Feinberg on punishment Notes for April 15 & 20

Main points

We read two pieces by Feinberg on punishment. One gave an overview of the utilitarian and retributive justifications of punishment. The other presented what he called the expressive theory of punishment. We discussed the first on April 15 and the second on April 20.

Utilitarian vs. Retributive theories

The main problem with utilitarian rationales for punishment is that they favor too much punishment. You can deter crime by punishing the innocent or by giving disproportionate punishments to a few of the guilty. Of course, it’s not obvious that it would work out this way. If people discovered that they would be punished regardless of whether they commit crimes or not, that would hardly help the cause of deterrence. But the utilitarian rationale is compatible with these results and that fact alone is disconcerting.

The main problem with the retributivist rationale is also that it would punish too often. Retributivists would punish people just because they deserve it, regardless of whether doing so does any good or not. So people guilty of long forgotten crimes who have since led exemplary lives would be punished even if that accomplishes nothing positive.

I said that the problem with both views was their sufficient conditions for justified punishment (see Feinberg’s article for these, pp. 625 and 627). The solution I proposed was to drop them. Just keep each view’s necessary conditions for justified punishment: only the guilty can be punished, they can only be punished in ways that are proportionate for their crimes, and punishment has to have positive social results.

I also gave a rationale for this, aside from the fact it avoids the disadvantages of each view. The retributive theory of punishment answers moral questions: when is punishment deserved and how much punishment is deserved? The utilitarian theory answers political questions: when does it make sense for a society to punish people and how much punishment does it make sense to use? The two theories come apart largely because they’re addressing different questions. Thus utilitarianism seems to be immoral and retributivism seems to be unwise. But that doesn’t mean that they can’t address each others’ flaws.

The expressive theory of punishment

Feinberg’s question is what distinguishes punishment from mere penalties. His answer is that punishment has an expressive function that penalties lack.

As evidence, he gives several cases of punishment that fit neither the utilitarian nor the retributive theories. In one kind of case, for example, it matters who inflicts punishment beyond what the punishment itself involves. That is not covered by either of the two theories.

Feinberg then uses the expressive theory to smoke out sneaky attempts to punish people while avoiding the normal legal constraints on doing so, to explain why strict liability is tolerated when fines are the punishments but not when the punishment involves imprisonment, and to solve a problem with the justification of punishment that the retributive theory fails to solve.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted May 6, 2009.
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