Theory Of Punishment Research Articles

طريقة العقوبة فى تعليم مهارة الكلام

The way it has a job is to communicate educational goals to a intended person ie pupils in an appropriate way to develop pupils. Punishment is a system or decision implemented for those who work bad and offensive. The effectiveness of the skill of speech appeared in the lightness and speed of expression of ideas and minds, and correct in the choice of words and attractive sentences. The objectives in this research are to find out how the punishment method in teaching speech skill. The result is that the punishment method is very important in teaching the skill of speech. It contains the concept of the method of punishment, the purposes of the method and function of the punishment and the objectives of reading, theories of punishment, and the conditions and how to implement the method of punishment, and advantages and disadvantages in the method of punishment, and the objectives of teaching writing skill, and the process of learning the skill of speech.

Теория справедливого наказания (между Кантом и утилитаристами)

В статье исследуется вопрос о наказании и справедливости. С этой целью анализируется теория наказания как кары по принципу талиона, предложенная И. Кантом, а также оппозиционные ей утилитаристские теории наказания. Выявляются фундаментальные достоинства и недостатки обоих подходов. Для их иллюстрации и оценки, а также для обоснования собственных взглядов автор анализирует действующее российское законодательство (не только уголовное и уголовно-исполнительное, но и административное, гражданское, трудовое), а также правовые памятники различных эпох, проводит параллели между уголовной и другими видами юридической ответственности. Рассматриваются воззрения некоторых авторов неокантианского направления и приводится авторская позиция, в частности обосновывается понимание справедливости как принципа равноценности интересов лиц; справедливого наказания как наиболее оптимального средства, направленного на восстановление справедливого правопорядка; утверждается, что только совершение противоправного деяния вменяемым лицом должно служить непременным основанием юридической ответственности, в то время как вина, вред и причинная связь являются ее относительными условиями; обосновываются потенциальная неограниченность юридических фактов, влияющих на справедливость приговора, и относительность принципа неотвратимости наказания.

Theories Of Punishment: Changing Trends In Penology

From the ancient time it is the fundamental duty of the state to protect its citizens. The quantum of punishment used to be based on the theories of punishment. It has been observed in the modern times with the advent of administration of justice that there has been a shift from traditional punishments to the new trending concern of victimology. The focus is now on the victim’s plight and giving him fair justice and compensation. This paper contains various theories of punishment and the elaboration of whether it’s effective in modern times.

Yaffe on Democratic Citizenship and Juvenile Justice

Why, exactly, should we punish children who commit crimes more leniently than adults who commit the same offenses? Gideon Yaffe thinks it is because they cannot vote, and so the strength of their reasons to obey the law is weaker than if they could. They are thus less culpable when they disobey. This argument invites an obvious objection: why not simply enfranchise children, thereby granting them legal reasons that are the same strength as enfranchised adults, and so permitting similarly severe punishment? Yaffe answers this question by arguing that child enfranchisement would objectionably undermine the values of political equality and self-government. This article explores some serious doubts about these arguments. It closes by questioning Yaffe’s reliance on a retributivist theory of punishment, contending that, once we reject retributivism in favor of more humane and productive alternatives, the thesis that child criminals deserve a break—which Yaffe assumes to be undeniably correct—becomes less plausible.

The fairness of Hell

AbstractThe Christian conception of Hell as everlasting punishment for past sins is confronted with two charges of unfairness. The first is the inequity of an eternal punishment. The never‐ending punishment seems disproportionate to the finite sin (Kershnar, Lewis, Adams). A second and related problem is that the boundary between sins that send one for all eternity to Hell and those sins that are slightly less bad that are compatible with an eternity in Heaven is arbitrary and thus it is unfair that sinners so alike are treated differently (Sider). Hell, as traditionally conceived, is then claimed to be incompatible with God's traditional attributes such as his commitment to justice, omniscience and omnipotence. The unfairness can be avoided by appealing to God's foreknowledge and a debt/atonement theory of punishment. My view is analogous to refusing to parole the unrepentant. If a wrongdoer is eternally defiant, then he can never be released from Hell for his debt won't ever be paid if he isn't reformed and reconciled with the wronged. So it doesn't matter that his initial sin was a finite wrong not deserving of infinite punishment nor a sin no worse than that of the penitent in Heaven.

Why Punish Perpetrators of Mass Atrocities?

Punishment practice and theory in International Criminal Law (ICL) is largely modelled on domestic criminal law. This 'domestic analogy' is flawed. It ignores the fact that ICL does not operate as part of a political community; international criminal justice operates in a vacuum. Punishment and sentencing in ICL is an imperfect, one-sided process. For the post-trial and restorative justice-part it reverts back to the sovereign State. This can be hugely problematic as this paper shows. The domestic analogy works to the extent that international courts can incorporate and apply theories of punishment in imposing sentences. It does not work when it comes to the restorative and reconciliatory aspects of sentencing. This is deplored and international lawmakers, States and NGOs are called upon to set up a post-trial system of resettlement and reintegration for acquitted and sentenced persons. If States support the fight against impunity through a system of prosecution and adjudication, they should accept this part of criminal justice too.

Taking the System Seriously: Nicholson’s Overturning Orthodoxy About Hegel and Punishment

Hegel and British Idealists made important contributions to our understanding of crime and punishment. Many commentators neglect the systematic nature of Hegelian philosophies - and, in turn, their contributions have been fundamentally misunderstood. Peter Nicholson's ground breaking research is among the first to focus on the systematic structure of Hegel's argumentation in the Philosophy of Right and how this reveals a reading of Hegel's theory of punishment at odds with more conventional, non-systematic readings. Nicholson’s further pioneering work in single-handedly resurrecting interest in British Idealism highlights additional figures who defended similar, but more developed views like Hegel’s.

Punitive and preventive justice in an era of profiling, smart prediction and practical preclusion: three key questions

AbstractIn the context of a technology-driven algorithmic approach to criminal justice, this paper responds to the following three questions: (1) what reasons are there for treating liberal values and human rights as guiding for punitive justice; (2) is preventive justice comparable to punitive justice (such that the guiding values of the latter should be applied to the former); and (3) what should we make of preventive measures that rely not so much on rules and orders, but on ‘technological management’ (where the preventive strategy is focused on eliminating practical options)? Responding to the first question, a Gewirthian-inspired theory of punishment is sketched – a theory that is, broadly speaking, supportive of liberal values and respect for human rights. What makes this theory apodictic for any human agent is that it demands respect for the very conditions on which any articulation of agency is predicated. With regard to the second question, we indicate how a Gewirthian view of the relationship between punitive and preventive justice supports the logic of referring to the principles that guide the former as a benchmark for the latter; and we suggest some particular principles of preventive justice where the restrictions are targeted at individual agents (whether in their own right or as members of classes). Finally, we suggest that, although technological management of crime changes the complexion of the regulatory environment in ways that might be a challenge to a Gewirthian moral community, it should not be categorically rejected. Crucially, technological management, like other preventive strategies, needs to be integrated into the community's moral narrative and authorised only to the extent that it is compatible with the governing moral principles.

The Intrinsic Good of Justice

AbstractSome retributivists claim that when we punish wrongdoers we achieve a good: justice. The paper argues that the idea of justice, though rhetorically freighted with positive value, contains only a small core of universally agreed meaning; and its development in a variety of competing conceptions simply recapitulates, without resolving, debates within the theory of punishment. If, to break this deadlock, we stipulate an expressly retributivist conception of justice, then we should concede that punishment which is just (in the stipulated sense) may be morally wrong.

Adam Smith e a virtude da justiça

O objetivo central desse artigo é refletir sobre o papel e o significado do critério de justiça no pensamento de Adam Smith, considerando especialmente a obra The Theory of Moral Sentiments e, parcialmente, as obras Lectures on Jurisprudence e An Inquiry into the Nature and Causes of the Wealth of Nations. O propósito básico é tentar esboçar uma teoria da justiça que pode ser encontrada nas obras de Smith, particularmente no seu texto de 1759, a saber, The Theory of Moral Sentiments. Para tal, inicio esclarecendo alguns conceitos centrais de sua teoria moral sentimentalista, a saber, empatia (sympathy), espectador imparcial (impartial espectator) e mão invisível (invisible hand). Posteriormente, investigo o papel das virtudes nesta teoria normativa anti-utilitarista e a distinção entre virtudes positivas e negativas. De posse disso, o próximo passo será analisar a concepção de justiça retributiva defendida por Smith, que parece defender uma teoria híbrida da punição por englobar aspectos retributivista, preventivista, expressivista e reabilitacionista. Por fim, reflito sobre o significado da justiça como virtude negativa e sua ligação com os direitos.

Deadly force: Contract, killing, sacrifice

This article proposes a political prehistory of drone theory that traces its juridico-political evolution from the 17th century to the present day. To outline my argument, I construct a constellation between Hobbes’s theory of sovereign punishment in Leviathan and Chamayou’s critique of drone warfare in Drone Theory to illuminate the political origins of drone violence. First, I argue that Hobbes’s social contract theory lays the conceptual groundwork for Chamayou’s drone theory. Second, I contend that Hobbes’s theory of the sovereign punishment of domestic citizens preempts Chamayou’s critique of drone warfare against foreign enemies. Finally, I speculate that Hobbes’s theory of punishment is founded upon a sacrificial paradigm that returns in the phenomenon of domestic drone strikes. In summary, I argue that Hobbes might be something close to the first drone theorist insofar as his political theory systematically produces the state of exception between citizen and enemy in which the drone operates today. What, then, are the theoretical origins of drone warfare? How does the punishment of citizens prefigure drone warfare against foreign enemies? To what extent might even citizens themselves be a species of drone who may be activated by the sovereign at any point?

Sobre el fundamento práctico de la pena en Immanuel Kant

La teoría de la pena ideada por Kant suele ser estudiada sin consideración del marco filosófico que le da sentido y fundamentación. La intención del presente trabajo es explicitar la fundamentación teórico-filosófica que sostiene a dicha teoría de la pena. Me propongo exhibir cómo Kant deriva el carácter categórico de la ley penal a partir del principio del Derecho y del imperativo categórico. Esta fundamentación teórica del carácter categórico de la pena se sostendrá en tanto podamos comprender en qué sentido y por qué la razón es capaz de imponerse a sí misma principios categóricos de acción, es decir, deberes.

Víctima, reparación y proceso penal: una proyección desde las teorías expresivas de la pena

El presente artículo pretende examinar los aspectos más relevantes de la reparación por el hecho punible, en favor de la víctima, bajo el supuesto de las denominadas “teorías expresivas de la pena”. Para ello, luego de exponer sucintamente la importancia y relevancia de la reparación en el ámbito penal y procesal penal, abordará su imbricación político-criminal a partir de los paradigmas y postulados esenciales sustentados por dichas teorías. En particular, analizará si la reparación penal puede o no ser entendida bajo un “telos” expresivo y, de ser así, si su dimensión fáctica y comunicativa puede restablecer el déficit normativo generado por el delito.

Transing Critical Criminology: A Critical Unsettling and Transformative Anti-Carceral Feminist Reframing

Feminist interventions in criminology have interrogated forcefully theories of crime and punishment that otherwise render women and girls invisible. Yet, feminist attention to women’s and girls’ justice-involvement emerges in the same moment in which the carceral state has shapeshifted in gender-sensitized directions, raising pressing questions about how feminist ideals are used to underwrite carceral expansion and what analytical frameworks are best equipped to resist it. Inspired by theoretical innovations within trans frameworks, including transgender, transnational, and transformative intersectional feminist perspectives (Dill and Zambrana 2009; Tudor 2017), this article argues that critical criminology needs to be transed (Balaguera 2018; Tudor 2017) to move closer to its transformative potential. Trans frameworks offer powerful insights to challenge dominant criminological frameworks and to explore feminism’s own complicated relationship to carceral expansion. In this article, I discuss ways that transing critical criminology may help to unsettle binary accounts of gender, harm, justice and punishment, and to reframe abolitionist praxis in innovative anti-carceral feminist directions.

Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims

States are falling short in addressing the human trafficking problem. States focus on punishing traffickers rather than restoring the lives of victims; however, to alleviate human trafficking, states must adopt more victim-centric statutes. This Comment argues that all states, specifically California, Texas, and Florida, should amend human trafficking statutes to provide more victim-centric relief by adopting two measures: affirmative defenses and vacatur statutes. An affirmative defense statute that provides victims a defense for a broader range of crimes committed as a direct result of being trafficked is necessary because convicting victims is not within the five theories of punishment. The ideal vacatur statute would (1) not be limited to prostitution or prostitution-related charges; (2) provide a due diligence time limit; (3) provide for both vacatur and expungement of the victim’s records; and (4) provide government agencies that come into contact with victims of human trafficking the power to promulgate regulations that requires law enforcement, nonprofits, or human trafficking safe houses to inform victims of their judicial protection options once rescued. States could implement this regulation by adopting victims assistance units in the state. Together, these amended statutes would provide victims with the ability to transition back into society successfully and prevent them from returning to their traffickers.

Punishment as Moral Fortification and Non-Consensual Neurointerventions

The purpose of this paper is twofold. First, I defend and expand the Fortificationist Theory of Punishment (FTP). Second, I argue that this theory implies that non-consensual neurointerventions – interventions that act directly on one’s brain – are permissible. According to the FTP, punishment is justified as a way of ensuring that citizens who infringe their duty to demonstrate the reliability of their moral powers will thereafter be able to comply with it. I claim that the FTP ought to be expanded to include citizens’ interest in developing their moral powers. Thus, states must ensure that their citizens develop their moral reliability, not only because they must enforce their citizens’ compliance with certain duties, but also because states have the duty to maintain the conditions for stability and satisfy their citizens’ interest in developing their moral powers. According to this account of the FTP, if neurointerventions are the only or best way of ensuring that offenders can discharge their fortificational duties, states have strong reasons to provide these interventions.

Unfounded Developments in the Indian Rape Laws

This paper concerns the 2018 legislative amendments in the Indian rape laws introducing the death penalty as a punishment for the rape of a woman under twelve years of age. The Criminal Laws (Amendment) Act, 2018, as introduced by the Central Government, has created multiple classes of victims based on which punishments are conferred upon the accused. The paper contends that these amendments are mere tools of penal populism to divert the public discourse in favour of the incumbents before the upcoming elections. Challenges to these amendments come from multiple sources as the impugned laws subvert the constitutional mandates of equality. Creating multiple sub-classes leads to over-classification of a class (women), and thus violating Article 14 of the Constitution. Another constitutional challenge comes in through the Extradition Act. It disallows conferment of the death penalty to any fugitive criminal extradited to India if the extraditing country does not provide the death penalty for rape, which hints at unequal treatment. The amendments also defy the criminological principles as presented under various theories of crime and punishment, undermines certain reports of the authorities, disregards the principles of international law, and proves to be unscientific when tested against facts and statistics. They also disregard the ratio of Bachan Singh v. Union of India, wherein the Supreme Court of India has mandated that the death penalty can be imposed only in rarest of the rare cases. It is argued through the analysis of case laws that rape, where the victim survives, does not qualify as the rarest of the rare case. Through such multi-facet discussion, it is proposed that harsh punishments are mere acts of penal populism, true success lies with preventive measures and transforming the mindset of individuals.

Injustice and the right to punish

AbstractInjustice can undermine the standing states have to blame criminal offenders, and this raises a difficulty for a range of punishment theories that depend on a state's moral authority. When a state lacks the moral authority that flows from political legitimacy, its right to punish criminal lawbreakers cannot depend on a systematic claim about the legitimacy of the law. Instead, an unjust state is permitted to punish only criminal acts whose wrongness is established directly by morality, and only when criminal guilt is established through legal procedures that meet minimal standards of fairness. These restrictions narrow the proper scope of criminal law and invalidate popular rationales for punishment that construe punishment as blame.

Punishing Vandalism Correctly in an Access Economy

This Article argues that the social impact of vandalism must be factored into the expected criminal punishment for this offense. Existing law does so unevenly. Acts of vandalism may have a positive social impact, either as street art or as a form of protected speech, or a negative social impact as costs that preclude the provision of public goods or goods traded upon the basis of access, and not ownership. In general, vandalism cannot be prevented by means of observable security measures; rather, vandalism must be deterred by means of higher expected criminal punishment. A large expected punishment, however, implicates what this article terms the “broken community theory of punishment.” Although broken community effects militate in favor of relatively minimal punishment for vandalism, a negative consequence of this punitive approach is less investment in the infrastructure or physical appearance of urban communities. A number of urban communities may, in fact, benefit significantly from vandalism laws that allow for greater capital investment by more harshly punishing the deliberate damage or destruction of public goods or goods traded upon the basis of access, as vandalism in the first-degree.

How the prison is a black box in punishment theory

The field of punishment theory promises to deal with the question of whether state punishment can be justified and on what grounds. In this field, punishment is rarely conceptualized as imprisonment. Even in the more practical subfield of sentencing theory, the realities of prison conditions rarely appear. Legal actors borrow the vocabulary of punishment and sentencing theory, proceeding as if theories speak to and justify the practice of imposing custodial sanctions and imprisonment generally. This article tries to explain how the fields of punishment and sentencing theory largely avoid the prison. The question, in a sense, is how a field can evade what is ostensibly its own subject matter. What this critique means is that sentencing authorities and other legal actors should turn away from punishment theory – or should look well beyond its boundaries – when they are thinking through the legitimacy and severity of the custodial sanctions they are imposing and administering.