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Even the very threat of legal punishment requires a justification because “it is itself the infliction of a special form of suffering – often very acute – on those whose desires are frustrated by the fear of punishment” (Hart, 1963, p. Next to a justification of the general practice of punishment, we need to have consistent ideas on whom to punish, and how to punish (Hart, 1968).[iii] So when we do have a moral justification for the practice in general, what exactly do we wish to achieve when meting out punishment in concrete cases?These are the issues that are dealt with by the philosophy and theory of punishment.[iv] The distinction between the general justification of the practice of punishment and the specific aims of punishment in concrete cases is essential for a good understanding of the different philosophical and theoretical approaches (Jörg & Kelk, 1994).Crime exerts external influences on our lives over which we feel we have little or no control (Steenstra, 1994).
Although the different approaches are often mutually exclusive, there have been attempts to compromise.This chapter discusses the various ways that the State’s reaction to offending can be legitimised as well as the subsequent goals that could guide this reaction.A number of theoretical and philosophical approaches exist that consider legitimacy and goals of punishment in depth.Although we do not expect judges and other officials involved in everyday practice to justify all their decisions in these terms, philosophical theories of punishment provide rationalisations for the practice of punishment in most discussions on the subject.Besides this, we expect normative accounts of punishment to form the basis of a systematic and consistent sanctioning practice.But what is to be considered as suitable and just punishment?Although the institution of legal punishment is self-evident and a fact of life in the eyes of most people, the answer to such a fundamental question is not so evident and consequently, the practice of punishment needs a moral justification that addresses such questions.One way of guarding the rules that keep society together and providing us with (a sense of) security, is through the institution of legal punishment: a means by which suitable and just reactions are meted out to those who infringe the rules.The institution of legal punishment has become such a self-evident and intrinsic part of our lives that we even demand a justification for its absence in cases where we expect it (Tunick, 1992). In principle, however, most people would agree on a description of punishment that incorporates the following seven features formulated by Walker (1991, pp. It involves the infliction of something that is assumed to be unwelcome or unpleasant for the recipient. The infliction is intentional and done for a reason. Those who order it are regarded as having a right to do so. The occasion of the infliction is an action or omission which infringes a law, rule or custom. The person punished has played a voluntary part in the infringement. The punisher’s reason for punishing is such as to offer a justification for doing so. It is the belief or intention of the person who orders the infliction, and not the belief or intention of the person undergoing it, that settles the question whether it is punishment.In practice, elements of different philosophies may be implicit and combined both at the level of purposes of sentencing (general justification) and at the purposes at sentencing (aims).The exact form of such combinations may be determined by eclectic considerations depending on specific characteristics of the offence, the offender, and the sentencing judge.