/ 1. NECESSITY OF PUNISHMZ'T Man, as wel all know, is gifted with a free. USAT whi i, which issues forth_in overt, actions whitch make what..we.call. tconduct’, All moral judgments, as we have dy seen, are passed on conduct which may be good or bad, according as’ it does or does not con- form to the objective rules of morality recognized by the'society. When our conduct is characterised as good, because it conforms to the objective rules of morality, it receives moral approval in the form of praise jon the contrary, when it is judged bad, | because it runs counter to the objective rules of morality, it gets moral disapproval in the form of blame. But it is not always the case that our will necessarily nanifests itself in good actions ; quite the contrary, it sometimes produces “wrong actions. If {hese wrong actions violate the sacred nature of moral principles, we are said to have committed a ‘sin|. If, on ; the other hand, our wrong actions affect the interests 6f the society, we are regarded _as_respansible for having perpetrated a “orime’, Telling a lie, for instance, isa sin upto a degree where it is not proved as a cognizable offence punishable by the state ; ‘but, when once it is so proved, it inevitably transforms itself into a crime liable to punishment because of its being “prejudicial to the recognized interests of the society. These are, therefore, crimes which are punishable by a law-court, and not sins which are commonly regarded as acts of violation of the divine: command- ments and, as such, pynishable by God. Punishment may be given for the following thred kiods of (a) Actions that are morally as well as politically wrong, such as murder, . 191 Scanned wiki pscamer\ 2 As \ (6) Actions which may involve good intention but bad conse- quences, such as an accident that takes place, even though the man at fault had no intention to do that. (c) Action which may be non-moral or even morally good, such as a national leader may direct his fellows not to co-operate with the foreign rulers of his country, by refu- sing to pay taxes and by courting arrests. Inthe eyes of the political Jaw, all these actions are crimes and, therefore, liable to punishment. Hence the necessity of punishment. : 2. JUSTIFICATION ron’ PUNISHMENT From what we have said'above, it is clear thal the inhiction of punishment.is 2 necessity, because the criminal has deliberately done the wrong action, because the wrong action .is his. But this view has been rejected by some critics on various grounds. The criminal anthropologists maintain that the criminal should not be punished, but given help to improve his degraded self. “The science of criminology is founded upon the theory that crime is a pathological phenomenon, a form of_insanity, an inherited or acquired degeneracy. It follows that the proper treatment of the Griminal is that which secks his cure, rather than his punishment. Prisons must be superseded by hospitals, asylums and reformato- It follows from this, therefore, that what we. call crimes violations of the moral laws, and, as such, the deserve punishment but reformative treatment. ties.”* are not deliberate criminal does not In almost the same way, the criminal sociologists hold that crimes are the, inevitable outcome of unjust and unfavourable social circumstances.. Murders, in their views, are caused because of lack of distribution of proper justice, thefts because of existence of poverty, lies because of fears of telling the truth, What is required, therefore, ‘is abolition of economic, social and moral evils from the society. If every member of the society, the crimi- “nal sociologists contend, is given proper education, proper nourish- ment, proper opportunities for the expression and development of his-personality, crimes will find “no quarters for existence. Again, there are some thinkers who hold that a criminal commits a crime because of the natural force that comes from ‘James Seth : Evhical Principles, P. 320. 4 ' rg Scanned with CamScannerTHEORIES OF PUNISHMENT Avs 4 innate dispositions ’ Or instincts which be cannot. resist. It follows, { herefore, that criminals are born, not produced by something, This line of Teasoning finds considerable support from the modern researches into Psycho-analysis, The criminal, therefore, accord- ¢ Ing to this way of thinking, is a patient and, as such, requires treat- ment and not the infliction of pain or punishment. Whatever may be the line of reasoning of sich thinkers, there ic is no denying the fact that the crithinal does all_that_he docs, _ Binet he_is_guilty, “with Tullawareness of his own self. He is liabl him is the re: ishment_because the wrong that his been_done_by. It of and because he did so Know- willed 5 ular Wrong action, altributed to him, has in fact, not been done by him out of his own free and normal “ will, no body can hold him responsible for having done that. The =: justification for inflicting punishment on an individual lies in this, that he has deliberately done that wrong, knowing the nature as well as the consequences thereof. 3. FORMS OF PUNISHMENT Three important theorics have been put forwagdato accdunt for the way in which punishment should be inflicted on a criminal ; these are known as (1) the_deterrent_ theory, (2) the_reformative_ theory! and (3) thetretributive theory. We shall now discuss them + one by one :— i (i) The Deterrent Theory. According to_this_theory, the aim of punishment should be to deter_others from committing similar offences in future. On this view, the punishment to be inflicted_on the criminal should be such as to make him an example for others, If such exemplary punishments are imposed on the criminals, it is quite possible, according to the advocates of this theory, that they will always check others from doing the same kind of wrong. ee : such, the punishment, on this view, should be more intensive than actually deserved by the offender. This spirit_of the_punishment :'*S—gmbodied in a famous dictum ofa judge : “You are not “punished for stealing sheep, but in order that sheep may not be stolen”, _On the strength of this line of reasoning, the nae justifies capital punishment as a desirable type of punishment cause of its healthier effet on the morale of the people of the society. ‘ Scanned with CamScanner‘ 1y4 PRINCIPLES OF BTHICS Criticism. One of the serious objections Ibvelled against this theory is that it_treats the criminal as_a means to the good of others. “This objection is' not wholly correct. It will be readily conceded that a deterrent type of punishment may have a healthier effect on the criminal than on others. [t cannot, therefore, be safely said that he is being used as a means to the good of others. Experience confirms that many people. continued to do the same Wrong over and over again because no deterrent punishment was inflicted, but when this was resorted to, they gave up their habits, and took to the desirable mode of Jife. The real weakuess sof the theory, however, scems to be its outlook on the * purpose which punishment is supposed to rerve, namely, to deter, others from committing similar offences in future. If this is so, as the theory holds, then it certainly degrades the personal worth of human beings. Theo no consideration will be paid as to whether the man punished’ is actually guilty or not, whether he deserves punishment or uot, The only criterion, then, will be ‘maximum punishment for every offence’ and the only purpose, accordiag to the theory, will be ‘prevention of others from committing similar offences in future.’ But this is not at all desirable from the point of morality which requires that in punishment the nature of offeace and the infliction of pain_should be clearly ascertained and both 3 should be balanced, as far as possible, After all, human beings; are not like rotton apples to be_thrown away on the slight defect, hut are “ends of a Kingdom” as Kant has rightly said. They should be treated in accordance with their worth and dignity. (ii) The Reformative Theory. According to this theory, the aim of punishment should be to reform the character of the offender. The_value_of punishment lies, o1 is view, in educating the offender so as to bring him to a normal plane. of his life, (This theory finds much favour with the educationists of the day, because it is in keeping with humanitarian sentiments of the present age. Unlike the deterrent theory, it is less ri Ws_ il seeks to restore the offender to his normal life, Moreover, recent findings of Psycho-analysis, Criminal Anthropology, Criminal Soci- ology etc,, support it in its aim. These scientific researches, as we have seen above, reveal that the_criminal has: done a_wrong_not u purpose, but because simply because lie wanted to there is something wrong with him ; he was abnormal beyond his - What we have todo, therefore, the advocates of the control, { ; Theory hold, is to remove this abnasmatity-from-his character. Scanned with CamScannerTHEORIES OF PUNISHMENT 195i Criticism. The contention of the upholdecs of this the doubtlessly carries considerable weight with it, but itmay, bov be pointed out that all offenders are not alike ; they are pot like a lot of bricks made of the same mould. There may, of course, be some offenders who may easily be restored te their normal life with some education or persuasion, but there may besome other offenders who may not be reiormed by such techniques 5 they sty not be made to see that evil of their wrong-doing because of ugit bad character formed in carlier life. In such cases a deterrent punishment rather than reformative punishment may easily’ make criminals give up their bad habits and bring them to their gormal behaviour. It is clear, therefore, that tlie reformative op of punishment sometimes fails to achieve its desired result, as éxperi- + ence tells us. Infliction of pain, it follows, is, therefore, not ruled F out even on this view. Most of the people misunderstand the aim 4 of this theory and assert that its aim should be to educate the offender without inflicting any pain on him; but this is hardly :- practicable. The Retributive Theory. According to thi aim the same of punishment is to inflict pain on the offender in muc! amount ashi Victim has suffered pain trom Wis (offender's) side. ‘This is what justice demands. It ts for this reason that this theory” justifies the law of ‘an_eye for_an eye anda tooth for_a tooth’. Reason demands that if an_oflender has wolsted's-ceraih—fo0' principle, or, bas committed a crime, and has thus lowered the supreme authority of the social law, he should be punished and the offended majesty of the law should be appeased. If the offender is not given his duc, the law feels mortified, because of a heavy stroke on its dignity, authority and supremacy. Qnly tlie punish- ment of the offender can restore it to its original position, B¢pause the crime is thé offender's own action, he, therefore, deserves punishment ; it is bis reward, his earning. Thus, punishme! tisia ! process whereby justice is done to a criminal for what Ho bas done ; it is retribution for a violation of the moral law. The|offe~ « nder should, therefore, have his own earning in the form of punish- _ ment. Mackenzie rightly says: “‘It_is his right, and he ought to get it. The society that punishes him is_not defrauding him of his due, but giving him what he deserves, what he has earned.'"¢ Criticism, This theory of punishment has been criticised by some on the ground that it is more rigorous or unsympathetic in Scanned with CamScanner* 196 PRINCIPLES OF BTHICS hat even i iri should actually be. It is argued ead ea thus, offended the supreme i g and has, jfa man has done a wrong and Nas, : suprer ivorth of a moral law, @ lenient view should be taken of his none ‘and attention should be paid to his reformation rather than to inf: cting pain on him. An offender, it is stressed, who could be brought to a normal mode of behaviour by education a pera on, may develop an undesirable tendency to gpntinue to do ae 4 since he loses all sense of shame, honour or ovtn of fear, The / theory, they point out, is based on the demnable spirit 6f revenge 5 and the result may be an emergence of the corresponding spicit of i revenge from the side of the offender ; revenge may beget revenge, There is some truth in this argument. “4. A SATISFACTORY THEORY ‘Though all the three theories of punishment, which we have considered above, contain some clements of truth in them, yet none of these appears -to be satisfactory in all respects. A good form of. punishmentwould, in fact, involve all the three facts found in all the three theories individually, viz., (i) that punish- ment should make the offender suffer what the victim has suffered, (if) that it should aim at reforming the character of the offender, and (iff) that it should deter athers from committing similar offences in future, Infact, a synthesis_of.all_these three _facts would constitute an ideal theory of punishment. But retributive theory, on the whole, “may appear to be_the correct one under present circums s, Since.it seeks to embody the truth contained ta foe otter two theories. _ “If the aim of punishment is to vindi- cate the authority of the law, this will be partly done in so far as the offender is reformed, and in so far as similar acts are pre- vented. And indeed neither reformation nor prevention is likely to be affected by punishment unless it is recognised’ that the punishment is a vindication of the law.”* Punishment makes the offender realize the sacred nature of the law. as well as the justi- fication for his being punished. This sense of realization of wrong-doing is necessary for every offender, since, if he can once know in earnest that a law always demands obedience irrespective of any inclination to the contrary, he can never be tempted to do wrong. Punishment brings this realization to the offender as well as to others who learn a lesson of obedience to the moral law. It is on these counts, therefore, that the retributive theory of punish- eo *Mackenzie : Manual of Fthies, P. 376, anid etliin: Scanned with CamScannera : 1 inf to forgive is divine. ‘ i ries of ment is regarded as the most satisfactory of all the theo: punishment. i ov 5, PUNISHMENT AND FORGIVENESS Sometimes _a_question is asked_as to whether unishment and forgiveness can both play a useful part in reforming the character.of the offender, and also whether forgiveness is sometimes better than , punishment, We must consider these two aspects of the question here. There is no denying the fact that both punishment and forgive- ness play a useful part in reforming the offender in different circum- stances. A man who has committed an offence for the first time may easily Se reformed by forgiveness rather than by punishment. Where punishment fails to achieve its object, lorgiveness succeeds in‘achieving it Experience bears testimony to this fact. But this is not always the case. There may be some offenders who, if for- given once, may commit the same, type of offence for the second time. Under such circumstances punishment, not forgiveness, is “calléd for. It depends upon circumstances, therefore to see whe- ther punishment or forgiveness will succeed. Fergivenesa istincx- , }Pficable on the deterrent _and retributi unishment : "out it has i n fact, It is well known that to err is human and It ts clear, therefore, that the value of both punishment and, forgiveness ia reforming a particular offender depends _upon the circumstances, and as such, both have equal chances of success. Forgiveness, therefore, cannot be totally ruled out as a Process of réformation of the character of the offender. But he should be made to see the evil of his wrong-doing. If he once can know th nature of the wrong, there remains very little Possibility of hi- repeating the similar offences in future, Socrates Tightly saic _ knowledge is virtue’. Ignorance, and consequently wrong-d _ ‘ exists in us so long as_we do nat acquire knowledge of the naa of a thing or things? nature. 6. CAPITAL PUNISHMENT ' Perhaps no other topic has bee: n the subject 5 : troversy and discussion as that of cat fe oral ofl eon ‘ capital i 2 ; some thinkers of enlightened conse Free wpe shment. There are t science who vehemently d i the existence and continui i i ee ty of this form of punishment ; on tn2 iF Scanned with CamScannerhy ' , ' other hand, there are others who are deadly set against the aboli- tion of this puoishment and defend on various grounds its conti-. nuity in future, In this connection we should famine the cases of r both sides. (a) Case for the continuity of capital punishment + The following are some of the arguments advanced in favour of the continuity of capital punishment :— “ \ i) Every individual bas a right to live ; thi right and every one wants it. Now, if a man murders another man, he obviously ‘deprives him of his right .to. live. Tbe reco- gnized fact is that nobody should deprive others of their rights without (aking risk of losing his own right or rights. Justice, therefore, demands that he should meet the same fate as his vic- tim. Capital punishment, therefore, cannot be abolished so long as buman beings are of the same material as they have. isa universal A rebellion-against a state requires capital” LA state, like'an individual, has its own existence and anyone who does not recognize this right is certainly guilty. Capital punish- ment, therefore, is the only means of kee ing the state safe from such rebellions, elie ds ov . a i) Capital punishment has a deterrent effect on the people who might be disposed towards evil deeds. Gy Capital punishment is better than any gther form of punish- ment so far as the interests of the offender as well as those of the society are concerned. Life-imprisonment, for cxample, brings lasting pain and misery to the offender and more cxpenses tothe state. Capital punishment, therefore, is a better way to deal witb serious offences like murder. gy Bren if we Be sh adn es 7 Even if a murderer is sentenced, say, to about twenty years,7', and he is released from the jail on the expiry of his term, he can- not be expected to improve. or reform himself. He hates the fon Sty i society and socicty hates him. Association with._bad characters in the jail develops | demoralizing tendencies in him. He is not free from the potentialities of danger. The best way, therefore, is to do away with him. - (6) Case against the continuity of capital punishment :— The following arguments are often put farward for the abolition of capital punishment :— ‘ Sai, Scanned with CamScannerlg9 : fate Af ax thi . (i) It is no use resorting to capital punishment once Pee bas been committed. “There a the offen- der's_beii There are occasions in the life of almost every individual when he docs, almost blindly, an act with grave consequences which he repents afterwards, Such offenders can easily be reformed. Therefore, capital punishment is not always. the correct method. ry re (ii) It has been shown by long experience that inspite of the existence of capital punishment in the past, there has been no decrease in offences ; sometimes crimes excecd to an abnormal extent, It is clear, then, that capital punishment cannot serve all those purposes for which it is often defended by the opposing camp-__ wot hg 1 (iii) The infliction of this type of punishment is baséd on the conviction that the criminal is actually guilty of tbe offence ; but, if an error is later on detected, it is quite impossible to ractify it. It was no fault of the individual who fell a victim to this form of punishment at the hands of the state. On this ground, there . fore, capital punishment is an evil and must needs be abglished. (iv) Capital punishment, it is pointed ou i Lei oF barbarism. New researches in the field of human nature. reveal... that most of the actions of the individual are determined by » circumstances beyond the conscious control of his owg will. Lu view of this, therefore, capital punishment is not justified. The advocates of reformative theory of punishment have always put forward a spirited defence of this poisition, 4 (c) Conclusion :— . From (a) and (6), we learn a good deal for and against the continuity of capital punishment, But which, we may ask, of the cither is the correct position ? In reply to this question, we may state that it is not quite safe to say ‘yes’ for one and ‘no’ for the other. A considerable volume of opinion is decidedly in favour of the abolition of capital punish- ment, We are tending to realize our duties and obligations towards the rights an utics ola! he process of! civilization accelerates itself ndon, In 1764 A, D, as many as 160 crimes were liabel to be punishable with capital, punishment. An amend- ment act was passed in 1770 A.D, whereby the number of such crimes was reduced to 37 only within a short period |of 5 years. r f : i Scanned with CamScanner\ Afterwards only four such crimes were left over, and now only two crimes—rebellion against the state and attempt to deprive one 7 of one’s right to live—have been recognized as punishable with - capital punishment. It shows that capital punishment is not to’ be imposed on even a slight offence, but on one which is most serious in consequences. For guch ae offences as rebellion against the state or attempt to take hw y aN other’s life, capital punishment, dll will agree, isa necessity. The foré-sight af the consequences of such grave offences does not rule Out the use of this type of punishment, Scanned with CamScanner