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Unformatted text preview: NATHAN HANNA SAY WHAT? A CRITIQUE OF EXPRESSIVE RETRIBUTIVISM (Accepted 6 June 2007) Youve seen yourself how difficult the writing is to decipher with your eyes, but our man deciphers it with his wounds. Franz Kafka, In the Penal Colony I. INTRODUCTION I will criticize a proposed justification of punishment. Some theorists think that the challenge of justifying punishment can be met by emphasizing its expressive character, i.e., its capacity to express criticism. One such justification, or type of justifi- cation call it Expressive Retributivism or ER combines ret- ributivist and expressivist considerations. These justifications are retributive since they do not appeal to consequences, aiming instead to show that punishment is an intrinsically appro- priate response to offenses, i.e., something offenders deserve. 1 The expressivist element in these justifications, however, is meant to correct for the widely criticized obscurity of tradi- tional retributivism. 2 Retributive arguments often rely on controversial intuitions of questionable reliability and justifi- catory power. 3 While these intuitions are powerful, many worry that the justificatory challenge cannot be met merely by 1 In the philosophical literature on punishment, the word intrinsic is often meant to indicate intuitive immediacy apart from external considerations like good or bad consequences. See, e.g., Mackie 1982. 2 For examples of expressive justifications that also appeal to conse- quences see von Hirsch 1993 and Narayan 1993. 3 For a well-known, relatively recent statement of retributivism as well as criticism of other retributivist justifications see Moore 1993. Law and Philos (2008) 27:123150 Springer 2007 DOI 10.1007/s10982-007-9014-6 appealing to them. Given the fact that punishing people is to treat them in ways that are typically wrong, a plausible justification seems to require more than appeals to the preva- lence and strength of these intuitions. Many voice suspicion that retributive arguments are not justifications so much as refusals to furnish justification. ER, by contrast, tries to enhance the clarity and justificatory power of retributive intu- itions and concepts by appealing to the expressive character of punishment. I argue that the ER justification fails. 4 I begin, in section I, by discussing the nature of punishment and outlining an expressive conception of it. I argue for a slightly modified conception on which the aim to impose suffering is an essential characteristic of punishment (in a somewhat loose sense of suffering ). In section II I sketch the ER argument and identify three crucial claims, each of which I examine in turn. I round out section II with a brief discussion of the first claim, arguing that one important version of it pro- posed by some theorists is false. In section III I discuss the second claim. I grant its truth but offer an account of the expressive use of punishment that will serve to undermine the third claim in light of my conception of punishment. Inthe third claim in light of my conception of punishment....
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- The Trial