This theory follows the notion that the greatest good for the greatest number of people should be the principle of conduct. Pdf kantian and utilitarian ethics on capital punishment. Utilitarianism, punishment, and ideal proportionality in. Both theories assume that human actions are based on rational decisionsthat is, they are informed by the probable consequences of. Lyons, the forms and limits of utilitarianism, oxford, 1965, pp. Maximization the view that the value of a state of affairs should be made as great as possible. Punishment may take forms ranging from capital punishment, flogging, forced labour, and mutilation of the body to imprisonment and fines. So let us now consider whether any of the three utilitarian flavored theories of. Utilitarian theorists believe that punishment should be developed based on what is best for the public as a whole.
Recent scholarship on theories of criminal punishment has increasingly. The humanitarian theory of punishment my contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being. Explanation incapacitation is a reductivist or forward looking justification for punishment. The only thing that matters on a utilitarian theory is increasing utility. George hegel and immanuel kant criticized and rejected the utility theory, presented the contrast retributive theory of punishment, which is of non utilitarian on the premises that punishment is not means to an end but end in itself. One theory of punishment is called the utilitarian philosophy, and generally assumes that whatever is best for society in general is the best course of action. Utilitarian view on persistent use of corporal punishment in secondary schools in kisii central sub county, kenya stephen okone and george makori egerton university abstract. Utilitarian theory assumes that happiness is the ultimate good, and other goods are whatever brings greater happiness. Punishment in the form of incarceration, then, benefits society as a whole because happiness is maximized when individuals are protected from becoming future victims of a known past offender. Rational choice is based on economic theory derived from the same utilitarian tradition. In his opinion, deprivation of human life by state authorities during the reign of peace should be prohibited because it does not produce any utility. Utilitarian view on persistent use of corporal punishment in. The idea of utilitarianism, when applied to the criminal justice system can benefit those involved because what is best for society is an ethical question, one that must be answered.
We should combine our forces o make sure no criminal gets away b. Utilitarianism states that the result of an act is the real measure of whether it is good or bad. Rosen, utilitarianism and the punishment of the innocent. It is for them alone to point out what we ought to. For example, selling drugs on north america can translate into a conditional sentence, or even jail time, but in parts of the world it can warrant the death penalty. We discussed the first on april 15 and the second on april 20. The objectives of punishment were then related to attributions regarding the cause of a transgression. If any further punishment is inflicted for utilitarian reasons, it will be simply, as mr. He added that in this theory, punishment is applied in order to do. If punishment is inflicted, there will be less crime committed thereafter than there would be. Proponents of the incapacitation theory of punish ment advocate that offenders should be prevented from committing further crimes either by their temporary or permanent removal from society or by some other method that restricts their physical ability to reoffend in.
These counterintuitive results suggest there is something wrong with utilitarian premises. The humanitarian theory removes from punishment the concept of desert. Rational choice, deterrence, and social learning theory in. A humanitarian theory is a variation of utilitarian theory that advocates therapy and treatment, not punishment.
The classical school of criminology advocated for better methods of punishment and the reform of criminal behaviour. Retributivism was the clear beneficiary of such an approach. Therefore punishing a criminal, is justified only if it results in a net increase of pleasure for. Bentham begins by laying out the principle of utility. How, on the utilitarian theory, does scapegoating differ from punishing a guilty person to deter. The utilitarian theory of punishment university of north. November 29 2009 a comparison of utilitarian theory and. We pay the penalty because we owe it, and for no other reason. In other words, the monetary loss of the sufferer is compensated and the criminal has to compensate for the loss. The term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for certain purposes. The utilitarian authors will offer answers to such questions as. Utilitarianism is hard universalism that is that there is an absolute, universal principle of morality which is not subject to cultural interpretation.
The retributivist and utilitarian theories for justification of criminal punishment. Modern theory of punishment modern theory of punishment is a combination of all the theories discussed above. For paternalist theories of punishment, the normative question instead becomes. Theories of punishment legal definition of theories of punishment. Utilitarian punishment theory justified in the purpose it serves. Utilitarianism is the view that the rightness of an action depends entirely on expected utility, that is on the sum of the utilities of its consequences weighted by their various probabilities. Utilitarianism in crime and punishment by katie jander on prezi.
If the public does not believe that punishment is consistent for every offense of a certain crime then, even with notice, the potential punishment may not deter an. Nov 29, 2009 a comparison of utilitarian theory and retributive justicepresented by austin cohenjus 303professor ratnabalasuriar slideshare uses cookies to improve functionality and performance, and to provide you with relevant advertising. Green does what he believes kant ought to have done. Jeremey bentham the following is composed of selections from benthams an introduction to the principles of morals and legislation of the principle of utility.
The retributive or retributivist theory of justice considers punishment as an intrinsically appropriate. Garland confronts the greatest excesses of foucault in beyond the power perspective. Punishmentretribution, rehabilitation, and deterrence. Utilitarianism provides the chief rival justification for criminal punishment, and. Utilitarianism, in normative ethics, a tradition stemming from the late 18th and 19thcentury english philosophers and economists jeremy bentham and john stuart mill according to which an action is right if it tends to promote happiness and wrong if it tends to produce the reverse of happinessnot just the happiness of the performer of the action. The metaethic presupposed by my argument is an intuitionist one, but, as i have noted elsewhere.
This is because some of its arguments are subject to criticism. On the utilitarian and retributive justifications of punishment. Utilitarian theory retributive theory the utilitarian theory this theory stresses that punishment is entirely futurelooking for that one should be punished inorderto not because of hosper, 1967. The belief was that for a criminal justice system to be effective, punishment must be certain, swift and in proportion to the. So innocents are likely to be punished which is harsh.
The most widely accepted rationale for punishment in the united states is retribution. Reformative theory of punishment pdf download this paper open pdf in browser share email add to. These tensions in humes position have led some commentators to conclude that it is not easy to say where hume stood on this issue. Utilitarianism in crime and punishment by katie jander on. Although the view that punishment is to be justified on utilitarian grounds has obvious appeal, an examination of utilitarianism reveals that, consistently and accurately interpreted, it dictates unjust punishments which are unacceptable to the common moral consciousness. This theory emphasizes end over means, therefore it is a teleological or consequentialist ethical theory. Punishment theories of punishment utilitarian, society, theory.
The outlawing of corporal punishment cp in kenyas schools in the year 2001 was a significant step towards promoting education achievement in the country. Posted by andrew on may 5, 2012 in criminal law, key concepts 0 comments. The utilitarian side of the punishment coin states that when someone is punished for committing a crime, the good of the punishment should be greater than the total bad of the crime, and that a punishment shouldnt be unlimited. A more pure form of utilitarianism is required to achieve utilitarian goals with hard and fast.
As utilitarianism aims at maximizing utility or happiness, it follows that punishment should be applied when it leads to an improved situation. One of raskolnikovs motivations for committing the crime is the concept of utilitarianism. A major focus is on the deterrent effect of a criminal statute because if a criminal statute deters a criminal act then the public benefits because the crime does not occur. Utilitarian justifications for punishment our first theoretical foray into punishment is the utilitarian perspective. For menninger, punishment is nothing but the infliction of pain and suffering. The class of individuals that a utilitarian theory regards as objects of moral concern is typically dictated by its account of wellbeing. Utilitarian deterrence theory is a legal principle that a person should be punished only if the punishment benefits society. Utilitarianism an ethical theory according to which the rightness and wrongness of acts depends entirely on facts about the maximization of overall wellbeing. Jan 31, 2012 the utilitarian theory of punishment i. Punishment is awarded to reduce crimes and used as means to an end, is the claim of the utilitarian. For example, a gravely ill criminals incarceration no longer benefits society because he is unable to commit. The scope problem in punishment philosophy in action.
Kants theory of punishment utilitas cambridge core. Much debate surrounds how to punish criminal offenders. 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. I end by arguing that, given the insights of behavioral psychology, utilitarian goals of punishment are not sufficiently accomplished under limiting retributivism. Mong peacetime exercises of state power, the most vivid and principally problematic is arguably the practice of punishment. Reductivism is underpinned by the theory of moral reasoning known as utilitarianism,which maintains that an act. Feb 28, 2017 modern theory of punishment modern theory of punishment is a combination of all the theories discussed above. This theory stems from jeremy bentham and john stuart mills who suggested that any action that provides or promotes happiness is right while actions that lead to unhappiness are considered wrong. The commonly identified theories of punishment for lawbreakers are either utilitarian, in that punishment is justified because it leads to a better society by reducing crime, or they are retributive, in that punishment is justified because the convicted criminal is morally deserving of punishment.
In this article, i advance a new conceptual spin on the mixed theorist approach to criminal punishment one that can hopefully. Utilitariandeterrence theory law and legal definition. The utilitarian justification for punishment sounds good on the surface, but boonin identifies several problems. Kantian and utilitarian ethics on capital punishment. Specifically, a utilitarian theory tends to regard as objects of moral concern all individuals capable of having wellbeing.
One gave an overview of the utilitarian and retributive justifications of punishment. The other presented what he called the expressive theory of punishment. Social norms, necessity, and social desirability are some of the factors that lawmakers balance when developing punishment statutes. The contributions of these philosophers regarding punishment still influence modern corrections today. Theoretical attacks on utilitarianism the decline of utilitarian punishment and sentencing was also greatly accelerated by the fact that at the theoretical level there was a move towards. Greens theory of punishment, history of political thought forthcoming. May 05, 2012 another problem for utilitarian theorists is that, for the theory to work properly, other factors such as moral culpability or remorse cannot be weighed in determining punishment. Whatever can be proved to be good, must be so by being shown to be a means to something. Utilitarianism in crime and punishment by emmadellaposta.
Two basic goals of punishmentretribution and utilityand the means to those goals, including isolation, rehabilitation, and the creation of fear, were first examined. A problem with the utilitarian theory of punishment. It combines kant and mill resulting in kill, which is prima facie absurd d. Social cohesion, punishment intended to have effect upon honest people, punishing crime is a societal goal because crime is against society itself. So let us now consider whether any of the three utilitarianflavored theories of. Utilitarianism and the capital punishment summary cesare beccaria initiated a new outlook on penal law, including the death penalty. Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. The mistake comes from ignoring the painpleasure dimension of benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion of. Utilitarianism is based on the principle of utility. Punishment is justified because, it is claimed, it helps to control crime. My purpose in this essay is to make this strange comparison instructive. Chief among these is that the utilitarian defense of punishment also implies that we may and, in some cases, should punish the innocent. Utilitarianism utilitarian theory hold that the rightness ofactions is determined solely by the amount ofconsequences they produce.
Our obligation, or duty, in any situation is toperform the action that will result in the greatestpossible balance of good over evil. As utilitarianism is a form of consequentialism, the utilitarian must look to the consequences or outcome of possible punishment to determine when punishment should be applied. Utilitarianism is also a consequentialist theory in that only the consequences of an act count not the intentions which precipitated the act. It gives a forward looking justification and a backward looking justification. Bentham adds that this punishment is reserved for negro slaves guilty of rebellion. A sentence may, however, combine utilitarian ideals with retribution. Nov 04, 2015 theories of punishment can be divided into two general philosophies. The retributive theory seeks to punish offenders because they deserve to be punished. Those who think of bentham as a rationalistic eccentric and of utilitarian ethics as coldly calculating should read the next two paragraphs in which bentham excoriates his fellow countrymen for tolerating such atrocious penalties. The utilitarian justification for punishment appeals to what is best for society in general, and over the long run.
The utilitarian theory of punishment seeks to punish offenders to discourage, or deter. Raskolnikov adopts this theory in order to justify the murder of. Deferred punishments consist of penalties that are imposed only if an offense is repeated within a specified time. Utilitarianism and the theory of justice by charles blackorby, walter bossert and david donaldson august 1999 prepared as chapter 20 of the handbook of social choice and welfare k. Utilitarian theory provides that one should act in a way that produces the best possible result. Retributivism is a theory of justice that applies to the provision of rewards and. Utilitarian theory of punishment 99 indirect consequences stemming from it. Accordingly, these examples are widely thought to illustrate the implausibility of the utilitarian theory of punishment. These families are known as criticallevel utilitarianism and criticallevel generalized utilitarianism.
The term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for. Utilitarian theorists observe that humans have two motivations in life, what bentham 2000, p. It was documented that punishment goals are mediated by the expectancies and affects that are elicited by causal beliefs. The mistake comes from ignoring the painpleasure dimension of benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion of action in a topdown fashion. An attributional examination of retributive versus. In a note on utilitarian punishment 5 and again in a non utilitarian approach to punishment i argued from the logical possibility of such useful unjust punishments and unjust systems of punishment, i. Deterrence theory applies utilitarian philosophy to crime. Utilitarian justifications are forwardlooking consequentialistic in nature. For example, a gravely ill criminals incarceration no longer benefits society because he is unable to commit more crimes, so he may be released. Under the deterrent philosophy, punishment should prevent other people from committing criminal acts. Karl menninger, whose views we considered in chapter two, gives such a theory. The utilitarian theory of punishment seeks to punish offenders to discourage, or deter, future wrongdoing. An introduction to jeremy benthams theory of punishment. Utilitarian concerns play a major role in his theory.
Utilitarianism in crime and punishment the european. Click here to read the utilitarian theory of punishment. If forty stripes save one is the proper punishment for any offence, the fortieth. Utilitarian and retributivist theories of punishment. I also examine certain dualist theories, which attempt to combine elements of retributivism and. Retributive theories are examined in their own right in punishment. All of the questions about the justification of punishment general justification, title and severity will be answered by appeal to the utility value of the consequences of an action.
We will write a custom essay on utilitarian and retributivist theories of punishment specifically for you. Punishment, the infliction of some kind of pain or loss upon a person for a misdeed i. Introduction since the dawn of civilization, societies have felt the need to impose order by regulating human relations and interactions according to a set of laws or code of conduct. Retributist always treat the human being with dignity and honor by saying that the punishment is. Utilitarian and retributivist theories of punishment essay. It is evident that this cannot be proof in the ordinary and popular meaning of the term. In addition, we will give voice to some major objections to the utilitarian theory. Theories of punishment can be divided into two general philosophies. See green, thomas hill, lectures on the principles of political obligation, london, 1882 1941, pp. In summary, the utilitarian believes that people should be punished when, and only when, it maximizes happiness to do so. The aim of the philosophy of punishment is to understand the reason behind administration of punishment and the procedure used in determining the suitable punishment.
Utilitarian theorists observe that humans have two. Utilitarian theories avoid this entailment punishment is, in. On the utilitarian and retributive justifications of. We should combine church and state and obtain a blended view of punishment c. Questions of ultimate ends are not amenable to direct proof. The punishment should help to deter future harmful conduct.
Philosophical analysis of the theories of punishment in. This is the theory of punishment that much of the world adheres to, although the definition of severity varies depending on the culture and country. Utilitarian theories of punishment essay example topics. If convicted, the sentence a defendant receives is always, at least in part, a form of retribution. For one thing, the criterion dispute includes a dispute about whether. Lacey, nicola punishment and the liberal world 1987. Utilitarianism in crime and punishment essay 1874 words. Lessons from, and for, criminal law paul butler introduction punishment is violent, but its violence has a purpose. Utilitarian demands punishment for every kind wrongful act either intended or unintended.
1264 554 941 902 288 23 1182 321 783 565 1265 1221 300 153 1497 1463 1265 1059 27 1279 1063 719 437 173 1473 1357 876 189 1040 727 1463 1109 115 257 366 1183 1165 1458 363 803 233 563 59 1424