Description

CHAPTER ONE

GENERAL IDEA OF PUNISHMENT AND CAPITAL PUNISHMENT

1.1 Punishment In General

Punishment is necessary to protect peace and security of the society. When there is a crime there is also a punishment. In order to protect the peace and security of the community, every society has its own institution of punishment. Punishment distinguishes criminal law from all other types of law. It is a shield that protects society from the harm within itself.

Punishment may effective in reducing or eliminating undesirable behavior. Punishment is the reaction of society against the person who breaches the social order. Every right has a limit. The social contract provides individuals with freedom of action with a certain limit. When one act beyond the provided limit, that is prohibited by law and hence made criminal. The possessor of the right should act within a limit of his right. Otherwise when the possessor of the right act beyond the limit set in his favor he begins to threaten others right and that may cause full of chaos. In order to guarantee these rules are respected and to keep the security of society the state applies punishment to those persons who transgress the limit and commit criminal acts. Different scholars forwarded different definition for punishment.

H.L.A. Hart (1968) proposed that a punishment must include the following:
1. It must involve pain or other consequences normally considered unpleasant.
2. It must be for an offense against legal rule.
3. It must be of an actual or supposed offender for his offense
4. Human beings other than the offender must intentionally administer it.
5. It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.

Many definitions of punishment forwarded by different scholars or legal writer’s center on these characteristics provided above by H.L.A. Hart. Therefore, to attain the status of legal punishment, a penalty must satisfy all these elements cumulatively. If it does not have one of these features, it ceases to be a legal punishment.

Punishment is one species of large family of measures involving intentional deprivations of persons normally recognized rights by official institutions using coercive means if necessary. Apart from punishment there is also more rudimentary rule regulated practices with in the groups such as family, school, or customary society, which apply sanctions in case of breach of rules. These practices, however, not fulfill the standard of a silent feature of law; legislations, organized sanctions, courts, etc. that H.L.A. Hart proposed as a standardized definition of punishment.

Not long ago, corporal punishment was widely approved. Parents and teachers were told “to spare the road is to spoil the child” . Both educational and legal systems depended upon punishment. Punishment now has fallen into some disfavor. For example physical punishment is seldom used in schools, or with family. But what one approved as punishment may be considered as “a child abuse” or “spouse abuse”. The ultimate punishment, capital punishment, is one part of punishment and today it is extremely rare. But due to public attitude towards disfavor regarding some types of potential punishment it is still pervasive in the world today.

1.1.1 Justification of Punishment

Regarding justification of punishment scholars are not of the same opinion. They provide different reasons why we use punishment. There are many possible reasons that might be given to justify or explain why someone ought to be punished. Depending on its cultural, moral, and religious attitudes different societies have different outlook as to why criminals must be punished. Based on these differences, people have different purposes for punishing criminals.

1. Retributive Theory

According to this theory punishment is interested in correcting past wrongs. It looks backward to the crime and asks what justice require