Criminology

Penology and Sentencing

Origin and Evolution of Punishment
Component I (A)- Personal Details

Role Name Affiliation

Principal Investigator Prof(Dr) G.S.Bajpai Registrar, National Law
University, Delhi
Paper Coordinator Mr. Neeraj Tiwari Assistant Professor,
National Law University,
Delhi
Content Writer Dr. Upma Gautam Assistant Professor, GGS IP
University, Delhi
Content Reviewer Prof. BB Pande Former Professor, Faculty
of Law, Delhi University

Component I (B)- Description of Module

Subject Name Criminology

Paper Name Penology and Sentencing
Module Name Origin and evolution of punishments

Module Id Criminology/Penology & Sentencing/02

Objectives Learning Outcome:

1. To give an understanding to learners as to how

the concept of ‘punishment’ and ‘punishing’ the
wrongdoers originated in the society.

2. To trace the roots of various forms of

punishments and their importance and existence
at relevant times.

3. To make the learners understand the chronology

of the evolution of the forms of punishments in
different societies.

4. To make the learners appreciate the factors that

 led to change in the forms and modes of
punishments inflicted in different times.

Prerequisites The Definition of crime and criminals as formulated in

various societies at different point of time. In addition to
this, a basic understanding about the various schools of
the crime causation will give a better understanding as to
how the perception and treatment of crime and criminal
changed with changing times.

Keywords Sanction, Punishment, penalty, deterrence, retribution,

justice
Backdrop:

The methodical study of crime and criminality is comparatively current, but inflicting
punishment to instill discipline amongst the members of the society, has always been a
distinguishing feature of the mankind. Animals though expressly don’t impose punishments,
but, they also retaliate towards the harm done to them in order to protect themselves. Whereas, if
we look upon the historical evidences regarding infliction of punishments, humans do inflict
punishments in various forms for various purposes, making the wrongdoer accountable for
defying the norms of the society. Punishment has always been a consequence of the deviant
behavior, but the manner in which such punishment is to be administered keeps varying with the
changing times.

In primitive times the punishment used to be of a severe nature, as the prime focus of such
infliction of punishment was to either cause deterrence amongst the like minded individual or to
wash off the sins of such wrong-doer. But with the progression of the civilization the
punishments started to be become more rationalized and the focal point of the punishments
changed. Punishments, so given were more humane and uniform as the aim of the punishment in
contemporary time was rehabilitation, restoration and not merely retribution, deterrence and
incapacitation. More recently, with the emergence of human rights, infliction of milder
punishments, wherever applicable, are insisted.

Thus, aims, objectives, upshots of punishments, notwithstanding the philosophy underlying, have
varied from time to time. The present module aims to draw a chronology of the origin and
evolution of punishments right from the primitive and the medieval period till modern times.
This module will not only give the idea about the various punishments, but will also give an
insight as to how the form and format of infliction of punishments have undergone a sea change.

1.0. Introduction:

“As one reads history…one is absolutely sickened not by the crimes the wicked
have committed, but by the punishments the good have inflicted”.
-Oscar Wilde, “ The Soul of Man under Socialism,” 1891
Punishment, at its core, is the conscious infliction of pain in retort to the wrong done by the
offender. Punishment as an institution is so deep rooted in the history of civilization that it is
difficult to trace its origin or even to imagine a society without it. It seems to be so innate and
unavoidable in every society. Evil for evil is clearly a well established idea in the earliest
civilizations. But this notion that harming the offender is good in itself is the oldest idea
associated with punishment. If this had been thought to be the only keystone of the institution, it
might have been eliminated by Christians, who thought that vengeance was best left to God, or in
the early twentieth century, when the majority of the philosophers were in favor of the retribution
as the justification of punishment to be barbaric and useless. If instead punishment had been time
and again seen simply as a deplorable necessity to advance the good of society, it would have
had difficulty surviving the late twentieth century acknowledgment both of practical imprecision
of deterrent and rehabilitative goals and of the disputed morality of using individuals to promote
social ends. Further, the thought that the infliction of punishment benefits the offender is yet
again a myth, because the harsh reality is, it actually does the opposite. This reality would have
strained itself on our considerations and would have resulted in the abolition of this institution of
punishment. But, instead as following generations have inherited the institution of punishment,
they have found either new reasons and rationales or revived the older ones for continuing it.

As to the question that what resulted in the origin of the punishments, the answer seems to lie in
the notion of ‘justice’. Although it is more significant in some early civilizations than in others,
the notion of justice as met up by punishment seems to be as old as civilization itself. Likewise,
despite the fact that the advancement of civilization is also coupled both with the questioning of
how and whether is so served and with a wisdom that there must be limits on the extent of
punishment.

The history of punishment, just like the history of war universally , go along with the human
condition, taking pleasure in exaltation in many instances, being regularly considered as
warranted in many occurrences, and yet to run counter to our definitive visualization of what
human society should be.
Learning outcome:

This module will enable the learners to understand how the concept of ‘punishment’ and
‘punishing’ the wrongdoers originated in the society. The learners will be able to trace the roots
of various forms of punishments and their importance and existence at relevant times. It will
also make the learners understand the chronology of the evolution of the forms of punishments in
different societies. Also learners will be able to appreciate the factors that led to change in the
forms and modes of punishments inflicted in different times through this module.

2.0. Punishment: The Concept

The origin and evolution of punishment are interlinked with the evolution of society for the
simple reason that the notion of ‘crime’ and ‘criminal’ are related to social norms at a given
point of time. But before going into the history of punishments, it is necessary to understand that
how the very concept of ‘punishment’ is defined by different philosophers, because yet again the
concept is associated with the form and mode of its infliction.

Interestingly the debate about the objectives that the punishment is to achieve, is unending. More
and more refined adaptations of retributive and rehabilitative theories have come up in recent
times, whereas the deterrence as the justification of the punishment is rarely continuing.
Surprisingly, if look into research conducted on punishments it becomes evident that the
discussion regarding the why punishment should be given finds prominence instead of what
punishment is. The possible reason for this trend could be that the justification of anything given,
and in this case it is punishment, presumes and assumes the concept that is being justified.
Amongst various scholarly discussions, the modern discussion about punishment majorly
revolves around the work of H.L.. Hart in his well known essay tiled as “Prolegomenon to the
principles of punishment”1. Though the work is majorly dedicated to unraveling the concerns
regarding the justification of punishments , but Hart in his work strikes the right note by giving
the definition of punishment. According to him, there are five integral of the concept of
punishment, Firstly, the consequences, which are unpleasant and engross the infliction of pain
1
Hart,H.L.A., ‘Punishment and responsibility: Essays in the Philosophy of law’, Oxford: Oxford University Press,
2008.
thereby; Secondly, such pain should be inflicted for the defiance of legal legal norms, Thirdly,
pain should be inflicted on the offender who has committed or ‘supposed’ to have committed an
offence, Thirdly, infliction of pain in the form of punishment should be intentional; and Fifthly,
such punishment should be inflicted by the legally constituted authority by the state against
whom such offence is being committed.

The concept of punishment as explained, was criticized on various accounts. Firstly, in the
concept of punishment given by him the informal forms of punishments such as given in school,
workplace, by parents, is inconsequential, which, according to some philosophers are to be
considered as valid instances of punishment2. Secondly, Hart was criticized in for conceiving the
idea in his definition of punishment that even a ‘supposed’ i.e. innocent can be punished. This
notion was denied by the early philosophers.Thirdly,Feinberg while criticizing Hart emphasizes
that the definition given by Hart does not distinguish between the ‘penalties’ and

2
Wasserstorm, Richard, ‘Punishment’, in Wasserstrom,R.A.(Ed.) , ‘Philosophy and social issues: Five Studies,
Notre Dame : University of Notre Dame Press, 1980, pp. 111-51; earlier this was pointed out by, Samek,
Robert.A.”Punishment : A postscript to two Prolegomena”, Philosophy, Vol.41, No.157(Jul.,1966),pp.216-232.
‘punishment’3.Thirdly,Richard Wasserstrom, unlike Feinberg criticized the concept of Hart on
account that the definition given by Hart does not distinguish between the criminal sanctions and
impositions made in civil proceedings. According to him, not all violations of legal rules can be
termed as “offence”.

Wasserstrom, defined punishment as:

“The imposition of a deprivation is not, given our moral ideas, an instance of punishment
unless:
1) the deprivation is imposed because it is a deprivation;
2) there is a belief that the person upon whom the deprivation is imposed is guilty of
wrongdoing (whatever the conditions of guilt or wrongdoing may be believed to be);
and
3) the person upon whom the deprivation is being imposed is to understand that the
deprivation is being imposed because (1) and (2) are present”4.
He concludes his discussion on the note that-“an aspect of the retributivist point of view is built
into the concept of punishment itself, namely, the primacy of the backward; looking
characteristic of wrongdoing”5.

3.0. Punishment: Its origin and history of evolution:

Punishment in its primitive forms was not distinct from warfare. Both, started from the
impulse to hit back those who supposedly were interfering and harming the one’s interest. It
can be from simple reaction of resentment or from an aspiration of shielding one own self.In
a number of early societies, blood feuds, in which family of the distressed person imposed
corresponding or bigger harm on the wrongdoer and his family. It’s very hard to point out
that whether such acts of infliction of harm are to be described as punishment or as a warfare.

3
Harcourt, Bernard.E. , “Joel Feinber on crime and punishment: Exploring the relationship between the moral
limits of the criminal law and the expressive function of punishment”, Buffalo Criminal Law Review, Vol.5,
No.1(April 2001), pp. 145-172.
4
Wasserstorm, Richard, op.cit, at p. 120.
5
Ibid,at p.121.
 Later societies found a basis to ponder upon the justification and boundaries of the pain to
enemies, on both the individual and the social scale.

3.1. Punishment in primitive times: The beginning

Justice is depicted as sheer vengeance in the Iliad (c. 800 B.C.), when Menelaus is urged
upon by Agamemnon, not to take pity on his his captives of the Trojan war. Personal
responsibility or proportional validity with the original offence does not set the limits to
justice. The very fact that the person on whom the vengeance is taken out, is on the side of
the enemy is a reason enough for the unlimited harm to be caused to him. Agamemnon, does
not restrict his vengeance as the wrongdoings of the Trojans validates their extermination.

Antagonistically, in the fifth century, when Aeschylus retold the story of Agamemnon in The
Oresteia,the Furies, sought the death of Orestes for murdering his mother, he was a
representative of the old demand for vengeance. Orestes was persuaded by Apollo the follow
the demands of ‘honor’ and kill the Furies’ mother to avenge her murdering Agamemnon (his
father). Eventually the Furies were calmed down and influenced to let Orestes live. This act
of influencing Furies by means of following a process whereby Orestes was judged by the
citizens of Athens, is representative of the amalgamation of vengeful emotions into the
societal goals of justice. Aeschylus represents vengeance as tragic rather than a glorification.
Furies were made to understand the significance of mitigating factors and were persuaded to
bow down to the judgement of the society.

In The Oresteia, the Furies point out to the necessity of punishing the wrongdoers, with the
aim that the innocent can live freely and without fear. This explains the value of deterrence.

These narratives point out the understanding that inflicting harm in response to wrongdoing
is an expression of vengeance. Also, it is followed by the suggestion that there should always
be limits set to this vengeance. Harming the wrongdoer with required justification was also
reasoned out. The idea that punishment harms the wrongdoer was rejected in the first
philosophical defense of punishment. Plato took a pioneering position when he suggested
that the just man should harm nobody. This raised a pertinent issue that how punishment is to
be justified. The solution to this problem as suggested by Plato was that punishment is not a
harm, but a good for the person suffering it. Plato explained his position: the good of the soul
is more important than the good of the body. The fact the crime is committed indicates to the
existence of a disorder in the soul, and when the ‘just’ punishment is inflicted it provides
justice to the soul. Plato further argues that the most wretched of men is He who does wrong
and is not punished. Thus, punishment was for the sake of the wrongdoer.

Precursors to the ideas of punishment as vengeance, deterrence and as a benefit to the

offender, can be found even in earlier texts. The Egyptian concept of ma’at, and the Hebrew
concept of blood guilt suggest a broken cosmic order and that can be restored through
punishment. There are clear references of punishment as a deterrent, and as instructive for the
offender in the literature of ancient Egypt. Recognition of the value of restricting punishment
had been already present in both the civilizations. Both the Egyptians and the Hebrews did
not consider themselves as those restricting vengeance. Harm was inflicted on the offenders
as part of a long effort to maintain a cosmic balance and to prevent the start of chaos. The
annual flooding of the Nile played an important role in shaping the Egyptians’ understanding
of the World. Every year the river was flooded bringing with it rich alluvial soil over the
river banks. This process made sure that the crops would grow and life would continue for
another year. People living on the river banks always wished for for this orderly sequence of
life to continue. They always dreaded that something untoward would disrupt this sequence
and throw Egypt into a chaos, which existed before the coming of the order. They believed
that this order could be preserved only when people live their lives according to the
principles of ma’at,or justice.

There are numerous illustrations in the Egyptian Coffin Texts, dating back to 2800-2000 B.C.
depict the heart of the dead man being weighed against a feather(representing ma’at, the
goddess of justice). Any act against Ma’at, like being overly talkative to murder and
blasphemy would make the heart heavy. The monster Ammut would take the heavy heart, but
if the heart remains light, the dead man gets a pleasant afterlife. If one fails to live a good life
there was a loss of the afterlife. Therefore, the Egyptians of this time period believed that
punishment was a natural response to the wrongdoings. They saw punishment as rebuilding
the cosmic order that has been disrupted.

There was an ancient Hebrew belief of ‘blood guilt’, which resulted in homicide and could be
explained by shedding of the blood of the offender. The Hebrews believed that animal
sacrifices could be a repentance for smaller offences, but for offences like murder, only
human blood could be a suitable repentance. Both Egyptians and Hebrews, believed that the
sacrifice of the offender would restore balance and protect the people from chaos.

“An eye for an eye, and evil for an evil” was the well established idea in the earliest
civilizations. As described above, there are always desiring for limits of vengeance.Such
desires may have provided the basis for the provisions of the Code of Hammurabi in 1800
B.C. Hammurabi, the sixth king of Babylon created the most famous set of written laws of
the ancient world, which were preserved on Basalt rock columns. Though ,the code
established a system of crime and punishment based on physical retaliation, but interestingly
the severity of punishment in this code depended on class standing. If convicted of an
unprovoked assault is a slave, then he would be killed whereas, a free man might loose a
limb only for the similar act.

More familiar is the Mosaic code of the Israelities (1200 B.C.). According to tradition, God
entered into a covenant or contract with the tribes of Israel in which they agreed to obey his
law as presented to them by Moses, in return for God’s special care and protection. This law
consisted of 613 laws of the Old Testament, including the 10 Commandments.

3.1.1. Crime and punishment in Ancient Rome

The Roman Empire included most of the countries that surround Italy and had sea borders
with the Mediterranean. It extended up to the area of the British Isles. Rome faced a peculiar
problem of managing law and order in two different types of area- the provinces part of the
Empire other than Rome, and the city of Rome. The problems and the crime profiles in these
two areas were very different from each other.

Common crimes which were prevalent in the city of Rome were- Robbery and mugging,
running away of slaves, fraud, burglary and theft, rioting, arson and murder. Causes of
crimes in Rome were different in city of Rome and in the Empire area. In the city of Rome,
lots of people lived in a small area, rich and poor lived near each other, and policing was not
very effective. In the Empire area, the population was very large to manage effectively, also,
there were different local customs which made maintaining of balance difficult.

In Rome the laws were made very clear. They were written and were made public on what
was called, “The Twelve Tables”. These tables included twelve category of rules about what
a Roman could or could not do legally. They were displayed in public places. Ignorance was
no defence. Magistrates heard the cases. All were treated as innocents until proven guilty.
The right to appeal to the Emperor was provided to the citizens. In the Empire area, serious
cases were heard by the Governor and minor cases were heard by the Magistrates.

There was no organized police force in Ancient Rome; it was undertaken by the Army. Thus,
it was very difficult to prevent crime. In order to control crime, Roman leaders undertook
two strict measures: firstly, they introduced increasingly harsh punishments to deter people
from committing the crime, and,secondly, they used soldiers and volunteers to prevent the
crime from happening.
Different punishments were used for different groups of people and gradational punishment
were used depending on the severity of crime committed.
Roman Empire: Different punishments for different classes of people

3.2. Punishment in the Middle Ages:

Long time back, there were concerns shown for the harm caused on offenders by
punishment. The wrongdoer was not simply an enemy to be harmed, but a person whose
interest must be taken care of. These early issues and concerns in the history of punishment
theory paved way for subsequent refinements and variations of these views.

In the middle ages the pre-dominating thinking was that every conceivable evil in the world
(crop failure to the black death), was a consequence of the sinful nature of man. It was
believed that, and could never be chaste or humble enough to satisfy God. It was this
powerful belief which led people to expose themselves to extreme suffering to appease God.
 Certain examples of such sufferings were, hair shirts of penitence, iron tipped whips of the
flagellants.

In the early medieval period, the human thinking was primarily influenced and controlled by
religious mysticism and as a consequence, human relations in the society were predominantly
governed by such myths and religious beliefs. During the middle ages (1200 – 1600),
superstition and fear of satanic possession dominated thinking and therefore, people who
violated social norms or religious practices were believed to be witches or possessed by
demons. The prescribed method for dealing with such wrong doers was inflicting them with
punishment of burning at the stake. This practice survived into the seventeenth century.6
Cruel tortures to extract confessions, severe punishments, including whipping, maiming,
branding and public executions were common practices during this period. In addition to
this, the absence of codified rules governing criminal justice administration resulted in
punishments which were quite unpredictable, arbitrary and often irrational.

Punishment was imposed on those persons whose acts were morally condemnable. Imposing
punishment was regarded as a suitable measure to inculcate the feeling of repentance to save
their everlasting souls. In this era, neither ethical debauchery as a cause of crime was
encouraged, nor efficiency of cruelty as a path to ethical improvement was accepted.
Measures of public infliction of pain and disgrace were the norm of the day as it was
believed that death was an insufficient punishment for certain types of crimes.

Though ancient formal legal codes were lost during the Dark Ages, early German and Anglo-
Saxon societies developed legal systems featuring monetary compensation for criminal
violations. Guilt was determined by two methods. One was compurgation, in which the
accused person swore on oath of innocence with the backing of 12 to 25 oath helpers, who

6
Between 1581 and 1590, Nicholas Remy, Head of the Inquisition in the French Province of Lorraine, ordered 900
Sorcerers and witches burned to death; likewise, Peter Binsfield, the Bishop of the German City of Trier, ordered
6,500 people to death. An estimated 100,000 people were prosecuted throughout Europe for Witchcraft during the
16th and 17th Centuries. It was also believed that some families produced offsprings who were unsound or unstable
and that social mis-fits were inherently damaged by reason of their “inferior blood”; See,Eugen Weber, A Modern
History of Europe, NewYork: Norton, 1971p. 398.
 would attest to his or her character and claims of innocence. The second was the trial by
ordeal, which was based on the principle that the divine forces would not allow an innocent
person to be harmed. It involved, such measures as having the accused place his or her hand
in boiling water or hold a hot iron. If the wound healed, he was deemed to be innocent and if
not, then was taken as guilty.Another version of the ordeal was trial by combat, which
allowed the accused to challenge his accuser to a duel, with the outcome determining the
legitimacy of the accusation. Punishments included public flogging, branding, beheading and
burning.

3.3. Punishment in modern times: A new thinking for punishments

This was the time when there was eminent fear of the breakdown of society due to rising
modernism, intellectualism, individuality and the fear about the mob, the ragged poverty stricken
mass of humanity. Society was facing contrasting emotions of ‘hope’ and ‘fear’ which resulted
in explorations of alternative thinking about the human future. There was a ‘fear’ that God was
slowly dying and the absence of God, there will only be the mass of individuals and their
capacities like, reason, experience and human ability to interact with nature.

The thinkers of the enlightenment era categorically rejected retribution as the basis of
punishment. They sought to seek answers to the justifiability of punishment for purposes other
than retribution. Hobbs while questioning the right or authority of punishing stated that by nature
everyone has the right to kill or hurt others for his own sustenance. He further elaborated that by
bonding a social contract the citizens relinquish their own right to punish, and let the sovereign
alone exercise that right. But, Hobbs also set limits to the sovereign’s right to punish, although
nature does not set any such limit. According to him, the purpose of punishment is not revenge,
but fear which will increase the probability of the delinquents obeying the law.

In consonance with Hobbs, Locke giving a pivotal position to ‘Social Contract’, also entrust the
sovereign with the exclusive right to punish. ‘Reparation and Restraint’ should be the purposes
of punishment. The degree and severity of punishment should be such that it will be just
sufficient to make it a ‘poor bargain’ for the offender. It should give him a reason to repent and it
should further cause deterrence for the like minded.
Cesare Beccaria (1738-1794), applied the same principles of criminal behavior, and blended
individual right and utilitarian reasoning in his famous book”On Crimes and Punishment”. He
concluded that punishments must be limited to those that serve the useful social end. He believed
that people want to achieve pleasure and avoid pain. Thus, in his view harsh punishments and
routine use of torture were inappropriate and excessive. The pleasure obtained from crime has to
be nullified by administering a fair balanced and proportionate punishment.

All these writers concluded that random or excessive punishment cannot promote social good.
An ideal punishment was the one that resulted in incurring the maximum social benefit with
causing the least cost to the offender. Each of these writers summarily rejected the idea that
harming the offender is beneficial in itself. Any punishment which did not provide a favorable
balance of benefit over cost was invalidated.

During the Eighteenth Century, social philosophers like Jeramy Bentham further elaborated this
line of reasoning regarding punishment. He believed that all punishments in themselves are evil.
Based on the principles of utility, punishment should be inflicted if they promise to exclude some
greater evil. He proposed to eliminate those punishments that were prescribed simply to harm the
offender. Bentham proposed a ‘Hedonic calculus’- a method of measuring total pain and pleasure
produced by an act which could then be used to determine the minimum deterrent needed to
prevent a crime. He also designed the ‘Pentopticon’ which was a circular cell block a around a
central observation tower. First such ‘Pentopticon’ was built in London in 1842.

The pathetic conditions in the British prisons during the late eighteenth and early nineteenth
century spurred John Howard’s 1777 report on the prisons of England. This report was an effort
to bring rationality to prison practice so that it is directed more effectively to the goals of reform
and deterrence.Following Howard’s agitation, the Penitentiary Act, was passed in 1779. This
introduced solitary confinements, religious instructions and a labour regime. It proposed two
state penitentiaries, one for men and one for women. Most of these provisions were never built.

Before 1800 in the United States punishment involved public beating and humiliation. After
independence, a new set of criminal law reforms resulted in large scale replacement of capital
punishment with long prison terms. But the new prisons were as pathetic as the ones in Britain.
The idea that democracy and legal reform would eliminate crime were soon found to be
unrealistic. By 1850’s, the efficiency of reforms was thus doubted, though there were still hope
for the deterrent effect of punishment.

In Europe retributivism found a new lease of life in the works of Kant and Hegel. Kant
categorically rejected serving of social ends as a justification of punishment. His powerful
conception was that persons are equal rational beings and their autonomy must be respected.
Kant puts his argument about justice of punishment in the social contract. He argues that we
punish the offenders against his will, but he has consented to the punishment because he has
consented to the laws. Kant believed that personal autonomy is attained only when one is ruled
by ‘reason’, and the desires are external influences that prevent a person from acting according to
rationality. A Person who is able to ignore these influences is able to act as a ‘rational’ man.
Retribution again became a significant strand of justification of punishment. In contrast, in 1813,
Robert Owen argued that bad moral character was formed by circumstances not by the offender
but by the society. Thus to punish the thieves that the society had manufactured was wrong.
John Stuart Mill in 1867, also questioned retributivism in the strongest terms.

3.4. Punishment in Contemporary times:

In contemporary times, crimes were defined by the Legislature, which reflected social conditions
and therefore, were also known as Statutory Crimes. Before the American Revolution, then
under British rule, were subject to the Common Law. After the colonies acquired their
independence, State Legislatures standardized common law crimes such as murder, burglary,
arson and rape by putting them into Statutory form in criminal codes. Likewise, in England,
whenever Common Law proved inadequate to deal with changing moral and social issues, the
States and Congress supplemented it with Legislative Statutes, thereby creating new elements in
the various State and federal legal codes.

Criminal laws are now divided into Felonies and misdemeanors. The distinction is based on the
seriousness. A Felony is a serious offence whereas a misdemeanor is a minor or petty crime. A
Crime such as murder, rape and burglary are felonies and are punished with long prison
sentences or even death. A Crime such as unarmed assault and battery, petty larceny are
punished with a fine or a period of incarceration in a a country jail.

Regardless of the classification, acts prohibited by the criminal law constitute behaviours
considered unacceptable and impermissible by those in power. People who engage in these acts
were eligible for serious sentences, sanctions and by outlawing these behaviours, the government
expects to achieve a number of social goals such as, firstly, enforce social control; secondly,
discourage revenge by punishing people who infringe on the rights , property, and freedom of
others, the law shifts the burden of revenge from the individual to the State; thirdly, express
public opinion and morality; fourthly, deter criminal behaviour so as to control, restrain and
direct human behavior through its sanctioning power. The threat of punishment associated with
violating the law is designed to prevent the crimes before they occur; fifthly, punish wrongdoing
whereby the deterrent power of the criminal law is tied to the authority it gives to the State to
sanction or punish offenders. Those who violate criminal law are subject to physical coercion
and punishment; and lastly, to maintain social order.

In contemporary times, most of the criminologists believed that given the already greater weight
of social burdens borne by the typical criminal offender –poverty, sub-standard schooling,
inadequate medical care, etc. the idea that he must be punished to ‘restore the balance’ or to ‘pay
his debt to society’ seems to be ironical. Thus, now each of the above said main threads of the
justification of the punishment has its followers and each its worst opponent. Contemporary
question of justification of punishment is deliberated upon as one of which of them is correct
rather than whether any of them is?

4.0. Indian Context:

The criminal jurisprudence came into existence in India at the time of Manu. According to him,
the gravity of the offence varies with the caste and creed of the criminal and so does the
sentence. The protection afforded to Brahmins was supreme and they were placed above all. The
categories of crimes recognized by Manu were - assault, theft, robbery, false evidence, slander,
criminal breach of trust, cheating, adultery and rape. The king protected his subjects and the
subjects in return owned him allegiance and paid him revenue. The king administered justice
himself, and, if busy, the matter was entrusted to a judge. If a criminal was fined, the fine went to
the king’s treasury and was not given as compensation to the injured party.

4.1 Principles of Punishment in Ancient Hindu Law:

The principles of punishment in the ancient Hindu Law have been described by Kautilya.
According to him, the punishment if too severe, would alarm men and if too mild, would
frustrate itself. Punishment aptly determined and awarded makes the subjects conform to
dharma, artha (wealth) and kama (desire). When due to ignorance ( say under the influence of
lust and anger), punishment is improperly awarded, it enrages even hermits and religious men,
not to speak of householders. Punishment un awarded would lead to a regime whereby the
stronger would swallow the weak.

According to him the offence has to be considered in all dimensions viz. whether the offence is
grave or simple, circumstances accompanying the offence (the antecedent, the present
circumstances etc), the time, place, consequences and social position and rank of the person
accused of the offence. He divided the imposition of fine into three categories as mentioned
below: First amercement: A fine ranging from 48 to 96 Panas, Middle amercement: A fine
ranging from 200 to 500 Panas and the Highest amercement: A fine ranging from 500 to 1000
Panas.

4.2. Punishments under ancient Mohammedan Penal Law:

The Mohammedan Jurisprudence had four broad principles of punishment. These are Kisas or
retaliation; Diyut or blood-money; Hadd or fixed punishment, Tazeer and Siyasa or discretionary
and exemplary punishment. The principle of Kisas was a life for a life and a limb for a limb.
Dryut which meant the fine or compensation for blood in cases of homicide. The punishment of
Kisas in all cases of willful homicide was exchangeable with that of Diyut, if the person having
the right of retaliation wished, the end being relief and satisfaction to the mind. So, practically,
the punishment of Diyut was an alternative to the punishment of Kisas. In cases involving an
involuntary homicide, in addition to the payment of the fine of blood, the offenders were liable to
the penalties of expiation and exclusion from inheritance. In the cases of accidental homicide; by
an intervening cause no other penalty was added to the imposition of the fine of blood, for the
immediate act of bloodshed if the death was not attributed to any person. Hadd which was the
third principle of punishment under the Mohammedan law comprised of the specific penalties
fixed with reference to the right of God, or in other words, to public justice. It was distinguished
from Kisas, which was considered the right of man, or a private right. The punishment of Hadd
was even provided for the crimes concerning adultery, illicit sexual intercourse between married
or unmarried persons, of false accusation of incontinence of dinking wine of theft and of high
way robbery. Tazeer and Siyasa encompassed discretionary punishment and exemplary
punishment respectively in which where the kind and amount of punishment rested entirely on
the discretion of the judge. Under Tazeer, the punishment could range from imprisonment and
banishment to public exposure. Siyasa technically meant exemplary punishment, which the ruler
or his delegate might deem useful for the protection of the community for guarding against
dangerous elements especially the habitual offenders of atrocious crimes and of whom there
could be no hope of reformation.

5.0. Conclusion

Basic values of the society are revealed in its approach towards crime and criminals. At a given
point of time, different civilizations reacted differently towards crime and criminals, due to
which there were various forms of punishment existent in those societies. As we have seen in the
above discussion that in the earlier societies, the response towards the deviance was repulsive.
The criminals were treated in an inhumane manner without giving any weightage to the social
factors responsible for the commission of such criminal act. But, this societal response has
undergone significant transformations. In present times, it is being thought and advocated that
every individual is born good and it is only the social strains that introduce criminal tendencies in
him. It is argued that the criminal is not only mentally and emotionally disturbed individual, but
also a victim of unfavorable circumstances, may it be psychological, physiological, social,
cultural, economic and environmental. Therefore, for minimizing the criminal activities and also
for the purpose of rehabilitation and reformation, individualization of criminal and categorization
of crime is utmost necessary. It is concluded that a scientific and logical individualization of
criminals and categorization of crimes is the sound basis for laying down the penal policy for any
society at present times.
Summary:

The methodical study of crime and criminality is comparatively current, but inflicting
punishment to instill discipline amongst the members of the society, has always been a
distinguishing feature of the mankind. Punishment, at its core, is the conscious infliction of pain
in retort to the wrong done by the offender. Punishment as an institution is so deep rooted in the
history of civilization that it is difficult to trace its origin or even to imagine a society without it.

Although it is more significant in some early civilizations than in others, the notion of justice as
met up by punishment seems to be as old as civilization itself. The origin and evolution of
punishment are interlinked with the evolution of society for the simple reason that the notion of
‘crime’ and ‘criminal’ are related to social norms at a given point of time. Amongst various
scholarly discussions, the modern discussion about punishment majorly revolves around the
work of H.L.Hart in his well known essay tiled as “Prolegomenon to the principles of
punishment”. Punishment in its primitive forms was not distinct from warfare. Both, started from
the impulse to hit back those who supposedly were interfering and harming the one’s interest. It
can be from simple reaction of resentment or from an aspiration of shielding one own self. In a
number of early societies, blood feuds, in which family of the distressed person imposed
corresponding or bigger harm on the wrongdoer and his family. Later societies found a basis to
ponder upon the justification and boundaries of the pain to enemies, on both the individual and
the social scale.

In primitive times, inflicting harm in response to wrongdoing was an expression of vengeance.

Also, it is followed by the suggestion that there should always be limits set to this vengeance.
Plato took a pioneering position when he suggested that the just man should harm nobody. This
raised a pertinent issue that how punishment is to be justified. The solution to this problem as
suggested by Plato was that punishment is not a harm, but a good for the person suffering it.
Precursors to the ideas of punishment as vengeance, deterrence and as a benefit to the offender,
can be found even in earlier texts. The Egyptian concept of ma’at, and the Hebrew concept of
blood guilt suggest a broken cosmic order and that can be restored through punishment.

“An eye for an eye, and evil for an evil” was the well established idea in the earliest civilizations.
As described above, there are always desiring for limits of vengeance. Such desires may have
provided the basis for the provisions of the Code of Hammurabi in 1800 B.C. Hammurabi, the
sixth king of Babylon created the most famous set of written laws of the ancient world, which
were preserved on Basalt rock columns. Though ,the code established a system of crime and
punishment based on physical retaliation, but interestingly the severity of punishment in this
code depended on class standing. If convicted of an unprovoked assault is a slave, then he would
be killed whereas, a free man might loose a limb only for the similar act.

In order to control crime, Roman leaders undertook two strict measures: firstly, they introduced
increasingly harsh punishments to deter people from committing the crime, and,secondly, they
used soldiers and volunteers to prevent the crime from happening. In the middle ages the pre-
dominating thinking was that every conceivable evil in the world (crop failure to the black
death), was a consequence of the sinful nature of man.

Though ancient formal legal codes were lost during the Dark Ages, early German and Anglo-
Saxon societies developed legal systems featuring monetary compensation for criminal
violations. Guilt was determined by two methods. One was compurgation, in which the accused
person swore on oath of innocence with the backing of 12 to 25 oath helpers, who would attest to
his or her character and claims of innocence. The second was the trial by ordeal, which was
based on the principle that the divine forces would not allow an innocent person to be harmed.

The thinkers of the enlightenment era categorically rejected retribution as the basis of
punishment. They sought to seek answers to the justifiability of punishment for purposes other
than retribution. Hobbs while questioning the right or authority of punishing stated that by nature
everyone has the right to kill or hurt others for his own sustenance. According to him, the
purpose of punishment is not revenge, but fear which will increase the probability of the
delinquents obeying the law. In consonance with Hobbs, Locke giving a pivotal position to
‘Social Contract’, also entrust the sovereign with the exclusive right to punish. ‘Reparation and
Restraint’ should be the purposes of punishment. An ideal punishment was the one that resulted
in incurring the maximum social benefit with causing the least cost to the offender. Any
punishment which did not provide a favorable balance of benefit over cost was invalidated.
In contemporary times, crimes were defined by the Legislature, which reflected social conditions
and therefore, were also known as Statutory Crimes. Before the American Revolution, then
under British rule, were subject to the Common Law. After the colonies acquired their
independence, State Legislatures standardized common law crimes such as murder, burglary,
arson and rape by putting them into Statutory form in criminal codes. Regardless of the
classification, acts prohibited by the criminal law constitute behaviours considered unacceptable
and impermissible by those in power. People who engage in these acts were eligible for serious
sentences. The criminal jurisprudence came into existence in India at the time of Manu.
According to him, the gravity of the offence varies with the caste and creed of the criminal and
so does the sentence. At a given point of time, different civilizations reacted differently towards
crime and criminals, due to which there were various forms of punishment existent in those
societies. Therefore, for minimizing the criminal activities and also for the purpose of
rehabilitation and reformation, individualization of criminal and categorization of crime is
utmost necessary.