JAMIA MILLIA ISLAMIA

THEORIES OF PUNISHMENT
Submitted To- Dr. Rash

AARUSHI PANDITA
SEMESTER 5 (SF)
ROLL NUMBER- 20172549
 ACKNOWLWDGEMENT

In preparation of my assignment, I had to take the help and guidance of some

respected persons, who deserve my deepest gratitude. As the completion of this
assignment gave me much pleasure, I would like to show my gratitude Mr. Rash,
Course Instructor, on Jami Mill Islamabad University for giving me a good guidelines
for assignment throughout numerous consultations. I would also like to expand my
gratitude to all those who have directly and indirectly guided me in writing this
assignment.

Many people, especially my classmates have also made valuable comment

suggestions on my paper which gave me an inspiration to improve the quality of the
assignment.

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 INDEX

1. Introduction

2. Significance

3. Objective

4. Deterrent Or Preventive Theory

5. Retributive Theory

6. Reformative Theory

7. Conclusion

8. References

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INTRODUCTION

The kinds of punishment given are surely influenced by the kind of society one lives
in. Though during ancient period of history punishment was more severe as fear was
taken as the prime instrument in preventing crime. But with change in time and
development of human mind the punishment theories have become more tolerant to
these criminals. If a society has laws, it must also have punishments for those who
break the laws. In the UK,when someone is found guilty of a crime, a judge or
magistrate makes a judgment on what their punishment should be.

The main aim of punishment is to try to make sure that everyone obeys the law.
However, there are different theories about what is the most effective form of
punishment and what it should do.Thus it becomes very important on behalf of the
society to punish the offenders. Each society has its own way of social control for
which it frames certain laws and also mentions the sanctions with them. These
sanctions are nothing but the punishment. The concept of punishment and its practical
application and justification during the past half century have shown a marked
deviance from efforts to reform and rehabilitate offenders. Our practice of punishment
seems to require justification. The three justifications for punishment currently used in
our society today are retribution, deterrence and reformation.1

SIGNIFICANCE

At first, I would like to say that for all human beings it is necessary to know, what is
our role or responsibility in this world? Because the criminal engages in the criminal
activity himself and thus has to bear the responsibility of his/her own action. But then
what does the word responsibility mean in the context of today’s world. An equally
important is the discussion of our responsibilities in this context. After understanding,
what is irresponsibly, what is a moral action and the ethical standards of judgment, we
can focus attention to the criminal action. To understand criminal action we need to
understand signature of crime and then we can understand the rationality of
punishment. Then only we will be in a position to deal with problem of capital
punishment.All human societies are formed due to the primal human emotion; we do
1 N.V. Appearance, Crime and Punishment Lexis Nexis 2013.

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not want to be alone. And whenever two or more persons come together they form
certain rules and collective form of these rules becomes the moral code of a society.
These codes are to be upheld and thus we need a formal institution to watch over the
society. Breaking of the code becomes a challenge to the institution and reinforcing it
whenever there is a move for destabilizing the social order. Such actions have to be
restricted and thus we need the law.And as soon as we define the first law, we have
defined the first crime and the first criminal.

So, we have to ask ourselves the question that do we really need to punish. Also
moralist have a same question to answer when they are asked whether it is right to
punish offenders, and if so to what degree the punishment is justified. In ethics we can
see that some thinkers doubt the rational foundation of punishment. Many people
would say that a natural “sense of justice” demands that punishment should be limited
to a fitting amount for the wrong done. Some would go further and say that the same
sense of justice demands that evil-doing should be punished. Few moralists accept the
view that the adding of pain, which is itself intrinsically bad, to the evil of wrong
doing will lessen the total amount of evil in the universe.

Capital punishments in particular where no theory seems to provide a satisfactory

justification. Nowadays criminal sociologists and criminal anthropologists believe
that punishment should be a natural force to improve the moral of criminal as well as
the society,so that the criminal can again come back to the society, and be a part of it.
But criminal deserves punishment for cold blooded and well planned crime. Criminal
are a danger to a Lot other human beings and refuse to improve their ways as well.
Thus we need to consideration fact that whether all criminal can be rehabilitated or
not. But here we have to consider signature and seriousness of the offense, age, sex
health, macroeconomics condition of offender, extenuating conditions concerning the
crime and the criminal and if there was any provocation involved before we can pass
the judgement about punishing somebody.2

OBJECTIVE

2 Criminology, penology with Climatology, N.V. Appearance Lexis Nexis 2013.

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 In the case of death penalty, the analysis with the problem of death penalty and its
relation with crime and its practical application and justification is not new. This
analysis has been done by different thinkers in different periods. But till today the
problem of practical application of capital punishment continues to persist and is
considered as one of the major problems that in the ethics of punishment in the
control of theory try to determine. We have various speculations on this issue, for
example, reformative, impediment and retributive theory.The measure of harm
dispensed on the general public by the guilty party must be represented (Retributive
hypothesis), discipline for purpose of good recovery (Reformative hypothesis),
discipline as obstacle or preventive measure against wrongdoing and crooks
(Preventive or Deterrent hypothesis). Be that as it may, we can say generally the
retributive hypothesis is maybe the most agreeable of the three as it has the other two
speculations covered up inside it, yet this hypothesis isn't completely flawless and
needs all inclusive worthiness as there are further troubles made by this hypothesis. In
every one of these regards, the issue of discipline all in all and the death penalty
specifically where no hypothesis appears to give an agreeable legitimization. In this
way in this proposal exertion will be made to examine this hypothesis in its subtleties,
to get legitimate comprehension of the issues in question and appropriate elucidation
of the significant ideas is important for goals of the issues. Endeavor will be made to
determine a portion of the examination is the make the hypothesis more adequate than
it is currently.

DETERRENT OR PREVENTIVE THEORY

J. Bentham, as the originator of this hypothesis, states:"General counteractive action

should be the main finish of discipline as its genuine defense. On the off chance that
we could think about an offense, which has been, submitted as a segregated actuality,
the like of which could never repeat, discipline would be futile. It would just be just
adding one insidiousness to another. In any case, when we think about that an
unpunished wrongdoing leaves the way of wrongdoing open, not exclusively to a
similar reprobate yet in addition to each one of the individuals who may have similar
intentions and open doors for entering upon it, we see that discipline caused on the

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individual turns into a wellspring of security for all. That discipline which
considered in itself seemed base and disgusting to every single liberal assumption is
raised to the primary position of advantages when Otis viewed not as a demonstration
of rage or retribution against a blameworthy or lamentable person who has offered
approach to evil tendencies, however as a vital penance to the normal safety."Bent
ham's hypothesis depended on an indulgent origination of man and that man
accordingly would be deflected from wrongdoing if discipline were applied quickly,
absolutely, and harshly. In any case, staying alert that discipline is an insidious, he
says,

On the off chance that the underhandedness of discipline surpasses the feverishness of
the offense, the discipline will be beneficiary; he will have obtained exception from
one malice to the detriment of another.The essential thought of discouragement is to
deflect the two guilty parties and others from submitting a comparative offense. Yet in
addition in Bent ham's hypothesis was the possibility that discipline would likewise
give a chance to reform.This hypothesis holds that social agreement is best served by
limiting the probability of future mischief and probability of future offenses. This
basis is result centered in that it looks for some specific future reason by regulating
the discipline. This is egalitarianism approach, similar to Bentham contended that,
"General avoidance should be the main finish of discipline, as it is its genuine
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legitimization."

Obstruction hypothesis is a standout Lamont other known about utilitarian supports. It

works in the premises where the crook, similar to some other native, is a sound
entertainer. It works by changing the expenses and the advantages of the circumstance
with the goal that the crime turns into an ugly choice. Bentham expressed:

" If the clear greatness, or preferably estimation of [the] agony be more prominent
over the obvious

3 Antony Duff, The Expressive Function of Punishment Oxford Univerity Press.

4 Crime, Guilt and Punishment, Clarendon Press.

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size or estimation of the delight or great he hopes to be the result of the demonstration,
he will be completely kept from performing it. "

The individuals who bolster this hypothesis will even help more prominent discipline
for a littler insidiousness; they likewise bolster the death penalty. To make the
discipline praiseworthy they regularly go for the death penalty to accomplish a more
stupendous impact. It relies upon the dread to go about as flippant stimulant and in
this way littler disciplines won't suffice.Here one can say that man is treated as a thing
or a methods yet not the end in him.Here the principle article isn't to bring a more
noteworthy useful for the crook, or reclamation. Here criminal is a device to be
utilized for advancement of others. This is a definitive disruption of mankind. To
utilize an individual, any individual for whatever reason, without wanting to his/her
will isn't right. In this manner every single sound being must be treated as closures not
means.But difference is conceivable on the above issue by saying that the judges,
philandering out discipline for lesser offenses don't regard people as means. Be that as
it may, capital disciplines are of an alternate issue. Lillie accepts that the discipline
improves the characterful of the criminal himself. Since for the most part an
individual abstains from carrying out metathesis wrongdoing once rebuffed for it. Be
that as it may, littler disciplines don't go about as powerful deterrents,so the
supporters of this hypothesis consistently bolster more noteworthy disciplines.5

RETRIBUTIVE THEORY:

As Kant contends in a celebrated section: "Legal discipline can never be utilized only
as a way to advance some other useful for the criminal himself or common society,
yet rather it should in all cases be forced Simon just on the ground that he has carried
out a wrongdoing; for a person can never be controlled simply as a way to the reasons
for another person... He should above all else be seen as meriting discipline before
any thought is given of the utility of this discipline for himself or his kindred residents.
"Kant contends that revenge isn't only a vital condition for discipline yet in addition
5 Antony Duff, Making a Punishment fit a crime Oxford University Press.

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an adequate one. Discipline is an end in itself. Requital could likewise be said to be
characteristic's defense, as in man might suspect it very normal and simply that an
awful individual should be rebuffed and a decent individual rewarded.The retributive
view has a long history. It is found in Alex Stalinism of early Roman law, the "eye for
the eye" statute in the old confirmation (and a for all intents and purposes
indistinguishable statute in Koran), and numerous early codes. The idea of discipline
as reprisal or vengeance is comparable retributive idea in regarding discipline as a
reward paid by the lawbreaker. Attribution originates from hoodlums wrong yet
counter spotlights on the motivation of the unfortunate casualty As Mackenzie says

"The point of discipline is to enable a man's deed to return on his head i.e., to make it

clear that the malicious outcomes of his demonstration are not only wrongs to other
people, however shades of malice in which he is himself included."

The measure of harm the criminal causes by his/her activities, a similar sum Flossie
he/she ought to endure. This structures the retributive premise of discipline for
overstepping asocial good laws. This requests a tooth for a tooth and an eye for an
eye.Lillie says that the basic response of each creature, human or generally is to hit
back at the guilty party. In any case, from old occasions we have seen that we
accomplish more harm reprisal than the harm was done to us.

"On the off chance that Cain will be retaliated for seven-overlay, genuinely Lame ch
seventy and seven-overlap."

In any case, later it settled down to an arrangement of equivalent requital. The

hypothesis has two structures.

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The aphoristic structure that the idea of discipline ought to be chosen dependent on
mark and sum. On the off chance that the offense is serious, so ought to be the
discipline. There is no degree to pass judgment on special conditions or the
psychological condition of the wrongdoer. Just the offense is Tarkenton account. A
killer ought to consistently be killed. This was the situation in primitive.According to
assuaged structure this hypothesis the palliating conditions are considered. Was there
an incitement, what is the age, sexual orientation, soundness of the wrongdoer; these
all inquiries are painstakingly thought to be here. Here agreeing nature and
significance of the offense the above conditions judgment is conveyed. Some contend
against this hypothesis saying that Titania-compassionate and hostile to Christian. It is
the satisfaction of one's vindictive wants.

Mackenzie contends with the above restrictions by advising us that the requital I snot
conveyed by a solitary individual, however a legal framework bound by specific
standards and ought to be without vindictiveness towards the criminal to serve an
equitable punishment.Hegel bolstered retributive hypothesis saying that discipline is a
sort of remuneration to the wrongdoer, and Aristotle considers it the 'negative reward'.
Great and awful the two deeds are reediness a sense. In the Biblical setting" The
compensation of wrongdoing is passing".

The principle topic of retributive hypothesis is that we need discipline of wrongdoers

robbery the social and virtues. The standards for the general public, made by us for
purpose of improvement, ought not be damaged, as it makes us make a stride in
reverse to brutal occasions. "On the off chance that the laws are important state of our
life in composed social orders, at that point there must be some punishment for
resisting them."

REFORMATIVE THEORY:

The latest and the most accommodating of all hypotheses depends on the standard
Reformation the lawful guilty parties through individual treatment. Not looking to
hoodlums as barbaric this hypothesis advances the changing idea of the cutting edge
society where it by and by investigates the way that every single other hypothesis

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have neglected to advance any such steady hypothesis, which would counteract the
event of further wrongdoings. Despite the fact that it might be genuine Thatcher has
been a more prominent beginning of violations today than it was before, however it
might likewise be contended that a considerable lot of the hoodlums are additionally
getting improved and driving an honest life all-together. Reformative methods are a
lot of near the hindrance techniques.

Retribution and prevention include a procedure of reasoning that returns from the
wrongdoing the discipline. Be that as it may, restoration is an increasingly mind
boggling idea including an assessment of the offense and the lawbreaker, and a worry
for the criminal's social foundation and discipline. Further, those for recovery
hypotheses recognize the plausibility of extra issues creating during the guilty party's
sentence or treatment that might be detached with the offense and which may require
a wrongdoer to nontraditional periods in treatment or confinement.This hypothesis
expresses that ethical instruction and remaking the character of the condemned be the
principle object of discipline. It guarantees avoidance of wrongdoing too. With a
difference in heart the criminal forgoes wrongdoing. Also, here the criminal is treated
as a Rather than an end. Here disciplines not to manufacture the character of others
yet to assemble bacterial of the criminal himself. What's more, as we can comprehend
that this hypothesis lectures against the death penalty, particularly capital punishments.
In the event that the criminal kicks the bucket, there is none incapacitate. After death,
no natural power can do anything for his spirit or character.Almost all scholars concur
with reformative hypothesis of discipline as it concurs with philanthropic assumptions.
These days criminal sociologists and criminal anthropologists concur with the
reformative hypothesis and accept that discipline ought to be a power to improve
worldly of criminal just as the general public, so the criminal can again return to
cultural, and be a piece of it.Modern sociologists in some cases recognize the
structure and abuse of society and the earth by and large to be cause for typical
individuals going to wrongdoing. Anthropological and analysts guarantee that
criminal attitude is a sickness or anxieties. So Otis not advocated to rebuff someone
for their wrongdoing. Again Freudian hypothesis expresses that we are brought into
the world with senses that are taboos in the public arena and the criminal inclination is
inalienable. Along these lines, commitment in wrongdoing since that where their
impulses drive them. This isn't deliberate activity thus can't be punishable.But the

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above is anything but an appropriate understanding of reformative hypothesis.
Reformative guesses not overrule the need of discipline, yet it discusses the need of
instruction, treatment,sympathy and even excruciating discipline for remedy of
character. The reformative scholars likewise perceive the way that discipline is maybe
not the most ideal to pick for this situation. Rather than physical discipline, conjuring
mental torment or misery likewise be a type of discipline. Reformative scholars by
and large adhere to the last route as being increasingly pleasing. Isolation is in every
case more compelling than physical torment.

Thataway works better to cause the criminal to understand the blunder of his/her way.
What's more, understanding person of good taste initial move towards
rehabilitation.Although exceptionally lauded, even this hypothesis isn't free of
analysis. In the event that renewal, at that point capital punishments. That is the
reason to some this hypothesis winds up unsuitable. A heartless and very much
arranged homicide merits a capital punishment. Also, such culprits are a peril to a
great deal of other people too. Along these lines we have to rethink the way that
whether all offenders can be restored or not.The sociological and anthropological
contentions can be countered by saying that nature is just a section and not an entirety.
Somebody may perpetrate wrongdoing, simply out propensity when there is no
ominous condition is available. Clinicians are likewise off-base in attempting to
discover mental reason for all violations. So one must locate the genuine goal of the
criminal.Actually these contentions are not appropriate against reformative hypothesis,
as it doesn't contradict the possibility of discipline.

CONCLUSION

The latest and the most compassionate of all hypotheses depend on the guideline of
transforming the legitimate guilty parties through individual treatment. Not looking to
hoodlums as barbaric this hypothesis advances the changing idea of the cutting edge
society where it by and by investigates the way that every other hypothesis have
neglected to advance any such steady hypothesis, which would counteract the event of
further wrongdoing. Change in the impediment sense inferred that through being
rebuffed the wrongdoer perceived his blame and wished to change.This hypothesis
targets restoring the guilty party to the standards of the general public for example
into reputable part. This hypothesis denounces a wide range of floggings. In spite of

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the fact that this hypothesis works fabulously for the adjustment of adolescents and
first time hoodlums however on account of a solidified criminal this hypothesis may
not work with the effectiveness.According to this hypothesis, the point of discipline is
to teach or change the guilty party himself.

Discipline is exacted on a criminal so as to change or instruct him. This scholar

generally acknowledged right now, since it is in agreement with the compassionate
notions of the age. This hypothesis doesn't include regarding an individual as a thing;
a criminal is rebuffed to his benefit not just to benefit others. Renewal or training of
the criminal is the point of discipline. Right now it may be insightful to nullify capital
punishment totally all over the place, yet we should set ourselves up for the change by
changing and improving the ethics and the comprehension of ethics and worth
frameworks when all is said in done to venture out the start of another human
progress.

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REFERENCES

 N.V. Appearance, Crime and Punishment Lexis Nexis 2013.

 Criminology, penology with Climatology, N.V. Appearance Lexis Nexis 2013.

 Antony Duff, The Expressive Function of Punishment Oxford Univerity Press.

 Crime, Guilt and Punishment, Clarendon Press.

 Antony Duff, Making a Punishment fit a crime Oxford University Press.

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