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Essay on Various Theories of Punishment

January 25, 2019 0 Comment

(i) Deterrent theory;

(ii) Preventive theory;

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(iii) Retributive theory;

(iv) Reformative theory;

(v) Expiatory theory.

(1) Deterrent Theory of Punishment:

The chief end of the law of crime is to make the evil-doer an example and warning to all those who are like minded. Offences are committed by reason of conflict between the interests, real or apparent, of the wrong-doer and those of society at large. Punishment prevents offences by destroying the conflict of interests to which they owe their origin—by making all deeds which are injurious to others, injurious also to the doers of them by making every offence, in the words of Locke, “an ill-bargain to the offender”.

(2) Preventive Theory of Punishment:

Punishment is, in the second place, preventive or disabling. Its primary and general purpose being to deter by fear, its secondary and special purpose is, wherever possible and expedient, to prevent a repetition of wrong doing by the disablement of the offender. Imprisonment is disablement by isolation.

The most effective mode of disablement is the death penalty, which in practice, in time of peace, is confined to the crime of murder, though it is legally possible for treason and certain forms of piracy and arson.

All similar secondary purpose of preventive theory of disablement is served by forfeiture of office, the suspension of driving licences, and the old penalty of exile. In modern times the disabling aspect has been emphasised by statutes conferring upon Judges power to sentence habitual offenders to preventive terms of imprisonment in the form of enhanced imprisonment.

(3) Retributive Theory of Punishment:

Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves of the satisfaction of that emotion of retributive indignation which in all the healthy communities is stirred up by injustice.

Retribution was formerly based on the theory of revenge—”an eye for an eye and tooth for tooth.” Today, on the other hand, the retributive theory is based on the idea that punishment is the necessary alkali to neutralise the evil effects of the crime.

“Crime is the first half but the punishment the second half.” The idea behind the retributive punishment is that of the restoration of the moral order, the appeasement of the disturbed conscience of society itself, and the maintenance of the concerning power of the State which becomes aggrieved when a crime is committed and inflicts punishment to set matters right.

(4) Reformative Theory of Punishment:

Punishment in the fourth place is reformative. Offences are committed through the influence of mating or by a change of character. The curative or medicinal function is practically limited to two particular species of penalty, namely, imprisonment (where it pertains to the ideal rather than to the actual) and probation.

The new science of criminality would go far towards identifying crime with disease, and would willingly deliver many classes of criminals out of the hands of the men of law into the hands of men of medicine. Imprisonment and probation, indeed, are the only important instruments available for the purpose of a purely reformative system. It is the most controverted theory.

(5) Expiatory Theory:

This theory is peculiar in nature which is properly explained in Hindu Jurisprudence. This is also named as theory of penance. According to this theory punishment is necessary for the purification of the offender.

According to Manu “Men who are guilty of crime, when condemned by the king become pure and go to heaven in the same way as good and virtuous men go.” The theory is historical one. Expiation is to some extent akin to the idea of retribution.

Fry observes that punishment should be in order to ‘adjust the suffering to the sin’. Oppenheimer is of the opinion that punishment is the purification not of the individual alone but of the humanity as a whole.

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