Punishment is one of the most important topics under criminal law. It is so important because, under the criminal justice system of many countries, it is the major remedy for criminal acts. In this article, we will be considering the two major theories of punishment, their types and criticism.
One would ordinarily conclude that the primary aim of punishment is to deter the offender, and also the general populace from repeating the unlawful act committed. However, a different school of thought would project their basic aim of punishment to be vengeance or to exact retribution upon the offender for the offence committed. There are basically two theories of punishment under criminal law and these theories will be discussed in depth as we continue. We will also take a closer look by explaining the difference forms of the theories.
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Theories of punishment in criminal law
1. Utilitarian Theory of Punishment: Utilitarian theory of punishment or Utilitarianism was propounded by Jeremy Bentham, and in particular, classical utilitarianism. The objective of this system is to ensure general happiness among the populace, thus the belief that the law should concern itself primarily with ensuring that painful and unpleasant happenings are brought to the barest minimum. The desire is for an utopian society where neither crime nor punishment would exist, as both are regarded as unpleasant.
However, since utopia is literally unachievable in our world, utilitarians only exact punishment and any form of pain when it is absolutely necessary, and when it would yield the desired result. This result is usually geared towards the end goal of creating a happier, pain-free society.
The average utilitarian believes that man acts both rationally and spontaneously. The spontaneity arises from the fact that a human would often carry out a conduct which he believes would propel him to another stage of happiness or offer him some more succor.
On rationality, a human would often second-guess carrying out his intent (a criminal one in this case); he would weigh the consequences of that act in relation to the estimated rewards to ascertain what cause of action or non-action would be most beneficial in the circumstances. He would weigh the expected pleasures against the expected pain – the possibility of getting caught, convicted and sentenced.
This theory also proposes that after looking at both sides of the coin, the rational human would opt for the side which he would cause him no or less pain. If the baggage that comes with carrying out the criminal intent outweighs the good, then he’d likely abandon his unlawful quest.
The questions to ask become, is this assumption practical? Would every potential offender take all these into consideration? What is the likelihood that the thought would occur to every one of them or at least, a substantial number?
The uncertainty that this assumption poses is that it perceives every potential offender to be rational and able to make all these calculations and deductions, along with having within his reach all information and resources needed to do so.
Forms of utilitarianism
The application of the theory of utilitarianism in the criminal justice system takes various forms. One form that is particularly stressed is the goal of general deterrence.
When an offender is caught and punishment is meted out to him, it is done in hopes that it would deter the general society from engaging in such crimes like the offender had done, so as to avoid being penalised too. The offender’s punishment serves as an example to convince all the people of the undesirable consequences of repeating such actions.
On closer look, this form of utilitarianism points towards achieving the main aim of the theory itself. When the community is sufficiently deterred by making an example of criminals, it is thought to reduce the number of would-be offenders and make then forego any criminal intent they may have, for fear of being punished too.
A second variety of utilitarianism – related to the first – would be individual deterrence. This one usually occurs concurrently with general deterrence. As the general public is served an example of what would happen if of they were to violate the law, the individual who us being punished is also deterred from repeating such acts. It gives the individual offender a clear-cut experience of the consequence of further misconduct.
A third variety which we would examine is incapacitation. Offenders are often incarcerated or imprisoned for their crimes. In the utilitarian sense, this serves the purpose of physically barring the individual in question from committing crimes anymore than if he were left to roam the streets free, possibly instilling fear in the populace and defeating the purpose of general happiness in the society.
Another variety is rehabilitation. This one is slightly different from the aforementioned. The first three are classical forms of utilitarianism and are concerned with reducing crime by effecting compliance through fear and intimidation.
This particular variety takes a different approach and seeks to reduce crime by reforming the offender. This is often achieved by placing the individual in a correctional facility, therapy or under mental care as the case may be.
2. Retributive theory of punishment: A major difference between utilitarians and retributivists is that the former are concerned with the futuristic outcome; what actions would lead to what results tomorrow. The latter on the other hand, are hinged to the past and focus on administering punishment because of that offences previously committed.
A reteibutivist believes that every individual possess free will and therefore should be held responsible for the choices they make. They believes that when a person violates the law, it is a voluntary act and is borne out of his free will and conscious intent to do so.
Retributivism is an uncompromising theory as it is bent on punishing the last criminal even if all else falls apart. There is no particular concern about whether the penalty issued would reduce crime. Exacting vengeance on the offender is the basic aim here.
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One may ask what the justification for this seemingly harsh position is, and of course, retributivists have a ready answer.
One version, called assaultive retribution or public vengeance believes that it is morally right to hurt the criminal back and hate him for the wrong he has done. On this basis, the society must exact vengeance on him.
Another aspect that springs up from this version is individual vengeance. Under this, it is justifiable for a victim to hate the criminal who has inflicted pain on him and natural for him to want to avenge his cause. This hatred in itself is supposed to represent the victim’s self-respect, being that he would never let anyone trample on him or desecrate his perosnla dignity and get away with it.
On the other hand, we have protective retribution. Unlike assaultive retribution, this version is not concerned with exacting societal vengeance. The reasoning here is that there exists a moral balance in every society; each individual bearing equal rights and responsibilities. The scales are tipped when an individual decides to violate the law, and nothing will be the same if balance isn’t restored.
Punishing the offender, it is believed, is the only way to do this. Here, the criminal’s pain is the ultimate saxriface for societal order to be restored.
If you wish to know more about the theories of punishment, I highly recommend that you watch the video below. It explains more about the theories discussed above.
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In conclusion, it is pertinent to know that both the Utilitarian and Retributive theories of punishment has advantages and disadvantages. Some criminal justice system employs the two theories of punishment in criminal matter. This system is otherwise known as the mixed theory of punishment. It is more widely practiced in the world today.
Edeh Samuel Chukwuemeka ChMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.