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A Review of Related Literature
Presented to the
College of Law
School of Law and Governance
University of San Carlos
Cebu City, Philippines


For Final Requirements in



LLB 1 – EH 407 MC

This paper presents the review of the literature focusing on punishment and its
consequences. In order to answer the query as to the justification of the infliction of
punishment to any violators, this paper presents and explains utilitarianism as a principle
justifying punishment. Moreover, it is also discussed in order to determine any beneficial
outcomes in the imposition of such. Punishment, in here, refers to the capital punishment
involving any infliction of moral or physical suffering which governs a certain system.
So, to facilitate a specific, comprehensive and systematic understanding of punishment,
this review illustrates the penal system in the Philippines.
The chapter will commence with the conceptual basis of punishment, followed by
its establishment of the philosophical foundation and justification, by way of presenting
the general notion of punishment and utilitarianism. Thereafter, to be more specific, this
describes the punishment in the Philippines particularly enumerating as well its various
effects to the offender, the offended party if any and to the Philippine society as a whole.
In addition, the discussion is not limited within the utilitarian approach to
punishment, but also deals with matters outside the box, wherein throughout the review
are enumerations of some criticisms and other principles governing punishment. It is
important in order to determine and be enlightened with other principles and explanations
justifying punishment.
The outcome of this study is intended to give enlightenment as to the question
governing punishment, such as: its justification, purposes and consequences. In the end,
this review will be very essential to the further study concerning utilitarianism as well as
to the inclusive advantages of punishment in the entire system of the country.

Punishment, in general
Before dealing on with the justifications of punishment, let us first take a look
with the concept of punishment, per se. It (punishment) has been a crucial feature of
every legal system; however, widespread disagreement exists over the moral principles
that can justify its imposition.

Punishment is commonly defined as a „suffering, pain or loss that serves as
retribution‟ (Webster, 2012) . It covers a very broad subject area and context such as of
relationship between parents and children, schools and teachers, schools and students,
and teachers and students, employer and employee, government and its citizens and to
any other relationship where there is hierarchy of powers. Most importantly, there is
punishment because there is a violation of a certain system of rules governing those
relationships. It is the breaking of these guiding rules that determines the nature of
punishment to be imposed, may it be severe or not.
However, for the objective of this paper, this will narrow down the broad range of
punishment and tends to put its focus on the context of criminal punishment, whereby a
violator of the law breaks down the rules, by causing crimes and transgressions towards
other parties and punishments in any form are inflicted in order to pay off what he has
done. Parts of the civil law authorize punitive consequences, but in advanced legal
systems, legal punishment is linked to the criminal law.

Now, bringing down our attention to our core subject, Flew argues that
punishment in the sense of a sanction imposed for a criminal offense consists of five
1. It must involve an unpleasantness to the victim.

Kent Greenawalt, “Commentary on Punishment” (1983)The Journal of Criminal Law
and Criminology Vol. 74, No.2 pp.343
Ibid,.pp. 346

2. It must be for an offense, actual or supposed.
3. It must be of an offender, actual or supposed.
4. It must be the work of personal agencies; in other words, it must not be the
natural consequence of an action.
5. It must be imposed by an authority or an institution against whose rules the
offense has been committed. If this is not the case, then the act is not one of
punishment but is simply a hostile act. Similarly, direct action by a person who
has no special authority is not properly called punishment, and is more likely to
be revenge or an act of hostility.

So, from the abovementioned elements we can say that punishment is being
imposed for those who violate the laws by those in powers and authority. To reiterate, it
is not considered punishment if it doesn‟t come from an authoritative person or
institution. Hence, the concept of punishment denotes power and authority, the infliction
of certain pain, loss or suffering either physical or moral in the process of attainment its
To speak of “purpose”, what could be the purpose of punishment? What are the
aims and objectives of those in power? We have known in the usual settings that
punishment is merely given in order to correct certain wrongs done by the offender as
well as to bring justice to the offended party by compensating the damage being done
through their sufferings. But, is this all? Is there any other reason or objective in the
imposition of punishments? What are its other justifications? (See Justifications of

Punishment in the Philippines
In the Philippine context, our penal system being founded on the classical or
juristic thought, well-established the basis of criminal liability which is our human free
will and the determination of the penalty or punishment based on the specific and
predetermined penalty for the offense committed. (Boado, 2012) Furthermore, standing
in this classical theory of Criminal Law, we can deduce that the penal system of the
Philippines promotes fairness and justice through the proportionate imposition of the
penalty in accordance with the crime. Thus, the emphasis is on the offense and not on the

Our system has provided appropriate punishment in every crime committed. For
instance, homicide is penalized with reclusion temporal and other offenses with other
degree of penalties. These penalties as provided in the Revised Penal Code also talks
about hierarchy. We have the capital punishments, afflictive, correctional and light
felonies together with accessory penalties.
Varied punishments and sanctions are mandated to be imposed in every
transgression committed. Administrative, Civil or Criminal Offenses, they all have a
corresponding sanctions imposed in every misdoings in the duties and responsibilities of
those in power as well as violations done by every citizens. These punishments are not
established for the purposes of imposing punishments only to the citizens but as well as
to all other persons or even foreigners sojourning within the territory. The Philippine
penal system binds every Filipinos and people whether in or out of its jurisdiction as it is
characterized by generality, territoriality and prospectivity principle. The different

Cited in the book of Banks Chapter 5 The Purpose of Criminal Punishment pp. 103-104,
Boado, L. D. (2004). Notes and Cases on the Revised Penal Code.

punishments inscribed in our system involves neither physical nor moral suffering, rather
it involves more a restriction and prohibition in some of our constitutional rights. What
determines the degree and gravity of the punishment is the number of years of restriction
and prohibition. However, in matters of capital offenses, capital punishment is to be
imposed to a certain individual. The capital punishment in the Philippines is death
penalty, but with Republic Act No. 9346, the imposition of death penalty was now
prohibited, but instead provided for the imposition of penalty of reclusion perpetua in lieu
of death. (Reyes, 2012) Hence, one who commits a crime, and such is a capital offense
punishable by death penalty will now be serving only the penalty of imprisonment and
not to the extent of taking one‟s life. Under Republic Act No.7659, the duration of
reclusion perpetua is now 20 years and 1 day to 40 years.

In view of the foregoing punishments, especially of the supposed death penalty,
what could be the purpose or reason in the imposition of such kind of punishments? What
could be the pros and cons of these punishments in the life of the stakeholders in every
crimes being committed? Or, to make it short,” what justifies the imposition of death
penalty in the Philippines. These, we will answer subsequent to the discussion on the
Justifications of Punishment.

Justification of Punishment
Right after dealing with the basic concept of punishment as well as the penal
system of the Philippines being our subject, it is proper to understand and to give answer
to the questions being raised in the previous part of the study. The purposes, reasons, and
consequences of the imposition of punishment (capital punishment) altogether provide
the justification of punishment.
Because punishment involves pain or deprivation that people wish to avoid, its
intentional imposition by the state requires justification.
Infliction of punishment is an
action or a class of actions. We evaluate such an action in terms of either the
consequences it yields or the intention of the agent who inflicts punishment.
works have proved that there are two theories that justify punishment: the Retributive and
the Utilitarian theories.

Let‟s tackle first the Retributive Approach in justifying punishment. This theory
involves revenge and retribution. This sentencing system focuses primarily on the
seriousness and characteristics of the criminal act rather than the offender.
(Murtagh, 2005) state that concepts of desert and justice occupy a central place in most
retributive theories: in accordance with the demands of justice, wrongdoers are thought to
deserve to suffer, so punishment is justified on the grounds that it gives to wrongdoers
what they deserve.
In addition, under this theory, offenders are punished for criminal behavior
because they deserve punishment. According to the retributivist, human beings have free
will and are capable of making rational decisions. An offender who is insane or otherwise

Reyes, L. B. (2012). The Revised Penal Code. Manila: Rex Publishing Company.
Punishment - Moral Justifications And Legal
JitendraNathSarker, Justification of Punishment, University of Rajshahi, Bangladesh
Philosophies of Punishment, pp. 15-16

incompetent should not be punished. However, a person who makes a conscious choice
to upset the balance of society should be punished.

Another viewpoint being made in the justification for punishment is the most
known principle of utilitarianism. But before we proceed with the discussion of the
utilitarian approach of punishment, it is appropriate to give first background of this
utilitarian thinking through the perspective of the proponents of this thought: Bentham
and Mill. They provide and established the foundation of this thought, thus, it emerged as
one counterpart of retributive justice as justification of the infliction of punishment.
Nevertheless, we will present not only those classical thinking but will also give light for
the contemporary thinking based on utilitarian grounds.
Jonathan Bennett(Bennett, 2005) ,in his discussion of Utilitarianism by John
Stuart Mill well- discussed that the doctrine that the basis of morals is utility, or the
greatest happiness principle, holds that actions are right in proportion as they tend to
promote happiness, wrong in proportion as they tend to produce the reverse of happiness.
By „happiness‟ is meant pleasure and the absence of pain; by „unhappiness‟ is meant pain
and the lack of pleasure.
Also, Jeremy Bentham's account of punishment rests on the broader social ethic
that he also developed: the principle of utility. Social measures are to be judged, he
maintains, according to the degree to which they promote aggregate satisfaction.(Hirsch,
1992)In his perspective, “Pleasures then, and the avoidance of pains, are the ends that the
legislator has in view.”In Chapter VII Bentham says, “The business of government is to
promote the happiness of the society, by punishing and rewarding… In proportion as an
act tends to disturb that happiness, in proportion as the tendency of it is pernicious, will
be the demand it creates for punishment.”
Being such, the imposition of punishment
shows that it was meant for the consequence of pleasure rather than pain. The utilitarian
perspective according to him, is justified because the infliction of punishment produces
some sort of utility or it promotes general welfare or happiness.
More than that, he contends that “… By the principle of utility is meant that
principle which approves or disapproves of every action whatsoever according to the
tendency it appears to have to augment or diminish the happiness of the party whose
interest is in question: or, what is the same thing in other words to promote or to oppose
that happiness. I say of every action whatsoever, and therefore not only of every action of
a private individual, but of every measure of government.”

On the other hand, Mill (Mill, 1863) in his work and in support with the previous
proponent stated that, “The creed which accepts as the foundation of morals, Utility, or
the Greatest Happiness Principle, holds that actions are right in proportion as they tend to
promote happiness, wrong as they tend to produce the reverse of happiness. By happiness
is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of
However, this classical thinking pursues up to the twentieth century
developments. Out from this one, different variety of utilitarianism exists, such as ideal
utilitarianism, act and rule utilitarianism, two-level utilitarianism and the preference
utilitarianism. These varieties may have different contentions, but being founded in a

Punishment - Moral Justifications And Legal

utilitarian thinking, they have the same denominator that they are geared towards the
greatest happiness and maximized utility.

Thereafter understanding the basic knowledge regarding these two theories which
justify punishment, this paper will now focus into the utilitarian perspective in justifying
punishment. We will limit our discussion only in this theory rather on dwelling with the
two theories for the purpose of this paper is to present only a review based on the positive
implications of punishment. Nevertheless, we are not saying that retributive theory has
nothing positive consequence in it. In fact, because retributivist approach is backward
looking -- what justifies a punishment is the fact that the person being punished did
something wrong, has come to produce the positive effect on the part of the offended
Since, this theory holds that the perpetrator deserves with the kind of
punishment fit with the crime committed, it gives best justice on the part of the offended
parties. Punishment in here served as a compensation of what they have done, but in
accordance to the level and degree of the crime being committed. We‟ll move on with the
utilitarian approach to punishment because this study is not meant to dwell in to the
difference between the two theories of justification, rather to present the positive
implication of every punishment.
Moving on, the utilitarian approach to the nature of punishment requires that the
general justification of punishment should be determined by reference to the beneficial or
detrimental consequences of the practice alone.(Charvet)So, in order to begin our
analysis with the consequences of punishment, it is essential to determine first the way or
the relationship between the laws/ rules and the people. Charvet have identified two
classes of theories in order to identify what it is for the people to follow a rule, is it either
rule- following or a simple habitual behaviour? It is his contention in his work that the
thinking that people have in dealing with the laws determines the beneficial or
detrimental consequences of every rule. If people simply follows rule as a habit, where
the great majority behave in the same way, there is no reason to criticize the breach of
rules he undertake. On the other hand, if people are rule- following, criticisms to the
breach of rules is justified and punishment is justified as well.
Moreover, according to the utilitarian account of punishment 'A ought to be
punished' means that A has done an act harmful to people and it needs to be prevented by
punishment or the threat of it. So, it will be useful to punish A. Hence, a punishment is
justified when it is both useful and deserved. These has been the contention of Sarker ,
that he noted that the term punishment may be understood in two different senses (i)
Punishment in general and (ii) specific case of punishment .Punishment in general can
obviously be justified (in the traditional sense of the term) on utilitarian grounds, (though
justification is not necessarily enquired in general ). It is the justification of particular
infliction of pain (or punishment) that can be enquired of. While in its specific sense, the
term punishment is used to mean an actual infliction of suffering. It is a particular action -
-- not a class of actions. Hence, here we can deduce that punishment in general is
classified by utilitarian grounds since it is the general welfare that is being anticipated in
every punishment.
In addition to this clarification, the most significant elucidation of utilitarianism as
an approach justifying punishment is that it is "consequentialist" in nature. 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. In other words,
punishment should not be unlimited.

The Utilitarian and Retributivist Approach to Punishment

Also, according to Kevin Murtagh in his work Punishment, “When attempting to
determine whether a punishment is justifiable, utilitarians will attempt to anticipate the
likely consequences of carrying out the punishment. If punishing an offender would most
likely produce the greatest balance of happiness over unhappiness compared with the
other available options (not taking any action, publicly denouncing the offender, etc.),
then the punishment is justified. If another available option would produce a greater
balance of happiness over unhappiness, then that option should be chosen and
punishment is unjustified.

Being consequentialist in nature, it is also important to determine first the purpose
in the imposition of punishment in every society and subsequently identify the beneficial
or utilitarian consequences or effects in the infliction of punishment.
According to Julian Alexander (Alexander, 1992) the earlier theories of
punishment for crime involved the motives of vengeance, retaliation, retribution or
compensation-at first "in kind" or at a fixed scale-and of deterrence against repetition by
the criminal or imitation by others. As these motives in their several combinations have
moved society in its treatment of criminals, we find that the punishments have varied in
kind and severity.
To comprehensively grasp the utilitarian perspective of punishment, let us
describe each of the goals or motives of punishment, and discuss along the effects or
beneficial consequences of punishment.
In the article Punishment- Moral Justifications and Legal Punishment,
it has
enumerated the beneficial motives and consequences of punishment. To identify, these
are the following:
A. General deterrence. Knowledge that punishment will follow crime deters
people from committing crimes, thus reducing future violations of right and
the unhappiness and insecurity they would cause.

In addition, the most common deterrence-based approach to punishment
maintains that punishment is justified just in case punishing an offender would
deter other potential criminals from committing crimes in the future. The most
significant limitation of such accounts is that deterrence as a rationale for
punishment cannot stand alone. There are two quiteobvious reasons for this.
The first we might call the „„problem of torture.‟Deterrence theorists, like
everyone else, believe there are restrictions on what it is permissible to do to
another human being. But if torture deters, on what grounds will deterrence
theorists rule it out? A second problem we might call the „„problem of
responsibility.‟Deterrence theorists, like everyone else, would limit
punishment to the guilty. But once again, if „„punishing‟‟the innocent deters,
on what grounds will the deterrence theorist rule it out of bounds?(Finkelstein,

B. Norm reinforcement
Practices of punishment can thus reinforce community norms by affecting the
dictates of individual consciences. Serious criminal punishment represents
society's strong condemnation of what the offender has done, and performs a
significant role in moral education.

Kevin, Murtagh Punishment 2005
Punishment - Moral Justifications And Legal Punishment

C. Individual deterrence. A primary utilitarian purpose for punishment involves
various actions designed to decrease the physical capacity of a person to
commit criminal or deviant acts. The actual imposition of punishment creates
fear in the offender that if he repeats his act, he will be punished again. For the
utilitarian, more severe punishment of repeat offenders is warranted partly
because the first penalty has shown itself ineffective from the standpoint of
individual deterrence.
D. Incapacitation and other forms of risk management. Imprisonment
temporarily puts the convicted criminal out of general circulation, and the
death penalty does so permanently. These punishments physically prevent
persons of dangerous disposition from acting upon their destructive
E. Reform. Punishment may help to reform the criminal so that his wish to
commit crimes will be lessened, and perhaps so that he can be a happier, more
useful person.
F. Vengeance. The utilitarian, in contrast to the retributivist, does not suppose
that wrongful acts intrinsically deserve a harsh response, but utilitarians
recognize that victims, their families and friends, and some members of the
public will feel frustrated if no such response is forthcoming.

Now, that we have known the purposes and outcomes of punishment in a
utilitarian approach, we are able to understood and grasp that imposition of punishments
are justified through its consequences. The utilitarian approach and view to punishment
implies to us that, far from our common perception that punishment is only given in order
to compensate the crime committed by a person, there are some positive outcomes one
could derive out of punishment more than the benefits the offended party gets during
punishment. Above, was the proof that the imposition of punishment, is at all times has a
benefit for everybody.
However, despite the utility we get out from punishment. Despite with the
efficient outcomes we derive through utilitarian views, there are still many criticisms in
this approach. Before we proceed into the assessment of capital punishment in the
Philippines, as our main context, it is proper to elucidate some contentions of the critics
of utilitarianism.
In the preceding parts, we have been acquainted with the counterpart view of
utilitarianism- the retributive theory. Some of the critics were also founded from this
school of thought. First in line, was Kant. (This) idea is strikingly captured by Immanuel
Kant's claim that an island society about to disband should still execute its last murderer.
In Kant's view, a failure to punish those who deserve it leaves guilt upon the society;
according to G. W. F. Hegel, punishment honours the criminal as a rational being and
gives him what it is his right to have. Based on the said theory, he contends that practices
of punishment are justified because society should render harm to wrongdoers; only those
who are guilty of wrongdoing should be punished; and the severity of punishment should
be proportional to the degree of wrongdoing, an approach crudely reflected in the idea of
"an eye for an eye, a tooth for a tooth."

Another objection being brought about against utilitarianism is the thought that
utilitarianism approach is being hedonistic. According to this, there is more to life than
pleasure: it has the knowledge, virtue and others. They criticize utilitarianism for being o
much indulge in self-pleasure rather than looking into other significant and beneficial
things in life.


More than that, another unique perspective was shown in the Unintentional
Punishment (Kolber, 2012), Kolber discussed that those who attempt to justify only the
purposeful inflictions of punishment cannot possibly justify real-world punishment
practices such as incarceration because they fail to justify all of the non-purposeful
inflictions that are necessarily associated with it. What theorists have not adequately
recognized is that real-world punishments involve both intentional and unintentional
harms to even a single offender. He further discussed the justification- symmetry
principle. According to him, “what I call the justification-symmetry principle provides a
(not necessarily exclusive) test of whether some punishment-related conduct requires
justification. The principle says that if you or I must have a justification for risking or
causing some harm, then so must any person who risks or causes the same kind of harm
in the name of punishment.Theories of punishment that address only intentional aspects
of punishment are woefully incomplete(emphasis supplied).
Although Kolber does not tackled much into the consequences of punishment, he
nevertheless bring forth the idea that if a certain justification addresses only intentional
aspects of punishment , then it would be incomplete. Hence, if utilitarian justification of
punishment if it only talks about intentional punishments, then, it did not absolutely
justify the imposition of such.
The above contentions of Kant, the objection of utilitarianism being hedonistic as
well as the discussion of justification are just some of the direct or indirect criticisms
thrown against the utilitarian perspective of punishment. Other contentions could be
discussed in separate discussions which will comprehensively converse these criticisms

We have discussed in the previous parts the punishments or the penal system as a
whole in the Philippines. Its philosophical foundations and the specific punishments were
also explained and enumerated. It is our basic knowledge that before the abolition, there
really has the death penalty as the imposable punishment for capital or corporal crimes
being committed. To be more specific, lethal injection is the one referred to be our death
Our penal system lies in the philosophical ground of retributive foundation,
wherein it recognizes that everyone acts in their own free will, that is why, punishment is
deservingly given proportionately to those who committed crimes. These may be in a
retributive side, but it is inevitable and we cannot close the door of a utilitarian
perspective. The abovementioned purposes/ consequences are also apparent and
applicable to the effects of capital punishment into the citizens of the country. And, In
order for a punishment to be justified, it must satisfy at least one of these criteria, where
any one of which is necessary but not a sufficient condition.

Although some contends that capital punishment is not deterrent for (the
commission of other) capital crimes, still, punishments (will) tend to have more of a
deterrent effect to the extent that they are promptly and consistently employed.”

Capital punishment has its positive and negative implications to the offender, offended
and even to the whole society. There may be a lot of reasons for or against the execution
of death penalty, but, the general population or the majority‟s wide range of belief affects
the execution of this kind of punishment.
Apparently, capital punishment lies in both
ends of these two theories of punishment. Over-all, it is difficult to clearly and concisely

The Purposes of Capital Punishment
The Pros and Cons of Capital Punishment

justify capital punishment because the question concerning the deterrent effects of capital
punishments, to be hanging. From the justifications, we can even deduce that the
abolition of our death penalty may be due to the excessive application and reliance to
retributive system, where penalties are being given according to the gravity of the crimes
being committed. More than that, the basic rationale for the abolition of death penalty is
because of the least utility we could get out of this capital punishment.


We have come to know punishment, its cause, motives/ purpose as well as
consequences. We also encountered the two dominant theories justifying punishment.
Dwelling on with the utilitarian perspective, we have come to understood far beyond the
philosophical basis of our penal system, that there is a beneficial consequences and a
positive implications we could derive out of every punishment given by the government.

This paper did not reject the notion of retributive theory in justifying punishment;
it merely focuses on the positive aspect through the discussion in the various areas
concerning punishment and utilitarian approach.

Standing on the utilitarian grounds , imposition of punishments are justified
because these only geared towards the achievement of its objective which could be to
deter future crimes, incapacitate offenders and prevent them for future same
undertakings, a rehabilitation and a reformation of the offender. Its consequentialist and
prospective view brings out the positive and essential benefits we derive out from


Journals and Books
Alexander, J. (1992). The Philosophy of Punishment. Journal of the American Institute of
Criminal Law and Criminology, Vol. 13, No. 2, pp. 235-250.
Bennett, J. (2005). Utilitarianism By: John Stuart Mill.
Boado, L. D. (2012). Notes and Cases on the Revised Penal Code pp.9.
Charvet, J. (n.d.). Criticism and Punishment. Oxford Journal, 573-579.
Finkelstein, C. (2005). A Contractarian Approach to Punishment. In E. b. Edmundson., The
Blackwell Guide to the Philosophy of Law and Legal Theory (pp. pp. 207-218).
Australia: Blackwell Publishing.
Hirsch, A. v. ( 1992). Proportionality in the Philosophy of Punishment. Chicago Journals
Vol.16V, 55-98.
Kolber, A. (2012). Unintentional Punishment. Cambridge Journal 18, pp. 1-29.
Mill, J. (1863). Utilitarianism. Batoche Books Limited.
Murtagh, K. (2005, July 24). Punishment.
Reyes, L. B. (2012). The Revised Penal Code pp. 621. Manila: Rex Publishing Company.
Webster, M. (2012).

Internet Sources & Others
Chapter 5 The Purpose of Criminal Punishment pp. 103-104, 2004

Jitendra Nath Sarker, Justification of Punishment, University of Rajshahi, Bangladesh
Kent Greenawalt, “Commentary on Punishment” (1983)The Journal of Criminal Law and
Criminology Vol. 74, No.2 pp.343

Philosophies of Punishment, pp. 15-16

Punishment - Moral Justifications And Legal Punishment

The Pros and Cons of Capital Punishment

The Purposes of Capital Punishment

The Utilitarian and Retributivist Approach to Punishment