3 Theories of punishment in South African Criminal Law
The idea behind criminal law is to provide a mechanism whereby offenders of the criminal justice system receive an appropriate punishment for misconduct that is to be delivered by the authority of the state. Having said that, the business of delivering justice is not clear cut, there is no objectively good way of going about it.
Because of this, multiple theories surrounding the delivery of punishment with regards to the South African justice system have come about. Here are the three most popular, which affect the direction and outcome of criminal cases in our country.
Retributive theories of punishment
Retributive theories of punishment, otherwise known as absolute theories, work on the age-old notion of ‘an eye for an eye’, and in doing so, seek to correct upsets in legal balances that have come about as a result of a committed crime; making it one of the oldest approaches to criminal punishment in existence.
The theory places careful emphasis on taking care not to confuse retribution with vengeance, claiming that retribution is an enlightened attempt to restore imbalances caused by criminal misconduct, while vengeance is simply seeking revenge in a personal or private capacity.
This theory claims that retribution is the essential characteristic of punishment, and so sees no point in justifying a means by its ends. Still, it generally takes an offender’s track record into account.
Utilitarian theories of punishment
Utilitarian, or relative theories of punishment, can be subdivided into three different categories: prevention, deterrence and reformation.
These theories are often associated with extreme punishments such as capital punishment or castration, or in less extreme examples can be seen in the confiscation of firearms or drivers licences.
Preventative punishment is handed down by the state in an attempt to prevent the occurrence of further crimes; whether that be through house arrest, incarceration or confiscation of goods.
Deterrent theories are those that posit a punishment should deter the future undertaking of a crime, either by the guilty individual themselves, or by the community at large.
The reformative approach to punishment serves to eliminate the possibility of warped sentences being imposed on offenders who do not deserve them. Instead of jail cells being filled with minor-offenders, this approach takes a social approach by having offenders do community service.
Combination theories of punishment
Since each of these theories have both positive and negative impacts on the South African justice system, many theorists have found benefits in combining their strengths into a unified theory of punishment.
Combination theories look out for those aspects of punishment that are best suited to the interests of society, the actual offender, and the nature of the crime, which has proven to be the best approach in terms of South African criminal law.
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