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The theory of retribution proposed by Jeremy Bentham has been used to justify legal measures aimed at ensuring the safety of all people. Bentham argued that legal processes should always be driven by human motivation in order to account for potential sensitivities and situations that could influence individuals (Bentham, 2009). The role of regulation in ensuring individual wellbeing is also at the heart of the theory. A thorough examination of Bentham's theory of punishment shows that crimes are never the same, and that different degrees of pain infliction should be considered, particularly for the state's and citizens' safety. Bentham's ideas and ideals on the controversial topic of punishment are found in his public works, manuscripts, and the writings that have been recently produced by editors.
The utilitarian perspective taken by Bentham on the punishment issue borrowed concepts from Beccaria who made contributions to what constitutes a law-abiding behavior (Bentham, 2001). Beccaria’s views would later be utilized in generating the knowledge of the best path to be pursued for effective punishment mechanisms. Bentham built on this knowledge and further sought to explain the various sources of punishment using philosophical arguments. He emphasized the importance of utilizing sanctions to restrain certain behaviors through employing the concept of pain and pleasure. He considered pain as coming from nature and an effective form of a physical sanction. The legal sanction was explained through the use of magistrates who were using their sovereign will to make important decisions regarding a suspect at hand. A wrongdoer would also face moral sanctions from the community through what Bentham considered as spontaneous disapproval (Binder, 2002). The punishment was also considered as being possible through the application of religious sanctions through the hand of the superior being that is believed to be behind life through faith.
Bentham’s approach to punishment is different from the contemporary scholars in as far as the scientific approach is considered. More differences emerge from the manner that he viewed the legal punishment and the aspect of the unquestionable evil. Bentham was broader in his approach and scope of the term punishment. To him, punishment could be carried out through the use of pain that would act as a negative reinforce (Geis 1955). Besides, Bentham argued that punishment can take a ‘non-action’ form and entail the categorization of those behaviors deemed as offensive. Bentham was not satisfied with the modern approaches to punishment and suggested that there should be reforms. Other theorists were faulted for misunderstanding the concept and the action of pain emanating from the legal and political sanctions. He further suggested that the utilitarian perspective would be of utmost importance because it was a positive law that effectively tackles the complexities associated with divergent forms of behaviors.
Emmanuel Kant’s contribution to the punishment issue has been analyzed by many scholars, particularly for the establishment of the concepts informing the metaphysics of morals. Kant considered punishment as being effective if it is a direct response to the wrongdoing. He therefore became one of the classical redistributive theorists whose ideas and ideas continue to shape the manner in which the contemporary society perceive the concept of punishment. For an action to be considered as a punishment, there are four key components that it must have. First, it must have a form of hardship or a cost associated with it that often reduce the benefits that were were previsiouly enjoyed by the person being punished. Punishers are further supposed to be intentionally sanctioning the wrongdoers with having other ends. Kant’s arguments are further clear that sending a suspect to prison is not a means of punishing the wrongdoers close friends or families but purely as a form of sanction for the suspect.
From Kant’s theory, it also turns out that the losses or hardships are supposed to be imposed as a result an omission or a wrongful act. It is wrong to punish somebody who had no control over the events that lead to the committing the crime. There should be no confusions in inflicting the harsh treatments because the negative sanctions are only supposed to be administered to the guilty ones. The punishment should further not be driven by subjective aspects such as the physical appearance, traits or race because it would be immoral (Hill, 1999). Besides, the hardships are meant to send a censorship message for what is considered as an omission act. The fees or the taxes that might be associated with the punishment are exclusively meant to discourage the bad behaviors.
Bentham’s theory of punishment was not as detailed as Kant, who went further to examine the components that make up an effective punishment. Kant further elaborated on the key pillars that should guide the implementation of punitive measures. Kant perceive punishment as taking two forms, one being a form of a threat that deters crime. The effectiveness of this technique has seen it been preferred by the civil society as a measure to prevent the violations of other peoples’ rights. Many states have been ineffectively executing this redistributive theory in the realization of the social goals. Kant’s theory has also proven to be consistent in as far as the legal, moral and political philosophy is concerned.
Kant’s approach has stood out despite the critiques coming from economists in their analysis of punishment and crime. Kant’s theory of punishment further recognizes the importance of intrinsic ideals that guide libertarian government. Bentham’s theory should however not be considered as been limited because it also offers sound solutions to the problem of carrying out effective punishments. An observation of the punishment approaches adopted in developing and developed world reveals that policy makers utilize the propositions in the two theories to inform decisions. Profound researches are further being carried out to establish possible improvements that can be made on these theories in order to come up with tailor made solutions to deal with specific cases. In particular, Emmanuel Kant theory was well thought out and would continue to inform the future decisions to be taken by the criminal justice system in any part of the world. Although the theory has been criticized on various grounds, it has survived years of turmoil through debates.
Bentham, J. (2009). Of the limits of the penal branch of jurisprudence.
Bentham, J. (2001). A fragment on government. The Lawbook Exchange, Ltd..
Binder, G. (2002). Punishment Theory: Moral or Political?. Buffalo Criminal Law Review, 5(2), 321-372.
Geis, G. (1955). Pioneers in Criminology VII--Jeremy Bentham (1748-1832). J. Crim. L. Criminology & Police Sci., 46, 159.
Hill, T. E. (1999). Kant on wrongdoing, desert, and punishment. Law and Philosophy, 18(4), 407-441.
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