An Expressive Theory of Punishment

William Wringe

• Publisher: Palgrave Macmillan
• Year: 2016
• ISBN:
  9781137357120
• Topic: Philosophy
• Subtopic: Political Philosophy

This book argues that punishment's function is to communicate a message about an offenders' wrongdoing to society at large. It discusses both 'paradigmatic' cases of punishment, where a state punishes its own citizens, and non-paradigmatic cases such as the punishment of corporations and the punishment of war criminals by international tribunals.

Part I

The Paradigmatic Case

1

Punishment: Some Questions Philosophers Ask

1 Punishment – everyday understanding and philosophical theory

Most of us – that is to say, most adult members of developed societies – would probably claim to have some idea of what punishment is. We might make good on this claim by being able to identify a few paradigmatic instances of punishment; by showing that we can distinguish things which are punishment from things which are not but which might, superficially, appear somewhat like it; or by giving a rudimentary account of the sorts of roles which punishment appears to play in our own societies. Understanding what punishment is, in this fairly minimal sense, need not involve having a philosophically adequate definition of punishment. It also need not involve anything that deserves the title of a philosophical theory of punishment. Still, one might wonder why one should need anything more than this fairly minimal understanding of punishment.

Here is one answer. The minimal understanding of punishment which I have just outlined falls short of answering all the questions that a reflective person might raise when thinking about the role of punishment in our lives. For example, it need not include any account of why we punish – of the goals which we take the institutions of punishment to serve. This seems a pity. States invest considerable resources in punishing individuals, and there is often public debate about what forms of punishment should be administered to which individuals. If we do not know what we are trying to achieve when we punish people, we are in a poor position to assess whether the means we are taking to those ends are effective – or appropriate.

The minimal understanding of punishment which I have just described also leaves us without answers to questions about whether the sorts of measures we take in punishing people are justified. We can distinguish between a number of questions that someone might raise in this area. First, we might ask whether the goals which we pursue in punishing people are worthwhile goals. In doing so, we would be asking whether these are goals that we should be pursuing at all. Secondly, we might be asking about whether the means we adopt are appropriate to these ends: whether they are likely to be effective at all; whether they conflict with other goals that we might have; whether other means to the same ends might not be justifiable; and so on.

Finally we might ask whether the means we adopt in pursuing the goals we have in punishing people are permissible. Philosophical discussions of punishment often start from the observation that punishment typically involves treating people in ways which we would not take to be justifiable in contexts other than that of punishment. It often involves imprisoning them – depriving them of their liberty; or imposing monetary fines, depriving them of part of their property. In some places it may even involve killing them, by ritual means. It is less often remarked upon, but no less true, that punishment has in the past involved treating people in ways which many of us would not now take to be justifiable in any context whatsoever. So we should not necessarily assume that the forms of treatment that we now describe as punishment are ones which can be guaranteed to be justified simply because of the context in which they now occur.

I have argued that there are many questions about punishment which might be raised by a reflective person and which are not necessarily answered by our pre-reflective understanding of the nature of punishment. I have also suggested that many of these questions depend on our understanding of the goals of punishment. But it might not be obvious why we need a philosophical account of punishment in order to answer them, rather than say, a sociological account, or a historical one, or a jurisprudential one. Indeed, it might seem as though these other disciplines are more likely to be able to tell us about the goals of punishment than philosophy is.

In order to answer this question, I need to say something about the nature of philosophy and its relationship to other disciplines. I shall not attempt to give a definition of philosophy, since I take it to be an intellectual discipline consisting of a loosely related family of inquiries, each with its own history, self-understanding, and conception of its relationship to its past. Instead I shall try to focus on three features which I take to be characteristic of philosophical inquiry.

First, philosophy explicitly aims at generality. One might think that this is a feature of any kind of inquiry, insofar as any kind of inquiry makes use of a conceptual repertoire, and the purpose of concepts is to classify things in terms of features that they share. But this is not necessarily true. It has sometimes been thought to be characteristic of the human sciences that they aim at understanding particulars in their particularity. Thus one might aim to understand the penal code of a particular society, or its operation at one particular time and place, without any presumption that other penal codes in other places and in other societies have operated in the same kinds of way. Indeed, one might do so with the particular aim of illustrating the ways in which different societies understand their activities.¹

Secondly, philosophers – or at least philosophers in the analytic tradition with which I identify myself – often take themselves to be interested, at least in part, in conceptual questions. Thus we are, at least in part, concerned with whether there is something fundamental to the way in which we think about punishment that explains why certain kinds of action constitute acts of punishment rather than acts of private or publicly sanctioned revenge or taxes on an unpopular or socially disadvantageous activity; and if so what it takes for something to be correctly classified as punishment rather than as an instance of one of these other kinds of activity.

The fact that philosophy is partly concerned with conceptual questions is closely connected with the fact that it aims at generality. If there is anything to be learnt about punishment by considering our concepts, this would go some way towards explaining how it is possible for us to acquire understanding at the level of generality which I have suggested that philosophy aims at, by the kinds of means which philosophers typically employ. It would be natural to think that if it is possible to acquire an understanding of punishment which delivers insights at a great level of generality, this is only likely to be possible on the basis of a very wide-ranging knowledge of how punitive institutions have worked in different times and places. However, although philosophers may illustrate their views by reference to a wide range of examples, few of them have thought wide-ranging knowledge of different penal institutions and penal systems is a prerequisite for giving a philosophical account of punishment; and even fewer have possessed it.

If we can acquire knowledge about punishment by reflection on conceptual matters, this presents a less serious problem than one might think. This is not to say that a knowledge of features of different kinds of penal system, or to the history of such systems, is irrelevant to the kind of understanding which a philosophical account of punishment aims at providing. For I have not claimed – and shall not be claiming – that philosophical inquiry is exclusively concerned with conceptual matters. (We shall see at least one reason why this is so in a moment.) However, it does suggest ways in which some of the issues with which philosophers are concerned when they discuss punishment might be prior to or independent of historical, sociological or jurisprudential inquiries about punishment. This is because they concern whether we should take the deliverances of those inquiries to be concerned with punishment rather than with something else.

We might think there is a problem with the idea that we might rely on a philosophical account of punishment rather than a historical or sociological one to tell us what punishment really is. Compare what I have said about the relationship between philosophical accounts of punishment and other kinds of account of the phenomenon to the relationship that we might take to exist between philosophy and the physical or biological sciences. We would not expect philosophers of physics or biology to be in the business of elaborating philosophical accounts of life or of matter, and relying on those accounts to tell us whether biologists and physicists were talking about life and matter. Why should philosophers who are interested in the nature of punishment stand in a different relationship to their subject matter than philosophers who are interested in the nature of life or of matter?

The answer to this question is relatively straightforward. First, we should notice that a philosopher might well be interested in providing a detailed philosophical elaboration of our everyday conception of matter or of life. Having done so, they might well point out ways in which this conception differs from that which is embodied in one scientific discipline or other. However, we would not normally expect a physicist or biologist to be especially bothered by being told this: given their purposes our everyday conceptions of life or of matter are likely to be irrelevant to them.

Someone writing about punishment in a jurisprudential or sociological vein might take the same attitude. There need not be anything problematic about doing so. Still, there are questions to which people investigating punishment in these ways might take their work to be relevant that are not simply questions which belong to one particular scientific discipline. The sorts of questions which I have in mind here are questions about legitimation – that is to say, questions about which sorts of social practice can be justified. Since answers to questions about legitimation are – at least in societies like our own, addressed at least in part to ordinary citizens and not just to fellow academic specialists – they need to be answered in ways which either draw on a widely accepted understanding of punishment or which make clear the ways in which the conceptual framework on which the intellectual endeavors of the specialist depend differ from the concepts which are in the repertoire of the ordinary citizen.²

So far I have argued that there are questions about the nature of punishment which we are unlikely to be able to answer satisfactorily without a philosophical account of punishment. I have also argued that one thing that is likely to be characteristic of a philosophical account of punishment is that it should involve some kind of reflection on conceptual matters. However, I stopped short of claiming that a philosophical account of punishment would be a purely conceptual one. One reason why I did so should now be fairly clear. I have argued that the questions about punishment to which a philosophical account of punishment might be relevant include some that concern the legitimacy or justifiability of certain social institutions. Questions of this sort are, of course, normative questions; and normative questions are ones which philosophers interested in punishment have typically aimed to shed light on.

This is the third of the three features which I described as being characteristic of philosophical enquiry: its concern with normative issues. In making this claim about what is characteristic of philosophical enquiry I am not claiming that all philosophical issues are normative ones. Clearly, they are not. Nevertheless, philosophers qua philosophers typically take normative questions to fall within the boundaries of their discipline in a way that practitioners of other disciplines do not.

This third characteristic feature of philosophical enquiry is distinct from, though related to the previous two. It is connected to the concern with generality, insofar as philosophers will typically be concerned with the justifiability of certain general features of an institution such as punishment, and not whether its operations are justified in one or other particular case. Its connection with philosophy’s concern with conceptual matters is slightly more subtle. Some philosophers have thought that normative questions could be resolved simply by reflecting on the nature of our concepts.³ However, very few philosophers who are now writing would accept this view. So although a philosophical account of punishment will address conceptual questions, it will address other kinds of question as well. We should expect reflection on conceptual matters to shed light on questions of justification, (and perhaps to rule out some candidates for answering them) but we should not expect it to settle them on its own.

2 Some philosophical questions about punishment, and their motivation

I have suggested that there are a number of questions about punishment which might occur to a reflective individual, and which the minimal understanding of punishment which I described at the beginning of the first section would not help us to answer. I also argued that a philosophical account of punishment might play a role in helping us to answer these questions. However, I did not suggest that the questions which a philosophical account of punishment might help us to solve are in any way exclusively ph...

Table of contents

• Cover
• Title
• Part I  The Paradigmatic Case
• Part II  Non-Paradigmatic Punishments
• Bibliography
• Index