Utilitarianism and retributivism in cesare beccaria the italian law. Retributivism was the clear beneficiary of such an approach. For one thing, the criterion dispute includes a dispute about whether there is any such moral instinct. Although the view that punishment is to be justified on utilitarian grounds has obvious appeal, an examination of utilitarianism reveals that, consistently and accurately interpreted, it dictates unjust punishments which are unacceptable to the common moral consciousness. I end by arguing that, given the insights of behavioral psychology, utilitarian goals of punishment are not sufficiently accomplished under limiting retributivism. A major focus is on the deterrent effect of a criminal statute because if a criminal statute deters a criminal act then the public benefits because the crime does not occur. Utilitarianism an introduction to the moral theories of jeremy bentham and john stuart mill. According to the retributive theory the purpose of punishment is to seek revenge. Kantian and utilitarian ethics on capital punishment.
However, there are at least three ways in which this might be the case. Utilitarianism and abortion essay example graduateway. Theories of punishment can be divided into two general philosophies. Draper, an introduction to jeremy benthams theory of punishment, journal of bentham. Utilitarians therefore, have a prima facie difficult time justifying punishment. Karl menninger, whose views we considered in chapter two, gives such a theory. The utilitarian theory of punishment can be summed up as the state punishing an individual when that punishment results in a greater aggregate good for society. Pure cost benefit for example, locking up a violent criminal in order to protect society from further. Utilitarian and retributivist theories of punishment essay. Thus, the two questions bentham wishes to apply utilitarian moral theory to answer are.
Governments have several theories to support the use of punishment to maintain order in society. Jan 31, 2012 the utilitarian theory of punishment i. These counterintuitive results suggest there is something wrong with utilitarian premises. Under this utilitarian model, reducing crime is the most important factor in. Utilitarian theories of punishment essay example topics and. Materni abstract since the beginning of recorded history societies have punished offenders while at the same time trying to justify the practice on moral and rational grounds and to clarify the relationship between punishment and justice. As opposed to the utilitarian side, which bases the severity of punishment upon how much it will benefit society as a whole, the retributive side instead looks at the actual illegal act, executing a punishment that fits the act. Utilitarianism is the view that the rightness of an action depends entirely on expected utility, that is on the sum of the utilities of its consequences weighted by their various probabilities. An introduction to jeremy benthams theory of punishment.
Click here to read the utilitarian theory of punishment. The utilitarian theory of punishment university of north. Criminal punishment and the pursuit of justice harvard law school. The dichotomy of retributive justice vs utilitarian justice largely reflects the distinction between a consequentialist and nonconsequentialist approach to policy see duff and garland 1994. Punishment is awarded to reduce crimes and used as means to an end, is the claim of the utilitarian. It addresses the meaning of ethical terms such as right, duty, obligation, justification, morality, responsibility.
Posted by andrew on may 5, 2012 in criminal law, key concepts 0 comments. Those who think of bentham as a rationalistic eccentric and of utilitarian ethics as coldly calculating should read the next two paragraphs in which bentham excoriates his fellow countrymen for. James mills son, john stuart mill, would become the leading advocate of utilitarian moral theory for the next generation, so the benthamite movement would. The mistake comes from ignoring the painpleasure dimension of benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion of action in a topdown fashion. The tern utilitarianism was established or became from philosopher benthams test question. Motivations and characteristics of the utilitarian approach to punishment. The question of punishment is one which has always interested and usually puzzled moralists, and which forms a crucial example for the testing of moral theories. Much debate surrounds how to punish criminal offenders. The term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for certain purposes. Utilitarianism, by john stuart mill the selfdevelopment of the individual in his in.
Utilitarianism in crime and punishment by katie jander on. Punishment is justified because, it is claimed, it helps to control crime. Theoretical attacks on utilitarianism the decline of utilitarian punishment and sentencing was also greatly accelerated by the fact that at the theoretical level there was a. Utilitarianism john stuart mill mcmaster faculty of social. Jeremey bentham the following is composed of selections from benthams an introduction to the principles of morals and legislation. The retributive theory seeks to punish offenders because they deserve to be punished. Utilitarianism and punishment volume 25 issue 34 j. The retributive theory seeks to punish offenders because they deserve to be.
The retributivist and utilitarian theories for justification of criminal punishment. Utilitarian justifications for punishment our first theoretical foray into punishment is the utilitarian perspective. Of the various theories of punishment the following there are the most important and typical retributive, preventive and reformative. May 05, 2012 another problem for utilitarian theorists is that, for the theory to work properly, other factors such as moral culpability or remorse cannot be weighed in determining punishment. Criminal punishment and the pursuit of justice mike c. The utilitarian authors will offer answers to such questions as.
The short answer is when the costs of punishment in terms of utility are outweighed by the gains in utility by punishment, then we should punish. This file may be copied on the condition that the entire. This account of punishment, unlike the others, is backward looking. Utilitarian theorists believe that punishment should be developed based on what is best for the public as a whole. For menninger, punishment is nothing but the infliction of pain and suffering. Utilitarianism states that the result of an act is the real measure of whether it is good or bad. The work from which our reading is taken, utilitarianism, deepens and strengthens the greatest happiness principle of jeremy bentham and his. The utilitarian justification for punishment appeals to what is best for society in general, and over the long run. The utilitarian theory of punishment seeks to punish offenders to discourage, or deter, future wrongdoing. A humanitarian theory is a variation of utilitarian theory that advocates therapy and treatment, not punishment. Nov 04, 2015 theories of punishment can be divided into two general philosophies. Punishment theories of punishment utilitarian, society, theory. Social norms, necessity, and social desirability are some of the factors that lawmakers balance when developing punishment statutes.
Whatever can be proved to be good, must be so by being shown to be a means to something. Feb 15, 2010 utilitarianism an introduction to the moral theories of jeremy bentham and john stuart mill. Social cohesion, punishment intended to have effect upon honest people, punishing crime is a societal goal because crime is against society itself. Download file to see previous pages this theory relies on some intrinsic value being installed within a person initially in order for these decisions and distinction to be made. Pdf kantian and utilitarian ethics on capital punishment. This theory is based off the basic utilitarian principle that you should create policies and choose actions that create the greatest good for the greatest number. In this paper i will defend both the proponents and principles of the utilitarian theory of punishment, namely addressing the utilitarian approach juxtaposed with the retributive. If the public does not believe that punishment is consistent for every offense of a certain crime then, even with notice, the potential punishment may not deter an. A more pure form of utilitarianism is required to achieve utilitarian goals with hard and fast. Kant objections on utilitarianism utilitarian theory of punishment premised from phl 449 at ryerson university. So, all of the utilitarian justifications for punishment are bad ones, according to kant. As utilitarianism aims at maximizing utility or happiness, it follows that punishment should be applied when it leads to an improved situation.
Utilitarian and retributivist theories of punishment. The retributive or retributivist theory of justice considers punishment as an intrinsically appropriate. This theory emphasizes end over means, therefore it is a teleological or consequentialist ethical theory. Theories of punishment legal definition of theories of. It is for them alone to point out what we ought to do, as well as to determine what we shall do. Theories of punishment and mandatory minimum sentences.
Punishmentretribution, rehabilitation, and deterrence. Mccloskey, a nonutilitarian approach to punishment. Kant advocated two principles regarding how punishment should be administered. One of his followers was james mill, the distinguished scottish philosopher, historian, and economist. It is evident that this cannot be proof in the ordinary and popular meaning of the term. Utilitarian theory of punishment 99 indirect consequences stemming from it. Utilitarianism is an ethical theory according to which the.
These families are known as criticallevel utilitarianism and criticallevel generalized utilitarianism. Part iii we apply them to retributive and mixed theories of punish ment. This theory is based off the basic utilitarian principle that you should create policies and choose actions that create the. Introduction since the dawn of civilization, societies have felt the need to impose order by regulating human relations and interactions according to a set of laws or code of conduct. A utilitarian theory, whether of the hedonistic or of the ideal kind, if it justifies punishment at all, is bound to justify it solely on the ground of the effects it produces. As utilitarianism is a form of consequentialism, the utilitarian must look to the consequences or outcome of possible punishment to determine when punishment should be applied. Theoretical attacks on utilitarianism the decline of utilitarian punishment and sentencing was also greatly accelerated by the fact that at the theoretical level there was a move towards. Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.
Theories of punishment legal definition of theories of punishment. The retributivist and utilitarian theories for justification. On the utilitarian and retributive justifications of punishment. For one thing, the criterion dispute includes a dispute about whether. Extract of sample utilitarian theories of punishment. In addition, we will give voice to some major objections to the utilitarian theory. Bentham begins by laying out the principle of utility. All of the questions about the justification of punishment general justification, title and severity will be answered by appeal to the utility value of the consequences of an action. While defenders of utilitarianism have shown that a publicly announced policy of punishing the innocent is unlikely to serve utility, critics have insisted that utilitarianism morally obliges. The ethics of punishment philosophy cambridge core. Theories of punishment and mandatory minimum sentences the. Aug 10, 2008 the most widely repeated retributivist argument against the utilitarian theory of punishment is that utilitarianism permits punishment of the innocent.
Under the utilitarian philosophy, laws should be used to maximize the. Proponents of the incapacitation theory of punish ment advocate that offenders should be prevented from committing further crimes either by their temporary or permanent removal from society or by some other method that restricts their physical ability to reoffend in some other way. Analysis of the language, concepts and methods of resoning in ethics. Traces of utilitarian thought can be found in the works of.
Ethics four branches 3 metaethics the study of ethical terms, statements and judgements. May 27, 2010 increasing the certainty, swiftness, and severity of punishment will result in the utilitarian goal of reduced crime. Kant objections on utilitarianism utilitarian theory of. Utilitarian theory of punishment 97 about the purposes of sentencing, and it is at. Retributivism asserts that the person who has committed a crime deserves to be punished ac. Questions of ultimate ends are not amenable to direct proof. Retributive theory of punishment vengeance theory it is a concept of primitive society which consists of injury inflicted by way of retaliation by victim of crime on actor of crime, which requires the existence of victim as well as a wrong doer. Traces of utilitarian thought can be found in the works of plato and aristotle, but not until the eighteenth century did utilitarianism truly begin to emerge as a welldefined and. Bagaric, mirko in defence of a utilitarian theory of punishment. Increasing the certainty, swiftness, and severity of punishment will result in the utilitarian goal of reduced crime. Before beginning to make claims in any direction, a brief and todate synopsis of the utilitarian fundamentals regarding punishment will be necessary. Under the utilitarian philosophy, laws should be used. Utilitarian theory does not endorse such theories because greatest principle of happiness suggests that abortion does not make most people very happy. The aim of the philosophy of punishment is to understand the reason behind administration of punishment and the procedure used in determining the suitable punishment.
George hegel and immanuel kant criticized and rejected the utility theory, presented the contrast retributive theory of punishment, which is of nonutilitarian on the premises that punishment is not means to an end but end in itself. Utilitarian justifications are forwardlooking consequentialistic in nature. The most widely repeated retributivist argument against the utilitarian theory of punishment is that utilitarianism permits punishment of the innocent. Pdf an introduction to jeremy benthams theory of punishment. Utilitarian punishment theory justified in the purpose it serves. Bentham adds that this punishment is reserved for negro slaves guilty of rebellion. Utilitarianism in crime and punishment by katie jander on prezi. Utilitarianism is based on the principle of utility. Accordingly, these examples are widely thought to illustrate the implausibility of the utilitarian theory of punishment. Pdf it is an indisputable fact that most societies in the world agrees that if a person violates the laws, heshe should be penalized. On the utilitarian and retributive justifications of. In the third scenario, abortion is considered illegal because except in the exceptional situation of rape. In other words, punishment helps to keep society balanced.
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