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Thread: Theories Of Punishment

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    Q. Define criminal justice? What are different theories of punishment?(2002)(2001)(2001/A)(2005/A)
    Q. What are various theories of punishment? Discuss fully.(2004/S)(2006/A)(2007/A)
    1. Introduction:
    The most essential functions of a state are. Primarily two. War and administration of justice. Administration of justice is classified into parts, civil justice and criminal justice. The purpose of criminal justice is to punish the wrong doer who is punished by the state, on the question whether the purpose of punishment is the desire to make men better or to protect society, certain theories have been given by different jurists.
    2.Meaning Of Punishment:
    Punishment may be regarded as a method of protecting society by reducing the occurrence it as an end it self.
    3.Meaning Of Criminal Justice:
    Criminal justice is that which dealt within criminal proceeding the object of criminal justice is to punished the wrong doer.
    (I)Purpose Of Criminal Justice:
    The purpose of criminal justice is to punish the wrongdoer by the state. From very ancient times, a number of theories have been given concerning the purpose of punishment which may broadly be divided into classes.
    (i) The view of first class is that, the end of criminal justice is to protect and add to the welfare of the state and society.
    (ii) The view of other class in that, purpose of punishment is retribution.
    4. Objectives Of Punishment:
    Following are the objectives punishment
    (i) Supremacy of law.
    (ii) Maintenance of peace in society.
    (iii) Punishment of offender.
    (iv) Protection of public from crime.
    (v) Protection of state.
    (vi) Preservation of life.
    (vii) Protection of individual property.
    (viii) Upkeep morality and culture
    (ix) Prevention of crime.
    5.Theories Of Punishment:
    There are certain theories behind the concept of punishment.
    (I)Deterrent Theory:
    According to this theory, the object of criminal justice in awarding punishment is to deter the people from committing crimes again.
    According to Prof Salmond:
    “Punishment is before all the deterrent and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.”
    According to Locke:
    “The commission of every offence should be made bargain for the offender:
    (i)Aim of Punishment:
    The aim of punishment is not revenge but terror. An exemplary punishment should be given to the criminals so that the others may learn a lesson from him.
    Manu states:
    “Penalty keeps the people under control.”
    Criticism:
    There is a lot of criticism of the deterrent theory of punishment in modern times.
    a. Excessive hardness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishments.
    b. Deterrent punishment is likely to harden the criminal instead of creating in him the fear of law.
    c. Punishment loses its horror once the criminal is punished.
    (II)Preventive Theory:
    In preventive theory, the offender are disabled from repeating the offences by such punishment such as imprisonment, death, exile etc. This theory dose not act so much on the motive of the wrong-doer but disables his physical power to commit the offence.
    Prof. paton states:
    The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future.
    Example:
    An example of preventive punishment is the cancellation of the driving licenses of a person.
    Criticism:
    This theory has been criticized on following aspects.
    a. It hardens the first offender by putting him in constant association with the habitual offenders.
    b. When offender puts in jail, it breeds move crime.
    (III)Reformative Theory:
    According to this theory, the object of punishment should be the reform of the offender. Even in he commits a crime, he dose not cease to be a human being. He must be educated and taught some art of industry-during the period of his imprisonment so that he may be able to start his life again after his release from jail.
    Prof. Jennings Stated:
    “Punishment not the revenge but to reform the offender.”
    Criticism:
    The view of Salmond on the reformation theory that if criminals are to be sent to prison to be means formed into good citizens, prisoner must be turned into comfortable develling place. The theory of reformative punishment alone is not sufficient and there should be a compromise between the deterrent theory and the reformative theory and the deterrent theory must have the last word.
    (IV)Retributive Theory:
    In primitive times, punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrong-doer the principal of “an eye for an eye ”a” tooth for a tooth” was recognized and followed. The plato was a supporter of the retributive theory.
    Prof. kant Stated:
    “Judicial punishment can never serve merely as a means to further another good, whether for the offender himself or for society, but must always be inflicted on him for the sole reason that he has committed a crime.”
    Criticism:
    Critics points out to punishment in itself is not a remedy for the mischief committed by the offender. It merely aggragates the mischief. Punishment is itself is an evil and can be justified only on the ground that it is going to yield better results.
    (V)Expiative Theory:
    This theory is similar to the idea of retribution. Expiation means the suffering or punishment for an offence. To suffer punishment is to pay a debt due to the law that has been violated.
    Lilly Stated:
    “The wrong whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid, that the wrong be expiated.”
    Criticism:
    Justice Holmes writes “This passion of vengeance is not one which we encourage, either as private individuals or as law-makers”.
    (VI)Compensatory Theory:
    According to this theory, the object of punishment must be not merely to prevent further crimes but also to compensate the victim of the crime. The contention is that the mainspring of criminality is greed and if the offender is made to return the sill-gotten benefits of the crime, the spring of criminality would dry up.
    Criticism:
    This theory has been criticized on the following points:
    a. It tends to over simply the motives of crime. The motives of crime is not always economic.
    b. Even in cases of offences actuated by economic motives the economic position of the poor offender may be such that compensation may not be available.
    c. If the offender is a rich person the payment of any amount may be no punishment for him.
    (VII)Denunciatory Theory:
    This theory examines the crime from a moral point of view
    View of Lord Dennings:
    The punishment to criminal adequately reflect the revulsion, hatred and condensation must be felt by a majority of citizens.
    (VIII)Ultilitarian Theory:
    This theory does not highlight or support any particular theory, but is one of the biggest theories for basis of punitive measure. They believe that punishment is an instrument for reducing crimes to matter from what approach they are adopted. There is no restriction to which theory by applied, the purpose is to achieve good consequences.
    6. Conclusion:
    To conclude, I can say, that a perfect system of criminal justice cannot be based on any one theory of punishment. Every has its own merits and every effort must be made to take the good points of all. The deterrent aspect of punishment must not be ignored, likewise the reformative aspect must be given its due place.


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