INTRODUCTION TO CRIME AND PUNISHMENT

 

UNIT STRUCTURE

1. Learning Objectives
2. Introduction
3. Notion of Crime and Punishment
4. Theories of Punishment
5. Deterrent theory
6. Reformative theory
7. Retributive theory
8. Capital Punishment
9. Let Us sum up
10. Further readings
11. Answers to check your progress
12. Possible question

LEARNING OBJECTIVES



After going trough this unit you will be able to
Describe the concept of crime and punishment
Elaborate the Deterrent theory of punishment
Discuss the Reformative theory of punishment
Explain the Retributive theory of punishment
Differentiate between different theories of punishment
Attempt a comparative assessment of different theories of punishment.

INTRODUCTION


The theories of punishment presuppose that punishment is an evil. Punishment is imposed because sometimes some people do wrong. Punishment may be either legal or divine. In the legal context this is called crime or offence. It denotes only those offences against society which are recognized by natural law. And these offences are liable for punishment. The issue of punishment deals with the legal process whereby the acts of violation of criminal law are punished according to the provisions of law. In the theological (divine) context this is called sin or evil. A man is rewarded for his good deed. On the other hand, a man is punished for his evil deeds. If a man voluntarily violates a moral law (which is recognized by society), the authority of the moral law demands that he ought to be punished. This is the ethical justification of punishment. Justification of punishment can be derived from two approaches. The first one is teleological approach and the second one is deontological approach. Teleological approach holds that any act or policy is judged by its consequences in terms of good produced by it. While, deontological approach holds that an act is good or right irrespective of its consequences. From deontological approach we can discuss the retributive theory. Again from the teleological approach we can describe the Deterrent and Reformative theory.

LET US KNOW

  • Deontological approach identifies an ultimate principle which is treated to be right. It is absolutely necessary to follow it irrespective of it consequences.
  • Teleological approach, on the other hand, identifies a worldly purpose which is treated to be good. Any act or policy is judged by its consequences in terms of the good produced by it.


NOTION OF CRIME & PUNISHMENT


The term ‘crime’ is commonly used as an offence against society which is recognized by the natural law. It is not the case that all moral offences would be considered as crimes. As for instance, ingratitude is not a crime. Rather, it is considered as a sin. Because it cannot be punished by the natural law. On the other hand, stealing is a crime, because it is punishable by the natural law. Therefore, it can be said that the term crime is used in a narrower sense.

‘Punishment’ may imply a deliberate fault, disobedience of command, violation of law or norm, or any act universally regarded as wrong. An evil doer is punished so that he/she can feel remorse or repentance for his action. On the other hand, Penalties are not considered as punishments.

As for instance, traffic fine and late fine of examination deposited by a student are not considered punishments. Reward and punishment are broadly used as a device or procedure in all societal functions for encouraging desirable behaviour and discouraging undesirable behaviour. These are the marks of social approval or disapproval.

A crime ought to be punished. A man should be rewarded according to his deeds. Similarly, a man should be punished for his evil deeds. If a man voluntarily violates a moral law, the authority of the moral law demands that he ought to be punished. This is the ethical justification of punishment. But the point that is we always see rules in case of inflicting punishment on a criminal. This leads to the different theories of punishment. We can discuss the theories of punishment under two general philosophies: utilitarian and retributive. The utilitarian theory of punishment seeks to punish offenders to discourage, or to deter future wrong doing. On the other hand, the retributive theory punishes the offenders because they deserve to be punished.

CHECK YOUR PROGRESS


A. State true or false:
1. In the legal context punishment is called crime.(True/False)
2. Punishment is called sin or evil in the theological context.(True/False)
3. Justification of punishment can be derived from teleological and deontological approach. (True/False)
4. De-ontological approach holds that an act is good or right. (True/False)

B. Fill in the blanks.
1. ——–––––—— holds that an act is good or right irrespective of its consequences.
2. ………………..holds that an act or policy is judged by its consequences in terms of good produced by it.
3. The term crime is used in a narrower sense than—————
C. Short Question
1. What is crime?
2. What are the theories of punishment?


ACTIVITY


Do you find any difference between crime and sin? Explain.

The term crime is used in a narrower sense than sin. What do you think?

 

THEORIES OF PUNISHMENT


Three main theories have been put forward to justify punishment. These are generally known as:
  • The Preventive theory. This theory holds that the aim of punishment is to hinder others from committing similar offences.
  • The Educative theory. This theory holds that the aim of punishment is to educate or reform the offender himself.
  • The Retributive theory. This theory holds that the aim of punishment is to vindicate the authority of the moral law.

THE PREVENTIVE THEORY or THE DETERRENT THEORY




This theory indicates that the aim of punishment is to hinder others from committing similar offences. It is expressed in the dictum of the judgment-

”You are not punished for stealing sheep, but in order that sheep may not be stolen.” The deterrent theory or the preventive theory works in two directions: (a) individual deterrence or specific; and (b) General deterrence. In case of individual deterrence an offender is punished for his crime in order to show that he commits a mistake. Again, individual deterrence or specific deterrence works in two ways. First, an offender may be kept in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation will discourage the offender from repeating his/her criminal behaviour. On the other hand, in case of general deterrence an offender is punished not for his reformation but for the benefit of others. Here, punishment is not an end; rather it is imposed on a criminal as a means for the benefit of others. So, general deterrence shows that punishment imposed on a criminal as an example so that others learn that committing crimes are always dangerous.

This theory supports capital punishment or death penalty for the most dreaded criminals so that they cannot repeat the same type of crime. As for instance, if someone kills a man then he should also be killed to stop killing. In this context, this theory shows that criminals have no right to take away a life. That is why he should be sentenced to death to protect the public from murdering anyone else. Punishment should be an example so that others do not commit the same mistake. Here criminals are used as a means in order to prevent others from committing similar mistakes. But this theory cannot be accepted. We cannot use a criminal as a means in order to prevent others from committing the same crime. Because criminals are not things or objects that we can use for the benefit of others. Hence, punishment should be an end not a means. This theory raises a serious question i.e., is their any scope of reformation of a criminal in preventive theory? In answer, it can be said that there would not be any scope of reformation of a criminal if we accept the death penalty. In this context, the preventive theory is not satisfactory. Sociologists and Criminologists want to show that most of the crimes are impulsive. A crime may stem from irrational thoughts and feelings. So, exemplary punishment is not conducive to discourage people from indulging in crime.

In short, it can be opined that Preventive theory or Deterrent theory does not encourage for reformation of a criminal. So, the very purpose of punishment imposed on a criminal is not entertained. Therefore, this theory is not applicable in a modern society as a satisfactory theory of punishment.


CHECK YOUR PROGRESS


A. State true or false:
1. The Deterrent theory works in two directions:
a) Individual deterrence
b) General deterrence
2. The Deterrent theory supports capital punishment.


ACTIVITY


Do you support preventive theory?
Is capital punishment inevitable in preventive theory?


REFORMATIVE THEORY OF PUNISHMENT


According to the supporters of the Reformative theory, the aim of the punishment is to reform the criminal himself. In this theory, punishment is not imposed as a means for the benefit of others. Rather, punishment is given to educate or reform the offender himself. Here, the crime committed by the criminal is an end, not a means as in the Deterrent theory. This view is commonly accepted in the present time. This theory favours the humanitarian sentiments of the age. Therefore, punishment is imposed for the welfare of the criminal himself. Unlike the Deterrent theory, the Reformative theory does not treat the criminal or the offender as a thing or means for the benefit of others. Hence, punishment is inflicted on a criminal for his reformation.

This theory does not justify capital punishment. Because punishment is inflicted only to educate or reform the criminal himself. Punishment does not always make reform in a criminal. On the other hand, kind treatment sometimes produces a better result than punishment. It may be more favourable to the reformation of the criminal. Forgiveness can change the nature of the criminal and give the scope of repentance and reformation to the criminal. It is clear that the reformative theory does not justify capital punishment. It supports reformation of the criminal.

The Reformative theory is supported by physiologists, sociologists and psychologists.

(A) Physiologists hold that crimes are due to physiological defect. Therefore, the criminals should not be punished. Rather, they should be treated in hospitals by psychologists or psycho-analysts. That is why, according to this theory, crime is not a deliberate act of violation on part of the criminal. It is only due to his mental instability. As for instance, we can mention Kleptomania. In Kleptomania, a criminal is compelled to steal. Therefore, criminal anthropologists hold that criminals should not be punished. Rather, they ought to be treated in hospitals or reformatories. But the problem is that all crimes are not due to insanity or physiological defects. There are some crimes which are deliberate violations of the moral law and should be punished. Because such crimes are not due to physiological defects. As for instance, we can think about corruptions. It is evident that some businessmen indulge in adulteration of food, black-marketing etc. They deliberately violate certain moral laws. So, they ought to be punished.

(B) Again there are some crimes which are due to social inequalities. For instance, theft is a crime. The authority of the moral law demands that the person who is involved in theft should be punished. But if we investigate the case properly we understand that the cause of theft is poverty. Therefore, criminal sociologists view that we cannot think of prevention of crime without improving the social and economic conditions of the common people. Crimes can be prevented only if the society is reconstructed on the basis of justice and equity. The advocates of this view are called criminal sociologists.

(C) This theory is supported by psychologists. They hold that crimes are not due to willful violation of the moral law. Rather, crimes are due to mental disorder or insanity. That is why criminals should not be punished. They should be treated in hospitals or reformatories for reformation. Freud, a famous psychologist views that crimes are due to sex wishes or spite wishes. Therefore, the treatment of the criminal should be educational or medical rather than punishment. But there are some crimes which are deliberate violation of the moral law committed by some people. Therefore, they should be punished. So, punishment prevents others from committing similar crimes. It also can refine the criminal’s mind not to take to the wrong path.

It is true that the Reformative theory can work fruitfully in case of reformation of non-habitual offenders. But in some cases it does not work smoothly, because a hard core criminal cannot be reformed. If we accept it then criminals will repeat the same type of offence. That is why, in stead of trying for the reformation of his criminal mind he should be punished. Thus, it can be said that the Reformative theory will be more effective if it is intended to supplement normal punishment, rather than replace it altogether.



CHECK YOUR PROGRESS



A. Fill in the blanks:
1. ………………..holds that the aim of the punishment is to reform the criminal himself.
2. The reformative theory does not justify…………………..
3. …………………holds that crimes are due to mental disorder or insanity.



ACTIVITY


Does reformative theory justify capital punishment? Discuss.
Is reformative theory satisfactory? Discuss.


THE RETRIBUTIIVE THEORY



This theory holds that the evil consequences of a man’s deed are not merely evil to others, but the evils in which he is himself involved. It implies that punishment is an end in itself not a means to any end beyond itself. If a man commits a crime, the authority of the law demands that he ought to be punished. The main aim of the punishment is to safeguard the authority of the moral law. If a man commits a crime deliberately, the authority of the law demands that the man should be punished. Through the punishment of a criminal the authority or the supremacy of the moral law is established. If the criminal is not punished by the authority of the moral laws than it loses its dignity, majesty and supremacy. Therefore, if a man consciously violates a moral law he ought to be punished to vindicate the authority of the moral law. Again, this theory views that if a man takes the life of a man, justice demands that the criminal has no right to live. So, he should be sentenced to death. But it can be viewed that this theory justifies capital punishment under exceptional circumstances.

The supporters of this theory are Aristotle, Kant, Hegel, Bradley. Aristotle holds that if a man commits a crime he gets negative reward in return. He deserves to get negative reward because he has committed a crime or violates a moral law. Immanuel Kant points out that if a man voluntarily commits a crime he should be punished. He should not be considered a means for the welfare of others. Rather he should be considered an end unto himself. Therefore, Kant says that moral law is categorical imperative in the sense that moral laws are unconditional. In his Metaphysics of Morals (1797), Kant observed: “Judicial punishment…can never be inflicted simply and solely as a means to forward a good, other than itself, whether …of the criminal, or of civil society; but it must at all times be inflicted on him, for no other reason than because he has acted criminally.” Kant argued that a human being should always be treated as an end in itself, and not a means to another’s end. This is the supreme principle of morality or the ‘categorical imperative’. If an individual commits a crime, he violates the moral law. So, it shows that the crime commited by a criminal implies that he is responsible for that. None is responsible for his account. Therefore, Kant holds that moral law is imperative or unconditional because it comes from within to restore justice. That is why he beautifully writes that ‘If justice perishes then it is no more worth while that man should live upon the earth.’

Hegel also like Aristotle holds that if a man commits a crime, he gains a reward in return for breaking a moral law. Bradley holds that punishment is imposed for the sake of punishment. Punishment is demanded by justice in order to safeguard the authority of the moral law.
Emile Durkheim (1858-1917) a French Sociologist formulated social solidarity of punishment which is similar to the Retributive theory of punishment. His view is that crime is a violation of collective conscience, which consists of social values. He viewed that punishment is essentially a ceremonial reaffirmation of social values that are violated and challenged by the crime. In Durkheim’s view, punishment of criminals is something like the sacrifice of individuals for the common good. So, Durkheim treats punishment as an end in itself like the Retributive theory.

The Retributive theory has two forms. The first one is rigorist and the second one is mollified form of punishment. The rigorist theory holds that if the offence is severe, the punishment should be severe. On the other hand, if the offence is light, the punishment should be light. If a person commits a murder, justice demands that the person should be sentenced to death. This form of punishment was found in the Old Testament of the Judeo-Christian Bible: “When a man causes a disfigurement in his neighbour……..it shall be done to him, fracture for fracture, eye for eye, tooth for tooth…..” But the mollified form of the Retributive theory holds that punishment should be inflicted under some circumstances. The circumstances are the age of the criminal, his intention, provoking circumstances etc. There are taken into account when punishment is inflicted to a criminal. That is why this theory will say that if a person commits a murder, he should not be hanged without going through the circumstances under which he has commited the crime. According to some advocates of the retributive theory, men have free will and are capable of making rational decisions. An offender who is insane or otherwise incompetent should not be punished. In contrast to this, a person who deliberately upsets the balance of society should be punished.

Hence, it can be said that the mollified form of the retributive theory seems to be more satisfactory than the other theories of punishment.

The merit of the retributive theory is that it lays emphasis on the termination of social discrimination. None can get rid of punishment if he/she violates the authority of the moral law. Social status is not the determining factor to inflict punishment on a criminal. But Manu, an ancient law giver, prescribed the different levels of punishment for different castes. Aristotle also suggested the level of punishment. According to him, a slave possesses harsher punishment than a free man on the ground that the ‘slave was less sensitive’.

The retributive theory seems to be more satisfactory than the other theories of punishment. John Mackenzie writes that neither reformative theory (for the criminal himself) nor preventive theory (for the welfare of others) can function unless and until it is supposed that punishment is the vindication of the authority of the moral law. It shows that both the theories take the motto of the retributive theory i.e., punishment is given in order to safeguard the authority of the moral law.

CHECK YOUR PROGRESS




A. State true or false:
1. The retributive theory justifies capital punishment.( True/False)
2. According to the retributive theory, the aim of punishment is to safeguard the authority of the moral law. (True/False)
3. Aristotle, Kant, Hegel and Bradley advocate the retributive theory of punishment. (True/ False)

B. Give short answer:
1. What are the two forms of retributive theory?
2. What is mollified form of the retributive theory?
3. What is the motto of the retributive theory?



ACTIVITY


Do you support the Retributive theory of punishment? Discuss.
Is capital punishment endorsed in the retributive theory? Discuss.




DEBATE ON CAPITAL PUNISHMENT


Capital Punishment indicates death penalty under a judicial verdict in accordance with the provisions of law as a punishment for a crime like murder. In the recent years most of the countries cast vote for the abolition of capital punishment. However, it still continues as a part of the Indian penal system even though death is awarded in the rarest of the rare cases. In many cases it is converted into life imprisonement. Death penalty seems to be rare in the Indian penal system because most of the crimes are converted into life imprisonment. Therefore, the question remains whether the issue of capital punishment should be retained in the statute of book or it should be abolished altogether. An argument against the capital punishment is that such crimes as befitting death punishment are not always due to the inborn criminality on the part of the offender. That is why any crime against the violation of law is subject to scrutiny. It means, we have to see why he has chosen this criminal path. There may be some reasons, like lack of education, proper guidance and wholesome environment etc. On many occasions factors like these lead to crimes.

From the debate on Capital punishment we can put forward the view that both the reformative theory and mollified form of the Retributive theory go against the capital punishment. Because the Reformative theory lays emphasis on the reformation of the criminal mind without imposing punishment. It undoubtedly helps to rectify a criminal’s mind. That is why it is advocated in modern times. But in all cases we cannot accept it wholeheartedly. Now a days, we encounter the problem of terrorism. Terrorists are not the ordinary illiterate or underprivileged people who commit crime under the stress of circumstances. They are rather a motivated group intent on killing people. In dealing with such criminals we cannot but offer capital punishment. Therefore, Capital punishment must be retained in our statute books in order to fight terrorism and other heinous crimes.


LET US SUM UP


The above discussion will show to you the types and nature of punishment. The Deterrent theory wants to plead that criminals are punished according to the crimes committed. So, by punishing the criminals they are used as a means in order to show to do that crimes invite punishment and that they do not take to the paths of crime. Again, the Reformative theory wants to show that criminals are not punished, rather they are intended to be reformed through various ways. Lastly, the Retributive theory views that punishments are imposed on a criminal in order to protect the authority of the moral law. Although this theory seems better than the other two theories, still this type of theory cannot be accepted as a satisfactory theory of punishment. Because the Retributive theory also talks of capital punishment in some exceptional cases which have been already discussed. But in modern age capital punishment is not supported by some people, because criminals are not born as criminals. Therefore, in this context we cannot deny the scope of the reformative theory of punishment which lays emphasis on the reformation of a criminal.

 

FURTHER READINGS


  • John. M. Mackenzie: A Manual of Ethics, Surjeet Publications, Delhi, 04
    · J.N. Sinha: A Manual of Ethics, New Central Agency, Calcutta, 1986
    · R.N. Sharma: Introduction to Ethics, Surjeet Publications Delhi, 04

ANSWERS TO CHECK YOUR PROGRESS




Check Your Progress : I
A.
1. Ans: True
2. Ans: True
3. Ans: True
4. Ans: True

B.
1. Ans: De-ontological approach
2. Ans: Teleological approach

C.
1. Ans: The term ‘crime’ is generally used as an offence against society which is recognized by the natural law.
2. Ans: There are three theories of punishment. They are respectively:
i) Deterrent theory of punishment
ii) Reformative theory of punishment
iii) Retributive theory of punishment

Check Your Progress : II
A.
1. Ans: True
2. Ans: True
B.
1. Ans: The reformative theory of punishment.
2. Ans: Capital Punishment
3. Ans: Psychologists

Check Your Progress : III
A.
1. Ans: True
2. Ans: True
3. Ans: True

Check Your Progress : IV
1. Ans: Mollified and Rigorous form of Punishment
2. Ans: The Rigorous theory holds that if the offence is severe the punishment should be severe regardless of circumstances.
3. Ans: The mollified form of the retributive theory holds that punishment should be inflicted under same circumstances.
4. Ans: The motto of the retributive theory is, punished is given in order to safeguard the authority of the moral law.

POSSIBLE QUESTIONS



1. Define Crime? Do you find any distinction between Crime and Sin? Explain.
2. What are the theories of Punishment? Explain the Preventive theory of Punishment? Is it satisfactory?
3. Explain the Reformative theory of Punishment? Is it satisfactory?
4. Explain the Retributive theory of Punishment? Is it satisfactory?
5. What is Capital Punishment? Is Capital Punishment tenable?
6. What are the two forms of the Retributive theory? Discuss
7. Do you accept the mollified form of punishment? If so, give reasons in support of your answer.
8. Do you find any distinction between Reformative theory and Retributive theory? Discuss.
9. Write short notes on:
a) Capital Punishment
b) Preventive theory of Punishment
c) Reformative theory
d) Retributive theory
e) Crime and Punishment
f) Mollified form of retributive theory
g) Rigorous form of retributive theory