NCJ Number
59630
Journal
American Journal of Jurisprudence Volume: 22 Dated: (1977) Pages: 1-18
Date Published
1977
Length
18 pages
Annotation
THE ETHICAL REASONS GIVEN FOR A STATE'S PUNISHMENT OF CRIMINALS ARE EITHER UTILITARIAN OR RETRIBUTIVE. THE UTILITARIAN PHILOSPHY STEMS FROM THE BRITISH WHILE THE RETRIBUTIVE GOES BACK TO GRAECO-ROMAN PHILOSOPHY.
Abstract
MANY WRITERS HAVE TRIED TO FRAME A DEFINITION OF PUNISHMENT. THE ELEMENTS COMMONLY INCLUDED ARE: (1) AN UNPLEASANT CONSEQUENCE, (2) INFLICTED ON AN OFFENDER BECAUSE OF AN OFFENSE HE HAS COMMITTED, AND (3) DELIBERATELY IMPOSED BY AN AGENT AUTHORIZED BY THE SYSTEM OF RULES WHICH HAS BEEN OFFENDED. UTILITARIAN PHILOSPHERS JUSTIFY PUNISHMENT BY ALLEGING THAT IT RESULTS IN THE GREATEST GOOD FOR THE GREATEST NUMBER. THEY POINT OUT THAT IF TRANSGRESSIONS WERE NOT PUNISHED, LAWLESSNESS WOULD PREVAIL AND THE BODY POLITIC WOULD SUFFER. THIS IS THE BASIS OF THE WRITINGS OF MOST OF THE CONTEMPORARY BRITISH AND AMERICAN PHILOSOPHERS. THE RETRIBUTIVE THINKERS FEEL AN OFFENDER MUST PAY FOR EVIL DEEDS. THE HISTORY OF THIS PHILOSOPHY IS LONG. IT IS DRAMATICALLY EXPRESSED IN THE BIBLE IN THE PASSAGE FROM LEVITICUS WHICH STATES THAT A PENALTY MUST BE 'EYE FOR EYE, TOOTH FOR TOOTH.' THIS PHILOSOPHY IS ALSO FOUND IN THE WRITINGS OF CICERO, VERGIL, THE EARLY CHRISTIAN THINKERS, AND THE PRESENT-DAY GERMAN WRITERS. CURRENT LEGAL THINKING IS ACTUALLY A BLEND OF THESE VIEWPOINTS. THE LAWS ARE PASSED FOR THE GOOD OF THE GREATEST NUMBER; THEIR ENFORCEMENT ENTAILS RETRIBUTIVE PENALTIES FOR LAW BREAKING. LEGAL PUNISHMENTS ARE NOT FOR THE GOOD OF EITHER SOCIETY OR THE CRIMINAL, WHICH IS WHY REHABILITATION, EDUCATION, OR PRIVATE EXPIATION CANNOT BE THE BASIC JUSTIFICATION. THIS THEORETICAL DISCUSSION IS HEAVILY FOOTNOTED. (GLR)