Legal Philosophy




Thereare many arguments about the best justification for criminalpunishment between utilitarian and retributive theories. Proponentsand opponents of both justification s raise fundamental issues aboutthe outcome of punishing an individual as a way of correcting themfor the offence and at the same time sensitize the society about theconsequences of committing crime. Criminal punishment borders on twojustifications: retributivist and utilitarian(Golash, 2005). Theprimary distinction between the two justifications is that theretributivist justifications rest on the idea that punishment is adeserved response to offending behavior (p.23). In this case, thesociety does not accrue any future benefit from the punishment. Theutilitarian justification, on the other hand, demands that the futurebenefit of punishment through its harm can only be acceptable if afuture harm of greater magnitude is avoided (p.24).Thus, theintention to deter criminals from committing future crimes and alsorehabilitating into the society are based on the utilitarianjustifications. Retribution makes references to the offense injustifying the punishment administered. According to retributivisttheorists, punishment has to be proportionate to the magnitude of theoffence so that the offender receives “just deserts” (p.26).Thus, retributivists are more concerned with the severity of thepunishment than the moral concerns of the society. Retributivistsrealize that utilitarian approach has only succeeded toincapacitate the criminal in question but not deter other potentialcriminals from committing heinous crimes such as murder. Each of theutilitarian justifications focuses is mainly on the best means toachieve the future benefit of punishing criminals. This essay,therefore, compares both justifications while also providing the bestbetween the two.

Retributivistjustification of punishment

Thereare three retributive justifications of criminal punishment, whichstates as follows:

  1. People who commit paradigmatically heinous crimes must be punished in a manner that is proportionate to the crime because they deserve it(Christopher, 2001). Any lesser of greater punishment negates the punishment itself and does not serve justice.

  2. Punishing criminals is both intrinsically and morally good as long it is done by a legitimate punisher.

  3. Morals do not permit the society to punish innocent people because it would equivalent to giving disproportionate punishment to a wrongdoer (p.83).

Utilitarianjustification of punishment

Theutilitarian considers punishment as a means to achieving the greatergood of the society in the long-run rather than the simply avengingon behalf of the society. There are three utilitarianjustifications”

  1. Incapacitation: punishment aims to protect the society form further harm from a criminal. Thus, correctional facilities where criminals are incarcerated or jailed play the role of incapacitation. The society assumes that the detention denies the offender certain rights such movement hence, lacking the capacity to break the law once more(Golash, 2005).

  2. Rehabilitation: Once incapacitated, locking up a criminal in a correctional facility gives authorities to re-instill societal values such as teaching the futility of crime.

  3. Deterrence: Punishment is not just meant for the offender but also for potential offenders. Other people are supposed to learn from the suffering of the criminal as an example not to commit future crimes.

Theretributive approaches to punishment are more powerful than theutilitarian approaches. The justifications of deterrence,incapacitation, and rehabilitation both prevent crime in one way oranother but it is difficult to quantify how much crime reducedthrough these justifications. There are low chances that the crimepreventive measures employed through utilitarian justificationsoutweigh the social cost of doing so. The benefits thatincapacitation, deterrence, and rehabilitation accrue to the offenderare not as significant as they are to the society. Hence, thefollowing five arguments make the retributive approach more powerful:

  1. The public is normally concerned about the specific deterrence effects of the punishment. A majority of people in the society are more concerned with achieving a sense of vengeance against the offender for their actions.

  2. In realistic terms, people are the end in themselves. Rather than concentrate in making the criminal a better person, the society should concentrate on making the society aware of the specific consequences of all crimes so that potential criminals can be forewarned against committing crime.

  3. Retribution creates a sense of justice to the offended. The desire for retribution is motivated by the moral outrage that follows a crime. Thus, the moral outrage that follows a crime mediates the relationship between the severity of the offense and the punishment that authorities recommend.

  4. Utilitarian justifications tend to treat criminals as though they do not have a free will by trying to mold them the way the society wants them to be. Retributivist justifications understand that human beings are rational beings with a free will. This explains why courts must determine the sanity of a criminal. By respecting the choices of individuals, they are held accountable for what they do. While society should reward good people, it should also proportionately punishment wrongdoers.

  5. There is not empirical evidence on how much punishment was able to deter people from committing similar crimes. Perhaps, this explains why mass shootings happen in a series of times regardless of the punishments inflicted on earlier offenders. The long term effects of utilitarian justifications remain in questions because sanctions have not proven strong enough to deter potential criminals. Furthermore, in some cases, the many benefits of committing a crime far outweigh the risk of punishment.


Christopher,R. L. (2001). Deterring Retributivism: The Injustice of JustPunishment. Nw. UL Rev., 96, 843.

Golash,D. (2005). The case against punishment: Retribution, crimeprevention, and the law. New York: New York University Press.