ABSTRACT
Expressivism is a theory of punishment that has swiftly grown in popularity over recent years. Some critics have called it ‘the latest fad in the philosophy of punishment’.1 Expressivists challenge a longstanding feature of most thinking about the criminal law. For example, the former US President John Adams once said that the law is ‘deaf as an adder to the clamours of the populace’.2 The idea is that citizens should be ruled by the impartial and objective rule of law rather than public sentiment. It should not matter how the public feel about a case, but only how the rule of law might apply to it. Justice is about what is right and not always what is popular. Expressivists argue that punishment should be understood as the expres-
sion of public disapproval. Punishment, and especially imprisonment, is not the mere infliction of pain but a statement of denunciation. It is this expressive character of punishment that justifies punishment. Expressivists defend linking punishment with public approval. Justice can be about what is right and popular. After all, criminal justice policy should command popular support in democratic societies to justify the use of coercion against offenders and to justify the large costs to the taxpayer. Furthermore, expressivism offers a new hybrid theory of punishment and alternative to the approaches by John Rawls and Herbert Hart examined in chapter 5. Expressivists argue that punishment may address several penal goals through its expressive character, including retributivist desert, the promotion of general deterrence, and offender rehabilitation. This chapter will begin with an examination of expressivism’s roots and
include discussion of more recent attempts to revise and improve expressivism, principally, the communicative theory of punishment. Expressivists raise several important considerations that are often overlooked by other theories of punishment and this has helped contribute to their increasing popularity.
