Judicial ExamJurisprudenceLegal Notes

PCS (J) Notes: Jurisprudence, Theories of Punishment and their relative Merits & Demerits

 

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CHAPTER 5

THEORIES OF PUNISHMENT

Ch. 5-1    Theories of    punishment and their relative Merits & Demerits:

There is a complexity of social phenomena which is the main cause for commission of crimes. There are certain important social and personal facts which are mainly responsible for crimes.

These are :-

Physical Causes, mental forces, economic causes, political reasons, personal causes etc.

There are many theories concerning the justification of the pun- ishment. As Salmond observes the ends of criminal justice are four in number: Deterrent, Preventive, Reformative and Retribution.

The preventive theory concentrates on the prisoner, but seeks to prevent him, from offending again in the future. The reformative theory sees, in the readjustment of the prisoner to the demand of society as the greatest need of the criminal law. The deterrent theory emphasises the necessity for protecting society, for so punishing the prisoner that he will be barred from breaking the law.

  1. Deterrent theory :

The chief end of the law of crime is to make the evil-doer an example & a warning to all persons who are like minded with him. According to this theory offences are the result of conflicts of interests, between that of the wrong-doer and the society. Punishment makes the commission of an offence .an ill bargain for the offender, and debars the potential offender from the commission of crimes. Creation of “fear” in the mind of persons is the essence of this theory.

This theory is criticized as ineffective. During Queen Elizabeth’s time, when severe punishment was publicly given to pick pockets, it was found that other pick pockets were busy in. the crowd which had come to see the punishment!

ii)   Preventive theory :

The object of punishment is to prevent repetition of the crime by rendering the offender incapable of again committing the offence. Preventive theory of punishment aims at physical restraint. Prison became an institution because of this theory. In modern times, the disability aspect has been emphasised by statutes conferring power to sentence habitual offenders to preventive terms of imprisonment, penalties, forfeiture or suspension of driving license etc.

Hi) Retributive theory :

This theory is based on “evil for evil”. An offence creates an imbalance in the society, and punishment or suffering is the medium through which the balance is restored. It is simply the theory of private vengeance. Revenge is the right of the injured person according to Salmond. It means that a man should be so dealt with as he has done with others. The basis of this theory is, that evil should be returned for evil. To suffer punishment is to pay a debt due to the law that had been violated. The rule is “A head for a head, a tooth for a tooth and a nail for a nail”.

  1. Reformative theory:

The object of this theory is to reclaim the offender, to make him a useful member of the society by bringing about a change in his character and to give a chance to him to lead a free life in Society. According to this theory criminals are generally abnormal persons and the interest of the society is subserved by leaving these persons to the normal law abiding individuals. The stress, here is shifted from crime to the criminal. We must cure our criminals and not kill them. E.g. Educational discipline of the criminal.

Corporeal (physical) punishment is deemed to be brutal and degrading both to the offender and to those who inflict it. Preventive punishment turns the offender into a hard headed criminal. The treatment of the criminal should be humane, his case history should be studied and appropriate measures taken to keep him away from the wrong-doing. Eg. The cases of juvenile offenders First offender’s and sex offenders, should be dealt with carefully. Nothing is gained by sending them to the prison to the company of hardened criminals.

Rather they must not be sent to reformative schools which are houses of corrections.

The theory is against all types of corporeal punishment; it commends education, training & proper social moral instructions when in prison. Modern techniques should be used to reform him, to change his attitude and approach to life.

Punishment is not an end itself. It is a means to reform and to rehabilitate the prisoner. Hence, the prisoner should be cured, and not killed.

Conclusion :

Salmond is of the opinion that primary importance is to be given to the deterrent elements is criminal justice. The reformative element should not be over-looked. But neither must be allowed to assume prominence. It is a question of time, place, circumstance and nature of the offence, that should be applied on each case.

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