Theories (or objectives) of punishment

Broadly speaking, four theoretical explanations have been advanced as the basis upon which society acts in imposing penalty upon one who violates laws.

These are: (i) to effect retribution or revenge or vengeance; (ii) to restrain offender physically so as to make it impossible for him to commit further crimes; (iii) to deter others from similarly violating the law; and (iv) to bring about reformation of the offender. These objectives are also described as bases for the origin of punishment.

Lowie (Primitive Society, 1920: 397-405) has described two more bases in the origin of punishment. One is the conflict of interests of different groups, as one group imposed its authority upon another; and the other is the fear of offended gods. Accepting the fact that tracing origin of punishment is not easy, it may be said that crime and punishment are functionally related to the culture in which crime occurs.

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Reid (1976: 44-96) has referred to three objectives of punishment.

These are:

1. Incapacitation:

This aimed at making the offender physically incapable of committing offence again by giving him corporal punishment. This involved cutting of hands, making him blind, sexual castration for sexual perverts, branding an individual on the forehead with the letter indicating the type of crime committed (as was done with three women offenders in Punjab in 1994), and so on. Today, such practices are not endorsed.

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2. Reparation:

This is an act of compensating for loss or damage demanded from the criminal. The criminal is asked to restore the victim to his state prior to the crime. This method is prevalent more in civil cases where damages are paid to the victim out of the fine imposed on the offender. However, this philosophy is not applicable in criminal law. How can one repay for murder, rape or assault?

3. Maintenance of social solidarity

The justification for punishment is that (a) it prevents private revenge, and (b) it upholds the moves of society. Durkheim (The Division of Labour in Society, 1964: 108) has stated that “the true function of punishment is to maintain social cohesion intact”.

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When people feel that state is not taking punitive action against an offender, they may take the law into their own hands. The criminal law should therefore meet the natural desire for vengeance.

It is said that many people repress their desires to commit offences. They therefore enjoy punishing others who have been caught committing them. This view not only lacks support of empirical evidence but also suffers from a basic flaw that there is no way to determine how much, if any, punishment is necessary to prevent private revenge.

Caldwell (1956: 390) has referred to three purposes of punishment: retribution, deterrence and reformation. Expiation as purpose of punishment is no longer given importance because it is chiefly used in a religious sense.

Expiatory principle regards crime as a violation of the divine or moral order. The moral order can be restored, or the violation atoned for, only by inflicting pain upon the one guilty.

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Expiation thus refers to infliction of pain and suffering to make amends for an offence to appease the deity and to enable the wrong-doer to make amends or work for his inward moral development and spiritual regeneration after a sin/crime has been committed.

We will, therefore, analyse in detail only three theories of purposes of punishment, viz., retributive, deterrent and reformative.