Module 2: Political obligation

2.1 Concept of Political Obligation

MEANING: ❖ The term ‘obligation’ originates from a Latin word ‘obligate’ which implies
performance of an enjoyed duty. Society calls upon the individuals to follow certain do’s and
don’ts. These are obligations, or duties. For instance, payments of tax are a duty, and so also
refraining from committing theft is another form of duty.

❖ Obligation is something that binds men to an engagement or performing what is enjoyed. It

is the duty of a men to fulfil or discharge a duty enjoyed on him by his rational understanding.
In legal sense an obligation is the vinculum juris or bond of legal necessity, which binds together
two or more determinate individuals. Example the duty to pay a debt, to perform a contract, or
to pay damages for a tort. It shows the correlative rights, means the right of one party, no less
than the liability of the other.

❖ In its political sense it takes the form of a bond between man as a citizen, and the authority
under which he lives to perform an act, or number of acts for the governing authority. Man is a
political animal. He is bound to live under some authority. It becomes his obligation to obey the
commands of such authority. Benn and peters explained, ‘when the authorizing rule is a law,
and the association is a state, we call it as political obligation.

2.1.2 WHY DO PEOPLE OBEY THE LAW?

1. Political Obligation: Why should I obey the law? Apart from the obvious prudential and
self-interested reasons (to avoid punishment, loss of reputation, and so forth), is there
a moral obligation to do what the law requires just

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 because the law requires it? If the answer is yes and the mere illegality of an act renders
its performance prima facie morally wrong, then I am under a political obligation.
2. Political obligation thus refers to the moral duty of citizens to obey the laws of their
state. In cases where an act or forbearance that is required by law is morally obligatory
on independent grounds, political obligation simply gives the citizen an additional
reason for acting accordingly.
3. But law tends to extend beyond morality, forbidding otherwise morally innocent
behavior and compelling acts and omissions that are discretionary from an independent
moral point of view. In such cases, the sole source of one’s moral duty to comply with
the law is his or her political obligation.
4. Economists credit deterrence, saying that legal sanctions influence behavior, and
sociologists point to legitimacy, the idea that people obey the law because they see it as
a legitimate authority. People obeys the laws because of following Reasons-

 To avoid legal consequences

 Because people respect authority
 Because people feel it is morally right to obey the law
 Fear of punishment

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2.2 THEORIES OF POLITICAL OBLIGATIONS:

Various theories have been enunciated on political obligation. These theories explain the kind
of sanctions behind the concept of political obligation.

1. DIVINE THEORY: Sanction in Faith This theory is one of the oldest, explaining the reasons
of obedience to a state’s ruler. It implied that the ruler has derived his authority directly
from God.

As such, the people had no right to rebel even against a wicked ruler. In this way, people
are bound by religious injunction to obey the authority of the king.

There was absolute political obligation.

This idea of ‘divine rights of kings’ was prevalent throughout the Middle Ages. However,
with the advent of new learning in the modern age, it lost its significance.

Criticism of the Divine Theory of Political Obligation:

The Divine Theory of political obligation received scathing criticism at the hands of eminent
thinkers like Grotius, Hobbes, Locke who rejected its metaphysical premises and traced the
source of political obligation in consent of the individuals. When the state and the church got
separated due to the growth of secularism, temporal powers became supreme to spiritual
powers. However, the growth of democracy doomed this theory.

Even the other metaphysical bases of obligation, like Fascism or Communism, based on the
historic mission of a leader, class or party, received no support from science.

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They are of the same religious order as the divine rights theory. Thus, the theory lost all its
appeal in the modern age.

CONSENT/CONTRACT THEORY:

Sanction in Will of the People Though the idea of contract or consent as a basis of obligation.

The explicit expression of this theory is found in the writings of Thomas Hobbes and John Locke.
They opine, that men who lived in the state of nature entered into a co1ntract whereby
political authority came into being, which again was based on the consent of the people.

The idea of social contract, however, took a highly philosophical form at the hands of Rousseau,
who reposed the fact of political obligation in the “General Will”.

This meant that man no longer remains a slave to his impulses of appetite after entering into a
civil society, but he becomes bound to obey the law of the general good. (Called General Will).
Thus, the social contract theory justifies the conception that the ruling authority, if he has to be
legitimate, must rest ultimately on the consent of the governed.

If the government violates the terms of the contract, the people have the right to resist.

The implications of this theory have been in the direction of safeguarding the rights and
liberties of the people and checking the arbitrariness of rulers.

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PRESCRIPTIVE THEORY:

1. Sanction in Reverence to the Established Conventions and Traditions , According to this

theory, political authority and reverence to it are based on the principle of “customary
rights.” Authority is legitimate, if it is sanctioned by long standing custom or tradition.
2. The people obey their rulers because the fact of obedience has become like a well-
established convention. The traditionalists view the state as a delicate structure built
over the years and which represents a balance of conflicting interest.
3. Institutions like the state evolve gradually and adapt slowly to change; hence, it is a
matter of duty to accept state authority and obey it while working only for gradual
peaceful change.
4. This conservative theory of political obligation has its affirmation in the writings of
Hegel, who believes that the ideas of morality evolve concretely in the customs and
institutions of the state.
5. And since the latest stage in this process is the present established order, it is entitled to
receive our obedience.
6. Further, since the state is the embodiment of a long evolved and customary morality, it
becomes the duty of everyone to do what the state expects of one. Burke is one of the
best-known exponents of conservatism who opines that it is unwise for man to totally
disregard custom and tradition.
7. The fact of political obligation is contained in paying unflinching respect to tradition,
which is a sacrosanct affair. Thus, he supported the revolt of American colonialists,
which was in favour of traditional rights of Englishmen, but opposed the French
Revolution because it was inspired by the abstract rights of man “divorced from national
traditions”.

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 8. Prof. M. Oakeshott is a contemporary upholder of the traditionalist view of obligation.
According to him, political actions can never be anything but traditional, because
political reflection cannot exist in advance of political activity. Politics is a skill, which is
learned by practice rather than through theoretical maxims or systems. Hence, even
when we attempt to comprehend other people’s politics, it is always within our own
framework.

MARXIAN THEORY:

Eventual Conversion of Political Obligation into Social Obligation.

1. The Marxian theory of political obligation is basically different from other theories on
the subject.
2. It sanctions the case of political non-obligation in the pre- revolutionary stage, total
political obligation in the revolutionary stage and its eventual conversion into social
obligation in the post-revolutionary stage. In other words, the case of political obligation
is integrally connected with the character of authority.
3. In Marxian theory of politics, state is decried as a ‘bourgeois institution’ in capitalist
society.
4. It means, after a successful revolution, the working class has the instruments of power
in their hands to consolidate the socialist order in a way preparing its ‘withering away’ in
the final stage of socialism.
5. According to Marxism, the idea of political obligation cover the cases of ‘discredited
state’ in the era of capitalism, the ‘new state’ in the period of ‘dictatorship of the
proletariat’, and the ‘state proper’ when the ‘classless’ society finds its culmination in
the ‘stateless’ pattern of social existence.

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 6. The starting point of Marxian theory of politics and with it of political obligation ‘is its
categorical rejection of this view of the state as the trustee, instrument, or agent of
society as a whole’.
7. The case of political obligation arises when the ‘new state’ comes into being after the
revolution. The noticeable point in this theory is that what is forbidden in capitalist
society is ordained in the socialist order.
8. Not merely this, fundamental changes take place that prohibit any opposition to the
state at all. The task of the Marxists is to subordinate the idea of political obligation to
the dictates of permanent revolution. In other words, the idea of political obligation
ceases to exist with the withering away of the state in the last stage of socialism (called
communism) and finds its final conversion into the injunction of social obligation.
9. Thus, society will be composed of the associations of free and equal producers,
consciously acting upon a common and rational plan.

2.3 Problems of Obedience to Unjust laws

What is Unjust Law ?

Unjust Laws: - Unjust means ‘unfair’. Any law that uplifts human personality is just. Unjust
means ‘not just’, ‘unfair’, ‘bad’ etc.

An unjust law is a code that is out of harmony with the moral law. Sometimes, governments
pass unjust laws with their brute majority in the legislature under pressure of some interested
groups. Though people have to obey the laws whether they are good or bad. People revolt
against bad laws by their nature. Under the unbearable circumstances created by injustice and
bad laws, people disobey such laws.

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Over this issue even the philosophers and jurists only have the differences between their views,
while the Hobbes says one is expected to obey the law, natural theory of Locke and Rousseau
sanctions disobedience to bad laws.

2.3.2 Right to Resistance and Dissent -

T.H. Green

 Thomas Hill Green (1836–1882) was a British idealist philosopher and a prominent
figure in the late 19th-century movement known as British Idealism.
 Green was a proponent of liberal and progressive ideas, and his political philosophy had
a significant impact on the development of social and political thought.
 Green argued for a positive conception of rights, emphasizing the idea that rights are
not mere negative liberties but are tied to the fulfillment of moral and social obligations.
 According to Green, rights should be understood in the context of promoting the
common good and individual self-realization.

T.H Green view’s on resistance :

Justification for Resistance:

 Green argued that the right to resistance is justified when the state deviates from its
essential role of promoting the common good and protecting individual liberties.

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Citizens have the right to resist if the state becomes oppressive, fails to address social
inequalities, or acts against the moral principles that underpin a just society.

 Conditions for Legitimate Dissent:

o Dissent, according to Green, is a legitimate form of expression when individuals
believe that certain laws or policies hinder their ability to lead morally fulfilling
lives.
o Legitimate dissent is rooted in the idea that individuals have a moral duty to
resist actions that impede the positive development of both themselves and
society.
 Democratic Dialogue and Reform:
o Green emphasized the importance of dissent within a democratic framework.
Dissent should not merely be an act of rebellion but a means of engaging in
dialogue to bring about positive change.
o In a democratic society, dissent serves as a mechanism for citizens to voice their
concerns, propose alternative solutions, and contribute to the ongoing process
of social and political reform.
 Ethical Dimensions of Resistance:
o Green's concept of resistance carries ethical dimensions. It is not a call for
anarchic rebellion but a principled response to perceived violations of moral
principles.
o The right to resistance, in Green's view, is exercised with a sense of responsibility
and commitment to the common good, seeking to rectify the moral
shortcomings of the state.

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 Role of Education in Fostering Dissent:
o Green believed that education plays a vital role in fostering dissent in a
constructive manner. Educated citizens are better equipped to discern moral
shortcomings in the actions of the state.
o Through education, individuals can develop the capacity for critical thinking and
moral reasoning, enabling them to engage in dissent that is informed, principled,
and conducive to positive societal change.

MK Gandhi

Mahatma Gandhi, also known as MK Gandhi, was a prominent leader in the Indian
independence movement against British rule. While he is best known for his philosophy
of nonviolent resistance, he did advocate for the right to resistance and dissent as part
of his broader principles.

Gandhi believed in the power of nonviolent civil disobedience as a means to achieve

social and political change. He argued that individuals had the right to resist unjust laws
and policies through nonviolent means, such as protests, strikes, and other forms of
peaceful resistance. This philosophy was rooted in the idea of satyagraha, which means
"truth-force" or "soul-force."

Gandhi's approach to resistance and dissent emphasized the importance of moral and
spiritual strength in the face of oppression. He encouraged people to resist injustice
without hatred or violence, aiming to transform the hearts of oppressors through self-
suffering and noncooperation.

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Gandhi's commitment to nonviolent resistance had a significant impact on the Indian
independence movement and inspired similar movements for civil rights and social
justice around the world. The right to resistance and dissent, as championed by Gandhi,
continues to be a foundational principle in movements advocating for human rights and
social change.

Martin Luther King Jr

Martin Luther King Jr. was a key figure in the American civil rights movement during the
1950s and 1960s. While he is best known for his role in advocating for racial equality
and justice through nonviolent means, his philosophy also encompassed the right to
resistance and dissent. King believed in the power of nonviolent civil disobedience as a
means of challenging unjust laws and social norms.

One of King's most famous works is his "Letter from Birmingham Jail," written in April
1963. In this letter, he addressed fellow clergymen who criticized his methods of
nonviolent protest. King defended the right to resist and dissent against unjust laws,
arguing that individuals have a moral responsibility to disobey unjust laws and bring
attention to systemic issues. He drew inspiration from various philosophical and
religious traditions to support his views on nonviolent resistance.

King's commitment to nonviolence and civil disobedience was deeply rooted in his
Christian beliefs and the teachings of Mahatma Gandhi. He believed that nonviolent
resistance could expose and challenge the moral contradictions of segregation and
discrimination, leading to positive social change.

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In summary, Martin Luther King Jr. advocated for the right to resistance and dissent
through nonviolent means, emphasizing the moral obligation to challenge unjust laws
and promote justice and equality. His legacy continues to inspire movements around the
world that seek social and political change through peaceful means.

Nelson Mandela

Nelson Mandela, the iconic leader of the anti-apartheid movement and the first black
president of South Africa, is often associated with the principles of resistance and
dissent. Mandela spent 27 years in prison for his involvement in anti-apartheid activities
before eventually being released in 1990. His life and legacy are deeply intertwined with
the struggle for freedom, justice, and human rights.

The right to resistance and dissent was a fundamental aspect of Mandela's philosophy
and actions. Here are some key points related to this theme in Mandela's life:

3. Anti-Apartheid Activism: Mandela was a key figure in the fight against apartheid,
the institutionalized system of racial segregation and discrimination enforced by
the South African government. He, along with others, resisted the oppressive
policies and practices through various means, including nonviolent protests, civil
disobedience, and underground activism.
4. Armed Struggle: Frustrated by the lack of progress through nonviolent means,
Mandela eventually embraced more militant strategies. He was involved in the
establishment of the armed wing of the African National

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 Congress (ANC), known as Umkhonto we Sizwe ("Spear of the Nation"). The
organization engaged in acts of sabotage against government installations.
5. Imprisonment: Mandela's commitment to the cause of ending apartheid led to
his arrest and imprisonment in 1962. He was sentenced to life in prison in 1964.
Despite his incarceration, Mandela remained a symbol of resistance and
continued to inspire activists both in South Africa and around the world.
6. Reconciliation: Mandela's approach to resistance was not solely about
opposition to the apartheid regime; it also included a vision of reconciliation and
building a new, democratic South Africa. After his release in 1990, Mandela
played a crucial role in the dismantling of apartheid and the establishment of a
multiracial democracy.
7. Truth and Reconciliation: Mandela supported the Truth and Reconciliation
Commission (TRC), which aimed to address the crimes committed during the
apartheid era. The TRC provided a platform for both victims and perpetrators to
testify about their experiences, fostering understanding and forgiveness.

Nelson Mandela's life exemplifies the idea that the right to resistance and dissent is not
only a response to injustice but also a commitment to building a more just and inclusive
society. His journey from prisoner to president reflects the transformative power of
perseverance, reconciliation, and the pursuit of human rights.

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2.3.3 Satyagraha - Gandhian Technique of Resistance against Unjust laws

2.3.3 Satyagraha-

Satyagraha means the righteous indignation against the unjust laws of the civil government.
Gandhiji invented the new name ‘Satyagraha’, and inducted it in South
- African politics first and later in Indian politics. Gandhiji evolved a way of resisting evil through
Satyagraha. He said that Satyagraha is a weapon of the strong and the bravest. It is a powerful
technique of evolutionary revolution. He explained the birth and meaning of Satyagraha in his
book the Story of my experiments with truth. According to him, Satyagraha is a vindication of
truth by bearing witness to it through self-suffering, in other words, love.

Satyagrahi is a person who adopts satyagraha as method against unjust law. Satyagrahi
proceeds through the process of identification and involvement. He or she establishes his/ her
spiritual identity with the opponent and awakens in him a feeling that he cannot hurt him
without hurting his own personality. Satyagrahi kindles ‘the divine spark in the opponent’s
soul’. Therefore, Satyagraha is rightly regarded as the ‘soul force’ or the ‘love of force.
Satyagraha must be qualitative not quantitative; Gandhiji recommended the practice of
Satyagraha by a select few in the first instance. Quality should be the prime consideration and
the selection of the laws to be broken should be made not by each Satyagrahi himself, but by
the leader or some centrally constituted body of expert satyagrahis.

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SATYAGRAHA -TECHNIQUES OF RESISTANCE AGAINST UNJUST LAWS

Civil disobedience and non-cooperation are the main techniques of Satyagraha.

1. Civil disobedience Gandhiji defined civil disobedience as the breach of unmoral

statutory enactments (unjust laws). It is an effective and bloodless substitute of armed
revolt. It signifies the resister’s out Lawry and a civil, i.e., non-violent manner. He said
that civil disobedience was a just and moral duty of citizens against an unjust, autocratic
and imperialistic political order. Gandhiji put greater emphasis on the word ‘civil’ than
on obedience so that the movement might not become uncivil and violent. Civil
disobedience is the last stage and the most drastic from of non - cooperation.
2. Non-Cooperation Gandhiji successfully employed the techniques of non- violent non-
cooperation as an effective means of Civil Disobedience to unjust laws of an evil
government. Oppression and exploitation are made possible by willing or forced
cooperation of the oppressed in their own exploitation or exploitation or oppression
through cupidity, ignorance or fear. If all the people ceased completely to cooperate
with an unjust or tyrannous system, it must completely collapse. Even the most despotic
government cannot stand except for the consent of the governed, which consent is
often forcibly procured by the despot. Immediately the subject ceases to fear the
despotic force, his power is gone.

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2.4 Punishment- Objectives, Justification and Deviation

The central claim is then made that punishment would be justified in a system of civil rights if
(1) it prevents or at least substantially deters violations of rights while at the same time being
necessary to this particular task. We realize that punitive sanctions often infringe rights of the
violator; accordingly, we must also require that
(2) the right protected is not outweighed by the right infringed by sanction and that it cannot
be substantially be better protected by a sanction that infringes a right of roughly the same.
Thus, the important grounds for punitive sanctions in a system of rights are: overall necessity,
compatibility with rights, and relative deterrent effectiveness. On these same grounds, a policy
of not punishing the innocent, of punishing only adjudged violators, would be incorporated in
the background institutions, in particular, the trial system, that served to admit people, upon
determination of their guilt, into the practice of being punished.

2.4 PURPOSE AND OBJECTIVES OF PUNISHMENT

2.4.1 Responsibility of the Modern State to Punish

Punishment, the infliction of some kind of pain or loss upon a person for a misdeed i.e., the
transgression of a law or command. Thus, punishment is defined as suffering, loss, pain, or any
other penalty that is inflicted on a person for the crime by the concerned authority. There are
different theories of punishment in law. It is the responsibility of the state to punish the wrong
doers in order to protect it’s citizens and deter the wrong doers and from anyone else
committing a similar crime.

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The central claim is then made that punishment would be justified in a system of civil rights if
(1) it prevents or at least substantially deters violations of rights while at the same time being
necessary to this particular task. We realize that punitive sanctions often infringe rights of the
violator; accordingly, we must also require that
(2) the right protected is not outweighed by the right infringed by sanction and that it cannot
be substantially be better protected by a sanction that infringes a right of roughly the same.

Thus, the important grounds for punitive sanctions in a system of rights are: overall necessity,
compatibility with rights, and relative deterrent effectiveness. On these same grounds, a policy
of not punishing the innocent, of punishing only adjudged violators, would be incorporated in
the background institutions, in particular, the trial system, that served to admit people, upon
determination of their guilt, into the practice of being punished.

Punishment has recognized five purposes

1. Incapacitation: Prevents future crime by removing the defendant from society.

Examples of incapacitation are incarceration, house arrest, or execution pursuant to the
death penalty.
2. Retribution: Prevents future crime by removing the desire for personal avengement in
the form of assault, battery, and criminal homicide, against the defendant. When victims
or society discover that the defendant has been adequately punished for a crime, they
achieve a certain satisfaction that our criminal procedure is working effectively, which
enhances faith in law enforcement and our government
3. Restitution: Prevents future crime by punishing the defendant financially. Restitution is
when the court orders the criminal defendant to pay the victim

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 for any harm and resembles a civil litigation damages award. Restitution can be for
physical injuries, loss of property or money, and rarely, emotional distress. It can also be
a fine that covers some of the costs of the criminal prosecution and punishment.
4. Rehabilitation: Prevents future crime by altering a defendant’s behaviour. Examples of
rehabilitation include educational and vocational programs, treatment centre
placement, and counselling. The court can combine rehabilitation with incarceration or
with probation or parole. In some states, for example, nonviolent drug offenders must
participate in rehabilitation in combination with probation, rather than submitting to
incarceration. This lightens the load of jails and prisons while lowering recidivism, which
means reoffending.
5. Deterrence: Deterrence prevents future crime by frightening the defendant or the
public. The two types of deterrence are specific and general deterrence. Specific
deterrence applies to an individual defendant. When the government punishes an
individual defendant, he or she is theoretically less likely to commit another crime
because of fear of another similar or worse punishment. General deterrence applies to
the public at large. When the public learns of an individual defendant’s punishment, the
public is theoretically less likely to commit a crime because of fear of the punishment
the defendant experienced. When the public learns, for example, that an individual
defendant was severely punished by a sentence of life in prison or the death penalty,
this knowledge can inspire a deep fear of criminal prosecution.

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2.4.2 Philosophical Underpinnings-

Kant’s Retributivism

Kant begins with the claim that punishment “can never be inflicted as a means to promote
some other good for the criminal himself or for civil society.

According to Kant, we can’t consider the usefulness of a punishment at all until we’ve
determined that someone is “punishable.” By this Kant means to say that we do not have a
right to punish anyone who does not deserve to be punished. That is because, in Kant’s view,
we have an innate right never to be used simply as a tool to make society better. To be used
“merely as a means”—only as a tool—is incompatible with the respect we are owed as human
beings. He appeals to that principle here to argue that we violate someone’s basic human rights
if we punish them just to make society a better place. Instead, punishments are never justified
unless we first determine that the wrongdoer actually deserves them.

Implicit in Kant’s rejection of forward-looking accounts of punishment is the accusation that

such theories would accept or even encourage punishment of those who do not deserve to be
punished. This continues to be a problem for some types of utilitarian theories today. Imagine
that the population of State X believes that Cecile C. has committed a horrendous crime. The
State knows that Cecile is innocent, but they don’t know who actually committed the crime. So,
the Sate punishes Cecile. This deters other people in X from committing similar crimes, reduces
public unrest about the unsolved crime, and increases the public’s sense of safety. Some
utilitarian theories of punishment would condone the punishment of Cecile in this instance,
despite the fact that she is innocent. In contrast, Kant’s theory

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rejects punishment of the innocent in every case, no matter how useful it would be, because
punishment of the innocent is always undeserved.

Kant next turns his attention to the severity of punishments. He argues that we also may not
consider the utility of a punishment when we determine how severe it should be. That means
we may not impose a punishment that is more severe than the wrongdoer deserves, but we
also may not impose a punishment that is less severe. We should determine the severity of our
punishments by thinking only about what the wrongdoer deserves, without considering the
usefulness of the punishment. As Kant puts it, punishments must be proportional to the
criminal’s “inner wickedness.”

This part of Kant’s argument is essentially a defense of proportional punishment. Most people
share the intuition that punishments shouldn’t be much worse than the crime warrants—even
if that would be societally useful.

An extreme example can help illustrate this issue. Imagine that we could significantly reduce
traffic deaths by imposing the death penalty on anyone who drives more than ten miles over
the speed limit. And imagine that drivers are so scared of being sentenced to death that they all
start following the speed limit. (This would be an example of deterrence). As a result, the
number of people who die from this new death sentence law is much smaller than the number
of people who currently die as a result of speeding related traffic accidents. So this criminal law
would save a significant number of lives. Nevertheless, it seems unreasonably harsh. Most
people would not support a death sentence for traffic violations even if it would ultimately save
lives. In that sense, most people share Kant’s intuition that punishments must be proportional
to the wrong they are meant to punish.

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Kant also makes the argument in the other direction: he also argues that punishments shouldn’t
be less severe than deserved. He makes that point with the example about the prisoner who
“agrees to let dangerous experiments be made on him” in return for a shorter sentence. Kant
would not permit reductions in sentence in return for social benefits. He defends that view
primarily by appeal to the principle of equality. Kant views the unequal treatment of those who
have committed crimes that are equally morally wrong as unjustifiable. “Justice ceases to be
justice,” Kant says, “if it can be bought for any price whatsoever.” On Kant’s view, then,
punishments are non-negotiable: everyone should get exactly what they deserve— no more, no
less.

In the context of punishment, Kant’s views often seem strict and uncompromising.
Interestingly, though, many of us share Kant’s general intuition that it is a violation of the
principle of equality if someone is made better off than they deserve. Consider, for instance,
your college grades. Suppose that Derrick D., a classmate of yours, wrote a terrible paper,
thrown together in the hour before class. You, in contrast, spent weeks writing the perfect
essay. It seems unjust if Derrick gets the same grade as you do—even if you get exactly the
grade you deserve. In other words: you might object to Derrick being better off than he
deserves in relation to the other people in the class. Kant’s view relies on much the same
intuition. If A and B commit equally wrong acts, A and B’s punishment should be precisely
identical.

This raises a question about how to determine appropriate punishments. Kant tells us that we
should proportion punishments to the “inner wickedness” of the criminal, but how can we
decide what the proportional punishment should be? That question continues to be a serious
problem for retributivists. There doesn’t seem to be an easy and reliable way to figure out
exactly how much suffering someone deserves. As you have read, Kant defends the law of
retribution or the lex talionis as an answer

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to this problem. The ancient lex talionis is the “eye for an eye, tooth for a tooth” principle
according to which the punishment should mirror the crime. Of course, Kant does not take that
principle literally. He does not argue that we should steal from thieves, insult those who have
defamed us, or torture our torturers. As is made clear by his discussion of punishment for the
“upper classes,” Kant instead argues that we should impose punishments which impose a harm
on the wrongdoer that is similar to the harm the wrongdoer imposed on his victim.

Kant’s own examples are helpful to understand what this principle would mean in practice. He
considers a rich nobleman who insults someone of lower social rank. That wrongful act should
not be punished with a fine, because then “someone wealthy might indeed allow himself to
indulge in a verbal insult on some occasion.” In other words: fines are not suitable punishments
because those who are rich enough don’t suffer from them. Instead, they might just choose to
commit the crime and pay the fine. So, Kant argues, the nobleman should instead be punished
for his insult by being forced to apologize publicly and kissing the hand of his victim. These are
things the nobleman will find humiliating, and so he will experience a kind of harm (humiliation)
that is similar to the harm he inflicted.

There is another reason we can’t take the lex talionis literally and mirror the crime, and that is
that the crime may be too terrible to replicate on the criminal. Kant argues that even the death
penalty must be carried out “freed from any mistreatment that could make the humanity in the
person suffering it into something abominable.” In other words: we are required to respect the
humanity of even the worst imaginable wrongdoers. That means that we may not torture,
mistreat, or otherwise disrespect criminals as we try to punish them. Instead, even very serious
punishments must be inflicted in a way that is consistent with our respect for the human dignity
which we all share.

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Bentham’s view on Utilitarianism

When Bentham speaks of the common good, he is referring to the sum total of all individuals'
interests. Laws, for Bentham, are about promoting happiness. But laws also involve
punishment, which is in itself an unhappiness.

Utilitarians therefore, have a prima facie difficult time justifying punishment. Thus, the two
questions Bentham wishes to apply utilitarian moral theory to answer are: When are we
justified in punishing? What are the limits of just punishment?

When are we justified in punishing?

The short answer is when the costs of punishment in terms of utility are outweighed by the
gains in utility by punishment, then we should punish. However, there are at least three ways in
which this might be the case.

1. Pure cost benefit

For example, locking up a violent criminal in order to protect society from further violence
(deterrence through incapacitation). The costs to him are great, but given his propensity
towards violence, the benefits of removing him from the community far exceed the costs to
him.

1. Deterrence

When humans decide how to act, we tend to look towards the consequences of our actions.
Punishment, when factored in as a consequence, can therefore prevent (deter) crime. What is
especially interesting about this idea is that it may not require that a punishment be actually
used, as in virtue of knowing the punishment, the crime will rarely occur. Thus, utilitarians take
special favor in deterrence, as not only does

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it lower the overall crime rate, but it often does so by imposing minimal punishment (as
punishment is an evil in itself).

1. Rehabilitation

Punishments to shape the future behavior of the criminal are considered rehabilitation.
Utilitarians favor rehabilitation because it salvages one more person from becoming a criminal
and transforms them into a productive law-abiding citizen. Deterrence, on the individual level,
may have a similar effect to rehabilitation (criminals stop committing crimes), but the motive is
different. Rehabilitation means an individual no longer wants to commit the crime(s) in
question. In contrast, individual deterrence means a criminal is simply afraid to commit the
crime(s) again.

What are the limits of punishing?

Bentham cashes out the principle of utility to provide the following instances of when
punishment cannot be justified:

1. Where punishment is groundless (punishing innocents, for instance).

If the mischief was necessary to achieve a greater good, this too would make punishment
groundless. Suppose I have someone in need of emergency medical assistance in the car and as
such I run red lights after looking both ways and finding no traffic. Punishing me in this case
serves no gain in utility. This area would also include cases where compensation can be made
for the harm done without punishment. For example, if someone breaks your window but pays
for repairs and compensates you for the inconvenience, then there is no need for the state to
punish.

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Though Bentham doesn't mention it, Mill, of course, would include in this category not only
innocent people but also cases where everyone involved consented.

1. Where punishment is inefficacious (it is unable to prevent bad behavior). This would
include cases:

 Where the law is ex-post facto (where the act was not illegal when performed).
 Where the law is passed but is not conveyed to those it is intended to regulate (this is
not to say ignorance is an excuse, but it is to say that if a law is never posted or
publicized, then there is no justification for enforcement).
 Where the law, though passed and conveyed, could not have an impact on the person
(i.e. infant, children, and the insane).
 Bentham also lists intoxication into this class of inefficacious punishments (although
other utilitarians would reject this).
 Finally this would include unintentional acts, acts done due to fear (self- defense) and
acts that are involuntary (acting from compulsion, "your money or your life," sort of
situations)

1. Where punishment is unprofitable (Where the costs of punishment outweigh the

benefits of punishment). Costs of punishment include the evil of coercion, restraint,
apprehension (the pain of the person), and sympathy (the pain others experience out of
concern for the one punished). These costs must be weighed against the benefits of
punishment which include the degree of the offense, the number of offenses, the
likelihood of repeat offense (or of deterring future offenses) and the displeasure of the
people who are aware of the crime. Interestingly, Bentham includes foreign powers and
communities in determining the benefits of punishment. If by punishing a person we
would

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 greatly offend another nation, this would be justifiable reason for not punishing.
2. Where punishment is needless (where the mischief will itself cease or can be prevented
without punishment)

In a case where education will prevent a crime, then we ought to forgo punishment. Or if pure
pressure alone will prevent the action in future (i.e. you did learn your lesson by the reaction of
others).

In addition to these four, Bentham speaks to 28 additional rules guiding punishment

(punishment must fit the crime, circumstances must be taken into account, etc.), but we will
not go over all of them here. Suffice it to say, more often than not, utilitarians justify
punishment for its propensity towards rehabilitation or deterrence. Punishment just for the
sake of punishment (without any deterrent or rehabilitative effect) seems immoral to the
utilitarian as not only does it accomplish nothing while causing pain, but it also smacks of
revenge. What is your take on the utilitarian theory of punishment? As we shall see, it has
plenty of objectors.

2.4.4 Deterrent Approach -

The founder of this theory is Jeremy Bentham, and this theory is based on the principle of
hedonism which says that a man would be deterred from committing a crime if the punishment
applied was swift, certain, and severe.

This theory focuses on deterring offenders from criminality or repeating the same crime in the
future. This theory is a lesson to members of society who experience the consequences of that
crime. It creates fear of punishment in like-minded people.

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There should be a nexus between the crime committed and the punishment inflicted for that.
While deciding on the punishment, the following should be taken into consideration;

1. The seriousness of the crime – Punishment should be given according to the

seriousness of the crime committed, for e.g one can’t award a death sentence for
pickpocketing.
2. The gravity of crime – The consequences of the punishment inflicted have to be taken
into consideration alongside taking into account the victim’s satisfaction concerning the
same. For e.g, if Mr.X is murdered by Mr.Y then if Mr.Y is giving one-time compensation
of Rs.5 lakhs to X’s family, is it sufficient if he is the only bread earner of the family?
3. Impact on the general public – It is most important to consider what will be the effect of
that punishment in the minds of the general public. Are they taking lessons from that?
For example, traffic police are collecting fines for not wearing helmets, but do people
follow this rule? Are they really serious about fines and rules?

In the case of the State of H.P.v. Nirmala Devi (2017), the court of law had opined that if the
crime done is heinous and serious against society then the deterrent theory becomes more
relevant, for those guilty will be punished to deter other prospective offenders.

Criticism of deterrence theory

1. Though this theory intends to deter people from committing crimes or repeating the
same crime, it has failed to serve its purpose. It has proved ineffective in checking
crimes and the fact that excessive harshness of

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 punishment tends to defeat its purpose by arousing the public’s sympathy towards
those who are subjected to such punishment.
2. Punishment loses its essence once the criminal is punished. For example, in the Delhi
gang rape case, familiarly known as the Nirbhaya case, all 4 accused were hanged for
their heinous crime but the offence of rape continues to happen. Thus the question as
to whether the deterrent theory of punishment serves its purpose remains arising in
people’s minds.
3. It does not give a chance to reform the accused.

The retributive theory assumes that the punishment is given only for the sake of it. Thus, it
suggests that evil should be returned for evil without taking into consideration any
consequences. There are two theories in which this theory can be divided further. They are
specific deterrence and general deterrence. In specific deterrence, punishment is designed such
that it can educate the criminals. Thus, this can reform the criminals that are subjected to this
theory. Also, it is maintained that the punishment reforms the criminals. This is done by
creating a fear that the punishment will be repeated. While a general deterrence is designed to
avoid future crime. So, this is done by making an example of each defendant. Thus, it frightens
the citizens to not do what the defendant did.

Preventive Theory/ Approach-

The main goal of preventive theory is to create fear and put an end to crime. That is, by
disabling the criminal, to prevent crime. This theory motivates the potential offender out of fear
of punishment and prevents the offender from committing any crime. It changes the offender
through rehabilitation or transformation process so that he does not commit the crime again.
Preventive theory disables offenders through the application of punishment, ending potential
crime.

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Preventive theory seeks to permanently or temporarily put an end to the offender's crime. This
theory supports the death penalty or life imprisonment of criminals. Philosophers such as
Bentham, Mill and Austin have supported the theory of resistance in the interests of human
nature. Preventive theory claims that this theory is employed as an effective preventive. Crime
can be prevented if the perpetrator's misdeeds are stopped. Ending this crime is possible only
by disabling the offender. Disability can be of different types.

Detention in prison is a limited form of disability, it is temporary. When it is an unlimited form

of disability, it is permanent. Imprisonment is one of the best ways to prevent crime. Because, it
tries to eradicate crime from the society. And disables the offender to prevent the offense from
repeating. The death penalty is also based on this idea. Three important aspects of preventive
punishment exist.

They are as follows: -

1. Punishment creates fear.

2. Prevents the offender from committing any other crime permanently or
temporarily.
3. To make the criminal a good citizen of the society through reforms.

Reformative Theory-

Meaning of Reformative Theory of Punishment

The reformative theory of punishment is a philosophy of criminal justice that emphasizes the
rehabilitation and reform of offenders as the primary purpose of punishment, rather than
retribution or deterrence. It is also known as the rehabilitative theory of punishment.

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According to the Reformative Theory of Punishment, offenders are not seen as inherently evil
or irredeemable, but rather as individuals who can be reformed and reintegrated into society
with appropriate interventions.

Purposes of Reformative Theory of Punishment

The reformative theory of punishment in India serves several key purposes.

1. Rehabilitation

The primary purpose of punishment is to rehabilitate offenders by addressing the underlying

causes of their criminal behavior, such as social, psychological, and environmental factors.

Rehabilitation may involve providing education, vocational training, counselling, drug and
alcohol treatment, mental health services, and other interventions that aim to reform offenders
and equip them with the skills and resources necessary to reintegrate into society as law-
abiding citizens.

1. Prevention of Recidivism

By addressing the root causes of criminal behavior, the reformative theory of punishment aims
to prevent recidivism, which refers to the relapse into criminal behavior by offenders after
being released from prison or serving their sentence.

By providing opportunities for offenders to address and overcome the factors that contributed
to their criminal behavior, rehabilitation can reduce the likelihood of repeat offences and
promote long-term public safety.

1. Reintegration

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The reformative theory of punishment also emphasizes the reintegration of offenders back into
society as productive citizens. This may involve providing assistance with housing, employment,
education, and other resources that can help offenders successfully reintegrate into their
communities and reduce their risk of reoffending. Reintegration is seen as an important aspect
of punishment, as it helps offenders to become responsible and law-abiding members of
society, and also reduces the burden on the criminal justice system.

Principles of Reformative Theory of Punishment

The reformative theory of punishment is based on several key principles that guide the
approach towards the rehabilitation and reform of offenders

Individualization

Offenders are treated as individuals with unique needs and circumstances, and rehabilitation
programs are tailored to address their specific risks and needs. This may involve conducting
assessments to identify the factors contributing to their criminal behavior and developing
individualized treatment plans accordingly.

The individualization principle recognizes that offenders may have different underlying causes
of criminal behavior and require personalized interventions to address those causes effectively.

Non-Punitive Approach

The reformative theory of punishment emphasizes a non-punitive approach that focuses on

addressing the root causes of criminal behaviour rather than inflicting suffering or retribution
on offenders. This may involve using positive reinforcement,

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rewards, and incentives to encourage pro-social behavior and discourage reoffending.

The non-punitive approach recognizes that punishment alone may not be effective in
addressing the underlying causes of criminal behavior and that positive interventions can be
more effective in promoting long-term behavior change.

Human Dignity and Rights

The reformative theory of punishment recognizes the inherent dignity and rights of offenders,
even though they have committed crimes. Offenders are treated with respect and are afforded
their fundamental human rights, including the right to fair treatment, privacy, and due process.

Rehabilitation programs are designed to promote the well-being and dignity of offenders and to
help them develop a sense of self-worth and responsibility towards themselves and society.

Voluntary Participation

Participation in rehabilitation programs under the reformative theory of punishment is typically

voluntary, and offenders are encouraged to actively engage in their own rehabilitation process.
Offenders are given the opportunity to take ownership of their rehabilitation and make choices
that align with their goals for positive change.

This voluntary participation promotes a sense of autonomy and empowerment among

offenders and encourages them to take responsibility for their actions and choices.

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Community Participation

The reformative theory of punishment emphasizes the involvement of the community in the
rehabilitation process. Community-based rehabilitation programs, such as halfway houses,
community service, and restorative justice practices, are often incorporated into the
rehabilitation process to foster community support, reintegration, and re-socialization of
offenders.

This community participation helps offenders to reconnect with their communities, develop
pro-social relationships, and develop a sense of belonging and responsibility towards their
communities.

Criticism of the Reformative Theory of Punishment

While the reformative theory of punishment has its proponents and is widely recognized for its
focus on rehabilitation and reintegration, it is not without criticisms. Some of the criticisms of
the reformative theory of punishment include:

Lack of Deterrence

One criticism of the reformative theory of punishment is that it may not effectively deter
offenders from committing future crimes. Critics argue that focusing solely on rehabilitation and
neglecting the element of deterrence may not effectively prevent offenders from reoffending.

They argue that without fear of consequences or punishment, offenders may not be motivated
to change their behavior, and the lack of deterrence may fail to protect society from potential
harm.

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Inadequate Punishment

Some critics argue that the reformative theory of punishment may be perceived as too lenient,
especially in cases of serious or heinous crimes. They argue that offenders who have committed
serious crimes, such as murder or rape, may not be adequately punished under the
rehabilitative approach.

Critics argue that punishment is a necessary element of justice, and offenders should be held
accountable for their actions through proportionate and meaningful punishment.

Lack of Focus on Victims

Another criticism of the reformative theory of punishment is that it may not adequately
address the needs and rights of victims. Critics argue that the rehabilitative approach may
prioritize the rights and needs of offenders over those of the victims.

They argue that the impact of the crime on the victim, including the physical, emotional, and
psychological harm suffered, should be given greater consideration in the punishment process.

Resource Constraints

Critics argue that the implementation of rehabilitation programs can be resource- intensive,
requiring significant financial and personnel resources. In many cases, the availability and
accessibility of rehabilitation programs may be limited, especially in developing countries or in
areas with limited resources.

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Critics argue that the feasibility of implementing rehabilitation programs on a large scale may
be challenging, which may impact the effectiveness of the reformative theory of punishment.

Potential for Abuse

Critics raise concerns about the potential for abuse in the rehabilitation process. They argue
that there may be a risk of offenders manipulating or abusing the rehabilitation programs, or
not fully engaging in the process, which may compromise the effectiveness of the rehabilitative
approach.

Critics also raise concerns about the potential for bias or subjectivity in the assessment of an
offender’s progress or readiness for reintegration, which may result in unequal treatment or
discriminatory practices.

Lack of Clarity and Consistency

Critics argue that the reformative theory of punishment may lack clarity and consistency in its
implementation. They argue that there may be inconsistencies in the assessment of an
offender’s progress, the availability and quality of rehabilitation programs, and the overall
approach towards rehabilitation and reintegration.

Critics argue that the lack of clear guidelines and standards may result in subjective decision-
making and inconsistent outcomes, which may impact the fairness and effectiveness of the
rehabilitative approach.

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