The Retributivist and Utilitarian Theories for Justification of Essay

The Retributivist and Utilitarian Theories for Justification of Criminal Punishment - Essay Example The matter of penal sanctions, therefore, became an issue among legal theorists; apparently, there comes a point when the penalty is too harsh as to itself be disruptive of the social peace, or that the penalty is too inconsequential that offenders do not think twice about transgressing the law. In order to create effective penal laws, the philosophy and purpose behind the punishment should be examined and their merits and shortcomings understood. Of all frameworks that have been proposed, two stand out in particular in penal theory, namely the retributivist and the utilitarian theories. Retributivism and Utilitarianism There are four fundamental justifications behind criminal punishment: retribution, deterrence (including incapacitation), rehabilitation, and protection of society (Hagan, 2010:103). Deterrence means that punishment serves to warn possible future offenders and inhibit them from committing crimes. Rehabilitation aims to reform or resocialize the criminal into law-abidi ng and compliant members of society. Protection and upholding of social solidarity is simply what it expresses – the protection of society and reaffirmation of social solidarity and values. These three justifications fall under utilitarian theory, because they deal with the effect of the criminal deed on society and to maximize the good such punishment can provide for the greater number, the community (Yacoubian, 1998). Retribution, on the other hand,â€Å"is a moral motive for punishment, not simply a utilitarian one† (Hagan, 2010:103). In this purpose of punishment, the fundamental aim is to restore justice to those who had suffered as well as to society as a whole. In retributivism, neither the future conduct of the offender nor the future impact on society are significant in determining punishment (Yacoubian, 1998) Hagan describes it quite appropriately as society’s equivalent for the individual’s revenge. In the pre-modern age, a person wronged by a crime is entitled to seek vengeance to right the wrong done to him. Modern legal theory assumes this role for the individual, and takes the crime to be an offense not only against the individual but against society itself. Victims of the crime may not pursue their own revenge, but allow the state to pursue, on its behalf and theirs, the penal act that restores the balance of justice. An example of retributive justice is the hunt for and punishment of Nazi war criminals. Such punishment may not significantly serve such purposes as deterrence, protection of society, least of all rehabilitation. However, there remains the public outrage throughout the years that such criminals had gotten away with their war crimes (Hagan, 2010). There is a need to inflict some suffering on the criminal commensurate to the crime done, for the simple reason that justice must be restored. This is the crux behind retributive justice (Haist, 2009). Virtually ignored during the first three quarters of the tw entieth century, retributivism again assumed dominance as the underlying theory of the criminal justice system (Ackerman, 2011:220). What had prevailed for the greater part of the 20th century was Utilitarianism as the overriding theory in criminal punishment. According to Mills (1938), â€Å"Utilitarianism is the ethical doctrine that the moral worth of an action is solely determined by its contribution to overall utility.† Utility here is understood to mean the good (also called â€Å"happiness†