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How to Say Things with Walls

Published online by Cambridge University Press:  30 January 2009

A. J. Skillen
A. J. Skillen
Affiliation:
Keynes College, University of Kent at Canterbury
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Extract

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 (1965). 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.

Type
Articles
Information
Philosophy , Volume 55 , Issue 214 , October 1980 , pp. 509 - 523
Copyright
Copyright © The Royal Institute of Philosophy 1980

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References

1 In Fried, Charles's An Anatomy of Values (Cambridge, Mass.: Harvard University Press, 1970)CrossRefGoogle Scholar and especially in Tribe, Laurence H.'s ‘Trial by Mathe matics, Precision and Ritual in the Legal Process’, Law 84, No. 6 (1971)Google Scholar, the ‘expression’ view is elaborated and used. Other modern discussions not referred to below are Ewing, A. C., The Morality of Punishment (London: Kegan Paul, 1929)Google Scholar, Devlin, Partick, The Enforcement of Morals (Oxford University Press, 1965)Google Scholar, Hart, H. L. A., Law, Liberty and Morality (Oxford University Press, 1963), 60–69Google Scholar, and SirMoberly, Walter, The Ethics of Punishment (London: Faber, 1968), Chapters 8, 9.Google Scholar

2 I argue in Ruling Illusions (Sussex: Harvester, 1978)Google Scholar for a sceptical view of legal punishment.

3 Op. cit., 400.

4 A History of the Criminal Law of England, II, 81.Google Scholar

5 Salmond on Jurisprudence, 11th edn (1957), 121.Google Scholar

6 Report of the Royal Commission on Capital Punishment (London, 1953), Section 53.Google Scholar

7 1925 (Glencoe: Free Press, 1961), 176.Google Scholar

8 ‘Indirect means of preventing crimes.’ ‘Principles of Penal Law’, Works, 549.Google Scholar

9 Op. cit., 175.

10 Harvard Educational Review 48, No. 1 (02 1978), 92.Google Scholar

11 Any theory of modern punishment, though, would have to recognize the sense in which the sentence, as distinct from the sentencing is, unlike the stocks, not public. Among other things this throws light on the ‘expressive’ role of prison officers—‘society'’ proxies.

12 Op. cit., 402.

13 Ibid., 402.

14 Ibid., 420–421.

15 Ibid., 423.

16 Anatomy of Values, 30.Google Scholar

17 ‘Trial by Mathematics’, op. cit., 1392.Google Scholar

18 See Censorship: Peter Coleman versus Wendy Bacon (Australia: Heinemann, 1975).Google Scholar

19 Op. cit., 402.

20 Op. cit., 182.

21 For a useful study see, Ignatieff, Michael's A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750–1850 (London: Macmillan, 1978).CrossRefGoogle Scholar