THE JUSTIFICATION OF PUNISHMENT
Punishment requires justification because it requires the calculated infliction of pain on an individual. Normally when people are kidnapped or killed this is wrong and illegal, but the state does this to people through the punishment it inflicts.
The simplest way to explain why this is necessary is simply the fact that the law prohibits certain behaviour, and so offenders of the law must be punished on the moral grounds that the law is there to protect.
However, punishment can and frequently does go wrong in some cases:
- It is deemed excessive to lock someone away for life if they’ve only stolen an apple.
- It is deemed lenient to only sentence someone to a week or two of prison if they’ve committed a murder.
When sentencing an offender, a whole range of factors must be taken into account. Such decisions must be made in in of the value and function of punishments.
Theories of punishment are typically considered separately, however lines aren’t so easily drawn in cases such as the utilitarian views of punishment, for example: deterrence, protection and rehabilitation. Utilitarianism itself was originally used in the 18th century to address social policy as a basis for penal reform and legislation. Even today, utilitarian influences are still prominent in the legal system.
SECTION 1: WAR
Justice regarding war is divided into three main issues (and their Latin translations, because this is philosophy and if we can’t be pretentious here then where can we be?) :
- The justice of resorting to war (‘jus ad bellum’)
- Just conduct in war (‘jus in bello’)
- Justice at the end of war (‘jus post bellum’)
JUS AD BELLUM: BEFORE:
We just have to fulfil five criteria in order for a war to be just. Easy, right? Let’s take a look…
- There must be a just cause
- The decision must be made by the proper democratic authority and issued via public authority.
- The declaration of war must be a last-resort, when all other alternatives have failed to be successful.
- The state declaring war must be able to see a sufficient probability of success in resolving the conflict through war, as needless and gainless violence through war, cannot be justified.
- The declaration of war must be proportionate to the situation. English translation: the good that is likely to come from the war must be proportionate to the evil that is likely to occur without it. (A.K.A, the end must justify the means). The state declaring war must take into account all the positives and negatives of doing so, not only to themselves but also to their enemies and possible enemy casualties.
JUS IN BELLO: DURING:
We have just six rules for this:
- Weapons like chemical weapons, that are prohibited by national law, must not be used.
- There is an important distinction to be drawn between combatants and civilians- only combatants should be targeted in war.
- Armed force used must be proportional to achieving the desired end goal of the war.
- The Geneva convention: prisoners of war must be treated well, as upon being captured they are no longer a threat to life and security.
- Weapons or other means of war such as ethnic cleansing that are deemed intrinsically evil are not permitted to be used in any situation in war.
- If the enemy breaks any of the above rules, this does not justify in any way the opposing combatants breaking of rules.
JUS POST BELLUM: AFTER:
We have just four basic rules to keep in mid after a war has been fought- even after the conflicts have officially ended, the damage can still go on.. And on… And on.. And ooooooonnn…
- The rights that were violated as a catalyst for the war in question should be secured once again.
- The declaration of peace, precisely like the declaration of war, must be made publicly and by a proper authority.
- Just as the proportionality of the reaction of the combatants comes into question before and during the war, it is also applicable here- it should govern the peace settlement and be a rational, non-vengeful document. A vengeful document, as seen with the Treaty of Versailles, will likely fuel further transgressions on the part of the defeated nation.
- Public and international trials (such as the Nuremburg Trials) should be held after war, with a clear distinction still drawn between combatants and civilians.