This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Published: Fri, 02 Feb 2018
Penology and the ethics of punishment
Compare And Contrast Deontological And Utilitarian Views Of The ‘Rightness’ Of Acts And Consider Which Is Most Accurately Reflected In Today’s Penal Policies.
Deontological moral systems are characterized by a focus on obedience to independent moral rules or duties. In order to make correct moral choices, one hash to understand what his or her moral duties are and what correct rules that exist to regulate those duties. According to the theory, one behaves morally when we those duties are being followed. When this fails, a person is behaving immorally. Utilitarianism covers all theories that justify the evil of punishment only when that punishment has some utility. It holds the belief that, ultimately, the only morally significant features of an act are the good and bad consequences produced by it. Bentham’s utilitarian theories looked to the amount of happiness generated by an act rather than the act itself. Both theories claim that punishment is an evil and needed acceptable justification. However, each theory believes in different approaches to justification. While deontology protects the value of the individual, utilitarianism seeks to maximize the benefit of more people, even if it meant to sacrifice one individual. (Mill, 1998)
Two main theorists who support the utilitarian approach are Jeremy Bentham and John Stuart Mill. On the other side, opposing their ideas stands the famous philosopher Immanuel Kant. Utilitarians are called consequentialist and deontologists are retributionists, due to their theories and ideas. Nevertheless, one main shared belief is that punishment is evil and had to be justified. Instead of punishment being out of vengeance, it rather should be as means of prevention, else it just replaces an evil for another evil. (Sullivan, 1989) In utilitarianism, what makes an action right or wrong is outside the action but it is the consequences of the action. Deontological theories on the other hand, stress the action in itself. If an action goes out from a sense of duty then the action is right. We should do our duty regardless of its effect on either our own or others present or future happiness. As an example, telling the truth because one respects another person, means acting out of duty, therefore the action is right. If however, one tells the truth because one fears being caught, then the act is morally wrong. Deontologists argue that individuals are valuable in themselves, not because of their social value. They criticize the utilitarian view because it appears to tolerate sacrificing some people for the sake of others. Utilitarian idea is to maximize overall happiness without prohibitions on how others are treated. By contrast, the deontological theory argues, that there are some actions that are always wrong, regardless of their consequences. For example, though there are a few situations in which intentionally killing one person may save the lives of many others, deontologists insist that intentional killing is always wrong. The argument here is that using an individual as a means does not treat the person as valuable in and of himself. (Kant, Sullivan, 1998) There are only a few special circumstances, where the killing was non-intentional like self-defence, which deontologists accept. The deontological theory is an idea about what it means to be an individual, and this is connected to the idea of moral agency. According to deontologists, the utilitarian approach goes wrong when they fix on happiness as the highest good. Deontologists point out that this cannot be the highest good for humans because if this was what we were meant to achieve, we would have been better designed without minds. That is, if our function as human beings was simply to be happy, blind instinct would have suited us better. The fact that we are rational beings, capable of reasoning about what we want to do and then deciding and acting, suggests that our function must be something other than mere happiness. Kant identifies a fundamental feature of human beings, our capacity for rational decision making. This means that no one else can make choices for us, and that each of us must recognize this capacity in one another. Rationality is connected with morality, human beings could not be moral beings unless they had this rational capacity. We are capable of forming our own behaviour. (Guyer, 2000)
Where utilitarians note that all humans seek happiness, deontologists emphasize that humans are creatures with goals who engage in activities directed toward achieving these, they use their rationality to formulate their goals and figure out what kind of life to live. In a sense, deontologists pull back from fixing on any particular value as structuring morality and instead ground morality in the capacity of each individual to organize his or her own life, make choices, and engage in activities to realize his or her self-chosen life plans. What morality requires is that we respect all of these beings as valuable in themselves, and refrain from seeing them or valuing them only insofar as they fit into our own life plans. Even though deontological theories can be formulated in many ways, one formulation is particularly important to mention. This is a rule Kant referred to as the categorical imperative. It goes as follows: Never treat another human being merely as a means but always as an end. This general rule is derived from the idea that persons are moral beings because they are rational, efficacious beings. Because we each have the capacity to think and decide and act for ourselves, we should each be treated with respect, that is with recognition of this capacity. It is important to note the “merely” in the categorical imperative. Deontologists do not insist that we never use other persons, only that we never “merely” use them. For example, if I own a company and hire employees to work in my company, I might be thought of as using those employees as a means to my end. This, however, is not wrong if the employees agree to work for me and if I pay them a fair wage. I thereby respect their ability to choose for themselves and I respect the value of their labour. What would be wrong would be to take them as slaves and make them work for me, or to pay them so little that they must borrow from me and must remain always in my debt. This would be exploitation. This would show disregard for the value of each person as a freely choosing, rationally valuing, specially efficacious person. It is only possible to condemn or praise individuals for their actions if the assumption is made that people act out of their own free will and so have personal responsibility for their actions. The effectiveness of the law would seem to be based on the idea that it punishes those who deserve to be punished or those who can be held responsible for their actions. Though it could be argued that it is the utilitarian value of punishment, which is most important to maintaining law and order. The punishment of offenders is said to act as a deterrent to others and prevents the individual from committing further crimes. Today’s penal system reflects most of the utilitarian idea. For example, sadly, sometimes a person might receive a higher sentence for a mediocre crimes, in attempt to scare off future offenders. (Jackson, 1986) This theory is based on the concept that punishment is to be inflicted on an offender to reform him or rehabilitate and re-integrate him into society. Such punishments are those which entail guidance and aftercare of the offender as well as community service and probation orders. Although the importance of inflicting punishment on offenders is retained to maintain social order, the importance of rehabilitation is also given priority. (Shaw, 1999)
Retributionism covers all theories that justify punishment because the offender is blameworthy and deserves it. This theory can be placed in two ways, namely ‘a man must be punished because he deserves it’ ‘or a man must not be punished unless he deserves it’. Therefore retributionists believe that this is enough reason for punishment. Yet punishment should exactly relate to the wrongdoing, which is not always the case. The theory of retributivism does propose a number of purposes of punishment; to restore the balance, to openly condemn crime, or to provide satisfaction. The principles of distribution are derived from these purposes. While these ideas are good, they are not faultless and raise a few issues. The idea of equal punishment seems somehow problematic to achieve especially with crimes related to sexual assault. In addition, measuring punishment on crime is a difficult task, though Kant argues that punishment should always be carried out by the state, there is no law above the state, which ensures that the state acts fairly. Furthermore, deciding on punishment in terms of satisfaction with grievances caused is also questionable. If punishment is not wholly dependent on the offence, but is in part to do with satisfaction, then it is in part, consequentialist and not retributive. (Shaw, 1999)
Again, utilitarianism holds the belief that the only morally significant features of an act are the good and bad consequences produced by it. Punishment is only justified when it has some use which is preventing further crime, and when it is most favorable to the welfare of society. (Mill, 1998) Though the evil of punishment can be justified, the main purpose of punishment remains to reduce crime. Most consequentialists agree that there are three ways to reduce crime: incapacitation, deterrence and reform. The aim of deterrence is to prevent or deter future harm. Prevention goes towards the individual and the general public. The specific prevention idea puts forward the argument that imprisonment stops the individual from committing further crimes. The idea is that sending the offender to prison, will make him or her less likely to commit further crimes through fear of more incarceration. Additionally incarceration protects the public from offenders. Also, prisons should rehabilitate offenders so they no longer need to commit crimes. On the other hand, general prevention uses the punishment of the offender to prevent others from committing crimes. The public should be scared away from crime through fear of suffering a similar fate to an offender. Moreover, by imprisoning an offender a statement is issued specifying that is morally wrong to disobey the law. There are many moral questions with the utilitarian approach or justification of punishment. The theory allows innocent people to be punished or offenders to receive harsher punishments. (Shaw, 1999) Furthermore, if utilitarian justifications of punishment were safe, then one would expect to find certain conditions met by imprisoned offenders. This theory seems to lead one to the conclusion that all incarcerated offenders are dangerous and have a long criminal record, that the amount of re-offending is low as offenders will have been deterred from committing future crimes, and that there are successful rehabilitation programs. (Shaw, 1999) However, in reality, the number of prisoners in the United Kingdom has been on the rise and according to the news is on record levels. (accessed via: http://news.bbc.co.uk/1/hi/uk/2161025.stm) A Prison Reform Trust report shows that the proportion of people in prison with learning disabilities or learning difficulties that interfere with their ability to cope with the criminal justice system is estimated at 20 to 30 percent. 23 percent of under 18 year olds in prison have an IQ of less than 70. 72 percent of male and 70 percent of female sentenced prisoners suffer from two or more mental health disorders. 10 percent of men and 30 percent of women have had previous psychiatric admission before they entered prison. (Accessed via: http://www.prisonreformtrust.org.uk/standard.asp?id=1686) These statistics prove that punishment is not justified here because specific offenders’ mental health and rationality is in question. Author Barbara Hudson states that whatever regional and national differences there might be in opinions about which offences deserve custody, the poor, the disturbed, the migrant, and disadvantaged ethnic minorities are consistently over-penalised and over-imprisoned. (Hudson, 2003)
To summarize and conclude, the utilitarian as well as the deontological approach argue that punishment is evil and had to be justified. If justified then punishment should act as prevention against further crimes. It has to be enforced by authority of the state and not vengefully by individuals. Both their arguments are put forward with different emphasis. Deontologists set their emphasis on retribution, individual worth and mere rightfulness or wrongfulness of an act. Utilitarians believe that the consequence of an act is more important than the act itself and the overall pleasure is most important in justifying punishment. However, there are some critiques of each of these theories, which bring to the surface the problems in achieving the aims of the theory. Both approaches state that people have free will and therefore are responsible for their actions. Statistics however prove that this is not always the case, as there are many mentally ill people kept in prison. This furthermore surfaces the problem of judging justly and the problems of punishing each individual offender in relation to their crime.
Shaw, W., (1999), ‘Contemporary Ethics’, Oxford: Blackwell Publishers Ltd
Jackson, K., (1986), ‘Punishment as Theraphy’, Law and Contemporary Problems, Vol:49, Issue:3
Hudson, A. B., (2003) ‘Understanding Justice’, McGraw-Hill International
Mill, J.S., (1998), ‘Utilitarianism, New York: Oxford University Press
Sullivan, J. R., (1989), ‘Immanuel Kant’s Moral Theory’, Cambridge: Cambridge University Press
Guyer, P., (2000), ‘Kant on Freedom, Law, and Happiness’, Cambridge: Cambridge University Press
Hill, T., (2000), ‘Respect, Pluralism and Justice’, New York: Oxford University Press
Glover, J., (1990), ‘Utilitarianism and its Critics’, New York: MacMillan Publishing Company
Prison Reform Trust (Accessed via: http://www.prisonreformtrust.org.uk/standard.asp?id=1686 – accessed on 22/02/09)
BBC (accessed via: http://news.bbc.co.uk/1/hi/uk/2161025.stm – accessed on 22/02/09)
Cite This Essay
To export a reference to this article please select a referencing style below: