NCJ Number
80976
Journal
Contemporary Crises Volume: 6 Issue: 1 Dated: (January 1982) Pages: 25-57
Date Published
1982
Length
33 pages
Annotation
Various rationales for formalized punishment in society are traced in philosophic thought and critiqued, followed by a proposal for the justification of punishment.
Abstract
The historic debate surrounding justifications for punishment is grounded in the perspective of utilitarians, represented in the thought of Beccarai and Bentham, on the one hand, and retributivists, represented by Kant and Hegel, on the other hand. Retributivists argue that the only justification for punishing a person is his/her having broken the law, and they accuse utilitarians of being opportunists and sanctioning 'unjust' and unduly harsh punishments. Utilitarians argue that the primary function of punishment is to prevent and deter, and they accuse retributivists of vindictiveness, tautology in reasoning, and disguised utilitarianism. Contemporary efforts to justify punishment can be seen in the writings of Von Hirsch and Van Den Haag. Each uses the classic ideas as a theoretical crutch, but in an electic and incoherent way, as an alternative to clear and original thinking. The proposed justification for punishment has two significant aspects. First, the innocent should not be punished; people should be able to make informed and rational decisions about their future action and its consequences in terms of punishment. Second, punishment, since it is intended harm, is justifiable only because of its maintaining a valued social order; punishment is not good in itself and should not constitute vengeance. This theory justifying punishment, however, implies the existence of a free and equal social order where persons have the opportunity to better themselves through law-abiding behavior. Punishment loses its justification in a society whose basic socioeconomic order is unjust. A total of 74 footnotes are listed.