Law is the fundamental framework that binds society together and allows it to function, with a government to administer it. Those who break a society’s laws are punished. It is therefore prudent to ask: what should the aims and justifications of punishment be and why does a society have laws?

For over a millennium the western world had been ruled, in one way or another, by monarchs who ruled their subjects unilaterally, making and annulling laws at their leisure. In rebellion to this state of affairs was a view, beginning in the mid-1700s with the Enlightenment period, that all men are equal and indeed sovereignty lay with the people and not with their government.

This sentiment was embodied in Jean-Jacques Rousseau’s The Social Contract, a theory proposing that man in his primitive form is free to do anything he pleases, like a caveman beating another over the head with a club and stealing his kill. However, by himself man is vaunrable to danger and hence has formed societies for mutual protection and benefit. In order for societies to function effectively, Rousseau argues, individuals give up some of their freedoms for the “greatest happiness of the greatest number.”

This is supported by fellow enlightenment philosopher Cesare Beccaria, who states that “laws are the conditions under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty [that] became of little value… they sacrificed one part of it, to enjoy the rest in peace and security.” So laws define the freedoms given up, and “the sum of all these portions of the liberty of each individual… was deposited in the hands of the sovereign, as the lawful administrator.”[1] Those who do not follow them break the Social Contract and are subsequently punished by the government.

But why are they punished – that is to say: what are the aims and justifications of punishment? One answer is that of retributivism, in which “the suffering of the person punished is a good in itself, because he deserves to be punished” because of his deeds and he must atone for them.[2] Some say he has a debt to pay to society as he has profited from his wrongdoing and taken advantage of those who have obeyed.[3] It is, as rightly put by Phillip Montague, a “backward-looking” theory.[4]

The other major theory is utilitarian reductivism, which aims “to reduce the frequency of the types of behaviour prohibited by the criminal law,” and will use a variety of techniques to achieve this aim.[5] This is the theory advanced by Beccaria in his 1764 masterwork Of Crimes and Punishment. He argued that people are selfish and always endeavour to take away from the mass, not only his own portion, but to encroach on that of others… Every individual wishes, if possible, to be exempt from the compacts that bind the rest of mankind.” People are rational and can be relied upon to act in their own self-interest, so “some motives therefore, that strike the senses were necessary to prevent the despotism of each individual from plunging society into its former chaos. Such motives are the punishments established, against the infractors of the laws.” Punishment is therefore a preventative measure “it is evident that the intent of punishments is not to torment a sensible being, nor to undo a crime already committed,” as retributivism seeks to do, but “to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence.” This is the origin of the modern aim of general deterrence and specific deterrence where individuals who are punished are less likely to re-offend because “their risk-reward calculations have been altered by the punishment.”[6]

Reductivism also utilises incapacitation, to remove an offender from society so as not to do it further harm, and rehabilitation which aims to help the offender become a productive member of society.[7] In contrast to retributivism, reductivism is a “forward-looking” theory.[8]

This contrast is precisely the problem with retribution as an aim or justification of punishment. It “represents a mood, a deeply-felt desire to dispense with utilitarian arguments for punishment and return to punishment per se,” and to “garuntee that criminals will get their just deserts, even in cases where this would be clearly disutilitarian.”[9] Other consequences are less important or even irrelevant. As such it is not pragmatic and benefits only a few people, rather than society as a whole.[10] As one Australian judge said, "in sentencing,I like to give emphasis to what is going to happen in the future. Being retrospective is pointless.”

Moreover, retribution “smoulders with the spirit with revenge.” Revenge is a natural reaction to being wronged and “most of the victims who report an offence… do so in order to retaliate against the offender.”[11] In the 1972 United States Supreme Court case of Furman v. Georgia, Justice Thurgood Marshall stated in his judgement: “It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act.” People like to see wrongdoers suffer for their actions, which explains the popularity of revenge entertainment common in the popular media with movies like Kill Bill. People find the outcomes of this form of entertainment “not only asthetically pleasing, but morally satisfying.”[12] With vigilantism illegal, both victims and the community at large look to the criminal justice system to carry out their vengeance for them. This is so ingrained into human conciousness that man’s first desire upon being wronged is to “get even”, so that the indiscresion is somehow balanced out.[13]

This, of course, means much higher penalties for offenders. A South African study found that a staggering 85% of participants felt sentences handed down by the criminal court were too lenient. Who can forget the righteous indignation of the Australian public when alleged Bali bombings mastermind Abdul Bakar Bashir was given a sentence of less than five years and death for the rest was chanted in the opinion pages, or those who advocated “lock ‘em up and throw away the key” on an A Current Affair segment for both terrorism-inciting literature and brutal junior football coaches. From this sentiment the “victims right movement” was born, advocating that judges, when passing sentence, consider Victim Impact Statements.[14] Not only would this result in widely disproportionate sentences,[15] it would formally institutionalise revenge into the criminal justice system.

Justice Marshall also said in his judgement: “Retaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society. Punishment as retribution has been condemned by scholars for centuries, and the Eighth Amendment[16] itself was adopted to prevent punishment from becoming synonymous with vengeance.” However, as another Australian judge remarked," “it appears, however, to be better understood by the public than other tenets.” Therefore retribution has indeed become associated with revenge in the minds of the public, and so therefore “if the institution’s justification for action is that it is reflecting the popular morality, then it is simply acting as a transmission belt for the anger of the multitudes.”

But if the sentiment is approved, in fact wanted, by the majority of the population, why not integrate it into the system? Because “government is supposed to interpose itself between popular passion an public policy in our system. Instead of expressing the anger of the people, it is supposed to respond to that anger by rational, effective policies designed to remove its cause,” meaning to use utilitarian methods to reduce crime “not by squandering valuable tax dollars on draconian sentences that respond to public anger.” Revenge only benefits a few, while it is the government’s job to look after the many.

Nevertheless, governments have seized upon this public attitude and have responded with harsher sentencing regimes, giving the impression that they are “tough on crime,” with slogans such as “zero tolerance” and “three strikes and you’re out”. Retribution has become associated with severity, which, as we have discussed, is attractive to the public, while rehabilitation is associated with leniency and sympathy for criminals. As a result, incarceration levels have increased dramatically since the 1980s when the shift from rehabilitative to retributive rationales began in countries such as America, which now has over two million inmates, over 30% of which are serving sentences longer than 15 years and as few as 11% serving sentences of up to two years. Other western countries such as Britain have had a substantial increase after adopting similar policies, with the prison population of England and Wales standing at 66,000 in 2001, increased by 64% since 1992 when the Tories began their “prison works” campaign. The result is the continued imprisonment, at the cost of the taxpayer, of old men long past an age where they are likely to be a threat to society.

What is the point of a full prison where criminals are simply stored like library books until their release? In the 2005 Western Australian State Election campaign, then Opposition Leader Colin Barnett uurl=http://www.abc.net.au/news/newsitems/200502/s1299343.htm]promised to close[/url] a “luxury-style” prison with a focus on rehabilitation because, in his view, prisons should be about punishment. This is the result of a retributive approach and is much less effective than a system aiming to reduce recidivism through rehabilitation. A case in point is the story of “Badness,” a hardened criminal with a history of violent robbery and prison escapes, who was released fully rehabilitated. Upon his release he told media: "The public scream about why recidivism rates are so high... inmates live in primitive, squalid states, are taught no life skills, are thrown onto the street after sentence with nothing. No hope, no future, no skills. They turn to drugs, then they turn to crime. And then it starts all over again." The retributive system, in his words, is “designed to produce failure”. For example, without intervention, 80% of incarcerated child molesters will re-offend within the one year of their release.

A system where retribution is the chief aim and justification of punishment does nothing but channel society’s outrage and desire to see offenders punished, rather than act pragmatically to reduce crime through deterrence and rehabilitation. Punishing criminals simply because they deserve it benefits only a small number of victims and cannot undo the damage done. Governments have a responsibility to uphold the social contract which legitimises their authority, and act in the best interests of the whole population. It is better to look forward than dwell on the past.


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[1] The sovereign being the society’s government, chosen to represent the people and is "only legitimate to the extent that it reflected the people’s desires and served their purposes; it is the people who are supposed to instruct the government, not the government to instruct the people… they were in office to serve the will of the sovereign people.”
[2] Walker, N. (1969). Sentencing in a Rational Society, pp. 19-20.
[3] Murphy, J. (1985). Retributivism, Moral Education and the Liberal State., pp. 23-24.
[4] Montague, P. (1995). Punishment as Societal Defence, p. 5.
[5] Walker, N. (1969). Sentencing in a Rational Society, p. 18.
[6] Conklin, J. (1998). Criminology (6th ed.), p. 476.
[7] “As they are utilitarian principles geared towards preventing future crimes.”
[8] Montague, P. (1995). Punishment as Societal Defence, p. 5.
[9] Murphy, J. (1985). Retributivism, Moral Education and the Liberal State, p. 22.
[10] Murphy argues that “it is a theory which respects human dignity, regards human beings as responsible agents and not merely as things or resources to be manipulated for the social good,” (Murphy, J. (1970). Kant’s Theory of Criminal Punishment, p. 90.) and that utilitarian theories of punishment compromise the special worth of a person. (Murphy, J. (1985). Retributivism, Moral Education and the Liberal State, p. 21.). A response to this would be that “governing authorities and institutions justify themselves… by the effectiveness with which they perform their assigned task, which is to minimize pain and maximize pleasure.” (Gay, P. (1969). The Enlightenment, p. 401.) Essentially pointing to the fact that democratic governments were originally set up as utilitarian institutions.
[11] Walker, N. (1969). Sentencing in a Rational Society, p. 26.
[12] Murphy, J. (1990).Getting Even: The Roll of the Victim, pp. 64-65.
[13] Ibid, p. 70.
[14] Murphy, J. (1990).Getting Even: The Roll of the Victim, pp. 78-82.
[15] Ibid.
[16] The Eighth Amendment prohibits “cruel and unusual punishment”.