Theories of Punishment

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Theories of why we punish offenders are crucial to the understanding of criminal law; in fact it is not easy to define legal punishment, however one thing is clear within the different theories of punishment is that they all require justification.[1] There are many theories of punishment yet they are predominantly broken down into two main categories. The utilitarian theory seeks to punish offenders to discourage, or “deter,” future wrong doing. The retributive theory seeks to punish offenders because they deserve to be punished due to their behaviour upsetting the balance of society[2].

This essay will consider what legal punishment is; it will draw a distinction between the two main categories.[3] It will focus on utilitarianism otherwise known as consequentialist theory of punishment, in particular a side constrained theory provided by Daniel Farrell.[4] It will look in particular at what it is Farrell is attempting to achieve through his modified theory.[5] It will consider the three questions[6] of justification put forward by Hart[7] in application to Farrell’s theory and finally it will consider criticisms made to Farrell’s theory and the modifications made if any to appease such objections.

With no precise definition of legal punishment[8] it has been described that it is intended to be burdensome or painful on a supposed offender for a supposed crime by a person or body who claims the authority to do so.[9] The practice of punishment must be justified by reference either to forward or to backward looking considerations.[10] If the practice is considered to be forward looking the theory is consequentialist,[11] accordingly the point of practice of punishment is to increase overall social welfare by reducing (ideally, preventing) crime.[12] It is mainly focused on the ways it can prevent future crime either through deterrence, incapacitation or reform/rehabilitation. It justifies punishment as the good brought about by inflicting harm will outweigh the pain imposed.[13] Bentham argues that the aim of utility is a morally right action for every situation; Bentham said “the punishment suffered by the offender presents to everyone an example of what he himself will have to suffer if he is guilty of the same offence,”[14] he adds the principle may also be described as the greatest happiness principle, that asserts the only morally right and proper goal of action is to achieve the greatest happiness of all individuals whose interest is affected by the action.[15] Bentham rejects the concept that the law of reason is a sufficient principle of morality, such concepts as common sense, the rule of right, the law of reason, and the laws of nature are only theoretical or speculative principles and cannot be practically applied to every moral situation.[16]

The underlying theory of human action is that individuals act on the basis of assessment of the relative costs[17] and benefits[18] of a particular action. What makes it criminal is its effect upon other members of society. In other words, the costs which it inflicts upon them either directly or indirectly in the form of feelings of insecurity and fear of crime. Consequentialists traditionally justify punishment with an assessment of its costs and benefits.[19] If the practice is considered to be backward looking, the theory is deontological; on this approach, punishment is seen either as a good in itself or as a practice required by justice therefore making a direct claim on our adherence. A deontological justification of punishment is likely to be a retributive justification.[20] Here the underlying theory of human action is that individuals are held to have free will; there actions therefore provide the basis which they can be held to have moral responsibility. Moore highlights the rationale that retributivism is a very straightforward theory and further suggests that it is justified punishment because and only because offenders deserve it.[21]...
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