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In Joel Feinberg’s article, The Expressive Function of Punishment, Feinberg determines that the best tactic to justify punishment is the expressive function of punishment rather than retributive theory. Clearly, Feinberg is referring to the expressive theory of law which states that a theory that evaluates legal actions of officials can symbolize or express an idea or opinion. Also, the retributive theory is the theory of justice that states that the best response to a crime is a punishment that is proportionate to the crime and serves for its own sake such as a deterrence. In order to make this claim to justify punishment, Feinberg must first define punishment in which he states, “in effect, as the infliction of hard treatment by an authority …show more content…
on a person for his prior failing in some respect” (Feinberg 397). Nevertheless, once he defines punishment, Feinberg puts forth his two major premises which are: 1.) that hard treatment as an aspect of punishment and its reprobative function should be a part of the legal definition of punishment (Feinberg 400). 2.) The aspects of the justification of legal punishment in terms of the degrees of penalties which should be a general practice (Feinberg 400). Moreover, these two premises are used to shape his argument around the cases he employs as examples to justify punishment in a stricter legal definition and in terms of criminal liability and addressing the law so that constitutionally defining the penalty for violators so that the punishment fits the crime by degree.
First, Feinberg relies on the fact that punishment is a form of condemnation itself and argues that it is easier to show punishment as having symbolic significance than to distinctly articulate what that punishment expresses (Feinberg 402). Furthermore, to legitimize his claim he speaks of democratic countries in general that can express their community’s disapproval by the punishment for a criminal.
However, the second premise focuses on aspects of the problem of strict criminal liability and the degree of the punishment that is executed by a legal act of an official. Feinberg’s view of strict liability in terms of criminal offenses in which there is no fault such as hefty fines (or civil penalties) for not obeying traffic laws is that the legal system should hold the same strict liability for imprisonment as well (Feinberg 417). As for the degree of punishment he argues that hard treatment and symbolic condemnation are truly necessary to complete a sufficient definition of
punishment. For the first premise to be true there must be a constitutional punishment that is understood as an expressive function that condemns a criminal and without that renunciation, it is seen as supporting the criminal’s act with the lack of an expressive legal function. Correspondingly, Feinberg needs to have a clear distinction between punishment and penalties for the second premise to be true. Furthermore, Feinberg must detail the requirements for an act to meet the retributive theory versus the expressive theory for his conclusion that the expressive theory of punishment is a better theory to implement when justifying punishment of a criminal act.
Denunciation is a condemnation or criticism of another’s actions (O’Regan, Reid, 2013). Through Bourque’s sentence, Gunn condemned Bourque’s actions and sent a message to society that his crimes were extremely heinous and will not be tolerated. Similarly, his sentence was retribution-based, as retribution is the belief that the severity of the sentence should depend on the seriousness of the crime and not the seriousness of the individual (O’Regan, Reid, 2013). This is demonstrated by Bourque’s precedent defining sentence, his lack of parole eligibility and its corresponding disregard for Bourque’s individual needs as an offender. Cameron Gunn’s retribution-focused thinking was also demonstrated in Bourque’s trial, as he argued that Bourque’s crimes were “among the most heinous this country has seen and they warranted a sentence that would give precedence over rehabilitation” (MacDonald 2014). In addition to focusing Bourque’s sentence on the theoretical principles of denunciation and retribution, Gunn also focused his sentence on deterrence, specifically general deterrence, as it is meant to discourage all other potential offenders from committing crimes (O’Regan, Reid, 2013). In Bourque’s case, the severity of his sentence and corresponding lack of parole eligibility is
The author believes the maldistribution of any punishment is not relevant to its justice – The guilty are punished, not one’s race, economic, or social status.
Different countries have been known to deal with crime in different ways, some believe that we (Americans) should deal with criminals in a more serious and physical manner. In the article “Rough Justice A Caning in Singapore Stirs Up a Fierce Debate About Crime and Punishment” by Alejandro Reyes, it talks about how we should have more severe and physical punishment inside and outside of the U.S. After a teenage boy vandalizes a car in singapore. While in the editorial “Time to Assert American Values,” the writer attempts to persuade us and into thinking that the teenage boy, Michael Fey should not have been caned after vandalizing a car. After carefully analyzing the two texts, the reader realizes that the article “Rough Justice” has the
Have you ever wonder if there is any good justification for the policy of punishing people for breaking laws? Boonin’s definition of punishment consists of Authorized, Reprobative, Retributive, Intentional Harm. The problem of punishment incorporates three different answers. Consequentialism, which makes punishment beneficial (will do good for the people later in the future). Retributivism punishment is a fitting response to crime. As well as, the option of ‘other’ punishment can be a source of education, or expressive matter. Moreover a fourth answer can be an alternative called restitution, punishment is not necessary for social order. In The Problem of Punishment, by David Boonin deeply studies a wide range of theories that explain why the institutions is morally permitted to punish criminals. Boonin argues that no state , no-one succeeds with punishment. To make his argument stronger, he endorses abolitionism, the view
Whenever an author is creating an argument, they must appeal to whatever grabs his or her selected audience’s attention.When given the topic of Michael Fay, an 18 year old American citizen who was punished in Singapore for vandalism by being caned, two sources appealed to their audience in two contrasting ways. In “Time to Assert American Values,” published by The New York Times, the author tries to capture his or her audience by stirring up emotion. In “Rough Justice: A Caning in Singapore Stirs up a Fierce Debate about Crime and Punishment,” Alejandro Reyes presents factual evidence throughout the entire article to support his claims. After carefully analyzing both texts, it is apparent that Alejandro Reyes gives a more convincing and sufficient
All the laws, which concern with the administration of justice in cases where an individual has been accused of a crime, always begin with the initial investigation of the crime and end either with imposition of punishment or with the unconditional release of the person. Most of the time it is the duty of the members of constituted authorities to inflict the punishment. Thus it can be said that almost all of the punishments are an act of self-defense and an act of defending the community against different types of offences. According to Professor Hart “the ultimate justification of any punishment is not that it is deterrent but that it is the emphatic denunciation by the community of a crime” (Hart P.65). Whenever the punishments are inflicted having rationale and humane factor in mind and not motivated by our punitive passions and pleasures then it can be justified otherwise it is nothing but a brutal act of terrorism. Prison System: It has often been argued that the criminals and convicted prisoners are being set free while the law-abiding citizens are starving. Some people are strongly opposed the present prison and parole system and said that prisoners are not given any chance for parole. Prisons must provide the following results: Keep dangerous criminals off the street Create a deterrent for creating a crime The deterrent for creating a crime can be justified in the following four types Retribution: according to this type, the goal of prison is to give people, who commit a crime, what they deserved Deterrence: in this type of justification, the goal of punishment is to prevent certain type of conduct Reform: reform type describes that crime is a disease and so the goal of punishment is to heal people Incapacitation: the...
The judicial system is based off the norms and values that individuals are held to within society. When a person is found guilty of committing a criminal act, there must be a model that serves as the basis of what appropriate punishment should be applied. These models of punishment are often based off of ethical theories and include retribution, incapacitation, deterrence, rehabilitation, and restoration. The retribution model of punishment views the offender as responsible for their actions and as such, the punishment should fit the crime (Mackie, 1982). Incapacitation is a form of punishment that removes an offender from society. This model protects
This paper considers the desert arguments raised to support retributivism, or retribution. Retributivism is "the application of the Principle of Desert to the special case of criminal punishment." Russ Shafer-Landau and James Rachels offer very different perspectives on moral desert which ground their differing views on the appropriate response to wrongdoing. In "The Failure of Retributivism," Shafer-Landau contends that retributivism fails to function as a comprehensive theoretical foundation for the legal use of punishment. In contrast, in his article "Punishment and Desert," Rachels uses the four principles of guilt, equal treatment, proportionality and excuses to illustrate the superiority of retribution as the basis for the justice system over two alternatives: deterrence and rehabilitation. Their philosophical treatment of the term leads to divergence on the justification of legal punishment. Ultimately, Rachels offers a more compelling view of desert than Shafer-Landau and, subsequently, better justifies his endorsement of a retributive justice system.
Honderich’s analysis of the main justifications of punishment centers on: those who believe that the offender deserves to be chastised for his or her crime. They justify punishment by appealing to desert. Such views are considered backward-looking and retributive in nature. The justification of punishment on forward-looking factors justifies punishment for its ability to prevent and reduce crime. Therefore, through punishment the offender is capable of reform and rehabilitation. The third justification is the mixture of both rationales in which punishment is deserved for some past offences, and also it
The criminal justice system views any crime as a crime committed against the state and places much emphasis on retribution and paying back to the community, through time, fines or community work. Historically punishment has been a very public affair, which was once a key aspect of the punishment process, through the use of the stocks, dunking chair, pillory, and hangman’s noose, although in today’s society punishment has become a lot more private (Newburn, 2007). However, it has been argued that although the debt against the state has been paid, the victim of the crime has been left with no legal input to seek adequate retribution from the offender, leaving the victim perhaps feeling unsatisfied with the criminal justice process. Furthermore, can formal social control institutions such as the criminal justice system and the government provide the best aspect of producing conformity and law abiding behaviour? Hirschi’s (1969) social control theory is concerned with what effect formal institutions have on conformity in individuals and in particular, how law abiding behaviour is produced due to these institutions (Walklate, 2005).
Sociological analysis of the role of punishment in modern society started with the question of what the role and limits of the power of government should be. Through development, sociology became a 'separate discipline'. (Ibid., p8) Here, Emile Durkheim saw that the only source of moral authority in modern society was the law. In terms of punishment, Durkheim saw the criminal law and the punishment system as a way for society to express its rules and values. This meant that moral boundaries were outlined and sustained through the assertion of penalties for crimes.
According to David Garland, punishment is a legal process where violators of the criminal law are condemned and sanctioned with specified legal categories and procedures (Garland, 1990). There are different forms and types of punishment administered for various reasons and can either be a temporary or lifelong type of punishment. Punishment can be originated as a cause from parents or teachers with misbehaving children, in the workplace or from the judicial system in which crimes are committed against the law. The main aim of punishment is to demonstrate to the public, the victim and the offender that justice is to be done, to reduce criminal activities and to deter people from wanting to commit any form of crime against the law. In other words it is a tool used to eliminate the bad in society or to deter people from committing criminal activities.
In search of these answers I came across the traditional theory of criminal law. In this theory I came across two aspects. The first one is utilitarianism and the other “retributivism” which talks about moral behavior.
Laws serve several purposes in the criminal justice system. The main purpose of criminal law is to protect, serve, and limit human actions and to help guide human conduct. Also, laws provide penalties and punishment against those who are guilty of committing crimes against property or persons. In the modern world, there are three choices in dealing with criminals’ namely criminal punishment, private action and executive control. Although both private action and executive control are advantageous in terms of costs and speed, they present big dangers that discourage their use unless in exceptional situations. The second purpose of criminal law is to punish the offender. Punishing the offender is the most important purpose of criminal law since by doing so; it discourages him from committing crime again while making him or her pay for their crimes. Retribution does not mean inflicting physical punishment by incarceration only, but it also may include things like rehabilitation and financial retribution among other things. The last purpose of criminal law is to protect the community from criminals. Criminal law acts as the means through which the society protects itself from those who are harmful or dangerous to it. This is achieved through sentences meant to act as a way of deterring the offender from repeating the same crime in the future.
Punishment is inflicted on the criminal or on someone who is answerable for him/her and his/her doings.