ADMINISTRATION OF JUSTICE: ITS NECESSITIES AND KIND

Administration of Justice is the firmest pillar of Government. Law exists to bind together the community; it is sovereign and cannot be violated from the inception of civilisation; anti-social elements in society required to be coerced by the arm of the constable and at times by the rigour of iron bars. Man is by nature wicked, needs teaching and discipline in order to be right. Hence for the maintenance of legal rights and for the prevention of wrongs and injustice, there must be efficient administration of justice according to pre-declared principles of law. Salmond observed, “Men being what they are-each keen to see his own interest and passionate to follow it-society can exist only under the shelter of the state and the law and justice of the state is a permanent and necessary condition of peace, order and civilisation”.<!–[if !supportFootnotes]–>[1]<!–[endif]–>

In primitive days, man redressed his grievances and avenged himself upon his enemies by his own hand. Every individual was a famished wolf trying to devour others. To quote Hobbes, “Kill whom you can and take what you can was the slogan of the day”. In order to live a decent and orderly life in society, the powers of the state followed by the idea of force became necessary. The administration of justice is the modern and civilised substitute for the primitive practices of private vengeance and self-help.<!–[if !supportFootnotes]–>[2]<!–[endif]–>

Administration of justice means justice according to law. According to Salmond, it means maintenance of rights within a political community by means of the physical force of the state. Physical force of the state is the sole or exclusive factor for a sound administration which also help obedience to law. These factors are social sanctions, habits, convenience etc.<!–[if !supportFootnotes]–>[3]<!–[endif]–>

NECESSITY OF ADMINISTRATION OF JUSTICE

In determining a nation’s rank in a political organisation, no test is considered more decisive than its administration of justice, for it has been conceived as one of the firmest pillars of any government. A state may not be called a state, if it has failed to discharge its functions concerning the administration of justice. Life may not be lived in a society in which there is no preservation of the rights of men and no prevention of injustice. Whereas, man is a wicked and a fighting animal by nature, need for sound administration of justice, therefore, is felt by humanity since the very inception of the civilisation. Jeremy Taylor has well remarked, “A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them or have one power over them.”<!–[if !supportFootnotes]–>[4]<!–[endif]–> But unfortunately, it is manifest that human beings do not have one reason in them, for each is moved by his own interests and passions. One power over them, therefore, is of the utmost necessity, because as Hobbes said, unless there is “a common power to keep them all in awe”, it is not possible for men to live together except in the most savage forms of society, where “ there is no place for industry……….no arts, no letters, no society , and which is worst of all, continual fear and danger of violent death; and the life of man, solitary, poor, hasty brutish and short.<!–[if !supportFootnotes]–>[5]<!–[endif]–>

The views expressed by Taylor and Hobbes may appear to some to be exaggerated, but there is undoubtedly a truth in them, because in order to live a decent and an orderly life in society, the power of the state followed by an idea of force is absolutely necessary for the maintenance of the rights and regulations of duties of its subject.<!–[if !supportFootnotes]–>[6]<!–[endif]–>

There may not be any necessity of the administration of justice in a utopia, but in the present materialistic world it is impossible to live without the machinery of justice. Administration of Justice, thus, must be regarded as a permanent and necessary element of civilisation and as a device that admits of no substitute.<!–[if !supportFootnotes]–>[7]<!–[endif]–>

HISTORICAL DEVELOPMENT

Administration of justice is one of the essential functions of the state. The law and order within the state is maintained through the administration of justice and the citizens are made to realize the existence and the importance and the importance of the state. The administration of justice in reaching its present form passed through various stages. In the primitive society when the wrong was done against the individual, he had to resort to self help and it was based on private vengeance. He was helped by his relatives and kinsmen. Later on when individuals organized themselves in the form of society, certain rights were recognized by the society as belonging to the individuals. If a wrong was done against the individual it was abhorred by the society and it made efforts to provide remedy to the individual. The private vengeance still remained the motive and the effective measure but it was now regulated by the certain rules and took the form of a combat. The right, wrong, punishments were decided by the physical strength of the parties. The party who proved to be stronger was considered as right. In primitive societies the natural elements were considered as gods and as such were approached for justice. For example if a person against whom there was any allegation, could walk through fire and came out unhurt, he was considered to be innocent. Gradually the society evolved and state came into being. For the protection of the citizen and for its own protection it became necessary for the state to maintain law and order. This is the beginning of the administration of justice.

The state defines the rights and duties of the citizens. It protects the rights and enforces the duties. If any violation of the rights of one individual is made by another, the latter is to redress it or he is punished. The state appoints persons to adjudicate the rights and duties and to secure their protection and enforcement. In this way the courts came into being. Gradually a well organized judicial order developed in the society. In the modern times the judicial order is the most important organ of the government and it is called judiciary. It administers justice which is considered to be an essential function of the state.<!–[if !supportFootnotes]–>[8]<!–[endif]–>

DEFINITION OF ADMINISTRATION OF JUSTICE

The function of the judiciary is to protect and enforce the rights of the individuals and to punish wrong doers. This function is called administration of justice. The term justice here does not mean that the justice in the abstract senses a moral virtue or ideal but it means justice according to the law or in other words enforcement of rights as they are defined by law. Thus to adjudicate the rights and duties of the individuals on the basis of the rule laid down by the state is administration of justice.<!–[if !supportFootnotes]–>[9]<!–[endif]–> Salmond defines administration of justice as the maintenance of rights within a political community by means of the physical force of the state.<!–[if !supportFootnotes]–>[10]<!–[endif]–>The definition of Salmond has been criticized by many jurists. They say that it is not alone the force of the state that secures the obedience of law. There are a number of other factors also. In civilized societies obedience to law becomes a habit and very rae the force of the state is needed to secure it. Thus the administration of justice implies three things: The law, the state, and securing obedience to law by means of the physical force of the state.

NEW CONCEPT OF ADMINSTARION OF JUSTICE

The traditional concept of administration of justice has gone a radical change. It includes a positive content. Social justice is becoming an integral part of administration of justice. The concept of social justice is the yardstick of the justice administration system or the legal justice as roscoe pound pointed out that the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for society and whatever is beneficial for the society, the Endeavour of the law court would be administer justice having due regard in that direction.<!–[if !supportFootnotes]–>[11]<!–[endif]–>

ADVANTAGES AND DISADVANTAGES

Advantages

<!–[if !supportLists]–>· <!–[endif]–>It brings uniformity in the administration of justice.

<!–[if !supportLists]–>· <!–[endif]–>As the law is known to the citizens, it enables them to regulate their conduct in accordance with it.

<!–[if !supportLists]–>· <!–[endif]–>As the rules are fixed, it helps judges in applying the law uniformly.

<!–[if !supportLists]–>· <!–[endif]–>As justice is doing according to the fixed principles of law, it ensures impartiality and equality.

<!–[if !supportLists]–>· <!–[endif]–>The rules of law represent the collective wisdom of the community, therefore in following them there are little chances of going wrong.

<!–[if !supportLists]–>· <!–[endif]–>It brings uniformity and consistency in the law and it causes a systematic development of law.

Disadvantages

<!–[if !supportLists]–>· <!–[endif]–>It makes law rigid. The same rules are applied to all the cases of similar nature and it sometimes caused hardships and injustice.

<!–[if !supportLists]–>· <!–[endif]–>Law tends to become conservative. It does not keep paced with the changed conditions and so it is not in accordance with the new ideas and principle of justice.

<!–[if !supportLists]–>· <!–[endif]–>Law becomes greater formal. Greater importance is attached to the form then to the substance. It brings many evils and causes injustice.

<!–[if !supportLists]–>· <!–[endif]–>The law becomes very complex. It no longer remains easy to understand. Thus law loses certainty which is very essential for a good law. It was due to these disadvantages that salmond said that law is without doubt a remedy for greater evil, yet it brings with it evil of its own.

 

DIVISION OF ADMINSTARTION OF JUSTICE

The Administration of Justice is divided into two parts-

(1) Civil and (2) Criminal.

<!–[if !supportLists]–>· <!–[endif]–>The wrongs which are the subject matter of civil proceedings are called civil wrongs.

<!–[if !supportLists]–>· <!–[endif]–>The wrongs which are the subject matter of criminal proceedings are called criminal wrongs.

The position of the person who commits or threatens to commit a wrong and thus exposes himself to such proceedings is called liability. The liability is civil or criminal according to the proceedings to which the wrong doer is subjected.

The two parts of administration of justice differs from each other on the following points-

(1) They are administered by two different sets of courts. Civil justice is administered by civil courts and criminal justice is administered by criminal courts.

(2) There are two different forms or procedures for the two classes.

(3) The result of the proceedings is also different. A successful civil proceedings result in a judgment for damages, or recovery of debts, or any other alike relief. A successful criminal proceedings result in the punishment of the wrong doer. In some criminal proceedings only preventive measures are taken against a person who is likely to commit some wrong in future. In some of the cases the results are similar. An accused may be ordered to pay money to the complaint and in the same way defendant may be imprisoned in a civil case. But generally the cases of this nature are treated as exception to the rule.<!–[if !supportFootnotes]–>[12]<!–[endif]–>

ADMINISTRATION OF CIVIL JUSTICE

The rights enforced by civil proceedings are of two kinds:-

1. Primary

2. Sanctioning or remedial rights

Primary rights: Primary rights are those rights which exist as such and they do not have their source in some wrong.

Sanctioning or remedial rights: Sanctioning or remedial rights are those rights which come into being after the violation of primary rights.

The administration of civil justice is of two kinds this division is based on the nature of the rights which is to be enforced by the civil proceedings:-

1. Specific enforcement: - The first aim of the law is to enforce the primary rights where the primary rights themselves can be enforced, there is no question of any sanctioning right for that purpose. The cases of the enforcement of the primary right are where a defendant is compelled to perform a contract. The enforcement of the primary right is called specific enforcement.

2. Sanctional enforcement: - There are cares where the primary rights as such cannot be enforced. In such cases sanctioning rights are enforced salmond calls the enforcement of the sanctioning rights as sanctional enforcement. Sanctional rights are enforced iw kinds of cases

<!–[if !supportLists]–>· <!–[endif]–>The first kind of cases of sanctional enforcement is those where it is not possible to enforce the primary rights.

<!–[if !supportLists]–>· <!–[endif]–>The second kind of the case where the sanctional enforcement is applied are those in which the law can enforce the primary rights, it does not enforce it as a matter of policy and awards damages only.

In the cases of ‘specific enforcement’ he proceeds to establish the state of things is required by the right and does not go to enforce another state of things as a substitute for or equivalent to the original state of things. In enforcing sanctioning rights the aim of the law is either :-

<!–[if !supportLists]–>· <!–[endif]–>To impose pecuniary penalty on the defendant for the wrong he has committed, or

<!–[if !supportLists]–>· <!–[endif]–>To award compensation to the plaintiff for the damages suffered by him.

The rights of the plaintiff is either :-

<!–[if !supportLists]–>· <!–[endif]–>To receive money from the defendant which amounts to penalty on part of the defendant or

<!–[if !supportLists]–>· <!–[endif]–>To receive damages or pecuniary compensation. It is of the following nature :-

<!–[if !supportLists]–>1. <!–[endif]–>Restitution

<!–[if !supportLists]–>2. <!–[endif]–>Penal redress

This division is from the defendant’s point of view and not from the plaintiffs because for the latter it is always a compensation for the loss he has suffered.

<!–[if !supportLists]–>1. <!–[endif]–>If the defendant is ordered to return or to restore any benefit which he has taken from the plaintiff it is restitution.

<!–[if !supportLists]–>2. <!–[endif]–>If the law compels the defendant to pay to the the plaintiff the loss suffered by him by the wrongful act of the defendant with any consideration is a penal redress.<!–[if !supportFootnotes]–>[13]<!–[endif]–>

ADMINISTRATION OF CRIMINAL JUSTICE

Criminal Justice refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. The criminal justice system is essentially an instrument of social control: society considers some behaviours so dangerous and destructive that it either strictly controls their occurrence or outlaws them outright. It is the job of the agencies of justice to prevent these behaviours by apprehending and punishing transgressors or deterring their future occurrence. Although society maintains other forms of social control, such as the family, school, and church, they are designed to deal with moral, not legal, misbehaviour. Only the criminal justice system has the power to control crime and punish criminals.<!–[if !supportFootnotes]–>[14]<!–[endif]–>

So, the main objectives of the criminal justice system can be categorized as follows:
1.To prevent the occurrence of crime. 2. To punish the transgressors and the criminals.

3.To rehabilitate the transgressors and the criminals. 4.To compensate the victims as far as possible.

5.To maintain law and order in the society. 6.To deter the offenders from committing any criminal act in the future.<!–[if !supportFootnotes]–>[15]<!–[endif]–>

Each society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to mention in relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show that one or other of the proposed justifications of punishments either logically include or logically excluded by definition.’ Punishment has the followingfeatures:
# It involves the deprivation of certain normally recognized rights, or other measures considered unpleasant.

# It is consequence of an offence

#It is applied against the author of the offence

# It s applied by an organ of the system that made the act an offence<!–[if !supportFootnotes]–>[16]<!–[endif]–>

The kinds of punishment given are surely influenced by the kind of society one lives in. Though during ancient period of history punishment was more severe as fear was taken as the prime instrument in preventing crime. But with change in time and development of human mind the punishment theories have become more tolerant to these criminals. Debunking the stringent theories of punishment the modern society is seen in loosening its hold on the criminals. The present scenario also witnesses the opposition of capital punishment as inhumane, though it was a major form of punishing the criminals earlier. But it may also be observed till recently the TALIBANS used quite a harsh method for suppression. The law says that it does not really punish the individual but punishes the guilty mind. As punishment generally is provided in Criminal Law it becomes imperative on our part to know what crime or an offence really is. Here the researcher would like to quote Salmond’s definition of crime: Crime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual. He further substantiates his point of view through the following illustration  a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a mater of mere compensation between the murderer and the victim’s family.<!–[if !supportFootnotes]–>[17]<!–[endif]–>

Thus it becomes very important on behalf of the society to punish the offenders. Punishment can be used as a method of educing the incidence of criminal behavior either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens. Theories of punishment, contain generally policies regarding theories of punishment namely: Deterrent, Retributive, Preventive and Reformative.

Theories of Punishment:

With change in the social structure the society has witnessed various punishment theories and the radical changes that they have undergone from the traditional to the modern level and the crucial problems relating to them. Kenny wrote: “it cannot be said that the theories of criminal punishment current amongst our judges and legislators have assumed….”either a coherent or even a stable form. B.Malinowski believes all the legally effective institutions….are….means of cutting short an illegal or intolerable state of affairs, of restoring the equilibrium in the social life and of giving the vent to he feelings of oppression and injustice felt by the individuals.

The general view that the researcher finds is that the researcher gathers is that the theories of punishment being so vague are difficult to discuss as such. In the words of Sir John Salmond, “The ends of criminal justice are four in number, and in respect to the purposes served by the them punishment can be divided as:

Deterrent Theory: One of the primitive methods of punishments believes in the fact that if severe punishments were inflicted on the offender would deter him form repeating that crime. Those who commit a crime, it is assumed, derive a mental satisfaction or a feeling of enjoyment in the act. To neutralize this inclination of the mind, punishment inflicts equal quantum of suffering on the offender so that it is no longer attractive for him to carry out such committal of crimes. Pleasure and pain are two physical feelings or sensation that nature has provided to mankind, to enable him to do certain things or to desist from certain things, or to undo wrong things previously done by him. It is like providing both a powerful engine and an equally powerful brake in the automobile. Impelled by taste and good appetite, which are feelings of pleasure a man over-eats. Gluttony and surfeit make him obese and he starts suffering disease. This causes pain. He consults a doctor and thereafter starts dieting . Thus the person before eating in the same way would think twice and may not at all take that food. In social life punishment introduces the element of ‘pain’ to correct the excess action of a person carried out by the impulse (pleasure) of his mind. We all like very much to seize opportunities, but abhor when we face threats. But in reality pain, threat or challenges actually strengthens and purifies a man and so an organization

J. Bentham, as the founder of this theory, states: “General prevention ought to be the chief end of punishment as its real justification. If we could consider an offence, which has beeen, committed as an isolated fact, the like of which would never recur, punishment would be useless. It would only be only adding one evil to another. But when we consider that an unpunished crime leaves the path of crime open, not only to the same delinquent but also to all those who may have the same motives and opportunities for entering upon it, we perceive that punishment inflicted on the individual becomes a source of security for all. That punishment which considered in itself appeared base and repugnant to all generous sentiments is elevated to the first rank of benefits when it is regarded not as an act of wrath or vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety.” Bentham’s theory was based on a hedonistic conception of man and that man as such would be deterred from crime if punishment were applied swiftly, certainly, and severely. But being aware that punishment is an evil, he says, If the evil of punishment exceeds the evil of the offence, the punishment will be unprofitable; he will have purchased exemption from one evil at the expense of another.<!–[if !supportFootnotes]–>[18]<!–[endif]–> The basic idea of deterrence is to deter both offenders and others from committing a similar offence. But also in Bentham’s theory was the idea that punishment would also provide an opportunity for reform. “While a person goes on seeking pleasure, he also takes steps to avoid pain. This is a new system of political philosophy and ethics developed by Jerome Bentham and John Stuart Mill in the 19th century called Utilitarianism. It postulates human efforts towards “maximization of pleasure and maximum minimization of pain” as the goal. “The main ethical imperative of utilitarianism is: the greatest good for the largest number of people; or the greatest number of goods for the greatest number of people” The fear of consequent punishment at the hands of law should act as a check from committing crimes by people. The law violator not merely gets punishment, but he has to undergo an obnoxious process like arrest, production before a magistrate, trial in a criminal court etc. that bring about a social stigma to him as the accused. All these infuse a sense fear and pain and one thinks twice before venturing to commit a crime, unless he is a hardcore criminal, or one who has developed a habit for committing crimes. Deterrent theory believes in giving exemplary punishment through adequate penalty.”<!–[if !supportFootnotes]–>[19]<!–[endif]–>

In earlier days a criminal act was considered to be due to the influence of some evil spirit on the offender for which he was unwillingly was made to do that wrong. Thus to correct that offender the society retorted to severe deterrent policies and forms of the government as this wrongful act was take as an challenge to the God and the religion.

But in spite of all these efforts there are some lacunae in this theory. This theory is unable to deter the activity of the hardcore criminals as the pain inflicted or even the penalties are ineffective. The most mockery of this theory can be seen when the criminals return to the prisons soon after their release, that is precisely because as this theory is based on certain restrictions, these criminals are not effected at all by these restrictions rather they tend to enjoy these restrictions more than they enjoy their freedom.

Retributive Theory: An eye for an eye would turn the whole world blind-Gandhi ji
The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This theory underlines the idea of vengeance and revenge rather than that of social welfare and security. Punishment of the offender provides some kind solace to the victim or to the family members of the victim of the crime, who has suffered out of the action of the offender and prevents reprisals from them to the offender or his family. The only reason for keeping the offender in prison under unpleasant circumstances would be the vengeful pleasure of sufferer and his family. J.M.Finnis argues in favour of retributism by mentioning it as a balance of fairness in the distribution of advantages and disadvantages by restraining his will. Retributivists believe that considerations under social protection may serve a minimal purpose of the punishment. Traditional retributism relied on punishing the intrinsic value of the offence and thus resort to very harsh methods. This theory is based on the same principle as the deterrent theory, the Utilitarian theory. To look into more precisely both these theories involve the exercise of control over the emotional instinctual forces that condition such actions. This includes our sense of hatred towards the criminals and a reliance on him as a butt of aggressive outbursts.

Sir Walter Moberly states that the punishment is deemed to give the men their dues. “Punishment serves to express and to and to satisfy the righteous indignation which a healthy community treats as transgression. As such it is an end in itself.”<!–[if !supportFootnotes]–>[20]<!–[endif]–>

“The utilitarian theories are forward looking; they are concerned with the consequences of punishment rather than the wrong done, which, being in the past, cannot be altered. A retributive theory, on the other hand, sees the primary justification in the fact that an offence has been committed which deserves the punishment of the offender.” However ‘natural’ retribution might seem, it can also be seen as Bentham saw it, that is as adding one evil to another, base and repugnant, or as an act of wrath or vengeance. Therefore as we consider divine punishment we must bear in mind, as Rowell says,
The doctrine of hell was framed in terms of a retributive theory of punishment, the wicked receiving their just deserts, with no thought of the possible reformation of the offender. In so far as there was a deterrent element, it related to the sanction hell provided for ensuring moral conduct during a man’s earthly life.<!–[if !supportFootnotes]–>[21]<!–[endif]–>

Preventive Theory: Unlike the former theories, this theory aims to prevent the crime rather then avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements.<!–[if !supportFootnotes]–>[22]<!–[endif]–>

Fitchte in order to explain this in greater details puts forward an illustration, An owner of the land puts an notice that ‘trespassers’ would be prosecuted. He does not want an actual trespasser and to have the trouble and expense of setting the law in motion against him. He hopes that the threat would render any such action unnecessary; his aim is not to punish trespass but to prevent it. But if trespass still takes place he undertakes prosecution. Thus the instrument which he devised originally consist of a general warning and not any particular convictions. Thus it must be quite clear now by the illustration that the law aims at providing general threats but not convictions at the beginning itself. Even utilitarian such as Bentham have also supported this theory as it has been able to discourage the criminals from doing a wrong and that also without performing any severity on the criminals. The present day prisons are fallout of this theory. The preventive theory can be explained in the context of imprisonment as separating the criminals from the society and thus preventing any further crime by that offender and also by putting certain restrictions on the criminal it would prevent the criminal from committing any offence in the future. Supporters of this theory may also take Capital Punishment to be a part of this theory. A serious and diligent rehabilitation program would succeed in turning a high percentage of criminals away from a life of crime. There are, however, many reasons why rehabilitation programs are not commonly in effect in our prisons. Most politicians and a high proportion of the public do not believe in rehabilitation as a desirable goal. The idea of rehabilitation is considered mollycoddling. What they want is retribution, revenge, punishment and suffering.<!–[if !supportFootnotes]–>[23]<!–[endif]–>

Thus one an easily say that preventive theory though aiming at preventing the crime to happen in the future but it still has some aspects which are questioned by the penologists as it contains in its techniques which are quite harsh in nature. The major problem with these type of theories is that they make the criminal more violent rather than changing him to a better individual. The last theory of punishment being the most humane of all looks into this aspect.

Reformative Theory: But that is the beginning of a new story–the story of the gradual Renewal of a man, the story of his gradual regeneration, of his Passing from one world into another, of his initiation into a new Unknown life. It emphasizes on the renewal of the criminal and the beginning of a new life for him.The most recent and the most humane of all theories is based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crimes. Though it may be true that there has been a greater onset of crimes today than it was earlier, but it may also be argued that many of the criminals are also getting reformed and leading a law-abiding life all-together. Reformative techniques are much close to the deterrent techniques.<!–[if !supportFootnotes]–>[24]<!–[endif]–> Reform in the deterrent sense implied that through being punished the offender recognized his guilt and wished to change. The formal and impressive condemnation by society involved in punishment was thought to be an important means of bring about that recognition. Similarly, others may be brought to awareness that crime is wrong through another’s punishment and, as it were, ‘reform’ before they actually commit a crime. But, although this is indeed one aspect of rehabilitation, as a theory rehabilitation is more usually associated with treatment of the offender. A few think that all offenders are ‘ill’ and need to be ‘cured’ but the majority of criminologists see punishment as a means of educating the offender. This has been the ideal and therefore the most popular theory in recent years. However, there is reason to believe this theory is in decline and Lord Windlesham has noted that if public opinion affects penal policy, as he thinks it does, then there will be more interest shown in retribution in the future.<!–[if !supportFootnotes]–>[25]<!–[endif]–> This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community. The reformation generally takes place either through probation or parole as measures for reforming criminals. It looks at the seclusion of the criminals from the society as an attempt to reform them and to prevent the person from social ostracism. Though this theory works stupendously for the correction of juveniles and first time criminals, but in the case of hardened criminals this theory may not work with the effectiveness. In these cases come the importance of the deterrence theories and the retributive theories. Thus each of these four theories have their own pros and cons and each being important in it, none can be ignored as such.

CONCLUSION

It is the application by the state of the sanction of force to the rule of right. The definition of Salmond has been questioned by many on the ground that it is not the force of the state alone which obtains the observance ground that it is not the force of the state alone which obtains the observance of law, for there are other factors as well, such as social sanction, habit, custom and convenience, which assist in the observance of law, yet it has not lacked its support. For it has been stated that even if a society ‘in which the power of the state is never called into actual exercise marks, not the disappearance of governmental control, but the final triumph and supremacy of it”.

As Kant argues in a famous passage: “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else… He must first of all be found to be deserving of punishment before any consideration is given of the utility of this punishment for himself or his fellow citizens.”

“Kant argues that retribution is not just a necessary condition for punishment but also a sufficient one. Punishment is an end in itself. Retribution could also be said to be the ‘natural’ justification“.

BIBLIOGRAPHY

Tripathi Mani, B.N., Jurisprudence: Legal Theory, Allahabad Law Agency, Delhi, 2006.

Dwivedi, S.P., Jurisprudence and Legal Theory, Central Law Publications, Lucknow, 2003.

Aggrawal, Nomita, Jurisprudence: Legal Theory, Central Law Publications, Allahabad, 2005.

Kumar, N.Krishna, Jurisprudence and Comparative Law, Central Law Publications, Allahabad, 2007.

Salmond, John, Jurisprudence, Sweet and Maxwell, London, 1966.

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www.legalserviceindia.com.

www.manupatra.com.

 

 

 

 

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