LAW AND PUNISHMENT: THE MORALITY, THE RATIONALITY

By

Alloy S. Ihuah.
Department of Philosophy,
Lagos State University,
Ojoo-Lagos, Nigeria.

Text of a Paper delivered at the International Confrerence Organised by the Faculty of Law ROUND-
TABLE, Lagos State Universsity, Ojoo-Lagos, Nigeria, on 24th March, 2007
THE MORALITY AND RATIONALITY OF PUNISHMENT
Abstract:
This Paper argues that, law, as an ordinance of reason, directed towards the
common good, and enacted by a sovereign authority that has the care of the community, must
command human obedience and that, those who contravene the law or set rules must be
punished fittingly and appropriately.
Punishment.
Punishment is any act of penalizing the offender by imposing sanction that is in principle
unpleasant, this form of punishment excluding physical harm and denial of the right to life. It
may involve denial of certain physiological needs (rights), or defined prison sentences
administered by a competent authority with the view to rectify past wrongs or to scare off
others from committing an offence out of fear of the penal sanction he/she risks incurring if
caught. Punishment may also take the form of corporal punishment, which here means the
execution of a judicially imposed sentence that inflicts some manner of physical pain upon
the body of a convicted offender excluding his death. This form of punishment involves
flogging branding and facial or bodily mutilation of all types including sterilization,
castration and the used of cages.
There is also the extreme form of punishment, i.e,Capital punishment. It entails the
denial of one’s right to life. It sanctions death penalty. Its extreme objective is to scare off
people from suffice it to say here that, punishment, minimum or maximum, is in itself not
evil; it is not a long-standing institution whereby the powerful do nasty things to their
subjects. On the contrary, punishment has always been closely associated with the ideas of
law and justice. People are punished only for something they have done or failed to do. It is
in this wise that punishment is understood as sanction imposed on an offender for a breach of
a law or rule, not a gratuitous exercise of power. It must be deserved to be administered on an
offender. J.I. Omoregbe explains this concept further and better thus;
The first meaning of punishment is…privation consequent upon the violation of the
order demanded by law. In this sense, punishment is primarily retributive…the
second meaning of punishment…relates to the effects its threatened deprivations
have. On account of these, a man may be deterred from future violation or his will

2
 may be better disposed to choose as he ought, that is according to the demands of the
law1

Justification of Punishment
All punishment, it is said, must involve the penalizing of the offender-the imposing of
a sanction that is in principle unwelcome. Thus defined, punishment is a sanction for non-
conformity to societal rules and regulations which broadly speaking involves pain. In clear
language, punishment is harm inflected by a rightful authority on a person who has been
judged to have violated a law or a rule2.It is this, and no other reason that i.e. a deprivation
suffered on account of some wrong one by a recipient at the hands of an impotent However,
when a deprivation is suffered by a person believed to have been victimized, it cannot be
called punishment, and in any case it is unjustifiable.
Broadly speaking Philosophers have approached the justification principle of punishment on
two quite different perspectives, namely, teleological approach and retrospective approach
(i) Teleological Approach
This approach argues that punishment is justified on account of some future goal
which it is hoped will be achieved. One does not punish for the sake of a past wrong, since
what is done will never be undone but with the view to the future, in other that the offender
and others who see the punishment will come to detest the crime. The argued view here is
that, the justifying aims of punishment are to reduce the crime rate by:
(a) Prevention and
(b) Deterrence
In the case of prevention, it is argued that if the criminal is punished, say put behind
bars for certain length of time he/she will be out of circulation, this view of punishment hold
that we should punish to ensure that offenders do not repeat their offence and so, further
injure society. The problem with this view is the question of a fitting and appropriate
punishment for a given crime. If the end result turns out to be the reduction in the total given
crime. If the end result turns out to be the reduction in the total amount of crime to be
committed by the individual offender, there is every justification for an appropriate

1
J .I Omoregbe, An Introduction to Philosophical Jurisprudence: Philosophy of Law, Lagos, Joja Educational
Research and publishers Ltd. 1997 p68

2
M. L , Burton: Liberty, Justice, Morals, New York, MacMillan,1973 p195
3
punishment for the crime an offender actually committed. John Cottingham alludes to this
educationist approach when he says,
if considerations of justice and proportionality suggest ten years, say, as an
appropriate punishment of a particular offence, there is no reason why
considerations of detention should not require a further five, ten or even
twenty years3
If, when and where this strategy works, as an effective weapon of crime control there
is every reason to suggest that society is justified in punishing. Another most widely
supported account of how punishment is to be justified is the deterrence theory. The Latin
Verb deter ere means, literally to scare off and the central idea of deterrence is that the
criminal will be discouraged from committing an offence out of fear of the penal sanction
he/she risks incurring if caught. Experience has shown however that such conclusion is
unfounded. The high rates of recidivism, even among those who have served long prison
sentences, surely demonstrate that, threat to punishment has little or no effect. Sociologist and
criminologists are won’t to argue that the fact that convicted criminals often re-offend
certainly shows that they were not deterred. They aver further that even first offenders are
similarly not deterred by the threat of punishment. But this argument in itself is a
misstatement of theory for practice or better still, fact for reality. The deterrence theorist does
not in any way claim to achieve the unrealistic goal of a total elimination of crime: what it
does claim is that punishing those who do offend will substantially reduce the amount of
crime that would have been committed by others, were there no punishment for offenders.
Indeed, the focus of justification is not on the individual offender who is necessarily a failure
of the system-but on the population at large4.
What we can safely say on this theory is that, on the one hand there are the criminals
who are not deterred by any threat of punishment, and on the other hand there are the honest
citizens, deprived and distressed economically though, they never seriously consider crime as
a necessary option. It must be said without fear of contradiction and does play a vital role in
protecting law and order in general. Immanuel Kant’s position in this regard explains our
idea better. What we do to the individual criminal is simply a means to an end. What we do to
him is not governed by considerations of fairness, or by asking what would be the just
punishment for this individual in this particular case; rather his penalty is simply an
instrument for producing a benefit (crime prevention) for society in general5

3
J, Cottingghan “ The philosophy of punishment” in The Encyclopaedia of Philosophy,New York, McGraw-
Hill Inc. 1993, p770
4
There is every need to distinguish between individual and general deterrence
5
Cfr. J Cottinghan, op.cit 772
4
 The principles are reduceable from our analysis of the reductionist theory and they are
that, (a) Punishment must be restricted to those found guilty of an offence by due process of
law. (b) Punishment must not be excessive in relation to the harmfulness of the offence.
(ii) Retrospective Approach
The approach of this theory is backward looking. Attention here is not on the future results
of punishing, but on the particular wrong that has been done by the offender. Aristotle is here
apt in stating the point of the theory thus; the purpose of judicially imposed penalties is to
rectify past wrongs6, and make the offenders to suffer in kind for the harm they have caused
others. This approach manifests itself in the retributive theory as a justification of
punishment.
The term retribution comes from the Latin verb retribure i.e. ‘to pay back’ meaning then that,
punishment is in some sense a payment for crime. Thus. Paying back’ is argued as a
metaphor or a price for crime. The argument here is that the criminal has a ‘debt to pay’ to
society, so, if and when he/she has served his sentence, he/she may be said to have ‘paid the
price for his crime.
Confusion however arises as to the clear significance of the payment metaphor. As
Cottingham queries.
Exactly how does punishment pay for crime” Where payment is literally exacted as in
ordinary civil litigation, things are clear enough suppose, damage your property and you sue
me; if the court makes me pay you a sum in damages, then I will have quite literally paid for
i.e. covered the cost of-the damage I have done. But if we move from the sphere of civil
damages to that of criminal punishment, it is far from clear how the serving of a prison
sentence constitutes ‘payment’ for the crime committed. For as far as the victim is
concerned, his costs are ink no sense ‘paid back’ by the imprisoning of the offender. The loss
sor lharm he has suffered still stands. It is true that the person who caused that loss or harm
is made to suffer in return; but why is the offender’s suffering supposed to ‘pay for’ the
suffering of the victim?7
Such unanswered questions have forced the retributivists to adopt the balance
metaphor to argue for a justification of punishment. Traditionally justice is depicted as
holding a pair of scales: criminal wrong doing is regarded as upsetting the balance and the
punishment placed as it were in the other pan of the scale is believed to bring about
equilibrium. Here too, one is not too sure how this metaphor can be cashed out in a
6
This position has been canvassed by Aristotle in Nicomachean Ethics (C330 B.C. 113a)
7
J Cottinghan op. cit p764
5
convincing manner. The sudden movement from concrete terms to abstract terms purporting
justice is illicit to say the least.
How, exactly, is the punishment of the offender supposed to set the balance right… as
far as the victim of the crime is concerned, the harm or loss that has been suffered remains,
and it is unclear how the imposition of a corresponding harm or loss on the offender (e.g. loss
of liberty) is supposed to set things right8.
Another metaphor adopted for use by the retributionists is that of annulment or
cancellation. It is argued on this score that, the punishment of the criminal is said to wipe the
slate clean; and that it annuls the wrongdoing which would otherwise continue to stand. Here
again Cottinghan ask how the imposition of a punishment is supposed to cancel out or annul
the crim.9 what done, say murder of an innocent cannot after all be undone.
It is our convince position however that to refuse to punish a criminal on account of
this thinking is mischief. Where someone has been killed or assaulted or robbed, it is the
deep intuitive conviction of many people that the criminal must be apprehended and made to
answer for his conduct. Otherwise we would be seen to be acquiescing in the wrong done-
allowing it to remain valid. Once the offender has been ‘Dealt with’, however we feel that we
have responded appropriately to the wrong and that justice has done’ and that the crime has
been cancelled-annulled.
It may be summed up concerning retribution that, it is inherently right and proper that
the guilty criminal should not only suffer Punishment, but that he/she should suffer a fitting
and appropriate punishment. They not only deserve a fitting and appropriate punishment,
failure in this regard is tantamount to treating offenders with disrespect and denial of their
autonomy and responsibility for their actions. Indeed, not to punish the offender amounts to
the denial of his dues injustice. If one deliberately transgresses a rule, say killing, knowing
that he risk being killed, no further reasons can, or need to be given for punishing him: the
punishment is due for the offence; anything to the contrary is injustice simplicita.
Our analysis thus far argues the thinking of an institution or society that is set up in
such a way that the deliberate commission of an offence with prescribed penalty is, by
definition, normally a sufficient reason for imposing the penalty. It has however failed to
answer the higher level question of whether the general institution or practice of punishing
offenders (any offender) for that matter is itself justified. It has been shown in practice that

8
ibid
9
Ibid.p.765
6
what are taken to be sufficient conditions for punishment within the penal system cannot
provide a sufficient reason why we should punish in the first instance10
There is also the moral problem. To punish is to hold somebody responsible. But what if
someone who has committed an offence is not responsible for an action, say where an
offender has no choice in the matter. Punishing such a person will then be immoral. Legal
determinism argues here that people are determined to act in certain ways come what may. So
their actions or inactions are predetermined by factors or forces outside of themselves i.e. it is
not the individuals themselves that are acting). Holding such individuals responsible on
account of actions or inactions that are not theirs is to say the least immoral and does not in
any way make punishment proper and fitting.
There are those who argue again that the typical criminal in reality is the mentally
handicapped individual. Sick as he is, he needs treatment not punishment; he needs
reformation and reintegration i8n the society to function more properly and appropriately in
the achievement of peace and order in society. Extreme in outlook though, the reform theory
in its modest form holds that punishment is necessary to induce conformity of behavior
which the offender tends to ignore or violate. The informed idea here is that, people will
emerge from punishment better than they were before, in so far as they will be less likely to
breach conventional standards of behavior. In its traditional meaning, reform of heart entails
recognition that what one has done is bad and a sincere resolve to amend one’s life in the
future. It thus involves a modification in the ethical outlook of the offender: and this in turn
suggests that if we are interested in reform it would be sensible to turn to reductive
techniques rather than simple imposition of penalties. This has since been debunked as
untrue, for criminals come out of prisons stronger and more determined with new tricks and
strategies to commit more heinous offences.
The theory is thus inadequate for analysis of the philosophy of punishment, hence
rehabilitation is argued as an accompanying theory. Rehabilitation aims to offer the offenders
opportunities to find a useful place in society on release from prison. It does not argue for a
‘no punishment’ for offenders. They must be punished fittingly and appropriately though,
opportunities should be availed them to busy their minds away from crime e.g. provision of
recreational, educational and vocational for prisoners. This is aimed at re-engineering their
criminal mind and to ‘in steal’ in them the spirit of self-reliance if and when they leave

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Appeal to the self-evident appropriateness or deservedness of punishment may accurately reflect the thinking
of those who operate within the structure of penal systems. It cannot do the work needed to show the institution
of punishment as such is self evidently good
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prison. Long periods of incarceration make prisoners less able to cope with normal life in the
outside world. It is only good that rehabilitation techniques are designed to counteract this
and other undesirable effects of punishment.
The issue concerning law and punishment is central to social harmony and should not
be reduced to a neither nor question. It is not whether the reductionist theory is more
effective than the retributivist theory in curbing or reducing crime as the case may be.
Similarly the issue is not whether the reformative, rehabilitative or curative approaches to
punishment should replace the reductivist and retributivist theories of punishment.
Punishment of criminals is no doubt important if society must endure; but only as a means
not as an end. It is thus suggested as a compliment of the reformative, rehabilitative and
curative approaches which should be incorporated in the sentencing policies of the courts. If
for example a drunken driver is sentenced to a jail term, he should, on completion of his
prison sentence, be required to work in a hospital accident department or a rapist should be
required to confront his under controlled conditions so that they can learn about the distress
they have caused, but of cause, this again opens up a carn of moral problems. (An) action(s
which may breach a rule for which punishment may be required as fitting and appropriate
may be recommended by an actor as a Universal law. The epicurean categories of happiness
as the purpose of life; that not acting the way he/she acted, which action caused a breach and
unhappiness for others is frustrating. For the offender/criminal, life without such actions is
not worth-living. Zeno committed suicide on account of this.
Punishment and the Victims of Crime
The focus of our analysis above is the criminal or potential criminal. The backward
looking approach argues as the purpose of punishment as giving the offender his just deserts.
The forward-looking approach on the other hand posits that the aim of punishment is to
discourage possible future offenders. Similarly, the notions of reform, rehabilitation land
cure have the offenders as the central focus of attention. The hapless victim, as it were, seems
not to be an issue of discuss. In the proceeding discussion, we shall argue out a philosophy
which makes the victim our primary concern of punishment. We shall argue two theories of
punishment which aim at justifying the practice of punishment with reference to what is owed
to the victims of crime.
(i) Satisfaction Theory:
This theory asserts that it is right to punish offenders because such punishment brings
satisfaction or comfort to the victims of crime (and also perhaps to their family, friends,
neighbours and associates).This it is argued is not bone out of desire for crude gratification
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and or revenge but what could best be understood as righteous indignation i.e. the legitimate
sense of grievance felt by someone who has been wronged (and by his family, friends etc.).
“This sense of grievance”, argues Cottinghan,”will typically be assuaged when the personal
who caused it has been apprehended and brought to justice”11
Punishment understood here, is administered in order to satisfy the legitimate sense of
grievance felt by the victims of crime. There are those who argue however, that the problems
of calculating the amount of grievance felt by a victim measured against the amount of
satisfaction felt on seeing the offender punished. These practical and ethical problems
suggests that the satisfaction theory needs to be combined with some further justification
theory, that, punishment is not be combined with some further justification theory, that,
punishment is not only satisfying to the victim, but it is also a just payment to the offender for
his wrongdoing. In the words of Cottinghan.
“If the victims of crime did not have some expectation of the offenders being
brought to justice, they would eventually ‘take the law into their own hands’.
This in turn would lead to unregulated act of revenge and counter-revenge-
and in time things would degenerate to the point where one had a series of
uncontrolled. Vendettas rather than the rule of law… This line of thought
does provide a strong utilitarian justification for the penal system, namely that
it prevents the unfairness and instability which would in all likelihood arises if
there were no officially institutionalized punishment12.
The argued position here is that, all laws; man- made and man discovered laws have sanction.
This has been so eloquently articulated by Joseph Omoregbe thus;
The end of all laws is the common good; in the case of positive law (man-
made law) the common good is that of the society in which it is made while in
the case of man-discovered law, the common good in question is that of the
whole human community, conditioned by justice, peace and security13.
Compliance to these rules or failure on the part of man to subject himself to
these rules entails sanction which in this case has to do with reward and punishment
respectively
(ii) Restitution Theory:
The theory argues in favour of restoration or making good the loss suffered by the
victim of crime. This theory favours a claim from the victim who as it were has the right to
sue the criminal for damages in civil courts for compensation for the loss incurred. The
central idea behind the restitution theory is that, the victims of crime should be as far as
11
J . Cottinghan, The Philosophy of Punishment, p769
12
ibid
13
J .I Omoregbe, An Introduction to Philosophical Jurisprudence: Philosophy of Law, Lagos, Joja Educational
Research and publishers Ltd. 1997 p67
9
possible made good by the offender. T is suggested here hat offenders, even in prison, should
be required to work the debt off. The idea here is that prisons should be run as profit making
institutions with an appropriate national wage paid to the convict-workers, who would in turn
off-set their indebtedness to the victim.
Conclusion.
We may conclude here that, punishment is an indispensable instrument of social
order. Abused in tyrannical societies thought is symbol of the rule of law in a free, society.
As a figure of justice, punishment is, and should be meted out impartially to the famous and
the ordinary, the rich and poor, fittingly and appropriately. We may not argue like Bentham
that “all punishment is in itself evil” because the object which all laws have in common is to
augment the total happiness of the community. In all punishment therefore, it must be shown
that, the pain that is inflicted in some prevents or excludes some greater pain. Punishment
must be useful in achieving a greater aggregate of pleasure and happiness and has no
justification if its effect is simply to add still more units or lots of pain to the community. As
Jeremy Bentham himself concludes, the amount of punishment should never be greater than
the minimum required to make it effective. He says; Punishment should be variable to fit the
particular case, equable so as to inflict equal pain for similar offences commensurable in
order that punishments for different classes of crimes be proportional characteristics so as to
impress the imagination of potential offenders, frugal so as not to be excessive, reformatory
in order to correct faulty behavior, disabling in order to deter future offenders, compensatory
to the sufferer,, and, in order not to create new problems, have popular acceptance and be
capable of remittance for sufficient cause14. In the same spirit, we reason with professor J .I.
Omoregbe who sums up the morality and rationality of punishment as a drive towards perfect
happiness which is only attainable with the possession of the supreme good15.
Punishment, whichever form it takes, has two facets, namely, retrospective and
prospective. The former looks back to its cause while the latter looks forward to its possible
effect. The former is retributive while the latter is deterrent and corrective. The former is
meant to restore the equilibrium of the moral and public order upset by the violation, while
the latter is meant to deter the offender as well as other people from future violation of the
law.

14
J . Bentham: Of Laws in General, edited by H.L.A. Hart, Athlone Press, 1945.
15
J .I Omoregbe, An Introduction to Philosophical Jurisprudence: Philosophy of Law, p68
10