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What is the Function of Punishment?

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Introduction

What is the Function of Punishment? "Justice must not only be done but seen to be done". Most would agree with this statement - the wicked must surely be punished (or should they? - do two wrongs make a right?) but why is it so important that the punishment must be seen to be done? To the utilitarian the answer is simple - punishment must be witnessed in order to deter others from committing the same act. Thus, to a utilitarian the perception of punishment is seen as the main, or even the sole, justification for punishment. Of course, if the wrongdoer is sent to prison for any length of time he is incapacitated, and thus excluded from doing further harm. Further, while being punished there may be at least the hope that the wrongdoer repents and reforms. Both these consequences are compatible with utilitarian principles as they both serve to reduce the harm caused by anti-social behaviour. Seen in this way punishment can be said to have a tripartite function - to deter, to reform, and to incapacitate. The extent to which any of these functions are successful is a matter of debate, as is the extent to which any one of these functions should take priority. ...read more.

Middle

it sacrifices Justice in the name of some greater good - surely Mabbott is arguing for a greater good just as the utilitarians do? The only difference seems to be that while utilitarians view the greater good as being the maximum happiness, Mabbott sees it as being the maximum social order. It is debatable that Mabbott's claim to be a retributivist can be maintained. In essence Mabbott view it is essentially the Hobbesian view - an argument for social cohesion through social order. The problem with retributive theorists is that they are caught in a bind. To justify punishment they need to show the positive benifits, which means that they have the same problem as the utilitarians (the greater good is often incompatible with justice). On the other hand, to advocate retribution without pointing to some tangible benefit means that they are left with having to explain how retribution can be distinguished from mere vengeance. According to Robert Soloman (1990) this problem stems from the fact that our concept of justice has been overly influence by Kant's philosophical thinking. He argues that Kant was obsessed with rational principles and failed to recognise that humans are psychosocial beings - they are influence by personal relations as well as social standards set by the community. ...read more.

Conclusion

Many argue that it is better to have bad laws than no laws at all. This may be true but it does not follow that lawmakers should abandon their responsibility to punish justly and fairly. If the concept of wrongdoing is to be associated exclusively with law breaking then clearly this is problematic - what if the lawmakers are tyrannical or simply wrong? It seems that any concept of punishment which does not include the concept of justice is self invalidating, otherwise we are simply using punishment as a means to an end, and this will never do because there is always a conflict of interests as to what ends are most beneficial, and for who. Mabbott argues that we cannot justify punishment on moral grounds because of the subjective nature of morality. While it may be true that ideas of right and wrong are culturally and historically subjective, it surely does not follow that we should refrain from making moral judgements. To do this would be to question our capacity to be moral agents at all, which would be an extraordinary indictment of human nature. Incorporated in any concept of punishment must be the concept of justice, and as Strawson points out, incorporated in the concept of justice is the psychological needs of society and especially of the victim. Thus, the purpose of punishment should not only include Justice but must be Justice. ...read more.

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