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Flaws in utilitarian theories of punishment

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  1. Introduction
  2. The theory of 'punishment'
  3. 'Punishment' as a part of law and ethics
  4. Punishment is an interesting concept
  5. The utilitarian theory of punishment vs retributive theories
  6. Conclusion
  7. Bibliography

In law and ethics, there is a well known theory that the punishment should fit the crime. In other words, the severity of the punishment should be reasonable and proportional to the severity of the crime. This is the theory of punishment that much of the world adheres to, although the definition of severity varies depending on the culture and country. For example, selling drugs on North America can translate into a conditional sentence, or even jail time, but in parts of the world it can warrant the death penalty. Nevertheless, retributive justice is still being employed because it employs proportionality in punishment. The idea of retributive justice has long come at odds with the idea of utilitarianism. According to the utilitarian, punishment is forward-looking in that it is based on the ability to achieve future benefits to society. This differs from those who advocate for retributive justice as that theory is backward-looking as it does not create punishment based on future utility; rather it simply creates punishment that is proportional to the crime, which is accomplished through as examination of the severity of the crime.

[...] There is the idea of retribution, which as noted looks into the past and correlates the severity of the punishment with the severity of the crime, then there are theories like those of deterrence, prevention, rehabilitation and restitution that look to the future and what can be accomplished in the future (utility) can enacted different forms of punishment. The theory of retribution justifies punishment by saying it is morally permissible because the person committed a crime, therefore they ought to be punished. [...]

[...] The rehabilitative justification for punishment argues that punishment is justified because it will have the positive effect of altering the moral compass of the offender and in doing so will prevent them from engaging in the same act again. These theories might seem plausible at face-value, but they too suffer from the same type of flaw as they argue that prevention of crime and the rehabilitation of the offender, which are both thought of as being beneficial to society, are only achievable by inflicting discomfort on others. [...]

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