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The theories of crime and punishment are used to define crime, provide justifications for punishments, explain the principles of liability that are used to enforce criminal liability against the offender and also justify the quantum of punishment. From the Natural Lawyers onwards there has been an attention drawn to theories of punishment, with different theories on the justification of punishment.
This essay considers the theories of Immanuel Kant, Emile Durkheim, Hugo Grotius, HLA Hart, Cesare Beccaria, Jeremy Bentham, David Garland and others to understand the notion of punishment and whether punishment is a necessity, an evil or simply a ‘necessary evil’, as it is sometimes called.
At the outset it is important to understand that a fully realized theory of punishment will include definition of punishment, justification of punishment, principles of liability that are used to understand the dimensions of punishment, the quantum and criteria of punishment (Hoffman, 2015).
The theories that are used in the essay are some of the most influential theories of punishment. Some of these theories are from an earlier period of time but such has been their influence that they have guided further theorizing of crime and punishment and as such these theories are relevant in the contemporary time as well.
The essay will first discuss the theories of Grotius, Beccaria, Kant and Durkheim to analyse how these theories justify punishment. The concept of capital punishment is given special emphasis in the discussion as it is a controversial topic, where even if the theorist agrees with the idea of punishment, he may disagree with the idea of capital punishment.
The essay seeks to balance the elements of necessity and evil that are inherent in punishment in order to answer the central question asked in the essay: is punishment a necessity or an evil? Or is it both? The essay argues that punishment is a necessity, but certain aspects of this punishment is an evil, such as capital punishment.
First, it is pertinent to observe that it is difficult to strictly segregate theories of punishment into those that support punishment and those that consider punishment to be an evil. Mostly, as HLA Hart pointed out, there is always a possibility of mixed theories of punishment by separating a theory’s ‘general justifying aim’ from its ‘principles of distribution’ (Hart, 1970). Generally, a theory of punishment must be definitive in nature, and it must therefore, offer a definition of punishment. A theory of punishment must be explicative of the aims of punishment, or the grounds that justify the practice or institution of punishment. In other words, is the reason for punishment retribution for the crime or is it deterrence? Finally, a theory of punishment must provide the principles of distribution, that is, it must describe the liability and amount of punishment (Hart, 1970, pp. 8-10). In a mixed theory of punishment, which Hart says is possible, it is may be seen that the theory is justifying punishment according to one kind of aim, however, the same theory may justify principles of distribution of liability in accordance with another kind of aim (Hart, 1970, pp. 8-10).
Therefore, as long as the theory of punishment is seen to provide definition of punishment, aims of punishment and principles of distribution, the theory is complete as far as the formal requirements of theory are concerned. It is important for these elements to be present.
Hugo Grotius related punishment to the law of nature and is one of the first major theorists in the natural law tradition to have written on the theory of punishment. His theory is indicative of the necessity of punishment. First, it is important to discuss the definition of punishment that was given by Grotius. He said:
“Punishment taken in its most general meaning signifies the pain of suffering, which is inflicted for evil actions” (Grotius, 1901, p. 221).
Because Grotius talks about ‘evil actions’ as the provocative reasons for infliction of punishment, it can be said that he is writing the theory of punishment in the retributive vein. He also says that punishment signifies ‘pain of suffering’, therefore indicating that punishment is painful and difficult. In other words, punishment implies violence. Grotius justifies punishment by saying that punishment is a reaction to an evil action of the person being punished. More particularly, he says that punishment is justified because “it is right for everyone to suffer evil proportioned to that which he has done,” or “when we say that punishment is due to anyone, we mean nothing more than it is right he should be punished” (Grotius, 1901, pp. 221-222).
Thus, clearly Grotius considers punishment to be a necessity. However, as he says that punishment involves pain, which may be signified as am evil, it is clear that punishment too is evil (if evil is seen only from the perspective of pain). However, the evil is clearly a necessary one as the person being punished has asked for the evil by his own evil actions
For Cesare Beccaria, writing from a social contractarian tradition, there is a relation between the Social contract and punishment. First, it is important to understand Beccaria’s concept of state, because it is in this concept that we find the justification of punishment. He clarified the reasons for formation of state as follows:
“Wearied by living in an unending state of war and by a freedom rendered useless by the uncertainty of retaining it, they sacrifice a part of that freedom in order to enjoy what remains in security and calm. The sum of these portions of freedom sacrificed to the good of all makes up the sovereignty of the nation, and the sovereign is the legitimate repository and administrator of these freedoms” (Beccaria, 1995, p. 9).
Beccaria considered the establishment of a state to be for the purpose of attaining a higher form of freedom that comes in a peaceful state, in which the individual enjoys a sum of available freedoms and good. The sovereign becomes the legitimate administrator of these freedoms. Punishment is given by the sovereign in a consistent and proportionate manner to make a lasting impression on the minds of men that crime receives punishment. He explained the purpose of punishment as follows:
“The purpose [of punishment], therefore, is nothing other than to prevent the offender from doing fresh harm to his fellows and to deter others from doing likewise. Therefore, punishments and the means adopted for inflicting them should, consistent with proportionality, be so selected as to make the most efficacious and lasting impression on the minds of men with the least torment to the body of the condemned” (Beccaria, 1995, p. 31).
There are some very interesting points that are made here by Beccaria. First, he considers punishment to be of deterrent value and he justifies punishment on that basis. Second, he considers that punishment must be consistent and proportionate, thus, disagreeing with excessive and emotive appeals to punishment. Third, he argues for the least torment to the body of the condemned while punishment is meted out. Some more light is thrown by his words:
“If a punishment is to serve its purpose, it is enough that the harm of punishment should outweigh the good which the criminal can derive from the crime...Anything more than this is superfluous and, therefore, tyrannous” (Beccaria, 1995, p. 64).
The fact that Beccaria feels that punishment should be proportionate can be gleaned from the abovementioned words. He says that punishment will serve its purpose only if it is sufficient enough to outweigh the good that the criminal may derive from the commission of the crime.
To sum up Beccaria’s thesis with respect to punishment he considered punishment to be a right of the sovereign as the one authorized as the necessary means to protect this repository of freedoms. As this is social contract, Beccaria postulated that when people surrendered their freedom, they also gave the sovereign the power to protect their freedom. However, in order to be justified the sovereign must use his power to punish in a consistent and proportionate manner, because anything beyond that will be excessive and not authorized by the social contract.
Beccaria was also one of the first major influential critic of capital punishment and a small discussion on this is relevant at this point.
Baccaria’s seminal essay ‘On Crimes and Punishments’ in 1764, first raised the moral and utilitarian arguments against capital punishment that still find resonance today. So influential were Beccaria’s views on death penalty, that the rulers of Tuscany and Austria actually abolished death penalty in 1787 and 1788 respectively as a response to a supportive view on Beccaria’s views (Hood, 2000, p. 740). Beccaria believed that death penalty was not a proportionate punishment to any crime, therefore, he called for its abolition in his seminal essay.
Beccaria’s theory of punishment is primarily built on the deterrent traditions, where the punishment is justified on the basis of its value in decreasing crime by acting as a deterrent or fear factor in the minds of criminals or potential criminals. His appeal to punishment is not on emotive grounds, rather he expounded a scientific process for punishment. On the other hand, Kant has the reputation of being one of the central and foundational philosophers of the retributivist school of thought. In order to understand Kant’s theory of punishment, it is imperative that we also understand the retributivism stance on crime and punishment.
Retributivism is the belief that punishment is justified as a response to the wrong actions of the offender. The theory is on the basis of just and moral dessert that the offender is deserving of considering the nature and gravity of the crime committed by him.
In his Metaphysics of Morals, Kant defines punishment as follows:
“Punishment can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime” (Kant, 1996, p. 331).
According to Kant, punishment is justified only when it is an immediate response to an act of criminal wrongdoing. Kant says that punishment cannot be given for the sake of social good, as in, for the purpose of doing some good to the criminal or the society in general. Punishment is given purely in response to the crime. Therefore, he is considered to be a retributivist, as he focusses on extracting a penalty from the wrongdoer for the crime committed. It can be said that punishment for Kant is a necessary evil, not to be imposed for any other reason but for the fact of commission of a crime by the wrongdoer.
Durkheim propounded a relational approach to punishment. His theory is also distinctive because of its sociological appeal. Harcourt et al (2005) say this of sociological approach in general and Durkheim in particular:
“Rather than focus on the attributes of individuals or particular groups, what is distinctive about the study of crime and punishment from a sociological perspec- tive is a focus on the dynamic relationships between the objects of study, whether those objects are individuals, social groups, neighborhoods, organizations, nation-states, or regions of the world. This tendency is certainly evident in Emile Durkheim's classic work on crime and punishment in which the structures of relationships in society-principally the division of labor- determine the kinds of legal systems that societies are likely to have (Harcourt, et al., 2005, p. 295).
Jeremy Bentham justified punishment on the basis of the good it held for the society. As far as the individual is concerned, there is no possibility of good that can be done to him through punishment. If punishment sacrifices some individuals for the greater good of the society, then the punishment is justified (Easton & Piper, 2016, p. 114). It is important to remember that Bentham was a utilitarian and he thought about each measure, including punishment from the perspective of the “maximum happiness of the maximum number” and if the punishment of a few people because they have committed crimes leads to the fulfillment of the utilitarian objective, then it was justified. He also argued for an upper and lower limit of punishment for the judges to decide on the basis of proportionality (Easton & Piper, 2016, p. 114).
David Garland spoke about sociological approaches to punishment. He said that as opposed to a penological approach, which focusses on crime control and justifies punishment on that basis, the sociological approach views punishment as a complex social institution (Garland, 1991). The justification of punishment is in the good it does for the society and how it leads to social solidarity. Penal policy should be guided by these principles (Garland, 1991).
If punishment is meted out in an arbitrary or inconsistent manner, it will become an evil. In order to ensure that punishment is justified, certain principles are followed by the criminal justice system itself. Thus, law punishes a crime only when certain elements are present that justify such punishment. These are discussed in this section.
Law punishes for commission or omission of an act which amounts to a crime. Legal systems evolve an entire methodology which is used to punish offenders while ensuring that an innocent person is not punished. First of all, the concept of a voluntary act is said to lie at the very foundation of the criminal law and there cannot be a crime without a voluntary act (Saunders, 1988).
The maxim: actus non facit reum nisi mens sit rea, is applied to enforce liability for a criminal act. This means that an act alone does not make a person guilty, unless his mind is also guilty. Consequently, criminal behaviour will consist of an act (actus reus) and fault element (mens rea), which may be intention, knowledge, recklessness or negligence. In the criminal law, the two elements that signify culpability are: actus reus and mens rea. Actus reus signifies an act, but this act may even be an omission. Mens rea is the element of fault, or ‘guilty mind’. If a person has committed a crime, it means that he has committed a wrongful act with the intention and knowledge of such commission and therefore he is punished. Such a punishment is seen to be proportionate.
There are many mechanisms for ensuring that a person is not wrongfully convicted. The most effective method of balancing the treatment of offenders with the right to justice of victims is to ensure fairness of criminal trials that establish the guilt of accused beyond reasonable doubt. Therefore, legal systems generally do allow the provision of legal aid in order to ensure a fair trial so that justice is not only done, it is seen to be done.
Capital punishment was considered to be an evil by Beccaria, who otherwise justified punishment as necessary in a social contract. In contemporary times as well, it is seen that there are many people who argue for the abolition of capital punishment (abolitionists). On the other hand, there are many who argue for the capital punishment (retentionists).
Chief Justice Dickson for the Supreme Court of Canada in R. v. Oakes ( 1 S.C.R. 103, at para 29), stated that “An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community as well as other social, psychological and economic harms”.
The problem with death penalty is that a possibility of miscarriage of justice means the end of human life. It is a failure to achieve the desired end of justice and it occurs where there is breach of rights of suspects or defendants due to: (a) deficient processes; (b) deficient laws; (c) absence of factual justification for the treatment or punishment; (d) disproportionate treatment of suspects or convicts vis a vis people whose rights need to be protected; efficient protection of rights of people, (e) state law (Walker, 2004, p. 33). Factual innocence refers to individuals who have been wrongfully convicted for crimes that they did not commit (Anderson, 2015, pp. 6-7). The prevalence of wrongful convictions and miscarriage of justice has led to many people opposing death penalty as it is irreversible. Emmanuel Levinas, said that “justice, the justice that deserves its name... leaves open the possibility of a revision of a judgment once pronounced” (Yost, 2011, p. 57). Yet death penalty is unjust for the simple reason that it violates the ‘‘principle of revisability (Yost, 2011, p. 41).
The retentionists claim that capital punishment has a deterrence value that is useful for crime control (McCafferty, 2010, p. 66). Abolitionists claim that capital punishment is more of a political measure, motivated by political considerations, rather than a measure motivated for its deterrence (Garland, 2011).
Punishment has been justified in a number of theories, written from different perspectives. For Beccaria, punishment is justified because it is authorized by the person chosen to protect the sum total of people’s rights and liberties. For Bentham, punishment is justified because it leads to ultimate social good even if it comes at the price of a few individuals’ happiness. For Grotius, punishment is necessary because nature itself demands that the wrongdoer be punished. Durkheim and Garland speak in favour of punishment from a sociological perspective. Therefore, we see that the perspectives differ but each theory justifies punishment for some ultimate reason which is grounded in some necessity or good that is satisfied by the punishment.
It can be said that punishment is a necessary evil. In order for the evil to not outweigh the good, legal systems around the world adopt safeguards in the manner of defining crime and punishment and laying down criteria for punishment. This ensures that justice is seen to be done and that the accused gets every fair chance at justice.
Capital punishment is the most controversial area of punishment. Even those who support punishment in general, such as Beccaria, may oppose capital punishment on ethical grounds.
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