Author Name:   Anshumaan

the said article is about the origin of punishments and several other theories of punishment.

Punishments: Origin & Jurisprudence

We live in a society. Our action may be prolific to us or may avail benefit to us but at the same time those very actions may be detrimental to the other. So, in order to avoid such clashes, the society creates norms, rules and laws which are backed by sanctions. As the sanctions are imposed people are compelled to follow them. This is in order to maintain peace and avoid a state of ‘anarchy’. Therefore, it becomes requisite for everyone to know the laws, the norms and rules of the society. This in short this is called ‘Socialization’. To become a socialized civilians one must learn etiquettes, mannerisms and courtesies from two social groups, one being the primary group which is the family and the secondary group which are school, peers and other acquaintances. Therefore in order to avoid deviance one has to be socialized and then only one can be ‘disciplined’.

The red hot topic of today’s India is that is corporal punishment ‘justifiable’? Is it ‘reasonable’ to give corporal punishment to those who tend to become deviant or need to be disciplined? As the bone of contention is related to the corporal punishment so it is mandatory for the reader to know what is corporal punishment. The term Corporal means ‘bodily’ and punishment means ‘a penalty or sanction given for any crime or offence’.

Thus the term Corporal punishment:
“It is the deliberate infliction of pain as retribution for an offence, or for the purpose of disciplining or reforming a wrongdoer, or to deter attitudes or behaviour deemed unacceptable. The term usually refers to methodically striking the offender with an implement, whether in judicial, domestic, or educational settings”.

Legally, this term Corporal Punishment means:
“Physical punishment, as distinguished from pecuniary punishment or a fine; any kind of punishment inflicted on the body”.

Elucidating further in simple words, corporal punishment is the physical punishment by thrashing, or battering the deviant in order to inflict some semblance of discipline. Now the question that should arise in the minds of the reader is that how and when did this Corporal Punishment Start? And the most important of all questions is that when Corporal Punishment should be inflicted? In which cases or ‘rarest of rare’ cases should the corporal punishment be administered? If we look back to Indian Ancient History, majority of the Punishments were in the form of Corporal Punishments. This was in order to ‘Reform’ the person who is acting against the norms of the society. For example, Gautama states that a Sudra who intentionally reviles by criminal abuse or assault a member of the twice born caste, is to be deprived of the limb with which he offends and through punishment the Sudras are sought to be excluded from learning the Vedas. If he listens to recitations of the Vedas intentionally, his ears are to be filled with mal ten tin. If he dares to recite the Vedic texts his body is to be split. For assuming equal position with members of the upper castes, corporal punishment is prescribed. For different castes different modes of punishments were determined. According to Manu it the Sudra has the arrogance to each Brahmana their duties the King should see that hot oil is poured into his mouth and into his ears.

Corporal Punishment was certainly present in classical civilizations, being used in Greece, Rome and Egypt for both judicial and educational discipline. Sparta in particular, used them as part of a disciplinary regime designed to build willpower and physical strength. In Medieval Europe, corporal punishment was encouraged by the attitudes of the Medieval Church towards the human body, flagellation being a common means of self-discipline. This had an influence on the use of corporal punishment in schools, as educational establishments were closely attached to the church during this period. Nevertheless, corporal punishment was not used uncritically; as early as the eleventh century Saint Anselm, Archbishop of Canterbury was speaking out against what he saw as the excessive use of corporal punishment in the treatment of children.

Therefore the aforesaid examples were just to prove that the Corporal Punishment have been practiced in this world since time immemorial. So, we can conclude that there are mainly three types of Corporal Punishment:

1. Parental or Domestic Corporal Punishment: Corporal Punishments at home
2. School Corporal Punishment: punishments given by the teachers of the school
3. Judicial Corporal Punishments: the punishment given by the courts as per the law.

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 Analytical thinkers have different opinion about the Punishment, some say that they have a retributive value; some say that they are deterrent.

The bone of contention is that what does Jurisprudence has to say about Punishment? In order to answer this question it becomes mandatory to provide the definitions of the Punishment as per different eminent Law Thinkers like Bentham, Austin and Hart.

Bentham is considered as the founder of the Analytical thinking because he was the first person to include the concepts of Sovereign and his acclaimed principle of ‘Laissez Faire’. In fact he was the first person to ever encourage the Codification of law. According to Bentham he believed Punishment to be the chief end of the General Prevention. Bentham’s opinion on Punishment is “All punishment is mischief; all punishment in itself is evil”. If we could consider an offence which has been committed as an isolated fact, the like of which would never recur, punishment would be useless. It 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 indispensible sacrifice to the common safety. Bentham further said

“If the evil of punishment exceed the evil of the offence, the punishment will be unprofitable; he will have purchased exemption from one evil at the expense of another”.

The proper aim of punishment, as of anything else, is to produce pleasure and prevent pain as suggested by Bentham in his Principle of ‘Laissez Faire’. Now all punishment is in itself a pain. Therefore, for Bentham, all punishment is in itself harm. Therefore it can only be justified if this particular pain is outbalanced by the reduction in pain (or increase of pleasure) it causes. If people are deterred by punishment from doing things which would produce more pain, then the punishment will be justified. If not, there is no point in punishment or retribution for its own sake. This defence of punishment not only justifies punishment but also enables in principle the precise calculation of how much punishment is appropriate. It is that amount whose pain is outweighed by the pains of the actions it deters. Hence the theory of Jeremy Bentham is mainly based on ‘Deterrence’. Bentham through his writings made sure that punishment when subjected should not be of more heinous nature than the crime perpetrated by the wrong doer. The PLEASURE should surpass the PAIN. If not then the deviant can take it negatively and the purpose of punishment would be crumpled.

Rehabilitation is also one of the purposes of the punishment, the perpetrator should realize that what he did was wrong and hence in order to erase the deviant in him rehabilitation or in other word ‘reform’ is a must. 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. The other important aspect that we have to take the note of is Retribution. What will be the consequences of the punishment? Will it be taken in a positive manner or in a negative manner by the offender? 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”.

The next Analytical thinker to be discussed is John Austin. He was of the view that the ‘law is the command of the sovereign, backed by sanctions’. For the topic of Corporal Punishment the words ‘COMMAND’ and ‘SANCTIONS’ are very important. “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with. The term “Sanctions” means punishments. Sanctions can be positive or negative, and can include reward or punishment by state agencies; natural consequences or the dictate of one's conscience are not, in this case, legitimate sanctions. Therefore we can clearly see that Austin was of the view that the Commands of the Sovereign can only be followed if they are supported by punishments or dire consequences if the said commands are not being followed.

Another concept of punishments was given by H.L.A. Hart who was also one of the pioneers of the Analytical school of law. Hart’s nine essays on Punishment and Responsibility were written in the year 1957-67 and it was published in the year 1968. Many issues were discussed by Hart such as how the wrongdoes should be treated, when should capital punishment be given and was it justified to give heinous punishments? All these questions were taken care of by Hart in his essays. Hart defends punishment as a system designed to reduce wrongdoing but at the same time to respect freedom, especially freedom to choose in the light of the legal consequences. For a more complete justification a retributive element, consisting in the annulment of gains or the censure of wrongdoing, needs to be brought in.

Retribution itself means “impartial infliction of Punishment” as the punishment is impartial this itself clearly shows that the punishment is not justified. As Bentham in his theory of Punishment mentioned that the Punishment should go with the crime. That is, the amount of punishment should not exceed the amount of offence. If this is done then there will be no reform in the deviant and hence the deviant will never ever keep his faith over the Sovereign and its Commands.

To conclude we can say that the Analytical thinkers believed in the Sovereign but they have different views over Concept of Punishment. Hart and Kant believed in RETRIBUTION, Bentham believed in REHABILITATION, Austin believed in administration of SANCTIONS in order to obey the command of the Sovereign. Imagine all these statements were made a long time ago and these very statements are still so much applicable in today’s scenario. But no law thinker focused their attention on when should the “CORPORAL PUNISHMENT” be inflicted? What should be the case or rarest of rare case when the need of the corporal punishment should be felt?

References:
1. http://dictionary.reference.com/browse/corporal
2. http://www.thefreedictionary.com/punishment
3. http://en.wikipedia.org/wiki/Corporal_punishment
4. http://legal-dictionary.thefreedictionary.com/corporal punishment
5. Gautam Dharma sastra XII. 1, Manu, VIII. 270, 279, - 283
6. Gautam Dharma Sastra XII.4
7. Manu. VIII, 272, Nar, XV-XVI. 24/16
8. Wicksteed, Joseph H. The Challenge of Childhood: An Essay on Nature and Education, Chapman & Hall, London, 1936, pp. 34-35.
9. http://www.brainyquote.com/quotes/authors/j/jeremy_bentham.html
10. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php?title=2009&chapter=138937&layout=html&Itemid=27
11. http://www.answers.com/topic/laissez-faire
12. Law & Philosophy 8, B.Shanon Byrd, 1989 Kluwer Academic Publishers. Printed in the Netherlands, 151-200, 1989.
13. Austin 1832/1995: Lecture I, p. 36.
14. http://www.answers.com/topic/john-austin
15. Remarks at OUP launch of H.L.A Hart, Punishment and Responsibility, 2nd ed. With introduction by John Gardner and John Gardner, Offences and Defences (19 March 2008)
16. Webster’s Comprehensive Dictionary, International Edition, Volume Two, Page 1076,J.G.Fergusson Publishing Company, Chicago.

The  author can be reached at: anshumaancnlu@legalserviceindia.com

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