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Punishment and law

Law and punishment are very different concepts and should not be unduly amalgamated. The function of law is the codification of norms, definition of rights and obligations, creation of mechanisms for monitoring and enforcement. Law must be both preventive and curative. It should be proactive and not merely reactive.

Punishment is always ex post facto and therefore an unsatisfactory ‘Plan B’, after Plan A has failed. It is far more important for law to lay down safeguards so as to avert the breach of law and irreparable harm. It is perhaps bizarre that recently many human rights activists, non-governmental organizations and the bulk of the media have embraced punishment as a kind of favourite Kalashnikov. The Zeitgeist has embraced an over-simplification – punishment as the principal legal tool, as a weapon of fear and deterrence. In their binary world of good and evil, the latter must be suppressed through ‘lawfare’ and what seems more apparent than ever – the instrumentalization of the International Criminal Court to target some, but not all criminals.

The letter and spirit of the law requires, however, that law be much more than meeting out penalties and sanctions against those who do not observe the established administrative, civil and criminal regimes, which are man-made and, in many situations, constitute very imperfect or even deliberately unjust regimes that perpetuate imbalances and protect privilege. Natural law and common sense require that codified law be modified so as to take the evolution of society into account and ensure that Justice prevails.

There is a peculiar fetishism about the concept of punishment as an essential part of Justice. However, this simplistic concept has always been flawed, because multiple factors other than culpalead to a breach of the law. The ‘lex talionis’ (an eye for an eye) has no place in enlightened societies. Indeed, punishment can be considered a legitimate tool only if it has a deterrent effect, and if it educates society how to better live together.

There is deterrence when one knows that illegally parking and exceeding the speed limits are risky activities, and if the perpetrator is caught then traffic tickets or fines eloquently drive the point. Yet, when punishment becomes mere revenge, the result may well be counter-productive and engender greater injustice and instability. What is important is to break the vicious circle of violence and repression.

Experience shows that punishment has all too often been applied selectively and has been used as a weapon of domination. Neither law nor Justice are mathematical sciences. Both are anthropocentric and must serve humanity by facilitating moral and material rehabilitation of the criminal and reconciliation with society. Of course, victims of injustice, victims of violence, victims of human rights violations have a right to recognition, respect and reparation. Such can be achieved through truth commissions and peoples’ tribunals and does not always require putting the perpetrators behind bars.

Excerpted: ‘Reflections on Law and Punishment’.

Alfred De Zayas, "Punishment and law," The News. 2022-03-12.
Keywords: Social sciences , Social issues , Human rights , Criminal court , Violence , Humanity , Injustice