Law and Punishment

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LAW AND PUNISHMENT: THE MORALITY, THE RATIONALITY

By

Alloy S. Ihuah.

Department of Philosophy,

Lagos State University,

Ojoo-Lagos, Nigeria.

Text of a Paper delivered at the International Confrerence Organised by the Faculty of Law ROUND-

TABLE, Lagos State Universsity, Ojoo-Lagos, Nigeria, on 24th

March, 2007


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THE MORALITY AND RATIONALITY OF PUNISHMENT

Abstract:

This Paper argues that, law, as an ordinance of reason, directed towards the

common good, and enacted by a sovereign authority that has the care of the community, must

command human obedience and that, those who contravene the law or set rules must be

punished fittingly and appropriately.

Punishment.

Punishment is any act of penalizing the offender by imposing sanction that is in principle

unpleasant, this form of punishment excluding physical harm and denial of the right to life. It

may involve denial of certain physiological needs (rights), or defined prison sentences

administered by a competent authority with the view to rectify past wrongs or to scare off

others from committing an offence out of fear of the penal sanction he/she risks incurring if

caught. Punishment may also take the form of corporal punishment, which here means the

execution of a judicially imposed sentence that inflicts some manner of physical pain upon

the body of a convicted offender excluding his death. This form of punishment involves

flogging branding and facial or bodily mutilation of all types including sterilization,castration and the used of cages.

There is also the extreme form of punishment, i.e,Capital punishment. It entails the

denial of ones right to life. It sanctions death penalty. Its extreme objective is to scare off

people from suffice it to say here that, punishment, minimum or maximum, is in itself not

evil; it is not a long-standing institution whereby the powerful do nasty things to their

subjects. On the contrary, punishment has always been closely associated with the ideas of

law and justice. People are punished only for something they have done or failed to do. It is

in this wise that punishment is understood as sanction imposed on an offender for a breach of

a law or rule, not a gratuitous exercise of power. It must be deserved to be administered on an

offender. J.I. Omoregbe explains this concept further and better thus;

The first meaning of punishment isprivation consequent upon the violation of theorder demanded by law. In this sense, punishment is primarily retributivethe

second meaning of punishmentrelates to the effects its threatened deprivationshave. On account of these, a man may be deterred from future violation or his will

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may be better disposed to choose as he ought, that is according to the demands of thelaw1

Justification of Punishment

All punishment, it is said, must involve the penalizing of the offender-the imposing of

a sanction that is in principle unwelcome. Thus defined, punishment is a sanction for non-

conformity to societal rules and regulations which broadly speaking involves pain. In clear

language, punishment is harm inflected by a rightful authority on a person who has been

judged to have violated a law or a rule2.It is this, and no other reason that i.e. a deprivation

suffered on account of some wrong one by a recipient at the hands of an impotent However,

when a deprivation is suffered by a person believed to have been victimized, it cannot becalled punishment, and in any case it is unjustifiable.

Broadly speaking Philosophers have approached the justification principle of punishment on

two quite different perspectives, namely, teleological approach and retrospective approach

(i) Teleological Approach

This approach argues that punishment is justified on account of some future goal

which it is hoped will be achieved. One does not punish for the sake of a past wrong, since

what is done will never be undone but with the view to the future, in other that the offender

and others who see the punishment will come to detest the crime. The argued view here is

that, the justifying aims of punishment are to reduce the crime rate by:

(a) Prevention and

(b) Deterrence

In the case of prevention, it is argued that if the criminal is punished, say put behind

bars for certain length of time he/she will be out of circulation, this view of punishment hold

that we should punish to ensure that offenders do not repeat their offence and so, further

injure society. The problem with this view is the question of a fitting and appropriate

punishment for a given crime. If the end result turns out to be the reduction in the total given

crime. If the end result turns out to be the reduction in the total amount of crime to be

committed by the individual offender, there is every justification for an appropriate

1 J .I Omoregbe, An Introduction to Philosophical Jurisprudence: Philosophy of Law, Lagos, Joja Educational

Research and publishers Ltd. 1997 p68

2 M. L , Burton: Liberty, Justice, Morals, New York, MacMillan,1973 p195

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punishment for the crime an offender actually committed. John Cottingham alludes to this

educationist approach when he says,

if considerations of justice and proportionality suggest ten years, say, as an

appropriate punishment of a particular offence, there is no reason why

considerations of detention should not require a further five, ten or eventwenty years3

If, when and where this strategy works, as an effective weapon of crime control there

is every reason to suggest that society is justified in punishing. Another most widely

supported account of how punishment is to be justified is the deterrence theory. The Latin

Verb deter ere means, literally to scare off and the central idea of deterrence is that the

criminal will be discouraged from committing an offence out of fear of the penal sanction

he/she risks incurring if caught. Experience has shown however that such conclusion is

unfounded. The high rates of recidivism, even among those who have served long prison

sentences, surely demonstrate that, threat to punishment has little or no effect. Sociologist and

criminologists are wont to argue that the fact that convicted criminals often re-offend

certainly shows that they were not deterred. They aver further that even first offenders are

similarly not deterred by the threat of punishment. But this argument in itself is a

misstatement of theory for practice or better still, fact for reality. The deterrence theorist does

not in any way claim to achieve the unrealistic goal of a total elimination of crime: what it

does claim is that punishing those who do offend will substantially reduce the amount of

crime that would have been committed by others, were there no punishment for offenders.

Indeed, the focus of justification is not on the individual offender who is necessarily a failure

of the system-but on the population at large4.

What we can safely say on this theory is that, on the one hand there are the criminals

who are not deterred by any threat of punishment, and on the other hand there are the honest

citizens, deprived and distressed economically though, they never seriously consider crime as

a necessary option. It must be said without fear of contradiction and does play a vital role inprotecting law and order in general. Immanuel Kants position in this regard explains our

idea better. What we do to the individual criminal is simply a means to an end. What we do to

him is not governed by considerations of fairness, or by asking what would be the just

punishment for this individual in this particular case; rather his penalty is simply an

instrument for producing a benefit (crime prevention) for society in general5

3 J, Cottingghan The philosophy of punishment in The Encyclopaedia of Philosophy,New York, McGraw-

Hill Inc. 1993, p7704 There is every need to distinguish between individual and general deterrence5 Cfr. J Cottinghan, op.cit 772

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The principles are reduceable from our analysis of the reductionist theory and they are

that, (a) Punishment must be restricted to those found guilty of an offence by due process of

law. (b) Punishment must not be excessive in relation to the harmfulness of the offence.

(ii) Retrospective Approach

The approach of this theory is backward looking. Attention here is not on the future results

of punishing, but on the particular wrong that has been done by the offender. Aristotle is here

apt in stating the point of the theory thus; the purpose of judicially imposed penalties is to

rectify past wrongs6, and make the offenders to suffer in kind for the harm they have caused

others. This approach manifests itself in the retributive theory as a justification of

punishment.

The term retribution comes from the Latin verb retribure i.e. to pay back meaning then that,

punishment is in some sense a payment for crime. Thus. Paying back is argued as a

metaphor or a price for crime. The argument here is that the criminal has a debt to pay to

society, so, if and when he/she has served his sentence, he/she may be said to have paid the

price for his crime.

Confusion however arises as to the clear significance of the payment metaphor. As

Cottingham queries.

Exactly how does punishment pay for crime Where payment is literally exacted as in

ordinary civil litigation, things are clear enough suppose, damage your property and you sue

me; if the court makes me pay you a sum in damages, then I will have quite literally paid for

i.e. covered the cost of-the damage I have done. But if we move from the sphere of civil

damages to that of criminal punishment, it is far from clear how the serving of a prison

sentence constitutes payment for the crime committed. For as far as the victim is

concerned, his costs are ink no sense paid back by the imprisoning of the offender. The loss

sor lharm he has suffered still stands. It is true that the person who caused that loss or harm

is made to suffer in return; but why is the offenders suffering supposed to pay for the

suffering of the victim?7

Such unanswered questions have forced the retributivists to adopt the balance

metaphor to argue for a justification of punishment. Traditionally justice is depicted as

holding a pair of scales: criminal wrong doing is regarded as upsetting the balance and the

punishment placed as it were in the other pan of the scale is believed to bring about

equilibrium. Here too, one is not too sure how this metaphor can be cashed out in a

6

This position has been canvassed by Aristotle in Nicomachean Ethics (C330 B.C. 113a)

7J Cottinghan op. cit p764

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what are taken to be sufficient conditions for punishment within the penal system cannot

provide a sufficient reason why we should punish in the first instance10

There is also the moral problem. To punish is to hold somebody responsible. But what if

someone who has committed an offence is not responsible for an action, say where an

offender has no choice in the matter. Punishing such a person will then be immoral. Legal

determinism argues here that people are determined to act in certain ways come what may. So

their actions or inactions are predetermined by factors or forces outside of themselves i.e. it is

not the individuals themselves that are acting). Holding such individuals responsible on

account of actions or inactions that are not theirs is to say the least immoral and does not in

any way make punishment proper and fitting.

There are those who argue again that the typical criminal in reality is the mentally

handicapped individual. Sick as he is, he needs treatment not punishment; he needs

reformation and reintegration i8n the society to function more properly and appropriately in

the achievement of peace and order in society. Extreme in outlook though, the reform theory

in its modest form holds that punishment is necessary to induce conformity of behavior

which the offender tends to ignore or violate. The informed idea here is that, people will

emerge from punishment better than they were before, in so far as they will be less likely to

breach conventional standards of behavior. In its traditional meaning, reform of heart entails

recognition that what one has done is bad and a sincere resolve to amend ones life in the

future. It thus involves a modification in the ethical outlook of the offender: and this in turn

suggests that if we are interested in reform it would be sensible to turn to reductive

techniques rather than simple imposition of penalties. This has since been debunked as

untrue, for criminals come out of prisons stronger and more determined with new tricks and

strategies to commit more heinous offences.

The theory is thus inadequate for analysis of the philosophy of punishment, hence

rehabilitation is argued as an accompanying theory. Rehabilitation aims to offer the offenders

opportunities to find a useful place in society on release from prison. It does not argue for a

no punishment for offenders. They must be punished fittingly and appropriately though,

opportunities should be availed them to busy their minds away from crime e.g. provision of

recreational, educational and vocational for prisoners. This is aimed at re-engineering their

criminal mind and to in steal in them the spirit of self-reliance if and when they leave

10 Appeal to the self-evident appropriateness or deservedness of punishment may accurately reflect the thinking

of those who operate within the structure of penal systems. It cannot do the work needed to show the institution

of punishment as such is self evidently good

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prison. Long periods of incarceration make prisoners less able to cope with normal life in the

outside world. It is only good that rehabilitation techniques are designed to counteract this

and other undesirable effects of punishment.

The issue concerning law and punishment is central to social harmony and should not

be reduced to a neither nor question. It is not whether the reductionist theory is more

effective than the retributivist theory in curbing or reducing crime as the case may be.

Similarly the issue is not whether the reformative, rehabilitative or curative approaches to

punishment should replace the reductivist and retributivist theories of punishment.

Punishment of criminals is no doubt important if society must endure; but only as a means

not as an end. It is thus suggested as a compliment of the reformative, rehabilitative and

curative approaches which should be incorporated in the sentencing policies of the courts. If

for example a drunken driver is sentenced to a jail term, he should, on completion of his

prison sentence, be required to work in a hospital accident department or a rapist should be

required to confront his under controlled conditions so that they can learn about the distress

they have caused, but of cause, this again opens up a carn of moral problems. (An) action(s

which may breach a rule for which punishment may be required as fitting and appropriate

may be recommended by an actor as a Universal law. The epicurean categories of happiness

as the purpose of life; that not acting the way he/she acted, which action caused a breach and

unhappiness for others is frustrating. For the offender/criminal, life without such actions is

not worth-living. Zeno committed suicide on account of this.

Punishment and the Victims of Crime

The focus of our analysis above is the criminal or potential criminal. The backward

looking approach argues as the purpose of punishment as giving the offender his just deserts.

The forward-looking approach on the other hand posits that the aim of punishment is to

discourage possible future offenders. Similarly, the notions of reform, rehabilitation land

cure have the offenders as the central focus of attention. The hapless victim, as it were, seems

not to be an issue of discuss. In the proceeding discussion, we shall argue out a philosophy

which makes the victim our primary concern of punishment. We shall argue two theories of

punishment which aim at justifying the practice of punishment with reference to what is owed

to the victims of crime.

(i) Satisfaction Theory:

This theory asserts that it is right to punish offenders because such punishment brings

satisfaction or comfort to the victims of crime (and also perhaps to their family, friends,

neighbours and associates).This it is argued is not bone out of desire for crude gratification8


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possible made good by the offender. T is suggested here hat offenders, even in prison, should

be required to work the debt off. The idea here is that prisons should be run as profit making

institutions with an appropriate national wage paid to the convict-workers, who would in turn

off-set their indebtedness to the victim.

Conclusion.

We may conclude here that, punishment is an indispensable instrument of social

order. Abused in tyrannical societies thought is symbol of the rule of law in a free, society.

As a figure of justice, punishment is, and should be meted out impartially to the famous and

the ordinary, the rich and poor, fittingly and appropriately. We may not argue like Bentham

that all punishment is in itself evil because the object which all laws have in common is to

augment the total happiness of the community. In all punishment therefore, it must be shown

that, the pain that is inflicted in some prevents or excludes some greater pain. Punishment

must be useful in achieving a greater aggregate of pleasure and happiness and has no

justification if its effect is simply to add still more units or lots of pain to the community. As

Jeremy Bentham himself concludes, the amount of punishment should never be greater than

the minimum required to make it effective. He says; Punishment should be variable to fit the

particular case, equable so as to inflict equal pain for similar offences commensurable in

order that punishments for different classes of crimes be proportional characteristics so as to

impress the imagination of potential offenders, frugal so as not to be excessive, reformatory

in order to correct faulty behavior, disabling in order to deter future offenders, compensatory

to the sufferer,, and, in order not to create new problems, have popular acceptance and be

capable of remittance for sufficient cause14. In the same spirit, we reason with professor J .I.

Omoregbe who sums up the morality and rationality of punishment as a drive towards perfect

happiness which is only attainable with the possession of the supreme good15.

Punishment, whichever form it takes, has two facets, namely, retrospective and

prospective. The former looks back to its cause while the latter looks forward to its possible

effect. The former is retributive while the latter is deterrent and corrective. The former is

meant to restore the equilibrium of the moral and public order upset by the violation, while

the latter is meant to deter the offender as well as other people from future violation of the

law.

14

J . Bentham: Of Laws in General, edited by H.L.A. Hart, Athlone Press, 1945.

15 J .I Omoregbe, An Introduction to Philosophical Jurisprudence: Philosophy of Law, p68

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