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What is the Most Credible Justification of Punishment?

Punishment has been a part of the human society ever since the beginning of civilization. Throughout the history, wrong doings or wrong acts have simply stood out like sore thumbs, greatly affecting the very emotions of man. These wrongful acts, which have been later termed as crimes, are as noticeable as kind acts but the only difference is that the former harbours condemnation than praise; punishment than reward. Man sees such crimes as condemnable especially those that are heinous such as rape, murder, arson, genocide and other types that puts humanity into shame and the community into disarray. Wrongdoers who have been accused of committing crimes would be brought into trials to give them the chance to defend themselves. However, if they fail to do so, then the hands of justice will strike them down and cast down on them the necessary punishment they deserve according to the legal laws created by the governing bodies. When this happens, people will say that “justice has been served” or that the criminal “got what he deserves”. Some will feel that the punishment is necessary to avenge the man or the woman who have been seriously wronged by the offender. Other people will see that this type of action is necessary in order for the criminal to realize the sins he has committed. Greek philosophers of the past realized this too early when Socrates stated that “to serve as a corrective measure that would be of benefit to the criminal by helping him to overcome his evil tendencies” (Patterson, 1985, p.44). There would also be those who will acknowledge punishment because they will see it as something that benefits the whole community or the country. For instance, when a corrupt president is ousted and sentenced with capital punishment, people will rejoice because they will see it as something beneficial not only to a certain individual, but to the whole country as well. These are just some of the common views toward punishment that can be observed in our everyday lives, from commentaries in newspapers, news on the television and the radio, to simple informal conversation with acquaintances, friends and relatives. It seems that punishment is already deeply embedded within the very core of human civilization and most have accepted this act without question. However, in a philosophical sense, punishment in all its form has many loopholes, problems and questions that need to be resolved.

Existing punishment theories such as Consenquentialism and Retributivism have tried to defend the importance of punishment to human society – how it can benefit the society, the victim, and the offender or the criminal.

According to Duff, cited in Hart (1968, pp.1-27), “there are three justificatory issues that must be addressed in order to justify punishment. The first thing that should be asked is the ‘general justifying aim’ of a system of punishment. We should identify what justifies the creation and maintenance of such a system – what good does it achieve and what duty does it fulfil. Next is to identify who may properly be punished. It this case, the principles or aims that should determine the allocations of punishments to individuals should be identified”. Finally, the theorists should know the appropriate amount of punishment needed and the factors that would affect the severity a sentence the sentencers should impose. Duff (2004) added that “philosophers should also know which concrete modes of punishment are appropriate, in general or for particular crimes”.

These four main questions should reveal an acceptable justification of punishment. Unfortunately, each type of punishment theory offers a different type of answer to all of those questions. In this sense, the values of one may clash with the other, creating more doubt and confusion than realization. Basically, the Retributist and the Consequentialist or a Retributist-consenquentialist all compete in providing most justifiable explanation of punishment. Among these three, there could be a normative account of punishment that is morally acceptable to society. After all, it is the responsibility of theorists to provide an acceptable explanation of this human act. However, as Duff (2004) stated, “philosophers must be prepared or must be open to the startling and disturbing possibility that this “pervasive human practice cannot be justified.” Now, with all these issues at hand, is there a theory that best justifies punishment or is there hardly any? Is there a credible justification of punishment?

Understanding Punishment and its Purpose

To have an understanding of which type of punishment offers the most credible justification of such pervasive human act, we must first have an understanding of the concept of punishment.

Punishment is always coined as legal because of it is written in the legislation. Generally, it is defined it as “…first a cultural process and secondly a mechanism of particular institutions, of which criminal law is but one” (Simon, citing from Newman, 1983, pp. 2-3). In a non-general specific account of legal punishment, Hart’s “five elements of legal punishment” offers an interesting explanation: the involvement of pain or other consequences that are unpleasant; the involvement of an offence against legal rules; an act that is of an actual or supposed offender for his offence; administered intentionally; and finally, only the authorities can impose and administer such an act or in the old cliché “nobody is above the law” (Hart, 1968, pp.4-5; Zaibert, 2005, p.225; Gottschalk, 1999, pp.195-196).

On the other hand, ideologies such as retribution, deterrence, incapacitation, and rehabilitation offer some alternative definition of punishment (Wilson, 1975, pp.6-12; Allen, 1981, p.1; Gottschalk, 1999, pp.195-196; Hoffman, 2002, pp.1-2; Jiang et al, 2007, p.85). The different views basically shape the current application of punishment in today’s world as it encompasses from an individual to a broader cultural belief. Further, these different views have their own justification of punishment.

Within the definitions of punishment also come the two types laws specifically mandated for punishment: civil and criminal law. Duff (2004) explains that “civil law deals in part with wrongs which are non-private in that they are legally and socially declared as wrongs, but at the same time, private in that it is up to the person who was wronged to seek legal redress”. On the other hand, a criminal case refers to a case” between the accused criminal and the whole political community, the state or the people, and the defendant” (Duff, 2004). Nonetheless, Duff (2004) explained that “it is difficult to distinguish the civil from the criminal law”. The problem is to determine which crimes should be accepted as public and which crimes should be accepted as private ones. Should it be that all crimes are both public and private in a sense that it has wronged both the norm and the individual? Should the crime committed against the society be the ultimate justifiable explanation of punishment or should it be more focused on the crime committed against the individual? It can be argued that none of these accounts are credible enough to justify punishment since from every angle, it is also an act that the society detests and it is a horrifying gruesome act if not mandated by law. McDermott (2001, p.403) stated that “punishment is morally troubling because it almost always causes human suffering”. For instance, throughout the history of punishment in the United States, those who had committed the most severe forms of crimes have suffered in cruel and painful methods such as “hanging during 1853, the electric chair, the gas chamber, and the latest most humane type of capital punishment, the lethal injection” (Turley, 2008, p.13a). “Means of punishment have changed over time but the ends have always been the same – bringing pain to the sentenced. Even though the government claims that new forms of punishment are less painful such as the lethal injection, cases of botched executions are still taking place causing much more pain to the punished” (Turley, 2008, p.13a). Basically, the cries of the society to abolish the death penalty or to lessen the pain that is involved with it also shows that humans can instinctively feel uncomfortable that such acts are nearly as heinous and horrible as the acts committed by the criminal. Nonetheless, it can be strongly argued that to detest punishment as much as to detest the crimes committed by the criminal is a selfish act that is against order. Detesting punishment for its moral grounds can be argued as something that is on the side of social disorder rather than order simply because there is no alternative means to instigate order other than punishment. The utilitarian nature is perhaps the most credible justification of punishment since it is not bounded by individual feelings or emotions, but rather by a cluster of feelings and emotions. Allowing criminals to roam free in the streets may be a moral act of compassion but it does not remove the fact that these criminals are dangerous and there is a very real risk that they may cause further damage to the society. Of course, this characteristic is also evident within the retributivist principle but its aim is more on the individual rather than the “good of the majority”. Kant stated that “even though it is not for the good of all, a wrongdoer must still be punished for the benefit of the wronged” (Kant and Hastie, 1790, p.82; Barber, 1994, pp.246-250). For Kant, the moment an individual does an unjust act; “he already gives himself the right to punished” (Kant and Hastie, 1790, p.82; Barber, 1994, pp.246-250).

The Retributivists’ View

Retributivism is a theory of punishment that argues “people should always and only be treated as ends and never as means, and that are the actions of government legitimate only to the degree to which they are consistent with this model of citizenry” (Clear, 1994, pp.8-9). The belief that the state should inflict harm in order to confirm the moral order established by the laws of the state is the purist view of retributivism. “Retributivism puts more importance on the moral grounds compared to the classic utilitarian view, which more on the political side” (Clear, 1994, pp.8-9). The retributivist believes that “punishment is necessary because it is simply deserved by the offender” (Walker, 1991, Clear, 1994, pp.8-9). The main theme of this theory is the old cliché “eye for an eye”, within which it promotes revenge, just deserts and practices fairness and proportionality. The retributivist belief is the backbone of the levels of punishment that our society currently has – from the petty illegal parking fine to the severe capital punishment. The theory shows that “the harshness of punishment should be proportionate to seriousness of the crime” (Hoffman, 2000, p.1). However, if this is the case, then punishment is nothing more than a mere personal vendetta executed with the help of the state. This reasoning basically limits punishment’s benefit to the victim alone. But in contrast to this generalization, Ten (1993, p.43) argued that: “Retributive punishment is only inflicted on the wrongdoer, whereas revenge is sometimes inflicted on an innocent person close to the revengee, either because this is an easier target or because it is thought that this would hurt the revengee more.”

Retributivism has some serious problems that are not evident in some punishment theories like utilitarianism. “Retributivist has the hard job of explaining why it is more than mere vindictiveness to punish offenders rather than use these seemingly more humane alternatives” (Bennett, 2004, p.325).As Dewey pointed out in his theory of punishment “when we are concerned with morality, we are concerned with developing the future responsible agency of a person, and thus moral education is the relevant practice involved” (Dewey cited In Shook, 2004, p.69). Retributivism is not concerned with the future responsible agency of the offender because its objective is to end it by inflicting the same amount of damage inflicted on the offended. In this case, critics can strongly argue that retributivist offer a non-credible explanation on why punishment is necessary, both morally and politically. According to its critics, its moral flaw lies in its lack of regard to the humanity of the offender; while its political flaw lies in its lack of regard for the society at large. However, the stance of this paper is against those views simply because a consequentialist can inflict the same amount of punishment as a retributivist could inflict if the situation grants it. For instance, a state that punishes an angry soldier marching down the street for protest just because it can promote sedition can also have the same weight as punishing an important public figure who has wronged the public in many possible ways. The soldier can be subjected to torture and imprisonment as forms of punishment, and these acts can basically strip off the soldier any possible future possible agency of change since to his belief, the State tells only lies and teaches its beliefs that are a sacrilege to its own (as when corruption and bribery within government is accepted as reality and the norm). In other words, humane is a complex word that is yet to be defined by both the consenquentialist and the retributivist. What may be humane to another person may not be humane to another and so on. The point is that no matter how some scholars defend the idea of punishment as a mere tool for control, its methods of punishment can be as inhumane as those of the retributivists’.

The Complexity of Consequentialism

Consenquentialism seems to be just an excuse for those are in power to demonstrate their power without any regards to its citizens. Its first component is that “an action or institution is right if it maximally achieves whatever are intrinsically good states of affairs while minimizing whatever are intrinsically bad states of affairs” (Katz, 1999, p.64). The other component stresses that “welfare is the only sort of thing that is intrinsically good” (Katz, 1999, p.64).Thus, this theory claims that “together and alone, people only act to maximize happiness” (Kunz, 1998, p.10).

However, maximizing happiness simply means minimizing those who suffer. In other words, consenquentialism does not aim for the equality of justice but more on the biased side of favouring those flocks of people who think that “this” is the way to maximize happiness. Aside from being biased, it also puts those in power untouched by this so-called punishment since they can easily reason out that ousting or punishing them will have a negative impact on, say, the economy. Bell (1993, pp.118-122) supports this rationale when he stated that “consequentialism promotes abuse in power of authority figure because they can easily justify that what is done is for the good of the majority. Basically, these people in power can develop an unsympathetic stance for reformists and revolutionists as it mutes the critique of society and restricts possibilities of action by beginning with the way things and people are”.

Further since to consenquentialists’ claims about maximizing happiness, they then refer to digits results that can be statistically tested. However, it seems that statistical tests were not in their favour. It was found that “the calculation of net social welfare that utilitarianism demands often cannot be equated with the intuitive demands of justice” (Moore, 1999, p.64). Furthermore, it has been argued that “sometimes; innocence is sacrificed for the general welfare, while the guilty are freed in order to meet what is perceived as “good for all” “(Moore, 1999, p.64).

Comparison of views in justifying punishment

Consenquentialism is far too complex to justify punishment as compared to the simplicity and straightforwardness of retributivism. Because of the larger and more general claim of consenquentialism, it is in a position where it has to prove its claims of maximized happiness through generalized means. However, according to Katz (1999, p.64-69), “consenquentialists are yet to prove this”. Even the concept of deterrence, a claimed benefit of consenquentialism, has its share of loopholes that are difficult to explain”. In a specific study that tried to prove the impact of deterrence, “data on state homicide rates were employed and execution rates between 1976 and 1997 were examined across 50 states and the District of Columbia were estimated. The study found that that the death penalty indeed helps (to) deter criminal acts” (Yunker, 2001, p.310). Further, the relationship between deterrence and homicide rates was also criticized because “only relatively few supportive data exists” (Simson, 2001, pp.306-307). Simson (2001, pp.306-307) stated that “most case studies failed to emphasize the relationship between the two variables”. Also, Walker (1991, p.52) supports the claims that “deterrence is unsupported statistically”.

On the other hand, retributivistic punishment only limits its case within the offender and the victim. If the victim becomes satisfied after he or she heard or witnessed the punishment of his or her offender, then the goals of retributivism have been achieved. Deterrence is basically not the aim, rather, the restoration of the dignity of the victim by inflicting the same level of punishment to the offender. The individual’s happiness, although not the main cause of happiness of the country as a whole, is a beginning that may produce more ripples of happiness that externally affects others in society. For instance, it may signal the development of a fair and equal justice system where all who have committed serious crimes will be punished no matter how powerful he or she might be. Retributivism also is more ethical because it answers to individual sins and crimes rather than on a questionable and complex common good that consenquentialists claim. It does not disguise itself as justice because it is in fact justice to victim – unlike consenquentialism that can be used as a mask to hide the truth or to twist and distort the beliefs of those who are weak.

Conclusion

On the whole, retributivism is more honest and more transparent than consequentialism since it only concerns giving legal retribution to those who are victimized. However, Retributivism still needs to explain several points, such as “proving why wrongdoers deserve to suffer” (Shafer-landau, 2000, p.210). Further, it needs to emphasize and justify how the level of punishment metered out to the offender can possibly equal that of the crime inflicted on the victim. For instance, how would a retributivist punish a rapist? “Sexually violating the rapist may not be a good idea and the retributivist must find another alternative punishment to somehow level it with damaged caused to the victim” (Waldron cited in Shafer-landau, 2000, pp.197). Others might argue that “the retributivist principle is one that is “cold-hearted” and has no concern for the welfare of the criminal” (Bennett, 2002). Finally, retributivism has been interpreted as a backward belief that has no regard for the common good (Bennett, 2002. p.148). Basically, retributivism receives as nearly as much criticism as the less favoured theory in this paper, consenquentialism. However, the consenquentialist must answer on how it could actually give justice to the victim without inflicting too much punishment on the criminal. There is perhaps no answer to this since the very core of punishment is inflicting pain on the offender as a form of justice for the victim. Considering the welfare of the offender may take away the feeling of satisfaction from a justice-thirsty victim. Consenquentialism seems like a “wolf in sheep’s clothing” where it pretends to be the better alternative but the reality is it is just as lacking as retributivism. It presents an almost perfect view that happiness may be maximized, but in reality, ends up providing the retribution the victim needs but with less weight or more humane as they claim. Duff (2000) even stated that “the utilitarian principle of maximizing happiness is only a ‘fantasy’ because the consenquentialist should figure out “how much pleasure, and how much pain, various possible practices and policies are likely to produce and then somehow add the pleasures, add the pains, and weigh them against each other” The acceptance of the consenquentialist’s method of punishing the innocent for the benefit of good is also morally unacceptable. Again, Duff (2000) explained that “even if we would, in some extreme situation, recognize that an innocent ‘must’ be punished, we would also realize that this involved a significant moral cost, a significant wrong done to the innocent person, which the utilitarian cannot recognize.” (i.e. that the end justifies the means). They cannot recognize the intrinsic wrong of injustice that is done to an innocent scapegoat for what it is. Ironically, scapegoat can also be considered as an evil act given the circumstances, which may promote corruption and disregard for justice.

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