Absolute vs. Relative Theories of Punishment: A Comparative Analysis
Absolute Theories of Punishment
Absolute theories focus on the penalty itself, rather than its aims. This model of justice, being absolute, does not consider the specific characteristics of each case. It upholds strict justice, hence its name.
Background
Religious Perspective
For example, the Bible mentions “an eye for an eye, tooth for a tooth.” Some interpretations of Islamic law prescribe cutting off a hand in the event of theft.
There is a perceived unity between crime and sin on one hand, and grief and penitence on the other.
Ethical Perspective
Kant established his theory on the categorical imperative: “Man is an end in himself.” This opposes the instrumentalization of man. If imposing a penalty serves another purpose, it instrumentalizes the individual, which Kant argues is unethical.
In this theory, asking “Why the death penalty?” is irrelevant. Kant believed the penalty should be imposed so convicts understand it is just.
Legal Perspective
Hegel argued that committing a crime is a denial of the general will. The penalty negates the offender’s will, allowing the general will to re-emerge through the punishment.
These theories are not entirely negative. If a crime is committed and a penalty imposed, it should be proportionate to the crime. The idea of proportionality is crucial.
The principle of criminal law must be proportionality. A problem with retributivism is that it approaches punishment with a catalog of grief, ignoring the principles and purposes of punishment established by the EC. Proportionality must be achieved through other means.
These theories have flaws. The EC states that the dignity of the person is the primary limit of proportionality.
Relative Theories of Punishment
Penalty: an evil aimed at ending suffering.
Effect of Sentence
- On the community (general prevention) – Feuerbach
- On the offender (special prevention)
Schools of Thought
- Correctional – Dorado Montero, Concepción Arenal
- Italian Criminological Positivism – Lombroso, Ferri, Cubi i Soler
- Eclecticism – v. Liszt (new social protection)
Consequences
The penalty aims for full reintegration.
Criticisms
State terror, lack of respect for dignity, deficits in the concept of re-socialization, and unnecessary maintenance of guarantees under the principle of criminal law.
Crime Prevention and Penalty
- Special Purpose (on the convicted person)
- General prevention (on the community)
Unlike absolute theories, these are based on the case, considering its specific characteristics.
The penalty is harmful to the sufferer, so its imposition cannot be arbitrary. It must aim to achieve ends:
- For the offender
- For the community
This stems from the imperfection of society.
The offense is a warning that someone has committed a crime, someone imperfect. This task is often forgotten when imposing a sentence, and the focus shifts to the future. In absolute theories, punishment cannot exceed the offense.
Purposes of Punishment
- To affect the convicted person. Article 25.2 emphasizes rehabilitation and reintegration.
- To influence the rest of society.
Goals of the Penalty
- Inclusive
- Intimidating
- Threatening
Integrative
The community understands the importance of objects protected by the COP by punishing the perpetrators.
Intimidation
General Preventive threatening. Before the crime, as imposed on the type. Also at the time of execution, such as stoning.