Justification of Punishment and the Legal System - Term Paper Example

Lecturer: Presented: Introduction Punishment is the application of an unpleasant action to a person as a reaction to disobedience or conduct that is thought to be against the standards that have been set by the government, a group of people, parents or any other principles that have been set by people in the society defining what is morally wrong or right. The purposes of punishment are different among different people. It might be applied to persuade and put good behavior in to effect among individuals in the society or within the family according to the standards that have been set. The judicial systems are used to punish criminals according to the gravity of the crime. They can be fined, incarcerated or sentenced to death for the gravest offences in some countries such as the US, Japan, China and the Kingdom of Saudi Arabia among others. Corporal punishment is applied by teachers and parents in schools and in the family setting to encourage good behavior among children. The issue of punishment usually raises concerns in regard to the different understanding and application of punishment across different spheres in the society. Contentions arise in trying to determine the standards for determining the severity of a moral violation, and the punishment that fits it. This paper presents a critique of the moral principles that might be used to determine the match between moral violation and punishment. Justification of Punishment Hart postulated some elements that may be used to justify punishment. For example, he argues that the punishment has to be for an offence that is contrary to the set of laws in a particular state and also has to be enforced and undertaken by an authority that is defined by a legal system, which the offender is in breach of (qtd. in Sverdlik, 180). This indicates that the punishment should only be based on particular rules that have been set and therefore punishment for offences that are beyond the legally known rules is not justifiable. This argument leaves teachers and parents in a position whereby they are not justified in regard to the punishments that they give to children. They punish the children depending on their perception regarding what is right or wrong. The appropriateness of the punishment is usually not clear and the legality of punishments in schools as well as at home is disputable. The same case applies in the punishments meted out on individuals who engage in antisocial behaviors in the society. For instance, mob justice is one of the punishments that the public resorts to after catching a suspected criminal. The punishment that such individual receives is usually not based on any legal basis even though stealing, murder and such actions that he/she may be accused of are unlawful. However, the public is not authorized to administer punishment to the offender and therefore should also be charged with the offence of unlawfully punishing a person. Most members of the public do not understand the illegality of mob justice, which at times result in death. The utilitarian perspective of punishment is based on the fact that punishment is not just for reprisal. Rather, it should be administered to a person to change behavior or to maintain social order. Utilitarianism views punishment as unjustified if it is meant to inflict pain on the offender instead of preventing or reforming the offender (Ross, 206). In many criminal justice systems, punishment is viewed as a way of making the criminals pay for the crime committed. This means that punishment is meant to inflict harm to the offender and hence reforming is not the main objective of punishment. Regardless of the person who administers punishment, utilitarianism disputes its legality. The theory holds that punishment and crime are undesirable in the society and therefore they should be reduced. In essence, punishment brings harm to the criminal just as crime leads to harm in the society. It is therefore necessary for teachers and parents to punish children if the intention is to reform and to prevent them from engaging in antisocial behavior. Punishment is unjustified when meted upon the children as a result of failing in exams, which is a practice that is common in many primary and middle schools. The theory also portrays the view that death penalty is not justified since it does not give the offenders time to reform and inflicts harm to the society. On the other hand, Kant viewed punishment as justifiable action towards conduct that is unlawful. He postulated that the punishment meted out on the offender should be equivalent to the gravity of the offence (qtd. in Hodges, 210). In essence, Kant’s theory disregards the correction aspect of punishment. It is assumed that the punishment inflicts substantial pain on the person that is enough to even the score for the pain caused to others. This means that heinous crimes should be punished with severe penalties, which justifies the application of death penalty among other strict forms of punishment. The question that arises is whether Kant’s hypothesis justifies mob justice. Punishment is vindicatory whereby the individual is an end in accomplishment of justice and not an approach of accomplishing a social objective. The criminal is made to understand the meaning of his undesirable activities by undergoing through a painful experience. In a different point of view of Kant’s theory regarding punishment, a murder should be executed. However, the accused that are executed sometimes face the same punishment for different crimes while some are acquitted when they are proved innocent beyond reasonable doubt by the criminal justice systems. However, regardless of whether an accused person has been found not guilty, does not mean that he/she has not committed a crime and therefore according to Kant, none of the offenders should be spared. He views mercy on criminals as unjust. According to the retributive justice theory, proportionate punishment is justified as a moral response that is satisfactory for the accomplishment of emotional benefits to the distressed person, his/her relations and the society in general (Byrd, 152). In other words, the punishment meted out on the criminals should be equivalent to the crime. However, there is a great difficulty in determining the level of punishment to administer to an accused person. Different cultures have different strategies for determination of the intensity of punishment, with the most severe form of punishment ever used being the death penalty, which was used as early as in the as early as in the 14th century B. C. under the Hittite code. It was also used by Romans in the 5th century B. C., in Athens under the Draconian code in the 7th century B. C. as well as in Babylon in the 18th century B. C. during the reign of King Hammurabi. The codified crimes included rape, murder, blasphemy, stealing, incest, adultery and treason among others. Criminals were mostly burnt alive, beaten to death, stoning, crucified or beheaded. In Britain, the most commonly used methods for execution were hanging, boiling alive or beheading. Other forms of punishment included amputation of body parts. These severe punishments have been dropped in many criminal justice systems but some such as death penalty are still being applied in various countries such as the US, Japan and China (Banner, 112). The nature of punishment did not match the magnitude of punishment. Restorative justice differs from the utilitarian and Kant’s theory of punishment in the sense that it views the needs of the criminals and the sufferers as more important than administering punishment to the offender. According to this approach, it is not justified for the state to punish criminals while the crimes have been committed against individuals or the community. The people involved in a particular crime are expected to be proactive in resolving a dispute and for the offender to willingly mend the damages. The victim on the other hand is expected to accept the request for forgiveness as well as repossess any property that could have been stolen. It is assumed that inflicting pain to an offender is wrong and that “two wrongs do not make a right” (Byrd, 152). Kant’s theory that justifies punishment for retribution as well as restorative justice that refutes the validation of punishment have distinct weaknesses in the sense that the former does not promote accomplishment of the purpose of punishment as an action that is undertaken for correction purposes. Retribution does benefit the victim psychologically but may not be useful to the society since it does not prevent the offender from recidivism. On the other hand, restorative justice may be effective in minor offences. However, some of the grave crimes committed against individuals such as rape, murder and other antisocial behaviors may not be easy to deal with through restorative justice. Punishment is justified for such crimes but the magnitude may vary to suit the crime. It is also important to consider reforming the offender to enhance social order. Punishment helps in promoting adherence to the law and therefore the occurrence of crimes is less frequent in the society, which is a significant justification of punishment (Burgh, 194) Conclusion Various theories have been put forward to justify punishment of offenders. The legal system is seen as the basis for justifying punishment. There are many arguments that arise in regard to the legality and type of punishment. Utilitarianism favors punishment that is change oriented and that the punishment should match the gravity of the crime. Kant on the other hand justifies punishment claiming that every criminal needs to be punished. Restorative justice advocates for a collaborative approach towards solving antagonism between the offender and the victim. Punishment is meant for maintenance of order in the society through ensuring that crimes are eliminated in the society and that it does not harm part of the society in favor of the other. The utilitarian approach therefore offers a stronger justification of punishment. References Banner, S. The Death Penalty: An American History, Harvard University Press, 2002. Byrd, B. S. “Kant’s Theory of Punishment: Deterrence in its Threat, Retribution in its Execution” Law and Philosophy, Vol. 8.2 (1989) pp 151-200 Burgh, R. W. “Do the Guilty Deserve Punishment?” The Journal of Philosophy, Vol. 79.4 (1982) pp 193-210 Hodges, D. C. “Punishment” Philosophy and Phenomenological Research, Vol. 18. 2 (1957): pp. 209-218 Ross, W. D. “The Ethics of Punishment”. Journal of Philosophical Studies, Vol. 4.14 (1929): pp 205-211 Sverdlik, S. “Punishment” Law and Philosophy, Vol. 7.2 (1988): pp 179-201 Read More