Societies’ Reaction to Crime
Societies react in different manner to crime in their culture. These reactions which indicate
the moral and value system of the given society at the given time, may be divided into three
broad categories. A punitive perspective to crime considers the criminal as basically
dangerous. Here, primary system objective becomes protection of the society through
infliction of pain and punishment on the offender. A therapeutic perception to crime and
criminality considers the criminal as not an essentially bad person, but a helpless product of
his society who requires treatment and help. A preventive approach, unlike the previous two
which focus on the offender, focuses on conditions causative of crime and seeks their
elimination. However, these approaches to crime and criminality do not exist in hermetically
sealed categorisations. They intersect and coincide.5
Functions of the Criminal Justice System
The foundation of the state is based on social contract, and encapsulates the idea that
individuals and nation-states implicitly consent to reciprocally obligatory conditions and
commitments. The social contract is in essence the underpinning of civil society, providing
endorsement for organization of individuals as a structure of command.6 The social contract
theory is predicated on the concept that society and the State are formed by individuals
yielding up of their autonomy, and government is produced from authority of the governed.7
The social contract theory has attained a remarkable degree of antiquity and is acknowledged
in both sacred and secular history as providing both a theoretical and practical foundation for
organization of societies and civilisations. In antiquity, secular history records existence of
social contracts as providing the accepted and respected framework for the existence and
discharge of mutual obligations between people and their societies. In Plato’s dialogue, Crito,
Socrates uses the concept of social contract to justify his decision to remain in incarceration
in order that the sentence of death imposed on him should be executed, instead of escaping
from jail as urged by Crito.8 John Locke also articulates a social contract theory in which
each man gives over the power to punish transgressors to the government.9
Historically, as early civilizations grew, society was endangered by an undeveloped criminal
justice system for retribution of wrongs, feuds and vendettas. In these societies with rudimentary
or undeveloped criminal justice systems, if a person was hurt, the injured person or his relative
was permitted to exact revenge on the person who caused the injury. The retribution occasionally
exceeded the offence. Under the Code of Hammurabi, retribution was required to be
proportionate to the crime, provided the victim and offender were social equals.10 As a substitute
for vengeance, Roman law advanced in the direction of monetary compensation, and fixed
penalties were set for various injuries in cases of assault.11 Thus, from the perspective of
development of law and infliction of punishment on offenders, creation of an institution charged
with the responsibility of exacting retribution and vengeance on malefactors as the only societally
permissible punishment was critical. That institution is the State, and that function, was one of its
most basic, and till date, one of its most critical. From the perspective of the social contract
theory, the primary reason for existence of the State is maintenance of peace, order, law and good
government. Flowing from this, authority and power to inflict punishment upon offenders is an
aspect of the power of the State. In order to exercise the power of detecting offenders and
investigating offences, adjudging offenders, imposing and implementing prescribed punishments
upon them, existence of a functional and rational criminal justice system is indicated. Therefore,
the functions of every criminal justice system should include the preservation of life, protection of
individual property, maintenance of public peace and tranquillity, and sanctioning of crimes,
criminals and violations of law.12
Theories of Criminal Punishment
Utilitarian Theory
The Utilitarian effect of punishment extends to the punishment having a deterrent effect. In this
regard, imposition of punishment and its painful effect on the offender deters the offender from
continuing with a life of crime. Not only is the actual offender deterred. Other prospective
offenders, upon considering the certainty and pain of applicable punishment for similar crimes,
are deterred from entering or continuing with a career of crime. Deterrence as a principle of
penology has an ancient pedigree. The Hebrew Holy Book states that punishments serve to
remove dangerous elements from society to deter potential criminals from violating the law
"……. And the rest shall hear and be daunted, and they shall no longer commit anything like
this evil deed in your midst".15 In reality, the fact of recidivism creates doubt on efficacy of
deterrence as an effective basis for punishment of criminal behaviour. Despite extreme severity of
applicable punishments, crimes punishable by death or life imprisonment still get committed.
Crimes offering a high return on investment such as drug and substance trafficking are still
committed on the basis that the returns of the successful criminal enterprise justify the risks.
Crimes of passion, which are committed without pre-planning or which are predicated on a spur
of the moment action or reaction, cannot be restrained by a deterrent punishment. Crimes which
are technical in nature, and which most times are based on the individual’s lack of knowledge of
appropriate model of conduct rather than a deliberate decision to breach applicable models of
behaviour are not restrainable by a deterrent model of punishment. Thus, deterrent theory of
punishments is of little or no effect in preventing commission of crimes.
Utilitarian theory of punishment finds further expression in the reformative model which focuses
on the offender and not his offence and seeks to deal with the root cause of criminality by
retraining and reforming the offender. The practical dynamics of this model is disclosed in the
borstal and juvenile homes set up for training young offenders, rehabilitation centres for drug and
substance addicts, prison schooling, and psychological and anger management therapy. The
major shortcoming of this theory is that it shifts responsibility for the actions of the offender from
the offender to the society. Real life experience discloses that a good number of criminals make a
deliberate choice about a life of crime; their decisions are driven by a cost benefit analysis. The
obverse way of looking at it is that other members of the society exposed to exactly the same
factors as they, do no revert to a career of crime. Besides, crimes of passion do not fit into the
reformative model since their occurrence is spontaneous
The preventive theory, which entails denying a convicted criminal opportunity of continuing a
career of crime fits into the utilitarian view of punishment because it provides the greatest
happiness for the greatest number of people in the society. In this regard, the death penalty,
though proceeding from a retributive basis also has utilitarian effect because the murderer is
permanently denied the opportunity of committing another homicide. Jail terms and revocation of
drivers’ licences are also predicated on the same theory. In recent times, on the issue of castration
of sex-based offenders, the preventive model of punishment has been vigorously interrogated.
Sex offenses, more than other offences result in moral outrage. This is more so when the victim is
a minor. In the US criminal justice system, currently several states permit convicted sex offenders
to be injected with a drug meant to quell the sex drive of male sex offenders by lowering their
testosterone levels. The effect of this drug is referred to as chemical castration. States continue to
experiment with various types of surgical and chemical castration for sex offenders.16 Proponents
of castration argue that it is justified and appropriate; that its use to control sex offenders'
irresistible urges to rape or molest allows them to be released without endangering the public.
Opponents argue that side effects of chemical castration (e.g., life threatening blood clots and
serious allergic reactions) are reason for avoiding it.17 A serious defect of the preventive
justification of punishment is that it has occasionally provided basis for serious injustice. In the
face of an imperfect criminal justice system, police misconduct, prosecutorial overzealousness or
defence counsel incompetence, acting either singly or in combination occasionally result in
innocent persons being either incarcerated or executed. Furthermore, incarceration centres, while
removing the criminal from society and thus
15 Deuteronomy 19:18-20 (KJV).
16<https://www.findlaw.com/criminal/criminal-charges/chemical-and-surgical-castration.html> Accessed on
March 14, 2021 [Critics, including American Civil Liberties Union (ACLU), charge that chemical castration
violates sex offenders' constitutional rights.]
17 Sandra Norman, ‘Castration of Sex Offenders’, <http://www.cga.ct.gov/olr> Accessed on March 14,
2021
preventing him from committing further crimes, also provide a training school for more
efficient commission of crimes. A high rate of recidivism is proof that the expected efficacy
of jailhouses in ameliorating criminal behaviour is not realised.
Retributive Theory
The legal principle of lex talionis developed in early Babylonian law. It was also present in
both biblical and early Roman law, and required that criminals should receive as punishment
precisely those injuries and damages they had inflicted upon their victims.18 The Code of
Hammurabi19 prescribed that20
(196) If a man put out the eye of another man, his eye shall be put out.
(197) If he break another man’s bone, his bone shall be broken.
(200) If a man knock out the teeth of his equal, his teeth shall be knocked out.
The Old Testament of the Holy Bible contains similar prescriptions.
22 If men strive, and hurt a woman with child, so that her fruit depart from
her, and yet no mischief follow: he shall be surely punished, according as
the woman's husband will lay upon him; and he shall pay as the judges
determine. 23 And if any mischief follow, then thou shalt give life for life, 24
Eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burning for
burning, wound for wound, stripe for stripe.21
19 And if a man cause a blemish in his neighbour; as he hath done, so shall
it be done to him; 20 Breach for breach, eye for eye, tooth for tooth: as he
hath caused a blemish in a man, so shall it be done to him again.22
And thine eye shall not pity; but life shall go for life, eye for eye, tooth for
tooth, hand for hand, foot for foot.23
The Jewish sages in attempt to mitigate the rigour of strict application of the ‘an eye for an eye’
rule, reasoned that two different persons would not suffer exactly the same injury. They therefore
interpreted the law to require that the injured party could not demand an eye from the person who
caused the loss of his eye but could demand the value of his eye. Effectively, this led abolition of
lex talionis in the jurisprudence of the Talmud.24 The Talmud, using the argument that since the
Torah requires that penalties be universally applicable, and such an interpretation of an eye for an
eye would be inapplicable to blind or eyeless offenders, repudiated physical retaliation in kind.25
Thus, the Rabbis made lex talionis less harsh by their interpretation of ‘an eye for an eye’ to mean
reasonable pecuniary compensation.26 Thus, lex
18 <https://www.britannica.com/topic/talion> Accessed on March 10, 2021
19 <https://en.wikipedia.org/wiki/Hammurabi> Accessed on March 14, 2021, [Hammurabi (c. 1810 – c.
1750 BC) was the sixth king of the First Babylonian dynasty reigning from c. 1792 BC to c. 1750 BC
(according to the Middle Chronology). The Code of Hammurabi is not the earliest surviving law code. It is
predated by the Code of Ur-Nammu, the Laws of Eshnunna, and the Code of Lipit-Ishtar. Earlier Sumerian
law codes focused on compensating crime victims. The Code of Hammurabi instead focused on punishing the
perpetrator. The code is very specific, with each offense receiving a specified punishment. Many offenses
resulted in death, disfigurement, or the use of the ‘eye for eye, tooth for tooth’ philosophy.]
20 <https://empoweryourknowledgeandhappytrivia.wordpress.com/2017/10/12/282-laws-of-the-code-
of-hammurabi/> Accessed on March 14, 2021
21 Exodus 21: 22-25 (KJV).
22 Leviticus 24: 19-20 (KJV).
23 Deuteronomy 19:21 (KJV.)
24 <https://www.britannica.com/topic/talion> Accessed on March 10, 2021.
25 Bava Kamma, 83b–84a; (Nezikin or Seder Nezikin is the fourth Order of the Mishna. It deals largely with
Jewish criminal and civil law and the Jewish court system.).
26 K Isaac & P J Haas, ‘Biblical Interpretation in Judaism and Christianity’, (Continuum: 2006) 2.
talionis does not always and only refer to literal eye-for-an-eye codes of justice but applies to
the broader class of legal systems that specify penalties for specific crimes, which are thought
to be fitting in their severity.27 Retribution requires criminals to pay for their crimes and
suffer for wrongs they inflicted on other members of the society. It does not look at
reformation of the offender as a primary goal, but proceeds on the basis that a person who has
broken the legal codes of the society is by that singular act entitled to suffer an approximation
of the very injury he caused. In 1949, Lord Denning appearing before the Royal Commission
on ‘Capital Punishment’ expressed the following view:
‘The punishment inflicted for grave crimes should adequately reflect the
revulsion felt by the great majority of citizen for them. It is a mistake to
consider the object of punishment as being deterrent or reformative or
preventive and nothing else … The ultimate justification of any punishment
is not that it is a deterrent, but that it is the emphatic denunciation by the
community of a crime: and from this point of view, there are some murders
which, in the present state of public opinion, demand the most emphatic
denunciation of all namely the death penalty.’28
Compensatory Theory
Paradoxically, the criminal justice system’s sole focus is the offender. The victim is useful
only in assisting to obtain conviction of the offender. Consequently, while the preceding
theories of punishment serve the needs of the society and even that of the offender, they fail
to assuage the victim’s needs. In 1985, the UN General Assembly adopted a declaration on
‘Basic Principles of Justice for victims of Crime and Abuse of Power.’ The Declaration’s
article 9 required governments to review their regulations and laws to consider restitution as a
sentencing option in criminal cases in addition to other criminal sanctions.29 Crime victims’
compensation rests primarily on two grounds. First, a criminal who inflicted injury against
persons or property must compensate them for the loss, and second, a State that failed to
protect a crime victim must pay compensation to him.30 Compensation, as an objective of
punishment finds justification in utilitarianism, so that the primary goal of criminal justice
administration ceases being punishment of the offender or prevention of commission of
further crimes, but rather compensation of the victim. However, this position does not entirely
except the offender from retribution, since the loss of his property used to compensate the
victim is sometimes sufficient retributory penalty to him. The compensatory theory taken
alone, like every other theory of punishment taken alone has severe shortcomings. Since the
motive of criminality is not always economic, promotion of economic loss as sufficient
punishment for the offender results in oversimplification of motives for crime. Furthermore,
the effect of the punishment depends on the economic status of the offender. Persons of
means are less affected by financial loss as punishment than persons with lean resources. In
this regard, persons without financial means or property which could be amerced cannot be
punished. Finally, taking away the entire economic resources of a person as punishment could
leave him with no other means other than resort to crime for subsistence.31
