What Punishment Expresses

Abstract

It is much easier to show that punishment has a symbolic significance than to say exactly what it is that punishment expresses... (Feinberg, 1965: 402) these conventional 'symbols' and could choose others (see Hampton, 1992, and a critique of Hampton's position in Gert et al, 2004). Hence conventionalist expressivism shines little light on the centrality of hard treatment in penality generally, let alone on the specific expressive meanings of the 'painful symbolic machinery' (Feinberg, 1965: 420) that we happen to have in fact developed in modern penality. Now this naïve conception of expression must, psychosocial theory may say, presuppose an unrealistic moral psychology-a moralizing psychology, which simply builds the psychology out of the moral categories rather than offering a genuinely psychological account of them. Psychosocial accounts offer deep interpretation of the latent content expressed in punishment that do not simply accept uncritically the manifest moral story of retributive penality, that punishment expresses deserved condemnation in response to wrongdoing, but try to be sensitive to the underlying dynamics at work. They find such items as solidarity (Durkheim, 1893/1997) , aggression, fear, and guilt, and their distortion, rationalisation or disavowal (Nietzsche, 1887/1998:; Mead, 1918/1964) as the real, deeper, latent expressive content of punishment. Recent psychoanalytic psychosocial work in this area has been promising (Garland, 1990; Maruna et al, 2004; Gadd 2007) but as yet remains rather less than fully developed and systematic. Selective in their interpretive use of disparate psychoanalytic concepts of unconscious drives, emotions and defences, they feel ad hoc and eclectic. But we should want to be able to make sense both of the unities that are found in constellations of expressed materials, and of the antinomies that exist between different such constellations. We should want to know why and how the constellations of specific emotional and defensive elements in punishment hang together in the ways they do, and why others cannot co-exist stably, always leading to dissonance and oscillation. More fundamentally, such accounts may, to philosophical expressivism, seem suspiciously like a 'hermeneutics of suspicion' that, inspired perhaps by a Nietzschean take on Freud, is bound to entail reductively explaining away all ethical values and normative phenomena. If we can boil down punishment's manifest moral expressions to deeper, seedier latent ones, that-so the objection goes-must mean we can do the same for all moral phenomena, so that 'when, what we fondly believe to be reasons are unmasked, all that remains is blind causal processes,' (Brandom, ms.: 3) and then there is no normative purchase left on the world, and hence no grounds of critique either. Then it may seem such approaches are merely selectively debunking and pathologizing what they don't like (see Tetlock, 1994). That can lead Maruna et al., for example, to reason that if punishment or punitiveness is to be psychoanalytically ...

Realism, dialectic, justice and law: an interview with Alan Norrie

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“…There are many studies that explore how a sense of emotional and psychological fragility can stimulate a punitive outlook, from Freud's 'conflict of ambivalence' fuelled by guilt (Freud 2010(Freud [1930), to how 'punishment exercises a psychodynamic function that allows individuals in society to deal with their repressed feelings of anxiety, guilt, fear or even envy, by directing hostile feelings toward criminals' (Carvalho and Chamberlen 2016: 12; see also Garland 2001), and how this function reproduces a problematic 'persecutory position' (Reeves 2019) in which individuals see others as essentialised 'part-objects', either good or bad. The impetus to resolve the feeling of fragility is what provides a powerful drive to essentialise others and to legitimately scapegoat them (see Young 2003).…”

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