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CONTEXT
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By
BEA B. SUAN
LLB 1 – EH 407 MC
REVIEW OF RELATED LITERATURE
This paper presents the review of the literature focusing on punishment and its
consequences. In order to answer the query as to the justification of the infliction of
punishment to any violators, this paper presents and explains utilitarianism as a principle
justifying punishment. Moreover, it is also discussed in order to determine any beneficial
outcomes in the imposition of such. Punishment, in here, refers to the capital punishment
involving any infliction of moral or physical suffering which governs a certain system.
So, to facilitate a specific, comprehensive and systematic understanding of punishment,
this review illustrates the penal system in the Philippines.
The chapter will commence with the conceptual basis of punishment, followed by
its establishment of the philosophical foundation and justification, by way of presenting
the general notion of punishment and utilitarianism. Thereafter, to be more specific, this
describes the punishment in the Philippines particularly enumerating as well its various
effects to the offender, the offended party if any and to the Philippine society as a whole.
In addition, the discussion is not limited within the utilitarian approach to
punishment, but also deals with matters outside the box, wherein throughout the review
are enumerations of some criticisms and other principles governing punishment. It is
important in order to determine and be enlightened with other principles and explanations
justifying punishment.
The outcome of this study is intended to give enlightenment as to the question
governing punishment, such as: its justification, purposes and consequences. In the end,
this review will be very essential to the further study concerning utilitarianism as well as
to the inclusive advantages of punishment in the entire system of the country.
Punishment, in general
Before dealing on with the justifications of punishment, let us first take a look
with the concept of punishment, per se. It (punishment) has been a crucial feature of
every legal system; however, widespread disagreement exists over the moral principles
that can justify its imposition.1
Punishment is commonly defined as a ‘suffering, pain or loss that serves as
retribution’ [ CITATION Mer12 \l 13321 ] . It covers a very broad subject area and context
such as of relationship between parents and children, schools and teachers, schools and
students, and teachers and students, employer and employee, government and its citizens
and to any other relationship where there is hierarchy of powers. Most importantly, there
is punishment because there is a violation of a certain system of rules governing those
relationships. It is the breaking of these guiding rules that determines the nature of
punishment to be imposed, may it be severe or not.
However, for the objective of this paper, this will narrow down the broad range of
punishment and tends to put its focus on the context of criminal punishment, whereby a
violator of the law breaks down the rules, by causing crimes and transgressions towards
other parties and punishments in any form are inflicted in order to pay off what he has
done. Parts of the civil law authorize punitive consequences, but in advanced legal
systems, legal punishment is linked to the criminal law.2
Now, bringing down our attention to our core subject, Flew argues that
punishment in the sense of a sanction imposed for a criminal offense consists of five
elements:
1. It must involve an unpleasantness to the victim.
1
Kent Greenawalt, “Commentary on Punishment” (1983)The Journal of Criminal Law
and Criminology Vol. 74, No.2 pp.343
2
Ibid,.pp. 346
2. It must be for an offense, actual or supposed.
3. It must be of an offender, actual or supposed.
4. It must be the work of personal agencies; in other words, it must not be the
natural consequence of an action.
5. It must be imposed by an authority or an institution against whose rules the
offense has been committed. If this is not the case, then the act is not one of
punishment but is simply a hostile act. Similarly, direct action by a person who
has no special authority is not properly called punishment, and is more likely to
be revenge or an act of hostility.3
So, from the abovementioned elements we can say that punishment is being
imposed for those who violate the laws by those in powers and authority. To reiterate, it
is not considered punishment if it doesn’t come from an authoritative person or
institution. Hence, the concept of punishment denotes power and authority, the infliction
of certain pain, loss or suffering either physical or moral in the process of attainment its
purpose.
To speak of “purpose”, what could be the purpose of punishment? What are the
aims and objectives of those in power? We have known in the usual settings that
punishment is merely given in order to correct certain wrongs done by the offender as
well as to bring justice to the offended party by compensating the damage being done
through their sufferings. But, is this all? Is there any other reason or objective in the
imposition of punishments? What are its other justifications? (See Justifications of
Punishment)
Justification of Punishment
Right after dealing with the basic concept of punishment as well as the penal
system of the Philippines being our subject, it is proper to understand and to give answer
to the questions being raised in the previous part of the study. The purposes, reasons, and
consequences of the imposition of punishment (capital punishment) altogether provide
the justification of punishment.
Because punishment involves pain or deprivation that people wish to avoid, its
intentional imposition by the state requires justification. 6 Infliction of punishment is an
action or a class of actions. We evaluate such an action in terms of either the
consequences it yields or the intention of the agent who inflicts punishment.7Various
works have proved that there are two theories that justify punishment: the Retributive and
the Utilitarian theories.
RETRIBUTIVE APPROACH
Let’s tackle first the Retributive Approach in justifying punishment. This theory
involves revenge and retribution. This sentencing system focuses primarily on the
seriousness and characteristics of the criminal act rather than the offender. 8Moreover,
[CITATION Kev \l 13321 ] state that concepts of desert and justice occupy a central place in
most retributive theories: in accordance with the demands of justice, wrongdoers are
thought to deserve to suffer, so punishment is justified on the grounds that it gives to
wrongdoers what they deserve.
In addition, under this theory, offenders are punished for criminal behavior
because they deserve punishment. According to the retributivist, human beings have free
will and are capable of making rational decisions. An offender who is insane or otherwise
5
Reyes, L. B. (2012). The Revised Penal Code. Manila: Rex Publishing Company.
6
Punishment - Moral Justifications And Legal
Punishmenthttp://law.jrank.org/pages/1905/Punishment-Moral-justifications-legal-
punishment.html
7
JitendraNathSarker, Justification of Punishment, University of Rajshahi, Bangladesh
https://www.bu.edu/wcp/Papers/TEth/TEthSark.htm
8
Philosophies of Punishment, pp. 15-16
http://marisluste.files.wordpress.com/2010/11/soda-filozofijas-3.pdf
incompetent should not be punished. However, a person who makes a conscious choice
to upset the balance of society should be punished.9
UTILITARIAN APPROACH
Another viewpoint being made in the justification for punishment is the most
known principle of utilitarianism. But before we proceed with the discussion of the
utilitarian approach of punishment, it is appropriate to give first background of this
utilitarian thinking through the perspective of the proponents of this thought: Bentham
and Mill. They provide and established the foundation of this thought, thus, it emerged as
one counterpart of retributive justice as justification of the infliction of punishment.
Nevertheless, we will present not only those classical thinking but will also give light for
the contemporary thinking based on utilitarian grounds.
Jonathan Bennett[ CITATION Jon05 \l 13321 ] ,in his discussion of Utilitarianism by
John Stuart Mill well- discussed that the doctrine that the basis of morals is utility, or the
greatest happiness principle, holds that actions are right in proportion as they tend to
promote happiness, wrong in proportion as they tend to produce the reverse of happiness.
By ‘happiness’ is meant pleasure and the absence of pain; by ‘unhappiness’ is meant pain
and the lack of pleasure.
Also, Jeremy Bentham's account of punishment rests on the broader social ethic
that he also developed: the principle of utility. Social measures are to be judged, he
maintains, according to the degree to which they promote aggregate satisfaction.
[CITATION And92 \l 13321 ]In his perspective, “Pleasures then, and the avoidance of pains,
are the ends that the legislator has in view.”In Chapter VII Bentham says, “The business
of government is to promote the happiness of the society, by punishing and rewarding…
In proportion as an act tends to disturb that happiness, in proportion as the tendency of it
is pernicious, will be the demand it creates for punishment.”10 Being such, the imposition
of punishment shows that it was meant for the consequence of pleasure rather than pain.
The utilitarian perspective according to him, is justified because the infliction of
punishment produces some sort of utility or it promotes general welfare or happiness.
More than that, he contends that “… By the principle of utility is meant that
principle which approves or disapproves of every action whatsoever according to the
tendency it appears to have to augment or diminish the happiness of the party whose
interest is in question: or, what is the same thing in other words to promote or to oppose
that happiness. I say of every action whatsoever, and therefore not only of every action of
a private individual, but of every measure of government.” 11
On the other hand, Mill [ CITATION Joh63 \l 13321 ] in his work and in support with
the previous proponent stated that, “The creed which accepts as the foundation of morals,
Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as
they tend to promote happiness, wrong as they tend to produce the reverse of happiness.
By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the
privation of pleasure.
However, this classical thinking pursues up to the twentieth century
developments. Out from this one, different variety of utilitarianism exists, such as ideal
utilitarianism, act and rule utilitarianism, two-level utilitarianism and the preference
utilitarianism. These varieties may have different contentions, but being founded in a
9
Punishment - Moral Justifications And Legal
Punishmenthttp://law.jrank.org/pages/1905/Punishment-Moral-justifications-legal-
punishment.html
10
http://en.wikipedia.org/wiki/Utilitarianism#Jeremy_Bentham
11
Ibid.,
utilitarian thinking, they have the same denominator that they are geared towards the
greatest happiness and maximized utility.12
Thereafter understanding the basic knowledge regarding these two theories which
justify punishment, this paper will now focus into the utilitarian perspective in justifying
punishment. We will limit our discussion only in this theory rather on dwelling with the
two theories for the purpose of this paper is to present only a review based on the positive
implications of punishment. Nevertheless, we are not saying that retributive theory has
nothing positive consequence in it. In fact, because retributivist approach is backward
looking -- what justifies a punishment is the fact that the person being punished did
something wrong, has come to produce the positive effect on the part of the offended
parties.13 Since, this theory holds that the perpetrator deserves with the kind of
punishment fit with the crime committed, it gives best justice on the part of the offended
parties. Punishment in here served as a compensation of what they have done, but in
accordance to the level and degree of the crime being committed. We’ll move on with the
utilitarian approach to punishment because this study is not meant to dwell in to the
difference between the two theories of justification, rather to present the positive
implication of every punishment.
Moving on, the utilitarian approach to the nature of punishment requires that the
general justification of punishment should be determined by reference to the beneficial or
detrimental consequences of the practice alone.[ CITATION Cha \l 13321 ]So, in order to
begin our analysis with the consequences of punishment, it is essential to determine first
the way or the relationship between the laws/ rules and the people. Charvet have
identified two classes of theories in order to identify what it is for the people to follow a
rule, is it either rule- following or a simple habitual behaviour? It is his contention in his
work that the thinking that people have in dealing with the laws determines the beneficial
or detrimental consequences of every rule. If people simply follows rule as a habit, where
the great majority behave in the same way, there is no reason to criticize the breach of
rules he undertake. On the other hand, if people are rule- following, criticisms to the
breach of rules is justified and punishment is justified as well.
Moreover, according to the utilitarian account of punishment 'A ought to be
punished' means that A has done an act harmful to people and it needs to be prevented by
punishment or the threat of it. So, it will be useful to punish A. Hence, a punishment is
justified when it is both useful and deserved. These has been the contention of Sarker ,
that he noted that the term punishment may be understood in two different senses (i)
Punishment in general and (ii) specific case of punishment .Punishment in general can
obviously be justified (in the traditional sense of the term) on utilitarian grounds, (though
justification is not necessarily enquired in general ). It is the justification of particular
infliction of pain (or punishment) that can be enquired of. While in its specific sense, the
term punishment is used to mean an actual infliction of suffering. It is a particular action
--- not a class of actions. Hence, here we can deduce that punishment in general is
classified by utilitarian grounds since it is the general welfare that is being anticipated in
every punishment.
In addition to this clarification, the most significant elucidation of utilitarianism as
an approach justifying punishment is that it is "consequentialist" in nature. It recognizes
that punishment has consequences for both the offender and society and holds that the
total good produced by the punishment should exceed the total evil. In other words,
punishment should not be unlimited.14
12
Ibid.,
The Utilitarian and Retributivist Approach to Punishmenthttp://voices.yahoo.com/the-
13
utilitarian-retributivist-approach-punishment-8692135.html
1414
http://law.jrank.org/pages/1905/Punishment-Moral-justifications-legal-
punishment.html
Also, according to Kevin Murtagh in his work Punishment, “When attempting to
determine whether a punishment is justifiable, utilitarians will attempt to anticipate the
likely consequences of carrying out the punishment. If punishing an offender would most
likely produce the greatest balance of happiness over unhappiness compared with the
other available options (not taking any action, publicly denouncing the offender, etc.),
then the punishment is justified. If another available option would produce a greater
balance of happiness over unhappiness, then that option should be chosen and
punishment is unjustified.15
B. Norm reinforcement
Practices of punishment can thus reinforce community norms by affecting the
dictates of individual consciences. Serious criminal punishment represents
society's strong condemnation of what the offender has done, and performs a
significant role in moral education.
15
Kevin, Murtagh Punishment 2005
Punishment
16
- Moral Justifications And Legal Punishment
http://law.jrank.org/pages/1905/Punishment-Moral-justifications-legal-punishment.html
C. Individual deterrence. A primary utilitarian purpose for punishment involves
various actions designed to decrease the physical capacity of a person to
commit criminal or deviant acts. The actual imposition of punishment creates
fear in the offender that if he repeats his act, he will be punished again. For the
utilitarian, more severe punishment of repeat offenders is warranted partly
because the first penalty has shown itself ineffective from the standpoint of
individual deterrence.
D. Incapacitation and other forms of risk management. Imprisonment
temporarily puts the convicted criminal out of general circulation, and the
death penalty does so permanently. These punishments physically prevent
persons of dangerous disposition from acting upon their destructive
tendencies.
E. Reform. Punishment may help to reform the criminal so that his wish to
commit crimes will be lessened, and perhaps so that he can be a happier, more
useful person.
F. Vengeance. The utilitarian, in contrast to the retributivist, does not suppose
that wrongful acts intrinsically deserve a harsh response, but utilitarians
recognize that victims, their families and friends, and some members of the
public will feel frustrated if no such response is forthcoming.
17
Ibid.,
More than that, another unique perspective was shown in the Unintentional
Punishment [ CITATION Ada12 \l 13321 ], Kolber discussed that those who attempt to justify
only the purposeful inflictions of punishment cannot possibly justify real-world
punishment practices such as incarceration because they fail to justify all of the non-
purposeful inflictions that are necessarily associated with it. What theorists have not
adequately recognized is that real-world punishments involve both intentional and
unintentional harms to even a single offender. He further discussed the justification-
symmetry principle. According to him, “what I call the justification-symmetry principle
provides a (not necessarily exclusive) test of whether some punishment-related conduct
requires justification. The principle says that if you or I must have a justification for
risking or causing some harm, then so must any person who risks or causes the same kind
of harm in the name of punishment.Theories of punishment that address only intentional
aspects of punishment are woefully incomplete(emphasis supplied).
Although Kolber does not tackled much into the consequences of punishment, he
nevertheless bring forth the idea that if a certain justification addresses only intentional
aspects of punishment , then it would be incomplete. Hence, if utilitarian justification of
punishment if it only talks about intentional punishments, then, it did not absolutely
justify the imposition of such.
The above contentions of Kant, the objection of utilitarianism being hedonistic as
well as the discussion of justification are just some of the direct or indirect criticisms
thrown against the utilitarian perspective of punishment. Other contentions could be
discussed in separate discussions which will comprehensively converse these criticisms
Although some contends that capital punishment is not deterrent for (the
commission of other) capital crimes, still, punishments (will) tend to have more of a
deterrent effect to the extent that they are promptly and consistently employed.” 19
Capital punishment has its positive and negative implications to the offender, offended
and even to the whole society. There may be a lot of reasons for or against the execution
of death penalty, but, the general population or the majority’s wide range of belief affects
the execution of this kind of punishment. 20 Apparently, capital punishment lies in both
ends of these two theories of punishment. Over-all, it is difficult to clearly and concisely
justify capital punishment because the question concerning the deterrent effects of capital
18
The Purposes of Capital Punishment
http://home.page.ch/pub/rfm@vtx.ch/punishment.html
19
Punishment, http://www.csus.edu/indiv/g/gaskilld/ethics/Punishment.htm
20
The Pros and Cons of Capital Punishment
http://www.philforhumanity.com/Capital_Punishment.html
punishments, to be hanging. From the justifications, we can even deduce that the
abolition of our death penalty may be due to the excessive application and reliance to
retributive system, where penalties are being given according to the gravity of the crimes
being committed. More than that, the basic rationale for the abolition of death penalty is
because of the least utility we could get out of this capital punishment.
CONCLUSION
This paper did not reject the notion of retributive theory in justifying punishment;
it merely focuses on the positive aspect through the discussion in the various areas
concerning punishment and utilitarian approach.
Bibliography
Journals and Books
Boado, L. D. (2012). Notes and Cases on the Revised Penal Code pp.9.
Reyes, L. B. (2012). The Revised Penal Code pp. 621. Manila: Rex Publishing Company.
Webster, M. (2012).
http://en.wikipedia.org/wiki/Utilitarianism#Jeremy_Bentham
Punishment, http://www.csus.edu/indiv/g/gaskilld/ethics/Punishment.htm
Punishment - Moral Justifications And Legal Punishment
http://law.jrank.org/pages/1905/Punishment-Moral-justifications-legal-punishment.html