Abstract
Many philosophers hold that punishment has an expressive dimension. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or recipients, if any, punishment might express whatever it expresses. I shall argue that in order to assess the plausibility of an expressivist approach to justifying punishment we need to pay careful attention to whether the things which punishment is supposed to express are aimed at an audience. For the ability of any version of expressivism to withstand two important challenges, which I call the harsh treatment challenge’ and the ‘publicity challenge’ respectively. will depend on the way it answers them. The first of these challenges has received considerable discussion in the literature on expressive theories of punishment; the second considerably less. This is unfortunate. For careful consideration of the publicity challenge should lead us to favor a version of the expressive theory which has been under-discussed: the view on which punishment has an intended audience, and on which the audience is society at large, rather than—as on the most popular version of that view—the criminal. Furthermore, this view turns out to be better equipped to meet the harsh treatment challenge, and to be so precisely because of the way in which it meets the publicity challenge.
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Notes
Apart from Feinberg (1965), who thought that expressive considerations presented an obstacle to justifying punishment, all the authors in footnote 1 take expressive considerations to be relevant to justifying punishment. Duff (2001), Metz (2007), Bennett (2008) are especially concerned with justifying punishment in liberal states. For skepticism about expressivism see Sayre-McCord (2001), Boonin (2008) and Hanna (2008), discussed in Wringe (2013) and Tadros (2011) discussed below.
See respectively Duff (1986, 2001), Hampton (1988), Glasgow (2015). I note that one referee contested this reading of Duff's position, on grounds which I find unpersuasive (see footnote 15 for detailed discussion). But I should note that whatever the upshot of that textual discussion, my reading of Duff is not an eccentric one: it is shared by—among others—Hanna (2008), Boonin (2008), various contributors to Cruft et al. (2011) and Glasgow (2015). Nor is this a strawman position: those who adopt this reading of Duff's views typically take it to be one of the more impressive forms of expressivism.
I use the word denunciation to pick out a form of expression which has a particular audience (the public at large or the political community, as opposed to the offender) and not, as some authors do, to pick out a kind of communication with a particular kind of content (for example, a specifically moral content) For earlier uses in this sense see Wringe (2006). For the other sense see Bennett (2006, p. 293).
The title of Bennett (2006), and in particular the fact that we both use the word 'denounce' and its cognates, suggests a significant similarity between the view put forward in this paper and Bennett's. However, as noted in footnote 4 Bennett uses the term 'denunciation' in a sense which is importantly different from mine. Moreover, in this piece—and elsewhere, including Bennett (2014)—Bennett is fairly unspecific about who exactly the intended audience of punishment is. He does nonetheless, appear to take the offender to be a significant part of that audience (For example on p. 299 ff, Bennett emphasises that the state's duty to engage in what he calls 'denunciation' is a duty to the offender. This fits better with the idea that the offender is the audience than that it is the political community at large.) By contrast, on my view, it is communication with the political community as a whole rather than with the offender in particular which is most important here. In many cases, the offender will be a member of the political community, but in some interesting cases they will not be: consider, for example, the case of punishing visiting foreigners or corporations (see for example SELF-REFERENCE). But even when the offender is a member of the political community, they will be addressed as a member of the political community, rather than as an offender. It is also worth noting that Bennett argues for his view on the basis of an expressive theory of criminal action, on which criminal acts make a claim about their victims which the state is obliged to contest (pp. 291 ff). My argument does not depend on a view of this sort. I find the expressive theory of criminal action implausible because, like Nozick (1981). I take punishment is expressive in virtue of expressing certain communicative intentions. If criminal acts have expressive properties which can be cancelled in the way Bennett's acount suggests, they presumably involve the same kind of expression. But, although some kinds of crime, such as hate crimes, may involve communicative intentions of this sort, it is implausible to suppose that all crimes do, since criminals typically make considerable efforts to ensure that their crimes, and therefore any communicative intentions which they might embody, go undetected.
Since I leave open the possibility that punishment might have a number of expressive aspects one might wonder why I take the denunciatory ones to be especially important. The answer, to be developed in some detail in what follows, is that on my view the denunciatory aspects of punishment help to explain why punishment needs to have the feature whose possession makes it hardest to justify—namely hard treatment—and the others do not. I thank a referee for Philosophical Studies for raising this question.
I thank a (different) referee for Philosophical Studies for suggesting this formulation of my strategy.
I thank the referee for Philosophical Studies mentioned in footnote 7 for emphasizing the importance of this question.
Feinberg (1965).
Feinberg (1965).
Feinberg (1965).
Feinberg (1965).
Feinberg focusses, as I shall, on the idea that punishment involves some form of expression on the part of those imposing the punishment. One might also think, as Bennett (2008) sometimes seems to that punishment involves a form of expression by the person on whom punishment is involved. However, it seems hard to reconcile the idea that punishment is something which one is compelled to undergo with the view that it involves any intention on to communicate the part of the offender (and I suspect that any plausible account of the content of penal communication needs to appeal to such intentions). See footnote 15 below for further discussion.
Duff (2001), Tasioulas (2006). Duff (2001) suggests that there is a useful analogy to be drawn between punishment and a secular analogue of the religious notion of penance. This might suggest that his view should be counted as one on which punishment has a significant denunciatory element. However, I am dubious both as to whether the notion of penance can play the role that Duff wants it to play and as to whether thinking of punishment as a form of secular penance need not involve regarding it as a form of denunciatory communication. If religious penance involves communication, it is presumably the penitent who expresses something and God to whom it is expressed, at least in the first instance. The role that the religious authority plays is that of specifying the form in which the communication must be made, not that of communicating itself. This suggests that penance, whether secular or religious involves a different kind of communication from that which is envisaged by either communicative or denunciatory theorists, where the direction of communication is from the punishing authority to some other audience. In secularising the notion of penance, we might substitute the political community for God as the intended audience. But in order to have anything like a denunciatory theory, of the sort that I am discussing, the communication would still need to come from the punishing authority, rather than the offender.
A further reason why one might take Duff to have denunciatory view might be his characterization of crimes as 'public wrongs', where the 'public' is to be read as 'being properly of concern to the public.' For if crimes are wrongs that are properly the business of the public, one mgith suppose that any condemnation of them should be expressed to the public. However, as far as I can see, this is not Duff's view. Here is one reason why not: if a wrong is 'properly of concern to me', then it may be appropriate for me to condemn it—or to have it condemned on my behalf by someone who acts for me; or to make sure its perpetrator is called to account for it (as Duff 2007 argues). However although these ways of manifesting concern do not rule out that I should also be the recipient of communications about the punishment they certainly do not require it. (For the role which a slightly different sense of publicity plays in my version of a denunciatory theory, see Sects. 4–6 below.) I thank a referee for Philosophical Studies for raising these issues.
Hampton (1988, p. 132).
Primoratz (1989, p. 200) italics mine.
For Primoratz (1989), it is an important secondary audience, since it plays a significant role in explaining why punishment should involve harsh treatment.
As Primoratz (1989) seems, at times to suggest.
The terminology originates with Narayan (1993). One apparent alternative, on which the justifiability of punishment depended entirely on its expressing something to the victim of crime, seems unsatisfactory since some crimes—for example, speeding on an empty road—do not have a clearly identifiable victim; and some crimes, such as murder, have victims who can no longer be communicated with.
Though as we shall see, Duff also seems to allow some role for communication with the victims of crime.
We might distinguish further, among denunciatory theories, between those on which punishment communicates with the whole of the political community, and those on which it addresses only a part of it (for example, as on Fletcher 1996's view the victims of crime or those closely associated with them) While I take the former view to be considerably more plausible—not least because there may be crimes whose victims are no longer there to be the recipients of communication, and who may have no-one who is associated with them in any other way than sharing a political community, this aspect of my view is not central to my arguments (though see the last paragraph of Sect. 10 for one possible exception to this) We should also notice the possibility of what one might call 'indeterminate views' on which the justification of punishment depends on it communicating to some audience or other rather than to any particular audience. I thank referees for Philosophical Studies for raising these issues.
It might be more plausible to claim that one cannot justifiably be punished without knowing that one is being punished. If this is true, and the second step of the argument succeeds, this may be enough for the objection to succeed. For it would be of little interest to establish that there can be punishment which is denunciatory without being communicative if the only punishments of which this is true are unjustified ones. But as we shall see the second step in the argument also fails.
I thank an anonymous referee for Philosophical Studies for encouraging me to consider this possibility.
It follows that, at least as far as Duff is concerned, the conception of understanding which is in question here is one on which understanding a message does not require that one accept it as correct. Duff's instincts here seem correct: if we think that what is communicated in punishment is something which can be articulated in the way which he does in his writings on punishment, that it seems clear that understanding and accepting must be thought of as being independent of one another. The same is true, mutatis mutandis for the kind of denunciatory conception which I advocate. I thank an anonymous referee for raising this issue.
Glasgow (2015) has proposed a different condition on audience-dependent expression: namely that the recipient be at least capable of understanding the message. He then argues that Duff's communicative justification of punishment fails because it does not explain why we are justified in punishing what he calls 'unreceptive offenders', since we cannot so much as try to communicate with those we know to be unreceptive in this sense. I think Glasgow's objection fails since it is not clear that we are justified in punishing offenders whom we can know to be unreceptive (such as say, the cognitively developmentally disabled.) Furthermore, we could revise our punitive institutions in such a way as to accommodate this fact without a major overhaul of them, because offenders of whom we can know this are relatively rare. [As a referee for Philosophical Studies pointed out Glasgow's critique also seems to neglects another aspect of Duff's view—at least as that view is put forward in Duff (1986)—namely that the offender is in a sense the agent of their own punishment. However, it's not clear to me that this idea is central to more recent articulations of Duff's view such as Duff (2001)].
Glasgow (2015) mostly focuses on communicative views. But at p607 footnote 12 he claims that his arguments rule out denunciatory views as well.
Glasgow attributes this view to Kleinig (1991) and Metz (2000). However, Kleinig's comment that 'In imposing on the wrongdoer punitively, we give expression to our condemnation of his conduct, and attempt to bring home to him what he has done' (Kleinig 1991, p 418: my italics) suggests his view is in fact a communicative one. One referee for Philosophical Studies suggested that Nozick (1981) might be regarded as putting forward an audience-independent view. However, this strikes me as incorrect. Nozick certainly seems to share the idea that I suggest might motivate audience-independent expressivism. However, I defined audience-independent views as ones on which the existence of an audience plays no role. Nozick's view does not belong in this category for two reasons. First, he suggests that the canonical message carried by punishment might be understood as being something like 'this is how wrong you (sc. the offender) were.' Secondly, he appeals to Gricean communicative intentions in order to explain how punishment could carry this message; and the existence of such intentions seems to depend on the existence of an audience.
Kleinig's comment that 'It is a measure of the importance that we give to morality in our lives that we deem it appropriate to respond punitively Indeed, I want to suggest, unless punishment is seen as warranted by such breaches, we fail to accord morality the seriousness it deserves' (Kleinig 1991, p. 410) expresses this well. Compare Anderson (1993), Metz (2007), Glasgow (2015).
Expressions of this sort might still need to satisfy the 'weak interpretability' condition form Sect. 2. But, as already noted, weak interpretability is not audience-dependence.
I am grateful to a referee for Philosophical Studies for prompting this line of thought.
Metz (2000) seems to hold a somewhat similar view: he suggests that a state has a duty to 'censure' injustice, as a means of disavowing unjust actions, affirming the worth of victims and treating victims as responsible. Metz understands 'censuring' as a form of expression of disapproval that may, but need not involve an audience and argues that our duty of censure explains our intuitions that a state has obligations to disavow, affirm, and treat as responsible. However, insofar as I share Metz's intuitions here, I take them to be intuitions to the effect that the state has duties to disavow certain forms of behavior or to affirm the worth of victims to a particular audience—namely, its own citizens. It is at best highly counter-intuitive to suppose that a state could satisfy the duty to disavow the behavior of wrongdoers by issuing secret denunciations of wrong-doing.
Contrast this with Kleinig's suggestion mentioned in note 23 that the commitment-expression link supports a communicative form of expressivism.
I am, in effect, appealing to a coherence-based theory of the justification of our moral beliefs. There are a number of such theories: reflective equilibrium based theories Daniels (1979, 1980) provide one well-known example. It is important to note that on such views, no belief has the status of an unquestioned building block; but that some beliefs seem more likely to survive a process of reflective equilibrium than others.
A clarification may be helpful here: I am not denying that punishment is public in these two further senses. I am merely setting them to one side as not being relevant to establishing the points I aim to establish in this and the following sections. (I thank a referee for Philosophical Studies for alerting me to this potential misunderstanding).
For further discussion see Lee (2015).
The anonymous referee of footnote 31 also suggested that punishment's being public in this fourth sense might present a problem for a denunciatory view, since it would seem to entail that for the denunciatory theorist, punishment is an action in which the political community is communicates with itself. However, I think that any appearance of paradox here is misleading: it is not uncommon for someone speaking on behalf of a group to address the members of that group; that may be the best way of making sure, for example, that the agreed upshot of a deliberative process—or of a vote—is well-understood by all members of the group. We might see the role of judges or jury members as representatives of the public in the same kind of way.
This concern seems to underlie the point which Duff and his co-authors make.
There may be some grounds for thinking it needs to be public in the much weaker sense identified in footnotes 31 and 36, but this is not what is at issue here.
Could the audience-independent theorist meet this objection by arguing that there are both audience-independent and denunciatory reasons for punishing, and that although concerns about stigmatization are sufficient to defeat the audience-independent ones, they do not undermine the denunciatory ones? Perhaps. But we should note three things. First, on the characterization of audience-dependent views I gave in Sect. 3 this would in fact be an audience dependent view, not an audience-independent one. Secondly, this view is explicitly rejected by at least one recent audience-independent theorist—namely Glasgow (2015). Finally, it's not clear what advantages this mixed view would have over the purely denunciatory view I am defending. So I am inclined to reject it on grounds of simplicity.
For a good overview see Braithwaite (2000).
Bennett (2008) has emphasized the public nature of punishment in arguing for his version of expressivism. On Bennett's view, punishment is a way for offenders to make a publicly dramatized expression of remorse. However, we might be impressed by the public nature of punishment without accepting Bennett's claim that we should be concerned with expression on the part of the offender rather than on the part of the state.
See for example Duff (2001, p. 92 and pp. 174–200).
I am grateful to Lars Vinx for raising this issue.
One possibility we can rule out for now is one on which punishment has a variety of expressive roles including an audience-dependent denunciatory one. Views of this sort are denunciatory views on the characterization I offered in Sect. 1.
Duff (2001, pp. 82ff).
One referee suggested that on a deterrence-based view, it might be necessary for the identities of offenders to be public in order to ensure the credibility of the criminal justice institution. The thought here might be that if the identities of punished individuals were not known members of a society might rationally doubt whether punishment was going on at all. This seems implausible: my own confidence in the existence of a variety of social practices does not seem to depend on my knowledge of the identities of individuals who participate in that practice. (I am, for example, quite convinced that criminal punishment takes place in France, Canada and Azerbaijan, even though I cannot identify any particular individuals who have been criminally punished in any of those countries).
Duff (2001, pp. 93–101). There might be some dispute as to whether all the cases Duff considers constitute forms of punishment: I agree with Duff that they do.
Duff also suggests that the state owes a public acknowledgment of wrongdoing to victims. However, this doesn't establish a case for the publicity of punishment [since acknowledging wrong-doing needn't require identifying offenders (Duff 2001, p. 114)].
One might also rationally doubt whether the publicity of punishment is an especially effective way of preventing abuse of convicted offenders: there seems to be little clear-cut evidence in favour of this proposition.
Duff et al (2007).
Might punishment be one such activity? Nothing that I have said entails that actions carried out by the state must be public in order to constitute punishment. (I have argued in Wringe (2013) that it is essential to a form of hard treatment's constituting punishment that it have some expressive function; but the arguments put forward there do not determine that this expressive function must be denunciatory). My claim is instead that the denunciatory aspects of punishment play a role in justifying punishment. If this is correct then instances of secret punishment would be unjustified (or at least not susceptible of justification in the way I take to be the standard way. This seems consistent with the views put forward in Farmer (2012).
As I argue in Wringe (2013).
See Tadros (2011) for a detailed exploration of the issues here.
Kleinig (1991, p. 417), defending a communicative version of expressivism. Cf Primoratz (1989, p. 200), making a similar point in the context of a more denunciatorily oriented form of expressivism: 'the victim of the crime and. the public at large would surely see purely verbal condemnation of crime, however public and solemn, as half-hearted and unconvincing'.
Hanna (2008), who depends here on a conception of hard treatment which I contest. (cf footnote 30).
Tadros (2011, chapter 5).
This isn't to rule out the possibility of other closely-related kinds of objection: the possibility of alternative forms of expression; the difficulty of justifying high-cost forms of expression and so on.
As a number of authors, starting with Feinberg (1965), have noted.
Glasgow (2015).
This is not to say that they are never subject to voluntary control. For further elaboration see Griffiths (1997).
My thinking has been influenced by Bennett (forth coming), with which I nevertheless disagree substantially.
An audience-independent expressivist might hold the following two views: first, that in order for our expressions of punitive hostility to be able to properly express our commitment to the appropriate values, they must be intelligible to some possible audience, even though they do not need to be aimed at any audience, and secondly, that constraints on what a potential audience could find intelligible might limit the range of potential expressions in such a way as to require that they involve hard treatment. However, a view of this sort still seems vulnerable to the publicity constraint of Sects. 3–5, since nothing about this form of punishment requires it to be public in the sense outlined there: a communication can be intelligible to some possible audience, without being actually known about by any particular audience.
This point also counts against the possibility of there being biological constraints on our cultural elaborations which require the expression of punitive hostility.
These forms of expression have in common the idea of treating violence visited on a symbolic representation of an individual as a way of expressing punitive hostility to that individual. I suspect that as forms of expression go, this is one which can be quite widely understood by actual audiences. There might be audiences who could not understand violence inflicted on a symbolic representation in this way. For societies consisting only of such individuals a defence of the hard treatment involved in punishment along audience-independent expressivist lines might succeed. But that is not how things are for us.
One might think that these are, in fact, forms of hard treatment, and thus of punishment. It would remain true that the audience independent expressivist was unable to justify many of the specific forms we typically take to be acceptable forms of punishment, such as deprivation of liberty, monetary fines, and so.
As, for example, Sayre-McCord (2001) supposes.
Duff (2001).
Duff (2001).
For example Hanna (2008).
The argument here is that if punishment involves a form of suffering which does not figure directly in the justification of punishment in addition to forms of suffering which do so figure, the fact that the imposition of this second kind of suffering is justified is insufficient to justify suffering of the first sort.
Braithwaite (2000).
As I have previously argued in Wringe (2006, 2013). The 'must' in this formulation is not intended to express either conceptual or moral necessity: it is akin to the necessity expressed in the claim: 'If you want to arrive in Istanbul before midnight, you must leave before 4 in the afternoon': in other words, it is a modality that expresses the restrictions on the availability of mean to a given end within a particular practical context. (I thank a referee for this journal for raising this issue).
Insofar as the publicity of punishment itself inflicts a form of suffering on offenders we might feel that it also requires justification. And we might feel that unlike other respects in which punishment is harsh, this aspect of punishment is inessential to punishments being taken seriously. If so, the account I have given may seem to be vulnerable to objections based on the principle put forward in footnote 79. I am unconvinced that the publicity of punishment is inessential in the way the objection suggests. But even if this were true, the billboard analogy seems relevant in a different way: it's a precondition of a billboard's being taken seriously that it should be seen in the first place.
Scanlon writes '.affirmation as a value.is something citizens may reasonably demand of a system of law. It does not seem likely that a system of law that fails, in general, to respond to such demands is likely to survive' (Scanlon 2003, p. 223). I add two further points. First, if citizens may reasonably demand affirmation of a system of law, they may reasonably demand affirmation of a sort that is comprehensible to them as such. Secondly, in societies as they currently exist, no form of affirmation that falls short of inflicting harsh treatment is likely to be able to do this.
Tadros (2011).
I thank a referee for this journal for drawing my attention to the need to emphasise that the qualification 'in societies as they actually exist' is important here: I don't want to claim that the idea of a norm which is never transgressed is incoherent, but only that there are some norms which could only be norms in any society we might plausibly inhabit if they are enforced. A second referee also noted that there are some apparent similarities between this view and that put forward in Bennett (2006). But as I have already noted (footnote 4 above), Bennett does not explicitly identify the intended audience of penal communication as society at large.
As Korsgaard (1996) requires.
Tadros (2011) has recently advanced a sophisticated account of what is involved in treating someone as a means. Tadros argues that inflicting punishment on offenders for deterrent purposes does not involve treating them as a mere means in any way which is morally objectionable. I argued earlier that deterrence presupposes denunciation. So if Tadros is right that deterrence does not involve objectionably treating offenders as a means, the same must be true of denunciation.
Is the Denunciatory View vulnerable to a version of Glasgow's 'unreceptive audience' objection discussed in footnote 21? The objection would require it to be the case that every member of the audience to whom the denunciatory message of punished was expressed should be incapable of understanding the denunciatory role of punishment, and that those who were administering punishment should be in a position to know that this was the case. It seems hard to construct a plausible scenario in which this is true. Even if we can the denunciatory theorist might simply say that in such a society punishment would not be possible: what is important is that our society is very unlike this.
I am grateful to members of the audience of a Work in Progress seminar at Bilkent University, and in particular to Lars Vinx, Simon Wigley, and Jack Woods for comments and illuminating discussions of many of the issues considered in this paper.
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Wringe, B. Rethinking expressive theories of punishment: why denunciation is a better bet than communication or pure expression. Philos Stud 174, 681–708 (2017). https://doi.org/10.1007/s11098-016-0703-6
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DOI: https://doi.org/10.1007/s11098-016-0703-6