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1. Introduction 3.
2. Research Methodology 4.
7. Conclusion 17.
8. Bibliography 18.
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Introduction
The present paper will briefly examine the two dominant consequentialist and non-
consequentialist theories of criminal punishment--utilitarianism and retributivism,
respectively and the middle way between them i.e Hybrid form of punishment.
3
Research Methodology
Present paper attempts to find a middle way between two seemingly opposing
justifications of punishment .
Scope of the present paper is to conceptualise and to analyse the utilitarian , retributive
and the Hybrid theories of punishment.
Research Questions:
Chapterisation:
First chapter, as is evident by the title, aim to bring into light the utilitarian approach of
the punishment.
Second chapter has dealt with the retributive account of justification of punishment
Third chapter focuses on Hybrid theory of punishment that essentially try to reconcile
both the approaches.
Sources of Data:
Mainly secondary sources of data such as articles, books and electronic resources have
been used to answer the various research questions.
4
Utility of Punishment
Utilitarianism is mostly associated with the name of Jeremy Bentham. Although he was
not the first thinker to employ utility or the ‘greatest happiness’ principle as the standard
for right and wrong, he is nonetheless, widely regarded as the founder of modern
utilitarianism. Bentham presented his ethical theory of utilitarianism in his book, An
Introduction to the Principles of Morals and Legislation1, published in 1789.
This theory is viewed as a consequentialist theory where the actions are justified or
condemned by their tendency to have consequences that are pleasurable or painful. Its
ultimate foundation, thus, is the thesis that no actions are intrinsically right or wrong-it is
only their consequence with regard to the pain and the pleasure, which gives them the
moral status of being wrong or right.2
This view requires a moral obligation on the part every individual to promote the pleasure
of all who are affected by his or her acts equally. But the question arises: How can a
social order whose individual members are all egoists get those individuals to act
altruistically? Bentham's solution to this practical social problem is his theory of
sanctions whereby he proposes since individuals will perform antisocial acts whenever
their doing so will promote their own pleasure, such activity must be discouraged by
making its consequences painful to the agent.3
As far as the measurement of the punishment is concerned Bentham suggests that a
punishment must not be less severe than what is required to outweigh the benefit secured
by the offence. It is also suggested that punishment should not be more severe than what
is required to attain its purposes.4
1
Jeremy Bentham, An Introduction to the Principles of Morals and
Legislations, (H.L.A. Hart, et.al., eds., Clarendon Press: Oxford, 1996).
2
I Primotraz, “The Utility of punishment: Benatham”, in, G J Posternal (ed.),
Bentahm : Moral political And Legal Philisophy, (Ashgate publishing Co.:
Burlington, 2002), Vol. II, p. 331.
3
See, http://philosophy.fullcoll.edu/res/profiles/bentham.pdf, visited on 11 th
Nov. 2003.
4
I Primotraz, “The Utility of punishment: Benatham”, in, G J Posternal (ed.),
Bentahm : Moral political And Legal Philisophy, (Ashgate publishing Co.:
5
Retributive Justice And Legitimacy .
“Even if a civil society were to dissolve itself by common agreement of all its
members (for example, if the people inhabiting an island decided to separate and disperse
themselves around the world), the last murderer remaining in the prison must be
executed, so that every one will duly receive what his actions are worth and so that the
bloodguilt thereof will not be fixed on the people because they failed to insist on carrying
out the punishment; for if they fail to do so, they may be regarded as accomplices in this
public violation of justice.”7
6
This theory clearly holds that criminal guilt deserves punishment and non-
criminal people have a moral duty to inflict the same. This theory is based upon the
concept of reciprocity. This implies that in order to enjoy the benefits of a legal system,
each man must make certain sacrifices, which is to obey the law irrespective of personal
liking.
The Criticism of this theory is that retribution makes good sense only in those
communities where it consists of responsible individuals of approximate equality. In the
present human societies many people neither benefit nor participate in the society due
inbuilt disadvantages.8
Another criticism in the opinion of the researcher of this theory is that it might be in
contradistinction with utilitarian approach in some areas but it is not totally devoid of the
utilitarian philosophy as it pretends to be. It is submitted that the very notion of giving
criminals their due desert acts as means to maintain order in the society which is nothing
but promotion of pleasure of society as viewed by Bentham.
8
J G Murphy, Retribution, Justice and Therapy – Essays in philosophy of
Law, (D Reidel Pub. Co.: Holland, 1979), p. 79.
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Finding A Middle Way
However there have been philosophers who believed that both the theories of punishment
apart from their inherent difficulties have an important contribution to make- that each
has grasped a part of truth about the moral basis of the punishment. They have held that
one should try for a synthesis, which would avoid the outright mistakes of both and
would incorporate important aspects contained in both the theories.9
Mixed theories differ from such eclectic approaches towards punishment. They do not
supply any essentially new insights concerning the general justification of punishment or
the aims at sentencing. Rather, they draw upon elements both from retributivist and
utilitarian approaches to form ‘hybrid’ accounts of punishment. In such hybrid accounts,
through the combination and integration of retributive and utilitarian principles, one type
of reasoning is moderated or limited by the other type of reasoning. This makes hybrid
accounts of punishment theoretical and practical alternatives for strict retributive or
utilitarian reasoning.
9
I Primoratz, “The Middle Way in The Philosophy of Punishment”, in R
Gavison (ed.), Issues in Contemporary Legal Philosophy-The Influence of H L
A Hart, (Clarendon Press: Oxford, 1989), p.194.
8
1. Utility (i.e., the common good) as the general justification for the practice. The
negative retributive principle is superimposed to limit punitive action aimed at
prevention: Only the guilty may be punished and only to the extent of their desert.
2. Retribution as the general justification for the practice. Retributive demands on
punishment are toned down by utilitarian considerations. Although retribution provides
the general justification for the practice, ‘justice’ no longer dictates punishment to be
meted out to the extent of the offender’s desert. Rather, utilitarian considerations allow
for punishing less than would be indicated by desert, and may even allow for refraining
from punishment altogether.
Rule-Utilitarianism
Rule- utilitarian theory of punishment attempts to bridge the gap between utilitarianism
and retributivism by providing a synthesis which is basically utilitarian, but makes room
for considerations of justice and desert as well. 10 The classic formulation of this theory is
presented by John Rawls whereby he makes distinction between the roles of legislator
and that of a judge.
“One can say, then, that the judge and legislator stand in different positions and look in
different directions: one to the past, the other to the future. The justification of what the
judge does, qua judge, sounds like the retributive view; the justification of what the
(ideal) legislator does, qua legislator, sounds like the utilitarian view. Thus both views
have a point (this is as it should be since intelligent and sensitive persons have been on
both sides of argument); and one’s initial confusion disappears once one sees that these
views apply to persons holding different offices with different duties, and situated
differently with respect to the system of rules that make up the criminal law.”11
10
Ibid., p.201.
9
With regard to the punishment of the innocent, the rule-utilitarians argue that
punishment of the innocent can never be really socially useful, because once it becomes
public knowledge that an innocent has been punished, this will undermine the rule broken
and the harm caused by it will be far more than the benefit initially accrued. Another
possibility of argument is that the punishment of the innocent assumes that the judge has
the authority particular cases on utilitarian grounds but this possibility has already been
done away with by the very notion of rules.12
H L A Hart
Hart’s views on punishment are quite similar to rule-utilitarian. He says that a ‘morally
tolerable’ theory must exhibit a compromise between distinct and partly conflicting
principles. He suggests that the way to do it is to distinguish the question of ‘general
justifying aim’ and that of ‘distribution’. By ‘general justifying aim’ he means the
question of justification of the institution of punishment and by the question of
distribution he means: who gets punished and how much?13
11
Quoted from, S Freeman, (ed.), Collected Papers-John Rawls, (OUP: New
Delhi, 1999), p.21.
12
I Primoratz, “The Middle Way in The Philosophy of Punishment”, in R
Gavison (ed.), Issues in Contemporary Legal Philosophy-The Influence of H L
A Hart, (Clarendon Press: Oxford, 1989), p.202.
13
Ibid., p.204.
10
they are disproportionate. He also includes considerations of mitigation in the punishment
not because of any utility but because justice requires considering those who faced
difficulties in obeying the law they have broken. 14
Conclusion
If we scrutinise both the theories closely we find that both the theories require the legal
force to be democratically legitimate. Both require law to secure freedom for individual.
Yet both Bentham and Kant require these similar conditions for different reasons.
Hybrid theories come up with a basically utilitarian approach constrained by retributive
principles.
14
Ibid., pp.204-206.
11
For a brief period in the middle of the twentieth century, it was widely believed that the
problem of punishment had finally been solved. The purported solution involved taking
elements from both the utilitarian and the retributive theories and creating a “mixed” or
hybrid theory. From utilitarianism came the idea that the ultimate goal of punishment was
to prevent crime; from retributivism came the idea that punishment must be in response
to a prior wrongdoing and be proportionate to that wrongdoing. Hence we could have the
best of both worlds; a rational explanation for punishment as well as moral constraints on
its use. It however soon became clear that this solution was untenable and even
incoherent. It requires arbitrarily separating the two theories without any rational basis;
retributivists will object to the idea that the purpose of punishment is utilitarian;
utilitarian will object to the arbitrary inclusion of constraints on the maximization of
utility. The solution is utterly ad hoc and hence unacceptable .
12
Bibliography
Articles:
Books:
Miscellaneous:
13
1. http://philosophy.fullcoll.edu/res/profiles/bentham.pdf,
visited on 11th march 2020.
14