2.2 Condemnation
According to a second version of retributivism, we do not punish to deter, incapacitate, reform, or satisfy a private desire for vengeance; rather, punishment is justified as an expression of society's condemnation of the offensive act.
Henry Hart emphasizes the condemnatory or reprobative function of punishment in answering the question he poses of what is the distinctive function of criminal (as opposed to other) law. Some utilitarians argue that there is no essential difference in purpose between criminal and tort law; to Richard Posner, for example, the only time there is a justification for invoking criminal rather than civil remedies is when the latter "bump up against a solvency limitation."[81] Hart claims there is an essential difference; in his view, criminal law, unlike other law, reflects "the judgment of community condemnation which accompanies and justifies its imposition."[82] Whereas a tort is an injury to a private person, a violation only of private law, a crime is an affront to the social morality articulated in criminal or public law. Crime is
conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.[83]
Hart concurs with the view that
The essence of punishment for moral delinquency lies in the criminal conviction itself. One may lose more money on the stock market than in a court-room; a prisoner of war camp may well provide a harsher environment
[81] Posner, "An Economic Theory of the Criminal Law," p. 1204.
[82] Henry M. Hart, Jr., "The Aims of the Criminal Law," Law and Contemporary Problems , vol. 23 (Summer 1958), p. 404.
[83] Ibid., p. 405.
than a state prison…. It is the expression of the community's hatred, fear, or contempt for the convict which alone characterizes physical hardship as punisment.[84]
Hart takes issue with humanitarian theories that see treatment as the aim of punishment, for such theories fail to see that the essential aim of punishment is to express condemnation:
Today "treatment" has become a fashionable euphemism for the older, ugly word ["punishment"]. This bowlderizing of the Constitution and of conventional speech may serve a useful purpose in discouraging unduly harsh sentences and emphasizing that punishment is not an end in itself. But to the extent that it dissociates the treatment of criminals from the social condemnation of their conduct which is implicit in their conviction, there is danger that it will confuse thought and do a disservice.[85]
Like all the utilitarians we considered, Hart uses his account of the essential aim of punishment to criticize the existing practice. He says his thesis is "that a sanction which ineradicably imparts blame, both traditionally and in most of its current applications, is misused when it is thus applied to conduct which is not blameworthy."[86]
Joel Feinberg also emphasizes the reprobative function of legal punishment. Feinberg contends that
[p]unishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments
[84] George K. Gardner, "Bailey v. Richardson and the Constitution of the United States," Boston University Law Review , vol. 33 (1953), p. 193, cited by Hart, "The Aims of the Criminal Law," p. 405. Neither Hart nor Feinberg, who also cites this passage, observes that contempt and fear are separate reasons for punishing. Fear may motivate the utilitarian more than contempt or hatred does. Punishing in order to condemn is similar in some ways, different in others, from punishing out of revenge, but the equation of condemnation with the expression of hatred or contempt tends to stress only the similarities.
[85] Hart, "The Aims of the Criminal Law," p. 405.
[86] Ibid., p. 405, note 13.
of disapproval and reprobation, on the part either of the punishing authority himself or of those "in whose name" the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties.[87]
But Feinberg distinguishes his view from Hart's. Hart suggests that condemnation alone may count as punishment, even absent the added consequences of unpleasant physical pain:
[O]therwise, it would be necessary to think of a convicted criminal as going unpunished if the imposition or execution of his sentence is suspended.[88]
For Feinberg, what makes something legal punishment is its reprobative force and its being "hard treatment."[89] Whereas Hart suggests that hard treatment is a distinct and nonessential feature of punishment—the convicted criminal whose sentence is suspended is still punished, still stigmatized—Feinberg points out that in some cases it is only the actual infliction of hard treatment that constitutes punishment: "it does not always happen that the convicted prisoner is first solemnly condemned and then subjected to unpleasant physical treatment."[90] Hard treatment itself brings shame and ignominy and stigma: "[C]ertain forms of hard treatment have become the conventional symbols of public reprobation."[91]
The condemnation theory of punishment might seem to be nothing but a theory of public vengeance. Feinberg suggests that punishment is in part "a symbolic way of getting back the criminal, of expressing a kind of vindictive resentment."[92] But in the condemnation theory, punishment also expresses judgments of community disapproval, which needn't be motivated by resentment or even by anger. The condemnation
[87] Feinberg, "The Expressive Function of Punishment," p. 98.
[88] Hart, "The Aims of the Criminal Law," p. 405.
[89] Feinberg, "The Expressive Function of Punishment," p. 98.
[90] Ibid., p. 99.
[91] Ibid., p. 100.
[92] Ibid.
theory is not merely a theory of public vengeance, though it is that as well. It understands legal punishment to serve other purposes besides the venting of public anger, purposes which are distinct also from those declared by the utilitarian. One purpose of punishment, in Feinberg's view, that presupposes its expressive function is the authoritative disavowal of what was done. Another is the vindication of the law:
A statute honored mainly in the breach begins to lose its character as law, unless, as we say, it is vindicated (emphatically reaffirmed); and clearly the way to do this (indeed the only way) is to punish those who violate it.[93]
The retributivist notes that only by punishing do we affirm right. Unless we punish a wrong, it will be held to be valid.[94] Hegel suggests that to have a law the violation of which is to be called a "wrong" or "crime" logically requires punishing those who violate it:
[P]unishment, as we have seen, is only crime made manifest; i.e. is the second half which necessarily presupposes the first. Prima facie, the objection to retribution is that it looks like something immoral, i.e. like revenge, and that thus it may pass for something personal. Yet it is not something personal, but the concept itself, which carries out retribution.[95]
[I]t would be impossible for society to leave a crime unpunished, since that would be to posit it as right.[96]
A third function of punishment noted by Feinberg is the absolution of others: "Quite often the absolution of an accused hangs as much in the balance at a criminal trial as the inculpation of the accused." Of course, the state could do this job
[93] Ibid., p. 104.
[94] Hegel, Philosophy of Right , par. 99.
[95] Ibid., par. 101 addition.
[96] Ibid., par. 218 addition.
without punishing, "but when it speaks by punishing, its message is loud and sure of getting across."[97]
All of these functions are nonutilitarian reasons for punishing. They are forward-looking or consequential in some sense, in that they appeal to some future good, be it the vindication of right, absolution of someone wrongly accused, or whatever good we associate with the venting of righteous anger; but it is not on the basis of a calculation of utilities, pleasures and pains, or effects on economic efficiency that they are regarded as good reasons. They are moral or ethical reasons for punishing that presuppose that the purpose of legal punishment is to express public condemnation of certain actions we call crimes.[98]