THE PURPOSES OF CRIMINAL PUNISHMENT*
| Author | Gerald Gardiner |
| Date | 01 March 1958 |
| Published date | 01 March 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00463.x |
THE
MODERN LAW REVIEW
Volume
21
March
1958
No.
2
THE
PURPOSES
OF
CRIMINAL PUNISHMENT
*
I.
THE NAWE
OF
PUNISIIMENT
TE
idea of punishment, and a sense of the need for
it
in certain
circumstances, has probably existed as long as man himself. Human
beings have a long childhood. For many years they remain depen-
dent upon their parents for food and shelter. During this period
they have
to
adapt to the customs and manners
of
the community
to which they belong, and the more complex that community, the
more numerous the rules of conduct they must learn to observe.
Now, every child learns how to conduct himself by a system
of rewards and punishments. Thus, punishment has been the
experience
of
every
one
of
us, and of mankind in general, since
time immemorial.
It
has entered deeply into our imagination, and
we are used to the idea, and even to the expectation of
it.
It
is
not surprising that in time we have built a set of arguments
to
justify
it.
Not all of these stand up to rational examination. Some
are very ancient and have profound psychological roots; others,
more modern and sophisticated, are not necessarily sounder for
that reason. And in any case, though some of the older arguments
may be consciously rejected, they have a habit, like wolves in
sheep’s clothing, of showing through
in
unexpected places.
One view
of
fundamental importance and great antiquity is
that the purpose of punishment is expiation. Many different strands
of thought come together in this idea. On the one hand, the
offender must atone for his crime with suffering. On the other,
once the punishment has been inflicted, there
is
implicit in expiation
the idea of a squaring of accounts. The crime has been
‘‘
paid for
”
by
the punishment, the slate is clean again. This principle of
some sort of balance between crime and punishment occurs also
in the doctrine of retribution, and
it
is often difficult to disentangle
one concept from another. Even the oft-quoted
lea!
talionis
itself
could justifiably be quoted within the context of expiation, not least
*
Founded on University
of
London
Specid
Lecturee
in
Lawe delivered at
117
Univeraity College,
London,
in February,
1967.
VOL.
21
8
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