The strengths and limits of the theory of retributive. Mccloskey, a non utilitarian approach to punishment, inquiry, viii. A critical analysis of retributive punishment as a. In other words, the monetary loss of the sufferer is compensated and the criminal has to compensate for the loss. Theories of punishment, contain generally policies regarding theories of punishment namely. Retributive goals and judgments of punishment deservingness and justness were prevalent when the transgressor had high control and stability, whereas utilitarian goals and corrective instruction. A humanitarian theory is a variation of utilitarian theory that advocates therapy and treatment, not punishment. Therefore, utilitarian theories are evaluated on parameters of success and failure. True deterrence doctrine, according to the utilitarian philosophy of jeremy bentham, allows for the punishment of innocent individuals if doing so would serve a valuable societal function e.
Retributive punishment is neither cruel nor barbaric but civilized because. Reform and deterrence are the theories accepted in principle and increasingly influential in practice. Learn vocabulary, terms, and more with flashcards, games, and other study tools. Retributive justice stanford encyclopedia of philosophy. Modern theory of punishment modern theory of punishment is a combination of all the theories discussed above. In its application, however, proportionality cannot be so easily measured, and this can cause a disparity between theory and practice. Karl menninger, whose views we considered in chapter two, gives such a theory. Prevention of future crimes or rehabilitation of the offender are other purposes of punishment. These theories eventually led to the development of other theories on deterrence, retribution, incapacitation, rehabilitation, and restorative justice banks.
Retribution and the theory of punishments he idea that retribution, along with prevention of crime t and reformation of convicted criminals, plays a role in the nature and practice of punishment is a common theme in accounts of punishment at least since t. The philosopher immanuel kant believed that his retributive theories of justice were based in logic and reason. Pdf an attributional examination of retributive versus. On the one side of the coin, the utilitarian theory of punishment stays, on the other, the retributive system. If we focus on the good of the community to justify our. Retributive, utilitarian and rehabilitative justice compared.
A few proponents of retributive punishment, most prominently philosopher michael moore,5 have attempted to resolve the dilemma of differential punishment by 1. The philosophical debate on punishment converges on the two main theories, namely the retributive and utilitarian. Not sure if you can write a paper on utilitarian and retributivist theories of punishment by yourself. Only a few short decades ago, mabbott stated that in the theory of punishment, retribution has been. Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that she suffers in return. Its main focus is punishment should be an option if it is going to produce an overall good.
Bagaric, mirko in defence of a utilitarian theory of punishment. Retribution is a theory of punishment founded on the belief that those who commit crimes should be punished, and that the severity of the punishment should be proportional to the crime committed. The utilitarian theory seeks to punish offenders to discourage future wrongdoing. Utilitarian theory of punishment 97 about the purposes of sentencing, and it is at this stage that the just deserts approach has been influential in many of the jurisdictions mentioned. Bradleys utilitarian theory of punishment chicago journals.
The utilitarian theory of punishment seeks to punish offenders to. In the retributivist theory of punishment, the punishment is seen as a form of payback for the crimes one has committed. Punishment is an end in itself but utility theory is means to an end. Within the utilita rian theory, the perpetrator is sentenced for. For an overview of sentencing bands in indiana for both misdemeanors and. The retributive or retributivist theory of justice considers punishment as an intrinsically appropriate. Two theories stand at the forefront of punishment being that of the utilitarian, and retributive theories. Pdf two basic goals of punishmentretribution and utilityand the means to those. What is good in itself is just that there is more pleasure and less pain. This question does not arise in retributive theory. In essence, most but not all can fit into two camps, utilitarian and retributive. I begin my inquiry by expounding on the history of retributive and utilitarian theories of punishment, and the specific concepts. Traditionally, deontological justifications, utilitarian justifications, or a mix of the two have been advanced to justify the imposition of punishment upon wrongdoers. Retributive justice in the real world brooklyn law school.
An attributional examination of retributive versus. Study 90 terms adjwondershareqs flashcards quizlet. The theories of punishment can be categorised into four philosophies, the utilitarian philosophy, the retributive philosophy, the abolition philosophy and the denunciation philosophy. Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. One gave an overview of the utilitarian and retributive justifications of punishment. This theory appears to be more humane, punishment at best would be a necessary evil. The objectives of punishment were then related to attributions regarding the cause of a transgression. Much debate surrounds how to punish criminal offenders. Under retributive justice schemes, it is also important that offenders actually be guilty of the crime for which a penalty has been imposed. Utilitarian and retributive punishment 93 smart then suggests that some of the implications of any ethical theory will be unsatisfactory and goes on to commend utilitarianism as more satisfactory than other theories. Retributive theories of punishment emphasize the past by taking punish ment to be the deserved consequent of criminal acts. Retribution is different from revenge because retributive justice is directed only at wrongs.
The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles. In the history of ideas, the most distinguished proponents and. Retributive it makes criminals suffer for what they have done wrong, deterrent the aim of punishment is to stop people from committing crimes, and reformative the object of punishment. The retributive and utilitarian theory of punishment. It is not easy to sum the aspects of each without lengthy discussion. Utilitarianism, punishment, and ideal proportionality in. The idea of deterrence is falsely depicted as the utilitarian contribution to the theory of punishment, while deterrence in fact. The strengths and limits of the theory of retributive punishment.
Philosophical analysis of the theories of punishment in. Garland confronts the greatest excesses of foucault in beyond the power perspective. Two basic goals of punishment retribution and utilityand the means to those goals, including isolation, rehabilitation, and the creation of fear, were first examined. Two theories of utilitarian and retributive punishment 1561 words 7 pages. Utilitarians therefore, have a prima facie difficult time justifying punishment. Utilitarian and retributivist theories of punishment. The other presented what he called the expressive theory of punishment. Punishment retribution, rehabilitation, and deterrence introduction thus far we have examined issues of vice in american law and asked if they should or. But there is no denying the fact that it should be proportional to the crime irrespective of the underlying purpose be it in the just desert model or utilitarian and individualised punishment. Punishmentretribution, rehabilitation, and deterrence. When the utilitarian and retributive principles lead us to the same conclusion, that is a most felicitous circumstance. On the utilitarian and retributive justifications of. We will write a custom essay on utilitarian and retributivist theories of punishment specifically for you. It also requires that the response to a crime is proportional to the offence.
Retributivist utalitarian theories justification criminal. The theories about punishment and justice can pretty much be categorized into three ideas. Apparently most of these theories constitute the basic discipline justification often invoked by society to punish offenders either to avenge a past misdeed, or deter future wrongdoing. There are two of these theories, namely, utilitarian and retributive theories.
In this article, i advance a new conceptual spin on the mixed theorist approach to criminal punishment one that can hopefully. Theories of punishment can be divided into two general philosophies. There is a growing literature on the theories of punishment. This comment argues that the answer to this question, while complex, is ultimately no. Retributive and deterrent theories of punishment youtube. Punishment may have retributive just deserved or utilitarian philosophical underpinnings depending upon the leanings of the governing class. The retributive view of punishment is pastlooking which is paying back by the offender. One of the features of utilitarian theories of punishment is that it focuses on the community, not the individual. Posted by andrew on may 5, 2012 in criminal law, key concepts 0 comments. Retributive, utilitarian and rehabilitative justice compared the three justice theories or views, which include utilitarianism, rehabilitative or a retributive style of justice, are multifaceted.
Thus, the two questions bentham wishes to apply utilitarian moral theory to answer are. This utility outweighs the suffering inflicted on offenders by the act of punishment. An introduction to jeremy benthams theory of punishment. It was documented that punishment goals are mediated by the expectancies and affects that are elicited by causal beliefs. There you have the retributive theory propounded by the. Retributive justice relies on the principle of lax talionis, which requires imposing. For menninger, punishment is nothing but the infliction of pain and suffering. The retributive stance on punishment states that punishment is necessary, and indeed, justified, on the basis that the act of committing crime deserves punishment.
The concept of punishment exists in many different forms, each with conflicting views on how to best approach an offence committed by individuals. According to this theory, it does not matter whether or not the punishment will serve any purpose in future as utilitarian theory holds. Social norms, necessity, and social desirability are some of the factors that lawmakers balance when developing punishment statutes. We discussed the first on april 15 and the second on april 20. Utilitarian theories focus on the greater good of society, and any punishment should benefit the society as a whole. The dichotomy of retributive justice vs utilitarian justice largely reflects the distinction between a consequentialist and nonconsequentialist approach to policy see duff and garland 1994. The justification for the practice of legal punishment is found in its supposed beneficial effects utility for the future. These families are known as criticallevel utilitarianism and criticallevel generalized utilitarianism. Utilitarian concerns play a major role in his theory.
Utilitarian theories are, therefore, often called consequentialist or instrumentalist theories. Pdf an attributional examination of retributive versus utilitarian. Punishment theories of punishment utilitarian, society, theory. Utilitarianism is one of several ethical theories addressing the question of how to assess the goodness of any state of affairs.