Theories of Punishment

Theories of why we punish offenders are crucial to the understanding of criminal law; in fact it is not easy to define legal punishment, however one thing is clear within the different theories of punishment is that they all require justification.[1] There are many theories of punishment yet they are predominantly broken down into two main categories. The utilitarian theory seeks to punish offenders to discourage, or “deter,” future wrong doing. The retributive theory seeks to punish offenders because they deserve to be punished due to their behaviour upsetting the balance of society[2].

This essay will consider what legal punishment is; it will draw a distinction between the two main categories.[3] It will focus on utilitarianism otherwise known as consequentialist theory of punishment, in particular a side constrained theory provided by Daniel Farrell.[4] It will look in particular at what it is Farrell is attempting to achieve through his modified theory.[5] It will consider the three questions[6] of justification put forward by Hart[7] in application to Farrell’s theory and finally it will consider criticisms made to Farrell’s theory and the modifications made if any to appease such objections.

With no precise definition of legal punishment[8] it has been described that it is intended to be burdensome or painful on a supposed offender for a supposed crime by a person or body who claims the authority to do so.[9] The practice of punishment must be justified by reference either to forward or to backward looking considerations.[10] If the practice is considered to be forward looking the theory is consequentialist,[11] accordingly the point of practice of punishment is to increase overall social welfare by reducing (ideally, preventing) crime.[12] It is mainly focused on the ways it can prevent future crime either through deterrence, incapacitation or reform/rehabilitation. It justifies punishment as the good brought about by inflicting harm will

Bibliography: Allen, M.J, (2009) Textbook on Criminal Law, 10th edn, Oxford University Press Binder,G Duff,R.A (1986) Trials and Punishments, Cambridge: Cambridge University Press Duff, R.A and Garland Farrell, D.M. (1995) Deterrance and the just distribution of Harm, Social Philosophy and policy 12 Farrell,D.M Goldman, A.H. (1982) Toward a New Theory of Punishment, Law and Philosophy 1 Hart, H.L.A (1968)”Prolegomenon to the Principles of Punishment.” In Punishment and Responsibility: Essays in the philosophy of Law Hegel,G.W.F. (1821) The Philosophy of Rights, trans. T Knox. Oxford: Oxford University Press (1942) Herring, J Hudson (2003) Understanding Justice 2nd Ed. Maidenhead: Open University Press Jeremy Bentham, (1988) The Principles of Morals and Legislation Amherst: Prometheus Books, Kessler Ferzan,K. Justifying Self Defence, Law & Philosophy 2005 24(6) Moore,M.S (1997) Placing Blame: A Theory of Criminal Law, Oxford University Press Nathanson, S., (2001) An Eye for an Eye?-The Immorality of Punishing by Death 2nd edn, Rowman and Littlefield, Newburn, T Punishment:http://legal-dictionary.thefreedictionary.com/punishment (last visited 14/11/2011) Quinn,W Simester,. A,P,. & Sullivan,. G,R. (2003) Criminal Law Theory and Doctrine, 2nd edn., Oxford – Portland Oregon. Hart Publishing Stanford Encyclopedia of Philosophy: http://www.plato.stanford.edu/entries/punishment/.html (last visited 14/11/2011) Toby,J. (1964) Is Punishment Necessary?, Journal of Criminal Law, Criminology and Police Science, vol 55, No 3 Wooton, B Yadav,R.D. (1993) Law of Crime and Self-Defence, Mittal Publications ----------------------- [1] Herring, J. (2010) Criminal Law, Texts, Cases and Materials, 4th edn. Oxford: Oxford University Press, p64 [2] http://legal-dictionary.thefreedictionary.com/punishment (last visited 14/11/2011) [7] Hart, H.L.A (1968)”Prolegomenon to the Principles of Punishment.” In Punishment and Responsibility: Essays in the philosophy of Law. New York: Oxford University Press. p1-27 [8] Stanford Encyclopedia of Philosophy (2008) Legal Punishment [9] Duff, R.A and Garland. D., (eds) A Reader on Punishment (Oxford University Press, 1994), pp1 -2 [10] Forward looking is considered to be a consequentialist and backward looking is considered to be retributivist [13] Newburn, T. (2007) Criminology Devon: Willian Publishing p517 [14] Quoted in Hudson (2003) Understanding Justice 2nd Ed [15] Jeremy Bentham, The Principles of Morals and Legislation (Amherst: Prometheus Books, 1988), p. 1. [18] pleasure [19] http://legal-dictionary.the freedictionary.com/punishment (last visited on 14/11/2011) [20] Goldman, A.H. (1982)Toward a New Theory of Punishment, Law and Philosophy 1 pp57 -76 [21] Moore, M.S (1997) Placing Blame: A Theory of Criminal Law, Oxford University Press, p90 also Herring, J [22] Herring, J. (2010) Criminal Law, Texts, Cases and Materials, 4th edn. Oxford: Oxford University Press, p64 [23] Herring, J [24] Duff,R.A (1986) Trials and Punishments, Cambridge: Cambridge University Press [25] Herring, J [26] Stanford Encyclopedia of Philosophy at http://plato.stanford.edu/entries/legal-punishment (last visited 14/11/2011) [27] Farrell, D.M