The ‘Right Kind of Harm’ Problem for Communicative Theories of Punishment

ABSTRACT

Communicative theories (CT) of punishment have recently become popular both as a normative theory which tries to morally justify criminal punishment and as a descriptive theory regarding our punitive judgments. In a nutshell, normative CT argues that criminal punishment isjustified in virtue of it communicating censure to the offender. This censure can be justified because it is deserved (retributive CT), or because censuring offenders has beneficial consequences (consequentialist CT); or, it can be justified on both grounds. Descriptive CT claims that what drives laypeople’s attitudes to punish is the aim to communicate censure or blame towards the offender, and solidarity towards the victim as wellas the broader community that is involved in the wrongdoing. In this talk, I want to argue that CT fails to specifically justify criminal punishment. Note that criminal punishment is defined as the intentional infliction of harm on offenders. Punishment theories are thus mainly interested in the harm that is involved in the sentence, that is, the harm of a fine, incarceration, probation, etc. My claim is that CT cannot show that the harm orpain of criminal punishment is specifically and uniquely suited to express censure, rather than, say, the harm involved in the criminal process, non-punitive sanctions, feelings of guilt, or mediation attempts between the offender, the victim, and the involved community. I will call this the ‘Right Kind of Harm’ problem.

Dr Valerij Zisman

Valerij Zisman's research focuses on criminal law, ethics, and moral psychology. He is particularly interested in how re­search on our punitive attitudes can inform the legal and normative debate on theories of criminal punishment. More broadly, he is interested in using interdisciplinary methods in order to enrich our understanding of morality, the plausibility of different theories in normative ethics, and the epistemic reliability of moral judgments.