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    Saturday, 21 October 2017

    Different Theories of Punishment

    1. INTRODUCTION
    A proper theory regarding a system of punishment has been subject of debate for many centuries. With the passage of time various theories have been proposed with special reference to the contemporary legal systems; each theory having its particular merits and demerits.

    2. DEFINITION OF CRIME
    Some definitions of crime are as follows;
    (i) According to Black's Law Dictionary:
    "A positive or negative act in violation of penal law, an offence against the State."
    (ii) According to Law Lexicon
    "A crime is an act or omission which is prohibited by law as injurious to public and punished by the State."
    (iii) According to Kenny
    "A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment."

    3. DEFINITION OF PUNISHMENT
    Punishment is a mean to inflict pain or loss upon a person of his misdeed.
    (i) According to Law Lexicon
    'Punishment is penallyfor transgression of the law."
    (ii) According to Black's Law Dictionary
    "Any fine, penalty or confinement inflicted upon a person by authority of the law and the judgment and  sentence of a court, for some crime or offence Committed by hurl) or for his omission of a duty enjoined by law.
    (iii) According to Lord Denning
    "Punishment is the emphatic denunciation of a crime by a society."

    4. DEFINITION OF CRIMINAL JUSTICE
    "Criminal justice is the body of law dealing with offences which may results in the imposition if punishment, such as fine or imprisonment."

    5. FUNCTIONS OF CRIMINAL JUSTICE/LAW

    (i) Preservation of life.
    (ii) Protection of individual property.
    (iii) Protection of state & country.
    (iv) Exigencies of good government.
    (v) Maintenance of public peace & tranquility.
    (vi) Up keeping of morality and culture.
    (vii) Prediction of rights & liberties of people
    (viii) To condemn the crimes, criminals & violation of law.

    6. CHARACTERISTICS OF PUNISHMENT

    According to H.L.A. Hart punishment must contain following characteristics;
    i. It must involve pain or any other consequences normally considered unpleasant.
    ii. It must be for an offence against legal rules.
    iii. It must be against an actual or supposed offender for his offence.
    iv. It must be intentionally administered by human beings other than the offender.
    v. It must be imposed and administered by the authority constituted by the legal system against which the offence is committed.

    7. PURPOSE OF PUNISHMENT/OBJECT OF CRIMINAL JUSTICE:
    The main object of punishment is the prevention of crime, and every punishment is intended to have a double effect i.e.
    (i) To prevent the person who has committed a crime from repeating the act or omission.
    (ii) To prevent other members of the community from committing similar crimes.

    8. REACTION TO CRIME
    Reaction to crime has been different at different stages of human civilization and even at a given time, it has been different in different societies. It has been rightly said that the attitude towards crime and criminals at a given time in a society represents the basic value of the society. Under changing attitude in various societies, three types of reactions can be distinguished;

    (i) Punitive Approach:
    It regards the criminal as a basically bad and dangerous sort of person and object under this approach is to inflict punishment on the offender in order to protect the society from his onslaughts.

    (ii) Therapeutic Approach
    This theory regards the criminal as a victim of circumstances and a product of various factors within the criminal and society. This approach, since it regards the criminal as a sick person, requires treatment.

    (iii) Preventive Approach
    This approach, instead of focusing attention on particular offenders, seeks to eliminate those conditions which are responsible for crime causation.
    Note: But none of these approaches exists independently from others. Not only do they overlap each other but they also co-exist in certain systems.

    9. THEORIES OF PUNISHMENT


    There are two main schools of thought, they are;

    (A) UTILITARIAN THEORY
    Utilitarian view means ideas based on the notion that the the help of criminal law. They do not highlight or support one set of punishments. Utilitarian accept punishment only for achieving good consequences/results:

    (i) Types/Kinds of Punishments:
    Following are the types/kinds of punishments with respect to their object;

    (a) Useful Punishments
    They achieve good consequences/ results and include retribution, deterrence, compensation and prevention.

    (b) Needful Punishments:
    This is a comprising situation. They believe that punishments under this head do not achieve good consequences/results but have to be awarded out of need.

    (c) Valueless Punishments:
    This is the level where the utilitarian believe the punishments involve more evil than what it purports to solve. This is an emergency situation where law should be situated. Thus this throw believes in the utility of punishments; when the level of utility decreases the need to substitute law arises.

    (B) RETRIBUTIVE THEORY
    According to retributive theory, punishment means "repairing an injustice" or "making. a `wrong "right". In primitive society, punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrong doer. The principle of "an eye for an eye", and "a tooth for a tooth" was recognized and followed.

    According to this "commission of a crime is a debt due to law, and this debt is paid up with punishment is suffered." This view is base on the maxim that.

    Guilt + Punishment = Innocence
    (i) Kant's View
    According to Kant that, "the principles of justice require that we punish the blameworthy. On Kant's view, b punishing people who commit crimes, a community is treating- them as moral agents. It is holding a person responsible for his or her own actions. Moreover community that does not punish crime is participate in the "public violation of justice."

    (ii) Bentham's View
    According to Bentham vengeance, is one of the biggest pleasures of man, and retributive theory satisfies this instinct or pleasure. It is based on an assumption that since 'revenge' is a basic, most important instinct of man, if it remains unsatisfied through the public system of punishment, every victim will adopt his own means to satisfy this instinct. This would lead to chaos and lawlessness in the society.

    (iii) Division of Retributive Theory
    We may divide the theory as follows;

    (a) Negative Retributivism
    Negative retribution holds that it is morally wrong to punish an innocent person even if society might benefit from the action.

    (b) Positive Retributivism
    It holds that one who is guilty of an offence must be punished. Punishment is imperative in this case.

    i. Assaultive Retribution:
    This is the view that a person is justified in hating the criminal. By victimizing a person, the criminal has declared himself elevated over that persona If the criminal suffers in proportion to the suffering of the victim, his elevation is denied, and "moral reality is reaffirmed".

    ii. Protective Retribution
    It is based on the principle that to punish a criminal is to exact form him what he owes it is to treat him as a moral agent When a person commits a crime he owns something to others, something that does not rightfully belong to him. Justice restores the equilibrium of benefits burdens by taking from the individual what he owes i.e. exacting the debt.

    (iv) Criticism/Objections
    Critics point out that punishment in itself is not a remedy for the mischief committed by the offender. It merely aggravates the mischief. Punishment in itself is an evil and can be justified only on the ground that it is going to yield better consequences/results. Revenge is wild justice.

    (a) It is Revenge Oriented
    In the late 16th Century, theory was opposed by the church. It said that forgiveness is' a greater virtue than revenge. Therefore a true Christian shall not take revenge.

    (b) It is Against Humanity
    Man is a moral being, though the pleasure of vengeance is there but morality and ethics come above it. It is Gad who would punish the offender. Therefore selfish desires should be set aside for the sake of morality and humanity.

    (c) It is Very Primitive
    Lord Donald considers it to be a primitive theory which was suitable for ancient societies. Today its application would mean a system based on private punishment rather than a public.
    (d) It does not consider the reformative approaches to transform a criminal.
    (e) Retribution is possible only in cases of physical injuries or crimes. It cannot be applied in property or traffic crimes.
    (f) It only considers the crime and not the circumstances of criminal. It generates enm between people.

    10. SUB-APPROACHES TO PUNISHMENTS

    Besides the main schools i.e. Utilitarian and Retributive, there are some other approaches as well, which are as follows;

    (I) DETERRENT THEORY:

    It is one of the oldest theories of punishments and its roots have been traced back to the Roman times. Deterrent theory can be described as consequentiality in nature. It looks forward in time and aims to achieve a preventive measure by deterring an offender from committing crimes in future.
    According to this theory, "by punishing, one person other like minded persons are warned, they may think before taking law in hands."

    (i) Salmond's View/Supporter of Deterrent Theory
    Salmond considers the deterrent aspect of punishment to be the most important. He states that punishment is before all things deterrent and the chief end of the law of crime is to make the evil doer an example or a warning to all that are like-minded with him. Professor Locke is also a great supporter of this theory.

    (ii) Principle
    The underlying principle of deterrent theory is that punishment should exceed in proportion to the crime committed. According to Benthem this, theory is self-defense mechanism. When an offence is committed the society, in order to defend itself, reacts in an aggravated manner causing the quantum of punishment to increase.

    (iii) Criticism/Objections
    (a) Ineffective in Checking Crimes
    The deterrent theory has proved to be ineffective in checking crimes. Even when there is a provision for very severe punishments in the penal law of the country, people continue o commit crimes.

    (b) Arises Public Sympathy
    Excessive harshness of punishment tens to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishment.

    (II) PREVENTIVE THEORY

    Another object of punishment is preventive or disabling. The offenders are disabled from repeating that offence by such punishments as imprisonment, death, exile, forfeiture, of the offence etc. According to this theory, "the repetition of the offence by the same offender is prevented by imposing penalties such as death exile, imprisonment etc.

    (i) Paton's View/Supporter of Preventive Theory
    The preventive theory concentrates on the prisoner but seeks to prevent him offending again in future. Death penalty and exile serve the same purpose of disabling the offender. Justice Holmes is also great supporter of this theory.

    (ii) Principle
    The underlying principle is that the law threatens certain pains, if you do certain things, intending thereby to give you a new motive for not doing them.

    (iii) Example: Preventive punishments is the cancellation  of driving license of a person. As he has no license,. he is prevented from driving. Similarly by hanging a murderer, he is disabled from repeating that crime.

    (iv) Criticism/Objections
    (a) When an offender is detained or disabled, the family members also suffer the consequences / results especially where the offender is the sole earning member of the family.
    (b) Jails which are the main form of punishment under this theory having turned into crime schools thus providing an opportunity to convict to turn into a hardened criminal.
    c. Preventive punishments are of temporary nature. They do not appeal to the conscience of the criminal rather they force the criminal to commit the crime again.

    (III) REFORMATIVE THEORY

    Reformative theory is a part of the therapeutic approach. This theory believes that an offender is a product of his circumstances and if it were not for those circumstances, he would not have committed the crime. According to this theory, "there should be reformative and training centers. where the criminal should be bought and educated during this period of imprisonment."

    (I) Supporter
    Professor Jennings is a great supporter to this theory.

    (ii) Object
    The object of punishment, according to this theory, is to transform the criminal into a good human being and a good citizen. The advocates of reformative theory contend that by a sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their character.

    (iii) Criticism/Objections
    (a) Habitual offenders are excluded from this approach. Since hardened criminals cannot be reformed because they don't commit crimes out of necessity rather out of instinct.
    (b) Since prisons are comfortable the offender may think of them• as an escape from the out side world.

    (IV) COMPENSATION THEORY

    The compensation theory is a part of the traditional approach with a utilitarian aspect: According to this theory, the punishment must not be merely to prevent further crimes but also to compensate the victim of the crime.
    i) Purposes
    (a) To compensate the victim.
    (b) To deprive the offender of his property or possession as a punishment. Taking away property is worse than isolating him or killing him, physical torture or humiliation. This is because property is a main weakness of man.
    (iii) Criticism/Objections:
    (a) It tends to over simplify the motives of the crime. The motive of a crime is not always economic.
    (b) If the offender is a rich person, the payment of any amount may be no punishment for him.
    (c) The offender who has no property cannot be punished.
    (d) Taking away property may lead to frustration and more crimes may be committed out of this frustration.

    11. CONCLUSION

    Criminal justice aims at awarding punishments and has various objects and theories in view in punishing offenders. Perfect system of criminal justice cannot be based on any one theory of punishment. Every theory has its own merits and demerits. For a just criminal and harmonious criminal system to exist an amalgamation of all the positive attributes of each theory should be adopted.
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