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Both types of purposes, however, are continuously subject to debate.Different philosophical theories of punishment offer different accounts of why we punish, whom to punish and what the objectives of punishment should be.The theoretical and philosophical debates on the justification and goals of punishment that have ensued, cover a vast area of social, political and legal thinking.
They set a critical standard against which the practice of punishment can be measured and scrutinised on a regular basis (Duff & Garland, 1994).
It may be naive, however, to expect an explicit unified philosophical theory of punishment to govern both the justification of punishment and the aims at sentencing for all people involved, in each and every case.
These features, however, are not necessarily limited to the practice of legal punishment; they might as well characterise a parent’s reaction to a child’s wrongdoing.
Kelk defines punishment as a well-considered, intentional and avoidable infliction of suffering on someone, for a culpable act that deserves blame in order to reach (a) certain goal(s) (Kelk, 1994b, p. He subsequently identifies four domains in the context of which punishment is to be considered. The second domain involves legal areas other than criminal law, such as disciplinary law, administrative law and civil law.
Although we do not expect judges and other officials involved in everyday practice to justify all their decisions in these terms, philosophical theories of punishment provide rationalisations for the practice of punishment in most discussions on the subject.
Besides this, we expect normative accounts of punishment to form the basis of a systematic and consistent sanctioning practice.In Section 2.2, the relevance of philosophies and theories of punishment is discussed.In Section 2.3, the different approaches are categorised under the headings of retributivism, utilitarianism, restorative justice and mixed approaches.Affordable Housing Forum | Asia Global | Bonger Instituut | Dutch Colonial History | Europe Generations | IIDE | ISSA | Studio Meritis Ma KOM | Orbis | Paula Bermann | Recht te Utrecht | Recht te Voet | Rozenberg Publishers | Voices In one of his essays, John Stuart Mill noted that even if we admit the legitimacy of inflicting punishment, many conflicting conceptions of justice regarding the proper apportionment of punishment to offenders come to light (Mill, 1867).This statement touches the core of what theories and philosophies of punishment are about.A justification is required because punishment itself is morally problematic (Duff & Garland, 1994).It is “a deliberate and avoidable infliction of suffering” (Honderich, 1970, p. It involves actions that are generally considered to be morally wrong or evil were they not described and justified as punishment (such as depriving a person of his or her freedom) (see, Cavadino & Dignan, 1997a; Duff & Garland, 1994; Hart, 1963; Hazewinkel-Suringa & Remmelink, 1994; Sullivan, 1996).Within the frame of reference of the present study, the terms punishment and legal punishment are used to refer to penal actions in the context of Kelk’s first domain: actions within the domain of criminal law.[ii] As mentioned above, we expect legal punishment to be suitable and just.According to Walker’s features of punishment, it is done for a reason and those who order it are supposed to have a right to do so.One way of guarding the rules that keep society together and providing us with (a sense of) security, is through the institution of legal punishment: a means by which suitable and just reactions are meted out to those who infringe the rules.The institution of legal punishment has become such a self-evident and intrinsic part of our lives that we even demand a justification for its absence in cases where we expect it (Tunick, 1992). In principle, however, most people would agree on a description of punishment that incorporates the following seven features formulated by Walker (1991, pp. It involves the infliction of something that is assumed to be unwelcome or unpleasant for the recipient. The infliction is intentional and done for a reason. Those who order it are regarded as having a right to do so. The occasion of the infliction is an action or omission which infringes a law, rule or custom. The person punished has played a voluntary part in the infringement. The punisher’s reason for punishing is such as to offer a justification for doing so. It is the belief or intention of the person who orders the infliction, and not the belief or intention of the person undergoing it, that settles the question whether it is punishment.