assumed, but that definitional clarity remains an objective worth pursuing. (shrink)

Philosophy Compass, Volume 17, Issue 5, May 2022.

Many philosophers hold that punishment has an expressive dimension. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or recipients, if any, punishment might express whatever it expresses. I shall argue that in order to assess the plausibility of an expressivist approach to justifying punishment we need to pay careful attention to whether the (...) things which punishment is supposed to express are aimed at an audience. For the ability of any version of expressivism to withstand two important challenges, which I call the harsh treatment challenge’ and the ‘publicity challenge’ respectively. will depend on the way it answers them. The first of these challenges has received considerable discussion in the literature on expressive theories of punishment; the second considerably less. This is unfortunate. For careful consideration of the publicity challenge should lead us to favor a version of the expressive theory which has been under-discussed: the view on which punishment has an intended audience, and on which the audience is society at large, rather than—as on the most popular version of that view—the criminal. Furthermore, this view turns out to be better equipped to meet the harsh treatment challenge, and to be so precisely because of the way in which it meets the publicity challenge. (shrink)

When Dominique Strauss-Kahn, then head of the IMF, was arrested on charges of sexual assault arising from events that were alleged to have occurred during his stay in an up-market hotel in New York, a sizeable portion of French public opinion was outraged - not by the possibility that a well-connected and widely-admired politician had assaulted an immigrant hotel worker, but by the way in which the accused had been treated by the American authorities. I shall argue that in one (...) relatively minor respect, Strauss-Kahn’s defenders were correct. They were correct to argue that the parading of Strauss-Kahn before the press, in handcuffs - the so-called perp walk - constituted a form of punishment; and thus that it contravened the principle that criminal punishments should only be administered after a fair trial. So-called ‘expressive’ theorists of punishment hold that a form of harsh treatment can only constitute a form of punishment if it has an expressive role. Within the expressive family, we can distinguish between views on which the primary target of the communication to be the society of which either offender, or victim, or both are members—what I call ‘Denunciatory Views’, and views which take the principle target of penal communication to be the offender—such as Antony Duff’s Communicative View. I shall argue that on both a minimal account of punishment and on either kind of expressive view, ‘perp walks’ are a form of punishment. (shrink)

I criticize an increasingly popular set of arguments for the justifiability of punishment. Some philosophers try to justify punishment by appealing to what Peter Strawson calls the reactive attitudes – emotions like resentment, indignation, remorse and guilt. These arguments fail. The view that these emotions commit us to punishment rests on unsophisticated views of punishment and of these emotions and their associated behaviors. I offer more sophisticated accounts of punishment, of these emotions and of their associated behaviors that are consistent (...) with Abolitionism, the view that punishment is unjustified. (shrink)

I argue that legal punishment is morally wrong because it’s too morally risky. I first briefly explain how my argument differs from similar ones in the philosophical literature on legal punishment. Then I explain why legal punishment is morally risky, argue that it’s too morally risky, and discuss objections. In a nutshell, my argument goes as follows. Legal punishment is wrong because we can never sufficiently reduce the risk of doing wrong when we legally punish people. We can never sufficiently (...) reduce this risk because wrongful punishment is much worse than wrongful non-punishment and because punishment’s permissibility depends on the answers to a variety of difficult philosophical questions about which we’re fallible. (shrink)

According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. (...) These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed. (shrink)

Some philosophers (Duff, Hampton) conceive of punishment as a way of communicating a message to the punished and argue that this communicative function justifies the harm of punishment. I object to communicative theories because punishment seems intuitively justified in cases in which it fails as a method of communication. Punishment fails as communication when the punished ignores the intended message or fails to understand it. Among those most likely to ignore or fail to understand the message of punishment are the (...) most hardened criminals, whom we typically think are appropriate targets of punishment. I suggest that an alternative justificatory strategy, one that focuses not on the successful receipt of the message of punishment by the wrongdoer but on the expression of condemnation by the community, is not subject to the same worry. The norms of successful expression are more easily met than those of communication, so that expressing condemnation toward a criminal might be justified even if he is unreceptive in the face of the expression. (shrink)

Many philosophers think that an agent punishes a subject only if the agent aims to harm the subject. Bill Wringe has recently argued against this claim. I show that his arguments fail.

It is not usually morally permissible to desire the suffering of another person, or to act so as to satisfy this desire; that is, to act with the aim of bringing about suffering. If the retributive emotions, and the retributive responses of which they are a part, are morally permitted or even required, we will need to see what is distinctive about them. One line of argument in this paper is for the conclusion that a retributive desire for the suffering (...) of the wrong-doer, and the aim to bring this about, can (contra recent arguments from Hanna 2008) be morally justified. -/- It has been suggested that by reflecting on the role of the retributive emotions in interpersonal relationships, and the alleged legitimacy of the aim for the suffering of the wrong-doer within them, support can be garnered for retributive practices of punishment by the state (Duff 1986 and 2001, Bennett 2002 and 2003). The conclusion of the second line of argument in the paper is that whilst the retributive responses can permissibly aim at suffering, the way in which this is so in interpersonal relationships cannot provide support for retributive state punishment. (shrink)

In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to (...) establish the following claims: punishment is the only symbolically adequate response to a wrongdoing; and punishment is permissible if it is the only symbolically adequate response to a wrongdoing. (shrink)

Nathan Hanna has recently argued against a position I defend in a 2013 paper in this journal and in my 2016 book on punishment, namely that we can punish someone without intending to harm them. In this discussion note I explain why two alleged counterexamples to my view put forward by Hanna are not in fact counterexamples to any view I hold, produce an example which shows that, if we accept a number of Hanna’s own assumptions, punishment does not require (...) an intention to harm, and discuss whether a definition and counter-example approach is the best way to proceed in the philosophy of punishment. I conclude with a brief exegetical discussion of H.L.A Hart’s Prolegomenon to the Principles of Punishment. (shrink)

Philosophical writing about the legal practice of punishment has traditionally focused on two central questions: what (if anything) justifies the practice of tr.

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law (...) to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution. (shrink)

It has recently been suggested that the fact that punishment involves an intention to cause suffering undermines expressive justifications of punishment. I argue that while punishment must involve harsh treatment, harsh treatment need not involve an intention to cause suffering. Expressivists should adopt this conception of harsh treatment.

Among the advocates of expressive theories of punishment, there is a strong consensus that monetary fines cannot convey the message of censure that is required to punish serious crimes or crimes against the person. Money is considered an inappropriate symbol to express condemnation. In this article, I argue that this sentiment is correct, although not for the reasons suggested by advocates of expressivism. The monetary day-fine should not be understood as a simple deprivation of money, but as a punishment that (...) reduces the offender’s capacity to consume for a certain period of time. Conceived in this manner, I argue that it is perfectly suitable to convey censure. However, the practical impossibility of ensuring that the person who pays the fine is the same person who has been convicted of the offense seriously undermines the acceptability of the monetary fine as an instrument of censure. Minimizing the risk of the fine’s hard treatment being transferred to third parties is a necessary condition for the monetary fine to be considered a viable alternative to lengthy prison sentences. (shrink)

I argue that penal philosophy should focus more on our attitudes towards offenders, since these attitudes can shed new light on theories or principles of punishment (of which they are often expressions) and also play a significant role in changing the face of criminal justice. Building on Strawson’s “Freedom and Resentment,” I define attitudes as certain ways of seeing human beings that logically include or exclude various emotional, behavioral, and linguistic responses, that can be more or less natural, and over (...) which we have some degree of voluntary control. I argue that, understood in this sense, there are broadly speaking six attitudes towards offenders: the retributive, the hostile, the moralistic, the paternalistic, the merciful, and the actuarial. After presenting each of these attitudes, I sum up my analysis by focusing on the Polanski sexual abuse case. I then introduce the concept of second-order attitudes, where egalitarianism is the attitude that consists of taking the same attitude towards all offenders, and particularism is the attitude that consists of adjusting your attitude to each offender. Finally, I briefly explain why a mix of the retributive and the merciful should be our default attitude. (shrink)

This article focuses primarily on the emotion of guilt as providing a justification for retributive legal punishment. In particular, I challenge the claim according to which guilt can function as part of our epistemic justification of positive retributivism, that is, the view that wrongdoing is both necessary and sufficient to justify punishment. I show that the argument to this conclusion rests on two premises: (1) to feel guilty typically involves the judgment that one deserves punishment; and (2) those who feel (...) guilty after wrongdoing are more virtuous (or less vicious) than those who do not. I shall argue that premise (1) is false on both empirical and conceptual grounds and that there are no particularly good grounds supporting this premise (2). Finally, I consider and reject the claim that anger, as opposed to guilt, can afford the type of epistemic justification needed by positive retributivism. (shrink)

Is there a duty to prosecute grave international crimes? Many have thought so, even if they recognize the obligation to be defeasible. However, the theoretical literature frequently leaves the grounds for such a duty inadequately specified, or unsystematically amalgamated, leaving it unclear which considerations should drive and shape processes of criminal accountability. Further, the circumstance leaves calls to end impunity vulnerable to skeptical worries concerning the risks and costs of punishing perpetrators. I argue that a qualified duty to prosecute can (...) be substantiated on the basis of a single class of reasons, though also that standard justifications of international criminal law (as currently conceived) are not up to the task. The account exploits the expressive dimension of punishment, but locates the central good of criminal accountability in its capacity to appropriately enable an agential stance on the part of subjects in transitional circumstances. It can legitimate, in a way to be specified, hope. The approach also displays the cynicism of an anti‐impunity ethos in the absence of a robust commitment to securing basic human rights in transitional circumstances. (shrink)

Are we justified in keeping the demented in prison for crimes they committed when they were still healthy? The answer to this question is an issue of considerable practical importance. The problem arises in cases where very aged criminals exhibit symptoms of dementia while serving their sentence. In these cases, one may wonder whether lodging these criminals in penal institutions rather than in normal caretaking facilities is justifiable. In this paper, I argue that there are justificatory reasons for punishing the (...) demented for their past crimes. In part 2, I examine three theories of punishment—retributivism, prevention theories and expressivism—with regard to the question of whether they provide justificatory reasons for punishing the demented. I argue that only expressivism provides these reasons. In part 3, I defend the view that expressivism, though not convincing as a general theory of punishment, is plausible if applied only to a specific subclass of punitive actions. More precisely, expressivism, or so I argue, is plausible with regard to those acts of punishment that consist in intending to inflict suffering without actually inflicting suffering. Since the punishment of demented patients falls within this class, it can be justified on an expressivist basis. In part 4, I discuss six objections to my view and rebut them. (shrink)

This paper considers the applicability of expressive theories of punishment to the punishment of corporate entities. The author argues that although arguments which suggest that the denunciatory account is superior to a communicative account in paradigmatic cases of punishment cannot be transferred straightforwardly to cover this kind of case, there are other reasons, connected with the different attitudes we have to regret and remorse in individual and collective cases, for preferring a communicative to a denunciatory account here.