Criminal Justice and Legal Reparations as an Alternative to Punishment (original) (raw)
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The age-old debate about what constitutes just punishment has become deadlocked. Retributivists continue to privilege desert over all else, and consequentialists continue to privilege punishment's expected positive consequences, such as deterrence or rehabilitation, over all else. In this important intervention into the debate, Leo Zaibert argues that despite some obvious differences, these traditional positions are structurally very similar, and that the deadlock between them stems from the fact they both oversimplify the problem of punishment. Proponents of these positions pay insufficient attention to the conflicts of values that punishment, even when justified, generates. Mobilizing recent developments in moral philosophy, Zaibert offers a properly pluralistic justification of punishment that is necessarily more complex than its traditional counterparts. An understanding of this complexity should promote a more cautious approach to inflicting punishment on individual wrongdoers and to developing punitive policies and institutions.
The Justification of Punishment: A Comment on Retribution and Deterrence
Israel Law Review, 1991
In this comment I wish to defend Antony Duff's final conclusion; namely, that punishment is to be seen as a deterrent system constrained by requirements of justice. I shall do this, however, mainly by using John Kleinig's arguments. My aim is to show that although Kleinig himself rejects deterrence as part of punishment's justification, some of his arguments can best be defended if deterrence is taken into account. In the final section of the comment I shall return to Duff's arguments in this context, but only in order to raise some doubts as to their underlying assumption. Before doing so, let me compare, briefly, Duff's and Kleinig's attitudes which seem to be relevant to the purpose of this comment. Both Kleinig and Duff believe that, ideally, punishment is to be justified by retributive considerations. According to Kleinig, even in such an imperfect society as ours, punishment should still remain retributive.
Introduction to the Special Issue on the Problem of Punishment: Renewing Critique
Social & Legal Studies, 2018
This introduction presents a collection of papers by Alan Norrie, Craig Reeves, Susanne Karstedt, Tiffany Bergin, Michael Koch, Mary Bosworth, Anastasia Chamberlen, Henrique Carvalho and Anita Dockley. It briefly discusses the origins of this collaborative research project, and outlines the theme, aims and format of the special issue, which calls for an interdisciplinary, theoretically informed and conceptually and practically critical examination of punishment today. It then provides a summary of the approach and argument of each of the contributions to the issue and offers a few reflections on ways forward.
The Purposes of Legal Punishment
Ratio Juris, 2010
There is a vast literature on the meanings of legal penalties. However, we lack a theory that explains them according to the formation of the modern state. Oakeshott's theory can help explain this phenomenon, leading to an attempt of the individual to take over as many powers of the state as possible. Thus, Kant's and Smith's retributivism is the most consistent of all those theories. Nevertheless, the preventive and resocializing theory of Bentham succeeded eventually. But is this a liberal theory? We contrast the explanations of H.L.A. Hart and Frederick Rosen in order to lay the groundwork for a liberal theory of the meaning of legal sanctions.
Legal and Socio-Ethical Issues in Punishment
Journal of Law Policy and Globalization, 2013
The purpose of this paper is to reflect on the legal and socio-ethical implications of punishment. We have reviewed existing literatures on punishment with a view to establish a synthesis of scholarly opinions on punishment. It is appropriate for civil authorities to be properly educated on the functions of punishment. Public policy on punishment should have social dimension. Punishment should be seen as an aspect of social engineering. The study has strongly recommended that the purpose of punishment should ultimately be the reformation of offenders. WHAT IS PUNISHMENTS? Etymologically, the word punishment is derived from Old French punir, and from two Latin words punire, meaning to punish and poena, which means "penalty". According to Oxford English Dictionary (1976:901), the verb form "punish" means: "…to cause (offender) to suffer for offence, chastise, inflict penalty on (offender); inflict penalty for (offence)". The New Encyclopedia Britannica (1975:281) has defined punishment as: ""... the infliction of some pain, suffering, loss, or social disability as a direct consequence of some action or omission on the part of the person punished. The punishment may consist of death, physical assault, detention, loss of civil and political rights, or banishment". Black's Law Dictionary (1979:1) defines punishment as: "... any fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him or for his omission of duty enjoined by law. A deprivation of property or some right". N. S. S. Iwe (1987:246) has identified four essential elements of punishment to be deprivation, contrivance, misdeed or offence and legitimacy. Deprivation means that punishment is characterized by loss of life, liberty or socioeconomic right. Contrivance means that punishment, as a social issue must be viewed perceptively as a direct or indirect consequence of human behaviour. Iwe is of the opinion that this element gives punishment its sociological dimension, for each society defines its own system of punishment to reflect its own level of culture and norms, its own ethos and values. Hence the penal code is usually a reflection and image of its society (1987:246). Misdeed or offence has to do with the occasion and socio-ethical cause of punishment. It must be established prima facie that there is an infringement, or violation of the social order. Iwe writes: "... offence or misdeed must pass the appropriate psycho-moral test before it can qualify for punishment. To pass this test a given misdeed or offence must be truly human act performed with due knowledge, deliberation and voluntariness... The offender must be truly and humanly guilty of an offence before he can be legitimately punished" (1987:246). Legitimacy is a requirement that a competent authority must punish the offender. Such a person, or persons must possess a socio-juristic mandate to mete out punishment to deviants.
Maynooth Philosophical Papers
There is general acceptance that those who break the law must be punished; however, not all agree as to why this is necessary. Some argue punishment is necessary to reform criminals, others to deter criminals, and others because you deserve it, whether punishment reforms or deters. Stripped of metaphors, this paper argues that punishment is retribution, but that a distinction must be made between the definition of punishment as retribution and its justification, if a case is to be made for its moral justification. Thus the most important question the paper raises relates to the justification of punishment as retribution. ________________________________________________________________________ I 1 This is a slightly revised and expanded version of a lecture I gave to the Philosophy Society at NUI Maynooth on ‗The State's Justification of Punishment', on Thursday 20 th November, 2008. I wish to thank the President of the Philosophy Society, Joseph Feely, for the invitation to talk to the Maynooth students' Philosophy Society and the students present at the lecture for their lively engagement and questioning of the issues, both during and after the lecture. I also wish to dedicate this article to the memory of my former teacher and Professor of Philosophy, Professor Matthew O'Donnell, who delivered an insightful public lecture on ‗The Morality of Punishment' to the Maynooth students' Philosophy Society in 1986, if my memory serves me well. Any errors in my analysis are, of course, entirely my own. I would also like to thank Oliver O'Donovan for his critical remarks of an earlier draft of this paper, and which made me clarify further some points made in this final version. 2 Thus J. D. Mabbott's point: ‗Punishment is a corollary not of law but of law-breaking', ‗Punishment', Mind 48 (1939), 152-167 (p. 161). 3 Of course, governments do and could take alternative measures to encourage law-abiding, e.g., they offer inducements, such as tax amnesties, to those who have already broken the law in order to encourage those lawbreakers to conform to existing law without impunity, or governments engage in psychological advertisement campaigns (e.g.-speeding kills‖ with vivid images of those seriously hurt or killed) in order to make people aware of the importance of keeping speed-limits and obeying laws etc. The morality or effectiveness of these measures, however, is not the concern of this article because if you are caught driving over the speed limit, or if you are found not to be paying the requisite amount of tax, after the tax amnesty is over, you are to be punished. The law, then, in the end, needs ‗teeth', so it is believed, in order to ensure conformity, and so, resorts to the threat and actual infliction of punishment, of pain or deprivation of freedom. This is
On Commonplace Punishment Theory
2005
This essay examines three examples of commonplace punishment theory. According to innumerable briefs, judicial opinions, and academic articles, punishment requires proof of culpability, especially if one adopts a retributive theory of punishment. Furthermore, according to commonplace punishment theory, culpability is paradigmatically a matter of intentional states of mind. At least three things are wrong with this picture. First, retribution as a function of punishment is insufficient to define a theory of punishment, because the retributive function can be theorized in a number of ways. Second, culpability is an ambiguous term that should be replaced by the more accurate terms “fault in wrongdoing” and “fair candidacy for punishment.” And finally, intentions are not paradigmatic of criminal fault. On the contrary, the seeming outlier among fault concepts, negligence, is closer to the paradigm of criminal fault.