Comment on: “Towards a more pragmatic penal system”
| Author | W Clifford |
| DOI | 10.1177/000486908301600405 |
| Published date | 01 December 1983 |
| Date | 01 December 1983 |
| Subject Matter | Original Articles |
AUST
&NZ
JOURNAL
OF
CRIMINOLOGY
(December 1983) 16 (231-233)
COMMENT ON:
"TOWARDS
A
MORE
PRAGMATIC PENAL SYSTEM"
WClifford*
231
I
have
been
asked
by
the
Editor
to provide a
comment
on
the
paper
by
Dr
John
Ray
under
the
above
title. I
enjoyed
reading
the
article because
Dr
Ray
treads
provocatively
where
more
cautious academics would fear to go.
He
tries to
get
rationality
into
justice which is
commendable
in itself:
and
it all
makes
good
sense
to
those
who
are
unaware
of
the
veritable
marshland
of ideas
over
which he strides
with such confidence.
He
stumbles only
where
justice
impedes
the
flow of
utilitarianism.
I am
sure
that
Dr
Ray
is conscious of
the
fact
that
he raises
contentious
issues in
every
paragraph.
This was probably his intention:
and
the
extent
of
reading
reflected
by
the
bibliography indicates
that
he has
pondered
deeply
before
delivering this
paper
to
the
annual
convention of
the
Liberal
Party.
He
could
only
offer
broad
perspectives in such an address.
The
danger
is
that
without
more
careful
cultivation of
the
ground
he covers,
Dr
Ray
might well
lead
the
earnest
but
unitiated
into
attempts
at simplistic resolutions of some of society's
deeper
dilemmas.
He
does
not
mention
for example
that
his advocacy of
the
"protection
of
society"
as
the
primary
objective of criminal justice already has
venerable
roots
in
our
system. Beccaria's famous
"Essay
on Crime
and
Punishment"
published
in 1764
considered
that
the
true
aim
and
the
only justification of legal
punishment
ought
to
be
the
principle of public utility, ie
the
safety of society by
the
prevention
of
crime.
The
British magistrate
and
penal
reformer,
Leo
Page,
was advocating
the
protection
of society as
the
umbrella objectives for
punishment
in 1948
and
the
years
that
followed!
and
Herron
CJ in RvCuthbert (1967) 86W H' (Pt 1)
(NSW)
272
at 274
held
that
whilst,
"The
function of
the
criminal law
and
the
purpose
of
punishment
cannot
be found in any single explanation
....
all
purposes
may be
reduced
under
the
single heading of
the
protection
of society,
the
protection
of
the
community
from
crime."
The
trouble
is
that
the
question of
punishment
has
never
been
answered
by simply
promoting
the
protection
of society - for it always left
open
the
further
question
of how this could
best
be
done.
The
death
penalty
was a
cheap
and
effective way of protecting society
from
the
"dangerous,
psychopathic rapists,
murderers
etc"
and
at
Herstedvester
in
Denmark
an
offender
could
be castrated. If these measures have
been
abandoned
it was
not
because
they
were
ineffective.
They
were foolproof in
the
individual case
even
if
they
did
not
have
much
effect on crime rates. It was
uncertainty
about
the
conviction system
and
human
rights considerations
that
led to
their
abandonment.
*Director, Australian Institute of Criminology. President for Criminology Section of 1976 and 1983
ANZAAS
Conferences, Executive Director, Asian and Pacific Conference of Correctional
Administrators, 1980-83.
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