Philosophy of Punishment in Criminology: A Historical Review

Nurjahan Khatun1
Mohammed Jahirul Islam1
Subrata Banarjee2
Moumita Paul3

Abstract: From the dawn of human civilization, the existence of crime is acutely
noticeable as well as punishment. Paradoxically, crime and punishment are
interrelated termed with each other in contemporary criminology. The severity of
punishment is naturally dependent on the nature of crime. The prime objective of the
study is to identify the changing nature and forms of the philosophy of punishment
from historical perspectives. Moreover, the study also tried to find out the associated
factors, which contribute to the philosophical change from ancient period to modern
age. The review paper is based on secondary sources as well as historical documents
like journal articles, authentic books. There are three basic eras perceptible in
accordance with the historical view-point which are pre-classical, classical and
modern eras having retributive, deterrent, rehabilitative and re-integrative
philosophies of punishment respectively. The nature of punishment changed due to
the impact of political movement especially the French Revolution, industrialization,
advancement of science and technology, advent of law enforcing agencies-police,
courts, and correction systems. Although, the modern philosophy of punishment is re-
integrative and rehabilitative, but still punishment itself a debatable issues from
different points of view such as existentialism and postmodernism.

Key words: Punishment; Philosophy of Punishment; Factors of Punishment;

Deterrence.

Introduction
Punishment is a fundamental and essential component of our daily life. Social behavior is
shaped by the use of punishment as well as the societal reaction to its (Carlsmith, 2006: 437).
First of all, the main question arise to us, ‘What do we mean by punishment?’ As a method of
social control or social obedience, Punishment is a kind of institutionalized cruelty. More
specifically, Punishment means any of a series of impositions (such as fine, probation, work
service, incarceration and so on) imposed upon a person by authority of law after that
individuals has been determined to be a criminal offender (Reid, 1997: 79). Eminent
penologist Hudson (1996:01) said “Penalties which are authorized by the state and inflicted

1
Assistant Professor, Department of Criminology and Police Science, Mawlana Bhasani Science and
Technology University, Santosh, Tangail-1902
2
Lecturer, Department of Criminology and Police Science, Mawlana Bhasani Science and Technology
University, Santosh, Tangail-1902
3
M.S Student, Department of Criminology and Police Science, Mawlana Bhasani Science and Technology
University, Santosh, Tangail-1902
by the state officials in response to crime are normally termed as punishment.” Moreover,
actually it is the belief or intention of the person who orders something to be done, and not
the belief or intention of the person to whom it is done, that settles the question whether it is
punishment (Walker, 1991: 03). In this regard, Flew, Benn and Peters (1959) have suggested
a set of six criteria related to punishment which are: involvement of an evil and an
unpleasantness to the victim; applicable for an offence, actual or supposed; applicable for an
offender, actual or supposed; the work of personal agencies; imposed by authority conferred
through or by institutions against the rules of which the offence has been committed; and
lastly the pain and unpleasantness which is an essential part and intended and not merely a
coincidental or accidental outcome (Hudson, 1996: 01-02). In Addition, Sir Walter Moberly
has suggested different criteria of punishment: (a).What is inflicted is an ill, that is something
unpleasant; (b). It is a sequel to some act, which is disapproved by authority; (c). There is
some correspondence between the punishment and the act which has evoked it; (d).
Punishment is inflicted, that it is imposed by someone’s voluntary act; (e). Punishment is
inflicted upon the criminal, or upon someone who is supposed to be answerable for him and
for his wrong doings. (Paranjape, 2005: 204)
On the other hand, we need also to define the term ‘Philosophy’. First of all, Philosophy
deals with the basic problems of life and the world (Nuruzzaman, 2000: 65). According to
Encyclopedia Britannica, philosophy means the way of ordering of the history or an effort to
codify the rules of human thought in order to promote rationality and the extension of clear
thinking. In a word Philosophy means an examination of truth, goodness and beauty
(Britannica: 2000: 733- 734).

The ‘Philosophy of Punishment’ refers to the rigorous examination of the origin, extent and
validity of the punishment in different dimension. Philosophy of punishment involves
defining the concept of punishment and the values, attitudes, and beliefs contained in that
definition, as well as justifying the imposition of a painful burden on someone. In terms of
understanding the historical overview of the philosophy of punishment there are three basic
schools of punishment in criminology: pre-classical; classical and positive school (Paranjape,
2001). Punishment philosophy is the study of the concept of punishment its definition, its
practical application and justification. From the philosophical discussions two questions have
been arisen: what is punishment and what is the justification of that punishment (Mcpherson,
1967).
There are numerous academic works in relations to the philosophy of punishment in
criminology as well as penology. First of all, Durkheim, the founding father of sociology,
linked between forms of society and forms of punishment. On the basis of Durkheimian
thought, Speirernberg and Garland focus on the ‘constituency’ between ‘the methods of
treatment of criminal’ and other aspects of culture (Sutherland, 1939: 348). On the other
hand, Karl Marx, great philosopher and political economist, developed an idea in relations to
nature of punishment, which was based on his central thesis on capitalist social structures. In
his view, institutions like law are shaped to parallel the relations of production and the
maintenance of the capitalist system. Additionally, Marxist penologists have argued that
punishment regulates the supply of labor; this view was put forward in 1939 by Rusche and
Kirchheimer in Punishment and Social Structure (Howe 1994: 12). In discussing the history
of punishment in Europe from the 13th century until the development of capitalism, the
authors perceive the severity of punishment as being tied directly to the value of labor. Thus,
the severity of punishment, they argue, is relatively lenient when labor is scarce and its value
high, whereas when labor is abundant, punishments becomes more intense (Hudson, 1996).
Moreover, Marxist tradition was concerned with the basic question ‘why prison?’ In contrast
to this, Michel Foucault’s Discipline and Punish: The Birth of the Prison (1977) offered a
deeper analysis of the relationship between forms of punishment and the society in which
they are found. He identified an emergent ‘penal rationality’; he described not a simple
phenomenon of punishment but penality, a complex of theories, institutions, practices, laws
and professional positions which have as their object the sanctioning of offenders. Renowned
criminologist and scholar Hudson (1996) introduces the core debates in the field of
‘penology’ or the study of theories of punishment. The author provides clear analyses and
critiques of Durkheimian, Marxist and Foucouldian explanations. She also tried to link
between social and economic nature of societies and forms of punishment. Additionally, she
opined that ‘there are social and economic reasons for the emergence of particular forms of
penality at particular periods of history’ (Hudson, 1996: vii). She identified that French
Revolution, industrialization, development of science and technology and biographic factors
alongside with sociological factors were potentially noticeable for changing the nature of
punishment system from early to modern ages. In this regard, the most important work is
done by the prominent scholars Rudolph J. Gerber and Patrick D. Mcanany (1970) who have
studied the philosophy of punishment in terms of the existentialist philosophy of life. Another
eminent scholars Barnes and Teeters (1943) have studied the philosophy of punishment of the
early era. Alexander (1922) has just studied about the philosophy of punishment but not in
terms of historical views of punishment system. Although the philosophy of punishment is an
important concept like crime, criminality and punishment in contemporary penology but the
discussion on philosophy of punishment is ignored issues in academic arena. So the main
purpose of the study was to review the philosophy of punishment from the historical point of
view and find out the associated factors which contribute to the philosophical changes of
punishment from one era to another. Besides, the present debates of the philosophy of
punishment are also reviewed in reference to postmodern philosophy. Lastly, the study tried
to focus on modern punishment system and the debates of punishment.

Methodology
As the nature of research is qualitative in nature, data and information has been collected
from secondary sources such as journal articles, research reports, prominent books,
government documents. Data has been analyzed through descriptive methods.

Discussions: Comparative discussions on Philosophy of Punishment in Historical

Eras

Philosophy of Punishment in Pre-classical Age

In the early era barbaric system of law, punishment and justice, existed specially before the
French Revolution (1789) was highly noticeable. Until that time, there was no real system of
criminal justice in the whole world. For punishing the criminal, the retributive principle is
being followed and which is ‘an eye for an eye, a tooth for a tooth’.

During the pre classical age, it was believed that man by nature is simple and his actions were
controlled by supernatural power and people commit crime due to influence of some external
spirit called demon or devil. Worships, sacrifices and ordeals by water and fire were usually
prescribed to specify the spirit. Trial by battle was common mode of deciding the fate of
criminal. At the time with the theory of diabolical possession, the conventional notion of
punishment was either to exercise the devil or to exile or execute the wrongdoer (Barnes and
Teeters, 1943: 391-395).

The supernatural and religious belief was remarkably so strong in this era that punishment of
all kinds of offences against religion was too cruel and barbaric. In an actual sense, there was
no distinction among sin and crime. In this regard three major forms of crimes can be found
which were Crimes against the State, against the church and against the crown having such
forms of punishment likely as branding, burning, flogging, mutilating, drowning, banishing,
and beheading (Adler, 2004:62). Professor Heinrich Oppenheimer summarizes the mystical
and religious background of primitive punishment in these words: ‘Primitive Punishment is
inflicted either to remove the stain of impurity from society or to prevent a supernatural being
from taking revenge on the tribe. Its object is in either case expiation- expiation, however, not
for its own sake but expiation with a utilitarian background’ (Barnes and Teeters, 1943:395).

Although most of the criminal laws of that time were unwritten, but there was few which was
written likely as the Code of Hammurabi (1780 BC), the earliest known written code of
punishment (the origin of the Hebrew code “an eye for an eye, a tooth for a tooth”). These
laws codified the natural inclination of individuals harmed by another to seek revenge, but
they also recognized that personal revenge must be restrained if society is not to be fractured
by a cycle of tit-for-tat blood feuds. Such blood feuds perpetuated the injustice that
“righteous” revenge was supposed to diminish. The law sought to contain uncontrolled
vengeance by substituting controlled vengeance.(Hudson, 1996). Natural punishment was
treated as “Gods Anger”. Plagues, earthquakes or other natural disasters were treated as the
punishment of God. Personal revenge where the victim or victims’ kin retaliated for the
injury suffered which is the prime thought of the Retributive philosophy (the dominating
philosophy of the early era). At that time there was no real system of Criminal Justice, no
specification of crimes and no amount of specific punishment. For example, in England a
person might receive the death penalty for any of more than 200 offences, including what we
call today petty theft. Moreover, judges had unbounded discretionary power through which
they convicted a person for an act not even legally defined as criminal. So punishments were
arbitrary, barbaric and cruel.

Actually, the early era was completely based on the demonological thinking whereas the
religion and the custom that is the supernatural belief of the theological and metaphysical
stage of society was the dominated basis for the justice system. In many primitive societies,
the members were constantly in fear of the ravages of the unknown and the supernatural, and
nothing stands between them and the power of darkness except the well- beaten path of
custom. Philosopher Montesquieu’s Persian Letters and Spirit of Laws made a special
impression that severity and cruelty in punishment do not necessarily decrease the number of
crimes. Also, Voltaire (1694-1778) has drawn his attention to the notorious abuses and
cruelties in the body of criminal law and in the methods of treating criminals (Barnes and
Teeters, 1943: 395, 459).

The practice of brutal punishment and arbitrary legal codes began to decrease in the mid 18th
century with the beginning of a period historians call the Age of Enlightenment (Incomplete
project of modernity which always asks for rational reasons), which was essentially a major
shift in the way people began to view the world and their place in it. Moreover, instead of
thinking that crime is the consequence of demon or devil power, it was thought that man
commits crime for his free will and rational thinking. In case of inflicting punishment
barbaric methods of punishment were almost abolished and equal punishment was imposed
for all committing the same crime. Besides in classical period the proponents emphasized
more to reform the penal system and administering appropriate laws and regulations for
inflicting punishment.

Philosophy of Punishment in Classical Age

From the criminological aspect the dominating philosophical approach of punishment of the
classical era was deterrence, culminated in the middle eighteenth century in the classical
thinking.

The ignorance, crudities, and barbarism of the ‘old regime” in Europe were effectively
attacked in the writings of the classical writers such as Montesquieu, Voltaire, Diderot,
Turgot and Condorcet and of their English sympathizers and associates like David Hume,
Adam Smith, Tom Paine and Jeremy Bentham. Specifically, powerful and successful attacks
were made upon the barbarous and irrational criminal jurisprudence and penal institutions by
a group of able and influential European writers. The French publicist, Montesquieu (1689-
1755), in his Persian Letters and his The Spirit of the Laws, condemned the barbarous
injustice of the French penal code and advocated reforms which would make punishments
less severe and more nearly adapted to the specific crimes for which they are imposed
(Barnes, 1943).

In accordance with the classicists, individual have free will. They can choose legal or illegal
means to get what they want and the fear of punishment can deter them from committing
crime. Here, society can control behavior by making the pain of punishment greater than the
pleasure of the criminal gains. In a word, the main assumption of the period was individuals
choose to commit crimes after weighing the consequences of their actions and the philosophy
of punishment was just, reasonable and exemplary that was deterrence. The philosophy of
deterrence which consists of two purposes: (i) to restrain the wrong-doer from repeatedly
indulging in crime (specific deterrence) and (ii) to set an example for others to deter and
prevent them from committing crimes or violating laws (Akers, 1943). Basically the period
was being evolved for explaining the rational and logical relation between crime and
punishment in the middle eighteenth century due to the rise of the Age of Enlightenment,
political cleansing of the judicial and penal system and mostly for rising conscious through
protesting the arbitrary and barbarous punishment. At that time, social contract doctrine and
utilitarianism thinking produced philosophical understanding of classicism. Ceasre Bonsena,
marchese di Beccaria (1738-1794), an Italian nobleman and professor of law, was the leader
of this period who on his writing ‘On Crimes and Punishment, 1764’ did not question the
need for punishment, but he believed that laws should be designed to preserve public safety
and order, not to avenge crime. He also took issue with the common practice of secret
accusations, arguing that such practices led to general deceit and alienation in society. He
argued powerfully for the abortion of torture, the need of a more just and accurate method of
trial, the necessity for a reduction in the severity of the penalties imposed a large use of
imprisonment in the punishment of crime and improvement in the administration of prisons
(Barnes, 1943)

According to Beccaria, the crime problem could be traced not to bad people but to bad laws.
He proposed some basic principles in this regard: Laws should be used to maintain the social
contract; only legislators should create laws; Judges should impose punishment only in
accordance with the law; Judges should not interpret the laws; Punishment should be based
pleasure pain principle; Punishment should be based on the act, not on the actor; Punishment
should be determined by the crime; punishment should be prompt and effective etc (Adler,
2004: 63-64).

Jeremy Bentham (1748-1832) another thinker likely as Beccaria was concerned with
achieving ‘the greatest happiness of the greatest number’ and his work was governed by
utilitarian principles which is the assumption that all human actions are calculated in
accordance with their likelihood of bringing happiness. The multitudinous and diverse
reforming interest of Jeremy Bentham (1748-1832) embraced voluminous writings of the
reform of both criminal jurisprudence and penal administration (Barnes, 1943).
The main limitations of classical school was that the power of the judges had been limited
and specified through written criminal law but there was no such police force likely as
modern times for crime controlling. Moreover, there was no difference among first and
habitual offender and the armchair philosophy of classical era had no proper empirical and
objective evidence such as all offenders are not equal due to having different demographic
criteria, mental growth etc. Though there was a sub branch of the classical thinking that was
neo-classical (1880-1920) thinking which put emphasize on the individualized punishment
system through making distinction between first offender and habitual offender. But the next
modern era take the notion and gave elaborate explanation in this view point (Adler, 2004:
66).

From classical period to positive period, the prerequisites for the development of reformative
or rehabilitative penal strategies were two. First, there was a socio- economic impetus
provided by the increasing need for labour brought about by the industrial revolution, to
reintegrate offenders into the community rather than to keep them out of the community by
severe sentences. Second there was the growth of the human social sciences, which admitted
the idea of criminal behavior as caused by psychological or environmental factors.
Reform/rehabilitation is therefore associated with modernism and positivism, which, most
simply, means belief in the possibility of change and improvement through the application of
science to human behavior, as well as to enterprises such as public health and engineering.
(Hudson, 1996)

Moreover, In case of deciding punishment, it was considered that punishment should be

equal for all and it should have deterrent effect but the thinkers of positive school emphasized
more on treatment methods for criminal instead of punishment and considered the
circumstances associated with the punishment.

Besides, after the French revolution the classical and rational thinking against the arbitrary
punishment philosophy of the early had been emerged in classical era. Concrete expressions
was given in the French revolutionary penal code of September 29, 1791 which declared that
“penalties should be proportionate to the crimes which they are inflicted and that they are
intended not merely to punish but to reform the culprits. All of these developments were done
towards securing a new and more rational and human criminal jurisprudence (Barnes, 1943).

At that time some important changes had occurred with the blessings of the progress in
science and technology, industrialization, rising of awareness through education, some major
legal changes again challenges the existing deterrence philosophy through replacing the
rehabilitative philosophy. Industrialization in this regard played a major role because through
it the free trade system had been evolved which directly affects the middle class people with
globalization and urbanization. Alongside with this the advancement of science and
technology, more specifically the use of scientific method for explaining criminal behavior
through identifying cause and effect relationship had created a socialistic view point towards
the offender. And that refers to the rehabilitation of the offender or reintegration of the
offender (more social and modern view) can make not the offender himself but to the society
beneficiary as because offender, if rehabilitated or reintegrated properly then can become a
source of production in the present division of labor society. And such viewpoints develop
new philosophy of punishment which is corrections, rehabilitation and reintegration.

Philosophy of Punishment in Positive Age

Positivism is one of the important schools of criminology as well as penology in regarding

causes of crime, use of scientific methods, and in determining the questions of appropriate
punishments. The positivist school developed in nineteenth century and the first two thirds of
the twentieth century, which is gained its name from the positive philosophy, as an attempt to
apply scientific methods to the study of criminal as well as social problem. This school was
based on ideas of people’s behavior as being determined by circumstances or by
psychological or physiological predisposition (Hudson, 1996: 11). The Positivist school
maintained the position that criminology must become scientific by which they meant that the
explanation of criminal behavior and the treatment of criminal must be accomplished by
scientific means (Jeffery, 1959: 18). Scholar George B. Vold opined that, “the essential point
in positivism is the application of a deterministic and scientific method to the study of crime”
(Vold, 1998). The search for causes of human behavior led positivists to dismiss the classical
notion that humans are free agents who are alone responsible for their actions (Adler, 2004).
A new vision of the world had come through challenging the validity of classical theory and
presented an innovative way of looking at the causes of crime by positivist. Contemporary
ideas about additional imprisonment, or refusal of parole, for prisoners likely to reoffend as
well as suggestions about how to help people refrain from reoffending while dealing with
them by community penalties such as probation, all derive from current criminological
notions about the causes of crime (Hudson, 1996:11).
The main question arise to us that, ‘why did positivist criminology developed in penology?’
According to Hudson, “Development of the human sciences was facilitating the growth of
positivist criminology and its correlate, correctional penology, with reformist penalties for the
‘corrigible’ and preventive detention for the incorrigible” (Hudson, 1996:85). Also,
positivistic nature of criminology was influenced by two great scholar and scientists:
Sociologist August Comte and Biologist Charles Darwin. Firstly, Comte envisioned a society
in which all social problems are solved by scientists using positivistic methods of research.
He had opined that there could be no real knowledge of social phenomena unless it was based
on a positivist (scientific) approach. Secondly, Lombrosian theory of biological ‘atavism’ was
influenced by the idea of evolution proposed by Darwin. In his book, On the Origin of
Species he had brought about the final break with spiritualist, free will thought of the past.
Darwin presented evidence that humans were the same generation kind of creatures as the rest
of animals, except that they were more highly evolved or developed (Vold, 1998: 33).

Just as deterrence had its foundational text in Beccaria’s work, these seem text in the
development of positivist criminology was Cesare Lombroso’s The Criminal Man, published
in 1876. This set out typology of criminal, who is at a lower evolutionary stage, less morally
developed, that non-criminals. Early biological positivist thinking of Lombroso went to
extremes to espouse a hard form of determinism in criminology. In addition, positivism
slowly moved the criminal justice system away from a concentration on the criminal act as
the sole determinant of the type of punishment to be meted out, and toward an appraisal of the
characteristics and circumstances of the offender as an additional determinant. So, the
Positivist School emphasized individualized treatment and the protection of society against
the criminal. The punishment must fit the criminal. A man was sentenced, not according to
the seriousness of the offense, but according to the factor or factors which motivated him to
commit a crime. It is foolish, reasoned by the positivist, to sentence all men guilty of armed
robbery to the same length of time since the motivational pattern for each man would be
different (Jeffery, 1959: 14). Additionally, each criminal would receive individualized
treatment according to his own psychological and sociological needs. The criminal, not the
crime, governed the sentence or punishment given. The time a man spent in prison would be
determined, not by the crime he had committed, but by the time needed to adjust and
rehabilitate him. Whether or not a man was adjusted and ready to return to society would be
determined by scientific penology.
Garofalo believed that because human action is often evoked by circumstances beyond
human control (temperament, extreme poverty, intelligence, and certain situations), the only
thing to be considered at sentencing was the offender’s “peculiarities,” or risk factors for
crime. He was skeptical about the possibility of reforming the criminal. So, he advocated the
death penalty, overseas colonies, and life imprisonment for those lacking all moral sense. For
the young offender he recommended the indeterminate sentence, and for less serious
violations he advocated reparations rather than punishment (Allen, 1954). Garofalo’s only
concern for individualizing sentencing was the danger offenders posed to society, and his
proposed sentences ranged from execution for what he called extreme criminals (whom we
might call psychopaths today), to transportation to penal colonies for impulsive criminals, to
simply changing the law to deal with what he called endemic criminals (those who commit
what we today might call victimless crimes). Though, the practice of transporting criminals
has been defended by also famous criminologist Lombroso. He held that it eliminated the
hopeless and non-reformable types in the criminal population and used the less serious
offenders for colonizing (Barnes and Teeters, 1965: 455). Lombroso, Garofelo and Ferri
favored the transportation of criminal in penal colonies.

Lombroso’s evolutionary theory was succeeded by the more sophisticated typology of Enrico
Ferri, who divided criminals into three types: the born criminal; the insane criminal; and the
person who, in different circumstances would have criminal at all. This broadening of ideas
about the causes of crime to psychological and social factors led to development of
rehabilitation as we think of it today, with its combination of psychotherapeutic techniques
and help with circumstances such as addiction, debt and unemployment (Hudson, 1996: 28).
Likewise, Ferri continued the positive schools emphasis on social welfare and social defense.
The purpose of criminal justice was to afford maximum protection or defense of society
against the criminal. The defense of society was placed above the rights of individuals. He
recommended penal colonies, indeterminate sentences, hospitals, scientifically trained judges,
and the abolitions of juries. Although he recognized the value of individualized treatment, he
also recognized its limitations. Individualized treatment was limited to the five classes of
criminals which he developed (Sellin, 1958: 491). German criminal lawyer Franz von Liszt,
on the other hand, campaigned for customized sentencing according to the rehabilitative
potential of offenders, which was to be based on what scientists found out about the causes of
crime (Sherman, 2005). Modern trend in penology has been in the direction of positivism,
with such innovations as the indeterminate sentences, parole, probation, suspended sentences,
and good time laws. The reforms made in the criminal law in all civilized nations in the last
century have resulted in the adoption of many of the proposals of the positivists.

Beside this, a few of the criticisms were also found in regarding positivism from early days,
which is penetrating the post-modern ideas of punishment since second world war . Firstly,
the positivist school has ignored the fact that the criminal law is a double-edged sword. It
protects society against individual, and it protects the individual against the arbitrary actions
of the state. Secondly, the positivist emphasizes parole and indeterminate sentence, yet a
determinate sentence has more value than does the indeterminate sentence as a factor in
success or failure of parole.
In brief, the positivist thinkers emphasized more on scientific approach in defining criminal
behavior and setting punishment. Factors like biological inheritance, mental abnormality,
situations, gravity of crime, age, sex and offender characteristics were taken into
consideration in determining punishment. Besides, the proponents of the positivist school
drew attention more on corrective and reformative approach then imposing serious
punishment. The notion was to correct the negative behavior of human and reintegrate him in
society as a law abiding people. Thus the concept of punishment shifted from barbaric forms
of punishment in early era to a corrective and preventive form in modern age.
 Table-01: Comparative nature, forms and factors of philosophy of punishment*
Historical Eras Timeline Philosophy Scholar Factors of Criteria of Forms of

Punishment Punishment Punishment

Early Pre- Before Retribution Saint Thomas Absolute Domination Capital and

and classical 17-18th Acquinus (1274), monarchism of Idealistic, Corporal

Medie Century Saint Augustine Religious and Punishment
val Supernatural
Belief
Thomas Hobbes
(1588-1678) French Social Harsh and
Classical Middle Deterrence Montesquieu Revolution Contract, Corporal
18th (1689-1755) (1789), Rationality Punishment
Century Cesare Baccaria Industrialization, and Legality- and Capital
(1738-1794), Scientific based Punishment
Jeremy Bentham discoveries (limited)
(1748-1832)
Corrections, Cesare Progress in Causality, Rigorous and

Moder Positive 19th Rehabilitation Lombroso Science and Scientific, Simple

n Century and (1835-1909), Technology, Individualisti Imprisonment
Reintegration Raffaele Advent of Law c and , fine,
Garofalo enforcement Socialistic corrections
(1851-1938), agency, and corporal
Enrico Ferri Awareness thru punishment
(1856-1929), Education etc. (limited)
Karl Marx
(1818-1883),
Emile Durkheim
(1858-1917)
Postmodern 20th Restorative Michel Foucault Late Capitalism, Multifactor, Limited
Century Justice, (1926-1985) Network Society, De-centered Reformation
Panopticon, David Garland Information subjectivity,
Governmentality (1917-) technology

*Notes: The above table has been constructed from the writings of Barnes and Teeter’s seminal book In
Criminology: The American Crime Problem; Barbara A Hudson book’s Understanding Justice and Normann
Johnston et.al book’s The Sociology of Punishment and Correction.

Contemporary debates on Philosophy of Punishment

Punishment resorted to in any society, whether it be primitive, barbaric or civilized, are based
on a twofold consideration: the assumed damage of the antisocial act to the group and the
measure of repayment that the social group exacts (Barnes and Teeters, 1943:391). At present
philosophy of punishment is an essential part of the philosophy of life, freedom such as
existentialism. Initially the philosophy of life stands against the punishment system but later
some of the philosophers talk for the punishment system as a mean of social control or social
obedience. But still there is a debate on this issue. Not to that there are also some major
debatable issues relevant with the present punishment system. The three major debates are
found in contemporary penology such as need of punishment, abolishment of capital
punishment and modern punishment system.
In terms of the legal and penal thinking, existentialism which is the philosophy of the life
nowadays is most compatible. Although it is not being seemed as before because there was a
pre-mature thought and that is the fruitful exchange between existentialism and penology is
impossible. Existentialism evolved from Kirkeguard and popularized by the French
philosopher and writer Sartre. Sartre and Heidegger will insist in varying ways that justice-
and punishment- are subjective affairs for each individual, for individual is like another, no
one situation comparable to that of another man’s (Johnston et.al, 1970: 337). Existentialist
rejects ontological, political and linguistic approaches to morality and betrays a marked
concentration on the individual apart from society is a fundamental analysis which begins not
with words, but with the ontological structure of man (Johnston et. al, 1970:337-339). Former
idea is provided by the leading exponent of Existentialism Jean-Paul Sartre and the later is
given by eminent philosophers Albert Camus also with Gabriel Marcel, Karl Jaspers,
Emmanuel Levinas and Maurice Merleau-Ponty.

According to Sartre, man is a true subject of his own choosing, yet he is subjected to the
artificiality of institutionalized standards and laws. As the individual becomes a member of
the law abiding, punishment-approving, he slips inconspicuously into the anonymous
institution and unknown allows his absolute freedom to be converted into the slavery of the
organization man. He obeys: if he does not, he submits to punishment, which itself is form of
social obedience (Johnston et.al 1970: 338). And if he disobeys those he has to face
punishment, formulated by those institutions. He recommends practicing absolute freedom
and thus rejects traditional punishment system. Additionally, Sartre implies is punishment for
like the other inertial force, it reduces man’s potentially, limits his freedom, constraints his
humanity. On the other hand Camus has emphasized not to the punishment system but to the
capital punishment through breaking Sartrean existentialism. He has opined that, to be a man
he must reject God while Sartre opined that man must become to be God. In this regard,
Camus has pointed out some arguments: For future social benefit, punishment is necessary.
Role of the capital punishment is not vengeance but for the protection of the society.
According to the human Right thinkers, Punishment should be replaced by the reformation
and corrections of the offender through maintaining his rights as a person.
Capital punishment, the ultimate limit is the severest type of punishment because nothing can
be more painful, crueler to an individual than being deprived of the very life and existence.
Thus it creates an issue of arguments. The arguments in favor of Capital Punishment are: it is
definite deterrent to crime; a moral war; a social need; a selective process; a legal demand; a
matter of economic saving; humanitarian, definite, very easy; necessary for securing others
from criminals. Philosopher Plato said in this regard that, ‘If a man cannot be harmless
otherwise then in sleep, it is better for him to die than live’. And the arguments against the
criminal punishments are: result is grave injustice; leaves no room for repentance; is not
selective; economic loss; and is not a way to curb crimes. A group of penologist is supported
death penalty for the reasons of retribution, deterrence, incapacitation and the instrumental
perspectives. On the other hand, Sometimes a few of criminologist and criminal justice
personnel rejects the notions of death penalty due to the reasons of morality, the brutalization
effect or the risk of executing an innocent person (Lambert, et.al. 2006) .

Recently a new thinking has started to its philosophical viewpoint towards the present
punishment system which is the Post modern thinking. It arises question about the penalizing
and normalizing responses to crime which nowadays a great continuous tension in modern
philosophy of punishment. The upcoming thinking that is punishment suggests about the
transformation from the disciplinary society to actuarial society which refers to break the
imprisonization thinking of punishment.

Conclusion
Since the growth of civilization, punishment has been existed in different societies to control
crime and it has been practiced in present society in diverse forms too. For controlling crime,
the appropriate nature of punishment is being determined by the philosophical aspect of
punishment in structural position of a given society and these philosophies are also being
changed due to its associated factors. The barbaric punishment system of pre-classical period
has been replaced by the rational thinking, enlightenment ideas, and penal reform in
determining punishment in classical period. Similarly, the deterrent philosophy of
punishment in classical period has been changed by science, individualism, constitutional
democracy, penal reform, reformative ideas in setting the punishment in positive period.
Postmodernist thought influenced the philosophy of punishment in reference to the questions
of subjectivity and existentialist identity of man and disciplinary nature and technology since
Second World War.
Although, the modern philosophy of punishment is re-integrative and
rehabilitative, but still punishment itself a debatable issues from different points of view such as
existentialism and postmodernism.

References:
Adler, Freda, Mueller, G.O.W. and Laufer, William S. (2004). Criminology and the Criminal
Justice System, New York: McGraw-Hill Companies.

Akers, Ronald (1994). Criminological theories: Introduction and Evaluation. United States of
America: Roxbury Publishing Company.

Allen, Francis. A. (1954). Pioneer in Criminology, IV: Raffaele Garofelo, Journal of

Criminal Law, Criminology and Police Science, November- December, p.

Barnes, Harry Elmer and Teeters, Negley K. (1943). In Criminology: The American Crime
Problem. New York: Prentice- Hall, Inc.

Carlsmith, Kevin M. (2006). The roles of retribution and utility in determining punishment,
Journal of Experimental Social Psychology, Vol-42, pp. 437–451

Encyclopedia of Britannica. (2000). Encyclopedia of Britannica, Chicago.

Foucault, Michel. (1977). Discipline and Punishment: The Birth of the Prison, London: Allen
Lane.

Howe, A. (1994). Punish and Critique: Towards a Feminist Analysis of Penality, London:
Routledge.

Purpose of Punishment: http: www.sagepub.com/upm-

data 5144 Banks II Proof Chapter 5.pdf.

Hudson, Barbara A. (1996). Understanding Justice: An Introduction to Ideas, Perspectives

and Controversies in Modern Penal Theory. Philadelphia: Open University Press,
Buckingham.

Johnston, Norman., Savitz, Leonard., and Wolfgang, Marvin. E. (1970). The Sociology of
Punishment and Correction, London: John Wiley and Sons.

Jeffery, Clarence. Ray (1959). Pioneers in Criminology: The Historical Development of

Criminology, The Journal of Criminal Law, Criminology and Police Science, Vol-50,
No-1 (May- June), pp.3-19.
Lambert, Eric. G., Baker, David. N. and Tucker, Kasey. A. (2006). Two Americas: Capital
Punishment Views among Canadian and U.S. College Students, International Journal
of Criminal Justice Sciences, Vol-1, Issues-2 (July).

Mcphrson, Thomas. (1967). Punishment: Definition and Justification, Vol-28, No-1, London:
Blackwell Publishing. pp.21-27.

Nuruzzaman, Md. (2000), Philosophy of Science: Some aspects and Nature, The Journal of
Social Studies, Vol-88 (April-June), Dhaka: Center for Social Studies.

Paranjape, Dr. N.V. (1973). Criminology and Penology” (2005). Allahabad: Central Law
Publications.

Quinney, Richard (1975). Criminology (1979). United States of America: Little, Brown and
Company, Inc.

Reid, Sue Titus (1996). Crime and Criminology (1997). United States of America: McGraw-
Hill Higher Education Group, Inc.

Rusche, G. and Kirchheimer, O. (1968). Punishment and Social Structure, New York: Russell
and Rusell.

Sellin, Thorsten. (1958). Pioneers in Criminology, Journal of Criminal Law, Criminology and
Police Science, January- February, p.491.

Sharma, Rajendra K. (1998). Criminology and Penology. New Delhi: Atlantic Publishers and
Distributors.

Shermen, W., Smith, A., Schmidt, D., and Rogan, P. (1992). Crime punishment and stake in
Conformity: Legal and Informal Control of Domestic Violence, American
Sociological Review, Vol-57, No-5.

Siegel, Larry J. (1998). Criminology- Theories, Patterns and Typologies. Belmont:

Wadsworth Publishing Company.

Sutherland, E. H. (1939). Principles of Criminology, Philadelphia: Lippincott.

Vold, George. and Bernard, Thomas. (1998). Theoretical Criminology, Oxford: Oxford
University Press.

Walker, N. (1968). Crime and Punishment in Britain: An Analysis of the Penal System in
Theory, Law, and Practices, London: University Presss.
Wolfgang, Marvin E., Savitz, Leonard and Johnston, Norman (1962). The Sociology of
Punishment and Correction (1962). The United States of America: John Wiley and
Sons. Inc.