Prior to the 1700s all through the 1800s implementation of constitutional governments in Western Europe, penalties were administered arbitrarily, based on the impulses of local nobles and monarch to whom they confer the power to administer punishment.
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Therefore very little balanced categories of penalties was applied, such that capital punishment was applicable for any crime, ranging from extreme treason and murder to averagely minor theft; as embedded in a certain adage “one might just as well be hanged for a sheep as a lamb” (Hudson, 1996, p. 19).
As punishment is term used to signify anything painful; for instance a “punishing exercise program ’’ or a “punishing work schedule .’’ punishment is also used in the context of teachers or parents disciplining a child. Nevertheless, in this paper I will examine punishment from the perspective of a crime committed.
According to Flew (1954 cited in Bean 1981, p. 5) punishment from the perspective of a sanction administered for a criminal offense, comprise of five elements including:
- It has to inflict an unpleasantness to the victim;
- It has to be imposed for a genuine or supposed offense;
- It has to be imposed on a genuine or supposed offender;
- It has to be the action of personal agencies but not a natural outcome of an offensive action;
- It has to be imposed by an institution or authority whose laws has been violated.
Any act outside this requirement disqualifies the act from being a punishment and it essentially pass as a hostile act. Correspondingly, a direct act by an individual without any special power does not appropriately qualify as a punishment, but rather as a hostility or retaliation.
Forms of punishment
A swing in penalty theory has occurred over a period of time and this implicates a change in the rationale of punishment because of range of reasons such as social campaigns, public policy, and politics. Subsequently, the initial concern on deterrence as the major justification for punishment paved way to a consideration on rehabilitation and reform. Consequently, this led to a refocus to punishment determined by a perception of just desert and retribution.
Effects of Deterrence
Individuals are essentially deterred from committing an offense when they have an aversion to the likely outcomes of such actions. Although penologists consider penalties as indeed a deterrent, it is challenging to establish whether the mode of punishment or its severity determines whether a specific penalty is efficient.
Various questions have been posed concerning the moral credibility of deterrence. These critiques argue that this mode of punishment is impractical by virtue of being infeasible, and when deterrence verdicts are not helpful, punishment from deterrence is morally improper (Walker, 1991).
To utilitarian theorist including Bentham, the rationale behind a punishment is that the harm it impedes exceeds the harm imposed on the criminal by punishing (Hudson, 1996). Based on this viewpoint, unless penalty deters more crime, it basically augments the entirety of human suffering.
Alternatively, utilitarian justify punishment by considering the associated benefits or outcomes. In this argument, utilitarian philosophy regards only the optimistic and the pessimistic repercussions resulting from an act as morally important (Ten 1987).
Based on study by Beylevel (1979, cited in Hudson 1996, p. 23) there is no scientific basis predicting the effects of an overall deterrence policy that excludes an impractical disruption of human privileges, will impact positively on the crime prevalence. Nevertheless, it has been proven in certain circumstances that specific legal sanctions have accomplished deterrent outcomes.
Such outcomes are not, nevertheless, cannot be projected outside the circumstances that were analyzed. With the current level of intelligence, executing an official deterrence policy can be denoted to a political resolution to pacify public outlook.
Retribution is a perception that upholds punishment on the basis that it serves the offender right. Systems of retribution have existed since time immemorial, with the popular Biblical lex talionis, such as “an eye for an eye, a tooth for a tooth, and life for a life” (Hudson 1996: 38).
Rubtributionist suppose a moral connection between punishment and offense, and view penalty as matter of accountability (Bean 1981). Retribution is society based, in the sense that the society develops a set of laws which the retributivist must accept regardless of what they may be.
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Various explanations have been proposed to support retribution, such as the impression that is more or less a payment of debt on the side of the offender to the society (Walker 1991). Further, he observes that aforementioned notion perhaps confuses the society and the offended on the grounds that offenders are not perceived as accountable for compensation of the victims; in fact if at all the society is resituated, it is because of violation of its peace.
Censure which is another component of retribution means holding a person accountable for their actions and entails communicating to the perpetrator that they deliberately harmed a person and the society disapprove such misconduct (Hirsch 1994). The society expects the offender to show remorse or concern to the victim. In addition, the censure sanction via criminal law offers third parties the rationale for avoiding offense; deterrent consequence.
Theorist like Duff (cited in Walker, 1991), appreciate the benefit of punishment from the perspective of the offender, wherein it restores him or her to the society just like the way penance do the church communion.
Another philosopher called Nozick (cited in walker 1991, p. 81) argues that punishment is communication from those who are presumed morally upright to a person whose conduct express some elements of improper and non-normative standards. Rules, as a replica of transactions concerning promises, develop system of normative actions, such as “penalizing rules” which define the measures to be undertaken against the violators of the se rules (Garfinkel in Walker 1991: 84–85).
Rehabilitation involves analysis of the criminal and the offense, alongside consideration of the offender’s social background and the penalty. In addition, rehabilitation theories recognizes the chances of additional challenges arising during the verdict or treatment of the criminal , which may be related with the crime and which may necessitate the offender to undergo certain treatment or be confined for a period of time (Bean 1981).
According to Ten (1987), utilitarian theories argues that penalty should rehabilitative or reformative impact on the criminal. The criminal is regarded reformed since the outcome of the punishment involves a transformation in the offender’s principles such he or she desist from committing more offenses, having realized depth of its inappropriateness.
Such transformation can be isolated from basically refraining from committing offenses because of fear of its consequences; to imply deterrence and not rehabilitation or reformation by punishment.
Supporters of rehabilitation in the context of punishment claim that punishment should be adjusted to meet the offender’s needs instead of corresponding to the crime.
This notion is based on believe that criminals should be rehabilitated so that they don’t repeat the crime, and the society should be held accountable for the treatment of the offender. Rehabilitation theory considers offense as the indicator of a social problem and views the goal of rehabilitation as resolving the problem. Essentially, the rehabilitative viewpoint refutes any relation between punishment and guilt (Bean, 1981).
Although punishment may be aimed at compensating the victim of an offense, some crimes cannot be completely settled. In addition, punishment sometimes may not guarantee that the offender cannot turn back to crime. This indicates that further studies should be conducted to develop more efficient system of punishment to help curb down crime rates and achieve full compensation for all offenses.
Bean, P. 1981. Punishment: A Philosophical and Criminological Inquiry. Oxford, England: Martin Robertson.
Hudson, B. 1996. Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory.
Ten, C. L. 1987. Crime, Guilt, and Punishment: A Philosophical Introduction. Oxford, England: Clarendon Press.
Andrew von Hirsch, A. 1994. “Censure and Proportionality.” Pp. 112–132 in A Reader on Punishment, edited by Antony Duff and David Garland. Oxford: Oxford University Press.
Walker, N. 1991. Why Punish? Oxford: Oxford University Press.