Censure theory and intuitions about punishment

Law and Philosophy

Volumn 19, Issue 4, 2000, Pages 491-512

  Metz, Thaddeus ^a  

^a UNIVERSITY OF MISSOURI ST LOUIS   (United States)

Author keywords

Censure; Expressivism; Proportionality; Punishment; Retributivism

Indexed keywords

EID: 0034555953     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505080     Document Type: Article

References (29)

1. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
2. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
3. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
4. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
5. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
6. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
7. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
8. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
9. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
10. Central defenses of censure theory include: Joel Feinberg, "The Expressive Function of Punishment," repr. in Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 95-118; Anthony Duff, Trial and Punishments (New York: Cambridge University Press, 1986), esp. ch. 9; Margaret Falls, "Retribution, Reciprocity, and Respect for Persons," Law and Philosophy 6 (1987): 25-51; Igor Primoratz, "Punishment as Language," Philosophy 64 (1989): 187- 205; Jean Hampton, "The Retributive Idea," in Jean Hampton and Jeffrie Murphy, Forgiveness and Mercy (New York: Cambridge University Press, 1988), ch. 4, "An Expressive Theory of Retribution," in Wesley Cragg, ed., Retributivism and Its Critics (Stuttgart: F. Steiner Verlag, 1992), pp. 1-25, and "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702; Andrew von Hirsch, "Proportionality in the Philosophy of Punishment: From 'Why Punish?' to 'How Much?'" Criminal Law Forum 1 (1990): 259-290, and Censure and Sanctions (Oxford: Oxford University Press, 1993); John Kleinig, "Punishment and Moral Seriousness," Israel Law Review 25 (1991): 401-421.
11. See Immanuel Kant, The Metaphysics of Morals Mary Gregor, trans. (New York: Cambridge University Press, 1991), pp. 142-143.
12. Roger Wertheimer has impressed on me the need to distinguish between condemnation, which by definition involves imposing a harm, and censure, which does not. Therefore, I do not take the word "condemnation" to indicate the same idea as "censure." See his "Understanding Retribution," Criminal Justice Ethics 2 (1983): 19-38.
13. See especially Feinberg, op. cit.
14. Primoratz, op. cit., uses this phrase.
15. For a recent defense of the utilitarian theory of punishment, see J. J. C. Smart, "Utilitarianism and Punishment," Israel Law Review 25 (1991): 360-375. For good statements of moral education theory, see Herbert Morris, "A Paternalistic Theory of Punishment," American Philosophical Quarterly 18 (1981): 263-271; and Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984): 208-238.
16. For a recent defense of the utilitarian theory of punishment, see J. J. C. Smart, "Utilitarianism and Punishment," Israel Law Review 25 (1991): 360-375. For good statements of moral education theory, see Herbert Morris, "A Paternalistic Theory of Punishment," American Philosophical Quarterly 18 (1981): 263-271; and Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984): 208-238.
17. For a recent defense of the utilitarian theory of punishment, see J. J. C. Smart, "Utilitarianism and Punishment," Israel Law Review 25 (1991): 360-375. For good statements of moral education theory, see Herbert Morris, "A Paternalistic Theory of Punishment," American Philosophical Quarterly 18 (1981): 263-271; and Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984): 208-238.
18. Frances Howard-Snyder has done the most to develop this form of consequentialism. See, for example, "The Heart of Consequentialism," Philosophical Studies 76 (1994): 107-129.
19. Compare the "consequentialist retributivism" discussed in Michael Moore, Placing Blame: A General Theory of Criminal Law (New York: Oxford University Press, 1997).
20. The best defense of restitution theory is Margaret Holmgren's "Punishment as Restitution: The Rights of the Community," Criminal Justice Ethics 2 (1983): 36-49.
21. See, e.g., Daniel Farrell, "The Justification of Deterrent Violence," Ethics 100 (1990): 301-317; and Phillip Montague, Punishment as Societal Defense (Lanham, MD: Rowman and Littlefield, 1995).
22. See, e.g., Daniel Farrell, "The Justification of Deterrent Violence," Ethics 100 (1990): 301-317; and Phillip Montague, Punishment as Societal Defense (Lanham, MD: Rowman and Littlefield, 1995).
23. Prominent defenders include George Sher, Desert (Princeton: Princeton University Press, 1987), ch. 5; and Michael Davis, To Make the Punishment Fit the Crime (Boulder: Westview Press, 1992).
24. Prominent defenders include George Sher, Desert (Princeton: Princeton University Press, 1987), ch. 5; and Michael Davis, To Make the Punishment Fit the Crime (Boulder: Westview Press, 1992).
25. With this statement I summarize Don Scheid's thorough discussion of desert in his "Constructing a Theory of Punishment, Desert, and the Distribution of Punishments," The Canadian Journal of Law and Jurisprudence 10 (1997): esp. 457-460.
26. This objection is clearly developed by Gertrude Ezorsky in the introduction to her edited volume, Philosophical Perspectives on Punishment (Albany, NY: State University of New York Press, 1972), pp. xxii-xxvii.
27. For an influential recent example, see Michael Moore, "The Moral Worth of Retribution," repr. in Joel Feinberg and Hyman Gross, eds., Philosophy of Law, 5th edn. (Belmont, CA: Wadsworth, 1995), pp. 632-654.
28. The locus classicus for doubt about censure theory's basic claims is H. L. A. Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963), pp. 65-66. Many others have since echoed Hart's criticisms, to which I respond in an unpublished manuscript, "Why the State Must Censure with Punishment."
29. I would like to thank the following people for useful comments on a different paper which included the germ of the thesis developed here: Joel Anderson, Larry Davis, Lara Denis, Sigurdur Kristinsson, David Lyons, Don Scheid, Eleonore Stump, and Roger Wertheimer. I also want to express my gratitude to Adila Hassim and to the editor of Law and Philosophy for helpful comments on the penultimate draft of this paper.