THEORIES OF PUNISHMENT
Of the various theories of punishment the following three are the most important and typical-retributive, preventive and reformative.
Retributive Theory
According to the retributive theory the purpose of punishment is to seek revenge. It is the theory described in the old Testament as an eye for an eye and a tooth for a tooth. According to the German philosopher Kant, the offender should not be punished for the reason that it is the means to his or another's benefit but for the simple reason that he has committed a crime. A court of law repays to one only that which he has acquired. He has done crime and it is logical that the reward of his crime, the equivalent of his destructive value, be given to him. The punishment which the society confers upon him, does not deprive him of his right but gives to him that which he has earned and deserves. According to Hegel and Aristotle, punishment is the negative of the criminal, who acquires it by infringing the moral law. It is his award which he must receive. For this reason,when some offenders escape with lighter punishment than the merit of their crimes, they try to reap the reward of their misdeeds by penance. According to Bradley "We pay the penalty because w owe it and for no other reason; and if punishment is inflicted for any other reason whatsoever, than because it is merited by wrong, it is across immortality, a crying injustice; punishment is inflicted for the sake of punishment." In this view punishment is the reward of the violation of moral law. In the words of Sir James Stephen "Criminal procedure is to resentment what marriage is to affection". Thus the purpose of punishment is to vindicate the superiority of moral law. By punishing the person who has penetrated the crime the authority of moral law is vindicated. Bosanquet has enumerated two features of this theory 1. In it personal revenge and punishment coalesce. 2. It has been recognized in this theory that the punishment is quantitatively equal to the crime. Both of these features are defective. Mill and Leslie Stephen have laid great emphasis upon the element of revenge in punishment. The retributive theory has two forms - rigorist and liberal. According to the rigorist retributive theory the criminal should be punished severely for a serious crime. The liberal retributive theory also includes the consideration of the circumstances of the crime.
But even the liberal form of the retributive theory is not satisfactory. It is not essential that the criminal will, after having been punished; realise his mistake in violating the moral law and feel remorse for his misdemeanour. Mackenzie has said, "If the aim of punishment is to vindicate the authority of the law, this will be partly done in so far as the offender is reformed and in so far as is similar acts are prevented. And indeed neither reformation nor prevention is likely to be effected by punishment unless it is recognised that the punishment is a vindication of the law." But this can be possible only when the criminal himself besides the punishment and is prepared to repent for his wrong violation. It cannot be expected, when the punishment has been administered by the state or any foreign agency, that the criminal will repent. In practice it has been seen that a criminal becomes even worse after punishment. Actually, too,t he retributive theory is not practical, it does not remove the cause of crime. Prevention of crimes or transformation of the criminal can be achieved only by preventing crimes or transforming the criminal and not by the punishment. John Dewey has said quite correctly that. "We are not relieved of the responsibility for the consequences of our procedure by the fact that the offender is guilty." It is more important to remove those economic, social, mental and physical causes which spur on the ordinary and the more numerous type of offender Though it is not herein implied that punishment is unnecessary in every circumstances because it sometimes does become unavoidably necessary to mete out punishment.
Preventive Theory
According to the Preventive theory the aim behind punishment is to set an example to others and to prevent them from criminal tendencies. In this way, the objet of punishment is prevention. The theory is expressed by the judge's formula. You are not punished for stealing sheep, but in order that sheep may to be stolen." This theory does not invalidate even capital punishment because though there is no question of improvement of the criminal, the other people derive a lesson not to indulge in homicide.
Criticism
The major defect of this theory is that it uses the offender as means and not as an end. This does not effect any improvement in the culprit. He is made the means of the improvement of others. This theory is incorrect from the practical view point. Actually everyone cannot become a criminal. People who know how to respect laws are in need of any such exemplary exhibition. On the other hand, those who have criminal tendencies can be prevented from crime by necessary preventions and the removal of conditions constituting the breeding ground of crime. To punish a man in order to convey a lesson to others is improper and inhuman. This theory is more defective than even the Retributive theory
Reformative Theory
According to the reformative theory, the aim of punishment is the improvement of the offender himself. The modern age seems generally to favour and apply this theory. In this theory, the behaviour directed at the criminal shows him the consideration due to an individual and not conduct analogous to treatment of objects and means. An offender is punished for his own benefit. This theory has been supported from many viewpoints. Some of the major ones are the following:
1. Criminal Anthropology - The Modern criminal anthropology propounds that crime is a disease, a pathological state or the state of inherited or acquired degeneration. Thus, it is necessary to treat a criminal instead of punishing him. Hospitals, lunatic asylums and welfare homes are better adapted to the execution of projects to decrease crime than prisons. Crime is not the result of a wilful violation of moral law. The most useful causes of crime are mental or physical defects. For example,kleptomania forces the patient to steal.
Criticism: The major short-coming of this theory of criminal anthropology is that it assumes the causes of a limited number of crimes to be the causes of all crimes. If some person steals due to kleptomania he should undoubtedly be interned in a hospital rather than jail but the number of kleptomaniacs is negligible among the number of thieves. All crimes cannot be attributed to diseased conditions. Criminals who resort to illegal means due to mental or physical deformities form only a very small minority in the realm of criminals. Thus people who commit crimes due to reasons other than these should be cured by other methods.
2. Criminal Sociology: Criminal sociology phases the responsibility of social circumstances for crime. Thus it is more efficacious to induce improvement in social and economic conditions, to remove inequalities and immoralities, than to punish the criminal. Crimes can be stopped not by punishment but by the organization of human society on the basis of justice and equality.
Criticism: The opinion of criminal sociology is as partial as is the opinion of criminal anthropology. Social equality is, of course, the cause of some crimes and can be credited as such. But the causes of all crimes cannot be analyzed in this way. Many people commit crimes while fully conscious of the fact. And, especially the crimes of white collar criminals cannot be included in the explanation offered by criminal sociology.
3. Psychoanalysis; Psychoanalysis joins hands with criminal anthropology and sociology in supporting the reformative theory. According to Freud and his followers, crimes are caused by repressed complexes and tendencies of sex and jealousy caused by desires and frustrated sexual passions. Thus, education and psychoanalytic treatment is needed for preventing crimes instead of punishment. Crime is mental or neural disease which can be eliminated by searching out repressed unconscious complexes and transporting them to the conscious level,finding their causes and effecting their sublimination through means acceptable to society.
Criticism: The psychoanalytic suggestions, too hold true only in relation to particular criminals. Actually, this opinion is not universally true as was the case with criminal anthropology and criminal sociology.
Reformative Theory is Superior to others
The reformative theory is effective in all such conditions in which the criminal commits the crime in ignorance and compelled by circumstances or where this criminal tendency is attributive to a mental or physical defect. But the reform of a criminal who wilfully violates moral laws is not so easy a proposition. Thus for some criminals it becomes unavoidable to arrange for punishment. It can be said that the reformative theory is the most superior among the theories of punishment because it is compatible with the modern humanitarian ideals and seeks to eliminate the causes of and prevent crime but it cannot be applied to all crimes. Some crimes are more conductive to the preventive theory.
Dr. Saju Chackalackal CMI (http://dvk.academia.edu/SajuChackalackal/CurriculumVitae)
Dean, Faculty of Philosophy, Dharmaram Vidya Kshetram (www.dvk.in)
HoD, Department of Philosophy, Christ University (www.christuniversity.in)
Director, Globethics.net India (www.globethics.net) (http://www.globethics.net/web/guest/globethics.net-india)
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Email: saju@chackalackal.com / sajucmi@gmail.com
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