Theoretical Essay
In the world of law punishment (alternative name – penalty) is considered as an “infliction of some kind of pain or loss upon a person for misdeed (i.e., the transgression of a law or command).”1
Penalty may take different forms and vary from forced labor, flogging, body mutilation, fines and imprisonment to the capital punishment. The punishment has been very retributive, mostly in the form of revenge, during the pre-modern ages and usually the prosecution was executed by the victims or their families. There was not any proportion between the quantity and quality of wrongdoing and the punishment. The idea “an eye for an eye”2, i.e. some proportionality between crime and punishment, which appeared much later and was included in the principles one can find in the Bible. The control probably was performed by the community and later, according to the codes of law which appeared at that time, the punitive power was taken by the state which also took the responsibility of public order.
In early Palestine, the injury, theft and bodily mutilation were considered as private crimes so the matters should be settled between the criminal and the victim or his/her relatives. The physical punishment was not mandatory and could be replaced by money as satisfaction if the victim had chosen them.
1 See David Thomas, Punishment, Encyclopedia Britannica and European Court of Human Rights: life sentence [Credit: © Open University (A Britannica Publishing Partner)]play_circle_outline
2 See Talion Law, in Latin Lex Tallionis, adopted during the early Babylonian law and written in the Bible (Old Testament) and early Roman law, Encyclopedia Britannica
It was taken into consideration that two individuals could not have identical parts of the body the Palestinian lawmakers adopted a law according to which the party who suffered an injury could not demand the same part of the offender’s body to be mutilated but the value of it. This law abolished the Talion in Palestine. The fines were widely accepted in Rome during the 5th century BC and the so called delicts replaced the Talion which had its renaissance in medieval Germany and during the 17th and 18th centuries was accepted in some Scandinavian areas.
Nowadays when referring to criminal justice system, justice usually is equal to punishment. “You do the crime, you do the time. You do the time, you’ve paid your debt to society and justice has been done.”3 Here logically comes the question justice to whom when it is certainly not to the victim. Crime is personalized and unfortunately the recent criminal justice system is occupied mainly in its retributive, restorative and rehabilitation roles while the society forgets the victims and they remain unsatisfied with their fears and personal problems. Since the ancient Greeks, the topic of punishment attracted the great interest of philosophers and it was concentrated on several considerations comprising the issues like justification of punishment, who had to be permitted to punish and how the punishments should response the crimes.
3 See Marty Price, Crime and Punishment, Marty Price is a founder of the Victim-Offender Reconciliation Program (VORP) Information and Resource Center, in Camas, Washington and becomes its director. Also he is a Board Member of the Victim-Offender Mediation Association (VOMA), an international non-profit organization that provides education and advocacy, and promotes restorative justice. It supports programs of victim-offender mediation and reconciliation.
Along with the standard theories about punishment, Thom Brooks4 offers his research which is known by its specific, based on theory, approaches to punishment that involve both traditional theories as retribution, deterrence and rehabilitation and also more modern restorative and rehabilitative justice theories as hybrid theories, expressivism, unified theories, restorative justice, etc. He had included a special section on the death penalty. According to him, these theories deal with two significant questions i. e. who would have the permission to punish and who would have the permission to be punished. The discussion of these questions would justify the punishment and its distribution.
Herbert Hart5 developed a system which can be used to classify every one of the theories about punishment. It includes three questions that have to be answered. The first is connected with the definition of the punishment, the second relates to the aim of the punishment and the third discusses the distribution of the punishment. The definition of the punishment relates to its criminalization. It has to be explained why this action is criminal. Here we address for help to the two principles: the principle of legal moralization according to which crimes have to be morally justified in the light of the fact that they are chosen in the limits of a morally justified legal system, and the second principle concerns the harm. The second principle states that we may interfere with another in a justifiable way only to prevent harm.6
4 See Thom Brooks, Punishment, Routledge, 2012, ISBN 978-0-415-43181-1
5See Herbert Hart, Punishment and Responsibility: Essays in the Philosophy of Law, Oxford, Clarendon, 1968, p. 4
6 Ibid
John Stuart Mill wrote about the harm principle:
“That principle is that the sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number is self- protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”7
Criminalization of individual’s actions may be justified only when there are obvious and definite harms imposed to others. Larry Alexander and Kimberly Kessler Ferzan added to that that the goal of criminal law is to prevent harm.8 The punishment has number of goals that are desired to be achieved but the main function of the punishment is the prevention. The prevention has many expressions and applications but the goal is one - reducing the number of crimes. Nevertheless how many theories exist and how many theories are applied the definition and justification of the punishment remains one and the same under each theory while its practical aspect varies with the society and its history.
The purpose of every criminal justice system is to provide justice for all by punishing and convicting the criminals. The purpose is to stop them to do harm to others and protect the innocent people.
The director of the Center for Crime and Justice Studies (CCJS) Richard Garside underlined the main goals that challenge the Criminal Justice System regarding the relationship between crime and punishment in his article The Purpose of the Criminal Justice System.
7 See John Stuart Mill, On Liberty, ed. Elizabeth Rapaport, Indianapolis: Hacket, (1859)1978, p 9
8 See Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law, Cambridge: Cambridge University Press, 2009, p. 3
He said the following: “The central purpose of the Criminal Justice System is to deliver an efficient, effective, accountable and fair justice process for the public.”9 The same tone was implemented in the article Prisons with Purpose, published in Policy Green Paper where it was written: “Prisons should reduce crime in three principal ways: by incapacitating offenders, by punishing and thereby deterring others who would commit crimes, and by rehabilitating offenders.”10
The work of CCJS was mainly directed to punishments which result in incarceration, analyzed and recommended the implementation of the incapacitation theory.
The main aims of punishment could be found in the Criminal Justice Act of 2003.11 As The Guardian12 writes the Act aims to provide provisions to the law enforcement units regarding the adult sentencing. They comprise the punishment of the criminals, reparation made by the offenders to the people who are affected by their wrong doings and public protection. Some provisions are provided also for the cases when the offenders are under age of 18 at the time of the trial. The main goal that was grounded in the Act of 2003 was the prevention of further offending.
An important part of the punishing system is the incapacitation theory which is widely practiced in the United States and the United Kingdom.13
9 Richard Garside, The Purpose of the Criminal Justice System, Center for Crime and Justice Studies, 2008. The Center in its work is dedicated to: “Scrutinising the production of social harm and its social regulation through criminal justice; Developing holistic, sustainable and effective solutions to social harm that minimise the use of criminal justice processes; Working in partnership and collaboration with like-minded individuals and organisations to lever real and lasting change.”
10 Conservative Party of the United Kingdom, Prisons with Purpose, Policy Green Paper, March
11 Criminal Justice Act of 2003,
The supporters of the Incapacitation theory of punishment maintain that the offenders have to be kept from committing further crimes and for the purpose they have to be removed (temporary or permanently) from the community or have to be restricted by some other methods which will not allow them to reoffend people. Incarceration is the most popular method for isolating the offenders from the society. The Criminal Justice System in the United Kingdom has also the practice of transporting the convicted offenders to Australia or to the Americas. The most brutal method of permanent incapacitation is the death penalty.
Punishment as an institution has been always of great interest of the philosophers. According to Immanuel Kant “justice would cease to be justice if it were bartered away for any consideration whatever.”14 In his famous excerpt he qualifies the right to inflict a punishment as “the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him.”15
The types of societies changed through the centuries and therefore the types of crimes changed too. The beginning of the 20th century was marked by the Great Depression and if the trends of crime up to that moment were murder, robbery, etc, the unemployment and poverty that came with the depression caused crime modification and increase in criminal behavior. The following technical revolution and the implementation of high tech technologies in the everyday life made the crimes much easier. The invasion of computers in our homes, offices, everywhere
12 The Guardian, Criminal Justice Act of 2003, 19 January 2009,
13 Alana Barton, Incapacitation theory, pdf
14 Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of the Jurisprudence as the Science of Right, 194 (trans. W. Hastie, The Law book Exchange, 2002) (1797) (emphasis added)
15 Ibid
Internet gave birth to crimes like identity theft, cyberbullying, and electronic fraud. Drugs came into mass usage and therefore emerged crimes committed under their influence. Another phenomenon was the increasing power of the corporations which brought to the appearance and the spreading of white-collar crimes, corporative crimes, etc. Corporations in the United Kingdom existed for centuries but their role for the state grew during the twentieth century. The transformation to put emphasize on the company itself, not the participants in it becomes very obvious in the landmark case Salomon v. A Salomon & Co. LTD (1897)16 in which the sovereignty of the company was confirmed.
The Criminal Justice System of the United Kingdom (CJSUK) made great efforts to keep updated with the rapid development of the nature of crimes. The first substantial reform was performed in 1895 with the Gladstone Report when it was promised that the CJSUK will do its best to turn the convicted inmates in the prisons to better people than they were before came in. Later the Juvenile offenders were separated from the adults in the Justice system and the institution of probation was introduces and established in 1907. Juvenile courts in the United Kingdom were established in 1908, and the first schools for offenders under fifteen opened in 1932. Community services started to operate in 1972 and offered a very good alternative to prison for not very serious offences. Nevertheless the undertaken measures the crimes were growing instead of decreasing. Now it is time to emphasize on the prevention part of the criminal justice system more than ever.
16 Salomon v. A Salomon, Co. Ltd (1897) – In this case the court by the Haouse of Lords held “The company is at law a different person altogether from the subscribers to the memorandum: and the company is not in law the agent of the subscribers or trustee for them” (Lord Macnaghten)
Anyway, the issue related to crime, punishment and Criminal Justice System has been discussed for centuries and it will be discussed for centuries but adopting the proper and efficient approach surely will be one of the first steps toward establishing more just, more rational and more humane system of criminal law. As Nicholaos Theodorakis, Maria Ttofi and David Farrington write in Crime and Punishment “Further importance should be attached to educational programs designed to keep young offenders and re-offenders away from committing a crime.” 17
As a conclusion it may be said that Criminal Justice System and respectively the institution of punishment have always to develop and follow the society that changes very quickly. Otherwise it will remain old fashioned and behind the times. We cannot agree with Mike C. Materni who said: “Moreover, criminal punishment is a knife that cuts both ways; much like Oliver Wendell Holmes, we still don’t know whether it “does more good than harm.”18
17 Theodorakis, N., Ttofi, M., Farrington, D., (2015) Crime and Punishment, The Encyclopedia of Crime and Punishment, Wiley Online Library
18Mike C. Materni, Criminal Punishment and the Pursuit of Justice, Harvard Law School
Bibliography
Alexander, L., & Ferzan, K. K., 2009, Crime and Culpability: A Theory of Criminal Law, Cambridge, Cambridge University Press, p. 3, Print
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Brooks, Thom, 2012, Punishment, Routledge, ISBN: 978-0-415-43`8`-1, Print
Criminal Justice Act of 2003, Last modified January 19, 2009, Accessed on July 7, 2017 on
https://www.theguardian.com/commentisfree/libertycentral/2008/dec/16/criminal-justice-
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Hart, H.L.A., 1968, Punishment and responsibility: Essays in the Philosophy of Law, Offord university press, 2008 ISBN: 978-0-19-953477-7, Print
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Price, M., 2016, Crime and Punishment, Web Accessed on July 7, 2016 from http://www.mediate.com/articles/crimea.cfm
Salomon v. A Salomon & Co. Ltd (1897) UKHL 1.AC 22 (1897), Web Accessed on July 7, 2016
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