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Utilitarian vs. Retributive Throughout the history of philosophy, there has always been many debates over the justification of legal punishment. From these debates, there has been several theories which have been created. The two main theories which play major roles in these debates are the utilitarian and retributive theories. Similar to the utilitarian theory in ethics, the utilitarian theory of punishment justifies punishment to the offender, only to produce the maximium amount of good consequences, while preventing future crimes. Even those who support this theory disagree amongst themselves on a number of issues. For example, some utilitarians argue that the harm caused by punishment does not produces any good, and therefore even punishing an offender is not just justified. However, this is not the view of the majority. The main goal of a utilitarian is to prevent, or deter future crimes, while maximizing the social benefit, that is, to minimize the harms to society. Also, they want to create and maintain a system of law and order. They argue, that when someone is punished, this in itself is a deterrent to crime, as the offender who is punished will distance from crime as she is under the threat to be punished again, if she repeats a crime. This is called the individual deterrent effect. The emphasis is on preventing crimes from occurring in the future, and the benefit of society is the main purpose in the way of thinking, as society is now safe. Another argument for utilitarians is that when an offender is punished, he is altered in the sense that will change his moral values, and that he will not commit similar offenses in the future. He should, after punishment, believe that what he did was wrong, and therefore, in the future, he will not commit such crimes. In other words, he will be changed for the better. Another interesting view that some utilitarians support is that when an offender is punished, he is obviously removed from society, for example, he is held in a jail system. This is a good consequence,

because, since he is in a prison, he does not exist within society to cause harm. The disadvantage to this, is that the offender may not be deterred from crime, or he may have not changed his mind. Nevertheless, he is does not circulate within society to cause any harm. There exists many people who argue against the major points of the utilitarian approach. One writer in particular, C. L. Ten has written an article, Fantastic Counterexamples and the Utilitarian Theory, which illustrates his arguments against the theory, and he raises credible points. He debates the issue, not only from a philosophical point of view, but also in the economical and social perspectives. Ten, for example, argues against the common notion of utilitarians, which suggests that when an offender is punished, his moral values may not reform simply because he was punished. The offender may be deterred from committing future crimes, but this may be out of fear of getting caught and punished. He concludes that this theory is similar to the deterrence theory. Ten provides a counterexample to show some inconstancies within another utilitarian view. Particularly, the argument put forth by utilitarians that offenders are removed from society, and therefore, no harm can be done to society. Ten shows that this is not a stable argument, as many offenders learn new habits and tricks once within the jail system, and these offenders may even meet other offenders, whom also reside in the jail system. Another major aspect of utilitarianism that critics disagree with, is that, some utilitarians, suggest that punishment should not only be targeted toward the offenders, but also toward the innocent. The utilitarian support this notion, as their main purpose in their way of thinking it to produce the best consequences, and if punishing an innocent person produces this, it is the best course of action to take. This is probably the biggest difference which distinguishes the utilitarian theory from other theories. However, the argument is that if suffering is inflicted on one innocent person, and this prevents suffering

inflicted on society, then it is a just action to act upon. Obviously, the punishment of an innocent individual is not supported if the greatest good is not produced out of it. To illustrate an example of this theory in practice, Ten describes a particular situation. There is a particular town, with high racial tension within the mixed population. If one man rapes a woman from the other racial group, the tension will obviously escalate, and there may even be violence. The sheriff of the town wants an end to the violence, so he frames an innocent man from the same racial group as the offender. The goal of the sheriff is to end the racial violence. Critics of the utilitarian theory will disagree with the act of the sheriff, as the punishment and framing of the innocent man is morally wrong, they may argue. Ten argues that punishing the innocent is "a logical contradiction because punishment implies guilt". Ten adds that we must take into account all of the consequences produced by the punishment of the innocent, and this includes the long-term consequences. He believes that following this way of thinking is hypocritical, as it tolerates the view that it is alright to do the unjust act of punishing an innocent being. Within utilitarianism, the debate on which form of punishment is to be carried out, is the one that has the greatest deterrent value, and the greatest social benefit, and this is thought to be one with pain and deprivation in some form or the other. As long as society is safe. Another major theory in the subject of the justification of legal punishment is retributive. This theory argues that only the guilty should be punished and that the punishment is used as revenge against the guilty. What is interesting is that, compared to the utilitarian view, retributivism is not as concerned about the final goal, but is more concerned with the reason for punishment. They do not focus on the social benefit, as they do not agree with punishing the innocent. The retributists disagree heavily with

the utilitarians. The major goal of this theory is to make the offender take responsibility for the suffering, pain or loss inflicted on victims by repairing the injustice to society. They argue, that a wrong must be made right, and that the offender must repay his debt to society. A common retributive approach, is to punish the offender only, as he deserves the pain and suffering for his crime. This can be compared to the common "eye for an eye" practice. There are three main views that defines this view. Firstly, moral guilt is a necessary condition for justified when punishing an offender. Also, moral guilt is a sufficient condition for justifying punishment, and the amount of punishment that should be given to the offender is dependent on how morally unjust the crime was. After taking the perspectives from both of the theories, and their respective differences, it would seem to me that, the different supporters of each theory, will regard mens rea in very different ways from one another. Some utilitarians argue against retributivists, particularly against the point that an offender must pay their debt to society. They state that it is an arcane system, and is nothing more than a satisfaction of guilt. Mens era is the mental component of criminal liability. This states, that by committing a crime, the offender must have committed the crime in a certain mental state. For example, the mens era of theft, is the intent to deprive the victim of their property. Because the utilitarians are concerned more for the sake of the society, they obviously want the greatest amount of good. Therefore, mens era may not be as applicable to them. After all, some utilitarians, justify punishing the innocent. Whatever was the state of mind, of the offender does not seem to matter much, as an example must be set to deter the public. Punishing the offender, in either case, would

benefit society. By forgiving some offenders on the mens era basis, they may argue that this , will not set a harsh example for others to be deterred, in the future. In addition, by forgiving the offender, society may not benefit, and the best consequences may not occur. When one studies the retributive theory, it seems that mens era is essential for the outcome. They, after all, want the guilty to be punished. If an offender had a guilty conscious when committing a crime, the offender is guilty, according to supporters of this view, and she should be punished accordingly. Moral guilt contributes in a major way in this point of view, and therefore, mens era is emphasized. A particular case study, that shows the difference between retributive and utilitarian theories, can be shown by looking at the case of Regina v. Morgan. This case is interesting because it takes mens rea into account. If, the men who were on trial, had the intention of having sexual intercourse, then they may be found guilty. However, if they had intercourse because they were under the impression that consent was given by Mrs. Morgan, then they would not be guilty of rape. This issue involves mens rea, as it is based on the moral guilt that the offenders may have had. It must be noted that the verdict was not to be based on the prevention of future misconducts, but was involved with only the state of mind that the offenders were in. The judge was interested in that factor, one that is found in retributivism. Feinberg, in his article, The Expressive Function of Punishment, describes in detail the functions of punishment. He notes that the key issues of the definition of punishment is not really discussed in many papers that debate the topic, "...that they leave out of their ken altogether the very element that makes punishment theoretically puzzling and morally disquieting". He argues, that punishment can be less general, and compares the different levels of punishment. He also notes that punishment is to condemn an offender for what he has done. However, around us, punishment is described as a harsh treatment that an offender suffers, due to our judicial system. We no longer treat punishment in the true sense, and there is more to it, than the current method we use. He argues that there may be other methods

of condemning the offender, besides inflicting suffering onto them. Feinberg also has a problem with how exactly the law is defined, especially when defining punishment. For example, one of the retributivists arguments is that the offender should be punished to the level of her crime, however, Feinberg notices problems that arise as we do not know exactly how to judge the amount of punishment. In the example of the judge, it seems that the fine line between both retributivism and utilitarianism is hard to define. Choosing between either side is hard to do, as both theories have very intriguing points. The boundaries between whether we should deter crime in the future, or whether the offender has a duty to pay back to the society. Even though it may be difficult to follow each theory perfectly, they serve as a general guideline.


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The Libertarian Review October 1975