FINAL DRAFT SUBMITTED IN FULFILMENT OF THE COURSETITLED

CRIMINILOGY PENOLOGY AND VICTIMOLOGY FOR OBTAINING THE

DEGREE B.B.A.,LL.B(HONS.) DURING THE ACADEMIC YEAR 2020-21.

PROJECT SUBMITTED BY:

SATYANAND
B.BA LL.B (Hons.) Roll
No. 2041
SUBMITTED TO:
Mr. KUMAR GAURAV
Faculty - Criminology penology and victimology

CHANAKYA NATIONAL LAW UNIVERSITY

MITHAPUR, PATNA – 800001

Ibid.

1
 Table of Contents

S. No. Content Page No.

1. Introduction 3.

2. Research Methodology 4.

3.
5
Chapter 1: Utility of Punishment

4. 6
Chapter 2: Retributive Account.

5.
8
Chapter 3: Finding A Middle Way

6.
9
Chapter 4: Hybrid theory of Punishment

7. Conclusion 12.

8. Bibliography 13

Ibid.

2
 Introduction

Punishment entails the intentional infliction of pain or some type of deprivation in an

institutionalized form that individuals would generally prefer to avoid. This requires
justification to be morally acceptable. Attempts to provide justification for infliction of
punishment are made by various punishment theories.

Punishment theories generally can be separated into a handful of philosophical camps—

consequentialist theories, non-consequentialist theories, and mixed (or hybrid) theories
that contain both consequentialist and non-consequentialist elements. What distinguishes
these theories is their focus and goals: Consequentialist theories are forward-looking,
concerned with the future consequences of punishment; non-consequentialist theories are
backwardlooking, interested solely in past acts and mental states; and mixed theories are
both forward- and backward-looking, with each hybrid placing a different emphasis on
culpable past conduct versus future consequences.

The present paper will briefly examine the two dominant consequentialist and no
consequentialist theories of criminal punishment--utilitarianism and retributivism,
respectively and mainly the middle way between them i.e. Hybrid form of punishment.

Ibid.

3
Aims and objectives:

Present paper attempts to find a middle way between two seemingly opposing
justifications of punishment .

Scope and Limitations:

Scope of the present paper is to conceptualize and to analyze the utilitarian , retributive
and the Hybrid theories of punishment.

Research Questions:

• Can both the theories be reconciled ?

• Is Hybrid theory tenable in theory and practice ?

Chaptalization:

First chapter, as is evident by the title, aim to bring into light the utilitarian approach of
the punishment.
Second chapter has dealt with the retributive account of justification of punishment Third
chapter focuses on Hybrid theory of punishment that essentially try to reconcile both the
approaches.

Sources of Data:

Mainly secondary sources of data such as articles, books and electronic resources have
been used to answer the various research questions.

Ibid.

4
Utility of Punishment

Utilitarianism is mostly associated with the name of Jeremy Bentham. Although he was
not the first thinker to employ utility or the ‘greatest happiness’ principle as the standard
for right and wrong, he is nonetheless, widely regarded as the founder of modern
utilitarianism. Bentham presented his ethical theory of utilitarianism in his book, An
Introduction to the Principles of Morals and Legislation1, published in 1789.

This theory is viewed as a consequentialist theory where the actions are justified or
condemned by their tendency to have consequences that are pleasurable or painful. Its
ultimate foundation, thus, is the thesis that no actions are intrinsically right or wrong-it is
only their consequence with regard to the pain and the pleasure, which gives them the
moral status of being wrong or right.2
This view requires a moral obligation on the part every individual to promote the pleasure
of all who are affected by his or her acts equally. But the question arises: How can a
social order whose individual members are all egoists get those individuals to act
altruistically? Bentham's solution to this practical social problem is his theory of
sanctions whereby he proposes since individuals will perform antisocial acts whenever
their doing so will promote their own pleasure, such activity must be discouraged by
making its consequences painful to the agent.3
As far as the measurement of the punishment is concerned Bentham suggests that a
punishment must not be less severe than what is required to outweigh the benefit secured

1 Jeremy Bentham, An Introduction to the Principles of Morals and Legislations, (H.L.A.

Hart, et.al., eds., Clarendon Press: Oxford, 1996).
2 I Primotraz, “The Utility of punishment: Benatham”, in, G J Posternal (ed.), Bentahm :
Moral political And Legal Philisophy, (Ashgate publishing Co.: Burlington, 2002), Vol.
II, p. 331.
3 See, http://philosophy.fullcoll.edu/res/profiles/bentham.pdf, visited on 11th Nov. 2003.
Ibid.

5
by the offence. It is also suggested that punishment should not be more severe than what
is required to attain its purposes.4

Retributive Justice And Legitimacy .

The retributive view of punishment is normally taken to be non-consequentialist;

whereby, the appropriateness of punishment depends on the nature of the act that has
been committed, not on the consequences .

Contemporary retributivism traces its lineage to Kant, who discussed punishment briefly
in the course of laying out his theory of justice in the first half of The Metaphysics of
Morals.5 For Kant, just actions are a subset of moral actions, so that legitimate
punishment must satisfy the dictates of both morality and justice. 6 In opposition to
utilitarian approach that justifies punishment in terms of its beneficial consequences,
retributivism claims that punishment can be given solely on the basis of criminal guilt.
Kant believed that guilt is a sufficient condition for justifying punishment. His famous
passage is worth quoting:

Even if a civil society were to dissolve itself by common agreement of all its members
(for example, if the people inhabiting an island decided to separate and disperse
themselves around the world), the last murderer remaining in the prison must be
executed, so that every one will duly receive what his actions are worth and so that the
bloodguilt thereof will not be fixed on the people because they failed to insist on carrying
4 I Primotraz, “The Utility of punishment: Benatham”, in, G J Posternal (ed.), Bentahm :
Moral political And Legal Philisophy, (Ashgate publishing Co.: Burlington, 2002), Vol.
II, pp. 341-342.
5 See, G Binder, “Punishment Theory: Moral or Political?” 5 Buffalo Criminal Law
Review 321, available at, http://wings.buffalo.edu/law/bclc/bclrarticles/5(2)/Binder.pdf,
visited on 10th Nov. 2003.
6 See, Id.
Ibid.

6
out the punishment; for if they fail to do so, they may be regarded as accomplices in this
public violation of justice.”7

This theory clearly holds that criminal guilt deserves punishment and non-criminal people
have a moral duty to inflict the same.

This theory is based upon the concept of reciprocity . This implies that in order to enjoy
the benefits of a legal system, each man must make certain sacrifices, which is to obey
the law irrespective of personal liking. The Criticism of this theory is that retribution
makes good sense only in those communities where it consists of responsible individuals
of approximate equality. In the present human societies many people neither benefit nor
participate in the society due inbuilt disadvantages.8

One of the other characteristics of retributivism is that punishment must be imposed

systemically and equally on all similarly situated actors.

In the opinion of the researcher the approach of retribution, which is essentially a

backward looking approach, of treating violence with violence is not a humanistic
approach. Another criticism in the opinion of the researcher which is shared by various
academicians is that this theory calls for infliction of the punishment on the basis of the
harm inflicted which in all circumstances can not be said to be a right approach. This
view doesn’t take into consideration various factors behind commission of the crime.

7 Quoted from, J G Murphy, Retribution, Justice and Therapy – Essays in philosophy of

Law, (D Reidel Pub. Co.: Holland, 1979), p.82.
8 J G Murphy, Retribution, Justice and Therapy – Essays in philosophy of Law, (D
Reidel Pub. Co.: Holland, 1979), p. 79.
Ibid.

7
Reasons for delinquent behavior of a person maybe his disadvantaged position in the
society or parental influence or many other such factors.

Another criticism in the opinion of the researcher of this theory is that it might be in
contradistinction with utilitarian approach in some areas but it is not totally devoid of the
utilitarian philosophy as it pretends to be. It is submitted that the very notion of giving
criminals their due desert acts as means to maintain order in the society which is nothing
but promotion of pleasure of society as viewed by Bentham.

Finding A Middle Way

As is evident from last chapters that philosophy of punishment is marked by two

irreconcilable approaches. One looks at past to justify punishment and the other at future
to do the same. Bentham and Kant offer purified theories that rely only on the desirable
consequences of punishment or retribution for wrongdoing. The problem with each one is
the sufficient condition for punishment .

However there have been philosophers who believed that both the theories of punishment
apart from their inherent difficulties have an important contribution to make- that each
has grasped a part of truth about the moral basis of the punishment. They have held that
one should try for a synthesis, which would avoid the outright mistakes of both and
would incorporate important aspects contained in both the theories.9

9 I Primoratz, “The Middle Way in The Philosophy of Punishment”, in R Gavison (ed.),

Issues in Contemporary Legal Philosophy-The Influence of H L A Hart, (Clarendon
Press: Oxford, 1989), p.194.
Ibid.

8
Mixed theories differ from such eclectic approaches towards punishment. They do not
supply any essentially new insights concerning the general justification of punishment or
the aims at sentencing. Rather, they draw upon elements both from retributivist and
utilitarian approaches to form ‘hybrid’ accounts of punishment. In such hybrid accounts,
through the combination and integration of retributive and utilitarian principles, one type
of reasoning is moderated or limited by the other type of reasoning. This makes hybrid
accounts of punishment theoretical and practical alternatives for strict retributive or
utilitarian reasoning.

The shape of a hybrid account of punishment depends on the theoretical point of

departure.
Two general shapes are possible:
Utility (i.e., the common good) as the general justification for the practice. The negative
retributive principle is superimposed to limit punitive action aimed at prevention: Only
the guilty may be punished and only to the extent of their desert.

1. Retribution as the general justification for the practice. Retributive demands on

punishment are toned down by utilitarian considerations. Although retribution
provides the general justification for the practice, ‘justice’ no longer dictates
punishment to be meted out to the extent of the offender’s desert. Rather, utilitarian
considerations allow for punishing less than would be indicated by desert, and may
even allow for refraining from punishment altogether.

Ibid.

9
HYBRID THEORY OF PUNISHMENT

Rule-Utilitarianism

Rule- utilitarian theory of punishment attempts to bridge the gap between utilitarianism
and retributivism by providing a synthesis which is basically utilitarian, but makes room
for considerations of justice and desert as well. 10 The classic formulation of this theory is
presented by John Rawls whereby he makes distinction between the roles of legislator
and that of a judge.

“One can say, then, that the judge and legislator stand in different positions and look in
different directions: one to the past, the other to the future. The justification of what the
judge does, qua judge, sounds like the retributive view; the justification of what the
(ideal) legislator does, qua legislator, sounds like the utilitarian view. Thus both views
have a point (this is as it should be since intelligent and sensitive persons have been on
both sides of argument); and one’s initial confusion disappears once one sees that these
views apply to

persons holding different offices with different duties, and situated differently with
respect to the system of rules that make up the criminal law.”11

With regard to the punishment of the innocent, the rule-utilitarian’s argue that
punishment of the innocent can never be really socially useful, because once it becomes
public knowledge that an innocent has been punished, this will undermine the rule broken
10 , p.201.
11 Quoted from, S Freeman, (ed.), Collected Papers-John Rawls, (OUP: New Delhi,
1999), p.21. 12 I Primoratz, “The Middle Way in The Philosophy of Punishment”, in R
Gavison (ed.), Issues in Contemporary Legal Philosophy-The Influence of H L A Hart,
(Clarendon Press: Oxford, 1989), p.202. 13 , p.204.
Ibid.

10
and the harm caused by it will be far more than the benefit initially accrued. Another
possibility of argument is that the punishment of the innocent assumes that the judge has
the authority particular cases on utilitarian grounds but this possibility has already been
done away with by the very notion of rules.12

H L A Hart

Hart’s views on punishment are quite similar to rule-utilitarian. He says that a ‘morally
tolerable’ theory must exhibit a compromise between distinct and partly conflicting
principles. He suggests that the way to do it is to distinguish the question of ‘general
justifying aim’ and that of ‘distribution’. By ‘general justifying aim’ he means the
question of justification of the institution of punishment and by the question of
distribution he means: who gets punished and how much?13

In his opinion the question of general justifying aim cannot be answered by

retributivism . General justifying aim of the institution of punishment has to be general
deterrence, in his view. It is only at the time of distribution that the retributivism has to be
considered along with utilitarianism. He says that the question of liability has to answered
purely in retributive terms i.e. only those can be punished who have violated the law.

The amount of punishment is to be decided upon by the consideration of both. He also

advocates of some proportion between crime and punishment. He disregards
disproportionately harsh punishments not because they are uneconomical but just because
they are disproportionate.

He also includes considerations of mitigation in the punishment not because of any utility
but because justice requires considering those who faced difficulties in obeying the law
they have broken. 12

12 , pp.204-206.
Ibid.

11
Ibid.

12
Conclusion

If we scrutinize both the theories closely we find that both the theories require the legal
force to be democratically legitimate. Both require law to secure freedom for individual.
Yet both Bentham and Kant require these similar conditions for different reasons. Hybrid
theories come up with a basically utilitarian approach constrained by retributive
principles. For a brief period in the middle of the twentieth century, it was widely
believed that the problem of punishment had finally been solved. The purported solution
involved taking elements from both the utilitarian and the retributive theories and
creating a “mixed” or
hybrid theory. From utilitarianism came the idea that the ultimate goal of punishment was
to prevent crime; from retributivism came the idea that punishment must be in response
to a prior wrongdoing and be proportionate to that wrongdoing. Hence we could have the
best of both worlds; a rational explanation for punishment as well as moral constraints on
its use. It however soon became clear that this solution was untenable and even
incoherent. It requires arbitrarily separating the two theories without any rational basis;
retributivists will object to the idea that the purpose of punishment is utilitarian;
utilitarian will object to the arbitrary inclusion of constraints on the maximization of
utility.
The solution is utterly ad hoc and hence unacceptable .

13
Bibliography

Articles:

1. E Luna, “Punishment Theory, Holism, And The Procedural Conception of

Restorative Justice”, 2003 Utah Law Review 205.

2. G Binder, “Punishment Theory: Moral or Political?” 5 Buffalo Criminal

Law Review 321, available at,
http://wings.buffalo.edu/law/bclc/bclrarticles/5(2)/Binder.pdf, visited on 9th
March , 2020 .

3. I Primoratz, “The Middle Way in The Philosophy of Punishment”, in R

Gavison (ed.), Issues in Contemporary Legal Philosophy-The Influence of H
L A Hart, (Clarendon Press: Oxford, 1989), p.193.

Books:

1. J Feinberg, et.al., (ed.), Philosophy of Law, (Wadsworth Pub. Co.:

Stamford, 6th edition, 2000).

2. J G Murphy, Retribution, Justice and Therapy – Essays in philosophy of

Law, (D Reidel Pub. Co.: Holland, 1979).

Miscellaneous:

14
1. http://philosophy.fullcoll.edu/res/profiles/bentham.pdf, visited on 11th march
2020.

15