Theories of Punishment with Special Reference to Reformative Theory

Theories of Punishment with Special Focus on Reformative Theory Neetij Rai

Abstract: As Hobbes said that in the state of nature people were nasty, brutish and their life was short. Locke viewed that the people in the state of nature agreed a social contract in order to establish a formal law. In Rousseau‟s view, the social contract was done for the security of property and liberty. Thus from the very beginning of the origin of state, the concept of crime and ways of preventing it or if not, punishing the wrong-doer existed. The punishment system is an integral part of criminal justice and for maintaining social security. The progress of civilization has resulted in the change in the theory, method and motive of punishment.

Punishment can be used as a method of reducing the incidence of criminal behavior either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence of by reforming them into law-abiding citizens. Thus, theories of punishment comprises of policies regarding handling of crime and criminals. They are classified into 4 kinds. All these are not mutually exclusive and each of them plays an important role in dealing with potential offenders. The theories of punishment are: i) ii) iii) iv) Retributive theory Deterrent theory Preventive theory Reformative theory

The paper also puts some light on reformative theory in Nepalese Penal System.

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Student, Kathmandu School of Law, L.L.B. 2 Year.

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Theories of Punishment:

i)

Retributive Theory:

"The punishment the purpose of which is to satisfy the community‟s retaliating sense of indignation that is provoked by justice."1 This theory is based on the principle of "eye for an eye" or "tooth for a tooth" and it accorded exclusive recognition in the ancient time. It suggested that the evil should be returned to evil without any regard to consequences. Therefore it emphasized the idea of vengeance. In this way it is an end in itself. It is still prevailed in many Islamic countries.

Criticism: It is criticized on many grounds. Most importantly it didn‟t treat punishment as an instrument for securing public welfare rather it treated punishment as an end in itself. Most penologist disagree with a view of making the offender pay their does because no sooner any offender completes their term of sentence they think that their guilt is washed off and are free to indulge in criminality again. Hence, in today‟s context, it is neither wise nor desirable.

ii)

Deterrent Theory:

"Punishment the purpose of which is to deter others from committing crimes by making an example of the offender so that like minded people are warned of the consequence of crime."2

It is based on the principle of deterrence of the potential offender. It is in fact, one of the most important aspects of punishment. It works on 2 conceptions. a) Inflicting severe penalties on offender with a view of deterring them from crime. b) Creating a kind of fear in the mind of others by providing adequate penalty and exemplary punishment to offenders. committing

1 2

Bryan A. Garner, Black's Law Dictionary, 7th Edi. P.g.1248 Ibid, P.g.. 1247

It thus aims to create terror in the mind of criminal and safeguard the society. It emphasized harsh punishment like exile, death penalty and imprisonment. It was widely accepted in the medieval period.

Criticism: It fails in the case of hardened criminals because the severity of punishment hardly has any effect in them. It also fails in those cases which are committed in a spur of moment without any prior intention. iii) Preventive Theory:

"Punishment the purpose of which is to prevent a repetition of the wrongdoer by disabling the offender."3 It is based on the proposition „not to avenge but to prevent it‟. Its objective is to deprive the offender either temporarily or permanently, of the power to repeat the offence through measures like imprisonment, death sentence, exile, forfeiture of office etc. According to Justice Holmes "there can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent the conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment."4 Suspending the corrupt officer from his/her post, cancellation of driving license, awarding death penalty to hardened criminals are the examples of the theory.

Criticism: A person may commit crime under some psychological stress and in such cases he/she has very less chance of repeating it. Therefore in such condition preventive theory seems meaningless. Preventing the offenders might even develop the tendency in the offender to commit the crime again.

3

Bryan A. Garner, Black's Law Dictionary, 7th Edi. P.g.1248 V.d. Maharjan, Jurispuudence and Legal Theory, 5th Edi., Eastern Book Company,Lucknow, P.g. 138

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iv)

Reformative Theory:

"Punishment the purpose of which is to change the character of the offender."5 According to roman jurisprudence, punishment shouldn‟t be for the sake of punishment; rather it should be for reform. 6 After the retributive, deterrent and preventive theories couldn‟t reduce crime in society, a new theory called reformative theory was introduced at around 18th century. Especially after the humanist movement under thinkers like Becearia and Bentham the new theory began to evolve. The distinct feature of the theory is that unlike others it focused on the criminal rather than crime and seeked to bring about a change in the attitude of the offender so as to rehabilitee him/her as law abiding member of society. 7According to this theory, crime is related with the existing psychological or physical characteristics of the offenders and with the environment and circumstance of the society. Hence, the criminal is treated not as a criminal but rather as a patient. Thus punishment is not used as a measure to reclaim the offender and not to torture or harasses him/her. Hence it condemns all kinds of corporal