Comment: “Punishment should be preventive and corrective rather than retaliatory.” (Bentham) (1995)
The statement condenses the theory of punishment in Jeremy Bentham‘s An Introduction to the Principles of Morals and Legislation (1789), chapters XIII–XV. If mankind is governed by pleasure and pain, pain for its own sake is never justified: punishment must look forward to harm prevented, not backward to harm done. The view humanised criminal law but needs retributive limits.
Punishment as a Necessary Evil
- All punishment is mischief: all punishment in itself is evil. By the principle of utility it is admissible only in as far as it promises to exclude some greater evil.
- Ends. The chief end is example, deterring potential offenders (general prevention). The offender himself is controlled by disablement (incapacitation), by reformation of his will, or by intimidation (particular prevention). Compensating the victim is a subsidiary end.
- Cases unmeet for punishment: where it is groundless (no real mischief), inefficacious (it cannot deter, as with infants or the insane), unprofitable (it costs more than it saves) or needless (cheaper means would work).
- Rules of proportion (chapter XIV): the pain must just outweigh the profit of the offence; anything beyond is waste.
Retaliation merely adds a second evil to the first.
The Corrective Programme
Bentham’s Panopticon (1791), a circular prison watched from a central tower, promised reform through inspection and labour, power of mind over mind. His later case against the death penalty followed: it is irreversible and reforms no one.
For a liberal legal order, following Cesare Beccaria (On Crimes and Punishments, 1764), punishment becomes public policy that legislators must justify by its effects, not a sovereign’s vengeance.
The Critique
- Retributivists. Immanuel Kant (The Metaphysics of Morals, 1797) held that punishment may be imposed only because he has committed a crime, never merely as a means to social good, which uses the person as a thing. Georg Wilhelm Friedrich Hegel (Philosophy of Right, 1820) called punishment the negation of the wrong, honouring the offender as a rational being.
- Punishing the innocent. If deterrence alone justifies punishment, a framed scapegoat or an exemplary sentence could maximise utility. H. L. A. Hart (Punishment and Responsibility, 1968) answered with a mixed theory: utility as the general aim, desert limiting who may be punished and how much.
- Discipline. Michel Foucault (Discipline and Punish, 1975) read the Panopticon as the model of disciplinary power, normalising individuals through surveillance; “correction” can become control.
Indian Illustration
Justice V. R. Krishna Iyer in Mohammad Giasuddin v. State of Andhra Pradesh (1977) gave Indian jurisprudence its reformative creed: if every saint has a past, every sinner has a future. The Bharatiya Nyaya Sanhita, 2023 (in force from 1 July 2024) adds community service as a punishment (Section 4(f)) for six minor offences, such as petty theft below ₹5,000 by a first offender who restores the property. The death penalty, confined by Bachan Singh (1980) to the “rarest of rare” case, remains a retributive residue.
Conclusion
Bentham rightly makes punishment answer to its consequences: a democracy cannot defend pain it cannot justify. But desert must set the ceiling and shield the innocent: prevention and correction as aims, justice as the limit.