BACKGROUND

Philosophical reflection on punishment has helped cause, and is itself partially an

effect of, developments in the understanding of punishment that have taken place
outside the academy in the real world of political life. A generation ago
sociologists, criminologists, and penologists became disenchanted with the
rehabilitative effects (as measured by reductions in offender recidivism) of
programs conducted in prisons aimed at this end. This disenchantment led to
skepticism about the feasibility of the very aim of rehabilitation within the
framework of existing penal philosophy. To these were added skepticism over the
deterrent effects of punishment (whether special, aimed at the offender, or general,
aimed at the public) and as an effective goal to pursue in punishment. That left,
apparently, only two possible rational aims to pursue in the practice of punishment
under law: Social defense through incarceration, and retributivism. Public policy
advocates insisted that the best thing to do with convicted offenders was to
imprison them, in the belief that the most economical way to reduce crime was to
incapacitate known recidivists via incarceration, or even death . Whatever else may
be true, this aim at least has been achieved on a breathtaking scale, as the
enormous growth in the number of state and federal prisoners in the United States
(some 2.1 million in year 2005, including over 3,700 on death row) attests.




At the same time that enthusiasm for incarceration and incapacitation was growing
as the preferred methods of punishment, dissatisfaction with the indeterminate
prison sentence crucial to any rehabilitative scheme because of the discretion it
grants to penal officials on grounds of fairness led policy analysts to search for
another approach. Fairness in sentencing seemed most likely to be achievable if a
criminal sentence was of a determinate rather than indeterminate duration (Allen
1981). But even determinate sentencing would not be fair unless the sentences so
authorized were the punishments that convicted offenders deserved. Thus was born
the doctrine of just deserts in sentencing, which effectively combined the two
ideas. By this route the goals of incapacitation and retribution came to dominate,
and in some quarters completely supersede, the goals of rehabilitation and
deterrence in the minds of politicians and social theorists.

Concurrently with these broadly socio-legal developments (to which might be
added the despair of practitioners that reached its peak with the police assault on
rioting prisoners in New York's Attica prison in 1972) philosophers were crafting
their own arguments, reviving classic views associated with the names of Kant and
Hegel to establish two principal ideas that fit surprisingly well with those reviewed
above. First, philosophers urged that reformation of convicted offenders is not the
aim, or even a subsidiary aim among several, of the practice of punishment.

Aside from being an impractical goal, it is morally defective for two reasons: It
fails to respect the convicted offenders' autonomy, and it flouts the offenders' right
to be punished for the wrongdoing he intentionally caused . (The oddity of a theory
that affirms having and exercising a right to be punished has not escaped notice.)
Second, justice or fairness in punishment is the essential task of sentencing, and a
just sentence takes its character from the culpability of the offender and the harm
the crime caused the victim and society. In short, just punishment is retributive
punishment. Philosophers reached these conclusions because they argued that there
were irreducible retributive aspects to punishment in the very definition of the
practice, in the norms governing justice in punishment, and in the purpose of the
practice as well.

As a result, the ground was cut out from under the dominant penal policy of mid-
century, the indeterminate sentence in the service of the rehabilitative ideal for
offenders behind bars. Probation as the essential nonincarcerative alternative
sanction received an expanded role, but release on parole came to a virtual end. In
its place (but as it turned out, only in theory) was uniform determinate sentencing,
which would avoid the follies of unachievable rehabilitative goals and ensure both
incapacitation and even-handed justice for all offenders. (This was, of course,
before the political process distorted these aims.

Not all admirers of justice in punishment supported determinate sentencing.) The
culmination of this trend appears in the Sentencing Reform Act of 1984, which
spawned the United States Sentencing Commission and its Federal Sentencing
Guidelines. The doctrine has not been without its critics, both in theory and in
practice . But as the new century begins, no alternative approach shows any signs
of supplementing the just deserts sentencing philosophy no matter how
preposterous in practice the claim that a given punitive sentence is justly deserved
may be in most cases.

There has been a third development concurrent with the two outlined above, far
less influential in the formation of actual penalty policy even if it is of equal
theoretical importance . Foucault invited us to view the practice of punishment
under law as subject to general forces in society that reflect the dominant forms of
social and political power the power to threaten, coerce, suppress, destroy,
transform that prevail in any given epoch. And he also cultivated a deep
suspicion toward the claims that contemporary society had significantly humanized
the forms of punishment by abandoning the savage corporal brutality that prevailed
in the bad old days, in favor of the hidden concrete-and-steel carceral system of the
modern era.
Foucault's insights arose from a historical, socioeconomic, and psychodynamic
approach to punishment. Professed goals of punishment, norms constraining the
use of power in the pursuit of these goals, the aspiration for justice in punishment
all these, if Foucault is right, turn out to mask other (not necessarily conscious)
intentions among reformers that belie the ostensible rationality (not to say
rationalization) of their aims since the Enlightenment. Thus, the movement against
capital punishment in the late eighteenth century is not to be explained (or,
presumably, justified) by the influence of conscious, rational utilitarian
calculations of the sort that Beccaria and Bentham argued had persuaded them to
oppose the death penalty. It is explained instead by disenchantment with the
theatrical, dramaturgical, aspects of public executions and a self-deceiving
humanitarian impulse that merely shifted but otherwise left unaltered the nature
and locus of the power wielded over criminals by society perfectly embodied in
Bentham's visionary carceral scheme, the notorious Panopticon prison.

Two features at least of Foucault's explorations into the practice of punishment in
Western society deserve mention here. First, he ignored the analytical distinctions
that philosophers in the Anglo-American tradition had made familiar (to be
discussed below). None plays any visible role in his account of the theory or
practice of punishment.

Some interpreters might not only acknowledge this, they would go further and
argue that Foucault offers no philosophical views about punishment at all
because conceptual and normative analysis and the search for principles on which
to rest policy are at best obscurely and indirectly pursued in his writings. Instead,
so this interpretation declares, he is just a social commentator (or some other form
of critical humanist) . But this interpretation fails to do him justice. Foucault's
views are, at least in part, unmistakably philosophical. Not only do they issue in
claims that are not obviously testable empirical hypotheses, they involve large-
scale reflections on and reinterpretations of human nature, public institutions, and
the point of our punitive practices.

Second, Foucault implicitly challenges the very idea of any form of justification of
the practice of punishment. He is, in his way, a paradigmatic thinker whose views
about punishment can be called anti-foundationalist. What emerges from his
account is the view that what passes for the justification of punishment (as with
any other social practice) is inextricably tied up with assumptions, beliefs in
short, with ideology that have no independent rational foundation.
The very idea that penal institutions can be justified is suspect, self-delusive.
Foucault more than any other recent thinker who has reflected on the institutions of
punishment in western society, has brought historicist, anti-analytic, and anti-
foundationalist convictions together, thus sowing deep uncertainty over how and
even whether to address the task of justifying punishment.

In all these respects, Foucault must be seen as the modern successor to Friedrich
Nietzsche Foucault's great albeit unacknowledged predecessor in the philosophy
of punishment. More than any thinker before or since, Nietzsche understood the
way punishment is over determined by utilities of every sort and survives now
under this, now under that interpretation of its purposes because the desire to
punish (and thereby subordinate, coerce, transform) other persons is so deeply
rooted in human nature.

The cumulative effect of these forces, political and intellectual, has been to
undermine confidence in the classic Enlightenment or liberal view of punishment
found, for example, in Hobbes, Locke, Bentham, and Mill. Perhaps this is an
exaggeration; one might argue that since it is unclear just what a liberal view of
punishment really is, successfully undermining it is equally uncertain. Liberalism
in punishment, it is true, has no canonical formulation; instead, it has been multiply
ambiguous during its career of more three centuries, as scrutiny of Beccaria's
influential proposals for reform at the zenith of the Enlightenment show . What is
needed is a reassertion, reformulation, and redeployment of recognizably liberal
ideas in the theory of punishment.

INTRODUCTION

Each society has its own way of social control for which it frames certain laws and
also mentions the sanctions with them. These sanctions are nothing but the
punishments. The first thing to mention in relation to the definition of punishment
is the ineffectiveness of definitional barriers aimed to show that one or other of the
proposed justifications of punishments either logically include or logically
excluded by definition. Punishment has the following features:
It involves the deprivation of certain normally recognized rights, or other
measures considered unpleasant.
It is consequence of an offence.
It is applied against the author of the offence.
Its applied by an organ of the system that made the act an offence.

The kinds of punishment given are surely influenced by the kind of society one
lives in. Though during ancient period of history punishment was more severe as
fear was taken as the prime instrument in preventing crime. But with change in
time and development of human mind the punishment theories have become more
tolerant to these criminals. Debunking the stringent theories of punishment the
modern society is seen in loosening its hold on the criminals. The present scenario
also witnesses the opposition of capital punishment as inhumane, though it was a
major form of punishing the criminals earlier. But it may also be observed till
recently the TALIBANS used quite a harsh method for suppression.
The law says that it does not really punish the individual but punishes the guilty
mind.
As punishment generally is provided in Criminal Law it becomes imperative on
our part to know what crime or an offence really is. Here I would like to quote
Salmonds definition of crime: Crime is an act deemed by law to be harmful for
the society as a whole though its immediate victim may be an individual He
further substantiates his point of view through the following illustration a
murderer injures primarily a particular victim, but its blatant disregard of human
life puts it beyond a matter of mere compensation between the murderer and the
victims family.

Thus it becomes very important on behalf of the society to punish the offenders.
Punishment can be used as a method of educing the incidence of criminal behavior
either by deterring the potential offenders or by incapacitating and preventing them
from repeating the offence or by reforming them into law-abiding citizens.
Theories of punishment, contain generally policies regarding theories of
punishment namely: Deterrent, Retributive, Preventive and Reformative.

Punishment, whether legal or divine, needs justification. Because the justification
of legal punishment has been given greater consideration by philosophers than has
the justification of divine punishment by theologians, the philosophical concepts
and 'theories of punishment (i.e. the justifications) will be used as a basis for
considering divine punishment.

Many a time this punishment has been termed as a mode of social protection. The
affinity of punishment with many other measures involving deprivation by the state
morally recognized rights is generally evident. The justifiability of these measures
in particular cases may well be controversial, but it is hardly under fire. The
attempt to give punishment the same justification for punishment as for other
compulsory measures imposed by the state does not necessarily involve a
particular standpoint on the issues of deterrence, reform or physical incapacitation.
Obviously the justification in terms of protection commits us to holding that
punishment may be effective in preventing social harms through one of these
methods.

As punishments generally punish the guilty mind it becomes very important on the
part of the researcher to what crime really is. But it is quite difficult on the part of
the researcher to say whether or not there must be any place for the traditional
forms of punishment. In todays world the major question that is raised by most of
the penologist is that how far are present humane methods of punishment like the
reformative successful in their objective. It is observed that prisons have become a
place for breeding criminals not as a place of reformation as it was meant to be.

It may be clearly said that the enactment of any law brings about two units in the
society- the law-abiders and the law-breakers. It is purpose of these theories of
punishment to by any means transform or change these law-breakers to the group
of abiders.

LEGAL SYSTEM IN ANCIENT INDIA

Legal system in ancient India reflects the outlook of the intelligentsia of that age.
Legal system in ancient India was of two kinds, namely religious and secular. In
ancient Indian society, crime and sin were distinguished as an offence against the
state as well as against God. Legal system in ancient India includes various laws
for curbing the violation of certain ethical principles. According to the legal
system, criminals had to undergo compensation besides facing trial in a court of
justice. Like for instance, the assassin of a Brahman was legally responsible to both
expiation and trial.

Legal system of ancient India included mainly 18 titles of law, although some
authorities added a few more. According to Manu, these titles of law were non-
repayment of debt, deposit, partnership business, resumption of gift, sale of an
article by one other than its owner, non-payment of wages, breach of contract,
duties of wife and husband, partition of inheritance, repentance after sale or
purchase, dispute between the master and the keeper (of cattle), boundary
dispute, abuse, too severe punishment, theft, violence, adultery, gambling and
animal betting. Further, as per the procedural law under the legal system of ancient
Indian society, a cause of action arises when a person, being harassed in a way
contrary to the rules of Smriti and usage, lodges a complaint. The judicial
proceedings usually comprise four parts, namely complaint, reply, evidence and
judgement. Replies can probably be of four kinds, and these are admission, denial,
a special plea, relating to a former judgement.
Three types of evidences are mentioned namely document, possession and witness.
In the absence of these human proofs, divine ones or ordeals are prescribed.

Artha Shastra and Manu Smriti are considered as significant treatises as far as the
legal system is concerned. In ancient Indian societies, an independent school of
legal practices existed. Some general principles in connection with the judicial
proceedings state that in case of disagreement between two texts of Smriti, justice
according to usage is to be followed. In case of conflict between a text of Smriti
associated with the dharma and one relating to artha, the former prevails. The
former one sets rules regarding things unnoticed or otherworldly, while the latter
one is more concerned with everyday matters. According to the legal system, an
accused is generally barred from lodging a counter-complaint so long as the case
against him is not disposed of. However, in case of violent crimes such a counter-
complaint is allowed.

Legal system in ancient India also includes adverse possession and different modes
of acquisition. Adverse possession grants right to the possessor if the owner who,
even while seeing his property adversely possessed, does not raise any objection. A
permanent property vests in the person adversely possessing it for 12 years without
any objection from the owner. In the case of movables, the period is ten years. The
suitable modes of attainment of a property are purchase, gift etc. Generally
acquisition, by a valid mode, is stronger proof than possession. Acquisition,
without even slight possession, is not valid. A mortgage vests in the mortgagee if it
is not redeemed even after the principal amount is doubled. A mortgage, with a
time-limit, lapses after the expiry of that time.
In the past, generally religious people were considered fit for being witnesses.
Perjury and repression of evidence are punishable offences. But, if a true statement
is liable to lead to the death of a member of a caste, an eyewitness is allowed to
give false evidence; for the compensation of the sin. In the case of two conflicting
groups consisting of an equal number of witnesses, the proof of the one containing
more qualified persons is acceptable. If two groups of qualified witnesses differ,
the evidence of those, who are most qualified, is to be acknowledged.

The general rule regarding partnership business was that the revenue and loss
would be shared in proportion to the money invested by the partners, or as per the
rules in the contract. Serious punishment was set for deforming a balance, false
weights and measures and for forging coins. Further, anyone is fallaciously posing
as a physician will be heavily fined.

Legal system in ancient India included laws for crimes and offences. As regards
murder, some authorities consider these people as murderers - one actually
committing it, the mastermind, and one who approves it, helper and partner in
crime and the one who is primarily involved. Heavier punishment is set for murder
with purpose than that without purpose.

Punishable suicide and permitted suicide is also included in the legal system in
ancient India. Suicide is generally condemned. But, in certain cases, it is allowed
as punishable suicides by some authorities. However, with the passage of time, this
practice came to be firmly prohibited. Mistreatment consists in using dirty
language to a person causing his sorrow or insult by loudly speaking ill against his
country, caste or family etc. Agitation, use of government property for self-interest,
defalcation of government funds and misconduct of the chief of prisons were the
common offences to the state. According to Manu, use of charm or magic for
causing harm to others is punishable.

The main principle, underlying the award of punishment, was restriction. This
principle creates a sense of horror among the people. Another purpose of
punishment was to restrain the offender. The idea was that if a lawbreaker was kept
confined, he would desist from anti-social activities at least for sometime.
Reformation of the offender was not ignored. Before imposing the punishment,
several factors were to be considered like the time and place of occurrence, the
intention, capacity, learning, age, sex, caste, etc. of the criminal. Different opinions
existed as far as the death penalty is considered. Torture is also prescribed for
extorting confession from the offender. The ancient literary texts mention different
modes of torture. A historical study of the penal provisions in ancient India reveals
a gradual relaxation of the severity of punishments through ages. According to
Katyayana, there will be difference in punishment according to the difference of
castes. However, a liberal outlook is evident in the Indian Puranas and Manu
Smriti as far as the legal system in ancient India is concerned.




DEFINITIONS OF PUNISHMENT

In behaviorism, punishment refers to the consequence for undesired behavior.
Punishment can be either negative or positive, depending on the nature of the
consequence.

In negative punishment, something that the person desires is taken away.
For example, a parent might forbid a child to watch a favorite television
show.

In positive punishment, something undesirable is given in response to the
behavior. For example, a parent may require a child to wash the dishes.

Although punishment is still relatively common, many experts now believe that
reinforcement has more lasting effects. In reinforcement, the focus is on desired
behaviors rather than those that are undesirable.
IN CRIMINAL LAW.
Any pain, penalty, suffering, or confinement inflicted upon a person by the
authority of the law and the judgment and sentence of a court, for some crime or
offense committed by him, or for his omission of a duty enjoined by law.

CRIME AND PUNISHMENT

Crime: 1. Act (usu. grave offence) punishable by law; shameful act
2. charge with or convict of offence.
Punishment: Punishing or being punished; penalty inflicted on the offender;
Punish: Cause to suffer for offence, chastise, inflict penalty on offender for his
crime.
One can surely observe how closely are crime and punishment related. The
researcher would in this chapter precisely like to stress on this point itself.

Crime is behaviour or action that is punishable by criminal law. A crime is a
public, as opposed to a moral, wrong; it is an offence committed against (and
hence punishable by) the state or the community at large. Many crimes are
immoral, but not all actions considered immoral are illegal.

In different legal systems the forms of punishment may be different but it may be
observed that all arise out of some action or omission. All these constitute all moral
as well as legal wrongs such as murder, rape, littering, theft, trespass and many
more. As crime is quite different in different geographical area it is quite evident
that the forms of punishment would vary as it was mentioned earlier that
punishment as well as crime are socially determined. A type of action may be a
crime in one society but not in another.
For example euthanasia is an offence in India, but in many European coutries
such as Holland it is legalized. But there are certain offences which are recognized
almost universally like murder.

Durkheim explains crime, as crime exists in every society which do and do not
have laws, courts and the police. He asserts that all societies have crime, since all
societies involve a differentiation between two kinds of actions, those that are
allowed and those that are forbidden. He calls the latter type criminal.

Law is the string that binds society, and he who attempts to break the string is a
danger to the society as a whole and dealt with sternly by the powerful arms of
law. Punishment though most times confused with imprisonment is something
much different from it. Punishment though most times confused only with
sanctions may also be of moral nature like ostracism. Punishment, whether legal or
divine, needs justification. Because the justification of legal punishment has been
given greater consideration by philosophers than has the justification of divine
punishment by theologians, the philosophical concepts and 'theories of punishment,
(i.e. the justifications) will be used as a basis for considering divine punishment.

A complete definition will now be made in such a way as to include both legal and
divine punishment. A.Flew first suggests that punishment must be an evil, an
unpleasantness to the victim. J. Mabbot objects to the use of the word 'evil' in
connection with punishment. He maintains that 'evil' carries too much moral
flavour and also that it suggests positive suffering. Mabbot states: The world is a
worse place the more evil there is in it and perhaps the more suffering. But it does
not seem to me necessarily a worse place whenever men are deprived of something
they would like to retain; and this is the essence of modern punishment. While
deprivation may be a more appropriate description of modern punishment this does
not necessarily exempt it from being an evil. Nor does the suggestion that 'evil'
carries a moral flavour, for in fact the word punishment itself carries a moral
flavour. (Like 'evil', punishment is not in itself a moral term but it is suggested that
it usually occurs in an ethical context.) While we must eventually come to some
conclusion as to whether punishment is an evil, it would be preferable at present to
use, as does W. Moberly, the slightly more neutral term 'ill'. Both of these thinkers
of punishment believe that the offender must be answerable for any wrong that he
has done. K. Baier explains punishment as law-making, penalisation, finding
guilty, pronouncing a sentence. In a legal context law-making is a necessary
condition, but it is possible to commit a wrongdoing intentionally although no law
has been made, in fact it is because certain acts are considered wrong that laws are
made in the first place. What is important to note is that punishment is a
conditional act and cannot be isolated from its total context.

But Durkheim has a different approach to punishment altogether. He treats
punishment as the reaction of the society against a crime. According to him a if
punishment be a proportionate response to the harm caused to the society then the
extent of the punishment inflicted must be clearly sorted out. He also stressed on
the point that punishment can never be calculated; it is an intensely emotional-
sense of outrage- the desire to exact punishment. He says, It is not the specific
nature or result of the offending action as such which matter, but he fact that the
action transgresses widely shared ad strongly held sentiments, whatever these
might be in any particular case. He explains that if punishment is a reaction of the
society against the offenders then it is generally in the form of an outrage or anger
thus rather being reparative or reformative becomes punitive. This approach of the
society towards the criminals is what makes us treat them as outcasts and treated as
an deviant from the social norms. This two-fold approach has been criticized
severely by various penologists, as at one time there is the use of both reformative
and retributive theories.

Punishment and crime are very strange phenomena to deal with. It is only if the
acts done are within the course of the provisions provided under the Code then any
benefits take out of it is not questioned. But any action through which maybe the
same benefit is gained still the person may be punished as because his action was
not within the scope of the provisions. Also there are certain elements in the
society who though do many immoral acts but as because any provisions or
sanctions are not mentioned so that they can be punished they continue to do that
act. One should not earn any benefits or satisfaction out of such acts.

The legitimacy of any form of has always been criticized. Though there are many
legal coercive measures but it is quite different from punishment. If the punishment
were any retribution to an evil done then regardless of any consequence it would
try to end that evil in itself. But if the objective of the punishment given is to
prevent the crime from further occurrence then it would rather than using coercive
methods it would be using persuasive measures and discourage the offender from
committing that act in the future. Treating punishment as a conventional device for
the expression of resentment, indignation, disappointment felt either by the sufferer
and his family or the punishing authority as such J.Feinberg argues that certain
kinds of severe treatment become symbolic of the of the attitudes and judgement of
the society or community in the face of the wrongdoing, and constitute a stigma
which castes shame and ignominy on the individual on whom the punishment is
applied. The distinctiveness of the unpleasant measure could consist of the way of
executing them. Thus, summarizing the concept of punishment one can suggest
that punishment includes the following areas :
Punishment inflicted is a feeling of uncomfortable and unpleasant
circumstances.
It is a sequel of a wrongful act
There must be some relationship between the punishment inflicted and the
crime committed.
The punishment is a form by which a criminal is made answerable to the
society








THEORIES OF PUNISHMENT

With change in the social structure the society has witnessed various punishment
theories and the radical changes that they have undergone from the traditional to
the modern level and the crucial problems relating to them. Kenny wrote: "it
cannot be said that the theories of criminal punishment current amongst our
judges and legislators have assumed...."either a coherent or even a stable form.
B.Malinowski believes all the legally effective institutions....are....means of
cutting short an illegal or intolerable state of affairs, of restoring the equilibrium in
the social life and of giving the vent to he feelings of oppression and injustice felt
by the individuals.

The general view that the researcher finds is that the researcher gathers is that the
theories of punishment being so vague are difficult to discuss as such. In the words
of Sir John Salmond, The ends of criminal justice are four in number, and in
respect to the purposes served by the them punishment can be divided as:

1. DETERRENT
2. RETRIBUTIVE
3. PREVENTIVE
4. REFORMATIVE

Of these aspects the first is the essential and the all-important one, the others being
merely accessory. Punishment before all things is deterrent, and the chief end of
the law of crime is to make the evil-doer an example and a warning to all that are
like-minded with him.
The researcher in this chapter would like to discuss the various theories and
explain the pros and cons of each theory. The researchers main aim in this chapter
is to show the evolution of the theories as such.












DETERRENT THEORY

One of the primitive methods of punishments believes in the fact that if severe
punishments were inflicted on the offender would deter him form repeating that
crime. Those who commit a crime, it is assumed, derive a mental satisfaction or a
feeling of enjoyment in the act. To neutralize this inclination of the mind,
punishment inflicts equal quantum of suffering on the offender so that it is no
longer attractive for him to carry out such committal of crimes. Pleasure and pain
are two physical feelings or sensation that nature has provided to mankind, to
enable him to do certain things or to desist from certain things, or to undo wrong
things previously done by him. It is like providing both a powerful engine and an
equally powerful brake in the automobile. Impelled by taste and good appetite,
which are feelings of pleasure a man over-eats. Gluttony and surfeit make him
obese and he starts suffering disease. This causes pain. He consults a doctor and
thereafter starts dieting . Thus the person before eating in the same way would
think twice and may not at all take that food. In social life punishment introduces
the element of 'pain' to correct the excess action of a person carried out by the
impulse (pleasure) of his mind. We all like very much to seize opportunities, but
abhor when we face threats. But in reality pain, threat or challenges actually
strengthens and purifies a man and so an organization.

J. Bentham, as the founder of this theory, states:
"General prevention ought to be the chief end of punishment as its real
justification. I f we could consider an offence, which has been, committed as an
isolated fact, the like of which would never recur, punishment would be useless.
I t would only be only adding one evil to another. But when we consider that an
unpunished crime leaves the path of crime open, not only to the same delinquent
but also to all those who may have the same motives and opportunities for
entering upon it, we perceive that punishment inflicted on the individual
becomes a source of security for all. That punishment which considered in itself
appeared base and repugnant to all generous sentiments is elevated to the first
rank of benefits when it is regarded not as an act of wrath or vengeance against
a guilty or unfortunate individual who has given way to mischievous
inclinations, but as an indispensable sacrifice to the common safety."

Bentham's theory was based on a hedonistic conception of man and that man as
such would be deterred from crime if punishment were applied swiftly, certainly,
and severely. But being aware that punishment is an evil, he says,
If the evil of punishment exceeds the evil of the offence, the punishment will be
unprofitable; he will have purchased exemption from one evil at the expense of
another.

The basic idea of deterrence is to deter both offenders and others from committing
a similar offence. But also in Bentham's theory was the idea that punishment would
also provide an opportunity for reform.

"While a person goes on seeking pleasure, he also takes steps to avoid pain. This is
a new system of political philosophy and ethics developed by Jerome Bentham and
John Stuart Mill in the 19th century called Utilitarianism. It postulates human
efforts towards "maximization of pleasure and maximum minimization of pain" as
the goal. "The main ethical imperative of utilitarianism is: the greatest good for the
largest number of people; or the greatest number of goods for the greatest number
of people" The fear of consequent punishment at the hands of law should act as a
check from committing crimes by people. The law violator not merely gets
punishment, but he has to undergo an obnoxious process like arrest, production
before a magistrate, trial in a criminal court etc. that bring about a social stigma to
him as the accused. All these infuse a sense fear and pain and one thinks twice
before venturing to commit a crime, unless he is a hardcore criminal, or one who
has developed a habit for committing crimes. Deterrent theory believes in giving
exemplary punishment through adequate penalty."

In earlier days a criminal act was considered to be due to the influence of some evil
spirit on the offender for which he was unwillingly was made to do that wrong.
Thus to correct that offender the society retorted to severe deterrent policies and
forms of the government as this wrongful act was take as an challenge to the God
and the religion.
But in spite of all these efforts there are some lacunae in this theory. This theory is
unable to deter the activity of the hardcore criminals as the pain inflicted or even
the penalties are ineffective. The most mockery of this theory can be seen when the
criminals return to the prisons soon after their release, that is precisely because as
this theory is based on certain restrictions, these criminals are not effected at all by
these restrictions rather they tend to enjoy these restrictions more than they enjoy
their freedom.
RETRIBUTIVE THEORY

An eye for an eye would turn the whole world blind- MAHATMA GANDHI
The most stringent and harsh of all theories retributive theory believes to end the
crime in itself. This theory underlines the idea of vengeance and revenge rather
than that of social welfare and security. Punishment of the offender provides some
kind solace to the victim or to the family members of the victim of the crime, who
has suffered out of the action of the offender and prevents reprisals from them to
the offender or his family. The only reason for keeping the offender in prison under
unpleasant circumstances would be the vengeful pleasure of sufferer and his
family. J.M.Finnis argues in favour of retributism by mentioning it as a balance of
fairness in the distribution of advantages and disadvantages by restraining his will.
Retributivists believe that considerations under social protection may serve a
minimal purpose of the punishment. Traditional retributism relied on punishing the
intrinsic value of the offence and thus resort to very harsh methods. This theory is
based on the same principle as the deterrent theory, the Utilitarian theory. To look
into more precisely both these theories involve the exercise of control over the
emotional instinctual forces that condition such actions. This includes our sense of
hatred towards the criminals and a reliance on him as a butt of aggressive
outbursts.

Sir Walter Moberly states that the punishment is deemed to give the men their
dues. "Punishment serves to express and to and to satisfy the righteous
indignation which a healthy community treats as transgression. As such it is an
end in itself."
"The utilitarian theories are forward looking; they are concerned with the
consequences of punishment rather than the wrong done, which, being in the
past, cannot be altered. A retributive theory, on the other hand, sees the
primary justification in the fact that an offence has been committed which
deserves the punishment of the offender." As Kant argues in a famous passage:
"Judicial punishment can never be used merely as a means to promote some other
good for the criminal himself or civil society, but instead it must in all cases be
imposed on him only on the ground that he has committed a crime; for a human
being can never be manipulated merely as a means to the purposes of someone
else... He must first of all be found to be deserving of punishment before any
consideration is given of the utility of this punishment for himself or his fellow
citizens."

"Kant argues that retribution is not just a necessary condition for punishment but
also a sufficient one. Punishment is an end in itself. Retribution could also be said
to be the 'natural' justification" , in the sense that man thinks it quite natural and
just that a bad person ought to be punished and a good person rewarded.

However 'natural' retribution might seem, it can also be seen as Bentham saw it,
that is as adding one evil to another, base and repugnant, or as an act of wrath or
vengeance. Therefore as we consider divine punishment we must bear in mind, as
Rowell says,
The doctrine of hell was framed in terms of a retributive theory of punishment, the
wicked receiving their just deserts, with no thought of the possible reformation of
the offender. In so far as there was a deterrent element, it related to the sanction
hell provided for ensuring moral conduct during a man's earthly life.

Thus the researcher concludes that this theory closely related to that of expiation as
the pain inflicted compensates for the pleasure derived by the offender. Though not
in anymore contention in the modern arena but its significance cannot be totally
ruled out as fear still plays an important role in the minds of various first time
offenders. But the researcher feels that the basis of this theory i.e. vengeance is not
expected in a civilized society. This theory has been severely criticized by modern
day penologists and is redundant in the present punishments.









PREVENTIVE THEORY

Unlike the former theories, this theory aims to prevent the crime rather then
avenging it. Looking at punishments from a more humane perspective it rests on
the fact that the need of a punishment for a crime arises out of mere social needs
i.e. while sending the criminals to the prisons the society is in turn trying to prevent
the offender from doing any other crime and thus protecting the society from any
anti-social elements.

Fitchte in order to explain this in greater details puts forward the an illustration, An
owner of the land puts an notice that trespassers would be prosecuted. He does
not want an actual trespasser and to have the trouble and expense of setting the law
in motion against him. He hopes that the threat would render any such action
unnecessary; his aim is not to punish trespass but to prevent it. But if trespass still
takes place he undertakes prosecution. Thus the instrument which he devised
originally consist of a general warning and not any particular convictions

Thus it must be quite clear now by the illustration that the law aims at providing
general threats but not convictions at the beginning itself. Even utilitarian such as
Bentham have also supported this theory as it has been able to discourage the
criminals from doing a wrong and that also without performing any severity on the
criminals. The present day prisons are fallout of this theory. The preventive theory
can be explained in the context of imprisonment as separating the criminals from
the society and thus preventing any further crime by that offender and also by
putting certain restrictions on the criminal it would prevent the criminal from
committing any offence in the future. Supporters of this theory may also take
Capital Punishment to be a part of this theory. A serious and diligent rehabilitation
program would succeed in turning a high percentage of criminals away from a life
of crime. There are, however, many reasons why rehabilitation programs are not
commonly in effect in our prisons. Most politicians and a high proportion of the
public do not believe in rehabilitation as a desirable goal. The idea of rehabilitation
is considered mollycoddling. What they want is retribution, revenge, punishment
and suffering.

Thus one an easily say that preventive theory though aiming at preventing the
crime to happen in the future but it still has some aspects which are questioned by
the penologists as it contains in its techniques which are quite harsh in nature. The
major problem with these type of theories is that they make the criminal more
violent rather than changing him to a better individual. The last theory of
punishment being the most humane of all looks into this aspect.






REFORMATIVE THEORY

But that is the beginning of a new story- the story of the gradual Renewal of a man,
the story of his gradual regeneration, of his Passing from one world into another, of
his initiation into a new Unknown life..It emphasizes on the renewal of the
criminal and the beginning of a new life for him.

The most recent and the most humane of all theories are based on the principle of
reforming the legal offenders through individual treatment. Not looking to
criminals as inhuman this theory puts forward the changing nature of the modern
society where it presently looks into the fact that all other theories have failed to
put forward any such stable theory, which would prevent the occurrence of further
crimes. Though it may be true that there has been a greater onset of crimes today
than it was earlier, but it may also be argued that many of the criminals are also
getting reformed and leading a law-abiding life all-together. Reformative
techniques are much close to the deterrent techniques.

Reform in the deterrent sense implied that through being punished the offender
recognized his guilt and wished to change. The formal and impressive
condemnation by society involved in punishment was thought to be an important
means of bring about that recognition. Similarly, others may be brought to
awareness that crime is wrong through another's punishment and, as it were,
'reform' before they actually commit a crime. But, although this is indeed one
aspect of rehabilitation, as a theory rehabilitation is more usually associated with
treatment of the offender. A few think that all offenders are 'ill' and need to be
'cured' but the majority of criminologists see punishment as a means of educating
the offender. This has been the ideal and therefore the most popular theory in
recent years. However, there is reason to believe this theory is in decline and Lord
Windlesham has noted that if public opinion affects penal policy, as he thinks it
does, then there will be more interest shown in retribution in the future.

This theory aims at rehabilitating the offender to the norms of the society i.e. into
law-abiding member. This theory condemns all kinds of corporal punishments.
These aim at transforming the law-offenders in such a way that the inmates of the
peno-correctional institutions can lead a life like a normal citizen. These prisons or
correctional homes as they are termed humanly treat the inmates and release them
as soon as they feel that they are fit to mix up with the other members of the
community.

The reformation generally takes place either through probation or parole as
measures for reforming criminals. It looks at the seclusion of the criminals from
the society as an attempt to reform them and to prevent the person from social
ostracism. Though this theory works stupendously for the correction of juveniles
and first time criminals, but in the case of hardened criminals this theory may not
work with the effectiveness. In these cases come the importance of the deterrence
theories and the retributive theories. Thus each of these four theories have their
own pros and cons and each being important in it, none can be ignored as such.

CONCLUSION

Punishment, whether legal or divine, needs justification. Because the justification
of legal punishment has been given greater consideration by philosophers than has
the justification of divine punishment by theologians, the philosophical concepts
and 'theories of punishment', (i.e. the justifications) will be used as a basis for
considering divine punishment.

There is a certain difficulty in assimilating these two subjects because they have
reference to different contexts, namely, in human punishment the penal system
and, in divine punishment, theology in general and in particular the afterlife. But
there are some basic features which can be considered applicable to both.

Firstly, punishment is imposed because some person has done wrong. In the legal
context this is called a crime or offence and in the theological context it is called a
sin.The two terms are by no means interchangeable. As Aquinas says, "the
commands of human law cover only those deeds which concern the public
interest, not every deed of every virtue." However, most crimes are also morally
evil and are, therefore, also sins.

Secondly, another basic presupposition of both categories of punishment is freewill
and as a consequence, responsibility. Freewill is admittedly a debated topic among
philosophers and theologians and responsibility equally debated among
criminologists, but, for the purpose of this inquiry, it will be assumed that
punishment is only of those who have responsibility for their volitions. One must
be cautious at this point in case of an over-simplification of the causes of crime or
wrong-doing is allowed to arise. Many factors should be considered: sociological,
psychological, inherited etc., but it is possible to say that at least some crimes and
all sins are a result of a wrong choice between good and evil.
At the end of this project finds punishment as a method of social control. I would
like to summarize his understanding about the theories of punishment:

There is an attempt to portray punishments as a method of inflicting of
unpleasant circumstances over the offender.

Though certain theories like the reformative and preventive rely upon
humanitarian modes of punishment, but these have a weakness against the
hardcore criminals.

Punishments such as the retributive and deterrence though the use of fear as
an instrument to curb the occurrence of crime helps in controlling the
criminals up to a certain extent. As these employ the idea of revenge and
vengeance these are much more harsher than others.

I would like to add his own views on this very controversial topic. We all know
that truth is stranger than fiction and so is the practice of these theories. Though
prisons are meant to be the place where the criminals would be corrected or for that
case deterred from committing a wrong in the future, but the present day witnesses
the prisons to have become redundant in their objective and becoming sites of
breeding for hardcore criminals. This is a fact that the penologists must look into.
Furthermore the techniques applied in executing the punishment are not fool proof,
for e.g. the criminals are able to carry on their illegal activities even during serving
the period of sentence. Though in theory all of the punishments discussed above
may seem perfect if used collectively, but this all becomes a mere joke when tried
to implicate in the practical sense.