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Prepared by: Diana S. Fajardo.1L. LLB.

WHAT IS LEGAL PUNISHMENT? THE EXPRESSIVE FUNCTION OFPUNISHMENT (Joel Feinberg and Jules Coleman)

Punishment is defined, in effect, as the infliction of hard treatment by an authority on a person for hisprior failing in some respect, usually an infraction of arule or command.

Penalties is impose when a certain kind of conduct isdiscouraged without being absolutely prohibited. In

effect, penalties are licensing fees, different from otherpurchased permits in that the price is often paidafterwards rather than in advance.

Both are authoritative deprivations for failures

Penalties have miscellaneous character

Punishments have certain expressive function:Punishment is a conventional device for the expressionof attitudes of resentment and indignation, and of judgments of disapproval and reprobation, either onthe part of the punishing authority himself or of thosein whose name the punishment is inflicted.

Punishment has a symbolic significance largely missingfrom other kinds of penalties.

The reprobative symbolism of punishment:reprobation is itself painful, whether or not it isaccompanied by further hard treatment

The hard treatment character of punishment:because of its conventional symbolism, can itself bereprobatory

Theses in the essay:1. Both the hard treatment aspect of

punishment and its reprobative functionmust be part of the definition of legalpunishment;

2. Each of these aspects raises its own kind of question about the justification of legalpunishment as a general practice

Some jobs that punishment does and some of theconceptual problems it raises cannot be intelligentlydescribed unless:

1. It is true;2. That incoherence of a familiar form of the

retributive theory results from failure toappreciate the force.

Punishment as Condemnation The expression of communitys condemnation is an

essential ingredient in legal punishment. Henry M. Hart: the distinction between criminal and

civil sanction is the judgment of communitycondemnation which accompanies its imposition.

The essence of punishment for moral delinquency liesin the criminal conviction itself. It is the expression of communitys hatred, fear, contempt for the convict

which alone characterized physical hardship aspunishment.

Crime- a conduct which, if duly shown to have takenplace, will incur a formal and solemn pronouncementof the moral condemnation of the community.

The unpleasant treatment to convicts expresses thecondemnation, and that this expressive aspect of hisincarceration is precisely the element by reason of which it is properly characterized as punishment andnot mere penalty.

Certain forms of hard treatment have become theconventional symbols of public reprobation.

Particular kinds of punishment are often used to

express quite specific attitudes (beheading noblemanand hanging a yeoman; burning a heretic and hanginga traitor; hanging an enemy soldier and executing himby a firing squad)

It is easier to say that punishment has a symbolicsignificance than to say exactly what it is thatpunishment expresses.

Punishment generally expresses more than judgmentsof disapproval; it is also a symbolic way of getting backat the criminal or expressing a kind of vindictiveresentment.

A criminals punishment bears the aspect of legitimizedvengefulness.

Resentment- various vengeful attitudes Reprobation- stern judgment of disapproval Condemnation- kind of fusing of resentment and

reprobation. Resentment and Reprobation are the two elements

that can be found it legal punishment. Principle of Retribution

1. In Vengeance sense- the satisfaction by theState of a wronged individuals desire to beavenged

2. In Reprobation sense- States marking itsdisapproval of the breaking of its laws by a

punishment proportionate to the gravity of the offense.

Some Derivative Symbolic Functions of Punishment

1. Authoritative Disavowal2. Symbolic non- acquiscence: Speaking in the name of

the people 3. Vindication of the law4. Absolution of others

1. Authoritative Disavowalo Standard international practice of

demanding that nation whose agent hasunlawfully violated the complaining nationsright should punish the offending agent.

2.Symbolic non- acquiscence: Speaking in the name of the people - effective public denunciation. Law thatpunishes a certain act in behalf of the citizens wil l,

3.Vindication of law- a statute honored mainly in thebreach begins to lose its character as law, unless, as wesay, it is vindicated; and clearly the way to do this is to

punish those who violate it.

4.Absolution of others- when something scandaloushas occurred and it is clear that the wrongdoer mustbe one of a small number of suspects, then the state,by punishing one of these parties, thereby relieves theothers of suspicion, and informally absolves them of blame.

Constitutional Problem of Defining Legal Punishment Flemming vs. Nestor (regulation vs punishment) Subversive Drivers Act

The problem of strict criminal liability

Punishment with intent to commit a wrong (mala inse) Penalties- no intent to commit (mala prohibita) Two things are morally wrong:

1. to condemn a faultless man while inflictingpain and deprivation on him (unjustpunishment)

2. to inflict unnecessary and severe sufferingon a faultless man even in the absence of condemnation (unjust civil penalty)

Justifying Legal Punishment; Letting the Punishment Fit theCrime

7/31/2019 Leg Philo Notes on Crimes and Punishments

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Prepared by: Diana S. Fajardo.1L. LLB.

Hard treatment and Symbolic condemnation arenecessary elements in defining punishment.

Retributive Theory- neither condemnation norvengeance, but insists that the ultimate justifyingpurpose of punishment is to match off moral gravityand pain, to give each offended exactly the amount of pain the evil of his offense calls for, on the allegedprinciple of justice that the wicked should suffer painin exact proportion of their turpitude.

Deciding the amount of suffering must be based on:

1. Assessment of the character of the offender2. Abandonment of general rules in the

interest of individuation of punishment3. General rules must list all crimes in order of

their moral gravity, all punishments in orderof their severity and the matchings betweenthe two.

What justice requires is that the condemnatory aspectof punishment suit the crime.

Seriousness of crime is measured by the amount of harm it causes and the degree to which people aredisposed to commit it.

Infliction is the symbolic vehicle of public

condemnation.

ALTERNATIVES TO AND OPTIONS IN PLACE OF DEATH PENALTY(Rene V. Sarmiento)

The death penalty is cruel at the extreme and to workfor its abolition is an honorable thing to do.

The abolition of the death penalty contributes to theenhancement of human dignity and to the progressivedevelopment of human rights (UNCHR)

The abolition of capital punishment is most desirable inorder fully to respect the right to life

Capital punishment is inhuman and its application maywell be compared with torture

Death penalty violates the human right to life andhuman dignity

Justice William Brennan: when the state punishes withdeath, it denies the humanity and dignity of the victimand transgresses the prohibition against cruel andunusual punishment

RA 7659: the alarming upsurge of such crimes whichhas resulted not only in the loss of human lives andwanton destruction of property but also has affectedthe nations efforts towards sustainable developmentand prosperity.

The deterrence has been blasted by crime statisticsand court records.

The death penalty will not put an end to violence andcriminality will continue to hide more criminals, who inturn, will produce mo victims. The death penalty willnot arrest these violations. Rather, it will perpetratethe culture of violence.

Alternatives:1. Adoption of constitutional amendment that

will provide for the unqualified abolition of death penalty and for the reduction of death penalty already imposed to reclusionperpetua without parole.

a. this will be a reasonablevindication of rights of thenearest kin of the victims andwill give ample opportunity tothe offenders within theconfines of prison, to repent andreform.

2. The enactment of bold legislative measures,coupled with decisive executive orders, thatwill address the shortcomings in the law-

enforcement system, the flaws in criminalprosecution, and the weakness in judicialadministration.

a. Lord Parker: the great deterrentto crime is not severity of punishment but certainty of conviction

b. Amnesty International: It is thecertainty of arrest, convictionand long periods of imprisonment, not the threat of execution alone, which will actas deterrent against crime.

3. On the part of the government, church, andcivil society to undertake and intensifyhuman rights education at all school levelsand among various sectors of society inorder to underscore the worth of everyhuman being and sanctity of every humanlife.

4. Holistic process of reflection, analysis andaction by the government and non-government sectors in order to address theroots of violence, lawlessness andcriminality.

SEARCHING FOR PEACE AND ACHIEVING JUSTICE: THE NEED FORACCOUNTABILITY (M. Cherif Bassiouni)

The concurrence of conflicts has dramatically increasedin number, intensity and victimization.

Yet, there have been few prosecutions, whether at theinternational or national level.

Ad hoc tribunals for investigation in Yugoslavia andRwanda

There have been two national prosecution systemsestablished in Argentina and Chile

In Eastern and Central European countries, lustrationlaws have been passed to remove persons of the past

regime from office, but only a few prosecutions havetaken place.

Justice is all too frequently bartered away for politicalsett lements wherein the victims rights become theobjects of political trade-offs, and justice becomes,depending upon ones perspective, the victim of themeans of Realpolitik.

Bartering away justice for political results is the goal of most political leaders who seek to end conflicts orfacilitate transitions to non-tyrannical regimes. Thegrim reality is that in order to obtain peace,negotiations must be held with the very leaders who

frequently are the ones who committed, ordered, orallowed terrible crimes. Peace now, Justice later is a fallacious dichotomy

that may be tragically deceptive.

Peace- freely used in the context of ending conflicts orensuring transition to non-tyrannical regimes.

The processes of attaining peace, whatever theintended outcomes may be, vary in accordance with:

1. type of conflict 2. its participants 3. level of victimization 4. manner in which victimization occurred 5. other destructive conduct by opposing

groups 6. popular perceptions of what occurred 7. future expectations of popular

reconciliation between, or co-existenceamong opposing groups.

Peace encompasses wide range of policy options If peace is not intended to be a brief interlude between

conflicts, then in order to avoid future conflict, it mustencompass what justice is intended to accomplish:prevent, deter, punish, and rehabilitate.

NORMATIVE FRAMEWORK

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