Theories on punishment-Law, Thesis of Law

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about:blank Theories on punishment There are different ideas about why we inflict punishment on offenders, following the work of Kant and Hegel we can see one of the principles of punishment is to impose upon the offender his “just deserts”, which is to mean the punishment should fit the crime. On the other hand, the utilitarian school of thought from Bentham and Mill, puts social protection at the heart of its philosophy by preventing the offender from reoffending and deterring others from doing similar crimes. Whilst the two theories of Punishment are clearly different, they are not mutually exclusive either. ‘Deontological Theories Retribution is a deontological theory of punishment that is focused on the end outcome of the punishment as opposed to its consequences. It is not concerned with whether or not the punishment is for the greater good, but rather it focuses on the fact the offender has committed a crime which they must face justice for. The two main ideas stemming from this theory are - (a) that we have the right to punish these offenders and (b) there is a moral duty to do so. The main aims of this theory is to ultimately punish the offender proportionally to the harm he has caused because that is the price of breaking the law. In turn, this deters others from committing similar crimes and marks society’s disapproval of the crime, and ensures the criminal is paying society back for their wrongs In contrast, Philosopher Hart argues the way in which the ‘seriousness’ of a crime is measured is flawed. Additionally, he complains it’s not simple to give out a proportionate punishment to the crime committed - murder isn’t a proportionate response to murder. The retribution theory says that once time is served, the offender is free and has paid their dues. This raises issues - how can we be sure the offender will not offend again or if they have remorse for offending? Retributionists don’t believe in imprisoning an offender for an indefinite period of time, whereas opposing theories may be, provided it created the greatest amount of good - In Vinter v UK 2013 it was established that prisoners have a right to the hope of being released and are entitled to know what they must do in order to be released. A further flaw with retribution is that it takes a fairly simple view on crime because it doesn’t account for external facts such as ones upbringing or environment or mental health conditions. Ultimately, society favours this theory because it seems fair that a criminal pay the proportionate price for their crime. The theory doesn’t believe in punishing innocents, and that only the offender should be the one to suffer. Rubin (2003) said the danger of retribution is that it may be achieved by any means, which means inhumane methods of punishment could be allowed. He argued a focus should be made on rehabilitation to raise humanities standards. A final point to consider is to whom is the debt of the crime paid to? Is it the victim or society and how does society benefit from a criminal suffering unless there is some sort of deterrent effect? This is evidence of the theory overlapping with utilitarianism, it ‘becomes impossible to not consider the future consequences of punishment. 1/4