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This Paper argues that, law, as an ordinance of reason, directed towards the common good, and enacted by a sovereign authority that has the care of the community, must command human obedience and that, those who contravene the law or set rules must be punished fittingly and appropriately.
THE MORALITY AND RATIONALITY OF PUNISHMENT By Alloy S. Ihuah. Department of Philosophy, Lagos State University, Ojoo-Lagos, Nigeria. Abstract: This Paper argues that, law, as an ordinance of reason, directed towards the common good, and enacted by a sovereign authority that has the care of the community, must command human obedience and that, those who contravene the law or set rules must be punished fittingly and appropriately. Punishment. Punishment is any act of penalizing the offender by imposing sanction that is in principle unpleasant, this form of punishment excluding physical harm and denial of the right to life. It may involve denial of certain physiological needs (rights), or defined prison sentences administered by a competent authority with the view to rectify past wrongs or to scare off others from committing an offence out of fear of the penal sanction he/she risks incurring if caught. Punishment may also take the form of corporal punishment, which here means the execution of a judicially imposed sentence that inflicts some manner of physical pain upon the body of a convicted offender excluding his death. This form of punishment involves flogging branding and facial or bodily mutilation of all types including sterilization, castration and the used of cages. There is also the extreme form of punishment, i.e,Capital punishment. It entails the denial of one’s right to life. It sanctions death penalty. Its extreme objective is to scare off people from suffice it to say here that, punishment, minimum or maximum, is in itself not evil; it is not a long-standing institution whereby the powerful do nasty things to their subjects. On the contrary, punishment has always been closely associated with the ideas of law and justice. People are punished only for something they have done or failed to do. It is in this wise that punishment is understood as sanction imposed on an offender for a breach of a law or rule, not a gratuitous exercise of power. It must be deserved to be administered on an offender. J.I. Omoregbe explains this concept further and better thus; The first meaning of punishment is…privation consequent upon the violation of the order demanded by law. In this sense, punishment is primarily retributive…the second meaning of punishment…relates to the effects its threatened deprivations have. On account of these, a man may be deterred from future violation or his will may be better disposed to choose as he ought, that is according to the demands of the law Justification of Punishment All punishment, it is said, must involve the penalizing of the offender-the imposing of a sanction that is in principle unwelcome. Thus defined, punishment is a sanction for non-conformity to societal rules and regulations which broadly speaking involves pain. In clear language, punishment is harm inflected by a rightful authority on a person who has been judged to have violated a law or a rule .It is this, and no other reason that i.e. a deprivation suffered on account of some wrong one by a recipient at the hands of an impotent However, when a deprivation is suffered by a person believed to have been victimized, it cannot be called punishment, and in any case it is unjustifiable. Broadly speaking Philosophers have approached the justification principle of punishment on two quite different perspectives, namely, teleological approach and retrospective approach (i) Teleological Approach This approach argues that punishment is justified on account of some future goal which it is hoped will be achieved. One does not punish for the sake of a past wrong, since what is done will never be undone but with the view to the future, in other that the offender and others who see the punishment will come to detest the crime. The argued view here is that, the justifying aims of punishment are to reduce the crime rate by: (a) Prevention and (b) Deterrence In the case of prevention, it is argued that if the criminal is punished, say put behind bars for certain length of time he/she will be out of circulation, this view of punishment hold that we should punish to ensure that offenders do not repeat their offence and so, further injure society. The problem with this view is the question of a fitting and appropriate punishment for a given crime. If the end result turns out to be the reduction in the total given crime. If the end result turns out to be the reduction in the total amount of crime to be committed by the individual offender, there is every justification for an appropriate punishment for the crime an offender actually committed. John Cottingham alludes to this educationist approach when he says, if considerations of justice and proportionality suggest ten years, say, as an appropriate punishment of a particular offence, there is no reason why considerations of detention should not require a further five, ten or even twenty years If, when and where this strategy works, as an effective weapon of crime control there is every reason to suggest that society is justified in punishing. Another most widely supported account of how punishment is to be justified is the deterrence theory. The Latin Verb deter ere means, literally to scare off and the central idea of deterrence is that the criminal will be discouraged from committing an offence out of fear of the penal sanction he/she risks incurring if caught. Experience has shown however that such conclusion is unfounded. The high rates of recidivism, even among those who have served long prison sentences, surely demonstrate that, threat to punishment has little or no effect. Sociologist and criminologists are won’t to argue that the fact that convicted criminals often re-offend certainly shows that they were not deterred. They aver further that even first offenders are similarly not deterred by the threat of punishment. But this argument in itself is a misstatement of theory for practice or better still, fact for reality. The deterrence theorist does not in any way claim to achieve the unrealistic goal of a total elimination of crime: what it does claim is that punishing those who do offend will substantially reduce the amount of crime that would have been committed by others, were there no punishment for offenders. Indeed, the focus of justification is not on the individual offender who is necessarily a failure of the system-but on the population at large . What we can safely say on this theory is that, on the one hand there are the criminals who are not deterred by any threat of punishment, and on the other hand there are the honest citizens, deprived and distressed economically though, they never seriously consider crime as a necessary option. It must be said without fear of contradiction and does play a vital role in protecting law and order in general. Immanuel Kant’s position in this regard explains our idea better. What we do to the individual criminal is simply a means to an end. What we do to him is not governed by considerations of fairness, or by asking what would be the just punishment for this individual in this particular case; rather his penalty is simply an instrument for producing a benefit (crime prevention) for society in general The principles are reduceable from our analysis of the reductionist theory and they are that, (a) Punishment must be restricted to those found guilty of an offence by due process of law. (b) Punishment must not be excessive in relation to the harmfulness of the offence. (ii) Retrospective Approach The approach of this theory is backward looking. Attention here is not on the future results of punishing, but on the particular wrong that has been done by the offender. Aristotle is here apt in stating the point of the theory thus; the purpose of judicially imposed penalties is to rectify past wrongs , and make the offenders to suffer in kind for the harm they have caused others. This approach manifests itself in the retributive theory as a justification of punishment. The term retribution comes from the Latin verb retribure i.e. ‘to pay back’ meaning then that, punishment is in some sense a payment for crime. Thus. Paying back’ is argued as a metaphor or a price for crime. The argument here is that the criminal has a ‘debt to pay’ to society, so, if and when he/she has served his sentence, he/she may be said to have ‘paid the price for his crime. Confusion however arises as to the clear significance of the payment metaphor. As Cottingham queries. Exactly how does punishment pay for crime” Where payment is literally exacted as in ordinary civil litigation, things are clear enough suppose, damage your property and you sue me; if the court makes me pay you a sum in damages, then I will have quite literally paid for i.e. covered the cost of-the damage I have done. But if we move from the sphere of civil damages to that of criminal punishment, it is far from clear how the serving of a prison sentence constitutes ‘payment’ for the crime committed. For as far as the victim is concerned, his costs are ink no sense ‘paid back’ by the imprisoning of the offender. The loss sor lharm he has suffered still stands. It is true that the person who caused that loss or harm is made to suffer in return; but why is the offender’s suffering supposed to ‘pay for’ the suffering of the victim? Such unanswered questions have forced the retributivists to adopt the balance metaphor to argue for a justification of punishment. Traditionally justice is depicted as holding a pair of scales: criminal wrong doing is regarded as upsetting the balance and the punishment placed as it were in the other pan of the scale is believed to bring about equilibrium. Here too, one is not too sure how this metaphor can be cashed out in a convincing manner. The sudden movement from concrete terms to abstract terms purporting justice is illicit to say the least. How, exactly, is the punishment of the offender supposed to set the balance right… as far as the victim of the crime is concerned, the harm or loss that has been suffered remains, and it is unclear how the imposition of a corresponding harm or loss on the offender (e.g. loss of liberty) is supposed to set things right . Another metaphor adopted for use by the retributionists is that of annulment or cancellation. It is argued on this score that, the punishment of the criminal is said to wipe the slate clean; and that it annuls the wrongdoing which would otherwise continue to stand. Here again Cottinghan ask how the imposition of a punishment is supposed to cancel out or annul the crim. what done, say murder of an innocent cannot after all be undone. It is our convince position however that to refuse to punish a criminal on account of this thinking is mischief. Where someone has been killed or assaulted or robbed, it is the deep intuitive conviction of many people that the criminal must be apprehended and made to answer for his conduct. Otherwise we would be seen to be acquiescing in the wrong done- allowing it to remain valid. Once the offender has been ‘Dealt with’, however we feel that we have responded appropriately to the wrong and that justice has done’ and that the crime has been cancelled-annulled. It may be summed up concerning retribution that, it is inherently right and proper that the guilty criminal should not only suffer Punishment, but that he/she should suffer a fitting and appropriate punishment. They not only deserve a fitting and appropriate punishment, failure in this regard is tantamount to treating offenders with disrespect and denial of their autonomy and responsibility for their actions. Indeed, not to punish the offender amounts to the denial of his dues injustice. If one deliberately transgresses a rule, say killing, knowing that he risk being killed, no further reasons can, or need to be given for punishing him: the punishment is due for the offence; anything to the contrary is injustice simplicita. Our analysis thus far argues the thinking of an institution or society that is set up in such a way that the deliberate commission of an offence with prescribed penalty is, by definition, normally a sufficient reason for imposing the penalty. It has however failed to answer the higher level question of whether the general institution or practice of punishing offenders (any offender) for that matter is itself justified. It has been shown in practice that what are taken to be sufficient conditions for punishment within the penal system cannot provide a sufficient reason why we should punish in the first instance There is also the moral problem. To punish is to hold somebody responsible. But what if someone who has committed an offence is not responsible for an action, say where an offender has no choice in the matter. Punishing such a person will then be immoral. Legal determinism argues here that people are determined to act in certain ways come what may. So their actions or inactions are predetermined by factors or forces outside of themselves i.e. it is not the individuals themselves that are acting). Holding such individuals responsible on account of actions or inactions that are not theirs is to say the least immoral and does not in any way make punishment proper and fitting. There are those who argue again that the typical criminal in reality is the mentally handicapped individual. Sick as he is, he needs treatment not punishment; he needs reformation and reintegration i8n the society to function more properly and appropriately in the achievement of peace and order in society. Extreme in outlook though, the reform theory in its modest form holds that punishment is necessary to induce conformity of behavior which the offender tends to ignore or violate. The informed idea here is that, people will emerge from punishment better than they were before, in so far as they will be less likely to breach conventional standards of behavior. In its traditional meaning, reform of heart entails recognition that what one has done is bad and a sincere resolve to amend one’s life in the future. It thus involves a modification in the ethical outlook of the offender: and this in turn suggests that if we are interested in reform it would be sensible to turn to reductive techniques rather than simple imposition of penalties. This has since been debunked as untrue , for criminals come out of prisons stronger and more determined with new tricks and strategies to commit more heinous offences. The theory is thus inadequate for analysis of the philosophy of punishment, hence rehabilitation is argued as an accompanying theory. Rehabilitation aims to offer the offenders opportunities to find a useful place in society on release from prison. It does not argue for a ‘no punishment’ for offenders. They must be punished fittingly and appropriately though, opportunities should be availed them to busy their minds away from crime e.g. provision of recreational, educational and vocational for prisoners. This is aimed at re-engineering their criminal mind and to ‘in steal’ in them the spirit of self-reliance if and when they leave prison. Long periods of incarceration make prisoners less able to cope with normal life in the outside world. It is only good that rehabilitation techniques are designed to counteract this and other undesirable effects of punishment. The issue concerning law and punishment is central to social harmony and should not be reduced to a neither nor question. It is not whether the reductionist theory is more effective than the retributivist theory in curbing or reducing crime as the case may be. Similarly the issue is not whether the reformative, rehabilitative or curative approaches to punishment should replace the reductivist and retributivist theories of punishment. Punishment of criminals is no doubt important if society must endure; but only as a means not as an end. It is thus suggested as a compliment of the reformative, rehabilitative and curative approaches which should be incorporated in the sentencing policies of the courts. If for example a drunken driver is sentenced to a jail term, he should, on completion of his prison sentence, be required to work in a hospital accident department or a rapist should be required to confront his under controlled conditions so that they can learn about the distress they have caused, but of cause, this again opens up a carn of moral problems. (An) action(s which may breach a rule for which punishment may be required as fitting and appropriate may be recommended by an actor as a Universal law. The epicurean categories of happiness as the purpose of life; that not acting the way he/she acted, which action caused a breach and unhappiness for others is frustrating. For the offender/criminal, life without such actions is not worth-living. Zeno committed suicide on account of this. Punishment and the Victims of Crime The focus of our analysis above is the criminal or potential criminal. The backward looking approach argues as the purpose of punishment as giving the offender his just deserts. The forward-looking approach on the other hand posits that the aim of punishment is to discourage possible future offenders. Similarly, the notions of reform, rehabilitation land cure have the offenders as the central focus of attention. The hapless victim, as it were, seems not to be an issue of discuss. In the proceeding discussion, we shall argue out a philosophy which makes the victim our primary concern of punishment. We shall argue two theories of punishment which aim at justifying the practice of punishment with reference to what is owed to the victims of crime. (i) Satisfaction Theory: This theory asserts that it is right to punish offenders because such punishment brings satisfaction or comfort to the victims of crime (and also perhaps to their family, friends, neighbours and associates).This it is argued is not bone out of desire for crude gratification and or revenge but what could best be understood as righteous indignation i.e. the legitimate sense of grievance felt by someone who has been wronged (and by his family, friends etc.). “This sense of grievance”, argues Cottinghan,”will typically be assuaged when the personal who caused it has been apprehended and brought to justice” Punishment understood here, is administered in order to satisfy the legitimate sense of grievance felt by the victims of crime. There are those who argue however, that the problems of calculating the amount of grievance felt by a victim measured against the amount of satisfaction felt on seeing the offender punished. These practical and ethical problems suggests that the satisfaction theory needs to be combined with some further justification theory, that, punishment is not be combined with some further justification theory, that, punishment is not only satisfying to the victim, but it is also a just payment to the offender for his wrongdoing. In the words of Cottinghan. “If the victims of crime did not have some expectation of the offenders being brought to justice, they would eventually ‘take the law into their own hands’. This in turn would lead to unregulated act of revenge and counter-revenge-and in time things would degenerate to the point where one had a series of uncontrolled. Vendettas rather than the rule of law… This line of thought does provide a strong utilitarian justification for the penal system, namely that it prevents the unfairness and instability which would in all likelihood arises if there were no officially institutionalized punishment . The argued position here is that, all laws; man- made and man discovered laws have sanction. This has been so eloquently articulated by Joseph Omoregbe thus; The end of all laws is the common good; in the case of positive law (man- made law) the common good is that of the society in which it is made while in the case of man-discovered law, the common good in question is that of the whole human community, conditioned by justice, peace and security . Compliance to these rules or failure on the part of man to subject himself to these rules entails sanction which in this case has to do with reward and punishment respectively (ii) Restitution Theory: The theory argues in favour of restoration or making good the loss suffered by the victim of crime. This theory favours a claim from the victim who as it were has the right to sue the criminal for damages in civil courts for compensation for the loss incurred. The central idea behind the restitution theory is that, the victims of crime should be as far as possible made good by the offender. T is suggested here hat offenders, even in prison, should be required to work the debt off. The idea here is that prisons should be run as profit making institutions with an appropriate national wage paid to the convict-workers, who would in turn off-set their indebtedness to the victim. Conclusion. We may conclude here that, punishment is an indispensable instrument of social order. Abused in tyrannical societies thought is symbol of the rule of law in a free, society. As a figure of justice, punishment is, and should be meted out impartially to the famous and the ordinary, the rich and poor, fittingly and appropriately. We may not argue like Bentham that “all punishment is in itself evil” because the object which all laws have in common is to augment the total happiness of the community. In all punishment therefore, it must be shown that, the pain that is inflicted in some prevents or excludes some greater pain. Punishment must be useful in achieving a greater aggregate of pleasure and happiness and has no justification if its effect is simply to add still more units or lots of pain to the community. As Jeremy Bentham himself concludes, the amount of punishment should never be greater than the minimum required to make it effective. He says; Punishment should be variable to fit the particular case, equable so as to inflict equal pain for similar offences commensurable in order that punishments for different classes of crimes be proportional characteristics so as to impress the imagination of potential offenders, frugal so as not to be excessive, reformatory in order to correct faulty behavior, disabling in order to deter future offenders, compensatory to the sufferer,, and, in order not to create new problems, have popular acceptance and be capable of remittance for sufficient cause . In the same spirit, we reason with professor J .I. Omoregbe who sums up the morality and rationality of punishment as a drive towards perfect happiness which is only attainable with the possession of the supreme good . Punishment, whichever form it takes, has two facets, namely, retrospective and prospective. The former looks back to its cause while the latter looks forward to its possible effect. The former is retributive while the latter is deterrent and corrective. The former is meant to restore the equilibrium of the moral and public order upset by the violation, while the latter is meant to deter the offender as well as other people from future violation of the law.