Chapter- 7: Crime & Punishment
Socio-political philosophy believes in co-existence of man and society or state which means they are necessary for each other and complementary as well. But there shall be a moral order between them. Morality is directly related to the outcome of the action which means positive outcome or honour for the positive actions and negative outcome or punishment for negative actions.
Moral science and ethics is an important branch of philosophy so, the theories of punishment are directly related to philosophy and that’s why right from the early period thinkers have expressed their thoughts on crime and punishment. We can say that the theories of punishment are relevant for social-philosophy, political philosophy and ethical philosophy. But here the question is, what is the crime? In simple words, we can say that the crime is a human behavior, but all kinds of human behaviour can not supposed to be crime but only those behaviours which are against the social values shall be considered as crime. In every society we can see crime and criminals like disease and death.
But even then the explanation of crime might be different, according to the space, time and conditions because where in some society few activities have been categorized as crime, while in other societies it may not be the case and even in the same society in course of time the definition of crime might be changed. There may be infinite number of crimes and accordingly the causes of crime are infinite as well. So, neither we can categorize the crimes nor the causes of crimes.
We know that some human behaviors are according to the code of conduct so they are known as good conducts. But on the other hand, some human behaviours are against the social code of conducts and so they are known as corruption because every society defines some values and parameters for the individuals. But sometimes due to the pressures of social conditions and selfishness when the individual ignores all these parameters and values then his behavior can be named as CORRUPTION in which he misuses his powers and authorities. There might be number of corruptions and their causes as well because after all, it is also a type of crime but it is restricted to the individual level.
MASS VIOLENCE and GENOCIDE
The increasing tendency of communal feeling and communalism originated the mass violence in which violent activities used to be performed collectively against a certain group, minority,classes etc. which causes the feeling of insecurity among them. Because in several incidents not only blaming each other but the activities of harming and killing also takes place. These instances are simply available in different societies and countries.
While in some cases, the violent activities between two groups or communities can be seen consistently for a long period, in which a group or community does all efforts to eliminate the existence of other group or community. This is known as Genocide and its instances are simply available such as struggle between Muslims and Christians, Jews and Palestinians, Sinhalies and Tamils are well known.
Altogether, either we discuss about corruption, mass-violence or genocide undoubtedly they are crime and here one way of betterment or improvement is PUNISHMENT. That’s why for different crimes provision of different punishments has been made and the ultimate motive is to maintain the social order, so we can say that there is necessity of punishment to maintain the order and system in the society. And if any individual violates the prevailing laws or social values or commits any crime then against it whatever physical, economical or mental harassment he receives is punishment.
So, classically the punishment is negative sanctions of morality. Since, ethics is an early and conventional branch of philosophy that’s why right from very early period, thinkers are expressing their opinions and giving their theories of punishment, which can roughly be classified in three parts:
Retributive theory of punishment.
Preventive theory of punishment.
Reformative theory of punishment.
In this theory, only such quantity of punishment used to be given to the criminal what he had performed in the crime. This theory is classically known as eyes against eyes and teeth against teeth. This theory of punishment was mainly supported by Greek thinkers. But in addition, the modern philosophers like Kant, Hegel, Bradley, Bosanquet etc. have also supported this theory of punishment. So, the objective of this theory is to maintain the social order and if any individual breaches the order established then he shall be punished in the same proportion. There are two types of Retributive theory- Firstly, hard and secondly, soft. In the hard approach, those conditions have not been considered in which a criminal has committed the crime, while in soft approach, those conditions are used to be considered in which a criminal has committed the crime. The positive features of this Retributive theory of punishment are the feeling of revenge is included in the punishment and the criminal will get the same punishment what he performed during the crime. But here the question is who shall punish the criminal individual or a state.
The conventional approach in this direction was since the crimes are committed against the individuals so, the criminal shall be handed over to the individuals and he shall take the revenge. This is the approach of Retributivists. While in contrary, according to Consequentalists, since it is the responsibility of the state to provide security to the people so, in this condition if a criminal is committing the crime then he is indirectly challenging the state and state has full power to punish the criminal.
But even after having above facts the weak point of Retributive theory of punishment is it punishes the criminal only with the feeling of revenge and does no effort to know the causes of crimes and to stop the crimes as well. So, if we accept this theory then the society will be grabbed by an unwanted cycle of crime and punishment.
Due to the above reasons, some thinkers did their efforts to stop the future crimes and presented their PREVENTIVE THEORY of punishment which was mainly supported by utilitarianists. According to them, the objective of punishment is not to punish the criminal only but its objective is to stop the crime or any criminal activities in future because terror shall be spread out among the people up to an extent. That’s why the famous statement of this theory of punishment is, “You are not punished due to the stealing of sheep but punished to stop the stealing of sheep in future.”
Definitely, this theory does sincere efforts to stop the crimes in the future. But it has also some weakness because here the man has been used as a means which is straight away human devaluation and even sometimes, more punishment might be given in proportion to the crime and even sometimes, innocent people might be punished to create a fear against the crime. But no ethical theory allows punishing the innocent people.
But even after these weaknesses, the importance of this preventive theory cannot be ignored today. Because now the criminal and terrorist activities are not such minor that we can wait for the crime because not only thousands of people can be killed but the sovereignty of a nation can be affected as well. So, instead of waiting for the crime and follow up actions the relevancy of action on the basis of doubt is unquestioned. That’s why in addition to the other countries in India also number of preventive acts can be seen right after the independence such as MISA (Maintenance of internal Security Act), NSA, TADA, POTA etc. But one most negative factor of the preventive Act is that it has all possibilities of misuse.
On one hand, its objective is to reform the criminal and on the other to reform the society as well. Because this theory of punishment believes that although a criminal is used to be punished due to the crime but generally, no efforts are made to know the causes of the crime and if we focus upon causes of the crime and eliminate them then definitely the crimes can be stopped. This theory basically works on the Philosophy of “Hate the Sin not the Sinner”. That’s why in the present era of humanism, generally this reformative theory is supposed to be relevant and sometimes, even it has been said that since the conventional theories of punishment couldn’t stop the crimes but actually they have increased in the society so, what is the relevance of various theories of punishment, and better we reject all the theories of punishment.
But this approach can be supported only up to the extent where the crime is performed as first offence, Lack of awareness about the consequences, External conditions and pressures. Because if the criminal activities are performed consistently, repeatedly, knowingly and having awareness of all the consequences then there is no possibility of reform, and so there is no other option than the punishment. In this condition, the relevance of ending the prevailing theories of punishment ends as well. That’s why it has been said that if we accept the reformative theory of punishment absolutely then our jails will become the guest houses and the criminals will be treated as honourable guests. So, definitely there is relevancy of punishment which may be based on retributive approach or preventive approach, because the main objective of both these theories is to maintain the social order. But the difference is where the retributive theory comes to action after the crime, then the preventive theory comes into action before the crime.
Therefore, both these theories of punishment are complementary to each other. Altogether, we can say that:—
If the crimes are due to social disorder, then we need social reforms.
If the crimes are due to the mental disease, then we need the reformative houses.
If the crimes are due to moral ignorance or consequences, then it is sufficient to make them aware about the consequences.
If the crimes are committed intentionally, knowingly and repeatedly then the punishment is the best justice.
Since the present society is really complex, so it is really difficult to support one theory of punishment but different theories can be applied regarding the different crimes. But the humanist approach supports the reformative theory.
Definitely, the punishment is the base of social order and we can’t imagine a society without punishment. Where simple punishments are used to be given against the simple crimes then heinous crimes ask for the hard punishment and capital punishment is such a hard punishment. Because it ends the existence of criminal so, we can say that:—
The capital punishment is the biggest punishment.
It is given against the heinous crimes.
There is a legal system to give this punishment because there is difference between capital punishment and killing or assassination.
To maintain the social order is its objective as well.
The modes of capital punishment are different.
But there is question over the utility of the capital punishment and its validity and its effectiveness as well. Where according to few experts the capital punishment is useful to maintain the peace and order in the society then on the other hand according to few thinkers it has no use at all, and it is not directly related to the peace and order of the society. Here, both the groups have their own arguments because the supporters of capital punishment say that it is a social, legal and moral necessity, and this is a stable punishment as well, while the opponents of capital punishment say that it is the sign of brutality and cruelty, since the present era belongs to reforms. In addition, the human resource is the most important and the capital punishment harms this directly, that’s why it is better to provide the life imprisonment which is comparatively a bigger punishment as well, because here the punishment lasts for long.
Altogether, we can say that definitely, in the history of punishment the capital punishment is most disputed and number of arguments for and against can be given and it is really difficult to stay at one side. That’s why United Nation organization constituted a committee which studied number of countries and societies and took opinions of number of intellectuals, and presented its conclusion as:—
Least number of criminals shall be given capital punishment.
Least number of crimes shall be included under capital punishment.
If possible the capital punishment shall be converted into life imprisonment.
There shall be no advertisement and display of capital punishment.
The capital punishment shall be the last option.
All efforts shall be made to go for any other option.
In any case capital punishment shall not be given to a pregnant woman or a retarded person.
Definitely the above recommendations are important and capital punishment shall be given after considering the above parameters.