How can you punish me?

We often come across the word 'Punishment' in our day-to-day life, as part of the legal profession or being law students, we encounter this word at a high frequency on any given day. There is no doubt about the existence or practice of something called punishment, this article delves into the theory and principle which establishes authority to administer 'punishment'. Thus, it focuses on understanding the origins of the authority of the state to prescribe, adjudicate, and enforce punishment within the boundaries of the criminal law of the state.

What is Punishment?

Punishment is "A sanction- such as a fine, penalty, confinement or loss of property, right, or privilege - assessed against a person who has violated the law (Black, 2016)." In other words, punishment can be defined as the consequence of a crime committed.

Then, what is Crime? "Crime is an intentional Act of commission or an omission of a legal duty voluntarily committed, violating criminal law which is sanctioned by the state further results in harmful consequences on the society at large (Ahuja,2023)." In simpler terms, 'Crime' is a violation of legal policy or criminal law of the state. This legal policy is enacted by the state and amended from time to time to keep it relevant to the existing conditions of society. Referring to the concept of 'State' in political science, A State is a sovereign entity to which all citizens depend to protect their life and liberty (Gauba, 2019, chapter 6). The state is entrusted with the responsibility to protect its citizens from external invasion and internal disruptions; to meet this need for internal order, the law is the tool equipped by the state. The Law thus becomes the means of controlling the social behavior of citizens (Timasheff, 1939, chapter 1). There are various arguments laid by political philosophers on how the state has been vested with sovereignty; social contract theorists believe in a fictional contract through which people have submitted to the authority of the state with consent; utilitarian theorists believe that for the greatest good for greatest number state has the authority to regulate human behavior; divine origin theorists believe that monarch was vested with this authority by a supernatural entity, etc.

Sovereign authority thus, being vested in the State makes it competent to enact laws, for enforcement of which it has monopoly to use force (Gauba, 2019, chapter 7). Without legitimate access to force in implementing enacted laws, the state would be nothing more than a mere association of people. Now to address the question of how does the state enact laws? Montesquieu's theory of separation of powers would provide a clear platform for understanding state machinery. He argues division of power between three wings i.e., legislature, judiciary, and executive, each entrusted with different duties as well as checks to prevent the over-powering of any single wing.

The legislature is the wing of government that must duly enact required laws, rules, and regulations to support the smooth functioning of society. There are three major arguments on how law is made. Natural law philosophers propose that law exists in nature as "laws of nature"; Positive law philosophers propose that all law is man-made, generally will and command of the sovereign; and the sociological school believes that law is not created by the state instead, the state only recognizes existing customs, norms and elevates them to the status of Law ( Gauba, 2019, chapter 12).

Law does not emanate from any single source, it is absorbed from various sources like customs, religion, scientific commentaries, precedents, and from legislations. Bearing all the circumstances and conditions in consideration, the state enacts such laws to regulate and maintain order in society. Criminal law is no exemption to the criteria, it has been amended from time to time with requirements through experiences gained from various questions that arise while implementing in practice. As the use of force mentioned concerning the State's sovereign authority, criminal law or any other law is backed with the use of force to command obedience. Citizens of the state obey laws enacted either with their moral conscience or by the fear of punishment (Ahuja, 2023). Disobedience or deviation from the law is met with punishment. In the context of criminal law such deviations from the established law are termed crimes or criminal acts as referred to in para supra.

The Judiciary is entrusted with the duty of deciding whether the act in question is 'valid' or 'invalid' with reference to the law in force. When the criminal trial results in invalidating the act that was in question will attract a "sentence" that would conform with the prescribed punishment for such a violation, as it is prohibited by the state due to its harmful effects on the society at large, there are broadly four main theories on deciding what an appropriate punishment would be, they are; Retributive theory is also known as vengeance theory, it proposes a tit-for-tat kind of punishment; deterrent theory proposes to prevent the wrong-doer from redoing it as well as set him as an example for the rest; preventive theory proposes to keep criminals out of society to prevent crime; and Reformative theory proposes to take up reformation of wrong-doer as the main aim. Though each of them has their shortcomings they have been in practice be it individually or in combination (Gaur, 2019, chapter 7).

On a sentence being awarded by the judiciary, the executive carries out further processes of administering the punishment. For this purpose, the executive has institutions in place such as prisons, observation homes, juvenile justice boards, and others. The same executive has the duty to enforce the law enacted and to bring out any violations or deviations to the notice of the judiciary to adjudicate, institutions like the police are the ones assigned with this duty.

Thus, how can I be punished, that is to question the authority which enables to enforce punishment through the "Sovereign authority of the State" as it supplies the authority needed to enact Laws on behalf of its citizens for the sake of the protection of their life and liberty within the state. This authorizes the monopoly on the use of force by the state. This authorizes the judiciary to inquire into the validity of an act when questioned. This authorizes my detention in prisons in conformity with the law.

Referrences

Black, H.C. (2016). Black's Law Dictionary. Claitor's Pub Division.

Gauba. (2019). An introduction to political theory. Macmillan.

Ram, Ahuja. (2023). Criminology. Rawat.

Timasheff, N. S. (1939). An Introduction to the Sociology of Law.