Bachelor Thesis from the year 2011 in the subject Law - Criminal process, Criminology, Law Enforcement, grade: 1, University of Hull, language: English, abstract: This writing argues that punishment should be interpreted in wide social, political, and economic contexts. The cultural prism is seen as a determinant variable which defines the use and perception of punishment; defines its meanings and acceptability. Analysis of various ways of punishment may help to unfold specific cultural features of particular society.
This academic account discusses theoretical justifications of punishment. The paper critically analyses the characteristic features of the late modernity that may have an impact on the tendency of high punitiveness in contemporary Western societies. It aims to unfold the negative effects of imprisonment and look at related to incarceration issues in a broad social context. Through critical overview of theoretical explanations of punishment this paper points to the substantial potential of penal abolitionism. The paradigm of penal abolitionism is seen as a source of alternative ideas to the dominant discourse of punishment. The inquiry into abolitionist ideas in general, and into Nils Christie's works in particular, attempts to suggest that an open creative approach towards non-punitive innovations may prove to be beneficial to all members of society.
This paper attempts to explain the tendency of high punitivity in some Western societies (including the UK) by pointing to their common cultural aspects. Philosophical ideas and theoretical interpretations of punishment are seen as additional variables that contribute to broader social meanings, understanding, and implementation of penal practices.
Penal practices reflect specific frameworks of values. Contemporary Western countries share similar social trends such as consumerism, individualism, and insecurity, yet in respect of punitivity they have different levels of tolerance. Cultural context shapes the application of penal practices. Penal institutions and theoretical justifications of punishment, besides from being part of politics and economy, represent specific features of collective conscience, archetypes, and power relations within society. Justifications of punishment and its legislative enactments are conditioned by multiple social causes. To sum, penal practices have complex causes and they produce complex consequences.
Criminology is comprised of wide circle of schools and theoretical movements. Still, the development of criminological discipline originated from classical and positivist schools. Classical school (the eighteenth and early nineteenth centuries) based explanations of crime and punishment on the social contract idea and individual's free choice. Theoretical approach of positivism developed in the nineteenth century along with developing modern society. Positivists regarded crime as a consequence of societal pathology. In the twentieth century these two theories existed alongside in scholarly discourse, thus being underpinning philosophies for crime control and prevention practices. Classicism emphasized several principles that are still valid in contemporary criminal law; at its core is the idea of proportionality and punishment is seen as deterrent. The principle of equality prescribes that everyone should receive identical penalties for identical criminal offences. Classicists appealed to the notions of rational action and free will - hereby individual was seen as free to choose and, consequently, responsible for one's choices/actions. Immanuel Kant has implied that offenders should be perceived as a property of the state whose right to punish is a categorical imperative (Ruggiero, 2010). In contrast to classical approaches, positivists argued that the concept of rational and non-determined individual is empirically non-provable construct. Thus representatives of positivist paradigm shifted research direction from crime to the causes of criminal behaviour. This shift was underpinned by the popular reliance on natural science methods of research, assuming that social sphere and the problem of crime could be examined as measurable data.
As both paradigms provide different interpretations of crime and criminal behaviour, their explanations of punishment also differ. Punishment itself means deliberate and intentional infliction of pain upon human being. Physical torture, deprivation of liberty, or any other sort of punishment (or as ever frequent fines of late modernity) inflicts pain, either physical or psychological. Although there is a common agreement on punishment as an a priori infliction of pain, there is no conventional opinion on whether a punishment is wrong, or not (Duff and Garland, 1994). Hence the legitimization of punishment is explained in different ways. Classical school of criminology argues that the principal purpose of punishment is retribution to offender for the damage s/he has done to society. Punishment inevitably follows criminal action. Positivist school puts emphasis on reformatory and rehabilitative aspects of punishment. In extreme cases, when it is impossible to change an individual and thus protect the society from repetitive crime, the necessity to deprive of opportunity to offend or elimination from society is suggested. The above outlined distinct theoretical positions are based on more profound philosophical assumptions.
Retributivism and utilitarianism are two fundamental philosophical approaches that provide different accounts on origins and functions of punishment. Retributional or retaliatory approach unfolds that revenge, in contrast to retribution, is not a punishment. Retribution means restoration of balance in society; it is impersonal and proportionate to the damage caused to society (Duff and Garland, 1994). Society's right to punish is underpinned by the idea of social contract. Members of society freely agree to comply with conventional compulsory regulations. Consequently, consent to comply with rules and regulations means that infringement of those regulations will be followed by punishment. So, social contract is a base for punishment, and society is placed above the individual (Pollock, 1997). For the wellbeing of community individuals agree to sacrifice part of their liberties and rights. Theoretically, the idea of social contract may appear straightforward, yet in practice it imposes several problems.
From the critical point of view it might be argued whether all members of community agree with compliance with collective norms; and whether norms reflect interests of whole society. Recognition of social heterogeneity may lead to the conclusion that some members of society are forced to obey the rules that they did not agree to comply with in a first place. Furthermore, they are punished for breaching interests of society, whose members they do not perceive themselves to be. Retributional approach seems to contain its validity until its fundamental assumption of social contract is questioned. Non-differential perception of offender, or acceptance of criminal as an equal member of society, is another important aspect of retributionism. Offender is a member of society with all their rights and duties; offender has a right to be punished. Society has a moral obligation to punish wrongdoers, because the opposite would suggest discrimination. Retributional approach regards wrongdoer as an ordinary, rational person, who has a freedom of choice. Individual knows that punishment usually follows after breaking the rules, therefore one makes an informed choice of committing a crime. Equality before the rule of law may be disputed by pointing to social inequality and its impact on various levels.
According to utilitarianism, whose early advocate was Jeremy Bentham (1748-1832), punishment itself is iniquity. Nonetheless, application of this 'wrong' is justified by its potential to prevent further wrongs (Pollock, 1997). Punishment can be manifested as a public intimidation; it can serve as rehabilitation or can deter offender from committing further crimes. All means can be employed for good causes. Utilitarian approach also relies on the social contract idea, but emphasis is placed on different aspect. Society must be protected from crime: right to punish derives from the duty to protect the public. The idea of general prevention, or social security, becomes legitimization of punishment.
Retributionist paradigm is retrospective: punishment is a consequence for breaching the law. Utilitarianism, on the contrary, is a prospective paradigm: punishment aims to prevent further crime. Punishment differs from revenge in both paradigms, for it is argued that punishment should be calculated to inflict pain proportionately to the damage done to the social interest. Pains of punishment are allowed to be slightly greater than pleasures of deviance though. Punishment is needed to restore the balance in society. In the ideal circumstances punishment is regarded as a minimal necessary amount of pain, which cannot be exceeded.
Friedrich Nietzsche (1844-1900) traces back the suspicion and the resentment that emerged with the historical beginning of commercial contracts. 'Where did we derive this ancient idea, so deeply rooted, that damage implies an equivalent pain in order to be redressed? ... [This idea derives] from the fundamental models of purchase, sale, and commerce' (Nietzsche, 1887, cited in Ruggiero, 2010: 68). Punishment reaches traditions when creditors had a right to take from debtors something that ultimately constituted their human power and could have been manipulated or taken away by another more powerful human (their body, freedom, even life) as a deposit or a pawn. Nietzsche interprets retributivism as a human sentiment, as a vulgar commercial exchange.
Bianchi suggests that criminal law should be called reparative law, hereby engaging offenders in discussions around the harm caused and its reparations (1994, cited in Ruggiero, 2010). Offender could be regarded as 'simply a debtor, a liable person whose human duty is to take responsibility for his or her acts, and to assume the duty of repair. Guilt and culpability should be replaced by debt, liability and responsibility' (Bianchi, 1994, cited in Ruggiero, 2010: 178). In this case, almost paradoxically, prescription of the label of debt, rather than crime, and regarding individual as debtor, rather than criminal, could be a more constructive perception. This theoretical suggestion appears to be problematic, because in cases of socially and economically disadvantaged individuals they may see the whole society as unjust and actually in the position of debtor. Debts point to circumstances that condition the 'borrowing', which is not just a mere reflection of free choice. The right to punish, prescribed to the creditor, is no less problematic.
The free will, argues Nietzsche, is a trick of theologists, who aim at making humanity 'responsible', namely subject to them (1968, cited in Ruggiero, 2010: 203). 'Nietzsche (1968) posits that, wherever responsibilities are sought, the persons seeking them follow their desire to judge and punish. When ... everything is deemed dependent on intentions, guilt becomes readily available, and consequently legitimacy for the infliction of pain is rapidly created' (Ibid.). Following this logic, in our analysis religious authorities can be replaced with the secular authoritative parties that claim their legitimate power to punish. In Christianity human beings are deemed free so that they can be found guilty, judged and tortured. Theological motives...