A question about law and social sciences

“After having read the article written by Prof. De Caro (on moodle), please share some remarks about the forms of Utilitarianism and Retibutivism that can be found in contemporary criminal policies”

13 thoughts on “A question about law and social sciences


    Human history has a very long and vexed tradition about punishment’s function.
    Theories of emend and expiation had a great success in the past: we can think about Plato’s idea of penalty as a remedy for the soul (“medicina dell’anima”), or about
    the Roman jurists’ one that was about moral redention and purification of reo.
    During the time philosophical and legal studies have changed these ideas and new currents have developped untill nowdays.
    Three fondamental conceptions have influenced modern penalty law: theories of redribution, general prevention and special prevention.
    Theory of redribution asserts that a guitly person has to be punished because he commited a crime, an immoral behaviour for the society,
    so this punishment is justified by human conscience (“imperativo categorico”,Kant). So people are responsable for their actions with consequences, because
    they have to know the difference between good and evil. Juridical redribution instead of the moral one underlines that penalty lies in laws, not in human conscience.
    Theory of general prevention (or intimidation) deals with the meaning of giving an exemple for the society, dissuading not only one person but all the people
    to commit crimes. It has an utilitarian foundation.
    Theory of special prevention is the opposite conception of the general intimidation: infact it deals with individual’s threats, not for all the society.
    The most important objectives are therapy, rieducation and risocialization of the people.
    All of these theories have right and wrong points.
    I think that penalty shoud have a pluridimensional nature: it has to punish the evil action, the criminal intent, but also to be an opportunity for a new life,
    a second chance, a redention; otherwise punishments would be usless.
    In Italian Constitution we can read the modern interpretation of penalty in art.27, which fixes priciples of personal responsability of penalty,
    the presumpton of innocence of the defendat untill final judgement, the sense of humanity of punishments, the rieducation of prisoners.
    Also artt.1 and 199 of Italian Penal Code deals with these subjects: they say that nobody can be punished or be subjected to security measures for an action that is
    not provided for crime by the law.


  2. Alessandra D'Urso says:

    The Italian criminal system is characterized by the two main, and at the same time different, theories developed about the function of the punishment. According to an Utilitarian perspective we can refer to the article 27 of our Constitution that affirms the personal nature of penal responsability and that indicates re-education as the main goal of the punishment. This rule looks to the future (and not to the past as the Retributivism): through the punishment a guilty person has to understand the importance and the severity of his/her action in order to not commit it again. Another aspect we can consider concerns a particular kind of test: the confession. It assumed, in the last few years, an important role in different trials, because it started to be seen as the first step towards the repentance of the guilty. Confessing the crime and accepting the punishment means to recongnize the legitimacy of the punishment itself and of the power of the State, reconstituting the “original social pact” violeted with the crime. It’s in this perspective that we can find different rules inspired by Retributivism. Articles 42 and 85 of our Penal Code ban to punish who wasn’t able to “intendere e volere” when he/she committed the crime and so who was unaware of his/her actions and, expecially, of the consequences of those actions. Articles 52 and 54 (“Self defence” and “State of necessity”) that ban to punish who committed a crime to defend/save himself/herself or others from a grave and present danger, otherwise unavoidable. Article 49, finally, that prohibits to punish those who committed a licit act in the mistaken assumption that it was a crime. At the end we can say that the idea of our Criminal Code is to punish those who are guilty, but not in an excessive manner; to restore social justice and to protect society without flowing in injustice through not necessary and not proportioned punishments.


  3. Giorgia Castelli says:

    Utilitarianism and retributivism are two important theories about the idea of punishment.
    The first one uphold that punish a guilty person is necessary to deter other potential criminals, to protect the society and to rehabilitate the offender. Laws need to discourage the offenders from repeating criminal acts and at the same time punishment represents an example for other people.
    In our society we have some elements of this this theory, in fact detainees have the possibility to do a rehabilitation studying or doing some useful social activities. Moreover the Italian Constitution in the 27th article statue that punishment can’t consist in non-human treatments and they have to reeducate the offender.
    Retributivism instead justifies punishment because it is necessary to restore the balance of justice between offender and victim. This theory can be divided into two components: the positive one states that anybody who deserves to be punished, has to be punished; the negative one says that the offender has not to be punished in an excessive manner, instead one who is not guilty must not to be punished.
    In the Italian Criminal Code there are some aspects of this theory. According to the first article nobody can be punished to have committed an action that is not considered as a crime by law. Moreover ex art. 85 c.p Nobody can be punished for a fact provided as a crime, if when he did it he had not the ‘’capacità di intendere e volere’’. With regard to the punishment, judge can decides the length of the penalty considering aggravating (61 c.p.) and mitigating (62, 62 bis c.p.) circumstances, or doing a balance between them.
    According to these theories our criminal policies forbid capital punishment, want to give another opportunity to offenders for the future thanks to the rehabilitation program and try to deter from committing criminal acts.


  4. Veronica Fortino says:

    Since my colleagues have already talked about the main criminal law’s articles, I thought that could be interesting to underline two institutions of the italian procedural criminal law, the first one as an expression of utilitarianism and the second one of the retributivism.

    We studied that the utilitarian tendency looks at the future, in that the punishment should reach these three aims: rehabilitation, deterrence and incapacitation; I hold that these same features can be found in art. 464 bis c.p.p., according to the implementation of art. 27 Cost., entitled “Sospensione con messa alla prova” (perhaps the most like English translation could be “probation”): it is one of the alternative punishments to the prison, which tends to sew a personal “dress” for the criminal, in order to make the punishment’s period as useful as possible. In fact, the procedure asserts that a special “treatment plan” has to be presented to the judge; this program is written by both legal and psychological experts on the basis of a study about the family situation and the personal attitudes of the criminal; depending on this analysis, they choose a work therapy which has the aim to rehabilitate and to reinstate the guilty party in the society. The utilitarian aspect is also evident during all the work plan, because the specific program’s contents could be changed in progress, according to the development of criminal’s reactions.

    On the other hand, despite the Constitution stresses the importance of the punishment’s rehabilitative role and the criminal code considers the prison penalty as an extrema ratio, there are cases in which the judicial authorities abuse some legal remedies to twist their function: this is the case of the prison as a precautionary measure. This tool should be used to protect the regular development of the criminal process and to avoid escape’s risk, proofs’ contamination and crime’s reiteration; but, in the majority of times, it is used to punish the probable criminal before the facts’ complete examination: since the accused person has likely committed a crime, he/she deserves to remain in prison. The accused is treated as a criminal before the verification of what actually happened; this person remains in prison for months without a valid reason and this situation gets worse because of the public’s opinion. This treatment is strictly related to the passed wrong action and nothing has to deal with the alleged criminal’s rehabilitation.


  5. Alicia Newman says:

    One of the key aspects of our modern punishment is that the State (which is the criminal justice system) is the only agency enabled to respond legitimately by inflicting punishment. Say, I have my house burgled and I am full of vengeance for the burglar; I cannot just pursue my vengeance against him without handing the matter over to the state. It will be the criminal justice system that will decide how to punish the wrongdoer.

    As we have learned in class, there are two main theories of punishment: utilitarianism and retributivism. Utilitarianism seeks to punish offenders to discourage, or “deter,” future wrongdoing. Retributivism, on the other hand, seeks to punish offenders because they deserve to be punished. The utilitarian theory is ‘consequentialist’ in nature, and recognizes that punishment has consequences both for the offender as well as the society. Therefore, the good that the punishment creates needs to exceed the total evil created. Another rationale for utilitarianism is denunciation. Denunciation can be considered a hybrid of utilitarianism and retributivism. The prospect of being publicly denounced serves as deterrent and hence is utilitarian and also retributive as it promotes the idea that offenders deserve to be punished.

    According to the retributivist theory, humans have free will and make rational choices. If there is an insane individual or in any other way incompetent, he does not deserve punishment. Often, a sentence can combine utilitarian ideals with retribution; placing an offender in prison consoles the vengeance of the society, and simultaneously provides the offender with educational programs that are meant to rehabilitate him (a utilitarian element).

    In the US, the concept of punishment is a combination of utilitarianism, retribution and denunciation. The most accepted rationale for imprisonment in the US is retribution. We ca observe that in various crimes that carry different punishments with them. Murder, for instance, calls for life imprisonment in the UK and in the United States even for death penalty. However, crimes such as assault or battery, depending on the severity of crime, carry different notions of punishment with themselves, sometime only a jail sentence or a fine.


  6. Ginevra Guacci says:

    As we all know, due to EU, most of the legislations of the Member States are increasingly joining themselves toward many same policies. That is true if we think about private law, commercial law… On the other hand, taking into account the criminal policies we can see that EU’s institutions always find more and more difficulties to agree the Member States.

    However, in these last years a new field is being rising in Europe which aims to ensure the effective implementation of EU policies through criminal law. This policy, called the “Eurocrimes” is enspired by some of these principles:

    1) subsidiarity: EU can legislate about crimes only if it is more difficult or even impossibile for the State to reach the same goals with its own internal policies

    2) proportionality: criminal law must be an indispensable approach to the case (extrema ratio), therefore it is necessary to consider if administrative fines can work as well

    3) minimum norms: EU can act only referring to some of the EU rules, since many aspects of the criminal law is still binded to the national policies. These minimum norms surely include the identification of the person who committed the crime, as well as the incitement and abetting

    4) clear factual evidences: it is necessary to understand distinctly the crime’s nature, its effects and also the different perception among the Member States

    Also, the EU institutions are pondering over rather including or not more penalties, different from detention and financial penalties, in order to increase efficiency but also dissuasiveness and deterrence. These new sanctions may be confiscation of property.

    On these basis, I may argue that this new field of European criminal policy is mainly dominated by the negative aspect of the Retibutivism.

    I think that this is a constrained stance since, even if EU’s institutions were pleased to move toward a more utilitarian policy, they could not interfere more with the internal criminal policies.


  7. Giulia Loi says:

    It is important to study different cultures and different legal systems because this allows us to understand better what the theories of Retributivism and Utilitarianism really mean.

    Reasoning about the italian system, came to my mind that in a first time, there was a strict distinction between penalty and security measure. The first one was used as a retributive tool in order to punish a free and responsible man, the second one as a general preventive and utilitaristic tool, to control a person that is dangerous but that is not imputable. The penal system was unable to conveice a unique sanction with different purposes.
    The retributive penalty was determined in its period and proportionate to the gravity of the crime. On the other hand, the security measure, was linked to the level of dangerousness of the person and undetermined in its period: it could be increased or decreased depending on periodic examinations on the criminal’s conduct.
    But after the introduction of the Constitution, the system has become more respectful of the human dignity; “Garantista”, as Ferrajoli says.
    The prevention of the dangerous person is considered in the penalty, that as we said before, is already determined in its maximum, and no more in the security measure’s system. In fact in order to have a correct and enlightened penal system, both in a Retributivism or Utilitarianism, the duration of the penalty must be determined ex ante during the sentence.

    Trying to approach over my own nation and starting from a practical aspect, I was very surprised when I saw, surfing on the net, some pictures of a sweden jail: it is very similar to an university residence, with white, modern and clean walls, with the ping pong area, a very pretty common kitchen and other comforts.
    I think it is deeply connected to what is the purpose of the penalty: the goal of the sweden system is not to punish but to get the criminals back out into society in better shape than they were when they came in. The criminal is considered as a person who need cure and treatment in order to come back again in society. So we do not have a retributive system but Utilitarianism, in particular with emphasis on the element of rehabilitation. And probably this dignified conception of penalty helped to get a low incarceration rate, compared with other countries.

    In the opposite, the american system is called “harsh justice” ; it has the highest incarceration rate in the world, and we often find the prisoners in a dehumanizing condition; in a system like this, it is hard to obtain a real rehabilitation (that is one of the element of Utilitarianism). It may be bring the criminal to getting worst; neuroscience may be can help also in this sense: the mirror neurons make us reproduce what we see. Wrong behavior feeds wrong behavior. A good and not severe system should not be seen as a “gift” for a criminal, but a chance for the society to get back a person more conscious and more responsible than before.

    It has been very curious to realize that a crime such as the attack of Brevik, in Norvey (2011) in which 77 persons were killed, was punished with 21 years of imprisonment. In the US system you can get 20 years with no serious crimes ( I read about cases of stealing three golf clubs ). We can analyze what does it mean in a juridical point of view, but we have also to consider another important aspect: the political system.
    The american politicians, are very often directed to a harsh penal vision: they want give to the population a safe country, where they can feel protected. And nothing is better than a harsh system that marginalize criminals. In this sense we can maybe say that we have retributivism but also utilitarism ex parte populi.

    In the islamic penal system there is a very subtle distinction between the sin and offense, cause the whole penal system is permeated by the religious conception. Basically, we have three kind of crimes.
    In the first group, we find the most serious crimes; religious is hardly defended; flogging and the death penalty for offenses against Allah, such as apostasy, blasphemy or adultery. In the second group, we find the bloody crimes, with penalties directly determined by Corano; they are punished with the law of retaliation (legge del taglione); family’s victim, can choose with the price of blood or the forgiveness. So in the first and in the second group is very clear the retributivistic vision. In the third group, there are crimes considered harmful for the society, and the punishment in this case is based on the discretion of the judge: here instead we have Utilitarianism.

    Studying Philosophy of Law with Professor Ferrajoli, during the first year of university, I learned, that in the Retributive view the question “when do we have to punish?” is very often confused with “why do we punish?” and we have to keep clearly in mind this distinction in order to have the protection of our human rights.
    And moreover Ferrajoli teaches that in the Utilitarianism, when the criminal is considered as a sinner or someone with a social disease, society wants to cure him but the offender has the right of being himself, even an offender, and the society has no right to change his personality and nature. So probably the only kind of Utilitarianism (that F. calls) “garantista” is the one with the unique aim of public safety, without any sort of rehabilitation presumption or a retributivist starting point.


  8. PAOLA DE CINTIO says:

    As we spoke in class and as we discussed with Prof. De Caro two are the main approaches that characterize the punishment’s system, these are: the utilitarianism and the retributivism.

    According to the first theory, we must punish criminals for different reasons: the most important one is to deter that other crimes can in the future made, the second one is to reeducate the held in order to integrate him in the society by let the held work and study, another important one is to keep safe the town from the offenders.

    All these reasons can be found in codes and in our Italian Constitution: in the first article, art. 464 bis c.p.p., figures out the institute of ^ sospensione della pena con messa alla prova^. This institute is a form of rehabilitation and reeducation of the offender. In fact according to this institute, for the criminal offences punished with four years of prison sentence, the judge suspends the judgment for a limited period of time and gives to the indicted a program, in which it is said to do a useful social activity. Doing these useful activities for the society, the held tries to eliminate the consequences of his crime.

    The second theory, the retributivism, says that only the people who a responsible for committing a crime deserve to be punished, because the justice they have messed up has to be replaced. So, the balance of the rights of the people has to be taken to an equity. The equity, the justice, the rights of the society have to be replaced.
    Once again, this philosophy can be seen also in our codes: in art. 85c.p. ^Capacità di intendere e volere^ this institute says this: in order to punish someone this person, meanwhile is committing a crime has to be able to have a mental capacity. He cannot be crazy or out of mind. He should know what he is doing while committing crime otherwise he cannot be punished.


  9. Giulia Baccarini says:

    We all know that today the “strong points” of modern societies are the rules, especially the legaly ones. They are different from country to country, depending on the different tradition and culture of each, but modern rules are also very different from the past.
    Despite the big differences, the laws, crimes and punishments have always been essential for the coexistence and the development of societies of men. That’s so because the law, understood as a set of rules generally recongnized and accepted by all, seeks to ensure the maximum welfare of people, consequently also the concept of crime and the punishments become essential as deterrents.
    Punishment in particoular has been the subject of many studies because of its incidence on people life. We can define it as an authoritative imposition of an unpleasant outcome in response to a particoular action or behaviour that is deemed unacceptable or threatening to some norms, and we can also know that it has been a main position in all kind of “societies”, also primitive groups of people knew and used to punish their violators of rules.
    We already said that the kind of punishments in the different countries changed too much, and it is still so, but from the 19th century people started to pay more attention on the real meaning of the punishment and on its relevance for the society. They began to wonder whether it was useful to punish someone, in what way it was better, and many other questions (it was so because in that period the rights of personality acquired greater importance).
    From these important questions they developed the different theories on punishment. The two major theories that interest us are the Utilitarianism and the Retributivism.
    According to the Utilitarianism, that is a form of consequentialism which states that the consequences of any action must be the only standard of right and wrong, punishment serves to rehabilitate the offender, to deter other potential criminals and to protect society from dangerous people: these are utilitarian justifications, because they look to the usefulness of the punishment for the society as a whole, so we punish someone only if it could be usefull for him and for other people.
    Examples of this kind of punishment can be the ‘community services’, which are used in many countries like UK, as replacement of prison; the payment of an appropriate compensation works both as deterrent or as punishment.
    However the ‘incarceration’ is a typology of punishment having at the same time utilitarian and retributivist features, on one hand it works as deterrent for furure crimes, aims at rehabilitating the criminal and removes the danger for people to suffer other untwisted by the same person.
    On the other hand it depends on the person’s action and is commensurate with the crime committed, because retributivist prerogative is the idea to punish someone taking into account only his past actions.
    According to Retributivism punishment serves to restore the balance of justice, if it has been broken by someone responsible for a crime; and that this person deserves to be punished, no matter what the consequences of punishment, it is right to punish them without considering the potential social effects, beacause this viene looks only to the past.
    Other examples of retributivist punishments are the death penalty, the torture and other kinds of corporal punishments, still practiced in some eastern countries and, not going so far away, also the accessory penalties in criminal law.
    In Italy all punishments have got the features of both these theories, so they looks at the same time to the future and to the past.



    In the 19th century people began to pay more attention on the consequences that the punishment could have on their social life; so this period saw the development of two major theories of punishment: Utilitarianism and Retributivism.
    According to utilitarian theories , penalties can only be justified if they produce positive consequences – the prevention of future damage – more than the suffering inflicted. Utilitarian views look towards the future because of the consequences of the sentence. Utilitarianism is thus a form of consequentialism, because it assumes that for evaluating the morality of punishment you should only look at the consequences. For example, in our system, we can refer to the article 27 of our Constitution that affirms the personal nature of penal responsibility. It underlines that the re-education is the most important purpose of the punishment. It looks to the usefulness of the punishment.
    Retributivism, instead, is a form of deontologism, as it makes the morality of punishment depends on its ability to re-establish the balance of justice through the punishment of those who have broken it. According to this perspective if someone breaks the balance of justice it’s right to punish him without considering social effects and moral consequences.
    In our country there’s a “safe-rule” – the Article 85 of the Penal Code – which stipulates that no one can be punished for an act envisioned by the law as a crime, if at the time when he committed it , he hadn’t the “capacità di intendere e di volere”.
    The judge must evaluate the “capacità di intendere e di volere” and he has to establish the length of the sentence considering any aggravating circumstances. Our laws prohibit the death penalty because through rehabilitation programs it’s possible to re-introduce the condemned in the society.


  11. MUSTAFA BILGIN says:

    Since my friends who have explained the key definitions and concepts about utilitarianism and retributivism, i can briefly explain the current approach of turkey’s law-maker’s.I can argue that my country’s main approach about this debate is in favor of utilitarianism.Article 1 of turkish penal code is about the object of criminal law and it underlines the fact that discourage commitment of offences and protect public order and security are the main goals of the penal code. Also while determining a centence for a guilty person, the penal code states that a judge must take into consideration the guilty person’s future possibility of commiting a crime. So i can claim that turkey’s approach to this issue is in favor of utilitarianism.


  12. Sevina Metodieva says:

    Since the beginning of history, men have to punish offenders and criminals and at the same time they try to justify that practice, which moral could be discussed. For centuries men try to clarify ad explain what’s the relationship between justice and punishment is.
    How does punishment relate to justice? Does punishment really achieve justice? And why we have to punish? For what? For something that’s considered illegal or immoral? And who decide what’s bad and what’s not? Those last questions may can be discuss in other places. But what’s important to say is talking about the “destiny” of those who are considered as criminals by the law or by the society basing on a moral and rational guidelines. It is reasonable to think that the someone who offends society or some individual rights has to be punished. This punishment seeks to restore the balance of justice, to ensure a safety living in the society. This concept is based on the fact that the offender is punished because he deserves it, because he brokes this balance, because he did not respect the law. All those guilty ought be punished, but not in a excessive manner. Non humane and severe sentences are forbidden even if they may bring a good example for others. Cesare Beccaria, perfectly explain that the purpose of punishment is to prevent other from committing that or other crimes, however Beccaria should be considered the father of the Utilitarism: it’s better to prevent crimes rather than punish them. On the other hand Kant and Hegel may be considered the runners of the Retributivism. We may can say that the special function of punishment is to protect others from dangerous people and the general function is to discourage some other potential criminals. Penalty should be proportioned to the crime and determined by the law and at the same time judges should act with ethical view. According to Cesare Lombroso the only reason to justify a crime is because of the necessity of self-defense, strictly regulated in the Italian Penal Code art. 52.


  13. Alessandro C. says:

    What Retributivism teaches us it’s all about  criminal system and  penalty to be inflicted. In particular for what concerns the punishment. This one, has to be the best response to a committed crime.  In other words, penalty should be proportionate and proportional to the infraction or the crime. Traditionally there’s a contrast between Retributivism and Utilitarism. For Utilitarians punishment is forward-looking, they focus on the achieve of social benefits such as a rieducation of the criminal. For Retributionists punishment is, indeed, backforward-looking.  The main points of Retributivism are:
    those who commit certain crime or wrongful act deserve a proportionate punishment.
    It is not possible to punish an innocent or to inflict more severe punishment. 
    What kind of wrongs can be consider a basis for punishment? Violation of human rights, for example.
    In 1764 Beccaria with his On Crimes and Punishments set the basis of the foundation of a human, solid and equal criminal law. He quotes  Montesquieu, too, saying that each punishment that does not derive from absolute necessity is tyrannical. Nothing to add. What he explain is that the only and one purpose of punishment is to prevent the criminal from commit other crimes. The type of punishment and the method to inflict it has to be only those extremely necessary, nothing more, nothing less.  We can see how this “pillar” of criminal law is perfectly applicable  nowadays.  We need to continue to aspire to an effective criminal justice system.


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