Accepting one’s punishment as meaningful suffering

Law and Philosophy

Volumn 20, Issue 6, 2001, Pages 581-604

  Tudor, Steven ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

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EID: 0035628104     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1011929300174     Document Type: Article

References (37)

1. The work of R. A. Duff is pre-eminent amongst contemporary penal philosophers in revamping, along secular lines, a penance-centred approach to punishment. The present paper is indebted to Duff's work, while at the same time presuming to offer some further support for it. See Duff, R. A., Trials and Punishments (Cambridge: Cambridge University Press, 1986), esp. Chs. 8, 9 and 10; "Punishment and Penance - A Reply to Harrison", The Aristotelian Society Supp. Vol. LXII (1988), pp. 153-167; "Penal Communications: Recent Work in the Philosophy of Punishment", Crime and Justice: A Review of Research 20 (1996), pp. 1-97; "Desert and Penance", in Andrew von Hirsch and Andrew Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy, 2nd ed. (Oxford: Hart Publishing, 1998), pp. 161-167; and Punishment, Communication, and Community (New York: Oxford University Press, 2001), Ch. 3.6.
2. The work of R. A. Duff is pre-eminent amongst contemporary penal philosophers in revamping, along secular lines, a penance-centred approach to punishment. The present paper is indebted to Duff's work, while at the same time presuming to offer some further support for it. See Duff, R. A., Trials and Punishments (Cambridge: Cambridge University Press, 1986), esp. Chs. 8, 9 and 10; "Punishment and Penance - A Reply to Harrison", The Aristotelian Society Supp. Vol. LXII (1988), pp. 153-167; "Penal Communications: Recent Work in the Philosophy of Punishment", Crime and Justice: A Review of Research 20 (1996), pp. 1-97; "Desert and Penance", in Andrew von Hirsch and Andrew Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy, 2nd ed. (Oxford: Hart Publishing, 1998), pp. 161-167; and Punishment, Communication, and Community (New York: Oxford University Press, 2001), Ch. 3.6.
3. The work of R. A. Duff is pre-eminent amongst contemporary penal philosophers in revamping, along secular lines, a penance-centred approach to punishment. The present paper is indebted to Duff's work, while at the same time presuming to offer some further support for it. See Duff, R. A., Trials and Punishments (Cambridge: Cambridge University Press, 1986), esp. Chs. 8, 9 and 10; "Punishment and Penance - A Reply to Harrison", The Aristotelian Society Supp. Vol. LXII (1988), pp. 153-167; "Penal Communications: Recent Work in the Philosophy of Punishment", Crime and Justice: A Review of Research 20 (1996), pp. 1-97; "Desert and Penance", in Andrew von Hirsch and Andrew Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy, 2nd ed. (Oxford: Hart Publishing, 1998), pp. 161-167; and Punishment, Communication, and Community (New York: Oxford University Press, 2001), Ch. 3.6.
4. The work of R. A. Duff is pre-eminent amongst contemporary penal philosophers in revamping, along secular lines, a penance-centred approach to punishment. The present paper is indebted to Duff's work, while at the same time presuming to offer some further support for it. See Duff, R. A., Trials and Punishments (Cambridge: Cambridge University Press, 1986), esp. Chs. 8, 9 and 10; "Punishment and Penance - A Reply to Harrison", The Aristotelian Society Supp. Vol. LXII (1988), pp. 153-167; "Penal Communications: Recent Work in the Philosophy of Punishment", Crime and Justice: A Review of Research 20 (1996), pp. 1-97; "Desert and Penance", in Andrew von Hirsch and Andrew Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy, 2nd ed. (Oxford: Hart Publishing, 1998), pp. 161-167; and Punishment, Communication, and Community (New York: Oxford University Press, 2001), Ch. 3.6.
5. The work of R. A. Duff is pre-eminent amongst contemporary penal philosophers in revamping, along secular lines, a penance-centred approach to punishment. The present paper is indebted to Duff's work, while at the same time presuming to offer some further support for it. See Duff, R. A., Trials and Punishments (Cambridge: Cambridge University Press, 1986), esp. Chs. 8, 9 and 10; "Punishment and Penance - A Reply to Harrison", The Aristotelian Society Supp. Vol. LXII (1988), pp. 153-167; "Penal Communications: Recent Work in the Philosophy of Punishment", Crime and Justice: A Review of Research 20 (1996), pp. 1-97; "Desert and Penance", in Andrew von Hirsch and Andrew Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy, 2nd ed. (Oxford: Hart Publishing, 1998), pp. 161-167; and Punishment, Communication, and Community (New York: Oxford University Press, 2001), Ch. 3.6.
6. For examples of discussions that start off by defining punishment as something done, see, amongst many others, Honderich, Ted, Punishment: The Supposed Justifications, rev. ed. (Harmondsworth: Penguin, 1984), p. 11; Ten, C. L., Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987), p. 2; Von Hirsch, Andrew, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976), p. 35; and Hart, H. L. A., Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), p. 5. I do not imply here that any of these writers would be closed to the idea of taking a philosophical interest in the point of view of the person punished.
7. For examples of discussions that start off by defining punishment as something done, see, amongst many others, Honderich, Ted, Punishment: The Supposed Justifications, rev. ed. (Harmondsworth: Penguin, 1984), p. 11; Ten, C. L., Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987), p. 2; Von Hirsch, Andrew, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976), p. 35; and Hart, H. L. A., Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), p. 5. I do not imply here that any of these writers would be closed to the idea of taking a philosophical interest in the point of view of the person punished.
8. For examples of discussions that start off by defining punishment as something done, see, amongst many others, Honderich, Ted, Punishment: The Supposed Justifications, rev. ed. (Harmondsworth: Penguin, 1984), p. 11; Ten, C. L., Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987), p. 2; Von Hirsch, Andrew, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976), p. 35; and Hart, H. L. A., Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), p. 5. I do not imply here that any of these writers would be closed to the idea of taking a philosophical interest in the point of view of the person punished.
9. For examples of discussions that start off by defining punishment as something done, see, amongst many others, Honderich, Ted, Punishment: The Supposed Justifications, rev. ed. (Harmondsworth: Penguin, 1984), p. 11; Ten, C. L., Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987), p. 2; Von Hirsch, Andrew, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976), p. 35; and Hart, H. L. A., Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), p. 5. I do not imply here that any of these writers would be closed to the idea of taking a philosophical interest in the point of view of the person punished.
10. I do not wish to suggest that such a concern is new as such. Indeed, some sort of concern with the person punished makes itself felt in most extended discussions of punishment. Only relatively rarely, however, has it been explicitly thematised as a distinct philosophical topic. As already noted, R. A. Duff has done much to reverse this trend. An important earlier article in this area is Winch, Peter, "Ethical Reward and Punishment" in his Ethics and Action (London: Routledge and Kegan Paul, 1972), pp. 210-228. See also Adler, Jacob, The Urgings of Conscience (Philadelphia: Temple University Press, 1992); and Moore, Michael, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997), Ch. 3 "The Moral Worth of Retribution" and Ch. 4 "Justifying Retribution". My approach, however, is different from both Adler's and Moore's and I do not draw upon their work here. Detailed analysis and criticism of their approaches would, though, merit a paper of its own.
11. I do not wish to suggest that such a concern is new as such. Indeed, some sort of concern with the person punished makes itself felt in most extended discussions of punishment. Only relatively rarely, however, has it been explicitly thematised as a distinct philosophical topic. As already noted, R. A. Duff has done much to reverse this trend. An important earlier article in this area is Winch, Peter, "Ethical Reward and Punishment" in his Ethics and Action (London: Routledge and Kegan Paul, 1972), pp. 210-228. See also Adler, Jacob, The Urgings of Conscience (Philadelphia: Temple University Press, 1992); and Moore, Michael, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997), Ch. 3 "The Moral Worth of Retribution" and Ch. 4 "Justifying Retribution". My approach, however, is different from both Adler's and Moore's and I do not draw upon their work here. Detailed analysis and criticism of their approaches would, though, merit a paper of its own.
12. I do not wish to suggest that such a concern is new as such. Indeed, some sort of concern with the person punished makes itself felt in most extended discussions of punishment. Only relatively rarely, however, has it been explicitly thematised as a distinct philosophical topic. As already noted, R. A. Duff has done much to reverse this trend. An important earlier article in this area is Winch, Peter, "Ethical Reward and Punishment" in his Ethics and Action (London: Routledge and Kegan Paul, 1972), pp. 210-228. See also Adler, Jacob, The Urgings of Conscience (Philadelphia: Temple University Press, 1992); and Moore, Michael, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997), Ch. 3 "The Moral Worth of Retribution" and Ch. 4 "Justifying Retribution". My approach, however, is different from both Adler's and Moore's and I do not draw upon their work here. Detailed analysis and criticism of their approaches would, though, merit a paper of its own.
13. Levinas, Emmanuel, "Useless Suffering", trans. R. Cohen, in Robert Bernasconi and David Wood (eds.), The Provocation of Levinas: Rethinking the Other (London: Routledge, 1988), pp. 156-167, at pp. 157-158.
14. See Gadamer, Hans-Georg, Truth and Method, 2nd, rev. ed, trans. rev. J. Weinsheimer and D. G. Marshall (London: Sheed and Ward, 1989 [first German ed. 1960]), pp. 356ff., for a discussion of the idea of "learning through suffering", which Gadamer traces back to Aeschylus.
15. Levinas, "Useless Suffering", p. 159.
16. I further explore the nature of compassion and remorse in my forthcoming book, Compassion and Remorse: Acknowledging the Suffering Other (Leuven: Peeters).
17. See Hegel, G. W. F., Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1977 [first German ed. 1807]), Secs. 178-196.
18. See Norman, Richard, The Moral Philosophers: An Introduction to Ethics (Oxford: Oxford University Press, 1983), p. 223. (Norman actually speaks of guilt rather than guilt feelings, but it is important to distinguish the two: the former is an objective and the latter a subjective state.)
19. I should make it clear that I intend no religious import by such terminology; the terms can readily be given secular readings, despite a long and continuing religious currency.
20. For reasons of space and focus, I have not prefaced this stage of my discussion with a preliminary account of what makes for the just imposition of punishment. However, certain important elements of such an account will presently emerge, though only in outline.
21. This, of course, is a Socratic point: if you know what evil is, then you will not do it. See Plato, Protagoras 358C-D and Meno 77C-78B.
22. This, of course, is a Socratic point: if you know what evil is, then you will not do it. See Plato, Protagoras 358C-D and Meno 77C-78B.
23. "Censure" is the term most often used in this context, but, to my ear at least, "reproach" connotes a little more clearly a sense of moral engagement with the person reproached. But nothing much depends on the distinction here. For defences of the censure/reproach account of punishment, see: R. A Duff in the works cited above in footnote 1; Von Hirsch, Andrew, Censure and Sanctions (Oxford: Clarendon Press, 1993); and Narayan, Uma, "Appropriate Responses and Preventive Benefits: Justifying Censure and Hard Treatment in Legal Punishment", Oxford Journal of Legal Studies 13 (1993), pp. 166-182.
24. "Censure" is the term most often used in this context, but, to my ear at least, "reproach" connotes a little more clearly a sense of moral engagement with the person reproached. But nothing much depends on the distinction here. For defences of the censure/reproach account of punishment, see: R. A Duff in the works cited above in footnote 1; Von Hirsch, Andrew, Censure and Sanctions (Oxford: Clarendon Press, 1993); and Narayan, Uma, "Appropriate Responses and Preventive Benefits: Justifying Censure and Hard Treatment in Legal Punishment", Oxford Journal of Legal Studies 13 (1993), pp. 166-182.
25. That is a very Murdochian way of putting it. See Murdoch, Iris, The Sovereignty of Good (London: Routledge and Kegan Paul, 1970), pp. 95, 103-104.
26. R. A. Duff emphasises the importance of distinguishing mere expression and communication in this context. See his Punishment, Communication, and Community, Ch. 3.2. I stick with the term "expressivity" and cognates here, however, because I want to distinguish, within communication, the receptive and the expressive aspects.
27. I do not want to rule out any possible role for negotiation here, especially in the context of mediations, conferencing with victims and similar, "restorative" modes of response to crime (though talk about "ownership" of one's punishment must proceed warily). I shall, however, remain focused on non-negotiated punishments in trying to show that expressiveness by the offender does not require ultimate authorship by the offender.
28. Lucas, J. R., On Justice (Oxford: Oxford University Press, 1980), p. 132. See also Lucas, J. R., Responsibility (Oxford: Oxford University Press, 1993), Ch. 6.
29. Lucas, J. R., On Justice (Oxford: Oxford University Press, 1980), p. 132. See also Lucas, J. R., Responsibility (Oxford: Oxford University Press, 1993), Ch. 6.
30. See Swinburne, Richard, Responsibility and Atonement (Oxford: Oxford University Press, 1989), p. 84. See also, Duff, Trials and Punishments, pp. 68-70, 246-262, and "Punishment and Penance - A Reply to Harrison", pp. 163-166.
31. See Swinburne, Richard, Responsibility and Atonement (Oxford: Oxford University Press, 1989), p. 84. See also, Duff, Trials and Punishments, pp. 68-70, 246-262, and "Punishment and Penance - A Reply to Harrison", pp. 163-166.
32. See Swinburne, Richard, Responsibility and Atonement (Oxford: Oxford University Press, 1989), p. 84. See also, Duff, Trials and Punishments, pp. 68-70, 246-262, and "Punishment and Penance - A Reply to Harrison", pp. 163-166.
33. Gaita, Raimond, Good and Evil: An Absolute Conception (London: Macmillan, 1991), pp. 47-48.
34. Such punishments as community service do not go against this idea, for there is a distinct difference in meaning between being sentenced, say, to paint a community gymnasium and volunteering to do it as part of a local charity group. Being physically near people, and even interacting with them, is not yet to be in fellowship with them. I do not assume, I hasten to add, that everyone starts out enjoying such "fellowship" and only losses it through criminal wrongdoing.
35. Winch, Peter, "Ethical Reward and Punishment", p. 228, n. 3. R. A. Duff defends the place of idealism in the philosophy of punishment in his Trials and Punishments, Ch. 10 and in Punishment, Communication, and Community, Ch. 5.1.
36. Winch, Peter, "Ethical Reward and Punishment", p. 228, n. 3. R. A. Duff defends the place of idealism in the philosophy of punishment in his Trials and Punishments, Ch. 10 and in Punishment, Communication, and Community, Ch. 5.1.
37. Winch, Peter, "Ethical Reward and Punishment", p. 228, n. 3. R. A. Duff defends the place of idealism in the philosophy of punishment in his Trials and Punishments, Ch. 10 and in Punishment, Communication, and Community, Ch. 5.1.