The expressive theory of punishment

Notes for March 25

Main points

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

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 class made up for the class I had to cancel on March 13. We pushed the scheduled reading off for the next session.)

Harming the innocent

One problem with retributive theories of punishment is that it seems to be impossible to meet the necessary condition: only the guilty can be punished. For example, innocent family members are often hurt by punishing the guilty.

The expressive theory can’t remove the harm that the innocent suffer. But it can help us to make progress on the apparent incoherence of punishment. Because we are not expressing our hostility towards the innocent family members, we are not punishing them, even though we do harm them, when we punish the guilty.

So it’s not possible for punishment only to harm the guilty. But it is at least possible for punishment to be restricted to the guilty.

Feinberg’s premise

Feinberg begins with an assumption that fines are not punishments. We spent a lot of time on this point. Among other things, we noted some cases where fines are coupled with resentment: think about parking in handicapped spots or dangerous speeding on the highway. These infractions are penalized with fines, but they are also highly resented. So they seem to be instances of fines that fit the theory of punishment, contrary to his assertion that punishment is distinct from fines.

What is punishment?

Angela had a nifty point at the very end of class. If Feinberg is right, punishment need not involve so-called hard treatment like being locked up in prison. Anything that would express society’s disapproval would do.

I think that’s right. The Scarlet Letter is a story about punishment, but Hester Prynne was not put in jail. Having to wear a letter is not hard treatment. But boy was it ever a punishment! I think Feinberg’s theory nicely explains why it makes sense to say that she was being punished.

Key concepts

  1. Fines vs. punishments
  2. The expressive theory
  3. How it differs from retributivism
  4. The communists who were deprived of benefits
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted March 28, 2014.
Philosophy of Law