Examine The Key Philosophical Justifications For Punishment
'Punishment proceeds on the principle that there is an eternal distinction between right and wrong, and that this distinction must be maintained for its own sake' (Dictionary.com, 2012). In this essay I will examine the idea of revenge, retributivism and just desert, utilitarianism and deterrence and finally restorative approaches as the key philosophical justifications for punishment. The aim of this essay will be to argue that there is no flawless philosophilcal justification for punishment been put forward to this day and for an individual or an institution to achieve justice various forms of punishment must be used.
Punishment can be defined as 'a penalty or sanction given for any crime and offence' (Dictionary.com, 2012). Punishment is accepted and seen as being a necessary part of a working society, however, the aims of punishment are not as simple. Garland (1999, p5) states 'institutions are especially prone to conflicts and tensions that tend to undermine their effectiveness and legitimacy', from this it can not be surprising that different people see the aims of punishment variant; from the philosophies that help build a decision to punish to rights of the victim draws diverse tensions. (Marsh et al, 2004). In other words, 'what someone 'deserves' may not be the same as what is judged necessary to protect society' (Newburn, 2007: p517). With this in mind, the approaches towards this debate are split in to two catorgories, these are consequentialists and retributivists. Retributivism focuses on the moral desert of an individual, it doesnt consider the future good. This type of 'justice focuses on a single person, namely the wrongdoer, and makes her suffer due to the public disapproval of her conduct' (Perry, 2006). Consequentialist is a foward-looking approach, meaning it focuses on prevention of future offending based on the idea punishment fulfills its aim, for consequentialists there are many ways that this can be achieved. This approach is associated with Jeremy Bentham and utilitarianism, the idea that 'the 'good' brought about by the infliction of punishment must outweigh the pain imposed' (Newburn, 2007: p517).
Deterrence is a future-oriented approach and has been split in to two types: individual – looking at reducing re-offending by dettering those from doing so again and general – looking to deter plausible offenders. Overall, both types have the intention to reduce crime so therefore could be seen to take a utilitarian position. Bentham and Beccaria, enlightenment thinkers, developed the 'classicist' penal code and talked about how criminals are individuals with free choice, thus making them plausable to be deterred by threat of future punishments. They argue punishment should be rationally based where the circumstances of an individual should not be taken in to account and a crime should be punished accordingly. Although Beccaria and Bentham did not advocate the use of violent punishments, another way to view detterence as a key philosophical justification of punishment is to fix droconian punishments. A law that is known for its excessiveness and harshness it puts off rational thinkers and potential offenders (Hudson, 2003). An example of draconian punishments would be the use of Capital Punishment; this is justified with the argument that by killing convicted murderers it will deter other potential murderers. However, because of the severity of draconian punishments this sort of approach could not be called utilitarian, as there is no limit to the harshness of a punishment.
For detterence to be effective as a key justification for punishment it has to be severe and painful enough to deter not only current offenders from re-offending but also potential offenders; the biggest flaw of detterence is that there exists no scientific basis as to how you know just how severe a punishment has to be to put off an individual from offending...
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