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Unformatted text preview: Hampton on the Expressive Power of Punishment Heather J. Gert, Linda Radzik, and Michael Hand I Retributivists often claim that the intuition that wrongdoing deserves punishment is moral bedrock; it needs no further justification. Critics of ret- ributivism deny this intuition. They find morally repugnant the idea of pun- ishing wrongdoers without a reason to believe that someone will benefit. Punishment involves the intentional infliction of suffering. One must surely have a compelling reason to do such a thing. But a simple appeal to what the wrongdoer deserves is insufficient, or so the critics say. Jean Hampton’s defense of retributivism advances the debate beyond this clash of intuitions. 1 Hampton herself once shared in the moral uneasiness about retributivism, arguing specifically that it was akin to revenge. 2 Unlike other retributivists, after her change in view she does not claim that retribu- tion is any sort of moral foundation. Instead, she argues that retributive pun- ishment has a specific justifying telos. 3 Thus Hampton’s theory of punishment presents a different kind of challenge to non-retributivists. Nonetheless, we argue that it is fatally flawed. Hampton’s own theory builds on Joel Feinberg’s work on the expressive function of punishment. Feinberg writes, “Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punish- ing authority himself or of those ‘in whose name’ the punishment is inflicted.” 4 Feinberg argues that punishment must be characterized with ref- erence to both some sort of hard treatment and this symbolic significance. Condemnation without the imposition of any additional cost is not punish- ment. Nor is hard treatment necessarily punitive, as when heavy fines are imposed for regulatory offenses that a firm has committed through no fault of its own. However, in a genuine case of punishment, we find both elements, and the hard treatment itself expresses condemnation: “To say that the very physical treatment itself expresses condemnation is simply to say that certain forms of hard treatment have become the conventional symbols of public reprobation.” 5 According to Feinberg, the expressive function of punishment serves important social purposes. 6 It maintains the normative force of the law. Were infractions of the law not condemned, law would lose its authority. Public condemnation of the guilty through punishment also removes suspicion from other parties. Furthermore, symbolic condemnation of wrongdoing enables the state to disavow the wrongful act. Feinberg argues that these social func- tions of punishment are all performed through the expression of condemna- JOURNAL of SOCIAL PHILOSOPHY, Vol. 35 No. 1, Spring 2004, 79–90....
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This note was uploaded on 09/08/2010 for the course PHIL 292 at San Jose State University .