Criminal 3 Reading Notes:

1. Jeremy Bentham: Punishment and Deterrence.

The aims of punishment.

 When a committed act results in effects that a legislator wanted to prevent, two
wishes come to his mind: prevent this happening in future and compensate the
mischief already done.
 Mischief likely to ensue from acts of the like kind may have two sources: conduct of
party author of the mischief already done; or conduct of such other person who may
have adequate motives and opportunities.
 Pr4evention of offences has two branches:
o Particular prevention: applies to the delinquent himself.
o General Prevention: applicable to all members of the community without
exception
 Pain and pleasure are springs of human action.
 When man perceives or supposes pain to be consequence, he is acted upon to
withdraw him from the commission of the act.
 If the apparent magnitude of the pain be greater than that of the good then absolutely
prevented from performing the act.
 Hence, the mischief that would’ve ensued is also then prevented.
 Recurrence of an offence may be provided in 3 ways:
o Taking away physical power of offending.
 Physical incapacity so can no more commit the crime.
o Taking away the desire of offending
 Moral reformation so no longer desire to commit the crime
o Making him aware of offending
 No longer dares to since terror of the law.
 General prevention is affected by denunciation of punishment which serves as an
example for everyone.
 General prevention ought to be chief end of punishment.
 An offence that occurred as an isolated fact, the like of which will not recur,
punishment will be useless.
 But unpunished crimes leave the path to crime open. Not only to the same criminal
but also others with motives or opportunity.
 Punishment hence is looked on as an indispensable sacrifice ti the common safety and
it inflicted on one person becomes a source of security to all.

The Quantum of punishment:

 Rule 1
o First object is to prevent all sorts of offences
o Value of punishment shall not in any case be less than what is sufficient to
outweigh that of the profit of the offence
o If it be, then the offence will altogether be ‘inefficacious.
o This rule has been objected to on basis of its harshness.
 o The strength of the temptation is as the profit of the offence; quantum of the
punishment must rise with the profit of the offence.
 Rule 2
o Whether a given offence shall be prevented in a given degree by a degree of
punishment, is never anything better than a chance; for the purchasing of
which, whatever punishment is employed, is so much expended in advance.
o Th greater the mischief of the offence, the greater is the expense, which it may
be worthwhile to be at, in the way of punishment.
 Rule 3
o Next object is to induce a man to choose less mischievous of the two offences
o Whether two offences come in competition, the punishment of the greater
offence must be enough to induce a man to prefer the less.
 Rule 4
o When a man has resolved upon a particular offence, the next object is, to
induce him to do no more mischief than what is necessary for his purpose.
 Rule 5
o Last object is whatever mischief is guarded against, to guard against it as
cheap a rate as possible.
o The punishment ought in no case to be more than what is necessary to bring it
into conformity with the rules given here.
 Rule 6
o Observed that a punishment may not produce the same degree of pain in two
different person.
o The quantity actually inflicted on each individual offender may correspond to
the quantity intended for similar offenders in general, the several
circumstances influencing sensibility ought always to be taken into account.
 The first four rules serve to mark out limits on the side of diminution; the limits below
which a punished may not be diminished.
 Fifth; the limits on the side of increase.
 First five serve as guides to the legislator.
 6th serves in guiding the judge in his endeavor to conform on both sides to the
intentions of the legislator.

Cases where punishment is unjustified

 All punishment is itself evil.

 Upon principle of utility, it ought only to be admitted in as far as it promises to
exclude some greater evil.
 In the following case punishment shall not be inflicted:
o Where it is groundless:
 Where there is no mischief for it to prevent.
o Where it must be inefficacious:
 Where it cannot act as so to prevent mischief.
o Where it is unprofitable:
 Where the mischief it would produce is greater than what it prevented.
o Where it is needless:
 Where the mischief may be prevented or cease, without it; at a cheaper
rate.
 2. Note on the articles: WHY DO WE PUNISH? – The case for retributive justice
and the justification of punishment.

Nature of Question.

 Both articles deal with the justification of punishment inflicted by society on certain
members through its criminal justice system.
 Presumably includes all those kinds of punishment which our own society inflicts,
such as imprisonment, financial penalties and may include pain and killing.
 Why do we establish a system or laws and institutions, one of the functions of which
is to inflict punishment?
 Answer to this is that the society maintains a system to protect itself and its members,
and not for the purpose of retribution.
 Believed that if the system were not though necessary for the
protection, society would not pay the cost of its upkeep.
 Greater need for police and harsher punishments is not because of
society’s moral disapproval of moral wrongdoing but rather because
some members of society feel themselves to be in greater need of
protection.
 This is in disagreement to Mr. Cavanaugh who holds: ‘retribution is
probably the sole view most commonly adhered to by the general
public or the ‘reasonable man’ and that it is a view which is
widespread among leaders and governemnt’.
 Professor Weiler suggests that a choice must be made between the ‘retributionist’
theory and the utilitarian theory.
o Retributionist view is that the punishment of the morally derelict is its own
justification for it is right for the wicked to be punished.
o He holds utilitarian view as being the reduction of the antisocial behavior.
 Reduction of harmful behavior is intermediate objective but the end is
protection of society and members against harmful behavior.
 Cavanaugh also deals with an ‘expiatory’ view as ‘punishment is a purging of guilt
for the offender, or his payment of his debt to society’.
 The true questions are: Why do we have a criminal justice system and by what right
do we some people punish others?

Retribution as a justification for punishment:

 Weiler’s idea of retribution starts with the description : The view that punishment
of the morally derelict is its own justification for it is right for the wicked to be
punished.
 Later he holds the retributivist conceives of the criminal law as consisting
essentially ‘of a set of rules which define and protect a zone of freedom for each
member of society’.
 One who violates these rules has invaded the zone and so gained unfair advantage
over the law-abiding members who exercised self-restraint.
  Purpose of punishment is to restore equilibrium of benefits and burden exacting
debt that the wrongdoer owes.
 Preservation of the social fabric (fabric of social life) has become an objective,
and the objective is no longer merely the punishment of the moral derelict for the
sake of punishment.
 Author demands for a reason for punishment that does not associate a profit
received by the criminal rather a theory that suggests punishment to reduce crime
as compared to when there is no punishment.

Protection of Society as justification for punishment:

Chapter 4: Theories of punishment (Nyazee).

Retributive theory
Utilitarian theory (deterrence, prevention, reform).

The Theory of Retribution:

 Attracted greatest attention

 Justification of punishment acc to this theory is based on the natural reaction of man.
Moral blameworthiness:
 Basic assumption here is that crime is a moral wrong.
 Mens rea based on this idea, as it requires a blameworthy intention.
 Idea of moral blameworthiness is based on the power of humans to choose between
right and wrong.
 A person committing an evil is to be held responsible for the act.
 Law also assumes that the evil resulting from an act can be measured and graded and
this enables us to award punishments in acc with gravity of offence e.g., eye for an
eye.
 Gradation varies from fines to life imprisonment to death.
 In this gradation, realized that some minor crimes do not deserve punishment. Hence,
law framers fix a maximum punishment but there is usually no minimum.
 Awarding the right penalty in this range is upon the judge’s discretion.
 Murder is an exception to this rule of discretion.
 Muslim Jurists highlight the blameworthiness of certain serious offences and show
that the Islamic law takes this aspect into account.
o Hanafi jurist said that murder is a sin too grave to be atoned through expiation.
o Crime against life is the greatest of all prohibited actions after shirk.
o As per Quran it is deemed murder as the destruction of the whole world.
o Killing of a Muslim has been understood as a grave offence according to the
Quranic injunctions.
o This is why Ibn Abbas, did not uphold the effectiveness of the repentance of
the murderer.
o Islamic law accords importance to the moral blameworthiness of the act.
o For this reason, for the offence of murder the Hanafi’s do not permit the
acceptance of kaffarah and the repentance of the killer goes in vain.
Proportionality to guilt:
  Judges say that if the concept of deserved punishment is eliminated, the concept of
justice would be eliminated too.
 By what standard should the judges estimate the punishment to be awarded to the
offender?
o Answered by J Denning: The ultimate justification of any punishment is noy
that it is a deterrent, but that it is the emphatic denunciation by the community
of a crime.
o Theory of retribution on the basis of proportionality has been upheld by
philosophers.
o Kant said: only the law of retribution can determine the kind of degree of
punishment; it must be well understood, however, that this determination must
be made in the chambers of the court of justice.
 Sarakshi acknowledges the idea of background of this idea of proportionality and
elaborates its meaning for us:
o Qiasas is established by the words of the Exalted. The law of equality
ordained.
 However, problems with the idea of proportionality and Cross discusses one.
o He says punishments may also be undeserved if it is imposed despite the
absence of fault on the defendant’s part. English law contains a number of
offences of strict liability for which no fault is required”.
o Law of Pakistan also contains offences of strict liability.
Desire of vengeance:
 The idea of proportionating punishment to the public’s view of moral culpability is
closely associated with another idea.
 That is of satisfying public desire of vengeance.
 Modern criminologists look down on the retributive approach.
The harm done:
 Retribution has another aspect to it. Punishment should be awarded in proportion to
the harm done.
 The moral guilt of a criminal who was successful and who failed is the same. Yet,
punishment for attempt alone is lesser than that awarded to completion of crime.
 Failure in the commission of crime is considered a mitigating factor.
 Hence, it appears that the punishment is proportioned to the harm done because a
person who attempts a crime and fails has caused less harm as compared to one who
has succeeded.
 Jurists believe that a ‘crude retaliation theory’ is at work here.
The sentence to fit the crime:
 Whether there is ‘normal’ sentence to the offence.
 There is a general agreement that there is a ‘tariff’ or a range between which the
normal sentence is to be found. This normal varies acc to circumstances.
Justice and equality:
 Treating the offenders equally when they have an equal degree of moral guilt is the
fundamental rule of justice.
 Hence, endeavor of a judge to impose the same penalty that has been imposed by
other judges under similar circumstances.

Deterrence or the protection of the public:

 Prime object of the criminal law according to some is the protection of the public by
reduction of crime and maintenance of law and order.
  This object is achieved through deterrence.

Primary and secondary deterrence:

 Two types:
o Primary (individual) and secondary (general).
o Primary deterrence is for the offender, while secondary is to deter others from
committing the same crime.
o Idea of primary deterrence is that the offender should be given such an
unpleasant time that through fear of punishment, he will never repeat his
conduct.
o In general aim is to discourage ithers from committing the same crime by the
example of punishment imposed on the offender.
o General deterrence is the purpose of punishment as is done by judges who set
exemplary punishments so to deter committing the crime.
o Another aspect of theory highlighted by Cross under the title of long-term
deterrence.
o Long term deterrence helps societies build up or maintain people’s standards.
o Over a period of time, people may not abstain from the crime due to fear, but
due to inner feeling about its wickedness.
o As shown, ethical considerations and principles of justice are put aside in
interests of protecting the public.
o Courts in speaking of protecting society through deterrence are generally
referring to secondary deterrence.
o General rule that courts in England have departed from now, was that the
sentence imposed is for the protection of public, but it should not increase the
maximum merited by the gravity of the offence.
Deterrence and Islamic Law:
 Here idea of deterrence is supported by most of the prescribed penalties.
 Even the penalty of qisas, although it has some retributive attributes is meant for
deterrence.
 Primary deterrence is not relevant in murder because the offender subject to qisas for
murder will exist no more.
 PD is relevant however, in the case of qisas for bodily injuries.
 One of the purposes of law is the prevention of harm or threat to the interests
preserved and protected in the shariah.
 Deterrent quality of the qisas and hudood penalties ensure such preservation and
protection.
 Here is manifest the theory of long-term deterrence through which the standards of
people as required by the shariah are maintained.
 Strict Islamic law does not permit awarding excessive punishment to an individual for
the sake of deterring others.
 Some Muslims jurists grant this right to the to the ruler under taazir or siyasah.
 Hence, in case of the habitual offender who has committed murder, they grant the
right to the ruler to punish him even after the heirs have agreed to forgive him with or
without compensation.
The theory of reformation and rehabilitation:
 In modern times, substantial part of the legislation is directed towards rehabilitation of
the offender.
  But there is opposition to the view of holding reformation to be the main object of
sentencing.
 Whenever there is conflict between reform and deterrence it will be the deterrence
that will be preferred.
 Judges always have reform considerations in their mind when they are passing a
sentence that will deter.
 Where reform considerations are preferred the principle that punishment should fit the
crime will clash with the objective of reform.
The theory of prevention:
 The object of punishment is to incapacitate the offender from committing further
crimes.

The Nature of Punishment:

Purposes of sentencing and the model penal code:
 To prevent commission of offences
 Promote correction and rehabilitation
 Safeguard offenders against excessive, disproportionate or arbitrary punishment
 …
The essential ingredients of punishment:
 General view of cases unmeet for punishment
 1. General object of all laws is to augment the total happiness of the community and
to exclude everything that tends to subtract from that happiness.
 2. All punishment is mischief. It ought to be admitted in as far as it promises to
exclude some greater evil.
 3. Plain, therefore, not inflicted in the following cases:
o Groundless: no mischief for it to prevent
o Inefficacious: cannot act to prevent the mischief
o Unprofitable: mischief produced would be greater than what it prevented.
o Needless: where the mischief may be prevented without punishment
 Distinction between masalah and utility: utility is based on human reason while
masalah is based on what the lawgiver deems beneficial.
Analysis of the ingredients of punishment:
 Criminal law owes much to Bentham.
 Even the range of penalties are a result of his effort at reform.
 Philosophy behind his statements is based on principle of utility.
 This principle upholds a single moral law for all lawmaking : “Th egreatest happiness
of the greatest number of people”.
 All punishment must therefore be inflicted to promote happiness of the community.

Islamic law
 Upholds the idea of punishment put forth by bentham, but there are few differences.
 Principle of islamic law that corresponds to Bentham’s principle of utility is the called
masalah.
 Masalah like utility means the acquisition of manafah and the repelling of madarrah.
 Al-gazali differentiates it from the principle of utility:
o What actually is meant by masallah is the preservation of the ends of the shar.
 Hence, difference here with utility is that in Islam what leads to utility is determined
by the law giver and nit the human desires.
  Punishments that do not appeal to humans are still legally binding in Islamic state as
they promote human welfare in eyes of the lawgiver.

Types of punishments: western and islamic.

 Usual punishments after criminal proceedings in western legal systems :
imprisonment and fines.
 In islamic justice system, various penalties may be stated based on the rights
involved:
o Where right of allah is involved – hudud or qisas
o Where the right of individual alone is involved – taazir, reparation and
compensation as substituted penalty after sulh;
o Where the right of the state is involved including fasad fi’l-ard.

Is imprisonment the preferred penalty in Islam?

 It is preferred in the modern world.
 Offendor is separated from society so that he can no longer cause harm.
 Efforts may be made in prison for his rehabilitation.
 Critics however state that prisons have becomes schools for production of hardened
criminals.
 Majority jurists agree relying on evidence of the Quran and Sunnah and consensus of
the opinion, that imprisonment is the valid form of punishment.
 Problem when we come to determining the duration of the imprisonment.
 Hanafi jurists state that the matter of duration is to be left to the state to determine and
there is no fixed duration. As it varies with the nature of crime.
 Different Islamic schools of thought have different believes about the maxmimun
time allowed for imprisonment.
 Rule for which is as below: