ABSTRACT
This thesis is an attempt to arrive at a more suitable justification for the institution of punishment. The problem arises because punishment discriminates between those who are considered offenders (one who has broken the law) and those considered non-offenders. Punishment also goes beyond distinguishing between the offender and the non-offender to inflict some pain or deprive some right to the one considered as an offender. Both the discrimination and the pain inflicted or right deprived to the offender require a justification to be acceptable. This is what has engaged many theorists in penology. There are various positions on the matter. One of the traditional positions like the desert-based retributivists, a variant of the Retributivists justification for punishment says the offender deserves to be punished because he or she has committed a crime and deserves a punishment that inflicts a pain which is equal to the crime that has been committed. The other traditional position is the utilitarian position which suggests that it is justifiable to punish the offender because such a punishment will preserve the society by maintaining social control. This thesis proposes a rational contractarian approach based on the ideas of the contractarian Jean Jacques Rousseau. This thesis suggests that a more plausible justification for punishment could be based on freedom as an essential characteristic of the human being. When a person is deprived of his or her freedom the person loses their humanity. The thesis further suggests that when a person lives according to rational nature, they will live according to the general will, which is always good and makes him free. However, a person who lives according to the will of another or according to one‟s passions, will live in subjugation to another person‟s will or passions against the general will and by so doing is not free. The actual will of a person rises against the general will (the person‟s real will), and this results in a split will. Such a split will is one which makes a person commit a crime and become an offender and
unfree. This thesis proposes that punishment remedies this situation when the laws which are based on the general will are applied. The rational will of the person discerns the general will and from that makes the laws. When a person is punished based on the law, then, one punishes oneself and is thus subject neither to another nor to one‟s passions and so is free; there is no distinction between the sovereign who makes the law and the offender who has broken the law. Punishment is thus applied to make a person free since by going against the general will one has made oneself unfree. This thesis seeks to pick some positive attributes of the traditional positions, while avoiding some of their major criticisms and adding its own unique features like concentrating on human freedom as an essential basis to give a more suitable justification for punishment.
INTRODUCTION
My motivation for this thesis arises from how some people have a negative conception of punishment and fear, disapprove of, or even sometimes, hate those who inflict them. Some also use their influence to elude the grasp of the law and thus escape the punishment they deserve for such crimes. I see in the ideas of Rousseau a shift towards a positive conception of punishment not only for the society but the individual who is at the receiving end of the punishment.
Punishment, first, discriminates between some people considered as offenders and others considered as non-offenders, which without moral justification is unacceptable. If all persons by nature are equal, then they must be treated equally, if they are to be treated differently, a very good reason must account for that. Again, punishment inflicts some forms of pain on some people which cannot be tolerated without moral justification. It is morally unacceptable to act in such a way that will harm another person. The ethical principle non-maleficence for instance enjoins us to do no harm to another, at least not intentionally (primum non nocere). If punishment is therefore an intentional harm that is meted out to another person, then punishment would be ethically unacceptable. Providing moral justification for this problem of discrimination and infliction of harm is the preoccupation of many theorists in penology.1
The desire to satisfy a demand for justification of punishment has given rise to two major schools of justification for punishments among others; the utilitarian and retributive theories of justification for punishment.2 According to the Retributivists, every offence must be punished in proportion to the offence committed. It seems when asked why an offender should be punished, such theorists will only say that justice demands it, which by itself will not suffice because one
1Cf., Boonin David,The Problem of Punishment, Cambridge University Press, New York, 2008, p 28-29.
2 Cf., Michael Lessnoff, “Two Justifications of Punishment” in The Philosophical Quarterly (1950-), Vol 21, No. 83, Oxford University Press, 1971, accessed from www.jstor.org on 12-01-2018, p 141.
would ask why justice demands it. This will most likely require some further justifications. On the other hand, Utilitarians justify punishment from the angle of its consequences on the society. In their view, punishment deters the criminal and discourages others from committing same or similar offences; thus, punishment acts as a deterrent; it may be specific deterrence or general deterrence.3 Punishment is seen as justified because it brings about the greatest happiness for the greatest number. This will certainly be disastrous if pushed to the extreme.
Henrietta Mensa-Bonsu defines punishment as “a phenomenon that entails the infliction of suffering or some other unpleasant consequence by an agency in a position of authority on an offender for an offence, i.e. the doing of a prohibited act”.4 David Boonin also defines punishment as an “authorized reprobate retributive intentional harm”.5 From these definitions, few characteristics of punishment may be discerned. Punishment is first a harm that is deliberately inflicted. Secondly, punishment is meted out only to one who has broken the law or done some wrong. Thirdly, punishment is to be exacted by an authority within a certain legal framework, and is meted out by an authority that legally possesses that responsibility.
Both authors also talk about some form of harm or suffering which is done deliberately. While Boonin refers to “intentional harm” as an essential element in the idea of punishment, Mensa- Bonsu talks about the “infliction of suffering or some other unpleasant consequence”. This is important to make clear the point that it is not something to be enjoyed, but rather intended to be unpleasant. It is also supposed to be deliberate so that we do not end up absorbing all kinds of
3Specific deterrence occurs when the offender after the punishment resolves not to and does not commit the offence again while General deterrence occurs when others who are potential offenders upon seeing the punishment meted out on the offender resolve not to and do not commit the offence.
4 Henrietta J. A. N. Mensa- Bonsu, Criminal Law Series; the General Part of Criminal Law- A Ghanaian Casebook,
Vol 1, Black Mask Ltd, Accra, 2001, P 89.S
5 Boonin David, Op. Cit., p 23.
harm into the punishment domain. When this characteristic of punishment is upheld the pain that the dentist causes for instance will not be considered a punishment because, while it is unpleasant it is not carried out with the intention of causing pain to the patient. The kind of uncomfortable, unpleasant, harmful treatment must be intended and carried out purposely to cause some harm or pain. A pleasant consequence cannot pass for punishment because, once it is enjoyed it may most likely not bring about the desired effect of specific or general deterrence, or even the expressive function of unequivocally making a clear statement to the offender that his or her actions are unacceptable.
Both authors talk about punishment as inflicted on one who has offended or broken a law or done what is judged to be wrong, especially by a legal adjudicating body. This is what Boonin calls the retributive requirement; it must be meted out to one who has in the past done some acts that are prohibited. Boonin, however, mentions “reprobative”, which means that the punishment must serve as an unequivocal statement disapproving the act. Mensa-Bonsu says that such treatment is meted out to “an offender for…the doing of a prohibited act”. This affirms the fact that punishment discriminates between those who do wrong and those who do not, and the harm that is meted out is supposedly to express disapproval of the action. Joel Feinberg refers to this expression of the disapproval of an action through punishment as the “expressive function of punishment”.6
Both definitions of Mensa-Bonsu and Boonin also suggest the presence of an authority. This is to avert any form of anarchy that may result in people taking the law into their own hands and exacting their own measure of vengeance or violence on others.
6 Feinberg Joel, “The Expressive Function of Punishment” in Philosophy of Law (9th Edition), Wadsworth, Boston, 2014, 789-799.
It is important to talk about the idea of freedom because it is essential to understanding Rousseau‟s contractualism and crucial to the thesis proposed for the Rousseauean theory of punishment. Isaiah Berlin defines freedom in two ways; negative and positive freedom. In defining negative freedom,eBrlin says “By being free in this sense I mean not being interfered with by others.”7 He also talks about positive freedom which is also called autonomy: desire of the individual to be his own master. He wishes to be moved by his reason, by his own conscious purpose not by some causes which affect him.For Rousseau, freedom is being free from the constraints of another person‟s will and or your own passions, and obeying laws that one has made for oneself. It is this conception of freedom from Rousseau which will undergird the justification for punishment that will be espoused by this thesis.
Essential to human nature is the freedom of man. Once this freedom is taken away, he is treated like a brute or any other thing except human. The problem is that, punishment inflicts some harsh treatments on an individual or prevents him or her from enjoying some rights, that way, it curtails his freedom and thus seems to be opposed to the liberty of the individual. This will mean that punishment makes or treats a person like an animal. Such a treatment of persons cannot be allowed without a good justification for it. Would it then be justified to punish people if it will rob them of their freedom and thus their nature as humans? Especially considering that many human rights organizations stress that the rights of the prisoner or the criminal should be respected, a basic right like one‟s freedom should be maintained. Fortunately, while there have been many good attempts at justifying punishment, most attempts at justifying punishment do not focus on the freedom of the individual offender as grounds for such justification. While the Restorative and the Rehabilitative theories at least focus on the individual who has committed
7 Berlin Isaiah, “Two Concepts of Liberty” in Liberty: Incorporating Four Essays on liberty, edited by Henry Hardy, Oxford university press, Oxford, [1958] 2002, p 170.
the crime, they do not do so by considering one‟s freedom or liberty which is essential to him or her as human.
I wish in this thesis to propose a justification of punishment which is focused on the nature of human as free. I will also suggest that punishment in fact promotes such freedom, and thus rather than dehumanizing a person, it rather makes a person truly human, and truly free.
This thesis will seek to answer the questions:
- Is freedom essential to being human?
- Does punishment deprive a person of his or her humanity?
The study aims at attempting to eradicate the altogether negative assessment of punishment by presenting the positive side of it; both the penal system and the schools will focus more on the offender and the individual‟s freedom and bringing one back to conformity with the general will, rather than inflicting mere suffering on the individual. This positive side flows from the very nature of man or woman as free and how punishment helps to foster such freedom by forcing a man or woman who does not wish to be free (human) tobe free (human). As one obeys the laws, he or she has set for himself or herself, an individual obeys no one else but himself or herself and is thus free and truly human.
This thesis will use the argument analysis method. It will analyze the arguments that have already been proffered in defense of punishment. It will then analyze what J. J. Rousseau puts forth as a good argument in defense of punishments, and analyze the arguments of those who have commented on the work of Rousseau. It will also do a conceptual analysis of key concepts such as “punishment and freedom”. This study will be concerned with what punishment is, and the justification of the penal system under criminal law.
