Deterrence is the theory advanced by those who believe that severe punishment on several example offenders can serve to deter those who may have been tempted to offend by the severity of the punishment they will receive. Long prison sentences, extreme deprivation of liberty and, in the United States, the death penalty, are used to shock people into not offending.
Each theory has its own advantages and disadvantages. Retribution allows the societal and personal victims of a crime to feel that ‘justice has been done’, as the offender is punished for their wrongdoing and their offence against society. Retribution also allows for a fair legal system (those who do wrong will be punished, and who have been done wrong will have justice), and acknowledges the freedom of individuals. However, the principle of lex talionis is non-specific and does not provide sufficient depth to serve as a guide for specific offences or to work on a case-by-case basis. Retribution can also lead to punishments that are cruel and do not have any effect other than to balance the suffering caused by the offender, as the theory does not concern itself with the suffering the offender themselves endure, but rather the amount necessary fit the crime. The practical implications of retribution; fines, imprisonment, physical harm etc., can be costly to administer and can and has lead to problems such as an inability to enforce collection of fines and prison overcrowding.
Whilst vengeance can see an individual victim feel personally satisfied that justice has been served, usually because they carried out the punishment themselves, vengeance can undermine a legal system and the idea of fair, logical and proportional punishment. The fact that it is based on an emotional response means that it cannot be used objectively to administer punishment on a wider scale than on an individual, personal basis.
Rehabilitation is embraced by those who believe that reformation rather than an ‘out of sight, out of mind’ approach is the best way to administer punishment. When it works, rehabilitation can result in offenders who are aware of the implications and effects of their actions and who can develop skills and reform their behaviour and personality so that they may serve society more creatively and productively than before. The psychological effects alone of such self-revelations can often be enough to make the offender a changed person. However, some criminals (such as Charles Manson) cannot, for a number of reasons (such as incurable mental illnesses, a career criminal mentality or a permanent personality disorder), be reformed, meaning that it may be necessary to permanently extricate them from society, through imprisonment or execution, as those who cannot be reformed may be likely to reoffend and continue to threaten society (such as paedophiles).
Deterrence has been the reason cited by state legal system for centuries as the primary reason for punishment. The view commonly put forward is that society is protected through harshly punishing those who seek to do wrong in the hope that those who wish to follow such a course of action will be put off by the consequences they will suffer. Deterrence can work in the case of opportunist offenders who may be tempted by opportunity to commit an offence. However, career criminals or those who offend to survive either do not believe they will be caught or are prepared to chance and endure the punishments arising from committing such an offence, either because they offend for a living or offend to survive. No matter how harsh punishments may be, those who are determined enough to offend will not be deterred. For example, people who steal food to survive are prepared to risk incarceration as they will die if they do not commit the offence.
The advantages and disadvantages of the theories of punishment above show that one system on its own cannot fully encompass the administration of punishment necessary to operate a legal system. Many countries, including the UK, operate a hybrid system, whereby retributive theory operates in conjunction with rehabilitation, so that whilst offenders are suffering through deprivation of liberty and/or remuneration, they are also undergoing rehabilitative programmes so that when they have finished their sentence they have been both punished and reformed so that they are better citizens. Vengeance theory is generally not employed by legal systems, as examples of vigilantism in the UK following the publication of the names and addresses of paedophiles shows the vicious and primal nature of uncontrolled emotion when manifested into a thirst for revenge.
- Categorical Imperative
Kant’s approach to justice is based on his theories of respect and of behaviour according to the Categorical Imperative. Kant’s theory of respect argued that humans are ends in themselves, and are not to be used as mere means to an end by others. Respect for one’s own humanity, therefore finds involves respect for others. Kant was a strong believer in autonomy, or the ability to bring moral law unto oneself, and argued that one must be free to act morally rather than being forced to by external influences. He developed the Categorical Imperative, a command without conditions, as a criterion to determine moral behaviour, such as ‘You must not tell lies’.
In the context of justice, Kant believed that the use of coercion to uphold justice was justified. He argued that “justice is therefore the aggregate of those conditions under which the will of one person can be conjoined with the will of another in accordance with a universal law of freedom [that is, in accordance with the Categorical Imperative].” However, he did not believe that the state had to respect the freedom of one to impinge on the freedom of another. In fact, to uphold justice, Kant believed that the state must use coercion, because “if a certain use of freedom is itself a hindrance to freedom according to universal laws (that is, unjust), then the use of coercion to counteract it, inasmuch as it is the prevention or hindrance of a freedom, is consistent with freedom to universal laws”.
The Categorical Imperative, then, ensures that those who seek to break the law do not gain an unfair advantage over those who voluntarily choose to obey it by not punishing the offender. Therefore if one breaks the law, which is in itself a codified Categorical Imperative, then one is not acting morally. Since one is free to make one’s own moral decisions, one freely chooses to breach the law/Categorical Imperative and thus must be punished accordingly, both to restore justice and balance and also to adhere to the universalisable statement: “you must always punish those who break the law”. Kant therefore sees justice and punishment as restorative or retributive, and carried out in the interests of those who abide by the law by the person who chooses not to, so that they may re-enter the society which continues to uphold the values they previously chose to breach once the punishment has been served, since both the criminal (when law-abiding) and the normal law-abiding person benefits from the voluntary adherence of laws.. Because the offender has rationally chosen to breach this law, they have no complaint concerning punishment.
- Natural Moral Law
Natural Moral Law contains two main conditions: seek the good and harm no one (i.e., do not do anything that deprives others of real goods or interferes with their attaining what is really good for them). Cicero, a Greek philosopher who wrote at around 105 BC, argued that “True law is right reason in agreement with nature. It is applied universally and is unchanging and everlasting...there will be no different laws in Rome and in Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations at all times, and there will be one master and ruler, that is God...”
Punishment therefore, the enforcement of justice on those who break the law, must seek to attain the good. Whilst it can be argued that punishment does in fact cause harm through deprivation and interference, this can be countered by the argument that punishment serves to guide people away from acting in a manner which is not in keeping with the attainment of what is good for them, as breaking the law is not a good to strive for, and to allow them to pursue a different course of action which is in keeping with the attainment of what is good. The closest definition of a universal, unchangeable and everlasting law as laid down by Cicero is the Universal Declaration of Human Rights, which codifies and enshrines the intrinsic rights each and every human being possess, and is applicable to, and should be respected by, every country throughout the world.
Natural Moral Law is likely to advance rehabilitative punishment, as it does not seek to harm others through fines, imprisonment, torture or execution (which neither is good nor allows those who are punished to seek the good), but instead servers to change the behaviour of those who do offend, so that they may re-enter and better serve society. Since the aim of rehabilitative punishment is to make the offender a better person by changing their behaviour and/or personality, this can be seen by naturalists to be moving people away from a course of action which does not seek that which is good for themselves and onto a course of action which allows them to seek the good both for themselves and for society at large. Deterrence theory would not be advanced because it involves harm in order to deter, which does not seek the good, nor would vengeance, since the good involves inflicting harm, and is therefore not good.
- Intuitionism
Intuitionism is a theory which argues that moral values are self-evident, either through universal acceptance passed down generation through generation, or imposed and accepted by an external influence, such as God. Something is right if it leads to something good, and the definition of good, and thus the definition of a good action, is known innately but is not describable. Intuitionists argue that the norms that seem self-evident to us; should be taught by personal example, verbal instruction, praise and blame, and reward and punishment. The extent and appropriateness of punishment is also innately known and understood, which also implies an innate sense of proportion as well, thus people intuitively know that it is ‘over the top’, for example, to sentence someone to death for the theft of an apple, whereas a long prison sentence or execution for the crime premeditated murder is ‘right’. Intuitionists argue that as people ‘know’ what is right or wrong, most people ‘know’ and thus choose to break the law, and thus bring punishment upon themselves, subscribing to the retributive theory of justice. Whilst some people may have a different sense of right or wrong, this is discounted as the vast majority of people will intuitively know an action is wrong, and thus it is wrong, even if a few people believe it to be right.
However, one of the problems with intuitionism occurs if the society, and thus the moral values, are themselves intrinsically wrong, if, for example, they were to be viewed by an external society. If, for example, we live in a Nazi society, and Nazi norms seem self-evident to us, then Intuitionists would still argue that Nazi norms and intuitions should be taught to our children.
Bibliography
Tyler and Reid, ‘Religious Studies’, Pages 205-210
Vardy and Grosch, ‘Puzzle of Ethics’, pages 179-186
Roger Jones, ‘Moral Philosophy by Roger Jones’,
MR62, Reasoning in and About the Law – Handout 4 – Retributivism – Kant and Morris -
