Two basic goals of punishmentretribution and utilityand the means to those goals, including isolation, rehabilitation, and the creation of fear, were first examined. Utilitarian justifications are forwardlooking consequentialistic in nature. The utilitarian theory of punishment 1494 words 6 pages. The purpose of criminal punishment sage publications inc. Where punishment is unprofitable where the costs of punishment outweigh the benefits of punishment. Retributivism was the clear beneficiary of such an approach. The punishment should help to deter future harmful conduct.
Some utilitarians, however, have sought to modify the utilitarian theory to account for the objections. The pure theory homs that the practice of punishment and any individual act of punishment is moral y justified if and only if it conforms to all four of the principles of retributivism. Utilitarianism, punishment, and ideal proportionality in. Possible utilitarian responses a being moral simply does require a lot from people. Attractions of the utilitarian theory of punishment. Utilitarianism is based on the principle of utility. Utilitarian concerns play a major role in his theory.
These counterintuitive results suggest there is something wrong with utilitarian premises. Utilitarianism is an ethical theory according to which the. Accordingly, these examples are widely thought to illustrate the implausibility of the utilitarian theory of punishment. Apr 17, 2009 the following is an excerpt from article de1971 from the christian research institute. The term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for certain purposes. Utilitarian theory retributive theory the utilitarian theory this theory stresses that punishment is entirely futurelooking for that one should be punished inorderto not because of hosper, 1967. An attributional examination of retributive versus. In addition, we will give voice to some major objections to the utilitarian theory. Punishing the innocent and the compatibility of utilitarianism and rights mirko bagaric retributivism has. Pdf kantian and utilitarian ethics on capital punishment. Benthams utilitarian critique lished as a pamphlet of a dozen pages, the essay would quite probably be unavailable today had it not been conveniently reprinted by bowring in his edition of benthams works as an appendix to book ii of the rationale of punishment.
Retributive theories of punishment emphasize the past by taking punish ment to be the deserved consequent of criminal acts. Introduction since the dawn of civilization, societies have felt the need to impose order by regulating human relations and interactions according to a set of laws or code of conduct. Utilitarian justifications for punishment our first theoretical foray into punishment is the utilitarian perspective. A common objection to utilitarianism is the inability to quantify, compare, or measure happiness or wellbeing. Utilitarian and retributivist theories of punishment. It recognizes that punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil. George hegel and immanuel kant criticized and rejected the utility theory, presented the contrast retributive theory of punishment, which is of non utilitarian on the premises that punishment is not means to an end but end in itself.
A theory of differential punishment jack boeglin zachary shapiro a puzzle has long pervaded the criminal law. We will write a custom essay on utilitarian and retributivist theories of punishment specifically for you. The utilitarian theory of punishment seeks to punish offenders to discourage, or deter, future wrongdoing. This paper examines the commonplace assertion that utilitarianism allows for and even, at times, requires the punishment of the innocent. Phil 108, november 20 and 27, 2012 punishment retributivism. Philosophical analysis of the theories of punishment in. Proponents of the incapacitation theory of punish ment advocate that offenders should be prevented from committing further crimes either by their temporary or permanent removal from society or by some other method that restricts their physical ability to reoffend in some other way. Jan 31, 2012 the utilitarian theory of punishment i. Learn vocabulary, terms, and more with flashcards, games, and other study tools. In other words, punishment should not be unlimited. The objectives of punishment were then related to attributions regarding the cause of a transgression. Therefore punishing a criminal, is justified only if it results in a net increase of pleasure for society by deterring future harmful behavior.
Standard utilitarian theory encompasses two essential elements. Garland confronts the greatest excesses of foucault in beyond the power perspective. Punishment theories of punishment utilitarian, society. In this paper i will defend both the proponents and principles of the utilitarian theory of punishment, namely addressing the utilitarian approach juxtaposed with the retributive. Because utilitarianism is not a single theory but a cluster of related theories that have been developed over two hundred years, criticisms can be made for different reasons and have different targets. Punishment theories of punishment utilitarian, society, theory. The strengths and limits of the theory of retributive.
The term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for. The retributive or retributivist theory of justice considers punishment as an intrinsically appropriate. As opposed to the utilitarian side, which bases the severity of punishment upon how much it will benefit society as a whole, the retributive side instead looks at the actual illegal act, executing a punishment that fits the act. Punishing the innocent and the compatibility of utilitarianism and rights mirko bagaric retributivism has replaced utilitarianism as the main philosophical justification of punishment. George hegel and immanuel kant criticized and rejected the utility theory, presented the contrast retributive theory of punishment, which is of nonutilitarian on the premises that punishment is not means to an end but end in itself. Theoretical attacks on utilitarianism the decline of utilitarian punishment and sentencing was also greatly accelerated by the fact that at the theoretical level there was a move towards. Social norms, necessity, and social desirability are some of the factors that lawmakers balance when developing punishment statutes. The retributive and utilitarian theory of punishment. Capital punishment internet encyclopedia of philosophy.
Much debate surrounds how to punish criminal offenders. The retributivist and utilitarian theories for justification. Arguments against the utilitarian theory the utilitarian theory states that punishment is justified only if it contributes to the greatest volume of happiness in the greatest number of. The utilitarian theory is consequentialist in nature. Pdf it is an indisputable fact that most societies in the world agrees that if a person violates the laws, heshe should be penalized. All of the questions about the justification of punishment general justification, title and severity will be answered by appeal to the utility value of the consequences of an action. That a retributivist theory, which is a particular application of. In addition, we analyze extensions of utilitarian principles to. Bagaric, mirko in defence of a utilitarian theory of punishment.
The strengths and limits of the theory of retributive punishment kurt baier university of pittsburgh. Utilitarianism also differs from ethical theories that make the rightness or wrongness of an act dependent upon the motive of the agent, for, according to the utilitarian, it is possible for the right thing to be done from a bad motive. Early 20th century emerge of application of utilitarian principles of punishment by prominent legal scholars. So, according to this theory, punishment is not concerned with the nature of the offender, as is the. Punishment restores that lost balance disturbed by the crime banks. Whatever can be proved to be good, must be so by being shown to be a means to something. The retributive view of punishment is pastlooking which is paying back by the offender. Theories of punishment legal definition of theories of.
Punishment is justified only if its good effectsprincipally, the pain that is avoided by deterring people from performing actions that would cause itoutweigh its bad effects principally, the pain visited on the punished person. He added that in this theory, punishment is applied in order to do. Utilitarian theory provides that one should act in a way that produces the best possible result. Utilitarianism states that the result of an act is the real measure of whether it is good or bad.
Kantian and utilitarian ethics on capital punishment. First, however, a few points ought to be made concerning the texts where benthams penal theory is to be found. The retributive side of punishment is meant, simply stated, to keep society happy. The retributivist and utilitarian theories for justification of criminal punishment. Utilitarians may, however, distinguish the aptness of praising or blaming an agent from whether the act was. The utilitarian theory of punishment seeks to punish offenders to. For example, a utilitarian may ask whether its moral for politicians to spend billions of dollars on campaign ads. Utilitarian punishment is meant to deter future crimes, while at the same time assuring the public that crime is not tolerated, and is swiftly punished. The retributive theory seeks to punish offenders because they deserve to be punished. The utilitarian authors will offer answers to such questions as. Utilitarianism also called consequentialism is a moral. It was documented that punishment goals are mediated by the expectancies and affects that are elicited by causal beliefs. This tradition of resultbased differential punishment.
Utilitarianism is the view that the tightness of an action depends entirely on expected utility, that is on the sum of the utilities of its consequences. The strengths and limits of the theory of retributive punishment. According to this theory, it does not matter whether or not the punishment will serve any purpose in future as utilitarian theory holds. Theories of punishment legal definition of theories of punishment. Punishmentretribution, rehabilitation, and deterrence. May 05, 2012 another problem for utilitarian theorists is that, for the theory to work properly, other factors such as moral culpability or remorse cannot be weighed in determining punishment. These families are known as criticallevel utilitarianism and criticallevel generalized utilitarianism. One of the features of utilitarian theories of punishment is that it focuses on the community. The utilitarian and deontological entanglement of debating.
Theories of punishment can be divided into two general philosophies. The mistake comes from ignoring the painpleasure dimension of benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion. The retributive theory seeks to punish offenders because they. An introduction to jeremy benthams theory of punishment. Retributivist utalitarian theories justification criminal. The retributive theory of punishment by kurt baier. Traces of utilitarian thought can be found in the works of. Deontological ethics there are two major ethics theories that attempt to specify and justify moral rules and principles. Utilitarian theory of punishment 99 indirect consequences stemming from it. The utilitarian and deontological entanglement of debating guns, crime, and punishment in america robert weisbergt guns, crime, and punishment in america, bernard e. The idea of deterrence is falsely depicted as the utilitarian contribution to the theory of punishment, while deterrence in fact is one of several elements in the utilitarian theory.
It is evident that this cannot be proof in the ordinary and popular meaning of the term. Welfare, provides a survey of utilitarianism as a theory of justice. Motivations and characteristics of the utilitarian approach to punishment the adoption of minimum sentencing laws, especially during the 1980s and 1990s, was prompted by concerns over rising crime rates. Costs of punishment include the evil of coercion, restraint, apprehension the pain of the person, and sympathy the pain others experience out of concern for the one punished. Under the deterrent philosophy, punishment should prevent other people from committing criminal acts. Pdf although the view that punishment is to be justified on utilitarian grounds has obvious appeal, an examination of utilitarianism reveals that, consistently and accurately interpreted, it dictates unjust punishments which are unacceptable to the common moral consciousness. The mistake comes from ignoring the painpleasure dimension of benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion of action in a topdown fashion. Utilitarian theories of punishment essay example topics and. Reformative theory of punishment pdf download this paper open pdf in browser share email add to.
Questions of ultimate ends are not amenable to direct proof. Bedau, benthams utilitarian critique of the death penalty, the journal of criminal law, lxxiv. Utilitarianism commits us to the supposedly unthinking practice of. Much of the defense of utilitarian ethics has consisted in answering these objections, either by showing that utilitarianism does not have the implications that its opponents claim it has or by arguing against the opponents moral intuitions. This theory emphasizes end over means, therefore it is a teleological or consequentialist ethical theory. Utilitarian principles satisfy an important property. One illustration of consequentialism in punishment is the release of a.
This theory stresses that punishment is entirely futurelooking for that one should be punished in orderto not because of hosper, 1967. Governments have several theories to support the use of punishment to maintain order in society. The retributive and utilitarian theory of punishment bartleby. Traces of utilitarian thought can be found in the works of plato and aristotle, but not until the eighteenth century did utilitarianism truly begin to emerge as a welldefined and. Posted by andrew on may 5, 2012 in criminal law, key concepts 0 comments. If the public does not believe that punishment is consistent for every offense of a certain crime then, even with notice, the potential punishment may not deter an. The dichotomy of retributive justice vs utilitarian justice largely reflects the distinction between a consequentialist and nonconsequentialist approach to policy see duff and garland 1994. Utilitarianism is a theory in normative ethics, or the ethics that define the morality of actions, as proposed by jeremy bentham and john stuart mill. Punishment is awarded to reduce crimes and used as means to an end, is the claim of the utilitarian. Under the utilitarian philosophy, laws should be used. A utilitarian approach, then, is a kind of consequentialism and is often said to be forward looking, in contrast to retributivists backward looking approach. It has shown that the death penalty has major advantages to society including deterrence, incapacitation, and an increase in the credibility of the criminal justice. It was documented that punishment goals are mediated by the expectancies and affects that.
This is because some of its arguments are subject to criticism. This theory stems from jeremy bentham and john stuart mills who suggested that any action that provides or promotes happiness is right while actions. Studies in jurisprudence and political theory, oxford, 1982, pp. Bradleys utilitarian theory of punishment chicago journals. Nov 04, 2015 theories of punishment can be divided into two general philosophies.
Utilitarian theory an overview sciencedirect topics. In other words, punishment helps to keep society balanced. It traces the origins of this doctrine to the writings of the british idealists and the subsequent development of what is called the postutilitarian paradigm which posits various justifications for punishment such as retribution. Philosophical analysis of the theories of punishment in the. Pdf an introduction to jeremy benthams theory of punishment. Utilitariandeterrence theory law and legal definition. Utilitarian theories of punishment essay example topics. So, all of the utilitarian justifications for punishment are bad ones, according to kant. Utilitarian deterrence theory is a legal principle that a person should be punished only if the punishment benefits society. A utilitarian approach to justifying capital punishment appeals only to the consequences or effects of death being the penalty for serious crimes, such as murder.
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