Wringe argues that punishment must consist in harsh treatment to communicate to society that violation of norms is taken seriously. Mar 14, 20 1 elaborate the various theories of punishment in criminal law 10m there are four theories of punishments, namely, retribution theory, deterrent theory, and reformation theory. It gives a forward looking justification and a backward looking justification. Unlike the forwardlooking and backwardlooking models, the automaton does not adjust to the situation. In punishment and responsibility, his collection of seminal essays published in 1968 and written over the previous decade, hart contrasted the traditional, backwardlooking retributive theory of kant with the more modern, forwardlooking utilitarian approach of bentham. Such justificatory theories tend to be either forward looking e. Utilitarian theorists are forward looking as opposed to retribution theorists, discussed below.
Jan 15, 2015 in a way, the theory is forward looking but in most cases the causation and effect can be very different. The reasoning may be to condition a child to avoid selfendangerment, to. It is one of five objectives that punishment is thought to achieve. The term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for certain purposes. It combines kant and mill resulting in kill, which is prima facie absurd d. Utilitarianism, kantian ethics, natural rights theories, and religious ethics a utilitarian argument, in the strict sense, is one what alleges that we ought to do something because it will produce more total happiness than doing anything else would. The various theories of punishment in criminal law essay. Deterrence in relation to criminal offending is the idea or theory that the threat of punishment will deter people from committing crime and reduce the probability andor level of offending in society. Under the utilitarian philosophy, laws should be used. Punishment is proper if imposition of pain will reduce the likelihood of future crimes.
His account was designed not only as an element of his theory of the state, but also in response to a set of early modern debates concerning the nature of punishment in contractarian political thought. Forward looking theories according worldto forward looking theories of punishment, punishments are justified to the extent mightthat they bring about future good removingresults. Censure theory still best accounts for punishment of the. A critical analysis of retributive punishment as a. A critical analysis of retributive punishment as a discipline. Now we shall consider theorists whose energies are devoted, not to generating in us skepticism of the practice, but to justifying the practice so that we may be at home in it. Firstly, a kid who falls down and kicks the floor inadvertently. This argument challenges the claims, frequently advanced in the critical. Theories of labeling, social control, and conflict are. Theories of punishment can be divided into two general philosophies. The practice of punishment must be justified by reference either to forwardlooking or to backwardlooking considerations. Deweys rejection of retributivism and his moraleducation. Punishment theory generally neglects the topic of prison conditions and administration, 1 how imprisonment can affect individuals in vastly different ways, 2 and the fact that prisons vary a great deal from one another. If you describe someone or something as backwardlooking, you disapprove of their.
If the former prevail, then the theory is likely to be consequentialist and probably some version of utilitarianism, according to which the point of the practice of punishment is to increase overall net social welfare by. Punishment is justified in so far as it produces some net social benefit. Over recent years, sentencing reform has reflected a resurgence of interest in incorporating forwardlooking assessments of an offenders risk of future crime, in keeping with utilitarian or crime control theories of punishment. Accordingly, a variety of forwardlooking consequentialist justifications for legal punishment have been developed which focus on its potential future benefits. A teleological theory would consider the punishment as the means to some good, either general or individual. Another policy instigated to increase the prison population and the uses of imprisonment as punishment were truthin. This tradition of resultbased differential punishment. May 05, 2012 utilitarian theorists are forward looking as opposed to retribution theorists, discussed below. These theories create different shades and effects in the criminal jurisprudence. There are various theories trying to avail the purpose of punishment. Theories differ in terms of what those results are. Act utilitarianism au is the moral theory that holds that the morally right action, the act.
Deterrence theories one goal of punishment is to bring about less crime. Deweys rejection of retributivism and his moraleducation theory of punishment john shook this essay examines the two important arguments that john deweys social philosophy offers against the retributivist justi. According to forward looking theories of punishment, punishments are justified to the extent that they bring about future good results. A utilitarian approach, then, is a kind of consequentialism and is often said to be forward looking, in contrast to retributivists backward looking approach. A critical analysis of retributive punishment as a discipline measure in nigerias public secondary schools. Accordingly, a variety of forward looking consequentialist justifications for legal punishment have been developed which focus on its potential future benefits. Whats wrong with harmless theories of punishment request pdf. These guidelines provide a range of time to which an offender could be sentenced, and for the first time, this comes with a minimum sentence. Anselm on the character creation theory of punishment. Deterrence, incapacitation, and rehabilitation are all arguments that look to the consequences of punishment.
Perceptions of rehabilitation and retribution in the criminal. Punishment may also involve various types of informal sanctions by family, peers, and extralegal groups like vigilante committees and paramilitary organizations to promote their own interests. Over recent years, sentencing reform has reflected a resurgence of interest in incorporating forward looking assessments of an offenders risk of future crime, in keeping with utilitarian or crime control theories of punishment. Backward looking moral theories the proponent of the backward looking moral theory argues that we should do what we can to mitigate the effects of moral luck while we do not have much control over the world, we can exercise control over our. Utilitarianism, kantian ethics, natural rights theories. The basic utilitarian theories are deterrence and rehabilitation. Basing the justification of punishment on such results, i point out, makes it very difficult for a forward looking theory to account for the intuition, since there will often be times when a disproportionate response to the nature of a past crime would have the best results. The aim of inflicting punishment is to curtail the crime. Utilitarian and retributive in the previous chapter we considered arguments of radical critics who seem to challenge the whole practice of legal punishment. While traditional theories regarding the justification of punishment. Justifications for the death penalty from the text book two justifications of punishment.
Although restitution is considered in this paper on consequentialist theories of punishment, it is not purely or exclusively forward looking in order to look forward to what must be done to restore the victim to the status quo ante, it must look back at what that position was, and determine the effect of the crime on the victim. Capital punishment internet encyclopedia of philosophy. The retributive theory seeks to punish offenders because they deserve to be punished. Philosophies of punishment punishment serves numerous socialcontrol functions, but it is usually justi. The rise of the punitive era of punishment in the united states is the result of a multitude of influences. All of the questions about the justification of punishment general justification, title and severity will be answered by appeal to the utility value of the. Utilitarian justifications are forwardlooking consequentialistic in nature. Forward looking moral theories can be contrasted with backward looking theories a backward looking moral theories focus on the quality of an agents will and not on the consequences of their actions.
A retributive theory, on the other hand, sees the primary justification in the fact that an offence has been committed which deserves the punishment of the offender. Perceptions of rehabilitation and retribution in the. Philosophy 338 professor hubin the utilitarian theory of punishment i. Basing the justification of punishment on such results, i point out, makes it very difficult for a forwardlooking theory to account for the intuition, since there will often be times when a disproportionate response to the nature of a past crime would have the best results. Utilitarian theories of punishment describe different forms of punishment which seek to discourage wrong behaviour or criminal tendencies among individuals in society. Punishment means, it is the redress that the commonwealth takes against an offending member 1 punishment is some sort of social censure and not necessarily involving physical pain. Forwardlooking theories according worldto forwardlooking theories of punishment, punishments are justified to the extent mightthat they bring about future good removingresults. I also argue that rival backwardlooking theories, when not in ad hoc. Within the criminal justice system, incapacitation is the response used.
The goal of utilitarian theorists is to prevent a crime from happening again. Most theories appeal to punishment s effects on the future or facts about the past. The utilitarian theory of punishment seeks to punish offenders to discourage, or deter, future wrongdoing. Issn 2321 4171 critical analysis of theories of punishment mere denunciation of crime is not. That is, they look to the future in deciding what to do in the present. Most theories appeal to punishments effects on the future or facts about the past. Also, the idea of making an example out of an offender runs counter to the proportional punishment which has been long championed by retributivists. Punishment is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority in contexts ranging from child discipline to criminal lawas a response and deterrent to a particular action or behavior that is deemed undesirable or unacceptable. In a general sense this means that the punishment for a certain crime needs to be greater than the possible reward for committing the crime.
How the prison is a black box in punishment theory. Deterrence swift, strict, certain specific deterrence that person. Consequentialist theories are forward looking in that what justifies punishment is the hope of future benefits. A theory of differential punishment jack boeglin zachary shapiro a puzzle has long pervaded the criminal law. Theories of punishment legal definition of theories of punishment. The checks and balances approach that i advance differs from most traditional mixed theorist approaches in that, whereas the mixed theorist ap. An underlying principle of deterrence is that it is utilitarian or forward looking. A utilitarian approach to justifying capital punishment appeals only to the consequences or effects of death being the penalty for serious crimes, such as murder. Perceptions of rehabilitation and retribution in the criminal justice system. Although restitution is considered in this paper on consequentialist theories of punishment, it is not purely or exclusively forwardlooking in order to look forward to what must be done to restore the victim to the status quo ante, it must look back at what that position was, and determine the effect of the crime on the victim. It does not require desert for the crime to be punishable.
Punishment is justified because, it is claimed, it helps to control crime. According to a deterrent theory, the reason we punish is, not the moral nature of the crime itself, but rather the need to prevent future crimes. Backwardlooking definition and meaning collins english. The backwardlooking model has no goal, but adjusts to the situation by giving in to the pattern of rewards and punishments.
A read is counted each time someone views a publication summary such as the title, abstract, and list of authors, clicks on a figure, or views or downloads the fulltext. Backward looking moral theories the proponent of the backward looking moral theory argues that we should do what we can to mitigate the effects of moral luck while we do not have much control over the world, we can exercise control over our will when we morally evaluate an agents actions we. We should combine church and state and obtain a blended view of punishment c. Theories of punishment legal definition of theories of. Fair system of distrubtion social good in the future. Incapacitation refers to the restriction of an individuals freedoms and liberties that they would normally have in society.