Theory of criminal justice
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The theory of criminal justice is the branch of philosophy of law that deals with criminal justice and in particular punishment. The theory of criminal justice has deep connections to other areas of philosophy, such as political philosophy and ethics, as well as to criminal justice in practice.
Some important questions considered in the theory of criminal justice are
- What is criminal justice?
- How is criminal justice distinct from other kinds of justice (or is it in fact distinct)?
Some questions specific to the topic of punishment are
- Should we punish?
- Why should we punish?
- Whom should we punish?
- How should we punish?
- How much should we punish?
Justice and criminal justice
How is criminal justice distinct from other kinds of justice?
Typically, legal theorists and philosophers consider four distinct kinds of justice: corrective justice, distributive justice, procedural justice, and retributive justice. Criminal law falls under retributive justice, a theory of justice that considers proportionate punishment a morally acceptable response to crime. Retributive justice is perhaps best captured by the phrase lex talionis (the principle of "an eye for an eye"), which itself traces back to the book of Exodus. The principle of lex talionis received its most well known philosophical defense from Immanuel Kant.
Criminal law is no longer considered a purely retributive undertaking; deterrence figures prominently in the justification of the practice and in the rules themselves.
Criminal justice systems
There are at least two questions, raised by H. L. A. Hart, in connection with criminal justice which do not directly concern punishment but are more closely related to a criminal justice system as a whole.
- Why establish any institution of punishment at all?
- Why establish this institution with its special concepts, principles of legislation, adjudicative procedures, and permissible penalties rather than some other panochas.
Different theories of criminal justice can usually be distinguished in how they answer questions about punishment. To avoid issues of semantics, in this section we must agree that punishment is a penalty imposed by a legal system along with (or because of) a stigma of wrongdoing or lawbreaking. This definition deliberately excludes penalties unrelated to wrongdoing or lawbreaking, even when imposed by a legal system. It also distinguishes or at least restricts this definition from the one used in operant conditioning.
Should we punish?
The answer to this question is important as a negative answer makes further questions about punishment irrelevant. In fact, if we answer no, then the theory of punishment does not even belong in the theory of criminal justice.
Most theories answer yes, that there are at least some criminals or criminal acts that should be punished. However, this question should not be so easily dismissed as there are theories which do answer no. Consider, for example, Pacifism. Also, certain versions of restorative justice might optimistically make the claim that punishment is unnecessary.
Whom should we punish?
We should punish criminals. Unfortunately, the answer is not that simple. Should we punish only lawbreakers, or other wrongdoers? Should we punish all criminals? Often, the answers to these questions are interrelated with the reasons for punishment.
For example, if the reason for punishment is rehabilitation, then we should not punish criminals who show genuine remorse. In practice, this is difficult to determine.
The question of whether only lawbreakers can be punished is connected to the validity of retroactive laws. Whether wrongdoers can and should be punished under retroactive laws was particularly important around the end of World War II. Many Nazi war criminals were tried under laws which were not in place at the time they committed their so-called crimes. Although their actions were wrong, their punishment brings up important issues. Punishment under retroactive laws can not possibly accomplish deterrence.
How should we punish?
Different methods of punishment can be evaluated based on effectiveness, cost efficiency, and on moral grounds.
There is a principle in certain versions of retributive theory that can be stated as "an eye for an eye". This principle argues for punishment in kind with the harm that was caused by the wrongdoer.
Cruel and unusual punishment is outlawed in many legal systems, presumably on moral grounds.
How much should we punish?
Deterrence theory argues that the amount of punishment should be the minimum required to achieve the desired amount of deterrence. Most versions of retributive justice argue that the amount of punishment should be proportional to the amount of harm caused. Reform theory argues that the amount of punishment should be enough to cause reform in the offender.
However, some theories would argue that the amount of punishment is not important at all. For example, if the purpose of punishment is incapacitation, the fact that a jail sentence is undesirable to the offender is irrelevant.
Types of theories
Theories may be of following kind:
- Deterrent Theory
- Retributive Theory
- Reformative Theory
- Expiation Theory
- Preventive Theory
- Richard A. Posner, The Problems of Jurisprudence. pp. 313-352
- Exodus 21:23–27.
- Kant, Immanuel. (original 1785.) Groundwork of the Metaphysics of Morals. Grundlegung zur Metaphysik der Sitten. (in German)
- See e.g., H.L.A. Hart, Liberty and Morality (1963)