WEEK 1
Why Criminal Law?
Theories of Punishment & Principles of Criminalisation
PART 1 – THEORIES OF PUNISHMENT - LECTURE
What is punishment?
Not every form of governmental coercion is punishment – example: COVID-19 measures
- Punishment is intentionally inflicted harm or pain (doesn’t have to be physical harm)
- Professor Hart in his book Punishment & Responsibility described punishment as:
1. It must involve pain or hardship
2. For an offence against the rules
3. Of an actual offender for his offence
4. Intentionally imposed (by someone else then offender/victim)
5. By an authority constituted by a legal system against which the offence is committed.
Is punishment a “moral” evil?
Examples from different religions:
- Do not do to others what you would not like to be done to you (Christianity)
- Once, who while himself seeking happiness, oppress with violence other beings who also desire
happiness, will not attain happiness himself (Buddhism)
- One should never do that to another which one regards as injurious to one’s own self (Hinduism)
- Hurt no one so that no one may hurt you (Islam)
Hobbes said: “Punishment is an Evil inflected by publique authority on him, that hath done or omitted
that which is judged by the same authority to be a transgression of the law; to the end that the will of
man may thereby be the better be disposed to obedience -> Punishment is therefore necessary evil
Theories of Punishment
- Rooted in the Enlightenment period (17th and 18th century)
- Rationalisation of criminal law and punishment
- RETRIBUTIVE THEORY OF PUNISHMENT: OFFENDERS SHOULD BE PUNISHED BECAUSE THEY DESERVE
TO BE PUNISHED (Kant, Hegel)
- UTALITARIAN THEORY OF PUNISHMENT: OFFENDERS SHOULD BE PUNISHED IN ORDER TO
DISCOURAGE OR DETER FUTURE OFFENCES (Hobbes, Bentham)
,What is retributivism?
- Retribution Is restoring moral balance
- Justification not in external goals (deterrence)
- Punishment rights a (public) moral wrong
- Offenders are punished because they deserve punishment
- Through punishment the crime is undone
- Kant said: punishment can never be used merely as a means to promote some other good for the
criminal himself or for civil society, but instead it must in all cases be imposed on him only on the
ground that he has committed a crime
Forms of retributivism:
- Negative retributivism: desert is necessary condition for the justification of punishment, but showing
that people deserve punishment provides no positive reason for punishing them
- Positive retributivism: Desert is both a necessary condition for the justification of punishment and a
sufficient positive reason for punishing. (e.g Kant)
Principles of retributive justice:
- Principle of guilt: only the guilty should be punished – nulla poena sine culpa, sine lege
- Why? Because human have free will
Rational choices between good and evil
- Retribution respects autonomy of human being as a free, responsible subject
- Principle of proportionality – people deserve punishment in proportion to their guilt and the harm
they caused
- Already in Bible: “Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot”
- The crime should be the starting point, not the effect on the criminal
- Retributive justice is looking backward (past) not forward (future)
Criticism of retributive justice
- Is distinction vengeance (zemsta) and retribution real?
- Retribution is not a moral reason for punishment… but immoral rationalization for vengeance
- How can two wrongs ever make a right?
- Why should justice demand for inflicting extra harm?
- Why should justice not ask for compensation, restoration or even forgiveness?
- Equivalence problem: how to determine which sentence fits crime?
- How free (and rational) is our so called free will? - brain tumor caused pedophilia case
- Can we be free in a universe ruled by nature’s law?
,Can we say no to free will, but still say yes to criminal responsibility/ punishment?
- Retributive justice needs free will
- Utilitarians or consequentialists can still justify punishment
Why?
- Because of (potential) beneficial effects through deterrence, containment….
UTALITARIAN THEORY OF PUNISHMENT
- Laws should be used to maximize happiness in society
- Punishment is not an intrinsic good
- Crime and punishment are inconsistent with happiness, so they should be kept to minimum
- An offence is not punishment for its own sake but for the good effects it may have
- We should endeavor to inflict only as much punishment as is required to prevent future crimes
- Utilitarian theory is consequentialist in nature … foreward-looking approach
UTALITARIAN REASONS FOR PUNISHMENT
- An offence is only punished for good effects
- Rationale entirely to prevent future crime
- General deterrence – preventing other people from committing criminal acts
- Specific deterrence – preventing the same person from committing criminal act
- Rehabilitation – reforming criminal
- Incapacitation – protecting society from the criminal – containment of dangerous individuals
Some problem with deterrence theory
- Incompleteness problem
- Measurement problem
PART 1 – THEORIES OF PUNISHMENT – BOOK
American legal scholar Packer add to the definition of punishment additional Cumulative element. (to
Hart’s theory)
Different definitions of punishment:1
to reprove and to call to order '(Hulsman)
the disapproval and rejection of the action' (Glastra van Loon)
1
Textbook p.13
, 'to reproach or to blame normatively, so that the person addressed suffers' (Gutwirth and De Hert)
'a government response to a violation of a penal provision expressed in the context of a criminal process'
(De Hullu)
FINAL DEFINITION OF PUNISHMENT – A reaction by the state to a breach of criminal law containing the
intentional infliction of suffering.
Distinction between criminal law and any other branch of law like civil law- Civil law puts citizen in charge,
when criminal law puts state in charge. Also criminal law gives sanctions, when civil law concentrate on
compensation and reparation.
Every crime is a tort, but not every tort is a crime -> According to Blackstone crime is a public wrong,
when tort is a private wrong. Duff adds to the definition, that we should interpretate a public wrong not
as a wrong that injures the public, but as one that properly concerns the public.
Administrative law is like criminal part part of public law. Administrative measures such as administrative
coercion and administrative performance bond are primarily orientated towards reparation and
prevention. If those sanctions lead to suffering, this suffering is not intended.
Introduction of administrative fine brought retributive component. Administrative criminal law :
punishment by means of administrative fines, in order to relieve the classic criminal law system.
Beccaria and Montesquieu realized that criminal law should not only be surrounded with more
procedural safeguards for the (suspected) citizen then was the case during Ancirn Regime but also that it
should be more efficient in realizing certain goals of criminal politics including the repression and
prevention of crime.
Both retributive and utilitarian philosophers were supporters of criminal law as the utalimum remedium
(subsidiarity) of punishments with moderation of clearly written criminal laws of a criminal law focusing
on the act instead of intention and of retrospective reactions to crime.
Enlightenment – tension between the idea of man as responsible and free will demi-god (spirit) and the
idea that man is an utterly causally determined, manipulable and controllable machine.
Why Criminal Law?
Theories of Punishment & Principles of Criminalisation
PART 1 – THEORIES OF PUNISHMENT - LECTURE
What is punishment?
Not every form of governmental coercion is punishment – example: COVID-19 measures
- Punishment is intentionally inflicted harm or pain (doesn’t have to be physical harm)
- Professor Hart in his book Punishment & Responsibility described punishment as:
1. It must involve pain or hardship
2. For an offence against the rules
3. Of an actual offender for his offence
4. Intentionally imposed (by someone else then offender/victim)
5. By an authority constituted by a legal system against which the offence is committed.
Is punishment a “moral” evil?
Examples from different religions:
- Do not do to others what you would not like to be done to you (Christianity)
- Once, who while himself seeking happiness, oppress with violence other beings who also desire
happiness, will not attain happiness himself (Buddhism)
- One should never do that to another which one regards as injurious to one’s own self (Hinduism)
- Hurt no one so that no one may hurt you (Islam)
Hobbes said: “Punishment is an Evil inflected by publique authority on him, that hath done or omitted
that which is judged by the same authority to be a transgression of the law; to the end that the will of
man may thereby be the better be disposed to obedience -> Punishment is therefore necessary evil
Theories of Punishment
- Rooted in the Enlightenment period (17th and 18th century)
- Rationalisation of criminal law and punishment
- RETRIBUTIVE THEORY OF PUNISHMENT: OFFENDERS SHOULD BE PUNISHED BECAUSE THEY DESERVE
TO BE PUNISHED (Kant, Hegel)
- UTALITARIAN THEORY OF PUNISHMENT: OFFENDERS SHOULD BE PUNISHED IN ORDER TO
DISCOURAGE OR DETER FUTURE OFFENCES (Hobbes, Bentham)
,What is retributivism?
- Retribution Is restoring moral balance
- Justification not in external goals (deterrence)
- Punishment rights a (public) moral wrong
- Offenders are punished because they deserve punishment
- Through punishment the crime is undone
- Kant said: punishment can never be used merely as a means to promote some other good for the
criminal himself or for civil society, but instead it must in all cases be imposed on him only on the
ground that he has committed a crime
Forms of retributivism:
- Negative retributivism: desert is necessary condition for the justification of punishment, but showing
that people deserve punishment provides no positive reason for punishing them
- Positive retributivism: Desert is both a necessary condition for the justification of punishment and a
sufficient positive reason for punishing. (e.g Kant)
Principles of retributive justice:
- Principle of guilt: only the guilty should be punished – nulla poena sine culpa, sine lege
- Why? Because human have free will
Rational choices between good and evil
- Retribution respects autonomy of human being as a free, responsible subject
- Principle of proportionality – people deserve punishment in proportion to their guilt and the harm
they caused
- Already in Bible: “Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot”
- The crime should be the starting point, not the effect on the criminal
- Retributive justice is looking backward (past) not forward (future)
Criticism of retributive justice
- Is distinction vengeance (zemsta) and retribution real?
- Retribution is not a moral reason for punishment… but immoral rationalization for vengeance
- How can two wrongs ever make a right?
- Why should justice demand for inflicting extra harm?
- Why should justice not ask for compensation, restoration or even forgiveness?
- Equivalence problem: how to determine which sentence fits crime?
- How free (and rational) is our so called free will? - brain tumor caused pedophilia case
- Can we be free in a universe ruled by nature’s law?
,Can we say no to free will, but still say yes to criminal responsibility/ punishment?
- Retributive justice needs free will
- Utilitarians or consequentialists can still justify punishment
Why?
- Because of (potential) beneficial effects through deterrence, containment….
UTALITARIAN THEORY OF PUNISHMENT
- Laws should be used to maximize happiness in society
- Punishment is not an intrinsic good
- Crime and punishment are inconsistent with happiness, so they should be kept to minimum
- An offence is not punishment for its own sake but for the good effects it may have
- We should endeavor to inflict only as much punishment as is required to prevent future crimes
- Utilitarian theory is consequentialist in nature … foreward-looking approach
UTALITARIAN REASONS FOR PUNISHMENT
- An offence is only punished for good effects
- Rationale entirely to prevent future crime
- General deterrence – preventing other people from committing criminal acts
- Specific deterrence – preventing the same person from committing criminal act
- Rehabilitation – reforming criminal
- Incapacitation – protecting society from the criminal – containment of dangerous individuals
Some problem with deterrence theory
- Incompleteness problem
- Measurement problem
PART 1 – THEORIES OF PUNISHMENT – BOOK
American legal scholar Packer add to the definition of punishment additional Cumulative element. (to
Hart’s theory)
Different definitions of punishment:1
to reprove and to call to order '(Hulsman)
the disapproval and rejection of the action' (Glastra van Loon)
1
Textbook p.13
, 'to reproach or to blame normatively, so that the person addressed suffers' (Gutwirth and De Hert)
'a government response to a violation of a penal provision expressed in the context of a criminal process'
(De Hullu)
FINAL DEFINITION OF PUNISHMENT – A reaction by the state to a breach of criminal law containing the
intentional infliction of suffering.
Distinction between criminal law and any other branch of law like civil law- Civil law puts citizen in charge,
when criminal law puts state in charge. Also criminal law gives sanctions, when civil law concentrate on
compensation and reparation.
Every crime is a tort, but not every tort is a crime -> According to Blackstone crime is a public wrong,
when tort is a private wrong. Duff adds to the definition, that we should interpretate a public wrong not
as a wrong that injures the public, but as one that properly concerns the public.
Administrative law is like criminal part part of public law. Administrative measures such as administrative
coercion and administrative performance bond are primarily orientated towards reparation and
prevention. If those sanctions lead to suffering, this suffering is not intended.
Introduction of administrative fine brought retributive component. Administrative criminal law :
punishment by means of administrative fines, in order to relieve the classic criminal law system.
Beccaria and Montesquieu realized that criminal law should not only be surrounded with more
procedural safeguards for the (suspected) citizen then was the case during Ancirn Regime but also that it
should be more efficient in realizing certain goals of criminal politics including the repression and
prevention of crime.
Both retributive and utilitarian philosophers were supporters of criminal law as the utalimum remedium
(subsidiarity) of punishments with moderation of clearly written criminal laws of a criminal law focusing
on the act instead of intention and of retrospective reactions to crime.
Enlightenment – tension between the idea of man as responsible and free will demi-god (spirit) and the
idea that man is an utterly causally determined, manipulable and controllable machine.
