*RETHINKING JUSTICE WHILE INCORPORATING PSYCHOLOGICAL FINDINGS –

ALTERNATIVE SYSTEMS FOR PUNISHMENT AND REHABILITAION*

DATE: 15 SEPTEMBER 2017

WORD COUNT: 15406
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Table of Contents

OVERVIEW  .................................................................................................................................................  4  

INTRODUCTION  ...........................................................................................................................................  5  

CHAPTER  1-­‐    UNDERSTANDING  THE  ECOSYSTEM  OF  JUSTICE-­‐  FROM  THE  WERGILD,  TO  RESTORATIVE  JUSTICE.  ....................  9  

Jurisprudence  .........................................................................................................................................  9  

Law-­‐  .....................................................................................................................................................  11  

Justice  ..................................................................................................................................................  18  

Ideal  and  non-­‐ideal  theories  of  justice  ..................................................................................................  21  

Social  justice  .........................................................................................................................................  22  

Crime  and  Punishment  .........................................................................................................................  24  

Understanding  punishment  ..................................................................................................................  26  

CHAPTER  3.  .............................................................................................................................................  30  

Learning  from  other  fields  ....................................................................................................................  30  

Important  findings/  experiments  ..........................................................................................................  32  

CHAPTER  4  ..............................................................................................................................................  36  

Comparative  analysis  between  U.K,  U.S  and  the  Nordic  countries-­‐  Norway  in  particular  .......................  36  

The  problem  of  the  mentally  ill-­‐  ............................................................................................................  41  

Learning  from  the  Nordic  model  ...........................................................................................................  42  

CHAPTER  5  ..............................................................................................................................................  44  

Restorative  justice:  and  other  alternatives  ...........................................................................................  44  

Exploring  other  options-­‐  .......................................................................................................................  46  

CONCLUSION-­‐  ...........................................................................................................................................  51  

BIBLIOGRAPHY  ..........................................................................................................................................  53  

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OVERVIEW

This study seeks to trace the trajectory of major evolution within the concepts of justice
and scrutinize them in relation to normative praxes within the domain of contemporary
jurisprudence. It is postulated that interdisciplinarity is essential in mapping the topology
of justice, and as will be shown, psychology(and its legally related manifestations) as an
independent domain is essential to our understanding of justice. It is only from this
psychologically informed reading of jurisprudence that we can formulate the dyad of
crime-justice. Further, this paper explores alternatives to conventional forms of
punishment and rehabilitation, through the hermeneutics of restorative justice. This paper
focuses on the prevailing practices in the United Kingdom and the United States of
American while presenting an alternative in the form of the Nordic prison system.

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INTRODUCTION

The world since Niccolò Machiavelli’s The Prince (original, Il

Principe, 1513) has swerved1 to a new construct which would be unrecognisable to
the inaugurators of the European Renaissance, or Continental Early
Modernism.Greenblatt clearly shows how there was a rupture in both political and
specifically judicial discourses. The wergild or the man-price of the Scandinavian
nations gave way to a more humane system of justice. Given that Greenblatt is not a
philosopher but a scholar of Early Modern literature, this researcher feels that
literature has much to contribute to jurisprudence and as such finds it apt to illustrate
the concept of the ‘swerve’ from Greenblatt. It is further interesting to note that the
wergild is cognate with the Code of Hammurabi (circa 1750 B.C.) Wergild is also to
be found in Rothair’s Edict of 643 A.D. Therefore, it is only with the rise first of
European Humanism and then of English humanism do we have the ‘swerve’ from
the Mosaic Code to Christ’s Laws of Love.2 Restorative justice as a concept in
Europe and America has preoccupied both Judaic law makers in general and
specifically, Hasidic Jews in the United States.3 Similarly, Christian exegetes have
seen Jesus’s commandments as the source of Restorative Justice in both Europe and
the United States of America.4 Restorative justice has its ontology in Early Modern
thinkers, especially, Marsilio Ficino, Giovanni Pico della Mirandola5, and the
Enlightenment thinker, Giambattista Vico6.Giovanni Pico della Mirandola was

1
S Greenblatt , The Swerve: How the World Became Modern (Norton 2011)
“The Cultivation of Anxiety: King Lear and His Heirs,” Learning to curse: essays in early modern
culture (Routledge 2015)
2
MB Crosby , The Making of a German Constitution: a Slow Revolution (Berg 2011) 108
3
J Gorsky , Exiles in Sepharad : The Jewish Millennium in Spain (The Jewish Publication Society 2015)
4
D Chandler , “The New Commandment,” The royal law of liberty: living in freedom under Christ's law of
love (Trafford 2003).
5
Giovanni Pico dellaMirandola, Oration on the Dignity of Man, De HominisDignitate(Gianfrancesco
1496);
6
GianbattistaVico,De NostriTemporisStudiorumRatione(1708)(On the Order of the Scholarly Disciplines
of our times))

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responsible for movement away from the Mosaic Law of an eye for an eye; the
rediscovery of Jesus’ primacy of Platonic ‘agape’. GiambattistaVico makes a case for
considering many sides of one argument. i.e make a case for sympathy directed
towards the human person. Human agency is prioritized, but not at the cost of
humanism qua humanity. Vico makes the case for the Vitruvian man to be a person
made abject and therefore worthy of respect and thus affects jurisprudence, since the
being human demands justice which does not punish but restore one’s dignity and in a
more Judaeo-Christian sense, demands empathy. Thus, both Pico della Mirandola and
Vico pave the way for restorative justice.
Although the full implications of Plato’s treatment of the jury in his Phaedo and
earlier, in his Republic are beyond this essay’s purview, Ficino’s role in reviving
Plato’s political philosophy is important to any discussion on restorative justice7.
Suffice it to say that Plato was reread by Ficino who along with other Neo-Platonists,
made a strong case for treating the human person with empathy and thus in this sense,
contributed to a more humane system of justice. It was these early Modern thinkers
who removed the concept of wergild from Europe. Mirandola’s Oration on the
Dignity of Man establishes the essential nature of man, the Christian ecce homo,
leading to the Hasidic scholar Martin Buber’s restoration of dignity to the human
person. Buber’s emphasis on the essentiality of the presence (‘Gegenwart’) in his I
and Thou that is to say, the essential dignity of the human person made in the image
of Yahweh, is what will make explicit the need for rethinking problems posed by
current prison systems in the British Isles and the United States of America. It is only
when we see others as Buber’s Thou, do we begin to understand the need to invest
both metaphorically as well as literally in the study of the penal system in the light of
restorative justice.8 A justice system which does not heal, does not restore, as it were,
the humanity of the perpetrator, which does not set right the Covenant between the
perpetrator and what Immanuel Kant terms the noumenon, is not justice. Machiavelli

7
M Ficino and A Farndell, When Philosophers Rule (Shepheard-Walwyn 2009)
8
Martin Buber and Ronald Gregor Smith, I And Thou.(translated to English)1937

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who seemed so pertinent at the beginning of this section can be set aside with the
notorious Codes of Hammurabi (1754 BC) as being just too inhuman. Hammurabi
had little to do with wergild since even the Sutton Hoo findings do not justify any
cross-continental juridical exchange of ideas. Wergild is a very ancient and original
European idea which exerted its power in the ancient world independently of
Hammurabi’s Codes. Machiavelli was mentioned at the beginning to show why we
must reject The Prince as robbing the human person of what later Immanuel Kant will
term ethical ‘categorical imperatives’. Without logocentric ethics, there cannot be
crimes; without logocentric absolute and radical Kantian evil, there cannot be crimes
and without crimes there is no need for justice or restoration of dignity to the
perpetrator. Absolute evil is to be won over by absolute humanity derived from the
aforementioned Early Modern thinkers and radical evil needs to be countered with the
Kantian categorical imperative of absolute good. This is the good that Iris Murdoch
expounds upon in her book The Sovereignty of Good.9It is keeping in mind this
swerve that we now seek methods to reform and transform existing penal systems.
Increased technological advances, more stringent laws by the United Nations have
done little to change the criminal-correction system globally as no alternatives are
presented. the possibilities created by technology facilitate Michel Foucault’s
panopticon becoming the all-roving eye of the Big Brother; making him seem
prophetic and in a certain sense, more Orwellian than ever.10 The much-touted
differences between the crime and the criminal; the sin and the sinner are all the more
pronounced by their ubiquitous absence.
Punishment using prisons was not very popular until the late 18th century. One of the
reasons why we find a lack of mention of prisons till then is more insidious: criminals
and the clinically insane were kept all together in abysmal-subliminal places. This
was because a criminal was supposed to lose her or his humanity by the acting or
praxes of criminal intent. This loss of humanity was conflated with the loss of sanity.

9
Iris Murdoch, The Sovereignty Of Good (Routledge 2014).
10
Michel Foucault and Alan Sheridan, Discipline And Punish (Vintage 1995).

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Therefore, the criminal justice system while meting out disproportionate punishment
to perpetrators of crime; made the mentally ill, criminal. This is a perfect travesty of
justice. Even today, there is a tendency to conflate clinical mental ill health with
(Kantian) radical evil-doers. The deviant presupposes a norm; this scale of deviancy
is produced through a nexus between pharmacologists, psychiatrists and the mental
healthcare system.11 Therefore, deviancy itself is a fluid term and what is criminal is
itself continually in a flux. Thus we need to separate absolute acts of crimes like
murder (excluding that in self-defense), child-abuse and rapes from what is loosely
termed both in jurisprudence and in psychiatry as deviancy. Rather, for the purpose of
this paper we will interrogate radical evils and our reaction as an Aristotelian polity to
such crimes.
The past century has seen unprecedented violence and prisons have been mostly used
as tools for removing subversive socially defiant forces, from repressive regimes.
Prisons, as Antonio Gramsci (1891-1937) pointed out during his incarcerations are
stable state machinery effecting the realpolitik of oppressions and effects the silence
of dissent. Prison systems the world over are marked by the hegemonic powers of
institutions of governance including those of the hierarchic judiciary12. The original
swerve understood the prison system to be corrective. It is in fact atavistic

11
Robert L Spitzer, DSM-IV-TR Casebook (American Psychiatric Publishing 2002)
12
A Gramsci, Prison Notebooks (Joseph A Buttigieg and Antonio Callaritrs, Columbia University Press
2011)

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CHAPTER 1- UNDERSTANDING THE ECOSYSTEM OF JUSTICE- FROM THE WERGILD, TO

RESTORATIVE JUSTICE.

This chapter seeks to analyze predominant outlooks/ resasonings that are the underlying
foundations of this research. In order to rethink justice we first need to understand the
various ways in which it is interpreted and implemented. The researcher understands that
Justice can never be absolutely defined and as such is attempting to trace and redefine the
constantly evolving conceptions of the nature, scope and ambit of justice.
Through an understanding of the following concepts, we can see various transitions in the
history and evolution of justice as discussed in the introduction. Since information is
always selected and presented, the chapter is trying to study how these
evolutions/changes potray societies as they have been/ are.
Given our transition from the wergild to religious law and now modern day democracies,
we as individuals have a lot more say over the laws we live under and the governments
that implement them.

Jurisprudence
There are many approaches to the meaning of jurisprudence and the etymologic meaning
is readily available online in various avatars but we need to only stress its origins in being
prudent (from prudentia)13. Circumspection and prudence are virtues which solidified as
opaque ethical structures even before Patristics codified prudence as a major virtue.
Rather, for the purpose of this paper we ought to focus on the works of thinkers like Gary
Minda and Kyron Huigens14. Minda’s understanding of jurisprudence is a continuation of
the Early Modern ‘swerve’ discussed in the Introduction. Minda writes:

1313
‘Jurisprudence’ (The Free DictionaryJune 11, 2017)
<http://legaldictionary.thefreedictionary.com/jurisprudence> accessed June 11 2017.
14
Huigens, ‘The Jurisprudence of Punishment’ (2007) William and Mary Law Review,.

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‘Another group of postmodern critics, the ironists, attempt to facilitate the

crisis and fragmentation of modern theory by employing postmodern
criticism to 'displace, decenter, and weaken' central concepts of modern
legal Western thought. Ironists assert that the significance of modernism
lies not in specific prescriptions or social tasks, but rather that it lies in the
intellectual pursuit of theory as an end to itself’. 15
It is this distrust of a metanarrative of power that marks this inquiry into restorative
justice since we must question the nature of justice itself in the Prophetic mode. The
Major and Minor Biblical Prophets kept questioning the Law and finally Mosaic Law
was questioned by Christian exegetes and keeping in mind that both British and
American lawmakers being mostly devout Christians we should see law in praxes within
this Prophetic mode and through the swerve to the works of the likes of Minda and
Huigens. Therefore, there arises the need to analyse the etymologic origins of
jurisprudence. But with the caveat that prudence is a questionable trope since Richard
Rorty16.
Jurisprudence can for the sake of simplicity be broadly classified into four, often
intersecting groups.17The first seeks to analyse, explain, classify, and criticize entire
bodies of law. This is essential for understanding problems with the status quo. The
second compares and contrasts law with other fields of knowledge such as literature,
economics, religion, and the social sciences.
The third seeks to reveal the historical, moral, and cultural basis of a particular legal
concept. (The legal concepts in question here are that of crime and punishment).The
fourth focuses on finding the answer to abstract questions like ‘What is law? What is
justice?’ and ‘How do judges (properly) decide cases?’18. As such it is imperative to use
an interaction of these groups to get a proper understanding of justice as we see it.

15
G Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End (Oxford University
Press 1995)230
16
R Rorty, Achieving Our Country: Leftist Thought in Twentieth-Century America (Harvard University
Press 2003)
17
Steven J Burton, An Introduction to Law and Legal Reasoning(2d ed, Aspen Publishing 1995)
18
'Jurisprudence' (LII / Legal Information Institute, 2016)
<https://www.law.cornell.edu/wex/jurisprudence> accessed 16 August 2016.

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Conceptual questions regarding law and justice are the edifice of this research. The paper,
analyzes and criticizes through comparison while tracing the historical, cultural and
moral basis of punishment and rehabilitation. An interrogation ensues to show law can be
used both as a critique and/or tool for assessing social institutions and, to reform and
evolve the body politic while effecting a recovery of social situation qua situatedness in
which it operates.19

Law-
In the words of Thurman Arnold, ‘It is obvious that it is impossible to define the word
"law" and it is equally obvious that the struggle to define it should not ever be
abandoned’.20
This ambiguity in taxonomy is very human(e) and therefore of great significance in
constructing methods of delivering restorative justice. In other words, the practice of law,
has to be real in so far it delivers justice to society, does not scapegoat but sets in motion
corrective and healing measures to both the aggrieved and the perpetrator termed
transgressor above. Transgression is a more fluid understanding of law. Therefore, this
researcher suggests that Arnold’s definition of law be restructured as that human
discourse21 which is resisted and a Girardian22,23 reaction is provoked from the
aforementioned Aristotelian polity. It is posited that law is justice and restorative, which
allows for self-actualization vide Abraham Maslow's ‘hierarchy of needs’24.
Conventionally however, Law is a system of rules that are enforced through social
institutions to govern behavior.25 In this sense the teleology of law is psychological and

19
Robert Audi, The Cambridge Dictionary Of Philosophy (Cambridge University Press 1999).
20
Thurman Arnold, The Symbols of Government(Yale University Press 1935)36.
21
Kyu-hyung Cho, Re-Marking The Human And The Humanities:An Explicative Reading Of Jacques
Derrida's “Structure, Sign, And Play In The Discourse Of The Human Sciences” (2013) 13 ;
Jacques Derrida, English & American Cultural Studies.citing.(Sign, and Play in the Discourse of
the Human Sciences)(1966). Humanity has been defined by Derrida here.
22
René Girard, Violence and the Sacred (The Johns Hopkins University Press, in English1977).
23
René Girard, The Scapegoat (Yvonne Freccerotr.Johns Hopkins, University Press, 1986).Restorative
justice and law in general, is that which prevents scapegoating.
24
A. Maslow, ‘A Theory of Human Motivation’(1943)Psychological Review50,370-396.
25
Geoffrey Robertson, Crimes against humanity: The Struggle for Global Justice, Revised and Updated
Edition(New Press1999)

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crafted to have significant human impact in terms of various scales of behavior

quantitatively verifiable by methods so classically put in place by Anne Anastasi.26A
study into the evolution of laws and legal systems provide insight into how people
interact in order to create a society. Such socio-legal analysis also applies to religions and
the laws imposed by them. Ancient texts and mythological accounts27 that show the
importance of punishment should be kept in mind as they enable us to better understand
how fear as an essential element of life is necessary for the maintenance of social order.
Apart from the positive morality (rewards) that religions inculcate, there are also methods
of punishment, which can include physical torture, ostracism and boycotting amongst
others. The fear of hell and damnation (in its various adapted forms) has been responsible
for good behaviour and deterrence over centuries, depicting how even the fear of
something unknown can be used to create order. Religion is considered a form of social
ordering, which is why judgment or the concept of being accountable for ones actions is a
recurrent theme in various religions.28 Examples of such study can be found in The
Oxford Journal of Law and Religion which seeks to cover ‘social, legal and political
issues involving the relationship between law and religion in society; comparative law
perspectives on the relationship between religion and state institutions; developments
regarding human and constitutional rights to freedom of religion or belief; considerations
of the relationship between religious and secular legal systems; empirical work on the
place of religion in society; and other salient areas where law and religion interact (e.g.,
theology, legal and political theory, legal history, philosophy, etc.)’29Predominant
transitions in the underlying concepts used to understand the nature and philosophy of
law are evident through a brief critique on the four major schools of thought that revolve
around it.Natural law is the idea that there are rational objective limits to the power of

26
Anne Anastasi, Psychological Testing (Macmillan 1988).
27
Includes examples from Greek mythology, Hindu mythology, Christianity and Islam
28
'Aatmagyan' (Aatmagyan.com, 2016) http://www.aatmagyan.com accessed 8 July 2016.
29
Oxford Journal Of Law And Religion' 2016'Oxford Journals Law <(Ojlr.oxfordjournals.org,)
><http://ojlr.oxfordjournals.org> accessed 7 May 2016.

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legislative rulers and that the foundations of law are accessible through reason and it is
from these laws of nature that man-made laws gain whatever force they have30
The concept of natural justice, originated with the English courts and is now an
established part of the legal system of both former and present members of the British
Commonwealth, such as India, Australia, and New Zealand, whose legal systems are
derived from the English 'system.31
It is similar to the American concepts of ‘fair procedure’ and ‘procedural due process’,
the latter having roots that to some degree parallel the origins of natural justice.32 The
fifth and fourteenth amendments to the American Constitution, provide that neither the
federal government nor the States shall deprive any person of life, liberty, or property
without due process of law.33,34,35,36,37,38,39,40 The Iowa Supreme Court in Henry v.
Dubuque etc stated that
‘To be protected and thus secure is a right inalienable, a right which a
written constitution may recognize and declare, but which existed
independent of and before such recognition, and which no government can
destroy.’41
William Blackstone has described the thesis as:

30
Leo Strauss, "Natural Law," International Encyclopedia of the Social Sciences (Vol. II, D. Sills Ed,New
York: Crowell, 1968),137-46.

31
Frederick F. Shauer, English Natural Justice and American Due Process: An Analytical Comparison ( 18
Wm. & Mary L. Rev. ,1976) 47,<http://scholarship.law.wm.edu/wmlr/vol18/iss1/3> accessed 13 June
2017.

32
Bernard Schwartz, Administrative Procedure and Natural Law (Notre Dame Lawyer1953), 28,169
33
Goldberg v. Kelly [1970]397 U.S. 254
34
Connell v. Higginbotham [1971] 403 U.S. 207
35
Bishop v. Wood [1976] 96 S. Ct. 2074
36
Goss v. Lopez [1975] 419 U.S. 565
37
Wisconsin v. Constantineau [1971] 400 U.S. 433
38
Paul v. Davis[1976] 96 S. Ct. 1155
39
Gagnon v. Scarpelli[1973] 411 U.S. 778
40
Morrissey v. Brewer [1972] 408 U.S. 471

41
Henry v. Dubuque etc[18] R. Co., 10 Ia. 540, 544

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This law of nature, being co-eval with mankind and dictated by God
himself, is of course superior in obligation to any other. It is binding over
all the globe, in all countries, and at all times: no human laws are of any
validity, if contrary to this; and such of them as are valid derive all their
force, and all their authority, mediately or immediately, from this
original.42
This theory of "higher law" stands in direct contrast to the positive theory of law as the
command of a sovereign which holds that there is no necessary connection between law
and morality and that law is a matter of what has been posited (ordered, decided,
practiced, tolerated) by a ‘sovereign’.43
‘The existence of law is one thing; its merit and demerit another. Whether it be or be not
is one enquiry; whether it be or be not conformable to an assumed standard, is a different
enquiry.’44 The positivist thesis says that the merits of law do not determine whether laws
or legal systems exist. Whether a society has a legal system depends on the presence of
certain structures of governance, not on the extent to which it satisfies ideals of justice,
democracy, or the rule of law.
The third school, Legal realism differs from both aforementioned schools and argues that
the real world practice of law is what determines its nature; the law has the force that it
does because of what legislators, lawyers and judges do with it.45 The central target of
legal realism was legal formalism: the classical view that judges do not make law, but
mechanically apply it by logically deducing uniquely correct legal conclusions from a set
of clear, consistent, and comprehensive legal rules.46 Though many aspects of legal
realism are today seen as exaggerated or outdated it established that law is not, and
42
William Blackstone,Commentaries on the Laws of England:A Facsimile of the IstEdn(Chicago,
University of Chicago Press 1979)
43
Soper, Legal Positivism, Cambridge Dictionary of Philosophy

44
John Austin,The Province of Jurisprudence Determined, (W.E. Rumble1995Edn, CambridgeUniversity
Press, 1832)
45
Robert A. Shiner, Legal Realism,The Cambridge Dictionary of Philosophy (Robert Audied,New York:
Cambridge University Press 1995]
46
Brian Leiter, American Legal Realism The Blackwell Guide to the Philosophy of Law and Legal
Theory,(Martin P. Golding and William A. Edmundsoned OxfordBlackwell 2005) 50

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cannot be, an exact science.47 Legal realism like legal positivism poses real dangers now.
In this era of machine intelligence or AI, big data mining can become an inflexible
process which delivers justice in a dystopic manner where Philip K. Dick’s short story
Minority Report (1957) is now more prescient than George Orwell’s Nineteen Eighty-
Four (1949). Restorative justice flounders at the dual doors of legal positivism and legal
realism. Both the positivist and the realist views are mechanical and so to speak,
materially deterministic reducing the scope for delivering justice which heals. Artificial
Intelligence poses a threat to the delivery of justice in a manner which is mediated by
algorithms of law and legal procedures. The danger as this researcher feels, is an overt
reliance on procedures of law and structurally inscrutable government automatized forces
making emotional appeals, on which restorative justice ultimately depends, redundant
and will make a mockery of the humanity which justice of all forms including the Mosaic
Law strives to enforce. As had been discussed earlier; Martin Buber’s fear of treating
normative criminals as Thou will be reduced to just A.I. interacting with It.
The post-modernity in law of Minda and Huigens mentioned above have now given over
to the post-human. The post-human elicits the writing of this paper for data mining by
social media pose real threats to all domains of life; and poses an imminent danger to any
chance for restorative justice. No justice can be anymore tailored to individual cases if
human decision making is removed and replaced with machines whose outcomes are
predetermined.
The final school, Critical Legal Studies (CLS)has a primarily negative thesis which holds
that law is largely contradictory, and can be best analyzed as an expression of the policy
goals of dominant social groups.48 Proponents of this theory believe that logic and
structure attributed to the law grow out of power relationships in society. According to
them, law exists to support the interests of the party or class that forms it and is merely a
collection of beliefs and prejudices that legitimize the injustices of society.’ As such, the
basic idea of CLS is that the law is politics and it is not neutral or value free.49

47
Lief H. Carter &Thomas F. Burke, Reason in Law, (8th edn. Chicago, University of Chicago Press 2015)
48
Moore, "Critical Legal Studies", Cambridge Dictionary of Philosophy.
49
-<https://www.law.cornell.edu/wex/critical_legal_theory> accessed 13 June 2017

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CLS questions some of law's central assumptions, one of which is the Kantian notion of
the ‘autonomous individual’. The law often treats individual petitioners as having full
agency vis-à-vis their opponents on the presumption that they are able to make decisions
based on reason that is detached from political, social, or economic constraints. CLS
holds that individuals are tied to their communities, socio-economic class, gender, race,
and other conditions of life such that they cease to be autonomous actors in the Kantian
mode. Rather, their circumstances determine and therefore limit the choices presented to
them.50 To that extent, this paper relies heavily on the final school of thought (CLS) as
being the most applicable to the volksgeist given that the nature of this study is primarily
through critiques of normative jurisprudence, which essentially recognizes what law
ought to be in an ideal world and overlaps this idea with both moral and political
philosophy,51Deontology52, or ‘the theory of duty or moral obligation’ and
utilitarianism53, the view that ‘laws should be crafted so as to produce the best
consequences for the greatest number of people possible’ are essential elements of this
paper. Virtue jurisprudence is drawn upon and used to the extent that an ideal or utopian
society cannot be created without virtuous people.54 Deontology and virtue jurisprudence
both are equally harmful now in the post-human era where post-modernism and
Cosmopolitanism are giving ways to unthought of machine interference. Virtue as
eudemonia cannot be understood by any form of machine learning as machines do not
comprehend that human jurisprudence is never written in stone.
This quest to overcome the posthuman brings us to.Therapeutic Jurisprudence which has
emerged as the theoretical foundation for an increasing number of "problem-solving
courts" that have transformed the role of the judiciary.55 These paradigm shifts include

50
Jonathan Turley, "Hitchhiker's Guide to CLS, Unger, and Deep Thought". Northwestern University Law
Review 81 (1987) 59
51
Robin West, Normative Jurisprudence (Cambridge University Press 2011)
52
Webster's New World Dictionary of the American Language, (2d Coll. Ed. 1978) 378
53
Habibi, Don,John Stuart Mill and the Ethic of Human Growth Mill's Moral Philosophy (Dordrecht:
Springer Netherlands2001) 89
54
Kyron Huigens, Nietzsche and Aretaic Legal Theory(Cardozo Law Review 24.2, 2003) 63-86
55
Black's Law Dictionary (9th ed. West Group, 2009)

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drug treatment courts, domestic violence courts, mental health courts, re-entry courts,
teen courts, and community courts.56
Altough it was initially employed in cases involving individuals with mental disabilities
therapeutic jurisprudence subsequently expanded far beyond that narrow area and now
presents a new model for assessing the impact of case- law and legislation, recognizing
that, as a therapeutic agent, there are specific laws that can have therapeutic or anti-
therapeutic consequences.57The ultimate aim of therapeutic jurisprudence is to determine
whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance
their therapeutic potential without subordinating due process qua procedural principles.58
Therapeutic jurisprudence “asks us to look at law as it actually impacts people's
lives”59and focuses on the law's influence on emotional life and psychological well-being
of the transgressor. It suggests that “law should value psychological health, should strive
to avoid imposing anti-therapeutic consequences whenever possible, and when consistent
with other values served by law should attempt to bring about healing and wellness”.60,61
In this regard, the significance of the US Supreme Court's decision in Olmstead v.
L.C. must be noted62:

56
Winick and Wexler, ‘Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts’ (2003)

57
Michael L Perlin, His Brain Has Been Mismanaged with Great Skill: How Will Jurors Respond to
Neuroimaging Testimony in Insanity Defense Cases? (42 Akron L Rev 2009) 885

57
Ian Freckelton, ‘Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of
Influence’( 30 T Jefferson L Rev 2008) 575, 585

57
Bruce J. Winick, Foreword: Therapeutic Jurisprudence Perspectives on Dealing with Victims of Crime,
(33 Nova L. Rev. 2009) 535

58
David B. Wexler, Practicing Therapeutic Jurisprudence: Psychological Soft Spots and Strategies,

59
Daniel P. Stolle, David B. Wexler & Bruce J. Winick, Practicing Therapeutic Jurisprudence: Law as a
Helping Profession (Stolle 45, 2006)
59
527 U.S. 581 (1999)

61
Daniel P. Stolle, David B. Wexler & Bruce J. Winick, Practicing Therapeutic Jurisprudence: Law as a
Helping Profession (Stolle 45, 2006)
62
527 U.S. 581 (1999)

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‘We have known – for decades – that community treatment “works” better, that there is
less improper use of antipsychotic medication in community settings, that community
patients are less stigmatized, and stand a better chance of authentic reintegration into all
aspects of social, economic and personal life’.63
To that extent, therapeutic jurisprudence is a sea-change in ethical thinking about the role
of law which ‘emphasizes psychological wellness over adversarial triumphalism’.64
Restorative justice now at least has the armour of therapeutic jurisprudence in
transcending post-humanism. The post-human like pre-Renaissance forms of
jurisprudence can only be negated by a human(e) judiciary where legal corrective
measures instead of being coercive are in fact therapeutic. There is now a pressing need
to overcome the post-human as once there was a pressing need to overcome both the
wergild and the Law of the Torah.

Justice

Justice being done, and appearing to be done, is the difference between a lasting peace
and an interval between hostilities.65However, it may be claimed that ‘justice is not a
matter of reasoning at all; it is one of being appropriately sensitive and having the right
nose for injustice.’66
For Plato, justice is a virtue establishing rational order, with each part performing its
appropriate role and not interfering with the proper functioning of other parts67. Aristotle
says justice consists in what is lawful and fair, with fairness involving equitable

63
Michael L Perlin, Their Promises of Paradise: Will Olmstead v. L.C. Resuscitate the Constitutional
“Least Restrictive Alternative” Principle in Mental Disability Law?(37HOUS L REV 2000)
64
Warren Brookbanks, Therapeutic Jurisprudence: Conceiving an Ethical Framework (30 (8) JL &
MED2001), 328
65
E. Vulliamy, Bosnia: The Crime of Appeasement,.International Affairs’ (1998)74
66
--
http://s3.amazonaws.com/academia.edu.documents/31129992/The_Idea_of_Justice.pdf?AWSAccessKeyI
d=AKIAJ56TQJRTWSMTNPEA&Expires=1472437304&Signature=jroTmBX8Ac3V8FrfwsPSHzw
X8Y%3D&response-content
disposition=inline%3B%20filename%3DThe_Idea_of_Justice.pdf.>accessed on 21 August 2016
67
Plato, The Laws, called “Laws” ( Trevor J. Saunderstr, London: Penguin Books, 1975)

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distributions and the correction of what is inequitable68. For St. Augustine of Hippo, the
cardinal virtue of justice requires that we try to give all people their due;69 for St. Thomas
of Aquinas, justice is that rational mean between opposite sorts of injustice, involving
proportional distributions and reciprocal transactions70. Thomas Hobbes believed justice
is an artificial virtue, necessary for civil society, a function of the voluntary agreements
of the social contract;71 for David Hume, justice essentially serves public utility by
protecting property (broadly understood).72 For Immanuel Kant, it is a virtue whereby
we respect others’ freedom, autonomy, and dignity by not interfering with their voluntary
actions, so long as those do not violate others’ rights;73 Mill said justice is a collective
name for the most important social utilities, which are conducive to fostering and
protecting human liberty.74 John Rawls analysed justice in terms of maximum equal
liberty regarding basic rights and duties for all members of society, with socio-economic
inequalities requiring moral justification in terms of equal opportunity and beneficial
results for all.75
The concepts of justice as defined by Kant and Rawls, despite the fact that they come
from overlapping schools of thought provide an insight into similarities and
dissimilarities at conceptual levels of regarding the same.
Immanuel Kant uses a debt metaphor to discuss the notion of ‘just dessert’. Citizens in a
society enjoy the benefits of a rule of law. According to the principle of fair play, loyal
citizens must do their part in this system of reciprocal restraint. ‘An individual who seeks

68
Aristotle, Nicomachean Ethics, called Nicomachean(Terence Irwin tr& ed. ,Indianapolis.(Hackett, 1999)
69
Augustine, Political Writingscalled “Political, (Michael W. Tkacz and Douglas Kriestr.&ed.
Indianapolis: Hackett, 1994)
70
Thomas Aquinas, On Law, Morality, and Politics, called “Law” (William P. Baumgarth and Richard J.
Regan, S.Jed.,Indianapolis, Hackett, 1988)
71
Thomas Hobbes, The Elements of Law, called “Elements” (J. C. A Gaskin ed. Oxford, OxfordUniversity
Press, 1994.)
72
David Hume, Political Essayscalled “Essays”, (KnudHaakonssened. Cambridge, Cambridge University
Press, 1994)
73
Immanuel Kant, Ethical Philosophycalled “Ethical, (W. Ellington&James tr., 2nd
edn,Indianapolis:Hackett,1994)
74
John Stuart Mill, Utilitarianism and Other Writings, called “Utilitarianism” (Mary
Warnock. Cleveland,ed., World Publishing Company, 1962)
75
John Rawls, Collected Papers(called “Papers”), (Samuel Freeman ed.,Cambridge, Harvard University
Press, 1999)

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the benefits of living under the rule of law without being willing to make the necessary
sacrifices of self-restraint has helped themselves to unfair advantages, and the state needs
to prevent this to preserve the rule of law’.76
Rawls argues for a principled reconciliation of liberty and equality that is meant to apply
to the basic structure of a well-ordered society. Rawls develops what he claims are
principles of justice through the use of an artificial device he calls the Original position in
which everyone decides principles of justice from behind a veil of ignorance. This "veil"
is one that essentially blinds people to all facts about themselves so they cannot tailor
principles to their own advantage:
‘..no one knows his place in society, his class position or social status, nor does
anyone know his fortune in the distribution of natural assets and abilities, his
intelligence, strength, and the like. I shall even assume that the parties do not
know their conceptions of the good or their special psychological propensities.
The principles of justice are chosen behind a veil of ignorance.’77
Both writers have been classified as ‘transcendental institutionalists’ in search of
‘perfectly just institutions’ by AmartyaSen who states that such critiques provide deeply
illuminating analyses of moral or political imperatives regarding socially appropriate
behavior.78
Despite the lack of a coherent and fixed definition, issues of justice arise in several
different spheres and play a significant role in causing, perpetuating, and addressing
conflict. Just institutions tend to instill a sense of stability, well-being, and satisfaction
among society members, while perceived injustices can lead to dissatisfaction, rebellion,
or revolution. Each of the different spheres expresses the principles of justice and fairness
in its own way, resulting in different types and concepts of justice.79

76
Murphy & G. Jeffrie, Retribution Reconsidered (Norwell, Massachusetts: Kluwer Academic Publishers,
1992) 23 <http://books.google.com/books?id=p2EeefbHk-QC>. Accessed on 14 August 2016
77
John Rawls, A Theory Of Justice (Belknap Press of Harvard University Press 1971)
78
Sen, Amartya. The idea of justice.Harvard University Press, 2011.
79
Robert Nozick, Philosophical Explanations (Cambridge, Harvard University Press 1981) 366

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Ideal and non-ideal theories of justice

A reading of Zehr and Mika brings to light the conceptual question of whether a principle
can qualify as a principle of justice if it entails infeasible practical requirements. They
criticise theorizing about justice at an abstract level as inadequate because it mandates the
realisation of unachievable states of affairs like bracketing the existence of institutions, of
empirical facts about people's motivation, as well as epistemic and technical limits to
achieving particular state of affairs .80
This becomes evident through Adam Swift’s words wherein he states that we
‘misdescribe a state of affairs as unjust if we identify it as being bad in ways that we
might regret but that human agents, collectively or individually, are incapable of
remedying. We might regret instances of irremediable unfairness, but if they really are
impossible to remedy, then we can make no claim about their moral badness – they are
simply unfortunate facts about the world – and they cannot be regarded as unjust.’81
If it is conceptually possible that justice requires the infeasible, it means that there is a
gap ‘between the idea of injustice, on the one hand, and the idea that some are treating
others unjustly, on the other.82
"One misses a great deal by looking only at justice," Shklar noted: "The sense of
injustice, the difficulties of identifying the victims of injustice, and the many ways in
which we all learn to live with each other's injustices tend to be ignored, as is the relation
of private injustice to the public order" 83
A conclusion postulated by AncaGheaus is that, while issues of feasibility are relevant to
limiting the scope of agents' duties, they are not relevant to determining the content of the
concept of justice.84In other words a distinction is created between functional definitions
and conceptual understanding. Perhaps this is why, ‘the law, in its majestic equality,

80
-- http://pq.oxfordjournals.org.ezphost.dur.ac.uk/content/63/252/445.full accessed on 14 August 2016
81
Adam. Swift, The Value of Philosophy in Non ideal Circumstances’ (2008 ) (34) 363 Social Theory and
Practice
82
Z. Stemplowska and A. Swift, Ideal and NonIdeal Theory, (D. Estlund (ed.), The Oxford Handbook of
Political Philosophy,Oxford UP, 2012) 385.
83
Judith N Shklar, The Faces Of Injustice (Yale University Press 1990) 15
84
http://pq.oxfordjournals.org.ezphost.dur.ac.uk/content/63/252/445.full#fn-3 accessed on 05 August 2016

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forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to
steal bread.’
– Anatole France

There is no doubt that ‘types of justice’ have important implications for socio-economic,
political, civil, and criminal justice at both the national and international level. In keeping
with this the paper goes on to discuss ‘social justice’ as it is pre-requisite for any form of
restorative justice to be possible.85

Social justice
Although a good citizen is a good person, the good person can be good even
independently of the society. A good citizen, however, can exist only as a part of the
social structure itself, so the state is in some sense prior to the citizen.86 It logically flows
that it is the duty of the state as well to ensure that it is comprised of good citizens. The
sociologist Richard Quinney has written about the relationship between society and
crime. When stating "crime is a social phenomenon" he takes into account how
individuals conceive crime as well as how populations perceive it, based on societal
norms.87
Although social and economic justice will not prevent the acts of psychologically
imbalanced people or deviants,it will prevent the majority of individuals who are forced
into crime due to poverty. Marcus Aurelius (121-180 AD) was perceptive in saying that
‘poverty breeds criminality’. The importance of the Stoics in justice and in restorative
systems of justice is beyond the scope of this essay but has to be acknowledged since
without Marcus Aurelius we would have never proceeded to a therapeutic idea of justice.

85
Morton Deutsch, "Justice and Conflict," in The Handbook of Conflict Resolution: Theory and Practice,
(Morton Deutsch, Peter T. Coleman& Eric C. Marcus,ed. ,(John Wiley & Sons, 2011).
<http://books.google.com/books?id=rw61VDID7U4C>. accessed on 23 August 2016
86
< http://www.philosophypages.com/hy/2t.htm > accessed 19 November 2016
87
Richard Quinney, "Structural Characteristics, Population Areas, and Crime Rates in the United
States,(1996) 57(1) 45The Journal of Criminal Law, Criminology and Police Science,

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Box, while studying the relationship between recession, crime and punishment explains
how people who sometimes choose to act criminally, do so because their socio-economic
conditions contribute to crime by constraining, limiting or narrowing the choices
available to them.88 The theory that more equal societies are healthier has been tested in
many different contexts89. and has brought to light the fact that social relationships (social
cohesion, trust, involvement in community life, and low levels of violence) are better in
more equal societies, suggesting that inequality and health are linked through
psychosocial processes related to social differentiation and relative deprivation.90 That
inequality does have powerful psychosocial effects is now amply confirmed. As such,
Social justice can only exist when "all people share a common humanity and therefore
have a right to equitable treatment, support for their human rights, and a fair allocation of
community resources.”91. Since justice originates in interest, the most important pre-
requisite for social justice is social interest.92 Adler has theorized social interest as “a
feeling of community, an orientation to live cooperatively with others, and a lifestyle that
values the common good above one’s own interests and desires”93
it is quite obvious that the project of social justice should not be evaluated in binary
terms, as either achieved or not. Rather, justice should be understood as existing to a
matter of degree, and should correspondingly be evaluated along a continuum.
Furthermore, we do not need a fully established abstract ideal of justice to evaluate the
fairness of different institutions. Sen claims that we can meaningfully compare the level
of justice in two institutions without positing an ideal, transcendental idea of justice. He
names the opposite position Institutional transcendentalism.94

88
S. Box, Recession, Crime and Punishment(London Macmillan,1987)
89
Rodgers GB. Income and inequality as determinants of mortality: an international cross-section analysis.
Popul Stud 1979;33:343-51.
90
Kondo N, Kawachi I, Subramanian SV, et al. Do social comparisons explain the association between
income inequality and health?: Relative deprivation and perceived health among male and female Japanese
individuals. Soc Sci Med 2008;67(6):982-7.
91
(Toowoomba Catholic Education, 2006)
92
W.Friedman, Legal Theory (5thedn. Universal Law Pub.Delhi, 2002) 336.
93
Crandil & Putman(1998)
94
AmartyaSen, The Idea Of Justice (Belknap Press of Harvard University Press 2009)

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CHAPTER 2

Crime and Punishment

In common parlance, the term crime denotes an unlawful act punishable by a state. The
term "crime" does not, in modern criminal law, have any simple and universally accepted
definition95 though statutory definitions have been provided for certain purposes.96,97
Criminal offenses can be broken down into two general categories malum in
se and malum prohibitum. While a malum in se offense is naturally evil as adjudged by
the sense of a civilized community, a malum prohibitum offense is wrong only because a
statute makes it so.98
Criminology uses the domains of psychology, sociology, history, law and anthropology
to discuss the problems of crime, offenders and the wherewithal to respond to the issues
that they pose. It presents a structuralist critique of the nature, extent, management,
causes, control, consequences, and prevention of criminal behaviour, both on the
individual and social levels.99
Criminology also looks at how certain behavior-spectrum labelled as 'crime' in some
societies at certain times, whilst other societies choose to view these behaviours in
different ways.100
Penology as a sub-section of criminology deals with the philosophy and practice of
various societies in their attempts to repress criminal activities, and satisfy public opinion
via an appropriate treatment regime for persons convicted of criminal offences.101An
interesting study in this regard revolves around evidence that shows how the altruistic
punishment of defectors is a key motive for the explanation of cooperation. Studies show

95
Lindsay Farmer, Crime, definitions of", in Cane and Conoghan, The New Oxford Companion to Law,
(Oxford University Press, 2008) (ISBN 978-0-19-929054-3) 263
96
Trade Union and Labour Relations (Consolidation) Act 1992, s243(2): In the United Kingdom, for
instance, the definitions provided are under this Statute .
97
The Schedule to the Prevention of Crimes Act 1871
98
State v. Horton, (1905)139 N.C. 588, 51 S.E. 945, 946
99
Rajendra Kumar Sharma, Criminology And Penology, (Atlantic Publishers & Dist., 1 January 1998)
100
http://www.professorwilson.co.uk/ accessed on 15 August 2016
101
Shlomo Giora Shoham, Ori Beck & Martin Kett, International Handbook of Penology and Criminal
Justice, (CRC Press, 8 October 2007).

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how individuals punish, despite the punishment being costly and with negligible or no
material gains.102
Moving on, apart from the notions of individual crimes, there exists the concept of crimes
committed by an artificial person. According to the law, there are of two kinds of legal
entities, human and non-human: natural persons (or physical persons) and juridical
persons (also called juridic, juristic, artificial, legal, or fictitious persons, which are other
entities (such as corporations) that are treated in law as if they were persons103Corporate
crimes arise in cases where an employer breaches employment, health and safety, or
environment protection legislation while state-corporate crime refers to a criminal act
resulting from the collusion between corporations and the State—such as in the
deployment of private military companies in Iraq following its illegal invasion by
‘coalition’ troops in 2003.104
However, discussions of ‘corporate crime’ and ‘State-corporate crime’ turn attention
away from criminality that occurs at the interpersonal level towards that which occurs at
a macro level (i.e. the harm inflicted on society by one or more social institutions). Social
harm may be defined as poverty and various forms of property and income loss( pension
and mortgage ‘mis-selling’, mis-appropriation of funds by government, private
corporations, increased prices for goods and services through the formation of cartels and
price-fixing, and the redistribution of wealth and income from the poorer to the richer
through regressive taxation and welfare policies).105For this reason, the implications of
corporate and state corporate crime, are considered only as an opposite position to
notions of welfare state and social justice.
Article five of the UDHR declaration has been instrumental in bringing about a ‘humane
change’ within various aspects of criminal justice while also paving the way for greater
research into alternative methods of punishment. It brought to light the inhumane

102
Fehr, Ernst, and Simon Gächter, “Altruistic punishment in humans. (2002) Nature
103
Deiser, George F. (December 1908). "The Juristic Person. I". University of Pennsylvania Law Review
and American Law Register. 48 New Series (3): 131–142.
104
Dave Whyte, D.,Lethal Regulation: State-corporate crime and the United Kingdom Government’s new
mercenaries (2003) Journal of Law and Society 30 575
105
Reece Walters, Paddy Hillyard, Christina Pantazis, Steve Tombs and Dave Gordon Beyond criminology:
Taking harm seriously.(London: Pluto Press2004)

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conditions meted out to prisoners, the use of horrifying third degree torture and the
violation of their basic human rights. By prohibiting the same, the declaration ushered in
the new age for criminal justice systems all over the world. The treaty is relevant as a
retrospective study of the same as it provides a gateway into understanding the recent
changes in criminal justice systems globally .106
Society has never had a perfect solution for crime, since every individual is different, just
as every crime is. However, there are transitions and trends throughout the history of
justice that can be studied as abstract models. The next part questions the prudence
behind punishments by analyzing the intention behind the same and how it affects
individuals as well as society at large first of, by showing how all the above mentioned
‘retributive’ punitive actions derive from either the Scandinavian wergild or from the
ideas of pre-swerve Thomistic zeitgeist.

Understanding punishment
Punishment is the authoritative imposition of an undesirable or unpleasant outcome upon
a group or an individual, in response to a particular action or behaviour that is deemed
unacceptable or threatening to some norm.107However, such a definition does not suffice
for this paper as it is functional and avoids common sense interpretations of what
constitutes punishment, and is more than often based solely upon moral philosophical
grounds108
The researcher is more in line with Alan’s view that penal law is best understood by a
political and constitutional theory concerning when, and in what measure, it is
permissible for the state to coerce a free agent; given that, concepts like formal liberty,

106
Universal Declaration of Human Rights [1948]UNGA Res 217 A(III) (UDHR) art 5

107
D. Blackman, ‘Punishment: An experimental and theoretical analysis’in Does punishment work? (J. Mc
Guire& B. Rowsoneds London, UK.)

108
J. Matson & T. DiLorenzo, ‘Punishment and it’s alternatives: A new perspective for behavior
modification’ (New York, NY Springer, 1984)

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real autonomy, and free citizenship create in themselves, distinctive theoretical paradigms
of penal justice109
The paper revolves around the notion that people can be punished without being
prevented from repeating the offence, and without being made any better. This is better
understood while studying the three major schools of thought that revolve around using
prisons to control crime.
The first is that prisons definitely suppress criminal behavior by acting as a deterrent.
There is no doubt that a prisoner is deterred from doing wrong, but such deterrence has
no relationship with recidivism in as much as that the prisoner is deterred only as long as
he/she is behind bars. As such the deterrence is temporal(as will be shown through
empirical data collected via a comparative analysis of U.S and U.K with the Nordic
countries).
Proponents of the second school claim that prisons increase criminality because the
psychologically destructive nature of prisonisation makes offenders more likely to
recidivate upon release while also putting them in contact with other criminals.
The third school suggests that prisons are essentially "psychological deep freezes", that
bring about little or no change in the offender.110
Apart from the lack of any proof that prisons help, there is the problem of the retribution
inherent in punishment. Punishment must involve 'retribution', for 'retribution' implies
doing something to someone in return for what has been done.111. Revenge however, does
not satisfy principles of proportionality or consistency. Revenge leads to punishments
based on the degree of anger provoked and given the whimsical nature of anger and the
unique identity of each individual,wrongs that do not provoke anger will receive no
response,112 while some rights that provoke anger to those in power will get
unprecedented punishment as in the case of Christ, Socrates etc. This is best understood
by studying the essential dilemma of whether a soldier commits murder during war.

109
Alan Alan, Punishment And Freedom: A Liberal Theory Of Penal Justice (Oxford University Press
2012).
110
<http://www.prisonpolicy.org/scans/e199912.htm> accessed on 17 September 2016
111
Peters & Richard Stanley, Ethics and Education, (1966) 267
112
http://www.beyondintractability.org/essay/retributive-justice accessed on 17 September 2016

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Murder is a legal term that defines an ‘unlawful’ killing. The adjective unlawful can
result in one person shooting another on the streets becoming murder, with the same
action on the battlefield being condoned. The traditional theory of war comprises two sets
of principles, one governing the resort to war ( jus ad bellum) and the other governing the
conduct of war ( jus in bello). The two sets of principles are regarded, in Michael
Walzer’s words, as “logically independent as it is perfectly possible for a just war to be
fought unjustly and for an unjust war to be fought in strict accordance with the
rules.”113A look at the extensive work done in the field of humanitarian law, and how it
differs from human rights shows how there is an inherent need to differentiate between
circumstances in which an act is committed. Similar complexities and subtleties are
required in the recognition of individual circumstances and sensibilities, wherein;
Bentham emphasized the primary role of Legislation as a defender of the security and
welfare of the individual. The premise from which Bentham started was that no two
people are the same, no two crimes are the same, and it is the duty of the law to
accommodate such variables before inflicting pain, in the name of the State, for the
protection of itself and other citizen members of that State.114
The subjective approach to criminal acts led Bentham to an equally subjective approach
to punishment. He urged the adoption of a principle, which in modern French criminal
science has been called le principe de l’individualisation de la peine or ‘principle of the
individual assessment of fines’.115
This concept is being used to reform the French judicial system. According to the official
website for the justice department (translated)-, ‘To be effective and make sense in the
eyes of the convicted, the penalty must be imposed knowingly, the judge must have the
means to identify the personality of the convict, his environment and social situation, its
weaknesses (recidivism) and strengths (factors favoring delinquency output)’.116

113
McMahan, Jeff (2004). The Ethics of Killing in War. Ethics 114 (4):693-733.
114
<http://plato.stanford.edu/entries/bentham/> accessed on 17 September 2016
115
<http://discovery.ucl.ac.uk/1323717/1/005%20Draper%202002.pdf> accessed on 17 September 2016
116
<http://www.justice.gouv.fr/la-reforme-penale-12686/lindividualisation-de-la-peine-12688/> accessed
on 17 September 2016

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This requires the use of psychological jurisprudence, which essentially relies on theories
and methods of criminal justice and mental health to make decisions about intervention,
policy, and programming.117Studies in criminal psychology depict the relation between
crime and personality118while recent research explains the role of guilt and shame in
predicting recidivism119. Criminal Psychology improves the investigation of crime by
adding a psychological component, such as in Offender Profiling. It aims atanalysing and
improving the criminal justice system; enhancing police interviewing, detecting
deception, or examining courtroom psychology and jury decision making.120
The next chapter thus focuses on psycho-socio-legal findings while making a case for the
incorporation of such findings into the criminal justice systems.

117
Psychological Jurisprudence: Critical Explorations in Law, Crime, and Society( Bruce A Arrigo edn.,
NY: SUNY Press. Arrigo, B. A. 2004b)
118
H. J Eysenck, Crime And Personality (Houghton Mifflin 1964)
119
Tangney J, Stuewig J and Martinez A, 'Two Faces Of Shame: The Roles Of Shame And Guilt In
Predicting Recidivism' (25 Psychological Science2014)
120
http://www.port.ac.uk/institute-of-criminal-justice-studies/themes/criminal-psychology/ accessed on 19
November 2016

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CHAPTER 3.

Learning from other fields

“Nothing is easier than to denounce the evildoer; nothing is more difficult than to
understand him.”
― Fyodor Dostoyevsky
Sociologists, ever since Durkheim, have seen criminality as revealing the importance of
“deviant behavior,” and the paradox whereby “societies are knit together by their
contradictions.”121
Psychologists have also been active in the study of violence and crime and have even
analyzed the role played by often-neglected factors such as material gain, threatened
egoism, idealism, and sadistic pleasure.122An interesting find is that more than 90% of
human violence is male-initiated. This has been attributed to the pressures of natural
selection wherein males are favored if they succeed in out-competing other males.123 The
result is an enormous imbalance in violence, not only in human beings but in the animal
world as well.124 This brings us to an ongoing anthropological debate regarding whether
“primitive war” is eufunctional(i.e., contributing somehow to the betterment of
individuals and/or groups who engage in it), or dysfunctional. Such studies provide an
account of how violence-proneness can contribute greatly to biological success, and may
be inherent- to the individual and the society.125
Lorenz argues that to understand aggression, we must understand its contribution to
evolutionary success, and that ‘whereas violence may be morally wrong, all too often, it
is biologically right’.126The findings of behavioural economists also show how human
beings are not completely rational or self-serving and that their decision making process

121
MB Clinard and RF Meier, Sociology of deviant behavior (1968)
122
Roy F Baumeister, Evil (WH Freeman 1997)
123
Neil S Jacobson and John Mordechai Gottman, When Men Batter Women (Simon & Schuster 1998)
124
David P Barash, Judith Eve Lipton and David P Barash, Gender Gap (Transaction Publishers 2002)
125
Napoleon A Chagnon, Yanomamo (Harcourt College publication 1997)
126
Konrad Lorenz, On Aggression (Harcourt, Brace & World 1966).

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can be termed as reasonable rather than rational.127 Such evidence, coupled with the fact
that it is generally young men between the ages of 17-27 that get involved in the
revolving doors of criminal justice, makes the researcher postulate that it is better for law
to accept the violence inherent in the human species and find ways of regulating it, or
putting it to beneficial uses. Also, the use of psychology coupled with a desire for
rehabilitation in a socially just environment can help in removing the false consciousness
of law as defined by psychologists.
According to Fox, ‘... [because] psychology and the law traditionally attribute problems
to individuals rather than to societal faults, psychologists can become insiders within the
legal system’128 thereby contributing to false consciousness about the degree to which
law reduces injustice and promotes social change. However, the fact is that psychologists
of law can assess the role of myth in law’s legitimacy and counter false consciousness
that masks injustices created or maintained by legal institutions.129
False consciousness can be defined as "the holding of false or inaccurate beliefs that are
contrary to one's own social interest and which thereby contribute to the maintenance of
the disadvantaged position of the self or the group"130. As such it is unintentionally
similar to Rawl’s veil of ignorance discussed earlier. Adopting Paulo’s terminology
of conscientization or consciousness-raising131, community psychologist Isaac
Prilleltensky noted that "unless individuals become reasonably aware of the ideological
deception of which they are victims, it is unlikely that they will be able to engage in any
process of social change" 132
Sigmund Freud broke the trend mentioned by Fox and characterized addiction and many
other psychological problems as the inevitable product of modern industrialized

127
K Albertson, Justice, With Reason Rethinking The Economics Of Crime And Justice, ICCJ monograph
(2014)9
128
Dennis Fox and Isaac Prilleltensky, Critical Psychology (SAGE Publications 1997) 217
129
<http://www.dennisfox.net/papers/false.html> accessed on 19 November 2016
130
John T. Jost , Negative Illusions: Conceptual Clarification and Psychological Evidence Concerning False
Consciousness(1995) Political Psychology 16, No.2, 397-424
131
Paulo Freire, Cultural Action and Conscientization, (1970) Harvard Educational Review(40)(3)452
132
Isaac Prilleltensky, The Morals and Politics of Psychology: Psychological Discourse(SUNY Press,
1994)189

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civilization, which he saw as inherently repressive.133Since then social scientists have

become increasingly interested in studying crime as an interacting system in which the
victim, the offender, and society play complex roles, thereby laying down the foundations
of a more restorative approach towards justice.134

Important findings/ experiments

The ‘Rat park experiment’-
Alexander looks at parallels between the problems of colonized human beings and the
rats in Rat Park to provide an explanation regarding issues pertaining to substance
abuse.135 In both cases there is little drug consumption in the natural environment and a
lot when the people or animals are placed in an environment that produces social and
cultural isolation. In the case of rats, social and cultural isolation is produced by
confining the rats in individual cages. In the case of native people, the social and cultural
isolation is produced by destroying the foundations of their cultural life: taking away
almost all of their traditional land, breaking up families, preventing children from
learning their own language, prohibiting their most basic religious ceremonies,
discrediting traditional medical practices, and so forth. Under such conditions, both rats
and people consume too much of whatever drug that is made easily accessible to them.
Morphine for the rats, alcohol for the people.136
Addiction and drug use is still a major reason for incarceration, especially in the U.S,
where minimum sentencing laws along with the ‘war on drugs’ at Nixon’s time had
resulted in a huge influx of people into the prison system with drug offenses accounting
for more than half of all the charges levied against prisoners. 137 Also to be noted is how

133
Sigmund Freud, Civilization and its Discontents (London: Penguin, 2002 )430-436;
134
Katherine W Ellison and Robert Buckhout, Psychology And Criminal Justice (Harper & Row 1981).
135
'Addiction, Connection and the Rat Park Study' (Psychology Today, 2016)
<https://www.psychologytoday.com/blog/all-about-addiction/201508/addiction-connection-and-the-rat-
park-study> accessed 14 June 2016.
136
--http://www.brucekalexander.com/articles-speeches/rat-park/148-addiction-the-view-from-rat-
park>accessed 5 March 2016
137
Drugs and Crime.” (n.d.). National Council on Alcoholism and Drug Dependence. Accessed April 29,
2014

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the current system disadvantages minority communities, with the incarceration rates of
138
blacks and Latinos outpacing whites. Given their history of being colonized and
enslaved, these findings are in line with those of the of the rat park experiment as they
also prove that there is more drug and substance abuse in such communities. The findings
also make a strong case for restorative justice coupled with rehabilitative programs for
offendors.
Stanford Prison Experiment-
Stanford experiment found that people will readily conform to the social roles they are
expected to play and that a situational explanation of behavior is more viable than the
dispositional one.139
Many look to the study to make sense of events like the behavior of the guards at Abu
Ghraib and America’s epidemic of police brutality. 140The Stanford Prison Experiment is
cited as evidence of the atavistic impulses that lurk within us all; it’s said to show that,
with a little nudge, we could all become tyrants.141
Obedience to authority-
Stanley Milgram, influenced by the events of the Holocaust, especially the trial of Adolf
Eichmann, created the ‘experiment on obedience’ in an attempt to explain how normal
people can be induced to engage in inhumane acts.142 Men from a diverse range of
occupations with varying levels of education, were measured in their willingness to obey
an authority figure who instructed them to perform acts conflicting with their personal
conscience; the experiment found that a very high proportion of people were prepared to
obey, albeit unwillingly, even if apparently causing serious injury and distress.143 The

138
P Gaita, ‘Justice Department to Reduce Federal Drug Sentences.’ (The Fix, March 14, 2014)
139
Saul Mcleod, 'Stanford Prison Experiment | Simply Psychology' (Simplypsychology.org, 2016)
<http://www.simplypsychology.org/zimbardo.html> accessed 31 January 2016.
140
Zimbardo, P.G. (2007). The Lucifer Effect: Understanding How Good People Turn Evil. New York:
Random House.
141
Maria Konnikova and others, 'The Real Lesson Of The Stanford Prison Experiment' (The New Yorker,
2017) <https://www.newyorker.com/science/maria-konnikova/the-real-lesson-of-the-stanford-prison-
experiment> accessed 15 August 2016.
142
Milgram, S. (1963).Behavioral Study of obedience.The Journal of Abnormal and Social Psychology,
67(4), 371-378.
143
Zimbardo, Philip. "When Good People Do Evil". Yale Alumni Magazine. Yale Alumni Publications,
Inc. Retrieved 24 April 2015.

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legal and philosophic aspects of obedience are of enormous importance. To quote

Milgram,
‘Ordinary people, simply doing their jobs, and without any particular hostility on their
part, can become agents in a terrible destructive process.’144
Psychopaths-
Individuals with psychopathy present severe difficulties in both aversive conditioning and
instrumental learning. Moreover, they have particular difficulties processing the
fearfulness and sadness of others145. Emerging evidence suggests that amygdala
dysfunction is one of the core neural systems implicated in the pathology of
psychopathy.146In recent years a number of programs or systems referred to variously
as brain retraining, amygdala retraining, or limbic system retraining, have been developed
to help people recover from a wide range of chronic multi-system illnesses147. Although
no immediate cure is possible, a study conducted by Olver found that rates of new violent
crimes following release drop by 30 percent or more among psychopathic offenders who
complete intensive, therapist-led group programs.148
On a more practical note, a careful diagnosis of psychopathy, based on a Psychopathy
Checklist, greatly reduces the risks associated with decisions in the criminal justice
system. Properly used, it can help to differentiate those offenders who pose little risk to
society from those who are at a high risk for recidivism or violence.149

Shame, Guilt and Recidivism-

Psychological research has found that guilt proneness negatively and directly predicted
re-offense while shame proneness positively predicted recidivism as it leads to the

144
Milgram, Stanley (1974). "The Perils of Obedience".
145
Blair, R. J. R. ‘Neuro-cognitive models of aggression, the Antisocial Personality Disorders and
Psychopathy’ ( 2001) Journal of Neurology, Neurosurgery and Psychiatry, 71, 727
146
C.J Patrick, ‘Emotion and psychopathy: startling new insights. Psychophysiology’ (1994) Guildford
Press, New York, (31) 319
147
<http://www.ei-resource.org/treatment-options/treatment-information/brain-retraining-amygdala-and-
limbic-system-desensitization/> accessed on 19 November 2016
148
<https://www.sciencenews.org/article/rehab-psychopaths#table> accessed on 19 November 2016
149
<http://www.hare.org/scales/pclr.html> accessed on 19 November 2016

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externalization of blame.150Shame and guilt are moral emotions that result from
deviations from internalized standards. Shame is associated with a loss of self-respect,
social withdrawal, anger, and aggression. Guilt, on the other hand, supports prosocial
behavior and motivates compensation for the inflicted loss.151These findings have greatly
supported the science behind restorative justice which ass will be shown, tries to
inculcate guilt rather than shame, thereby ensuring true rehabilitation.
.

150
J Tangney , J Stuewig and A Martinez , 'Two Faces Of Shame: The Roles Of Shame And Guilt In
Predicting Recidivism' (2014) 25 Psychological Science
151
http://cjb.sagepub.com/content/35/1/138.short accessed on 19 November 2016

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CHAPTER 4
Comparative analysis between U.K, U.S and the Nordic countries- Norway in
particular

The prison system was never an answer to the problem of crime as discussed in the
introduction. Nadler152, Abramsky153 and other researchers have demonstrated how our
current approach towards punishment causes more harm than good, individually and to
society at large.
Public defence in an age of innocence looks into certain cases of wrongful convictions
and presents insight into the miscarriage of justice while emphasizing the underlying
responsibility of the state in declaring a person guilty or innocent.154A study of cases of
exoneration forces one to question the rationale behind our existent systems.155 Further,
research has also shown how prison systems function as a receptacle for groups facing
systematic challenges like- failed or inadequate educational opportunities,
unemployment, reliance upon public assistance, and involvement in criminal
activity.156Prisoners in the UK, generally come from economically and socially
marginalized communities and/or belong to a ethnic non-dominant group.157 A study of
young offenders found that: ‘about half had been in care; 66% were unemployed at the
time of their offence; 91% of the males had a drug or alcohol problem, which they had

152
Janice Nadler and Mary R Rose, Victim Impact Testimony and The Psychology Of Punishment (2003)
Cornell Law Review, Vol. 88,419-456.
153
Sasha Abramsky and Jamie Fellner, Ill-Equipped : U.S. Prisons and Offenders with mental illness
(Human Rights Watch, 2003).
154
A. Worden, A. Davies and E. Brown, 'Public Defense In An Age Of Innocence: The Innocence Paradigm
And The Challenges Of Representing The Accused’ in Zalman M, Carrano (Wrongful Conviction and
Criminal Justice Reform ,1st edn, Routledge publications, 2014)
155
< http://www.law.umich.edu/special/exoneration/Pages/about.aspx> accessed on 19 November 2016.
156
J. Austin, M. A Bruce, L. Carroll, P.L McCall, & S.C Richards, Critical Criminology’ American Society
of Criminology National Policy Committee, An International Journal, (2001) The use of incarceration
in the United States,10,17
157
M. Maguire, R. Morgan & R. Reiner, The Oxford handbook of criminology Oxford, (Oxford University
Press, 1997) 35 .Crime statistics, patterns and trends: Changing perceptions and their implications

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usually not received help with; and, 49% of the female offenders had experienced sexual
abuse.’158 This shows how each youth was suffering from multiple unresolved issues.
For reasons like this, the current use of prison sentences has been criticized even by those
working within the criminal justice system. According to a sub-group of the Criminal
Justice Forum in Scotland,
‘Imprisonment, in many cases aggravates some of the pressures that lead to a vicious
cycle of recidivism because of the damage done to prisoners’ employment, housing and
family links and their ability to fend for themselves.’159For example in 2004/2005, 472
women were received into prison in Scotland for failure to pay a fine, which was more
than one-third (36%) of the total number of 1307 sentenced receptions of women into
Scottish prisons that year.160This demonstrates how the criminal justice system results in
the poor receiving harsher sentences (keeping in mind their socio-economic condition)
than the rich for comparable crimes.161

Further, epidemiological studies reviewed by Wilkinson suggest a positive correlation

between crime and income inequalities at a societal level whereby countries with low
levels of income inequalities (such as Sweden and Japan) have low levels of crime and
countries with high levels of income inequalities (such as the UK and USA) have high
levels of crime.162

158
D Ramsbotham, Young people and imprisonment, The forgotten children: Young people in prison (S.
Hayman, C. Martin, & A. Nurse edn, London, 1998)
159
Scottish Executive. ‘Short-term prison sentences’ Criminal Justice Forum, (Report) (2001), Edinburgh
Scottish Executive
160
Scottish Executive, Statistical bulletin—criminal justice series, (Edinburgh, 2005)
161
D. Cook & B. Hudson, ‘Racism &criminology’ London, (Sage Publications,1993)
162
Wilkinson, R. G. Unhealthy societies: The afflictions of inequality (London Routledge1996)

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163

These studies of income inequality in relation to psychological states and traits and
sociological outcomes lend coherence to a psychosocial explanation of the health and
social effects of income inequality on health164.It has been found in both ecological and
multi-level analyses, that people in more unequal U.S. States scored lower on a measure
of agreeableness, reflecting less concern for social harmony and getting along with
others.165 Similarly, in more unequal European countries, people show less solidarity and
are less willing to help others166
‘…although plenty of people should be behind bars, many are locked in a cell because we
have criminal justice policies, including unfair sentencing laws, that need to be
reformed.’
- Barrack O Obama167
The penal system in the United States is viewed as a broken system by many, where the
U.S. policy of mass incarceration has been seen as the epitome of ineffective practice.
This stems from the fact that the American incarceration rate is the highest in the world at

163
Wilkinson R & Pickett K. The spirit level( Allen Lane London 2009)
164
Layte R, Whelan C. GINI DP, Who feels inferior? A test of the status anxiety hypothesis of social
inequalities in health (2013) Amsterdam Institute for Advanced Labour Studies; Amsterdam 78
165
DeVries R & Gosling S & Potter J. Income inequality and personality: are less equal U.S. states less
agreeable? (1978-85) Social Science Medicine 2011;72(12)
166
Paskov M, Dewilde C,. Income inequality and solidarity in Europe. Res Soc Strat Mob (2012);
30(4):415-32.
167
http://www.economist.com/blogs/economist-explains/2016/01/economist-explains-19 accessed on 19
November 2016

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over 714 per 100,000 U.S. citizens.168Comparatively speaking, the average incarceration
rate of other southern and western European countries is only 95 per 100,000
citizens.169’170Until the mid-1970s, rehabilitation was a key part of U.S. prison policy and
prisoners were encouraged to develop occupational skills as well as resolve psychological
problems--such as substance abuse or aggression--that might interfere with their
reintegration into society. Since then, however, rehabilitation took a back seat to a ‘get
tough on crime’ approach that saw punishment as prison's main function leading to
explosive growth in the prison population, while having at most a modest effect on crime
rates.171
The incarceration crisis in the U.S.has ensnared more than 7.1 million Americans in the
nation’s criminal justice system and led to the actual imprisonment 2.3 million people for
record lengths of time.172, 173
, 174
A survey conducted in 2006 of NCSC State chief
justices found that the top concerns of State trial judges included the high rates of
recidivism among felony offenders, the ineffectiveness of traditional probation
supervision and other criminal sanctions in reducing recidivism, restrictions on judicial
discretion that limited the ability of judges to sentence more fairly and effectively, and
the absence of effective community corrections programs.175

The continuation of such practices has often been linked to the emergence of ‘For profit
prisons’ and the ‘prison industrial complex’.

168
R Walmsley World prison population list .(International Prison News Digest Issue 39, Core Publications
2017).
169
V Stern, The international impact of U.S. policies
170
M. Mauer and M. Chesney-Lind, ’Invisible punishment: The collateral consequences of mass
imprisonment’.(The New York Press, New York 2002) 279
171
http://www.apa.org/monitor/julaug03/rehab.aspx accessed on 19 November 2016
172
Absolute Strategy Research's March 1 9, 201 2 "Survey of U.S. Household Finances," available at
www.absolute-strategy.com/content/1635/ASR%20 Survey%20March%20201 2_ - 4. accessed on 19
November 2016
173
The international impact of U.S. policies See Todd D. Minton, Jail Inmates at Midyear 2010 - Statistical
Tables (Washington, D.C.: Bureau of Justice Statistics, April 14, 201 1), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2375; accessed on 19 November 2016
174
V Stern, Paul Guerino, Paige M. Harrison, William J. Sabol, Prisoners in 2010 (Washington, D.C.:
Bureau of Justice Statistics, December 1 5, 201 1 ) accessed on 11 November 2016
175
</http://static.nicic.gov/Library/023358.pdf> accessed on 11 November 2016

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Superimposing political categories like freedom or discipline on forms of market

organization make both the free market and the prison system seem natural and
necessary. This is what facilitated the birth of the penitentiary system in the nineteenth
176
century and its ultimate culmination into mass incarceration today. The Prison
Industrial Complex (PIC) is a term used to describe the overlapping interests of
government and industry that use surveillance, policing and imprisonment as solutions to
economic, social and political problems177

Although the UK has the most privatised prison system in Europe, with 11.6% of the
total prisoner population (nearly 10,000 people) held in private prisons,178 this section
focuses on the US, specially in light of GEO and Corrections Corporation of
America having funnelled more than $10 million to candidates since 1989 and having
spent nearly $25 million on lobbying efforts. As of now these two corporations rake in a
combined $3.3 billion in annual revenue.179 At the same time, it has been found that the
private federal prison population more than doubled between2000-2009.

180

According to the Office of Juvenile Justice and Delinquency Prevention, privately owned
corporations operate more than 50 percent of youth correctional facilities in the United
176
Bernard E Harcourt, The Illusion Of Free Markets (Harvard University Press 2011).
177
<http://criticalresistance.org/about/not-so-common-language/> accessed on 19 November 2016
178
< http://www.prisonreformtrust.org.uk/ProjectsResearch > accessed on 19 November 2016
179
--https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-become-
the-biggest-lobby-no-one-is-talking-about/?utm_term=.9cbe9f59e2b4
180
C Heather. West, Prison Inmates at Midyear 2009 - Table 11 (Washington, D.C.: Bureau of Justice
Statistics, 2010). http://bjs.ojp.usdoj.gov/content/pub/pdf/pim09st.pdf

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States.181 In 2003, the Department of Justice concluded that the private prison company
operating the Swanson Correctional Center for Youth in Tallulah, Louisiana was unfit to
manage the facility. Such allegations raise questions about the human cost of
privatization of prisons, especially when private prisons profit when more youth are
incarcerated. 182
‘No one, in my view, should be allowed to profit from putting more people behind bars
— whether they’re inmates in jail or immigrants held in detention centers.’
-Bernie Sanders183

The problem of the mentally ill-

Jails and prisons have become the mental asylums of the 21st Century—CNN184

A systematic review of 62 surveys of the incarcerated population from 12 Western

countries has shown that, among the men, 3.7 percent had psychotic illness, 10 percent
major depression, and 65 percent a personality disorder, including 47 percent with
antisocial personality disorder. Among the women, 4 percent had psychosis, 12 percent
major depression, and 42 percent a personality disorder.185
Owing to the lack of widespread utilization of diversion programs such as mental health
and drug courts at the front end of the criminal justice process, more people with such
problems are entering prisons than ever before.186 A study conducted in 2006 by the U.S.
Department of Justice found that altough more than half of all prison inmates had a
mental health problem compared with 11 percent of the general population, only one in

181
‘Louisiana Juvenile Findings Letter 1’ United States of Department of Justice, Civil Rights Division
www.justice.gov/crt/split/documents/lajuvfind1.php
182
‘Costs of Confinement’ Justice Policy Institute, (Washington, D.C.: 2009)
183
--http://www.huffingtonpost.com/bernie-sanders/we-must-end-for-profit-pr_b_8180124.html accessed
on 19 April 2017
184
CNN, ‘Criminally insane. Investigative Report.’ (July 14, 2007)
185
Fazel S, Danesh J, Serious Mental Disorder in 23,000 prisoners: A Systematic Review of 62 Surveys,
(2002) Lancet 359:545–50
186
Binswanger IA, Stern MF, Deo RA, et al: Release from Prison, ( 2007) A High Risk of Death for Former
Inmates. N England J Med 356:157–65,

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three prison inmates and one in six jail inmates received any form of mental health
treatment.187 A parallel to the general population has been drawn because the fact is that
both ‘perpetrators’ and ‘victims’ coexist in a social context devastated by a combination
of social exclusion, poverty, racism, addiction and government neglect. This analysis
shifts our focus from the commonsense assumption that policing and prisons create
security, to the possibility of creating safety by redirecting resources to provide for the
basic human rights of all community members.188Contrary to popular understandings,
prisons actually undermine safety by absorbing scarce public resources that might
otherwise provide for social services that address the root causes of survival crimes.189
According to Robert, the violence that comes out of the American prisons is a much
greater threat than terrorism. He feels that the most imprisoned population in America
today is the general public, which behind it’s veil of ignorance, is uninformed about the
nature and consequences of imprisonment as it is practiced today. To quote,
‘ They are imprisoned in a mass delusion, which in the long run punishes society far
more than society could ever punish a convicted criminal. 190

Learning from the Nordic model

‘Punishment only trains a person what not to do. If one punishes a behaviour what is left
to replace it? This is why punishment scholars state that the most effective way to
produce behavioural change is not to suppress "bad" behaviour, but to shape "good"
behaviour.191 Scandinavian countries are often considered models of successful

187
James DJ, Glaze LE: Mental Health Problems of Prison and Jail Inmates.(2006) Washington, DC:
Department of Justice, Bureau of Justice Statistics Special Report
188
-< http://criticalresistance.org/> accessed on 19 November 2016
189
<https://www.crimeandjustice.org.uk/publications/cjm/article/reform-or-abolition-using-popular-
mobilisations-dismantle-%E2%80%98prison> accessed on 19 November 2016
190
Roberts, ‘My Soul Said to Me: An Unlikely Journey Behind the Walls of Justice’(Roberts is the Founder
and Executive Director of Project
191
D.Blackman, Punishment: An experimental and theoretical analysis, (J. McGuire & B. Rowson Edn.
Does punishment work? ,London, UK 1995)

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incarceration practices, particularly Norway which, at 20%, has one of the lowest
recidivism rates in the world192
The Finnish Department of Prison and Probation suggests that punishment is not the
elimination of basic needs; it is simply the loss of liberty, demonstrating that the Finnish
believe in “gentle justice” which focuses on decreased recidivism through rehabilitation
of prisoners.193 Similarly, policy statements in the Netherlands are aimed at the
resocialization and reintegration of inmates.194 Overall, Nordic offenders are not stripped
of their basic rights; their independence is restricted while they receive rehabilitation
services to deter future criminal activity.195
Fundamentally, the success of the Nordic model is contingent upon the country’s ability
to secure potential employers. For example, the Danish welfare state has effectively
embedded policies that keep their prison model functional within the surrounding
community.196 In Finland, eligible inmates are sent to “labor camps” where they are
compensated with a normal wage for completed work. In turn, these earnings are used for
them to pay for their own expenses; including rent, utilities, food, and taxes.
Additionally, these eligible individuals are able to save money and provide for their
families, or in some cases, send financial compensation to the families of their victims.197

The Nordic approach to punishment, the setup of their prisons, and the public perception
of the purpose of the penal system are fundamentally different from the US. For example,
when Norway implemented the prison model used in Denmark, Finland, and Sweden, the

192
William Lee Adams, Sentenced to Serving the Good Life in Norway, (2010)Time <
http://content.time.com/time/magazine/article/0,9171,2000920,00.html.> Accessed August 12, 2016
193
I Ekunwe, R.S Jones & K Mullin ‘Public attitudes toward crime and incarceration in Finland’ An
Interdisciplinary Journal23(1)
194
W. Schinkel, ‘Discipline or punishment?The case of the Dutch prison. Innovation: (2003) The
European Journal of Social Sciences 16(3) 211 doi:10.1080/1351161032000126026
195
H Von Hofer & R Marvin Imprisonment today and tomorrow: International perspectives (D. van Zyl
Smit & F. Dunkel Edn The Hague, The Netherlands: Kluwer Law International, 2001) 634–652
196
Lacey, N. Differentiating among penal states. (2010), 61 (4), 778-794 British Journal of Sociology
doi:10.1111/j.1468-4446.2010.01341.x
197
P Kenis, M.PKruyen, J Baaijens, & P Barneveld, ‘The prison of the future? An evaluation of an
innovative prison design in the Netherlands’ (2010) Prison Journal, 90(3) 313
doi:10.1177/0032885510373506

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prison population dropped from 200 per 100,000 people in 1950 to 65 per 100,000 people
in 2004.198 Though each Nordic country’s (i.e., Norway, Sweden, Finland, Denmark)
laws and prison policies vary slightly, as a whole the Nordic penal system deviates from
that of other countries with higher rates of incarceration and recidivism, resulting in more
favorable outcomes for the rehabilitation and education of prisoners.199

CHAPTER 5
Restorative justice: and other alternatives

The biggest conceptual difference between restorative justice and other forms, that still
remains undiscussed is that of ‘whom’ the crime is considered to be against.
Traditionally, all crime is considered to be against the state in as much as it has failed in
its duty to protect the rights of its citizen. Restorative justice involves a very different
approach as the crime is considered to be against the individual and society rather than
the state. Hull has simplified this dilemma into a single question, albeit, with an infinite
number of possible answers.
‘What do we want from our system of justice and from our interactions with each
other?’200

Restorative justice has existed on the periphery of justice systems, confining most victims
of crime and other wrongs to the limited outcomes available through the adversarial
system201. The objective herin is not a call to dispense with the conventional justice
system, but instead to identify a suite of responses that could exist alongside it, with the
198
H Von Hofer, Current Swedish penal policy (In P. O. Traskman Edn, ‘Rationality and emotion in
European penal policy: Nordic perspectives’ DJOF Publishing Copenhagen, Denmark 2007)
199
ibid (n184)
200
R Hulls, 'Adversarial Justice: Pure Gold Or Fool’S Gold? (2013) Broadening Restorative Perspectives:
An International Conference,
<http://www.varj.asn.au/Resources/Documents/Int%20Conference%202013%20papers/Adversarial%2
0Justice,%20Pure%20Gold%20or%20Fools%20Gold%20-%20Rob%20Hulls.pdf> accessed 15
November 2015
201
Michael Wood ‘Models for community involvement in restorative justice’, 25 March 2015

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primary focus being restorative justice conferencing. This is to be done by adopting a

highly victim-centred approach while also retaining those elements of the prosecution
process that protect the rights of the accused.202
As shown, justice systems punish offenders by separating them from their community
thereby stigmatizing’ the individual, their families and their community. Restorative
justice utilizes ‘re-integrative’ shame to acknowledge the harm and then decides, as a
community, how to meet the needs created by the harm. This is done by showing people
how their activities affect others and how they themselves are solely responsible for their
choices and actions. It enables them to reflect on how they interact with each other and
consider how best to prevent harm and conflict.203
Restorative justice responses usually involve some form of 'mediation' / 'conflict
resolution' (preferably referred to as 'conferencing' or 'dialogue)'204 and often result in
apologies, reparation, compensation and community service.
The International Institute for Restorative Practices refers to the 'Restorative Practices
Continuum' ranging from simple, informal responses for use in 'everyday' interactions to
more complex, structured and formal interventions205. Restorative justice theory and
programs have emerged as an increasingly influential world-wide alternative to criminal
justice practice.206

202
Innovative Justice Responses to Sexual Offending – pathways to better outcomes for victims, offenders
and the community. (2016)Report,
203
https://www.restorativejustice.org.uk/what-restorative-justice accessed on 19 November 2016.
Promoting quality restorative practice for everyone, ‘What is Restorative Justice, Restorative Justice
Council’
204
The terms ‘conference’, ‘conferencing’ or ‘dialogue’ are increasingly preferred to the term ‘mediation’
which implies that parties on all sides are on the same ‘moral playing field’ and share equal blame for a
situation – an assumption which can be inappropriate from the standpoint of victims/survivors.
205 <www.iirp.org.> accessed on 19 November 2016. The information in this section is based on a paper
by Ted Watch el, International Institute for Restorative Practices (IIRP), Graduate School, Bethlehem,
Pennsylvania, USA called My Three Decades of Using Restorative Practices with Delinquent and At-
Risk Youth: Theory, Practice and Research Outcomes, delivered at the First World Congress on
Restorative Juvenile Justice, Lima, Peru, November 5, 2009. The 'Affective Questions' are taken from
the IIRP website
206
ABOUT RESTORATIVE JUSTICE, Tutorial: Introduction to Restorative Justice, Centre for Justice and
Reconciliation, A Programme for Prison Fellowship International,
http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-
justice/

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In the process of coming together to restore relationships, the community is also provided
with an opportunity to heal through the reintegration of victims and offenders.207Despite
its barbaric origins in the medieval dungeon and torture chamber, since the late 18th
century prisons have combined elements of punishment with elements of rehabilitation.
As the French philosopher Michel Foucault put it,
‘Punishment shifted over time from the disciplining of the body to the disciplining of the
soul’.208

As has been shown, a prison environment respectful of human rights is conducive to

positive change, whereas an environment of abuse, disrespect, and discrimination has the
opposite effect: Treating prisoners with humanity actually enhances public safety.
Moreover, through respecting the human rights of prisoners, society conveys a strong
message that everyone, regardless of their circumstance, race, social status, gender,
religion, and so on, is to be treated with inherent respect and dignity.209

Exploring other options-

‘Exploring alternatives to prison’ lays down a multipronged approach to deal with
rethinking the criminal justice system at both the individual and community level.210

Gross national happiness

In 1971, Bhutan rejected the economic and qualitative GDP as the only way to measure
progress. In its place, it championed a new approach to development, which measured

207 (
Llewellyn &Howse, 1998).!!
208
-<http://www.politics.co.uk/reference/prison-rehabilitation>accessed 2 April 2016
209
Ivan Zinger, ‘Human Rights Compliance and the Role of External Prison Oversight’ (48 Can. J. of
Criminology & Criminal . Justice 2006)127
210
Rethinking.org.uk, 'Exploring Alternatives To Prison'
<http://www.rethinking.org.uk/publications/index.shtml> accessed 18 November 2015

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prosperity through formal principles of gross national happiness (GNH) and the spiritual,
physical, social and environmental health of its citizens and natural environment.211

The four main values outlined by GNH are sustainable development, environmental
conservation, cultural values, and socially responsible government. It has recently been
proposed as a socioeconomic development metric that provides an alternative to
economic growth as an indication of prosperity. Indexes like this bring attention to the
importance of more holistic aspects of a state’s success.212

Justice re-investment-
“Justice reinvestment” approaches channel resources on a geographically-targeted basis
to reduce the crimes which bring people into the criminal justice system and into prison
in particular. Justice Reinvestment (JR) seeks to reduce the level of crime in the most
efficient way possible, potentially creating a more law-abiding society at a lower cost
than the traditional detect/convict/punish approach. JR seeks to develop measures and
policies to improve the prospects of individuals by improving the prospects of
communities. There are four main stages to a Justice Reinvestment approach

• ‘Justice mapping’: analysis of the prison population and of relevant public

spending in the communities to which people return from prison
• Provision of options to policymakers for the generation of savings and increases
in public safety
• Implementation of options, quantification of savings and reinvestment in targeted
high-risk communities
• Measurement of impacts, evaluation and assurance of effective implementation213

211
--https://www.theguardian.com/world/2012/dec/01/bhutan-wealth-happiness-countsaccessed 2 April
2016
212
--http://rethinkingprosperity.org/what-is-gross-national-happiness/ accessed 2 April 2016
213
Fox, C., Albertson, K. and Wong, K.,Justice Reinvestment: Can the Criminal Justice System Deliver
More for Less?,(London: Routledge, 2013).

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To date, no UK project can be said to have implemented a ‘full’ JR project. Indeed,

recent government policy appears to limit JR to rehabilitation and, in particular, payment
by result schemes. However, as Fox makes clear, ‘JR is not about providing criminal
justice services more cheaply, it is about motivating a holistic consideration of the
problem of criminality.’214

Parole innovation-
Case study –Kansas(US): In 2001, people whose parole was revoked for violating
conditions of parole made up 44.4 percent of prison admissions. In order to reduce the
number of people returning to prison for violating the terms of parole, Kansas began by
implementing evidence-based practices and relying more heavily on risk and needs
assessments. Rather than focusing on the quantity of meetings with people on parole,
parole officers were to focus on quality, using a strengths-based approach and the
community as a resource for services and supports. Parole officers use a case
management strategy, rather than a law enforcement, surveillance strategy when working
with people on parole. As a result of the state’s efforts, parole revocations resulting from
violating the terms of parole decreased to 39 percent of admissions to prison in 2004. 215

Problem solving courts:

Problem solving courts, simply stated, extend the reach of the courts into post-sentencing
supervision, with the court overseeing the delivery of fair, swift, certain and credible
sentences, focused on key outcomes. Problem solving courts, are of two types, the first
are specialized wherein particular types of offenders such as drug users, domestic
violence perpetrators and those with mental health needs are dealt with by specially

214
<http://www-tandfonline-
com.ezphost.dur.ac.uk/doi/full/10.1080/09627251.2013.865498?scroll=top&needAccess=true> accessed
on 15 September 2016

215
National Institute of Justice, Parole Violations Revisited: Innovations in Four States, January 14, 2011.
<www.paroleviolationsrevisited.org/4states> accessed on 16 August 2016

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trained courts. The second type are community courts, which generally operate in specific
high crime communities.216 A a large body of evidence that suggests that drug, domestic
violence and community courts significantly reduce recidivism, through the use of
procedural justice, judicial monitoring and graduated sanctions.217

Intensive alternatives to custody/integrated offender management:

In England and Wales, the delivery of credible court-ordered community sentences
alternatives to short term custodial sentences has come together with wider efforts to
develop multi-agency arrangements to supervise high crime causing offenders. In six
sites across the country, multi-agency teams operate the Intensive Alternative to Custody
sentence as part of the courts' contribution to the better management of offenders under
Integrated Offender Management. Recent evaluation of the Intensive Alternative to
Custody project suggests it is a more cost effective way of intervening with offenders
trapped in the ‘revolving door of criminal justice’. It delivers a cheaper sentence that is
more effective at reducing reoffending than short term prison218.

Psychologically Informed Environment (PIE) “ is a method adopted by therapeutic

jurisprudence, especially in the case of homeless persons, that takes into account the
psychological makeup – the thinking, emotions, personalities and past experience - of its
participants in the way that it operates. It is an approach to supporting people out of
homelessness, in particular those who have experienced complex trauma or are diagnosed
with a personality disorder. It also considers the psychological needs of staff: developing
skills and knowledge, increasing motivation, job satisfaction and resilience. 219Using such
methods ensures the evolution of society as a whole, thereby leading to social justice.

216
Studies Show Courts Reduce Recidivism, but DOJ Could Enhance Future Performance Measure
Revision Efforts, (2011) US GAO<http://www.gao.gov/products/GAO-12-53> accessed 20/04/2013
217
Center for Court Innovation, „Documenting Results: Research on Problem-Solving Justice,‟ 2009
218
<http://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/iac-
impactevaluation-research-summary.pdf> accessed on 15 September 2016

219
Robin Johnson,Psychologically Informed Services for Homeless People – Good practice guide, (Dept of

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The recent legislation entitled the Criminal Justice and Courts Act, passed in 2015 to
incorporate changes in the existing criminal justice system so as to increase the efficiency
and feasibility of criminal justice while reducing the rate of recidivism. Section 43 of the
act requires that the Act make provision in relation to secure colleges, a new form of
youth detention accommodation with a focus on education. Although it presents a
difficult aim, the act undoubtedly takes us a step towards better rehabilitation systems for
offenders. This is a first of its kind as it focuses more on changing the offender into a
responsible, empowered citizen rather than on punishing him. Securing college seats for
young offenders enables them to turn over a new leaf while highly reducing the likeliness
of them taking to a path of crime. 220

Communities and Local Government for development 2012) <http://pielink.net/>accessed on 13 July 2015

220
Criminal Justice and Courts Act 2015, S.43

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CONCLUSION-

The research presented brings to light various factors that depict how change has become
essential. Importance must be given to the principles laid down by therapeutic
jurisprudence in order to deal with society as it is today. It is too early to say whether a
world without prisons is possible, however, it is obvious that reform is much needed and
that alternatives need to be found for the way society as a whole deals with crime. The
approach generally has been to ‘sweep it under the rug’. In essence, we wish to remove
the deviants from our society. However, society is composed of all sorts of people and it
is essential that it be so. The answer does not lie in incapacitation, death or transportation
but in understanding, evolving and growing as a society. If investment is diverted from
penitentiary systems into better mental health facilities, social justice programmes and the
psychological understanding and treatment of deviants, society will benefit in numerous
ways.
The current system is based on the same principles used to discipline children, be they
corporal, or a taking away of liberty by ‘being sent to the room’.

It is important to understand how the meaning of crime keeps changing. In today’s world,
with advancements, new forms of crime are also being created making it imperative to
note the changes in the types of crime being committed as well. Although there are still
cases of psychopaths committing heinous crimes, there has been a transition from older
crimes like robbery and dacoity to fraud, banking crimes and other white/blue collared
crimes. Given this, the requirement is to devise new penalties and methods for dealing
with such offenders to ensure a cohesive society. Certain parts of the paper have also
critiqued the dangers of neo-liberalism and shown how a balance needs to be maintained
between state control and Laizzes-faire. Duality is inherent in creation and thus flows to
everything. In my personal opinion, duality is responsible for creating a tension, which in
turn is responsible for sustenance. It is only evil that can define good; for in the absence
of the devil, even the concept of god could not have emerged. Society will have its share

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of deviants and anarchists and it is the presence of such people that ensures a constant
interplay.
To sum up, it is imperative that like the academic discourse of psychology, the academic
discourse on jurisprudence, theological and sociological models of natural justice give
way to restorative justice which in turn will make the legal system ameliorist in nature.
This is the ‘swerve’ with which we began this essay, needed in the present. As has been
pointed out, restorative justice means Prophetic justice, a legal framework where parallels
can and should be drawn from positive psychology mentioned above which in turn has
made therapeutic justice possible. Ameliorist approaches, which are akin to the
restorative approach is to be synoptically studied against the repressive systems of
Enlightenment justice which found its best explicator in John Rawls as has been shown
above. This paper makes a case for an ameliorist mode of jurisprudence to ultimately
annihilate the post-human era of machine learning. It is the opinion of the researcher that
incorporating such findings and coming to terms with the duality that must exist in
society is essential for justice systems throughout the world. Without this, our evolution
beyond the post-human seems impossible.

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