Prosecuting International Crimes in Africa - PULP - University of ...

122 Chapter 5
There are two main theories of punishment developed over time,
namely, utilitarianism and retributivism (or just desserts). 15 These theories
are largely used as a means of justifying sentencing or the punishment of
offenders. It has been argued by some commentators that these theories of
punishment do not explain fully the reasoning behind punishment but
rather are mere aspects of punishment. 16 They argue that deterrence and
retribution may be aims of possible justifications for punishment and that
specifying the end(s) is merely one aspect of a theory. 17 Public attitudes on
sentencing have also shown that people support multiple sentencing goals.
Thus, expressions of retribution co-exist with support for rehabilitation as
well as other sentencing options. 18 To that extent, as rightly pointed out by
Chirwa, ‘choosing penal objectives and allocating their relative weight are
therefore critical in any criminal justice system’. 19 People are generally not
wedded to a particular philosophy of punishment; they just want
something done which changes offenders’ behaviour. 20 That
notwithstanding, theories and philosophical underpinnings of punishment
have been crafted to assist in understanding the role of punishment – and
by necessary implication – the end means of punishment in society.
Of all the theories of punishment, retributive theory is perhaps the
most famous and probably the oldest justification for punishment.
Essentially the retribution school of thought is to the effect that
punishment should be based on just desserts, in other words, that offenders
ought to be punished or sentenced not for any other reason but for breaking
the law. 21
Retributivism adopts a backward-looking perspective focusing on the
moral duty to punish past wrongdoing. 22 The proponents of this theory are
of the view that ‘lex talions’ is right and a killer must be killed, an eye for an
eye. 23 As a result, retentionists of the death penalty, for example, argue
that someone who has intentionally killed another person should be
subjected to the death penalty. This theory has been criticised as not taking
into account factors otherwise relevant, such as error of judgment or
resource constraints. 24 In essence – the argument goes – this theory does
not offer any guidance as to the more general issues of implementation in
a system bound by resource constraints, imperfect information and other
15
16
Bagaric (n 13 above) 102.
K Huigens ‘On commonplace punishment theory’ (2005) University of Chicago Legal
17
18
19
Forum 437.
As above.
R Matthews ‘The myth of punitiveness’ (2005) Theoretical criminology 191.
DM Chirwa ‘The implications of the emerging jurisprudence in international criminal
law for penal regimes in post-independent Africa’ (2004) 17 South African Journal of
20
Criminal Justice 193, 195.
R Morgan ‘Privileging public attitudes to sentencing’ in J Roberts & M Hough (eds)
21
22
23
24
Changing public attitudes to punishment 215-28, quoted in R Matthews (n 18 above) 1.
As above.
MT Cahill ‘Retributive justice in the real world’ (2007) 85 Washington Law Review 818.
As above.
Cahill (n 22 above).