I want to discuss a view of punishment which stresses its ‘expressive’ character and seeks in that its justification. While I shall label this view ‘expressionism’, I should warn that most theorists who express an ‘expressionist’ view do not present it as an exhaustive account, but rather claim to be highlighting an aspect that tends to be neglected within the rationalist framework common to retributivism and utilitarianism. Among contemporary writings I shall focus on Joel Feinberg's article, ‘The Expressive Function of (...) Punishment’ in The Monist 49, No. 4 . While I accept that ‘expression’ usefully sums up much of what underlies punitive practices, I shall urge that the term conceals a variety of more or less amalgamated ingredients which need to be disentangled for critical inspection. I shall argue that under those aspects, punishment's justification continues to be elusive. I do not imagine that these arguments will deter my more punitive colleagues from continuing to seek such justification, but I hope they will search elsewhere. Feinberg writes: Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, either on the part of the punishing authority himself or of those ‘in whose name’ the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties. (shrink)

This incisive book deals with the use of the criminal law to enforce morality, in particular sexual morality, a subject of particular interest and importance since the publication of the Wolfenden Report in 1957. Professor Hart first considers John Stuart Mill's famous declaration: "The only purpose for which power can be rightfully exercised over any member of a civilized community is to prevent harm to others." During the last hundred years this doctrine has twice been sharply challenged by two great (...) lawyers: Sir James Fitzjames Stephen, the great Victorian judge and historian of the common law, and Lord Devlin, who both argue that the use of the criminal law to enforce morality is justified. The author examines their arguments in some detail, and sets out to demonstrate that they fail to recognize distinction of vital importance for legal and political theory, and that they espouse a conception of the function of legal punishment that few would now share. (shrink)

J. R. Lucas; XII—Or Else, Proceedings of the Aristotelian Society, Volume 69, Issue 1, 1 June 1969, Pages 207–222, https://doi.org/10.1093/aristotelian/69.1.207.

A number of philosophers and legal scholars have pointed out a fact about punishment that had not been sufficiently appreciated by many traditional accounts, utilitarian, retributive, or ‘mixed’: that evil inflicted on the person punished is not an evil simpliciter , but rather the expression of an important social message—that punishment is a kind of language. The message which it is seen to communicate can broadly be described as condemnation by society of the crime committed. In what is still the (...) only attempt at a general and critical discussion— Anthony Skillen's ‘How to say Things with Walls’—this way of understanding punishment is termed ‘expressionism’. In this paper I propose to sort out the main varieties of expressionism in the philosophy of punishment, and to discuss some of their pros and cons. (shrink)

Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, offers the most (...) fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (shrink)

Retributive accounts of the justification of criminal punishment are increasingly fashionable, yet their proponents frequently rely more on suggestive metaphor than on reasoned explanation. This article seeks to question whether any such coherent explanations are possible. I briefly sketch some general doubts about the validity of retributivist views and then critique three recent efforts (by George Sher, Jean Hampton, and Michael Moore) to put retributivism on a sound basis.

Nozick analyzes fundamental issues, such as the identity of the self, knowledge and skepticism, free will, the foundations of ethics, and the meaning of life.

A number of jurisdictions, including England and Wales after their adoption of the 1991 Criminal Justice Act, require that sentences be `proportionate' to the severity of the crime. This book, written by the leading architect of `just deserts' sentencing theory, discusses how sentences may be scaled proportionately to the gravity of the crime. Topics dealt with include how the idea of a penal censure justifies proportionate sentences; how a penalty scale should be `anchored' to reduce overall punishment levels; how non-custodial (...) penalties should be graded and used; and how political pressures impinge on sentencing policies. (shrink)

This book aims to answer the question of why, and by what right, some people punish others. With a groundbreaking new theory, Matravers argues that the justification of punishment must be embedded in a larger political and moral theory. He also uses the problem of punishment to undermine contemporary accounts of justice.