Chapter 4d Conception of Authority Authority Right to exercise powers, to implement and enforce laws; to exact obedience; to command; to judge; control over; and permission are synonymous with power. Authority is a person or persons, or a body, exercising power of command, as, the civil and military authorities. Authority is the power or admitted right to command or to act, whether original or delegated, as, the authority of a prince over subjects and of parents over children; the authority of an agent to act for his principal. (Authority is a body having Jurisdiction in certain matters of public nature] The word‘authority’ includes Central and State Governments. Authority means the institutionalized exercise of legitimate power backed by law or constitution and common consent. ‘The word ‘authority’ is derived from the old Roman notion of “Auctor’ and ‘Auctoritos’. The Senate, the upper house in Rome gave its counsel to the popular assembly and this counsel was called ‘Auctor’ or ‘Auctoritos’. Although political power rests on the potentiality to invoke coercion, from historical days it has been found that coercion by way of threat of sanction is not an adequate instrument to elicit obedience. If power is to subsist for long it must receive general acceptance. Obedience may be obtained by the use of threat of sanctions, yet it rests upon a form of consent. It is this consent to or acceptance of power of the ruler by the ruled that strengthens the power and gives him the authority. Politieal authority is based on the acceptance of the right to rule. Lady Sharp says, "Authority must in any society claiming to be free, be willingly accepted. To be willingly accepted it must be intelligible. People must be able to understand both the reasons for what is being done and the way in which it is being done. They must also feel aésured that the authority being exercised, is the authority they have conferred. But the people have a right too. They need to know who in fact is exercising the authority and by (60)r FOUNDATIONS OF POLITICAL OBLIGATION 6 what authority.” Definitions of ‘Authority’ ‘The term ‘authority’ has been defined with various shades of meaning. They are : I, Authority has been defined in terms of power as below : Charles W. Handel.—"Power is however an essential clement of authority. George B. Gordon Catlin—"Authority is approved power; whether it is successful or not is strictly de jure irrelevant." ‘TD. Weldon.—It is rather the case that force exercised or capable of being exercised with the general approval of these concerned is what is normally meant by authority.” II. Some have defined ‘authority’ in terms of influence and "Authority is a type of relationship that ‘we can call influence. IIL, Some hold that it must be distinguished from persuasion through reason : Hannah Arendt.—"Authority...is incompatible with persuasion, which... works through a process of argumentation. Where arguments are used, authority is left in abeyance." Easton.—"On the other hand, if A send a message to B and B adopts this message as the basis of his own standards of what is desirable under the circumstances, we can say that A has exercised authority over B. TV. Some link authority firmly with reason; Carl J. Friedrich—.....authority and reason are closely linked indeed......authority rest upon the ability to issue communications which are capable of reasoned elaboration." V. Some others have spoken of special competence as the key notion in understanding authority. Norman Jacobson.—'All assertions about political authority... are grounded whether explicitly or implicitly, in the notion that political authority stems from special competence in politics and government." ‘VL. Some others define authority as follows : Maclver—"Authority is often defined as being power,2 FOUNDATIONS OF POLITICAL OBLIGATION the power to command obedience.” Talcott Parsons—Authority is "essentially the institutional code within which the use of power as a medium is organised and legitimised.’ Robert A Dahl.—"A commends B and B feels A has perfect right to do so and which he has a complete obligation ‘to obey. Power of this kind is often said to be legitimate. But when B feels A has absolutely no right to ask him to obey, which he has no obligation to okey, and which perhaps he actually has no obligation to resist. Power of this kind is often said to be illegitimate. Legitimate power is often called authority.” Herbert A. Simon.—"Authcrity is the power to make decision which guides the actions of another. It is relationship between individuals, one superior and the other subordinate. ‘The superior frames and transmits decisions with expectations that they will be accepted by subordinates. The subordinates accept such decisions and his conduct is determined by them." Max Weber—‘Political authority is based on the acceptance of the right to rule, and this is also called legitimacy.” Hobbes.—It is not therefore the victory that give the right of domination over the vanquished, but his own covenant. Nor is he obliged because he is conquered..... but because he cometh in and submitteth to the victor.” Nature or Characteristics of Authority ‘Authority is invested in a person or persons or a body exercising power of command, having superior power. The subordinates obey the rules and regulations framed by the superior. ‘The authority may be transferred by a principal to his agent. Authority is nothing but a power to do something; it is sometimes given by word, and sometimes by writing and in the modern period mainly by way of rules, regulations and constitutions. There is an obligation on the subordinates to obey the rules framed by their superior, to whom such authority is entrusted. Political authority is based on the acceptance of the right to rule, or what Max Weber called ‘legitimacy’. The rules framed by a superior officer must be obeyed by his subordinates, if his authority springs from proper legitimacy.FOUNDATIONS OF POLITGAL OBLIGATION @ ‘The authority possess dominance over the subordinates. It implies that superior authority has the right to receive obedience. ‘The person or person or body to whom authority is invested, exercise dominance over subordinates. Dominance is an important characteristic of authority. Authority is not a power, but sometimes that accompanies power. ‘Authority is the embodiment of reason and depends on the capacity of reasoned elaboration. ‘Authority has also responsibility. Responsibility and accountability are important essentia)s of authority. Authority is responsible to those who authorised it to function on there behalf ie., General Public. Power can undergo a subtle transformation into authority with growing support from the political community. Political authority may change from one regime to another. The new regime will then rely on political power for the moment, not political authority. It will take some time for the new regime to gain general popular acceptance. ‘Changing Basis of Political Authority ‘The state, represented by as also representing the few, has claimed and got the allegiance of the many. Changing conditions have changed the conception of the basis of political authority. (D) Inearly days of human history, the ruler was very much the lord of his people. Political obedience to the King or ruler was due to his position and his acknowledged military leadership. (2) Aristotle based political authority on law. The state, arising from the natural sociability of man, was a natural organism and therefore its laws were binding ‘upon its members. (8) The early Church fathers enjoined obedience to the government on the ground that all government though not a natural, was yet a divine institution, representing as it did a divine dispensation consequent on the fall. “The powers that be are ordained of God." (4) Political authority, with Aquinas and other Church men, ‘was linked up with the moral obligation of a man’s being. (6) According to theory of ‘prescriptive possession’, subjects obey political authority because of the ‘necessity to6 FOUNDATIONS OF POLITICAL OBLIGATION respect the property right of kings to the exercise of Governing authority’. (6) Spinoza identified the political authority with power both in the individual and in the state. (D Hobbes believed the political obligation was essentially parented by fear. (®) Sir Henry Maine ascribes political authority to the force of habit, We obey the state because we are habituated to render such obedience. (9) Locke and Rousseau, consider that the political authority of the state rests on the consent of the people. Rousseau gives his sovereign that supreme coercive power willingly. (10) The Benthamites held that men obeyed the state because it was useful to do so, (11) The conventionalists hold that political authority is based on the convention "not primitive or unchanging or universal but on the convention of the sufficient number enforced by their interest or what habit has led them to act on as their interest. Authority is based on an attitude—the voluntary attitude of men who prefer to support rather than oppose.” All the above theories which rationalise the basis of political authority approximate to truth at certain times but are not valid for all times and circumstances. Limitation on Political Authority ‘No moralist would deny that there are limits to the obedience which the state can require of its members. The theories of limitation of authority range from the doctrine of the duty of rebellion to the assertion that the only limitation on the authority of a state is self-limitation by the state. Some political’ thinkers hold that the “inherent limit of authority lies neither in law nor in force nor in contract, neither in revolution nor in selflimitation, but in the requirement of maintaining the strength of the believers as greater than the strength of disbelievers'" ‘The right of resisting a tyrant hes always been a controversial topic. A tyrannical despotism particularly an alien despotism, lacks ab initio the basis of consent on which the governments of allFOUNDATIONS OF POLITICAL OBLIGATION 6 organic states are founded. Passive political resistance is justified on the basis of the right of individual conscience. Political resistance is inevitable in a democratic state. In a democracy, the people are sovereign and may claim to disobey laws made by themselves. ‘Anarchism, syndicalism and anti-authoritarian socialism have always refused to acknowledge the sovereignty and supreme authority of the state. The anarchist finds little justification for coercive political authority and would abolish the state authority. ‘The pluralists in recent times have consistently aimed at diluting the state authority. ‘The industrial disputes and the question of the rights and limits of state intervention therein have naturally led to discussion regarding the right of revolution against the state authority for the worker has always accused the bourgeois state of direct or indirect partiality to the capitalists. Instruments of Authority ‘The following are the instruments of authority (1) Force.—Force is one of the instruments of means of enforcing decisions of the authority, Generally in society, one section of public is dissatisfied with the rules made by the government. They agitate to change the rules and demand not to implement them, When a mob turns violent, the authority may be ‘compelled to employ physical coercion and this is known as force. (2) Education,—Education is a positive instrument of authority. Foree is not a proper instrument for obtaining conformity ‘and obedience from the long range point of view. Force may temporarily suppress the problem, but it will not solve the problem. If the authority wants to strike deep roots and become permanent, ‘measures other than force have to be employed. The government should educate public and take steps which elevate and enlighten the minds of the people. Education is one of the surest and one of the most enduring way of establishing authority and evokking public cooperation and support. If people are enlighted why the laws are made and what are the consequences for the breach of law, people obey them and never challenge the authority. The Authority should also make laws for the welfare of all sections of public. (8) Economic Measures.—Economic measures constitute the third instrument. The life of man rotates round the rupee as«6 FOUNDATIONS OF POLITCAL OBLIGATION the earth rotates round the sun. The economic conditions can have a profound effect on the life of the people. The tax imposition, land reforms, control of prices, giving subsidies, welfare measures clearly show how authority flows to have far reaching consequences ‘on the various sections of society. In modern democratic states, if the persons empowered with authority forget the people, they lose power of authority, Merely giving slogans of eradication of poverty never keep a person in power. The action taken by the government of a state impress the public and act legitimately. ‘Relationship Between Power and Authority Maclver says, "Authority is often defined as being power, the power to command obedience". It sesms that the terms ‘power’ and ‘authority’ carry the same meaning and hence, are interchangeable. However, Max Weber says that power and authority are different things in as much as the latter invariably conveys within its fold the sense of legitimacy. Power and authority are not synonymous terms. Political power signifies the capacity to affect the behaviour of others by the threat of some form of sanction. Political power rests on the potentiality to invoke evercion. The use of power must receive general acceptance. Thus, power has to go hand in hand with authority. ‘As per C.J. Friedrich, "Authority is not a kind of power for something that accompanies it." Herbert A Simon says, "Authority is the power to make decision which guides the action of another. It is relationship between individuals, one superior and the other subordinate. The superior frames and transmits decisions with expectations that they will be accepted by subordinates. The subordinate accept such decisions and his conduct is determined by them." Power with legitimacy is authority and authority without legitimacy is simply power. Whereas the exercise of power involves strategies of persuasion, manipulation, or force; authority need not employ any of these tactics. In authority, an order is met with unquestioned acceptance, without need for force or persuasion. In general, government authority is well enough established that it does not need to rely on the avert use of force. Distinction between authority and power : (2) Authority is institutionalised power, while power is latent force. (2) Authority is the embodiment of reason and depends on the capacity of reasoned elaboration, whereas power is a5 FOUNDATIONS OF POLITICAL OBLIGATION a psychological factor. (3) Authority is the ability of a man to get his proposals accepted, but power is the capacity of man to change the behaviour of other. (4) Dominance is the important characteristic element of authority, while power may or may not possess dominance. (5) Authority is informal, whereas power is not informal. (©) Authority may be expressed by way of words, speech and written orders, while power is not expressed by way of words, speech and written orders. (7) Authority is not a power, but something that accompanies power, whereas power may or may not include authority. (8) Authority must be legitimate, while power may or may not include legitimacy. (9) Authority is responsible, but power is not accountable. (10) The loss of authority is due to hastiness, emotionalism and favoritism in the exercise of authority, while the loss of power is due to the loss of wealth, force, stamina etc, (11) Authority is more democratic than power, but power is less democratic than authority. (12) Authority can use legitimate force to implement its decisions if the circumstances require, whereas power cannot use legitimate force. Distinction Between Authority and Other Related ‘Terms ‘The term authority can be distinguished from coercion, power, force, leadership and influence on the basis of legitimacy. Authority and Coercion Coercion is the illegitimate exercise of power, but authority is the legitimate exercise of power. Authority and Force Force is the brutal manifestation of power, while authority is the institutional exercise of power Authority and Influence or Persuasion Influence is-persuasive, whereas authority is imperative.CI FOUNOATIONS OF POLITGAL OBLIGATION Authority and Leadership Leadership is the political polarization of the interests of the people, while authority is rooted in the rules and regulations of the Government. ‘Authority is legitimised power. Power transforms into authority with the support of the people. Power has to go hand in hand with authority. Wilful acceptance of the power by the people is called legitimacy. Hence, authority has to be always legitimised and backed by law and common consent. Classification of Authority General and Special Authority ‘An authority is general when it extends to all acts, or all connected with a particular employment, and special when confined to a single act. Legal and Political Authority Legal authority is that it frames rules and subordinates obey thom. In legal authority, the ‘legitimacy of the power-holder to issue commands rests upon rules that are rationally established by enactment, by agreement, or by imposition’. Political authority is ‘obtained with the people voluntarily giving their consent. It enhances the nationality of the people of the State. In every political system, it is true that by a process of psychic manipulation the political authority seeks to create a belief system about its legitimacy. Political power, for the sake of continuity and acceptability, has to be legitimate power. Centralised and Decentralised Authority In unitary states like the UK., France etc. the authority is centralised. In Federal States like India, the USA ete. the authority is distributed between the Centre and States of the nation. Strong and Weak Authority In present democratic set up, the authority lies with the government consisting of legislature, administration and judiciary. The legislators are elected by the voters and they enact for the benefit of the nation. If majority members of Parliament or Legislature belong to a single party they can strongly administer and it is a strong administration. But, due to multi-party system, if no party gets majority, coalition government is formied and becauseFOUNDATIONS OF POLITICAL OBLIGATION @ of dependency, the members may net make laws properly as there js a division of opinion and this is considered as weak authority. De facto and De jure Authority Ability to get one’s proposals, commands, pronouncements ‘accepted and thus determine other people's behaviour is to have ‘authority de facto, whereas to have the right to take certain types of decisions, make pronouncements, issue commands of certain Kinds and get others to obey them is to have authority de jure. ‘De jure authority exercises authority through speech and word and enjoys the right to receive obedience. It determines who shall be the author. It is concerned with a prior set of rules. De facto, authority has no real authority in its hands but enjoys the same position. If the man who has de facto authority starts using force, he shall be described as exercising power, not authority. ‘An example of de facto authority that is not also de jure is the case of a man who takes charge in a cinema fire, and is obeyed without question by people who have never seen him before and mow nothing about him. His authority, in this sense, consists in the fact that people are ready to accept his proposals, not because thoy have thought them over and agree that they are good ideas, but because he inspires confidence; they do what he says without question. This is not exercising of power. In exercising power, a ‘man secures compliance by force, threats or bribes; in this ease men comply for no reason but that the leader is the sort of man he is. ‘We use ‘authority’ in the de jure sense when we speak of someone ‘in authority’, or of ‘the authorities’. In the case of a collector, for example his pronouncements are enforced by use of coercive power if necessary because he occupies an office in accordance with the rules and such an office confers such power on him. Out of the office, he loses that power. De jure authority is to presume a rule or system of rules, which authorise an agent to issue commands, make pronouncements ete. and others to obey him, When the authorizing tule is a law, and the association a state, we call the “authority “political authority’ and the corresponding obligation to obey ‘political obligation’.” ‘The Grounds or Sources of Authority ‘The following are the sources or grounds of legitimate authority I. Divine Right—At a more primitive level, all rules are7 FOUNDATIONS OF POLITICAL OBLIGATION alike religious, customary and legal. During olden days, the chief or kking was selected from one royal family, and would be required to demonstrate his divine appointment by prowess in arms or other visible customary sign. He was then formally acknowledged by his people, as the God's gift to them. In the 16th and 17th centuries, the ‘Doctrine of Divine Right of Kings’ states that the authority was not a matter of human will, nor was the obligation to obey of human choosing. It was generally admitted that God had instituted government because men needed it. The King’s right to reign was divine and the subjects had to obey the king’s orders. However, it is not accepted in the modern age. IL. Religion.—Thirteenth centary was a period of great, religious movement. The Church preached that eternal law governs the whole universe. It represents the reason of God. Aquinas explains that the whole universe is governed by divine reason, Divine Law consists of commands of God communicated by revelation. According to Aquinas, the secular government is subject to the Chureh, because the former is concerned with intermediate ends, whereas the latter is concerned with the ultimate end, the salvation of souls. St. Aquinas affords unparallel position of pre-eminence to the papal authority. The similar religious opinions are there in other religions. Pope of Vatican City, Dalai-lama of ‘Tibet, Ayatullah Khomeini ete. obtained authority in the name of religion. TIL. Force—Force is also one of the sources of obtaining authority. Soldiers with advanced armaments, cavalry with speedy horses, use of guns and cannons, Air force and atomic bombs etc. provide force to the person and states. Force is considered as one of the sources of obtaining authority. Alexander, Mughals, Europeans exhibited their authority, however it has been proved that force is not permanent, IV. Revolution.—Karl Marx believed that the authority is an economie phenomenon and it has been concentrated in the hands of landlords, bourgeois and capitalists. They got the power by exploiting the slaves’, artisans’ and workers’ labour. Therefore, he advocated not to obey the rule of such authority and suggested class-war, revolution and revolt. He wanted to see classless society without exploitation with the real authority vested in the hands of working class and peasants. V. Elite—Due to superior education and training, physical and mental make“up and utilisation of better techniques, someFOUNDATIONS OF POLITICAL OBLIGATION n people go up on the social ladder, they also tend to create a status fymbol for a particular section of the people. Due to their Jeadership qualities, government of the people by an elite sprung from the people. Thus, there exists in each society minority elite of the population, which comes to power to make major decisions in the society and hold authority. VI. Traditional.—According to Max Weber, political authority derived from an established belief in the sanctity of immemorial traditions and the legitimacy of the status of those ‘exercising authority over them. When the right to rule is accrued from a continuous use of political power based on customs and traditions, it is called traditional authority. ‘According to de Maistre, tradition is supreme over reason. He says, "We know the morality we have received from our fathers as a collection of dogmas or useful prejadices adopted by the national reason. But for this we owe nothing to the particular reason of any individual. On the contrary, whenever such reason intervenes, it perverts morality. In politics we know we must respect authority, established we know not how nor by whom." Burke and de Maistre justified traditionalism in part by appealing to religious principles. Burke defends traditionalism on grounds of expediency or prudence. Hegelian traditionalism is related to a more elaborate view of History. For Hegel, the idea of morality evolves concretely in the customs and institutions of nation-states; the established order is justified as the latest stage on this historical process. VII. Charismatic—Charisma’ means ‘gift of grace’. According to Max Weber, political authority rests on the devotion to the specific and exceptional sanctity, heroism or exemplary character of an individual person and of the normative patterns of order revealed or ordained by him. When the right to rule is accrued from the great qualities and charisma of a political leader, it is called Charismatic authority. VILL Legal-rational—As per Max Weber, political authority is said to rest on a belief in the legality patterns of normative rules and the right of those elevated to the authority ‘under such rules to issue commands. When the right to rule is accrued according to the Constitutional rules of the State, it is called legal-rational authority. aoChapter 7 Concept of Justice Introduction Man has been continuously struggling for the maintenance of justice. In democratic systems, justice is given the highest place. ‘The word justice’ is derivedAfom the Latin word jus’ which means ‘to bind’, ‘to contract’. The‘Greek word for justice’ is ‘Dike’. It gives the meaning of ‘nearer to righteousness’. ‘Justice’ means following of norms’ (customs). Justice stands for just conduct, fairness or exercise of authority in maintenance of right. The concept of justice is as old as the political theory itself. Different interpretations are given to justice from time to time. Some writers regard justice as ‘virtue’, while others hold it for ‘equality’. Some consider it as ‘the rule of law’. Justice is not only an integral part of political science, but also of ethics, law, philosophy, ete. Major concepts of Justice In the history of ideas, there are two major concepts of justice. They are : (Q) Numerical concept of justice—It gives equal share to all. The Greek city states took the rule so far that many offices were filled by lot. The holding of an office did not call for any special knowledge or qualification. This concept is expressed by Joremy Bentham as "Everyone is to count for one, nobody for more than one." Modern liberal democracies are also based on this principle. @) Geometrical concept of justice—It is a concept of Droportionate equality. It means equal share to equals and unequal to unequals. It means that distribution of power and patronage Should be proportionate to the worth or contribution of the individual. Plato and Aristotle favoured this. As Aristotle put it, if flutes are to be distributed, they should be distributed only among those who have the capacity for flute playing’, In this concept of equality, benefits and responsibilities are equated with the worth of (105 )1065 FOUNDATIONS OF POLITICAL OBLIGATION recipient. This is equated with aristocratic justice. Implications of justice ‘The concept of justice has the following implications :— (1) It requires a just state of affairs; (2) It is aligned with the condition of ‘morality; (3) It carries the sense of proper distribution of favours and losses; and (4) It normally prevails in a non-democratic set-up as an exception. Connotations of Justice Justice has different connotations. Normally, justice implies virtue of righteousness. It is equated with truthfulness and morality. Hence, justice is viewed as a norm to measure the good and bad conduct of man as well as the rules of society and varia social institutions. Justice aims at synthesising various values provides for a just system of human relations, the products of which are liberty, equality and fraternity. Justice should be looked from a total reference to the behaviour of human beings in a give society. A man is just if he performs his basic duties in a society an ‘a society is just if it allows an individual to enjoy his basic rights. ‘Justice implies establishment of status quo. It secks to proted freedom, person and property of the individual. This is called conservative justice. ‘Justice implies keeping the general order of society as a whol ‘on one hand, and on the other it protects the individual, Justice i concerned about the relationship between the individuals and relationship between the individuals and the groups. Justice implies the dealing with principles and procedures laid down by the system of law prevailing in a State. Development of the concept of Justice In the primitive society, the basic objective of justice was inflict punishment on the offenders of a crime. The punishment, very severe. An eye for an eye and a tooth for a tooth was part the administration of justice. The object was to prevent the futu crimes. Hence, the nature of justice in the primitive times purely negative. It is based on conventional morality or tradition custom. During the Greek period, Thrasymachus, a sophist politiFOUNDATIONS OF POLITIAL OBLIGATION ‘07 thinker held the opinion that justice was in the interest of the strong party. It resembled the concept of ‘Might is right’. According to him, the strong man would have a sway over the weak and the latter has to serve the interests of the former. The economically rich and militarily strong would make laws promoting their interests and implement them over weak and docile people. Pythagorus, a Greek philosopher also elaborated the concept of justice. According to him, justice was nothing but harmony and ‘mutual co-operation. Plato, the father of political philosophy, in his ‘The Republic’ defined justice as one of functional specialisation. He was of the opinion that justice was ethical or philosophical and not based on conventional morality. An individual would render justice if he performed his duties for which he was well fitted and trained for. Plato, further, viewed justice as a quality of the soul and habit of mind and aimed at an organic society. Plato regarded justice as the supreme virtue. According to Aristotle, justice consisted in the fulfilment of one’s moral duties towards community. It can be understood in two aspects. The first is the distributive justice : Justice gives to every man his due according to his contribution to the society. It means proportionate equality. He emphasises on distributive justice. He suggests that the equals should not be treated as unequals and similarly unequals should not be treated as equals. An ideal or Practicable stage should accommodate the individuals and differences in treatments should be proportionate to the degree to which individuals differ in relevant respects. He emphasises on the Proportional justice. The second is the corrective justice. It is concerned with business transactions like hire, efc. For Grecks there was no difference between justice and morality. In ancient India, the Hindu caste system arranged by varnadharma recognised the principle of division of labour and functional specialisation, Justice eliminated unhealthy competition. Therefore, justice meant to provide for the fusion of an individual With others in society and secure an organic unity. In Medieval Age, St. Augustine, derived the concept of justice from Plato. He emphasised on right relation between man and man for the harmonious functioning of society. He interpreted justice in terms of Christianity and religious values. He considered the State as part of wider society and made it subordinate to the Church. He explained that justice is in conformity with a proper human order.108 FOUNOATIONS OF POLITICAL OBLIGATION ‘True justice lies in conforming to the proper human order and rendering one’s obligations properly. He believed that the Church is the supreme authority to lay the principles of justice to the . individual, society and the State. ‘Thomas Acquinas for the first time separated justice from religion. By 16th century the concept of justice was completely Secularised, Greok jurists believed that justice is based on positive law or laws of the people. This positive law was directed for the maintenance of harmony in society, observance of righteous conduct, leading an honourable life, not to injure others and to give every man F's due. ‘Writers like Hobbes identified justice with the orders of the sovereign. Locke, Rousseau, Kant, etc. found the justice in the synthesis of liberty and equality. Natural law theorists helped in the development of the idea of individual justice. Socialists argued that justice should be understood from the economic point of view. ‘The conventional concept of justice talks about the just man, the modern view talks of just society. Plato’s Views on Justice (427 B.C.-347 B.C.) original name was Aristocles. He belonged to the classical period ancient Greece. As a young man, he studied with Socrates for years. He visited Sicily, Italy, Persia and other countries in Jncluding India for about 12 years. He wrote ‘Apology’, ‘Gorgias, ‘Protagoras’, ‘Statesman’, ‘Laws’ and ‘Republic’. Plato is the father of idealists, romanticists and utopians of political philosopl Emerson concluded that Plato is philosophy and philosophy i Plato, The ‘Republic’ of Plato is called ‘a treatise concerning justics ‘as he subtitled it as "concerning justice." Plato discussed different theories of justice prevailing at hi own time and exposed the weakness of each theory and rejected all of them and propounded his own. ‘The Traditional Theory of Cephalus Cephalus was a resident alien in Athens. According to hi ‘Justice consists in speaking the truth and paying one’s debts.” son, Polemarch ie a slight amendment to his father definition. For him "justice seems to consist in giving what proper to him." It implies that justice lies in giving out what isr FOUNDATIONS OF POLITICAL OBLIGATION 109 to others. It might be "doing good to one's friends and evil to enemies.” Plato refutes this on three grounds : (1) One's supposed friends may be friends only in appearance, (2) To do evil to anybody, including our enemies is inconsistent with the most elementary conception of morality. (8) This view takes into consideration only the relations between two individuals on the individualistic grounds and ignores the social whole which is the raison d'etre of any theory of justice. The Radical Theory of Thrasymachus Thrasymachus was a Sophist. He defined justice "as the | interest of the stronger.” It amounts ‘o "might is right." Because the State or sovereign is the strongest, its or his action ought to be right and just. This conception of justice led to the propositions. First, a government makes always and enforces laws with its wercive power for the benefit of the sovereign. The second proposition is that injustice is better than justice. Thus, justice ‘eonsists in obeying authority where one must, and following one’s own interests where one can. Injustice is following one's own interest and justist conformity to the ruler’s interest. It follows that obedience to the ruler is right and just and disobedience is wrong and unjust. Plato rejected the concept of radicalist theory on the following grounds : (® Justice can never be the interest of the stronger. The government is an art and it must aim at the perfection of the material rather than its own perfection. The governors are just shepherds to protect the sheep and ‘exist for the good of the governed. Gi) Justice is always better than injustice because a just man is wiser than an unjust man, (ii) As this concept goes to the extreme of gross individualism, it has been refuted, as individual is not an independent unit but a part of an order. (iv) As per this concept, there can be two standards of justice one for the ruler and the other for the subjects and hence10 FOUNDATIONS OF POLITICAL OBLIGATION this concept has no universal application. Pragmatic Theory of Glaucon ‘Glaucon regarded justice as "the interest of the weaker.” He regarded justice as an artificial thing, a product of the social convention. Justice is the child of fear and is based on the necessity of the weak, There was no justice in the pre-civil society and it is the weaker soctions who joined hands to create the State. They ‘came to an agreement and instituted law and government through ‘2 sort of social contrast. Thus, justice was the product of convention and an outcome of fear and insecurity. Plato discarded this theory of justice as defective on ground that justice is neither conventional or artificial, but it something which is internal. He, on the other hand, holds justice is rooted in human mind. It is an intrinsic virtue which do ‘not depend for its origin upon a chance convention. Plato's Theory of Justice Having reviewed the traditional theories of justice, propounded his theory of justice as given below. Plato opined that justice was something internal. J exists in the individual and in the State. Justice was the b which held a society together. It provides a pleasant union individuals in accordance with one’s natural fitness and trainin ‘Justice was both a public and private virtue beeause it co the highest good both of the State (polis) and the members, each whom has found his life work in accordance with his natural fitne and his training. Plato's prima facie definition of justice implied "giving to ‘man his due." Pluto's interpretation is opposed to that of Ce hhecause the latter was talking in terms of rights while the form in terms of duties. For what is due to him is that he should treated as what he is, in the light of his capacity and his tr while what is due from him is the honest performance of th tasks which he places according to his requisite. While explaining justice, Plato drew an analogy between human organism on the one hand and a social organism on other According to Plato, the human soul possessed characters. They were—reason, spirit and appetite. Corres ‘to these clements in human organism these three were clas the social organism—the rulers, the soldiers and the peasants. ‘The ruling class was marked by the quality of reason, Pea ee [2 eae S255 EPSSSE SsFOUNDATIONS OF POLITICAL OBLIGATION m soldiers by courage and the peasants by appetite. The ruling class consisted of the philosophers who represented reason. The soldiers ‘were concerned with the defence and should assist the ruling class, similarly, the peasants performed the function of production. Plato's justice is based on three principles of society : (® Non-interference—The State is croated for "mutual needs in terms of services and not of powers. No class should interfere with the task of other classes. "It shall concentrate on its " own sphere of duty and shall not meddle with the sphere of others.” (i) Functional specialisation—Even the ruler is no exception for he has the special function to which his wisdom ‘entitles him. There is no notion of authority or sovereign power. The division of labour and specialisation of function wero the conditions of social co-operation. ‘Human virtue according to Plato is divided into wisdom, courage, temperance and justice. The first three he assigned on to each class, ie., philosophers, soldiers and peasants. There remains justice. The task of justice is to harmonise the three virtues. The responsibility of the philosopher king was to arrange these matters in the most advantageous way. Plato's justice does not embody a conception of rights but of duties. The justice of the State is the citizen’s sense of duty in his appointed place. Justice in the individual is identifiable with virtue ofexcellence and of moral life. Justice of the State (Polis) existed when all its citizens "performed their respective functions properly in harmony and without meddling with the affairs of others. An individual is not an “isolated self but part of an order, intended not to pursue the plessure of isolated self but to fill an appointed place in that order. ‘The individual is not a whole but the State is a whole. The individual is a factor or fraction of the polis, i.e., the State. ‘Thus, justice is for Plato, at once a part of human virtue and the bond which joins men together in States. It is identical quality Which makes man good and which makes him social. Plato focluded that men did not consider life without health was worth Aiving even though they had all the foods, drinks, wealth and power ‘Inthe world, In the same manner, lif was not worth living when Principle of justice itself was broken down. Plato used the Greek word ‘dikaisune’ for justice which comes near to the word "morality" or "righteousness."12 FOUNDATIONS OF POLTIGAL OBLIGATION Significance of Plato’s Theory of Justice (1) Plato's theory of justice was universal in character. (2) Plato established a new concept of virtue which consists in the discharge of one’s duty scrupulously. (8) Plato's coneeption of justice provided the State with a distinct will and a personality of its own having its independent existence apart from its members. (4 Plato revolted against the political selfishness ignorance prevalent in the Athenians society through conception of justice. (5) Plato's theory of justice gave birth to the organic theory, the State, (6) Plato's conception of justice established that the State is whole, and it must enforce upon the individual that fact it is, treating him as a factor and fraction of itself. (7) Plato's theory of justice harmoniously solved the probl of individual liberty versus the authoritarian State. Pl ‘conception of justice strikes a friendly balance between individ and society. (8) Plato's conception of justice provided rational and basis for the stratification of society. (9) The following are the elements of truth in Plato's justi (@ It is a true principle of social life. (ii) It is an ultimate answer to an extreme individualism. Gii) The proper working of three elements—reason, and appetite in the State as in the individual's mind. Criticism of Plato's Doctrine of Justice (1) Plato's concept of justice was based on moral princi ‘and lacked legal sanction in so far as it was not enforceable. It based on self-control and self-negation in the interest of the However, at no stage of history, moral sanction has been abl protect the social good. (2) Plato's theory of justice made the philosopher kings virtual leviathans. Such a concentration of politieal power in hands of one class was bound to degenerate the class despi disciplined moral and spiritual orientation. (a) Further, Platonic conception of justice was based on. Parochial principle of ‘one man—one work. This principle the integrated: development of the personality of the individFOUNDATIONS OF POLITICAL OBLIGATION 13 also deprived the community of a fully blossomed social justice. (Gd) Plato's justice was too limited and subjective. Tt did not provide a systematic, judicial orgenisation. Further ‘he also Pinfused between moral duty and legal obligation. (5) ‘The conciliation which Plato tried to bring about between self-interest and public duty is not logical. (6) Plato's concept of justice was also criticised by his disciple, Aristotle, with regard to the responsiblity of the legislator in waking the whole State happy in relation to his obligations towards the guardians and others. (7) His conception of justice could be possible only in the State and it was impossible to enforce in modern nation States ‘whose population runs into crores. (8) According to Prof. Popper, Plato's concept of justice leads to class State. (9) Plato's concept of justice made citizens means and the State an end itself. He, thus, reduced individual to nothingness. (10) Plato concedes that each individual possessed three qualities, ie., reason, spirit and appetite but he wanted that each $ividual should devote to the development of only one faculty. He, hus, wants the individual to live by one-third of his personality fnd abandon the other two-thirds of his personality. This can hardly be justified. (11) Plato unrealistically equated power with virtue. (42) Plato's theory of justice talked of social co-operation but it forgot to deal with problems of social conflict and tension. Aristotle’s views on Distributive Justice Aristotle (884-322 B.C.) ‘Aristotle was born at Stagira, a great colonial town on the Macedonian Coast in 384 B.C. His father was Nichomachus, a Court physician. Aristotle was brought up by his uncle after the death of his father. After spending 18 years at Stagira, he migrated to Athens in 367 B.C. to pursue his studies in philosophy. From then on, for 20 years until the death of Plato in 847 B.C. he stayed at Platc’s ‘Academy’ in close company of Plato and left the Academy after the death of Plato. In 842 B.C. King Philip of Macedonia invited and appointed ‘Aristotle as tutor to the crown prince Alexander. He taught ‘Alexander until 336 B.C. In $36 B.C. he established “The Lyceum’ a1 FOUNDATIONS OF POUTICAL OBLIGATION rival school to the Plato's Academy and taught for twelve years, After the death of Alexander, he tock asylum in Chaleis, in Euboea, Aristotle died in 822 B.C. in Chaleis. During his 62 years of life, Aristotle saw the most important and most disastrous period Greek history. His important works were ‘Politics’, ‘Metaphysice’, ‘Ethics’, ‘On the Soul’, ‘Athenian Constitution’, etc. The ‘Politics! was his most distinguished contribution. Both Plato and Aristotle had their own conception of justice and they differed from one another as what justice consists in. Aristotle's views on Justice Aristotle while discussing justice distinguishes complete or universal justice from particular justice. Complete or universal justice.—Complete justice is identifiable with moral virtue, ie, obedience to law. The moral virtue regulates all public and social relations among men, Complete justice is such "as exists among people who are associated in common life with a view to self-sufficiency and enjoy freedom and equality." People cannot enjoy freedom and equality unless they are law-abiding. Hence to Aristotle, complete justice lies in conformity to law, ie., law-abidingness. This sort of justice is, complete, as it prevails in ideal society. Particular justice—Particular justice, on the other hand, lies in the observance of rules of proportionate equality. Particular justice exists in particular forms of government such as oligarchy democracy. This sort of justice is mainly concerned with the distribution of offices, honours, awards and other good things of life ‘among various classes in proportion of their strength for cultivation of virtue. This particular justice in Aristotle's words consists "in the distribution of honour or wealth, or any other things which are divided among the members of the Koinonia." Particular justice is again two fold—distributive justice and corrective or remedial justice, Distributive Justice q Distributive justice implies that the State should divide or distribute goods and wealth among citizens according to merit. Distributive Justice, according to Aristotle, is "a sort of, proportion" and is the most powerful instrument for the prevention of revolution. The offices, honours, goods and services of the State should be distributed among citizens proportionately. The question arises proportionately to what. In the ideal State, it would be reallyFOUNDATIONS OF POLITICAL OBLIGATION 15 jonate to virtue according to one’s worth. Different people Bite different contributions and naturally they will claim their Mare in the distribution of offices and honours. In the idea! State, “Sf course, it would be really proportionate to virtue. Aristotle held Ghat every political organisation has its own distributive justice, for example, in democracy it is number, in oligarehy it is riches ‘fod in aristocracy i is virie, Aristotle rejoted the democratie and ‘criteria of justice and permitted the allocation of offices “Gietne virtuous only because they alone make the highest Gntribution to the society, because the virtuous people are fev. “Most of the offices should be allocated to those few people only. TAnatotle believed that this was the right distributive justice. ‘Aristotle realised the importence of even partial notion of istributive justice, as itis one of the most powerful instruments by " Gfhich revolution can be prevented. Distributive justice assigns a nan his due as a member of society and this keeps him satisfied. As Thember of the Koinonia, he makes a number of contributions to the " [ife of the society as a whole in the form of wealth and virtue. It is in proportion to those contributions to society that each person is to “be given public offices, honours and distinctions. "Distributive jostice thus consists in proper allocation of reward to each person according to his worth or desert." _ "Some of the distributive issues that lead to revolution are : (a) Everywhere inequality is the eause of revolution but an jnequality in which there is no proportion, for instance, a perpetual monarchy among equals; and always it is the desire for equality which rises in rebellion. (2) All revolutions are ultimately due to the innate desire in the average citizens to have honour, gain, equality of opportunities to satisfy this craving for equality. (3) A disproportionate increase in any part of the State; they are often occasioned by trifles; some are gradual and imperceptible, others sudden. ‘According to Aristotle, the precaution to be taken to arrest revolutions through distributive justice were : (1) Not to allow political power to be concentrated in one or few hands, offices and honours should be awarded on considerations of the distributive justice. Various classes in the State should be treated with consideration and equally associated with the Government;16 FOUNDATIONS OF POLIMCAL OBLIGATION (2) To provide long tenure over small offices and a short tenure aver higher offices; (3) To keep the strangers and aliens away from important offices; (4) No one must be allowed to suddenly rise in power; (5) To give the highest offices in the State on considerations of loyalty of character; (6) Administrative machinery, particularly _ financial administration should be open to public scrutiny. Criticism of Aristotle's Distributive Justice Aristotle's concept of distributive justice has been criticised on the following grounds :— (1) In the first place he insists that the virtuous should rule because they can contribute most to the welfare of the State. However, the term ‘virtue’ is quite discrete and cannot be accepted as a measuring rod. 2) Second, there is a clear contradiction in the views of Aristotle. On the one hand, he pleads that the cultivation of virtue should be the criteria for the distribution of offices, but on the other hand, he insists that the masses should not be ignored. (3) Third, Aristotle's views on distributive justice do not fit, in well with the modern nations. It is very difficult to distribute offices to all the citizens. (& The views of Aristotle have not found favour in modern. time and are treated as outdated. Corrective or Remedial Justice Aristotle divided remedial justice into two—that dealing with voluntary transaction (civil) and that dealing with involuntary transaction’ (criminal law). Further, Aristotle added commercial and cumulative justice to the aforesaid divisions of justice, Corrective or remedial justice is essentially negative. It consists in restoring to each person the lost rights due to infringement on the part of other individuals resulting in the violation of the rights of others. It is mainly concerned with commercial transactions. It aims at restoring what one has lost due to injustice of the society. It prevents the encroachment of one over the right of others. Aristotle held that corrective justice relates tor the voluntary commercial transactions like hire, sale, furnishing of ity, efe. and involuntary actions involving aggressions on life, ;, honour and freedom. In brief, justice is the name of great Pisiue, moral excellence of character. This is called corrective justice. Justice of Plato v. Justice of Aristotle (1) Aristotelean justice laid emphasis on a system of rights saying "everyone should have his own." On the contrary, Platonic justice laid emphasis on a system of duties saying “everyone should do his own.” (2) Aristotle's justice was legal in character, while Plato's justice was moral and philosophical. (8) Aristotelean justice established equality among different ‘members of the State, while Platonic justice established a hierarchy of classes. (4) Aristotelean justice was based on classification of complete and particular justice. Plato did not attempt any such assification. But Plato dealt with justice as social justice and individual justice. Plato’s classification still holds good while that of ‘Aristotle was self-contradictory. Aristotle's Justice v. Modern Justice (1) Though both modern and Aristotelean justice dealt with ‘gights and duties, modern justice classifies right as social, political, ‘economic, legal and fundamental and gives stress on rights, while | Aristotelean justice did not lay stress on right. | (2) Both are founded on equality. But the concept of equality | which the modern justice designs is to pay its citizens on the basis of ability and needs. (3) The aim of the both was realisation of complete justice, while Aristotle's justice was identified with virtue which could be | realised only in an ideal State, the modern justice is achieved fully when justice in all fields is provided. | Value of Justice Justice plays a vital role in the development of society. It represents all that is good in the society. It develops the relationship between man and man. It promotes some values, some standards among people. It maintains three values—liberty, equality and fraternity. Justice denotes both law and social morality. It stands for an FOUNDATIONS OF POLITICAL OBLIGATION 718 FOUNDATIONS OF POLITICAL OBLIGATION ‘ideal, for perfection or for absolute truth. Along with the changes brought about in the society, the concept of justice also had changed. Justice maintains social order. Augustine says that without justice, kingdoms simply become robberies. Justice protects the weak, meek and poor people from strong and rich people. Origin or Sources of Justice (1) Religion as a source of justice.—Religion as a source of ethical principles may be regarded as an ultimate source of. notice of justice. Regarding religion as the origin of the idea Justice, Barker says, "The Medieval Church held and the Roman Catholic Church still holds today, that it is God who gives through: his Church the notion of justice, of idea of the rule of right, which is the impersonal source of law and the sustainer of the State in its task of declaring and recognising law." (@) Nature as a source of justice.—Stoies supported the idea of nature being a source of justice. The Stoic conception nature was a conception which combined their moral philosophy and religious beliefs. The word ‘nature’ is related to a spiritual world. For them nature, God and reason was one thing. They. believed that man who lived in conformity with nature also shared something of reason and God. Natural implies three things—man should be free, man should be treated equal, and man should be associated with his fellow man by the common factor of reason. The three cardinal sources provided by nature for justice are liberty, equality and fraternity. The Stoics identified justice with the nature, ie., the rule of reason or God. (8) Economics as a source of justice —Economics began to be treated as the source of justice when new industrial age ushered into the eyes of people. Revolutionaries like Marx argued that the origin of justice is in Economies. According to him, the idea of justice is derived from the facts or deduced from the principles of ‘economics. (4) Ethics as a source of justice.—The idealist thinkers like Plato, Aristotle, Kant, Green, Barker believe that the true source of justice is to be found in ethics. The system of values accepted by a community will be in its turn the impersonal source of positive justice enforced by the State. ‘Types of Justice or Various Dimensions of Justice Justice has social, economic, political and legal dimensions : Social justice —Justice stands for a just social order. SocialFOUNOATIONS OF POLITICAL OBLIGATION 19 ice relates to the balance between an individual's rights and cial eontrol ensuring the fulfilment of the legitimate expectations Sf tho individual undor the existing laws. Tt is to assure him fenefits thereunder and protection in case of any violation or gneroachment on his rights consistent with the unity of the nation nd the needs of society. It is not merely related to the observance of the principle of equality before lav ides, social justice also felates to the eradication of social evils like those of pauperism, fisease, unemployment and starvation. Social justice covers fverything pertaining to the norm of ‘general interest’ ranging from the protection of the interests of the minorities to the eradication of poverty. Social justice gives protection to downtrodden and weaker sections of society. E Political justice—Political justice stands for political ‘equality, It means granting of political rights to all. It is political justice that desires a free and fair participation of people in their political life. Political justice counts everyone as one and none for fhore than one. It involves the guarantee of universal franchise and 0 discrimination on some artificial grounds in matters of fecruitment to public services. It can be said that political justice prevails in that State where the following conditions exist : @) rule of law, (ii) independence of judiciary, (ii) popular election of Jegislature and executive; (iv) political parties; (v) freedom of criticism, etc. ‘The notion of political justice requires in State to protect and preserve certain valuable rights of individual so that he may develop his personality as a citizen and thereby contribute his share to the welfare of the community. Economic justice—Economic justice means non-discrimination on some artificial ground. It means non-discrimination between man and man on the basis of economic values. In positive terms economic justice implies adequate payment for work without any distribution goods subject to the conditions of general welfare. It also demands the equitable distribution of wealth and income. In society, there should be no scope or place for the exploitation of the weaker sections. Basic necessaries of life must be available to all. Everyone should get ‘adequate food, clothing and shelter. A just economic order is possible in society where "from each according to his ability, to each according to his needs" is in existence. It means that the burden should be distributed according to our capacity while benefits bev0 FOUNDATIONS OF POLITICAL OBLIGATION distributed according to our needs. Economie justice is an important concept of the modern age of industrial and technological advancement. Freedom is meaningless if it prevents the achievements of economic justice. To a hungry man or to a man who is denied human dignity, political freedom is an empty word, The problem of society is how to bring economic and social justice without sacrificing the individual to the ever increasing power of State. Legal justice.—Legal justice consists in Codes enacted by the State and supplemented by customary rules observed by the community. The Constitution and Aets of legislature determine the legal dimension of justice. Legal justice is understood in two dimensions ; (i) Justice according to law where emphasis is laid on the just application of the law; and (ji) Law according to justice where the law is in accordance with the principles of justice. Ernest Barker maintains that legal justice is law according to justice’ Law seeks to give justice but it is not justice itself, A judge has to respect the law even if he does not agree with it morally. Relation between Justice and Liberty Kant says, "Justice is the external liberty of each person limited by the liberty of all others." Liberty means freedom, Freedom is an unconstraint ftom human action, especially from socially organised and legally constraint." A democratic society endeavours to harmonise the essence of the ideas of liberty and justice in a single whole. A society in which there are gross inequalities in property can ensure neither liberty nor justice. Justice joins and knits together the claims of the principles of liberty with those of the principle of equality. Justice is, or should be, benevolent. All that leads to perfection is good for humanity. Justice tries to provide rules of reason for men to follow, so that the same may lead to the highest good of all concerned. ‘Live well, and let live’ is the aim of justice. The rights of individual must be protected. Right is might, and not might is right, though for the upkeeping of right, might may be necessary. It is not the justice of the jungle, but justice emanating from the rights in consonance with the social and rational nature of man. Justice regulates the general distribution of rights. If liberty means the power of expansion in human spirit, it is rarely presented save in a society of equals. In unequal society, we always find masters and servants. There can be no liberty forFOUNDATIONS OF POLITICAL OBLIGATION 120 servants. There is no justice for the poor in a society of unequals. ‘Equality in justice is a primary condition of justice. Liberty cannot ‘exist without equality and justice. Relation between Justice and Equality Equality is one of the fundamental principles of justice. Jnequality is man made, therefore, unjust. For justice we want ‘equality in every walk of life, All should be equal before law and Jaw should protect all equally. There should be no discrimination between citizens on the basis of caste, creed, sex, colour or place of birth. C.E. Herriman says that justice consists in a system of understanding and procedures through which each is accorded what is agreed upon as fair. Justice should equally guarantee security of person and property because it is only then that we can have conditions necessary for enjoyment of our autonomy or realisation of our excellence. Economic equality is also necessary. A socialist legislation which tries to check inequalities in society far from being in violation of liberty is its necessary condition. It aims at more and more equality by reducing the power of the rich to exploit the poor. Justice is not synonymous with equality. Equality is one aspect of justice. Justice is a complex process which shifts balance between many factors, including equality. Justice demands more than equality it requires that all be equal before the law. It means thet the legal rights which each person has should be given equal protection by the courts. Absolute equality is not possible. In a just society, there is no place for wide inequalities. But it does not mean that there should be absolute equality in society. It is neither possible nor very desirable. There are certain valid and reasonable grounds on which exemptions can be made. Liberty and equality are two very important pillars of justice. But liberty and equality can never be absolute. Certain restrictions tan be imposed on them. But these restrictions should be quite reasonable. Relation between Justice and Law ‘Salmond defines law as "the body of principles recognised and applied by the State in the administration of justice.” As the ultimate purpose of law is justice, there is a connection between law and justice.22 FOUNDATIONS OF POLITICAL OBLIGATION ‘Natural justice is served by moral law. When the State finds that some portions of natural justice are so important that their observance cannot be left to the option and good sense of each individual, it formulates them in the form of legal rules which are obligatory on the part of the subject: Tustice seeks to do good. Justice, if ideal, is benevolen Salmond observes that it is right and just if a human action promotes the public welfare, wrong and unjust if it diminishes it, ‘The rule of law instructs him how he must act in order to secure and promote the general welfare of mankind. Justice is what is ideal, what is beautiful and true and of the most proper type; but law may be actually what is far from the ideal—actually it may even be an unjust, though a good law, that is to say, good as a law. Law secks justice. Law is an instrument of social utility for rendering the greatest good to the largest number, Thus, justice is benevolence. For Augustine, an unjust law is no law. With this, justice appears to be roughly synonymous with morality. According to Salmond, law is those principles applied by the State in the administration of justice. In the narrow sense, the term ‘justice’ refers to but one area of morality. Justice does not mean that the judge is always free to decide just as he likes. A judge is free to give interpretation in deciding on ‘a statute or its provision; but then he should not exceed that. In short, justice should be administered according to the provisions of the law. Where the provisions of statute are not clear, surely the judge can supplement. But on the whole, the judge must act ‘according to the legislative enactment and according to judicial precedents. A legal system ensures uniformity and certainty in the administration of justice. Law is a guarantee of impartiality in the administration of justice. ag ee QrasUNIT V THE PROBLEM OF PUNISHMENT Punishment Meaning of Punishment Punishment is the infliction of pain or loss of life, rights or property, deliberately imposed on an individual his consent and against his will. The term ‘punishment? torture that a person should undergo on account of doing a Itis the physical implication of law. Punishment, according to a religions point of view injunction given by God being the ruler of the world to punish who break His laws. ‘The mills of God grind surely though sl ‘A moralist would say that a man should always act to his best rational judgment and if he makes a wrong by he should correct it by undergoing a self-imposed remorse. A jurist desires the positive role of the state in a relating to the determination of the guilt and award of punisbment according to the law of the land. Thus, different views about the meaning of punishment. Punishment has beon stated vividly as given below : “Punishment is the penalty for the transgression of the. “Punishment means suffering for some offence but even part of punishment which consists of the sentence is remit "Punishment is any damage or pain inflicted on an through judicial procedure." Definition of Punishment Punishment may be defined as an evil resulting’ individual from the direct intention of another, on account (404)"THE PROBLEM OF PUNISHMENT 405 that appears to have been done, or omitted. Punishment then is evil-that is, a physical evil; either a pain, or a loss of pleasure, else of that situation or condition of the party affected, which is immediate cause of such pain or loss of pleasure. It is an evil iting from the direct intention of another. It is not punishment, it be obliquely intentional on the part of the person from whom it results, but an evil of some other nature, but which, ever, is not in all cases distinguished by a specific name. tis an evil resulting to a person from the direct intention of other, on account of some act that has been done or omitted. An i] resulting to an individual, although it be from the direct ntion of another, if it be not on account of same act that has n done or omitted, is not a punishment, If, out of wantonness, the sake of sport, or out of ill-will, resulting from an antipathy entertain against a man's person, without having any ticular act of his to ground it upon, you do him a mischief, the produced in this case is what nobody would understand to come er the name of punishment, But so it be on account of some act that has been done, it itters not by whom the act was done. ‘The most common case is ithe act of have been done by the same person by whom the evil ufered. But the evil may light upon a different person, and still the name of punishment. In such case it may be styled shment in alienam personam in contradiction to the more mon case in which it may be styled punishment in propriam onam. Whether the act ultimately or only mediately intentional may consistently enough with common usage bear the name of jishment. Though according as it was in the one or the other ‘that the intention happened to regard it, the act will assume a ent name, as we shall have occasion to mention presently. Tt must be on account of some act that at least appears to have n done; but whether such an act as appears to have been done, ny act, actually was done, is not material. By the denomination thus given to the act, by the word ishment taken by itself, no limitation is put to the description of Person of the agent; but on the occasion of the present work, Person is all along considered as a person invested for this e with the authority of the state; a legislator appointing the ries of evil to be inflicted in a species of cases; or a judge einting the individual lot of evil to be inflicted in this or that idual case.408 "FOUNDATIONS OF FOLTICAL OBLIGATION ‘Take whatever portion of the matter of evil is upon the whether the term punishment shall or shall not with propriety applied, depends upon the position in which the actual stands with reference to the time in which the will or intent the agent acts. ‘Punishment’ is synonymous with ‘penalty’, i forfeiture’, ‘conviction’, ‘domination’ ‘purgatory’, | ‘n ‘nemesis’, ' ‘castigation’, ‘penalization’, ‘discipline’, ‘ ‘deserts’ as per The New Roget's Thesaurus Dictionary’. “To punish’ means to impose a penalty upon; to afflict pain or loss or suffering for a crime on fault; to inflict a penalty an offence upon the offender; to impose a penalty for commission of crime. Criterion for Punishment Professor Flew has suggested five criteria for the use of word ‘punishment in its primary sense, ie., five conditions satis by an ordinary or standard case to which the word would applied : (2) It must involve an ‘evil, an unpleasantness, to ictim’ (2) It must be for an offence (actual or supposed); (3) It must be of an offender (actual or supposed); (4) Tt must be the work of personal agencies (c.e., not the natural consequences of an action); (6) It must be imposed by authority (real or s conferred by the system of rules against which offence has been committed. But Bonn and Peters add one more item to the above namely, ‘the unpleasantness should be an essential part of intended and not merely incidental to some other aim.” ‘The word ‘punishment is confined to its above primary only though there are usages such as ‘punishing the innocent’ a boxer ‘punishing his opponent’ with extended or usages, but not of its primary sense, Purpose of Punishment ‘The purpose of punishment may be of two kinds—1 subsidiary purposes. Primary Purpose—The primary purpose of punishm« method of protecting society by reducing the occurrence of Behaviour, or else as an end in itself. Prevention of“punishment is achieved in three ways : (@® Punishment can protect society by deterring potential offenders from committing crimes. (i) Punishment can protect society by preventing the actual offender from committing further offences; and (iii) Punishment can protect socioty and minimises crime by reforming and turning him into a law-abiding citizen. In these three ways, the dominant object. of punishment, y, the prevention of crime, is achieved. The tendency in jern criminal jurisprudence is of emphasis on the reformative spect of punishment. The prison is tending to become a place of tence and education. According to D. Lioy, "Crimes are to be treated as infirmities, nd the culpable ones diseased subjects whose fury might be ubdued in solitude, if they had been impelled to the evil deed by he violence of their passion; and it should aim at correcting their jcious habits by thé aid of labour, if they had come to them h idleness and to enlighten their minds by means of tion, if ignorance had led them astray. By this means law from being vindictive had become just and from being just it ecame charitable and it completed the act of punishing by the art of healing.” Subsidiary Purpose Punishment has also a subsidiary purpose and that is the vation of the moral feelings of the community. The emotion of ibutive indignation stirred up by injustice is characteristic of all Ithy communities. A noble emotion like righteous indignation eserves to be fostered by the state. Through the criminal justice of State, satisfaction is found for the moral sense of the community. According to TH. Green, “As reformatory, however, ishment has for its direct object the qualification for the ‘exercise of rights, and is only concerned with the moralisation of he criminal indirectly so far as it may result from the exercise of ights. But even where it cannot be reformatory in this sense, and er and above its reformatory function in cases where it has one, hhas a moral end. Just because punishment by the state has for its direct object the maintenance of rights, it has, like every other function of the state, indirectly a moral object, because true rights, ecording to our definition, are powers which it is for the general THE PROBLEM OF PUNISHMENT “orChapter 2 Theories of Punishment (Basis of Criminal Sanctions) Imposing punishment upon the wrong-doer was recognised from the time immemorial. Punishment involves physical suffering to the convicted offender. A question may be asked why a civilized state should countenance punishments and become the medium for making a human being miserable. Jurists and political thinkers evolved several theories for giving ground for the justification of punishment. These theories may be divided broadly into three classes. One class of the theories is those that hold that the primary function of punishment is to preserve and increase the welfare of the state, Another class of the theories says that the chief aim of punishment must be the infliction of punishment as retribution to the offender for the harm done and thirdly, those that hold that punishment to the offender should be inflicted in a way so to reform him. The end of punishment is deterrent, preventive, retributive and reformative. There are five theories of punishment. ‘They are; Retributive Theory of Punishment} ind iv. Teor ‘The term ‘retributive’ connotes, retaliation and revenge. It is also referred as ‘Vindictive Theory of punishment’ which believes in ‘pain for pain.’ The origin of this theory lies in the primitive notion of vengeance against the wrong-doer. According to this theory, it is right and proper, without regard to ulterior consequences, that evil should be returned for evil. Retributive means ‘to give back’ ‘to requite’, ‘to pay back’, ‘to make a return to. According to Retributive Theory, the offender should be made to suffer in proportion to the injury caused to the victim by basing on the saying, "An eye for an eye, a tooth for a tooth, a limb for a limb, and a life for a life’. Thus, this theory considers punishment as an end in itself. If an evil has been done it can be undone or negatived only by doing an evil against the wrongdoer. Most of the ancient law-gives and jurists considered retribution as the chief purpose of (447)“ae FOUNDATIONS OF POLITICAL OBLIGATION the punishment for the offences. This type of punishments are s implemented in Islamic countries. Retributive punishment may be described as, "that wl serves for the satisfaction of the emotion of retributive indig which in all healthy communities is stirred up by injustice.” It is the fact that the punishment of the wrong-doer is at the same tim the vengeance of the wronged that the state owes a great part of its strength. The guilty should suffer pain for an act that gives pain the society. The guilty should get punishment as a matter of bi right in such a situation “of which he must not be defrauded." ‘The retributive theory of punishment is ‘based on fulfilment of moral justice. A good action deserves to be crown with a good reward, and a bad action, on the other hand, meets it own fate. The evil that a wrongdoer brings upon himself whatever he is responsible for it, the result of his own act. When a. man suffers, even apart from the penalties imposed by the law or any external human agency, that is the result of his own act, for bad act is bound to meet with suffering that nemesis brings. This is the retributive theory. This theory argues that unless the cri is punished by the state, the victim will seek individual revenge, increases action and re-action, viz., chain of actions, Tt would me lynch-law. The victim will neither make a complaint nor testimony and therefore, the state will be handicapped in d with criminals. For just as it is morally permissible for individual to use force to defend himself, so, too, society is surely liberty morally to act in its own defence. Therefore, society's d for retribution cannot be wholly disregerded. It is necessary for th health and peace of the society and the effectiveness of the law. ‘Among the ancient philosophers, Plato was a supporter of th retributive theory. Acéording to him, "If justice is the good and # health of the soul as injustice is its disease and shi chastisement is their remody. If the man is happy, when he lives order, then when he is out of it, it is of importance to him to en it again, and he enters it through chastisement, Every culpa (gui demands an expiation; the culpa is ugly, it is contrary to justice a order; the expiration is beautiful, because all that is just beautiful and to suffer for justice is also beautiful.” Immanuel Kant (1724-1804) who is the paragon of dl maximal retributivism maintains that there is a duty to pun someone who is culpably guilty of having committed a crime at the position that the punishment should be equal to the gravityTHE PROBLEM OF PUNISHMENT “9 the offence. In the words of Kant, ‘Judicial punishment...... can never be inflicted simply and solely as a means to forward a good, other than itself, whether....... of the criminal, or of civil society; but it must at all times be inflicted on him, for no other reason than because he has acted criminally. A man can never be treated simply as a means for realizing the views of another man....... He must first of all be found to be punishable, before there is even a thought of deriving from the punishment any advantage for himself or his {fellow citizens. The penal law is a categorical imperative; and woe to that man who crawls through the serpentine turnings of the happiness-doctrine, to find out some consideration, which by its promise of advantage, should free the criminal from his penalty, or even from any degree thereof. That is the maxim of the Pharisees, ‘itis expedient that one man should die for the people, and that the whole nation perish not; but if justice perishes, then it is no more ‘worthwhile that man should live upon the earth.’ Kant gives an extreme application of his theory in the following illustration. "Even if a community of citizens dissolves with the consent of every member (e.g. the inhabitants of an island decide to separate and spread all over the world), they must first execute the murderer in the prison so that everyone gets what is his due according to his deeds." There need not be any resultant Denefit to society according to the retributive theory. According to Kant, a court must point out that criminal not only broke the law but also was responsible and was aware that the act was unlawful. The legal effect of crimes thus committed is punishment, He maintains that it is unjust to punish the innocent and just to punish the criminal. Another supporter of retributive theory was Hegel (1770-1831). Hegel's treatment of punishment is an annulment of the wrong. According to him, wrong being the negation of a right, Punishment is the negation of that negation or retribution. Suffering, it is therefore conceived, should thus follow wrong-doing. Hegel says that it is not easy to see how a wrong can be ‘annulled. What is done cannot be undone. It is possible to make Testitution for some wrongs, but this is besides the point, for juring another and also be liable for damages. Punishment is not tended to restore the fortunes of the victim. But if it were, the0 FOUNDATIONS OF POLITICAL OBLIGATION or of society in general which would result from the punishm and this is forward looking. So also is another Hegelian argum that the idea of right, which law embcdies, would be denied, un it were reaffirmed through the machinery of punishment. Bosanquet justifies the retributive punishment by "Compulsion through punishment and the fear of it, primarily acting on the lower self, does tend, when the condition, true punishment exist (ie, the reaction of systems of righ violated by one who shares in it), to a recognition of the end by: person punished, and may so far be regarded as his own implied in the maintenance of a system to which he is a par returning upon himsolf in the form of pain. And this is the th of punishment as retributive... The punishment is, so to his right, of which he must not be defrauded." ‘According to Sir James Stephen, the purpose of puni to gratify the desire for vengeance by making the criminal pay wi hhis body. He says, "The criminal law stands to the passion revenge in much the same relation as marriage to the appetite." Punishment gratifies the feeling of pleasure experi by individuals at the thought that the criminal has been broug! justice. The desire in question ought to be satisfied to some e by inflicting punishment to avert the satisfaction of these desi by illegal means in the absence of legal, that is, for avoiding pr vengeance.” ‘According to Salmond, the retributive purpose of punisl consists in avenging the wrong done by the criminal to society crime is not only aimed at the sufferer but also at the commt and therefore the community should avenge the wrong and see. retribution overtakes the wrong-doer. The purpose of punishme thus to gratify the desire for vengeance by making the criminal with his body. The retributive purpose of punishment is thus elevation of the moral feelings of the community. The retributive indignation stirred up by injustice is characteristic healthy communities. A noble emotion like righteous indign deserves to be fostered by the state. Through the criminal justi the state, satisfaction is found for the moral sense of ‘community. ‘According to Dr. Ewing, the retributive theory of punii involves two main conceptions, firstly, it is an end in itself guilty should suffer pain and secondly, the primary justifiea punishment is always to be found in the fact that an offence‘THE PROBLEM OF PUNISHMENT “1 heen committed which deserves punishment not in any future advantages to be gained by its infliction whether for society, or for the offender as an individual. Dr. Ewing says that a good action deserves to be crowned with a good reward and a bad action on the other hand, should meet its own fate. Criticism Many jurists and philosophers objected to the retributive theory. In Greek civilization, Protagoras emphatically protested against brutal retaliation as the basis of the theory of punishment. Even in ancient India, this theory had no place. They advocated mild punishment because the Hindu philosophers believed in Karamvipak. It implies that man committing certain sins would tbe born in the next life as low or filthy beast or bird. Salmond, Asquith and Paton criticised the theory. Critics of retributive theory of punishment say that retribution is in itself not a remedy for the mischief of the offence but an aggregation of it. Punishment involves pain and suffering. The infliction of suffering, if unredeemed by some corresponding and compensating good, can only add to the sum total of misery already occasioned by the offence of the criminal. So it cannot be justified if no ulterior good is aimed at and punishment is inflicted merely as an end in itself. ‘The retributive theory has been criticised as it ignores one of the main purposes of punishment, viz., to reform the criminal. Reformation is not possible by returning the evil to the wrong-docr. ‘The theory is regarded by all as a relic of barbarism. It is a cruel form of punishment. Instead of curing the disease scientifically, it tries to deal with criminality superficially. In modern times, it cannot be said that the punishment is based only on vengeance. It is, more or less, considered to be a measure to maintain order and place in the society. Though retribution has still an important place in popular thought, there is a growing tendency to regard punishment as a measure to an end ‘and not an end in itself. Expiatory Theory of Punishment The Expiatory Theory is linked with the retributive theory and is, sometimes, considered to be a part of it. The term ‘expiation’ means ‘separation’. According to this theory, the wrongdoer is ‘compelled to compensate or make restitution to the victim. In this view, crime is done away with, cancelled, blotted out or expiated by the suffering of its appointed penalty. To suffer punishment is to452 FOUNDATIONS OF POLITICAL OBLIGATION pay a debt due to the law that has been violated. Guilt plu punishment is equal to innocenee. Hegel and Kobler are the main supporters of this thea Hegel says that the punishment makes the criminal to expiate for the wrong done. This theory is based on morals. Lilley, in his bog ‘Right and Wrong’ says, "Whereby the wrong-doer has transgress the law of right, has incurred a debt. Justice requires that the deb be paid, that the wrong be expiated...... This is the first object punishment..... to make satisfaction to outraged law." “According to this theory, if the offender expiates or repents the crime, he should be forgiven—as his expiation or repentanes itself a punishment. This method of punishment was also comma in ancient India where expiations were performed by way penance which varied in form and severity. The severity of th penance did not always depend either upon the degree of mor culpability or upon the baneful result of the act. In same cases, penance consisted of uttering certain mantras, ablution, ‘amputation of limb caused by the penitent himself, self immol or burning oneself to death, etc. ‘The concept of expiation marks a stage in the transform: of revenge into criminal justice until this transformation complete, the remedy of punishment is more or less assimilated: that of redress. Revenge is the right of the injured person. penalty or wrongdoing is a debt which the offender owes to victim, and when the punishment hes been endured the d paid, the liability is extinguished, innocence is substituted for gui and the vinculum juris forged by crime is dissolved. ‘The object of true redress is to restore the position deman by the rule of right, to substitute justice for injustice, to compel wrongdoer to restore to the ignored person that which is his 0 ‘The fact that in the expiatory theory satisfaction is conceived due rather to the outraged majesty of the law than to the vieti the offence, merely marks a further stage in the refinement purification of the primitive conception. The expiation theory may be suitable to offences such defamation, slander, assault, criminal trespass, humiliation, But this theory is not at all suitable to offences such as murder ete. Criticism ‘This theory is now obsolete. The principles of morality‘THE PROBLEM OF PUNSHVENT 463 cannot wholly and solely come under the domain of law. At present the organisation of state, its functions, human habits, attitudes hhave all developed to a great extent, According to Paton, the expiation theory is based on moral doctrine, and, therefore, is beyond the limits of modern law. Distinguishing both retributive and expiative theories, Salmond observes, "Enshrined in the retributive and expiative theories, however are claims which should not be disregarded. The former, which regards punishment as balanced against an offence, acts a5 an important limiting principle generally in the penal context, Without accepting the view that punishment should be inflicted because of the offence (and nothing more), we may there has beeu an offence and that the punishment should not be ut of proportion to that offence. Likewise, the notion of expiation has its own particular value. While not subscribing to the theory criminals should be punished in order to make them ‘pay their due’, wo may still argue that, once their punishment is over, the ate should be wiped clear; in these days when punishment is tending towards individualisation and when the prisoner's previous eonvictions and record are becoming increasingly important, this is claim that should not be overlooked." Theoretically, the expiation theory seems good. But ractically, it could not be implemented successfully. There are a amber of offences, which could not be compensated. A wrong-doer ay be punished to pay compensation to victim—raped woman, hat wrong-doer will not repent for his acts. Moreover, he may continue to do such acts, and is going on paying compensation. This not good for a society as it encourages the offender to commit mes again and again. However, there is a latent or hidden- tisfaction derived by the society when punishment is meted out p the offender to meet the ends of justice. errent Theory of Punishment (Crime Control ory of Punishment) ‘Deter’ means ‘abstain from acticn’. According to deterrent y people are deterred from committing crime. The most nt supporters of the deterrence justification have been the donistic utilitarians, who hold that only pleasure is intrinsically od and only pain is intrinsically bad. Every action is measured in barometer of pain and pleasure. Individuals are punished for he reason that it was-for the good and éver all happiness of society. | |456 FOUNDATIONS OF POLITICAL OBLIGATION Punishment, though unpleasant and intrinsically bad, can justified in so far as it maintains or increases the balance pleasure over pain by discouraging harmful behaviour. ‘The strongest utilitarian case for punishment is that it se to deter potential offenders by inflicting suffering on actual ones, this view, punishment is not the main thing, the technique wor by threat. Every act of punishment is to that extent an admis of failure, and we punish only that the technique may retain effectiveness in the future. The problem of justifying puni arises only because the technique is not completely effective; if were, there would be nothing to justify. ‘Punishment is said to be deterrent when it is inflicted the object of showing the futility of crime and setting a lesson others. Salmond says that "punishment is before all deterrent, and the chief end or law of crime is to make the doer an example and a warning to all that are like minded him." This theory says that by punishment the wrong-doer is an example. It creates an awe not only in the mind of the offen alone, but in the minds of others also and deters them committing crimes. In this way it checks crimes. Offences are committed by reason of a conflict between tf interests, real or apparent, of the wrongdoer and those of so large. Punishment prevents offences by destroying this conflict interests to which they owe their origin by making all deeds whi are injurious to others injurious also to the doers of them making every offence. Men do injustice because they have sufficient motive to seek justice, which is the good of others than that of the doer of it. The purpose of the criminal law supply by art the motives which are thus wanting in the na things. ‘The deterrent theory of punishment requires that the m hardened a criminal, the more severe should be his punishm ‘The highest punishment of death is justified if the offence is grave and such a punishment is called for to deter other peo from committing similar offences. This theory "regards punishm as a measure of social hygiene. Punishment is a display of, power of society in the service of social selfpreservation.” 7 punishment is imposed as a means for improving social beh ‘Thus, it deters future crimes. ‘The main supporters of this theory are Bentham, Plato, Sophists, Fischte, Locke ete. The offender himself would‘THE PROBLEM OF PUNSHMENT 455 ‘orised by the severe sentence resulting in pain over gain. Other wrsons thinking of committing similar offences may get remainder the deterrent sentences on others, and may abstain from ‘ng out their contemplated ill-design. In older times, the © punishment and the execution of the sentence before the ublie were meant to serve this end as disapproval or hatred essions of the public towards the criminals make the positive fects on the minds of the public gathered. Thus, respect for the al values will be improved, and also respect to law will be . The advocates for the retention of capital punishment, If deterrence alone is treated as the object of punishment, gnishment will tend in the direction of cruelty. Thus, more painful punishment, the more deterrent it is likely to be and since no anishment succeeds in deterring everybody from the commission the crime, there is always a ground for making it still more ere in order to increase the number deterred by it. Such an ent naturally opens up a prospect of tortures without limit ‘the theory of punishment is that punishment should be merely nt. Baccaria points out, "The more cruel punishments become, the human minds harden, adjusting themselves, like fluids, to the 1 of objects around them; and the ever living force of the sions brings it about that, after a hundred years of cruel nishments, the wheel frightens men only just as much as at first the punishment of prison.” Hobhouse also observes, "People are not deterred from murder the sight of the murderer's dangling from a gibbet. On the ntrary, what there is in them of lust for blood is tickled and xcited, their sensuality or ferocity is aroused and the iteracting impulses, the aversion to bloodshed, the compunction suffering are arrested." Deterrent theory is based on presumption that an offender the pros and cons of his act and in doing so the possibility of errent punishment would prevent him from consummating his designs. This presumption stands rebutted by the arms of bitual offenders and hardened criminals. Some prison authorities are of the view that there are a type Prisoners, who have no foresight, who cannot learn even from theFOUNDATIONS OF POLITICAL OBLIGATION yerience of punishment, much less from the threat of it. It is ‘nessed that several hardened criminals return to prison sp cr their release by committing crime again. ‘The deterrent theory has also been criticised on the ground, » severity, The deterrent theory is based on the idea of se nishment, But the entire history of penal law shows that jority of punishment do not curtail the number of crimes. It 1s to deter ordinary criminals who commit offences on a spur yment without any prior motive or design. eo ‘The main critic of deterrent theory is Holmes. He is of inion that, "This theory is immoral inasmuch as it gives i sasure of punishment except the law givers subjec {inion....... It is said to conflict with the sense of justice that embers of such communities have equal rights to life, liberty, srsonal security.” If deterrent is really to be brought about, one of the way Jing so is to introduce compensation as a factor in punishm tery offender then is made to pay punitive damages to grieved party in addition to his liability by way of detention, ficiently long term, that would go a great way in deterring ¢ ong-doer. What the offender dreads is tho loss of liberty ng time and having to give back what he took after such ains and risks. So compensation will help deterrent. ‘rotection or Preventive Theory of Punishment Salmond and Holmes are the main supporters of p aeory of punishment. This theory is based upon ‘pr citer than cure’. The 18th century utilitarian, William scribes that "the proper end of punishment is p times." Preventive theory seeks to prevent the recurrenee of y incapacitating the offenders. The principle of this theory 2 avenge crimes but to prevent it.” This theory aims to pre petition of the offence by the offender by such penalti mprisonment, exile and death. ‘Justice Holmes says, "There can be no case in aw-maker makes certain conduct criminal without his thowing a wish and purpose to prevent that conduct would accordingly seem to be the chief and only universal if punishment. The law threatens certain pains if you do ‘hings intending thereby to give you a new motive for m them, If you persist in doing them, it has to inflict the‘order that its threats may continue to be believed.” Salmond says, "We hang murderers not merely that it may ‘put into the hearts of others like them the fear of a like fate, but for the same reason for which we kill snakes, namely, because it is better for us that they should be out of the world than in it.” Fichte observed, "The end of all penal laws is that they are not to be applied. When a land owner puts up & notice “Trespassers will be prosecuted’; he does not want an actual trespasser and to have the trouble and expense of setting the law in motion against him. He hopes that the threat will render any such action unnecessary, his aim is not to punish trespass but to prevent it. If trespass still takes place, he undertakes prosecution.|'Thus, the instrument or ‘deterrence which he devised originally} consisted in the general threat and not in particular convietions." ‘The preventive theory says that the punishment is for the purpose of disabling or preventing the offender from committing the offence again. In olden days, the offender was prevented from committing the offence again by forfeiture of the offending, limb. ‘Thus, a thief could be made to lose hif hand, or a sexual offender ‘could be castrated. Mutilation was very common. The offender who ‘has committed a murder may be punished with death, thus joving all possibility of any furthet crime by him. Prevention of ‘rime is served also by the exilement of the offender. Prevention can also be brought about by imprisoning the offender for a sufficient period of time, so as to immediately prevent, ‘him from committing crime and bring about a change in his character or outlook. In such cases, prevention is sought for, not by limination, but by reformation, enabling the preventive and teformative ideas of punishment going hand in hand. In modern times, cortain other preventive measures are adopted in various now kinds of offences e.g. forfeiture of office, suspension or cancellation of licence'ete. There are other preventive measures such as preventive detention applied against the persons who threaten to commit offences, or, are, otherwise dangerous to the society. But these preventive measures must be distinguished from punishment which is punitive. Preventive mode of punishment works in three ways—(i) by inspiring all prospective wrong-doers with the fear of punishment; Mii) by disabling the wrong-doer; and (ii) by transforming (by Fe-education) the offender so tliat he would not commit crime again. It is now generally recognised that, with the advance of ‘THE PROBLEM OF PUNISHMENT “7