For, by the very definition it can be explicitly known whether an infliction of pain be termed as punishment. If one knows certain imposition of pain to be punishment then he need not ask for its justification. Because, unless he knows that it is imposed on a guilty man for his wrongful act, he cannot call it punishment. The questions like 'Can punishment be justified?
In this context it is to he noted that the term punishment may be understood in two different senses i Punishment in general and ii specific case of punishment. In the general sense of the term it is a class of actions, not a particular action.
In this sense not only the actual infliction of pains are considered; both actual and possible infliction of pains on wrongful acts are taken into consideration. While in its specific sense, the term punishment is used to mean an actual infliction of suffering. It is a particular action not a class of actions. Punishment in general can obviously be justified in the traditional sense of the term on utilitarian grounds.
But usually its justification is not asked for. Because justification of punishment, in general is unnecessary. It is the justification of particular infliction of pain or punishment that can be enquired of. As a man can legitimately ask for justification of a particular law of a state.
But nobody enquires of the justification of legal system or of law in general. It is meaningful to ask, 'Can this rule be justified? It would not be absurd to ask for justification of penal system if there would have been any alternative means to discourage criminal conduct. But a possible alternative means rather encourages criminal activities. It is illustrated by Fitzgerald when he says, "The best cure for a man who persists in driving away cars without the owner's consent might well be to provide him with a car of his own at state expense.
This might positively encourage others to follow his example" 8. Social code or laws of a state are formulated in order to satisfy social need or to secure general interest of a society. Obligation to protect laws arises as soon as they are formulated.
Transgression of a law is an offence. For, it is detrimental to social peace. In order to protect the laws and thereby to maintain social peace penal code is inevitable. It is the penal code that satisfies the need and purpose of a state for which the code itself is introduced and punishment is administered.
It is to be noted that in my long discussion, the term 'justification' is used in its traditional sense. It is the proper time, I think, to explain why it is absurd to enqire as to whether punishment can be justified. But to do that we must know the proper implications of the term 'justification'. In its traditional use the term 'justification; has been identified with 'evaluation'.
It is evident when Israel Scheffler says, "To say of some act that it is right, warranted or valid, is to say that it is justified. To predicate goodness of something is to hold its approval justified". But I like to say, to say of some act that it is right, or wrong; valid or invalid; good or bad, is to evaluate it. This is obviously evaluation. To predicate simply goodness or rightness or validity, excluding the opposites, of something is to approve it.
This is also an evaluation not justification. To justify something is to say that why it is said to be good or bad, just or unjust. To justify x, is not to say of x that it is right but to show that x is right. What we evaluate is to justify. Evaluation and justification are two different things. Such a distinction is clearly pointed out by Hodgson. He also holds that to justify is to 'show' 11 justness or rightness.
An action may be judged or evaluated either to be right or wrong but pronouncement of judgement will be made after testing it and finding it in accordance with "appropriate rational criteria". Moral justification is required for the assertion made on the object of moral judgement. Moral justification meets the why-questions. For instance, 'Why is an action right or wrong?
Moral justification, therefore, involves reasoning. According to J. Hartland-Swann, reference to certain factors as reason is required for the justification of moral judgement. Justification depends on a number of variable factors that may be offered "as a reason in the form of because-clause". Hartland's because-clause and what I call why-question are used to mean the same thing.
Even Raphael writes, " The statement that a man deserves punishment is justified by the fact that he has deliberately acted contrary to duty". But for retributivists who insist that punishment is justified only if it is just, and for communicative theorists who insist that punishment is just and justified only if it communicates an appropriate censure to those who deserve it, the matter is harder: for to maintain our present practices, even while seeking their radical reform, will be to maintain practices that perpetrate serious injustice see Murphy ; Duff , ch.
Third, the relation between the ideal and the actual is especially problematic in the context of punishment partly because it involves the preconditions of just punishment. That is to say, what makes an actual system of punishment unjust ified might be not its own operations as such what punishment is or achieves within that system , but the absence of certain political, legal and moral conditions on which the whole system depends for its legitimacy see Duff , ch.
Recent scholarship on punishment has increasingly acknowledged that the justification of punishment depends on the justification of the criminal law more generally, and indeed the legitimacy of the state itself see s.
For example, if the state passes laws criminalising conduct that is not justifiably prohibited, then this calls into question the justification of the punishment it imposes for violations of these laws. Similarly, if the procedures by which criminal justice officials apprehend, charge, and prosecute individuals are unjustified, then the subsequent inflictions of punishment will be unjustified as well see Ristroph and ; on specific aspects of criminal procedure, see, e.
Fourth, theorists of punishment should also attend to various kinds of coercive measure that can be imposed on those who have committed, or are thought likely to commit, crimes.
One question is whether these burdens ever themselves constitute, as some have suggested, forms of punishment; another question is when, if ever, such restrictive policies are justifiable see, e. Many coercive measures are imposed even on those who have not been convicted, such as the many kinds of restriction that may be imposed on people suspected of involvement in terrorism, or housing or job restrictions tied merely to arrests rather than convictions.
Finally, theoretical discussions of criminal punishment and its justification typically focus, as this discussion has focused, on criminal punishment in the context of domestic criminal law. But a theory of punishment must also have something to say about its aims and justification in the context of international criminal law — about how we should understand, and whether and how we can justify, the punishments imposed by such tribunals as the International Criminal Court: for we cannot assume that a normative theory of domestic criminal punishment can simply be read across into the context of international criminal law see Drumbl Rather, the imposition of punishment in the international context raises distinctive conceptual and normative issues.
Another important question is how international institutions should assign responsibility for crimes such as genocide, which are perpetrated by groups rather than by individuals acting alone. Such questions arise in the domestic context as well, with respect to corporations, but the magnitude of crimes such as genocide makes the questions especially poignant at the international level.
Several scholars in recent years have suggested that rather than focusing only on prosecuting members of the groups responsible for mass atrocities, it may sometimes be preferable to punish the entire group qua group. A worry for such proposals is that they risk inflicting punitive burdens on innocent members of the group. In response to this concern, defenders of the idea of collective punishment have suggested that it need not distribute among the members of the group see Erskine , Pasternak , Tanguay-Renaud ; but see Hoskins b , or that the benefits of such punishment may be valuable enough to override concerns about harm to innocents see Lang Primoratz , Honderich , and Ellis are useful introductory books.
Duff and Garland ; Ashworth, von Hirsch; and Roberts ; and Tonry are useful collections of readings. Hoskins nottingham. Legal Punishment and its Justification 2.
Punishment, Crime, and the State 3. Consequentialist Accounts 4. Retributivist Accounts 5. Punishment as Communication 6.
Mixed Accounts 7. Legal Punishment and its Justification The central question asked by philosophers of punishment is: What can justify punishment? Punishment, Crime, and the State Legal punishment presupposes crime as that for which punishment is imposed, and a criminal law as that which defines crimes as crimes; a system of criminal law presupposes a state, which has the political authority to make and enforce the law and to impose punishments.
Consequentialist Accounts Many people, including those who do not take a consequentialist view of other matters, think that any adequate justification of punishment must be basically consequentialist.
Retributivist Accounts Whereas consequentialist accounts regard punishment as justified instrumentally, as a means to achieving some valuable goal typically crime reduction , retributivist accounts contend that punishment is justified as an intrinsically appropriate, because deserved, response to wrongdoing but see Berman for an argument that some recent versions of retributivism actually turn it into a consequentialist theory.
Punishment as Communication Perhaps the most influential version of retributivism in recent decades seeks the meaning and justification of punishment as a deserved response to crime in its expressive or communicative character.
Further Issues The previous sections sketched the central contemporary accounts of whether and how legal punishment can be justified—and some of the objections and difficulties that they face. Bibliography Primoratz , Honderich , and Ellis are useful introductory books. Adler, J. Alexander, L. Altman, A. Anderson, J. Ardal, P. Ashworth, A. Roberts eds.
Duff and S. Zedner, and P. Tomlin eds. Bagaric, M. Baker, B. Cragg ed. Barnett, R. Becker, L. Bennett, C. Bentham, J. Berman, M. Green eds. Bianchi, H. Bickenbach, J. Boonin, D. Bottoms, A. Ashworth and M. Wasik eds.
Braithwaite, J. Tonry, Chicago: University of Chicago Press, — Brettschneider, C. Brooks, T. Burgh, R. Chiao, V. Flanders and Z. Hoskins eds. Christie, N. British Journal of Criminology , 1— Cottingham, J.
Dagger, R. Laborde and J. Maynor eds. Daly, K. Davis, L. Davis, M. Tonry ed. How Much? Deigh, J. Demetriou, D. Dempsey, M. Dimock, S. Dolinko, D. Dolovich, S. Drumbl, M. Duff, R. Besson and J. Tasioulas eds. White ed. Green and B. Leiter eds. Garland eds. Farmer, S. Marshall, and V. Falls, M. Farrell, D. Feinberg, J. Finkelstein, C. Flanders, C. Frase, R. Garland, D. Garvey, S. Golash, D. Goldman, A. Hampton, J. Hanna, N. Hare, R. Hart, H. Heffernan, W.
Kleinig eds. Hegel, G. Knox, Oxford: Oxford University Press Holroyd, J. Honderich, T. Horder, J. Hoskins, Z. Hulsman, L. Husak, D. Imbresevic, M. Johnstone, G. Kant, I. Mary J. Gregor, Cambridge: Cambridge University Press, Kaufman, W. Kleinig, J. Knowles, D. Lacey, N. LaFollette, H. Lang, A. Law and Philosophy , , Special Issue on V. Tadros, The Ends of Harm , Volume 1— A distinction has been drawn between two types of deterrence: individual or specific and general deterrence.
Individual deterrence refers to the aim of imposing punishment to deter individuals who have already offended from doing so again. General deterrence justifies the imposition of punishment to deter other potential offenders. The logic of this theory is that if the imposition of criminal punishment deters people from committing crimes then the general public can enjoy a greater sense of safety and security Hudson, Deterrence has often been criticized for being neither effective or morally acceptable.
The research evidence is generally inconclusive on whether punishment deters potential offenders from committing future crimes. Furthermore, deterrence allows for punishments to be imposed that are disproportionate to the harms done, for the innocent to be punished and for the punishment of crimes that have not yet been committed Hudson, ; see also von Hirsch et al. The central premise of rehabilitation is that punishment can prevent future crime by reforming the individual offender's behaviour.
Rehabilitation may involve education and vocational programmes, counselling, intervention programmes or skills training. The behavioural premise of this theory of punishment is that criminal behaviour is not a rational choice, but determined by social pressures, psychological difficulties, or situational problems of various kinds Ashworth, Although once dominant in penal discourse, the ideal of reform became discredited in the early s, partly due to research results which suggested that penal measures intended to reform offenders were no more effective than punitive measures in preventing recidivism Martinson, ; Cullen and Gendreau, Furthermore, rehabilitative approaches have been criticized for holding an overly-deterministic view of behaviour, that places too much emphasis on social and cultural conditions, and too little on the ability of individuals to make decisions and choices.
It also conflicts with the idea of a right not to be punished disproportionately and places no limits on the extent of treatment or intervention.
Yet, reform remains a key rationale within many penal systems, justifying punishment which aims to address and reduce the risk and needs of individual offenders see Zedner, While reparation in criminal justice, at the international level, can be traced back to the late s UNODCCP, , the concept of reparation has been the subject of increased attention in recent years. The justification of reparation in criminal justice is based on the idea that crimes should be corrected by requiring that offenders make amends to victims to repair the wrong that they have done.
Restitution and compensation to victims, their families or communities, should therefore be a key objective of criminal justice. Furthermore, states should endeavour to provide financial compensation to victims when the offender is not able to compensate the victim for the harm caused , article Proponents argue that restitution can be implemented at different points throughout the criminal justice process, as part of a sentence or as a sanction in itself.
Not only does it offset some of the harm done to victims, it provides a "socially constructive way for the offender to be held accountable, while offering the greatest possible scope for rehabilitation" UNODCCP, , p. In recent years, there has been strong emphasis on the development of restorative justice interventions that bring together key stakeholders in the offence the state, the offender and the victim to decide on the appropriate response to the offence, and of restorative goals such reparation to the victim and the community Ashworth, If there is no individual or identifiable victim or if the victim is unwilling to participate , reparation can be made to the community, as a whole, through community service sanctions, or paying a fine into public funds.
Critics of reparative approaches, however, argue that rather than empower stakeholders, such initiatives may actually undermine the rights of victims and offenders.
Defendants may suffer from a lack of procedural safeguards, failure of adherence to due process, and lack of access to legal advice. Victims may feel burdened by responsibility for their offender's future and may feel pressured to offer forgiveness.
Proponents of restorative justice and the principle of reparation often argue, however, that such criticism is "born of undue pessimism or an unwillingness to think beyond the conventions of the punishment paradigm" Zedner, , p.
For further information on restorative justice, see Module 8. In sum, there are five key rationales or justifications for the imposition of criminal punishment, all of which have their supporters and critics in modern societies. Importantly, the goals of criminal justice systems described above are not static, but can evolve, shift and even merge over time, often because of contemporary cultural values and political priorities see Garland, While there is much debate regarding the relative weight that should be given to the differing aims in the administration of criminal justice, it is increasingly acknowledged that retributive punishment must be balanced with other considerations that will contribute to the rehabilitation of the offender, the restoration of the victim, and the protection of society in the long-term.
The various rationales for criminal punishment can be achieved with non-custodial measures. Accordingly, the international community has recognized that effective criminal justice responses necessitate that sentencing authorities have a wide range of penalties at their disposal.
The Commentary to The Tokyo Rules advocates that sentencing authorities "should be guided by the principle that imprisonment should be a measure of last resort" and that "every effort should be made to apply non-custodial measures" , p. Recognizing the different goals of the administration of criminal justice, The Tokyo Rules emphasize that states should "ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention" , Rule 1.
At the same time, the Rules call on member states "to develop non-custodial measures within their legal systems" to reduce the use of imprisonment, and to "rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender" , Rule 1. According to the Commentary to The Tokyo Rules, non-custodial measures are of "considerable potential value for offenders, as well as for the community", and can be an appropriate sanction for a whole range of offences and many types of offenders , p.
The following sections of this Module will consider the use and implementation of a wide range of non-custodial sanctions that are available to relevant authorities at different stages of the criminal justice process. Doha Declaration. Education for Justice. What is Good Governance?
0コメント