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Analysing the Theories of Punishment

Introduction

Salmonds, a legal scholar and judge from New Zealand, defines crime as “an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual”. Punishment is given to wrongdoers with the objective to prohibit them from committing crimes further. It deters not only the actual offenders but also potential ones from committing a similar crime in the future. On one hand, punishing the offender gives comfort or relief to the victim and/or their family and close ones, while on the other hand, it serves a social purpose to prevent people from indulging in criminal acts.


Crime is a behaviour or action that is punishable by the criminal code. A crime is an offence committed against (and hence punishable by) the state or the community at large. Many crimes are immoral, but not all actions considered immoral are illegal.


Throughout the ages, society has invariably reacted to crimes. The reactions have been different based on the stages of human civilization and differences among diverse societies. All such reactions included or induced a form of punishment that was imparted to the offender. Therefore punishment is a designated social reaction against any legal violation.


Theories of punishment


Change in the social structure in the society has witnessed various punishment theories and the radical changes that they have undergone from the traditional to the modern level along with the crucial problems relating to them. For society to flourish safely and orderly, the following are the key theories found to be beneficial:


1. Retributive Theory of Punishment:


This theory maintains that punishment should be inflicted because the individual deserves to be punished for the crime committed. It is based on the principle of justice asserting that if we reward a good deed, a wrongdoer must be punished. Aristotle believed that punishment is in a way a negative reward to the offender. It is deontological in nature i.e. it believes in the rightness or wrongness of action alone and that punishment is imperative and adequate. It is not concerned with the consequences of punishment on the individual.


There are two varieties of Retributive theory. The first one is the Rigoristic Theory which believes in deciding the tonality of punishment according to the nature of the crime and follows the well known motto of “eye for an eye and tooth for a tooth”. The punishment is equal to the crime committed irrespective of other circumstances. The second theory, Mollified Theory takes into consideration the character and circumstances of an offence. Other circumstances could include, socio-economic situation, mental wellness, age, intentions etc. The severity of the punishment given is calculated after a holistic understanding of the individual's state of affairs.


Criticism


Dean Rashdall presents the view that the Deterrent theory is unethical as it fosters revenge. He brings out the difference between revenge and punishment and states that revenge can be deeply personal, due to one’s own grudges and requires no authority of institutions. It is grounded in vengeance and retaliation, whereas punishment involves external institutions which need not punish with the motive of revenge. This theory also does not work with hardened criminals because of its deontological nature. The more they are punished, they tend to continue committing more abominable crimes but the theory only inspects if justice is being done.


In conclusion, this theory is not sufficient as in numerous cases, punishment cannot be determined to be in equal proportion to the crime. On the other hand, in many heinous crimes, this theory is a useful one so far as moral law from an ethical viewpoint is concerned.


Although in many countries, restorative programmes are experimental and localized, in an increasing number of others restorative policies and programmes play a significant part in the national response to crime. Over 80 countries use some form of restorative practice in addressing crime.


2. Deterrent or Preventive Theory of Punishment:


Aforementioned theory maintains that an individual must be punished not because they have committed a crime, but to ensure that it is not committed again by anyone else. The aim is to deter potential criminals from committing further crimes and curbing criminal tendencies. The central cynosure of this theory is understood by: “I do not punish you for stealing the ship, but so that the ship may not be stolen”.


The punishment should be given soon after the crime is committed to ensure that the impact of the action taken will affect the other members of society. The objective is to limit the crime rate in society to create a sense of security for all. It also recognizes capital punishment.


Criticism


A number of arguments state that this theory is not an ethical model of punishment since it uses the criminal as a means to achieve another goal i.e. prevent others from committing a similar crime. In such cases, a person might not commit a crime from the fear of being punished. This implies that in the absence of punishment, these individuals might commit crimes. Fear of punishment to deter people from doing evil deeds is deemed as a non-moral motive. This theory also tends to be cruel as punishment is not dependent on the nature of the crime and hence severe punishment could be given to create a greater impact on the society for crimes that may not be as serious.


3. Reformative or educative theory of punishment:


A major emphasis of this theory is the rehabilitation of inmates inside personal institutions. They suggest that prisoners should be duly trained to adjust to a free life after their release. Plato is known as the Father of Reformative justice. He believed that “The mere infliction of suffering (timoria) makes people worse than they already were/ they will not be cured or deterred as they will go from bad to worse, ultimately become incorrigible and bound to be executed as an example to others. Curing or rehabilitating the criminal in practice will mean the reshaping of his character to a pattern approved by the authorities”.


The theory follows that punishment should not be regarded as an end in itself but only as a means, the end being the social security and rehabilitation of the offender in society. “Condemn the Sin, not the Sinner” as said by Mahatma Gandhi. The reformative theory is commonly accepted in contemporary times as it is in accordance with humanitarian principles. It also considers mental illnesses like kleptomania and social inequalities which could compel a person to commit crimes.


Criticism


Many critics of the reformative theory of punishment claim that this theory appears to be too optimistic and does not serve the original objective of punishment. This theory works well in the case of young offenders and some sexual offenders but has no appreciable effect upon the habitual and hardened criminals.


To conclude


From time to time the different theories of punishment in jurisprudence evolve and advance. These are crucial to understand to ensure that the accurate methods can be taken for amending our criminal laws. These theories clearly explain different viewpoints on punishment and how they have broadened over time. Application of any single theory of punishment in criminal law may not deliver absolute justice. Kant (1887) argued that those who murder must die, and that society has a duty to execute those who have committed murder, despite the consequences for the society. However, many critics state that Retribution is not the ideal form of punishment and several countries in contemporary times, declare life imprisonment instead of execution. A thorough knowledge about the context and situation is required before giving punishment. Hence the types of punishments are not mutually exclusive and instead a judicious combination of them is the modern course of action, like combining restoration and rehabilitation of criminals along with retribution. It is necessary for us to implement punishment when there is a breach of law. This would help subdue unwanted behaviour which could physically or psychologically hurt others and ensure that we maintain harmony and order in society.


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