Monistic and Relative Theories of Punishment
Monistic Theories
Several theories have been developed considering only the principle of compensation for damages caused, while others focus on prevention. These are called mixed theories.
1. Retributivist or Absolute Theories
Mainly represented by Kant, Hegel, and Binding, these theories presume that the sentence is justified by itself, with the goal of achieving justice. They waive any other purpose of criminal law, arguing that seeking a different purpose than justice manipulates individuals and uses them to achieve a state-proposed goal. For representatives of this theory, humans are supreme beings managing their destiny and, as such, choose punishment to atone for committing a sin, similar to religious concepts.
a. Kant
Kant’s categorical imperative states that the ideal of achieving justice is only attained through imposing sanctions. Even if a civil society were to dissolve immediately and a criminal were pending execution, the penalty should still be imposed to carry out justice.
b. Hegel
Hegel argued that law establishes duty, and crime negates it. The penalty negates the crime, ultimately reaffirming the rule of law.
c. Binding
Binding’s view is simpler: punishment reaffirms the rule of law and manifests the state’s power over the citizen.
2. Relative Theories
These theories start from the premise that the sole purpose of criminal law is prevention. Like absolute theories, they are monistic because they are based on a single end.
a. Theories of General Prevention
Authors maintaining this view argue that the penalty’s effect remains on all recipients of the standard subject. The threat of sanction inhibits any member of society from committing a crime. The pain usually affects individuals who have not committed a crime.
Positive General Prevention
Proponents argue that punishment serves as a factor of social cohesion and reaffirms the rule of law, manifested in the collective consciousness. Certain values are protected, and when a rule protecting these values is violated, the collective conscience reaffirms their protection. In other words, the standard is reaffirmed through enactment.
Negative General Prevention
This view focuses on the admonition (threat or intimidation). Punishment serves to intimidate and threaten individuals, a mechanism learned early in life.
b. Theories of Special Prevention
These theories maintain that prevention acts on individuals who have committed a crime to prevent them from committing more.
Positive Special Prevention
This aligns with the concept of re-socialization, attempting to rehabilitate the offender so they can live in society in the future. This approach focuses on providing treatment to enable future reintegration.
Negative Special Prevention
This applies to individuals who are not recoverable or re-socializable due to their characteristics, circumstances, or environment. Instead of re-socialization, the goal is incapacitation (removing them from society for a time to prevent them from committing crimes during that period). We must differentiate between permanent incapacitation (e.g., the death penalty, life imprisonment) and temporary incapacitation (e.g., imprisonment for several years). This type of offender, who is considered absolutely guilty, is simply removed from society.
On the other hand, there are other types of criminals, such as terrorists or ideologically motivated criminals, for whom imprisonment reinforces their ideology. These criminals are unlikely to undergo psychological treatment in prison.
It is also necessary to distinguish white-collar criminals who exploit socio-economic opportunities to commit crimes. These offenders are often educated, cultured, and even philanthropists, making traditional imprisonment less effective. They require a different approach, not like a typical delinquent. A proper treatment would involve a public trial and potentially lead to imprisonment. In general, incapacitation is used, which clashes with the Constitution’s mandate prohibiting measures other than rehabilitation. There are legal limits to the execution of penalties; the judge cannot avoid rehabilitation as it would violate the Constitution. Custodial sentences must aim for rehabilitation.
Criticism of Monistic Theories
1. Criticisms of Absolute Theories
These theories take the principle of guilt as a starting point, assuming that guilt results from a bad choice and free will. Critics argue that this is scientifically untestable, undermining the entire theory despite the inability to scientifically prove otherwise.
These theories ignore a fundamental issue: the necessity of punishment. They do not address why the state must necessarily resort to punishment to reward the guilty.
Placing the principle of fault as the cornerstone of criminal law theory creates a somewhat false idea of the offender, presenting humans as inherently evil and pain as a means to punish on one side and reward on the other, based on how the imposition of the sanction rewards damage.
Another criticism is that the concept of retribution gives the legislature too much power. In the interest of retribution, there is a risk of allowing abuses to justify everything, staining the penalty with immorality.
2. Criticisms of Relative Theories
a. Criticisms of Negative General Prevention
It struggles to justify the necessity and effectiveness of the death penalty for prevention. Despite the existence of the death penalty, many crimes are still committed, demonstrating that intimidation does not achieve re-socialization. It represents a disproportionate use of punishment.
The preventive efficacy of punishment is poorly understood, as human behavior is complex. Often, the motivation for committing a criminal act outweighs the fear of punishment. For example, two friends racing might prioritize winning over the fear of a speeding ticket, believing they can simply pay the fine. This means that crime is often reckless, and increased penalties do not have a real effect. Therefore, reducing or increasing imprisonment can sometimes be inconsequential.
b. Criticisms of Positive General Prevention
It offers a technocratic and uncritical description of the social mode without questioning the system’s functioning. It prioritizes the system’s functionality over the effective protection of legal rights, which is a basic function of criminal law. Proponents of these theories impose punishment to ensure the system works, regardless of whether the rules protect legal rights. Their primary goal is to create a sense of security and confidence that the state is in control.
A system seeking to affirm state ideology or the social system will always prioritize preserving the system over citizens’ values, rights, and guarantees.
Focusing solely on positive general prevention strengthens government intervention rather than limiting it. It emphasizes fidelity to the law and confidence in the system, potentially neglecting other important purposes like rehabilitating the offender and achieving justice. It can also become a form of retributivism, as it punishes the simple violation of the rule and opposition to the law.
c. Criticisms of Positive Special Prevention
It is contradictory for a penal system revolving around prison sentences to use imprisonment to achieve rehabilitation. Additionally, in cases of unrepeatable crimes (e.g., parricide, crimes against humanity), re-socialization cannot be justified as it is unnecessary to prevent future crimes (one cannot kill their parents twice). There are also concerns that re-socialization in societies with unjust structures might lead to conformist adherence to the system that imposes the penalty, against which the offender initially rebelled.
Treatment criteria are based on the danger posed by the subject, but the degree of danger can be inaccurate. Re-socialization as the mainstay of treatment often lacks certainty, potentially leading to disproportionate or inaccurate treatment application.
d. Criticisms of Negative Special Prevention
Regarding incapacitation for individuals deemed impossible to re-socialize, there is widespread doctrinal and ethical criticism. This approach clashes with the constitutional prohibition of inhuman and degrading treatment.