Reprobation & Retribution
Joel Feinberg, in his article entitled “The Expressive Function of Punishment”, describes what he believes are the two aspects of punishment: hard treatment and reprobation. Feinberg argues that in order for any punishment to truly “fit the crime”, it is only right that the hard treatment inflicted on the criminal – fines, imprisonment, &c. – be as minimal as is socially permissible while the reprobation – public disapproval, condemnation, &c. – be scaled according to the seriousness of the offence. This paper discusses Feinberg’s reasons for this conclusion and how it in turn affects his opinion of the retributive approach to punishment.
Traditionally, punishment is defined as “hard treatment” inflicted on someone for a (perceived) crime (630). But as Feinberg points out, most attempts at defining punishment do not seem to account for the great variance in the kinds of hard treatment regularly used; they fail to note, for example, the tangible difference between more severe punishments, like imprisonment, and lighter ones, like fines. Thus upon closer examination, we see that there are actually two kinds of punishment: punishment proper, and what Feinberg terms a “penalty” (629-630).
But what is it in particular that makes a penalty different? Feinberg suggests, and rejects in turn, two options. First, it could be thought that penalties are merely punishments of the less severe sort. This is not always true, though, as it is certainly conceivable to think of penalties that can cause more harm than punishments (630). We could also, on the other hand, consider penalties to be what Feinberg calls “price-tags” or “licensing fees” paid after the fact for certain activities. This idea, while plausible, fails to account for the fact that some penalties – like parking fines – are meant to be approached with all seriousness, and are as a result, “more than mere public parking fees” (630). We find ourselves, then, still unable to draw a clear, distinguishing line between punishments and penalties. Perhaps a better approach to this issue would be to look at what makes a punishment “worse” than a penalty (630). Of course, it is understood that both are meant to deprive the offnder of something as a result of a past action. But, it would seem that only punishments carry with them a sort of symbolic disapproval. Feinberg proposes to call this public disavowal of a person and their actions the reprobative aspect of punishment (630). And so, we arrive at a more complete de?nition of punishment proper as hard treatment that is accompanied by a strong sense of disapprobation. 1
Defining punishment and identifying what sets it apart from a penalty, however, also brings to light a further complication: it is not always easy to separate the reprobation from the hard treatment. Consider the sentencing of a person for a decidedly horrible crime, like rape. In such situations, it could be said that hard treatment is in fact the “conventional symbol” of our society’s reprobation (631). Thus, Feinberg asserts, it is necessary to account for and justify both reprobation and hard treatment in any definition of punishment if our judgements are to be truly fair. Furthermore, a failure to do so will also lead to failings like those he ?nds in a particular form of the retributive theory of punishment (630).
Feinberg attempts to offer a two-fold argument to address the concerns of those who would deny the justi?cation of either the reprobation or the hard treatment. The reprobative aspect is necessary because it allows for disavowal (society’s distancing itself from the criminal), non-acquiescence (the voicing of explicit objection to the criminal’s actions), vindication (the affrmation of the laws of the land and victims), and absolution (the clearing of any innocent suspects) as aspects, all of which are necessary for the proper functioning of any system of justice (632-633). To those who would challenge the hard treatment, on the other hand, Feinberg’s answer is less forceful. In fact, he goes so far as to admit that it is possible to think of a future where reprobation alone would be as much punishment as a crime would require, especially when we consider that we, as a society, already prefer punishments that are far less severe than those used in times past (638).
While willing to concede that some sort of ?tting punishment is a necessary, Feinberg explains that he still finds one usual answer to the question of hard treatment – that form of the retributive theory which calls for a pain-fitting-wickedness response – troubling, and others what he calls “the familiar and potent objections to this view” (638-639). Any system of legal justice is, presumably, designed to punish the guilty and preserve the innocent from undue suffering. And yet, the latter is what invariably happens any time a guilty person is convicted and sentenced: “it is impossible to hurt an evil man without imposing suffering on those who love or depend on him” (638). This is unacceptable, and grates against our intuitions of what true justice should be. It might be suggested that the best way to remedy this is to take more care in sentencing, but as Feinberg is quick to point out, the practical implications of tailoring every sentencing and judgement to the criminal (by taking into account intentions, motives, success, past history, suffering caused, &c.) makes such an enterprise impossible (638-339).
Where does this leave us, then, in trying to determine how much to punish a criminal? Feinberg offers a few guidelines in conclusion. In a truly fair system of justice, it is the “condemnatory aspect” of punishment that needs to ?t the crime, with more terrible deeds garnering more severe reprobation (639). The hard treatment on the other hand, should only be scaled to the crime inasmuch as it is the conventional form of expressing said reprobation (639). And while the two will be, of course, eternally linked, it would not do to increase the amount of hard treatment simply for the sake of the pain it will cause. To do so would be to completely undermine the idea of the justice we seek to express.
1 Feinberg actually goes even further, separating the reprobative aspect from resentment, which is the “various vengeful attitudes” society holds when it is witness to a crime. Condemnation, then, becomes the “fusing of resentment and reprobation” (631-632).
