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The Expressivist Account of Punishment, Retribution, and the Emotions

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Abstract

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution.

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Notes

  1. Theorists who stress the expressive or communicative function of punishment include Bennett (2008); Duff (2001); Hampton (1992); Kleinig (1991); Primoratz (1989); Tasioulas (2006); Skillen (1980). At least to some extent, this applies also to Andrew von Hirsch; see Hirsch (1993, 12–13). For a very good introduction to expressivism, see Brooks (2012, chapter 6).

  2. See e.g. Bennett (2002), (2008); Ciocchetti (2009); Holroyd (2010); Mackie (1982); Moore (1987). Somewhat relatedly, Martha Nussbaum has stressed the role of emotions in judging whether we should have mercy with wrongdoers (1993).

  3. I should note that banging one’s fist on the table is not completely non-symbolic. It does convey the information that I am experiencing a fierce emotion. Nobody would bang his fist on the table if he were only faintly surprised or slightly upset.

  4. To be sure, these actions need not be expressive actions. They could also be done as a means to an end. I might play piano sonatas because I need to practice or in order to impress my girlfriend.

  5. I will not discuss whether these actions can be accounted for within the classical belief-desire model. On this question, see Hursthouse (1991); Smith (1998); Goldie (2000, 123–140); Döring (2007).

  6. Note, however, that not all emotions entail primitively intelligible actions. If we grieve at the loss of a beloved person, our grief does not give us any end for action at all. This is because we cannot (unlike in the case of fear and envy) change the world in such a way that our grief is soothed, see Döring (2007, 385). Another emotion that does not give rise to any primitively intelligible desires is the emotion of surprise.

  7. It should read “express” rather than “communicate”, though.

  8. I am grateful to an anonymous referee for pressing me to clarify this point.

  9. On the ethics of emotion, see Neu (2010).

  10. Unless one thinks that we lack freedom of the will and are therefore not to be held responsible. I do not want to discuss this issue at this point.

  11. For a discussion of the Nietzschean objection, see Moore (1987).

  12. For a complete and very perceptive definition of ‘punishment’, see Zimmerman (2011, 1–21).

  13. It might be thought that moral disapprobation, e.g. guilt, already includes some notion of desert. Maybe guilt is not possible without the offender possessing some measure of desert. However, I do not think we have to assume such a strong link between desert and moral disapprobation. To be sure, they both have a common basis, namely culpable wrongdoing. But it seems conceptually possible to think of someone as guilty without at the same time implying that he is deserving of punishment.

  14. Unless, of course, one thinks wrongdoers deserve to suffer. But this is a claim that must be argued for.

  15. Duff claims, however, that punishment is an “intrinsically appropriate” (Duff 2001, 89) way of bringing the offender to repent. I do not think, though, that this claim accords with Duff’s actual justification of hard treatment.

  16. Bennett defends a weaker version of Primoratz’ argument. While Primoratz claims that it can justify hard treatment, Bennett thinks it shows “that the state should do something”, but not necessarily that it should inflict punishment (Bennett (2006, 292), emphasis added).

  17. I here agree with the anonymous referee who urged me to consider this independent argument against expressivism.

  18. I concede, though, that there might be other reasons why we would object to such behaviour. Maybe, the infliction of harm should be a privilege of the state, and it is therefore not okay for you as an individual to express your anger through inflicting harm. My examples, however, are not supposed to be ultimately conclusive.

  19. Whether a justification of punishment that invokes an ‘in order to’ still counts as “intrinsic expressionism” (Primoratz (1989, 200)) is doubtful, though. But I do not want to pursue this question here. See Primoratz (1989, 203).

  20. This is more obvious is other languages. Think of ‚droit pénal’, ‚diritto penale’, ‘derecho penal’, ‘Strafrecht’, and so forth.

  21. I am indebted to an anonymous referee for pointing this out. See also Brooks (2012, 107).

  22. The reference is to Skorupski (1993, 136). Bennett’s talk of blame as an emotion strikes me as odd, though. I do not think you can be in the emotional state of blame. Blame may refer to an action (e.g. to a speech act of the kind “I blame you for x.”) or to a purely cognitive state (the belief that somebody is responsible). Emotions that represent somebody as blameworthy are, for instance, indignation, guilt, anger or resentment. On anger, see Roberts (2003, 202–221).

  23. On the same page, he states that “to feel guilt is to judge that we must suffer.” (emphasis added). This claim, however, is patently false. First, emotions are cognitions, but they are not judgements in the strict sense. Unlike judgements, they do not enter inferential relations. (see Döring (2007)). Second, the emotion of guilt (or indignation, resentment, etc.) does not directly represent the wrongdoer as deserving suffering. Rather, it represents the wrongdoer as having culpably committed a moral wrong. The judgement (or cognition) that the wrongdoer deserves to suffer is not part of the emotion itself.

  24. For further critical discussions of Morris’s approach, see e. g. Dolinko (1991); Mackie (1982, 5).

  25. For a similar critique of Hampton, see Gert et al. (2004). Also, we might ask: Why is it so important to show that all human beings have equal moral worth? Is it really so important as to justify the systematic infliction of suffering?

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    Peter Königs

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Königs, P. The Expressivist Account of Punishment, Retribution, and the Emotions. Ethic Theory Moral Prac 16, 1029–1047 (2013). https://doi.org/10.1007/s10677-013-9402-y

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