Sanctioning Alternatives in International Criminal Law: Recommendations for the International Criminal Tribunals for Rwanda and the Former Yugoslavia

By Yacoubian, George S., Jr. | World Affairs, Summer 1998 | Go to article overview

Sanctioning Alternatives in International Criminal Law: Recommendations for the International Criminal Tribunals for Rwanda and the Former Yugoslavia


Yacoubian, George S., Jr., World Affairs


PENAL THEORY

Historically, there have been two primary theories of punishment--retribution and utilitarianism. Retributivists believe that wrongdoing should be punished (Von Hirsch 1976; Ewing 1929; Kant 1887). Retributivists argue that the future conduct of the offender or of society is extraneous to the purpose of punishment. In contrast, utilitarian theories of punishment are concerned with preventing future crimes (Walker 1991; Braithwaite and Pettit 1990; Rawls 1955). Under utilitarian penal theory, a carefully calculated punishment is designed for each crime so that the gain from the crime is offset by the punishment. This section evaluates these perspectives.

Retribution

Past-oriented theories are usually known as retributivist because their aim is to exact retribution from offenders for their crimes. As Ewing (1929, 13) maintains, "the primary justification of punishment is always to be found in the fact that an offense has been committed which deserves punishment, not in any future advantage to be gained by its infliction." The justification does not come from some source external to the act of punishment. Central to this retributivist argument is the notion that the purpose of punishment is to place blame on the offender for the offense committed. As Kant (1887, 194) stated, "punishment can never be administered merely as means for promoting another Good either with regard to the Criminal himself or to Civil Society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime." There is, therefore, no identifiable utility in the retributivist justification; only the presumption that individuals who violate criminal law must be punished.

Retributive penal systems theoretically have sought equivalence between the punishment imposed and the crime committed (Von Hirsch 1976). That is, retributive punishments require that offenders surrender to society what their victims have lost. Opponents of retributive justice argue that its justification is simple vengeance--that it offers no utility to the offender, to society, or to the criminal justice process (Austin and Krisberg 1981; Cohen 1979). Although the past several decades have witnessed an incessant theoretical debate on the purposes of punishment, the retributivist theory of "just deserts" has been the most influential penal theory in recent years (Morris 1992).

Like all retributivist approaches, the primary principle of this "new" retributivism is that punishment should be commensurate to the seriousness of the offense (Von Hirsch 1990). Instead of the traditional notion of equivalence, however, the modern version of retributive justice interprets commensurate as proportionate. Proponents of this principle argue that there should be a schedule in which the most serious punishments should be reserved for the most serious offenses (Von Hirsch 1990; Davis 1985). As the offenses within the scale descend, so should the accompanying punishments. Future offenses, therefore, are not considered in the equation. Punishment is appropriate only as it is deserved for the offense(s) committed.

Utilitarianism

Most influential forms of crime-reduction penal theory have been linked to eighteenth and nineteenth century utilitarian thinkers (Beccaria 1819; Bentham 1789). Bentham (1789), for example, proposed that the role of government is to maximize human happiness and minimize human suffering. In relation to punishment, this means that the pain suffered by the offender is justified only if more pain (stemming from more crime) is thereby avoided. This crime "avoidance" is achieved through deterrence, rehabilitation, and/or incapacitation (Walker 1991).

Bentham (1789) believed that unless punishment deters further crime, it adds to the sum of human suffering. Deterrence as a penal strategy is usually taken to mean discouraging reoffending (specific deterrence), or dissuading offending by law-abiding citizens (general deterrence) through the threat of punishment. …

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