Joel Feinberg On The Expressive Function of Punishment
While theorising punishment, Immanuel Kant argued that “even if a desert island community were to disband, its members should first execute the last murderer left in its jails, “for otherwise they might all be regarded as participators in the [unpunished] murder”.
The “symbolism of punishment”, of what it speaks of both the criminal and the community, was of importance to Kant. Years later, for Joel Feinberg, this is precisely what has escaped the ken of philosophers such as Antony Flew and SI Benn.
In The Expressive Function of Punishment, Joel Feinberg attempts to answer what distinguishes “punishment” from different kinds of “penalties”. He argues that while both the punishments and the penalties are “authoritative deprivations for failure”, punishments have an additional characteristic — an expressive function:
“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.”
In pursuance of this assertion, Feinberg proposes that the definition of legal punishment shall include both its “hard treatment” and “reprobative function”. However, the theorising of punishment doesn't end there. The conceptualisation shall also acknowledge that both of these aspects “raises its own kind of question about the justification of legal punishment as a general practice”.
Punishment As Condemnation
Feinberg concedes that it is easier to argue that punishment has a symbolic function than to show what exactly it is that the punishment expresses. In “civilised democratic countries”, he goes on, punishment expresses the strong disapproval of the community of the criminal act:
“Indeed it can be said that punishment expresses the judgment (as distinct from any emotion) of the community that what the criminal did was wrong. I think it is fair to say of our community, however, that punishment generally expresses more than judgments of disapproval; it is also a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment.”
However, “hard treatment” and “condemnation” are not two distinct or separate processes. Unlike Henry M Hart, Feinberg argues that the unpleasant treatment of punishment itself expresses the community’s condemnation. It is the expressive nature of incarceration that makes it qualify as punishment and not as a penalty:
“I venture to say, even Professor Gardner’s strong terms — “hatred, fear, or contempt for the convict” — will not seem too strong an account of what imprisonment is universally taken to express. Not only does the criminal feel the naked hostility of his guards and the outside world — that would he fierce enough — but that hostility is self-righteous as well. His punishment bears the aspect of legitimized vengefulness”.
Complement this with Henry M Hart on The Aims of Criminal Law, and HLA Hart on The Concept of Law.
