Retribution And Consequentialism
The philosophical justifications of punishment have tended to fall into two broad categories: retribution and consequentialism. Arguments based in retribution look backward toward the initial crime itself, justifying punishment as what the criminal deserves for his or her initial act. The earliest retributivist ideal, the lex talionis (literally, "law of the same kind"), is found in numerous ancient Near Eastern law codes, including the Code of Hammurabi (c. 18th century B.C.E.) and exemplified in the Old Testament formula of an "eye for eye, tooth for tooth, hand for hand, foot for foot" (Deut. 19:21; see also Exod. 21:24, Lev. 24:23). The principle of the talionis has often been compared to vengeance, and indeed the emotional satisfaction of the victim plays a large part in retributivist accounts, especially in the symbolic similarity of the punishment to the crime. However, retributive justice is meant to place a strict limitation on the extent of requital, disrupting potential blood feuds and ensuring both proportionality and a conclusion to strife. By offering an image of justice based in rebalancing a harmony that has been upset, retribution assumes the justness of the initial status quo and punishment invites a return to that initial stage.
The second common category of justification is consequentialism, which looks toward the future rather than backward toward the crime. For the consequentialist, retributivism is nothing more than a compromise with revenge, and no punishment can be legitimated without knowing that it will bring forth good effects. The good effects that are considered to derive from punishing the offender vary but have included (a) reducing the amount of crime by removing criminals from public circulation; (b) deterring others from committing crime through example and threat; and (c) reforming and rehabilitating the criminal.
In demanding that punishment have effects beyond harming an offender, the consequentialist theorist must often turn away from the criminal act itself and look toward the criminal or the socioeconomic environment, which leads to charges that consequentialism effaces the evil of the crime. Consequentialist theories are also often troubled by a lack of conformity between the guilt of the punished and the usefulness of the punishment. For example, punishing an innocent person may still serve as a deterrent, whereas punishing a truly remorseful criminal who committed an offence no one witnessed may be superfluous. Because punishment may serve goals that are often extraneous to the law, such as providing socially beneficial labor or edifying examples of redeemed guilt, or generating social cohesion, consequentialism often seems to be an affront to the strict rule of law.
Plato (428–389 B.C.E.) embodies the rehabilitationist aspirations of consequentialism. "The purpose of the penalty is not to cancel the crime—what is once done can never be made undone—but to bring the criminal and all who witness his punishment in the future to complete renunciation of such criminality, or at least to recovery in great part from the dreadful state" (p. 934). For Plato, it was important to redefine dikē (punishment as justice) in a way that clearly distinguishes it from timōria (punishment as vengeance). Punishment is undertaken for the sake of the guilty party, as part of a cure for the injustice that diseases the criminal's psyche. Since criminality harms the offender even more than the victim, and since one would never knowingly harm oneself, criminal acts cannot strictly be understood as voluntary. Plato nevertheless accepted many traditional forms of punishment involving suffering without clearly explaining how suffering is the best way to cure someone of injustice.
A secondary concern in justifying punishment has been the identity of those bodies authorized to punish. The primary solution, at least since early modernity, is for the sovereign state to claim exclusive authority, an assertion exemplified by Thomas Hobbes' Leviathan. However, this claim has always been controversial, for religious organizations have often claimed the authority to punish parishioners for their sins. The medieval Catholic Church was often responsible for lessening the severity of punishments, especially in reducing the number of death sentences, since the Church primarily saw the criminal as a sinner in need of repentance. But this also meant that a number of acts of moral turpitude demanded punishment by religious authorities, regardless of civil law. This drawn-out conflict over penal sovereignty helped precipitated the critiques of the Enlightenment.
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