NCJ Number
64055
Date Published
1979
Length
15 pages
Annotation
MAJOR JURISPRUDENTIAL POSITIONS ON THE JUSTIFICATION OF PUNISHMENT ARE EXAMINED, AND A JUSTIFICATION BASED ON SOCIAL REALITY IS PROPOSED.
Abstract
THE DOCTRINE OF RETRIBUTION IS USUALLY COUCHED IN THE LANGUAGE OF MORALISM. THE UTILITARIAN APPROACH IS AN ATTEMPT TO SUPPLANT MORALISTIC IDEAS WITH PURELY RATIONAL METHODS. REFORMATION REPRESENTS AN EFFORT TO REDUCE UNNECESSARY HARSHNESS IN PUNISHMENT. EVEN THOUGH THESE APPROACHES ARE INADEQUATE, THEY HAVE LED TO A BROADER THEORY OF PUNISHMENT. THE PROPOSED APPROACH TO PUNISHMENT IS DERIVED FROM A GENERAL THEORETICAL POSITION IN WHICH SOCIAL LIFE IS TREATED AS A SOCIALLY CONSTRUCTED REALITY. IT EMPHASIZES THE CONCEPT OF 'RESTRICTED REPROBATION' IN THE INTEREST OF COLLECTIVE SOCIAL REALITY. ACCORDING TO THE REALITY CONSTRUCTIONIST POSITION, SOCIAL INSTITUTIONS BEGIN IN RECURRENT PATTERNS OF INTERACTION TO DEFINE AND SHARE SOCIAL SITUATIONS. PUNISHMENT SERVES TO AFFIRM THE NORM OF RECIPROCITY FROM SOCIETY'S PERSPECTIVE. STRUGGLES OVER LAW ARE STRUGGLES OVER THE COLLECTIVE DEFINITION OF REALITY. PUNISHMENT ALSO SERVES TO RESTRAIN INDIVIDUALS. IT IS IMPORTANT TO CONSIDER INDIVIDUAL OFFENDERS AND REASONS WHY THEY CONFORM. EVIDENCE SUGGESTS THAT MOST OFFENDERS ARE FAIRLY CONVENTIONAL AND THAT THEY DO NOT VIOLATE THE LAW BECAUSE OF SOCIETAL REJECTION. THE PUNITIVE CHARACTER OF THE LAW MAY EVEN WORK TO THE SOCIAL ADVANTAGE OF OFFENDERS IN CIRCUMSTANCES WHERE THEY ACCEPT CERTAIN PRINCIPLES. THE SOCIAL REALITY APPROACH INCORPORATES PRINCIPLES FROM RETRIBUTION, UTILITARIAN, AND REFORMATION APPROACHES SO THAT BOTH COLLECTIVE AND INDIVIDUAL SOCIAL REALITY ARE FURTHERED. REFERENCES ARE CITED. (DEP)