About Punishment

[Soulforged]

The criminal law (lexis penalis, i think) has been a heated subject since the appearing of rational society, one position trying to justify it, the others trying to deny that justification, and others that accept it like a "needed evil". The idea of simple and heavenly retribution is long banished in the past, and with rational society it acquired administration and civil order functions. The question has always been: How can the state private the individuals of their inherents freedoms? But i'll amply it even more: How can society justify that privation? Notice that I'm talking about privation of freedom (poenas, punishment in strict sense) and not other means of security. Before i make this post 3 times bigger, let's see your opinions.

[Byzantine Prince]

Ehhh, read Foucault.

if someone brings morality into this discussion I'm going to puke all over the screen. LMAO!

MY personal opinion:
If you take away another citizen's right to something that is considered basic then you should be punished accordingly. If you murder someone, you will be executed. If you steal something then you have to pay it back 1200%. That's the way it should work. For every two negative numbers that are equal there are two positive numbers that mean exactly the same, therefore negative and positive intermix.

[Alexander the Pretty Good]

if someone brings morality into this discussion I'm going to puke all over the screen. LMAO!

I'm sure you've argued this in countless other threads, but I forgot.

Aren't your beliefs "your" morality?

And thus are, by asserting an opinion, bringing morality into this discussion?

Vomit, I say, vomit!

[Redleg]

Punishment in the legal since is for one to serve some type of retribution for one's harm to society.

If you think its a outdated principle - well your entitled to your opinion no matter how incorrect it is.

Society must have a way to insure that those who break the laws are made aware of how much society is dissatified with their behavior. The degree of punishment should have some correlation to the crime that the individual committed.

And yes the state or society can deprive someone of their basic freedoms - especially if the behavior of the individual deprived someone of their basic freedoms or property. The basic moral of an eye for an eye still applies to society. (Just to make BP Puke his guts out.)

[Kagemusha]

Soulforged my friend you are an anarchist.To abolish law is the same thing to abolish society.What i havent ever understood about anarchy is that it will lead to a jungle law not sharing everything but the strongest and most capable would do what they want and others would do what they could.Or could not.

[bmolsson]

Punishment in the legal since is for one to serve some type of retribution for one's harm to society.

I think that is only a part of the equation. Don't forget that it also is to scare other people to break the laws. That is just as important as the punishment of the offender.

[Redleg]

I think that is only a part of the equation. Don't forget that it also is to scare other people to break the laws. That is just as important as the punishment of the offender.

That might be so - but its a side effect of the punishment not a part of the equation in dealing with the person who has committed the crime in my humble opinion.

[sharrukin]

The idea of simple and heavenly retribution is long banished in the past, and with rational society it acquired administration and civil order functions.

No there are still some of us throwbacks around!

The question has always been: How can the state private the individuals of their inherents freedoms?

There are no inherent rights except those which are created by the state. A man, solitaire and alone on a desert isle has no inherent right to life. Nature recognizes no such thing. He has no right to suitable housing, no right to participate in fair elections, etc. Because the state, tribe, city, nation, global society, or whatever you care to call it is what creates human freedoms, or denies them. They are human constructs not found in nature. The Fox will hunt Rabbits, and no amount of legislative bills passed through the Rabbit Congress will convince the Fox of the inherent Rabbit right to life.

But i'll amply it even more: How can society justify that privation? Notice that I'm talking about privation of freedom (poenas, punishment in strict sense) and not other means of security. Before i make this post 3 times bigger, let's see your opinions.

Society justifies the denial of freedoms in varying circumstances based on its own needs. A state must continue to exist or the rights and freedoms under discussion lose all meaning. Therefore the survival of the state is of greater importance than the freedoms of a single individual. "The Constitution is not a suicide pact." This phrase means that the American (or indeed anyone's) Founding Fathers did not intend the Constitution (or fill in the blank) to prevent our self-defense. The rights and freedoms must not be such as to leave the state helpless before its enemies. This does not give the state carte blanche to act in any way it cares to, but it does mean that freedoms are not absolute. The state must be subject to restraints to prevent abuse and so must individual freedoms be so restrained.

[Duke of Gloucester]

The justice and penal system can be justified in a number of ways. Firstly it can express the values of a soceity. We believe in rights to life and property etc. and one of the ways in which we are going to express those rights is by setting punishments to those who threaten them. The punishements and crimes will change as a society's values change.

Secondly the chance of detection and punishment can act as deterrent, which benefits society as whole. You could argue that society members are pooling their rights to self-defence and protection of property and authorizing the sate to act on their behalf.

Thirdly it institutionalises revenge and prevents an initial wrong developing into bloody fueds. If someone steals my television, I might feel justified in stealing his car to get my own back. He might feel this is an over-reaction and burn my house down. I might respond by killing a family member and so on.

Fourthly there may be some redemptive element to the justice system, indended to benefit the person being punished. Generally speaking those who break societies rules are not happy people: they may not contribute to society, but they don't really feel its benefits either. With appropriate rehabilitation they may become happy and useful members of society.

Of course it is always a danger that an oppresive society can subvert the penal system and use it as an instrument of subjugation. In fact, I would go so far as to say that there is an element of this in any society. This does not make the idea of a penal system wrong, it just alerts us all to ensure we keep an eye on how it is implemented and challenge it where we perceive oppression and injustice.

[Soulforged]

Ehhh, read Foucault.

I know the thesis of Foucoult over the discipline on societ, in fact.

if someone brings morality into this discussion I'm going to puke all over the screen. LMAO!

Yes I agree, though i'll not puke.

MY personal opinion:
If you take away another citizen's right to something that is considered basic then you should be punished accordingly. If you murder someone, you will be executed. If you steal something then you have to pay it back 1200%. That's the way it should work. For every two negative numbers that are equal there are two positive numbers that mean exactly the same, therefore negative and positive intermix.

So you believe in the archaic idea of "eye for an eye", not this is definetily out of the question, today the idea of basic rights of the human being are acceptable (right to live, to be free, to honor, to privacy, etc). The ironic is that they are irrebocable, so to enprison a person you must erase his condition of human being, to me it has not justification, the only case will be in those really dangerous, deranged persons that have lost all reason and can cause real problems, to all the other cases a fine according to the case will be enough.

Punishment in the legal since is for one to serve some type of retribution for one's harm to society.

I agree though this says nothing about the privation of freedom (see my short explanation above).

If you think its a outdated principle - well your entitled to your opinion no matter how incorrect it is.

Incorrect, how so? Let's see this.

Society must have a way to insure that those who break the laws are made aware of how much society is dissatified with their behavior. The degree of punishment should have some correlation to the crime that the individual committed.

This is correct. But nothing of this prooves me wrong. Why private a man from his inherent freedom? You might want to know that many jurists have proposed and actual plan of abolishment of privation of freedom, just as a little data. The individual predates the society, the society then blames the individual for the things that probably the same society caused. So the natural rights of the individual predates all possible social order. The case of the fines will be different one, because the money received is a product of the work done for the society, then it's acceptable to ask for a part of it when society was damaged.

And yes the state or society can deprive someone of their basic freedoms - especially if the behavior of the individual deprived someone of their basic freedoms or property. The basic moral of an eye for an eye still applies to society. (Just to make BP Puke his guts out.)

Well i believed that your religious morality will not take an step on ignorance, but this rule is totally archaic, i'll give you the three positions that justificate punishment in doctrine:1- Retribution (the subject has to heal the damage done to society by it's actions, the penalty is the justification in itself, this is the most acceptable position because it treats the person as human as possible) 2- General prevention (this has various reaches, but the principal idea is keeping the irreverent in privation and restitute the confidence of society in law) 3- Special prevention (keep others individuals from taking simialar actions -part of the previous teory- and returning the being to a normal social state, wich means educating him). The last two are totally unacceptable, they treat the human like an instrument and like a "dog" (from the example of Kant in his tale of the "Island" and a quote by Roxin in his book of General Part of the law). So there you've the positions, you were right when you said it was for retribution, but mention the "eye for an eye" is incorrect.

Considering your Anarchist tendancies, Soulforged, I'll make it clear that the following post is going on the assumption that it is within a democratic society where there is a government endowed by the people to carry out judgment, whether it be some kind of judge or some kind of jury:

You still seem to have not undestood anarchism, but let's see, I'm asking this from the phylosophy of rights not from the added position to a given society or reality, try to make this as abstract as possible.

I think that punishment should fit the crime. I also think the concept of prisons needs a serious overhaul. Like i've always been saying, crime should fit into two categories:

The punishment, at least in Germany where i believe that the more rational canons of justice exists in todays world, fits the crime indeed.

Minor: This would be something like shoplifting, or posession of drugs. Punishments for minor crimes would go on the assumption that you are still capable of being a valuable member of society, and that you can be reformed. There would be prison time, and there would be classes geared towards turning you straight. As well as drug treatment for druggies.

So you want to punish the posetion of drugs, you started with the left foot, i believed you were not a moralist, this one goes against your first amendment. The state cannot make assumptions on the person, it only punishes over the basis of actions, so the state cannot tell if you're still valuable, this is a very spreaded misconception, even between politicians that use this an instrument. You're taking the possition of special prevention, many scientists remain in that position, but that makes the previous assumption of the functions of the state and the power it has over the individual, is like hitting your dog with an stick to correct him, as said before the most human teory only considers retribution, not correction. LOL- Druggies- LOL... I never used drugs but again this position is archaic and must be erased from legislatives system right now (this is for another discussion).

Major: Major Crimes, such as Drug Dealing, Rape, Murder, Large-Scale Tax Evasion, and (in an ideal world) government corruption. Punishment for these would go under the assumption that you are not now, nor ever, fit for society. Depending on the crime, the result should be either Life in Prison (possibility of parole for some crimes), or death. In the event that someone is paroled, and commits another Major crime, they ought to be put to death.

ufff...the drugs again, this will be solved if they are legislated as it should be. Oh i see now the state decides your fate, sorry GC but while the society is still rational this will never happen. And you support death penalty, the ritual of the pagans who sacrifice the peer to make the Sun rise again... interesting, you might want to know that this comes from morality. You're totally incorrect on this GC, i hope you correct your possition, society cannot decide over the life of another human being, as i said before for the things that probably the same society created, not to talk about that this will be vengeance and not proper retribution.

Soulforged my friend you are an anarchist.To abolish law is the same thing to abolish society.What i havent ever understood about anarchy is that it will lead to a jungle law not sharing everything but the strongest and most capable would do what they want and others would do what they could.Or could not.

Abolish law? I never said that, and anarchist don't want to abolish law .You don't understand anarchy, it seems that you readed only the page provided by GC in anarchocapitalism, that is unfoundable.

No there are still some of us throwbacks around!

Yes I've sadly noticed that in this thread.

There are no inherent rights except those which are created by the state. A man, solitaire and alone on a desert isle has no inherent right to life. Nature recognizes no such thing. He has no right to suitable housing, no right to participate in fair elections, etc. Because the state, tribe, city, nation, global society, or whatever you care to call it is what creates human freedoms, or denies them. They are human constructs not found in nature. The Fox will hunt Rabbits, and no amount of legislative bills passed through the Rabbit Congress will convince the Fox of the inherent Rabbit right to life.

Wrong the state postdates the human being, so the society recognices older and inherent rights that every positive legislation must respect. A man alone, will not be an human from my conception. Is not nature wich recognices this is the same society that punish humans. You didn't understand me, I'm not talking about positive rights, but natural ones that predate all forms of state.

Society justifies the denial of freedoms in varying circumstances based on its own needs. A state must continue to exist or the rights and freedoms under discussion lose all meaning. Therefore the survival of the state is of greater importance than the freedoms of a single individual. "The Constitution is not a suicide pact." This phrase means that the American (or indeed anyone's) Founding Fathers did not intend the Constitution (or fill in the blank) to prevent our self-defense. The rights and freedoms must not be such as to leave the state helpless before its enemies. This does not give the state carte blanche to act in any way it cares to, but it does mean that freedoms are not absolute. The state must be subject torestraints to prevent abuse and so must individual freedoms be so restrained.

You're right but this does not justifies the privation of physical freedom as putting someone in jail. Thouugh i'll never eat that speech of the founding fathers, even more in the USA where one of the amendments clearly states that every american has the right to keep arms.

Duke: I agree only with your two first statements. As far as the third goes you're wrong, revenge is an archaic and irrational conception, the justice is in it's theorical nature impartial and rational, and you're contradicting yourself, first you state it institucionalices revenge and then you say it prevents revenge. The fourth is totally unacceptable the society and for instance the state, cannot take a higher moral ground and treat the person like an instrument or like a puppet. And finally you misunderstood me, I'm not trying to abolish the penal system, just the privation of freedom (not to talk about death penalty), the penal system still gives form to the actions that are disvaloured by society. And yes that subjugating effect of penal law is happening right now here. Sometimes the people forget that the penal law is subsidiary and final resource, because it's consecuences are very difficult to justify or accept, I'll say that many of the posters here forgot that.

[Redleg]

This is correct. But nothing of this prooves me wrong. Why private a man from his inherent freedom? You might want to know that many jurists have proposed and actual plan of abolishment of privation of freedom, just as a little data. The individual predates the society, the society then blames the individual for the things that probably the same society caused. So the natural rights of the individual predates all possible social order. The case of the fines will be different one, because the money received is a product of the work done for the society, then it's acceptable to ask for a part of it when society was damaged.

Man's only inherent freedom is to breath - everything else must be earned. One does not get to eat in nature unless one goes out and work for it. If someone breaks a law which govern's society - the society has the ability to remove that individual from society either for a short period of time, or for an indefinite time.

Now if you wanting to bring morals into the scope of the discussion then we can talk about inherent freedoms - because that term necessates a discussion on moral and ethics.

However in the case of law - spefic punishments can be dealt out based upon the popular will of society. If the criminal elects to violated the law and is proven guilty - then society has the ability to ask for retribution for the transgression. For instance if the crime is murder - the individual accused and then convicted of said crime has deprived another individual of his inherent right to breath. What is a suitable punishment for the person convicted of denying another of his basic right to draw breath? Make that individual pay a fine? How much will this fine be? Should the criminal be expected to provide for the family of the individual he murdered for the length of life? (Not against that possiblity but it is another form of privation of freedom.) If an individual commits a crime and his convicted of said crime - the individual gets to suffer the retribution of the society for his acts.

I find the arguement that depriving a convicted criminal of his freedom after he has deprived others of their freedom - a little hypocritical.

Well i believed that your religious morality will not take an step on ignorance, but this rule is totally archaic, i'll give you the three positions that justificate punishment in doctrine:1- Retribution (the subject has to heal the damage done to society by it's actions, the penalty is the justification in itself, this is the most acceptable position because it treats the person as human as possible) 2- General prevention (this has various reaches, but the principal idea is keeping the irreverent in privation and restitute the confidence of society in law) 3- Special prevention (keep others individuals from taking simialar actions -part of the previous teory- and returning the being to a normal social state, wich means educating him). The last two are totally unacceptable, they treat the human like an instrument and like a "dog" (from the example of Kant in his tale of the "Island" and a quote by Roxin in his book of General Part of the law). So there you've the positions, you were right when you said it was for retribution, but mention the "eye for an eye" is incorrect.

Again you would be slightly off - the moral comment was to make BP puke because of his statements. The trail process to convict law breakers is all about upholding the morals and ethics of the society which are the foundations of the law of that society - not necessarily ones based upon religion but the morals of the society at large. Murder is more then a religious moral violation - its the moral violation of another human beings right to breath.

Punishment is all about retribution - Prevention is a side effect of the punishment. Depriving individuals of freedoms granted by society is well within the possiblities of society.

Now if you want to discuss inherient rights of man - you have to be willing to go beyond the right to breath - since all others rights are ones granted by society - or a higher power then the individual.

[Soulforged]

Man's only inherent freedom is to breath - everything else must be earned. One does not get to eat in nature unless one goes out and work for it. If someone breaks a law which govern's society - the society has the ability to remove that individual from society either for a short period of time, or for an indefinite time.

This is incorrect every guarantee on all the legislations of western society at least base all it's assumptions on those inherent natural rights that i mentioned, to be justice the positive right or law must ajust to those. And that the society has the ability is sure thing, but is it justified?

Now if you wanting to bring morals into the scope of the discussion then we can talk about inherent freedoms - because that term necessates a discussion on moral and ethics.

It will be partially moral Red, but I want more the introduction of phylosophy that morals, wich i particualrily dislike, though i cannot deny their influence on human thinking.

However in the case of law - spefic punishments can be dealt out based upon the popular will of society. If the criminal elects to violated the law and is proven guilty - then society has the ability to ask for retribution for the transgression. For instance if the crime is murder - the individual accused and then convicted of said crime has deprived another individual of his inherent right to breath. What is a suitable punishment for the person convicted of denying another of his basic right to draw breath? Make that individual pay a fine? How much will this fine be? Should the criminal be expected to provide for the family of the individual he murdered for the length of life? (Not against that possiblity but it is another form of privation of freedom.) If an individual commits a crime and his convicted of said crime - the individual gets to suffer the retribution of the society for his acts.

I totally agree, but I don't see why it has to be privation of freedom. If you ask me: Could it be just a fine? Yes, or also a debt if he has to provide it.

I find the arguement that depriving a convicted criminal of his freedom after he has deprived others of their freedom - a little hypocritical.

Why? The state never has formally atributed itself the ability to judge the way a man carries his life (well in previous times yes), so the state judges only actions now, that's one of the principal reasons why the state cannot look at the causes that lead the man to murder or rape. But again this is a question of phylosophy, and looking at it from the phylosophy i think that the legislative system should change all it's penal background to fit the rights of the human being.

Again you would be slightly off - the moral comment was to make BP puke because of his statements. The trail process to convict law breakers is all about upholding the morals and ethics of the society which are the foundations of the law of that society - not necessarily ones based upon religion but the morals of the society at large. Murder is more then a religious moral violation - its the moral violation of another human beings right to breath.

Yes but the one that condems is the state, the subject could be accepted if the society convicted, but even there it's discussable for the same reasons that i gave already.

Punishment is all about retribution - Prevention is a side effect of the punishment. Depriving individuals of freedoms granted by society is well within the possiblities of society.

I totally agree with this, but some authors and members here believe that prevention is the justification, that's the basis of all penal system.

Now if you want to discuss inherient rights of man - you have to be willing to go beyond the right to breath - since all others rights are ones granted by society - or a higher power then the individual.

No, the society recognises those rights but the rights exists on the human for his quality of human, a construct of the human being cannot become the Leviatan and ignore those qualities. So those rights exists before the society, society only recognises them, though that might not seem so truth in the case of privation of freedom, and the circle closes again.

[master of the puppets]

i belive that the only true crime is thievery. every crime is theivery. killing someone is robbing them of life, rape is the loss of innocence, vandalization is to take somethings beauty. if it can be attributed to a loss of something then it is a true crime.

[Soulforged]

i belive that the only true crime is thievery. every crime is theivery. killing someone is robbing them of life, rape is the loss of innocence, vandalization is to take somethings beauty. if it can be attributed to a loss of something then it is a true crime.

So from your logic all crimes are degrees of thievery. And how will you justify the tentative from your position?

[bmolsson]

Punishment is all about retribution - Prevention is a side effect of the punishment. Depriving individuals of freedoms granted by society is well within the possiblities of society.

The society couldn't care less on retribution. Any damages to a victim or the state are always second to the actual punishment. The punishment itself doesn't really mean something for the society, society doesn't understand revenge.
You can divide in punishment in 3 categories:

1. Prevention (thanks for the word, by the way ).
A law is there for a reason. The punishment for breaking this law should be so costly that it prevents people breaking it. Very much like military balance actually.

2. Protection.
Some crimes require the society to be protected from the individual, therefore the punishment has to remove the individual from the society, hence protecting it from his actions.

3. Retribution
This is the moral part. Some would argue that "re-education" is better than revenge. I believe that this portion is always the one that is under hefty discussions. Bottomline is that you want to satisfy the victim and teach the criminal, in what ever order that works for you. For the society itself it's irrelevant as long as 1 and 2 are fulfilled.

I think that its important to identify the society here. Its a powerstructure with the purpose to organise and standardize a group of individuals. The main objectives of the society are more important than the individuals and therefore there are many times disagreements which has to be enforced.

[Strike For The South]

I belive morality should be brought in there is a big difference if some one runs out in front of your car or you made a desicon to run him down or shot in defense or kill him in cold blood or even thriver has different areas crime unfrotuantly is not black and white and the person has to be aken into account not just the crime

[Soulforged]

You can divide in punishment in 3 categories:

Hey I already gave the three possible justifications

1. Prevention (thanks for the word, by the way ).
A law is there for a reason. The punishment for breaking this law should be so costly that it prevents people breaking it. Very much like military balance actually.

This is correct, an many eminent jurists defend this possition, but I prefer retribution for the reasons i just gave.

2. Protection.
Some crimes require the society to be protected from the individual, therefore the punishment has to remove the individual from the society, hence protecting it from his actions.

Well the second possition is called special prevention, and it's about protecting and re-educating.

3. Retribution
This is the moral part. Some would argue that "re-education" is better than revenge. I believe that this portion is always the one that is under hefty discussions. Bottomline is that you want to satisfy the victim and teach the criminal, in what ever order that works for you. For the society itself it's irrelevant as long as 1 and 2 are fulfilled.

You're wrong it has little to do with morals, it has to do a lot with debts, like when you adquire a monetary debt with other. And the second part is specially wrong, retribution has nothing to do with re-education, the defenders always argue: "stay in prison and go out" nothing of education. The education as said is on the second relative teory, the special prevention, wich treats the person like a puppet. It matters very little what people thinks, penal law has a dogma, wich should be respected, those first two positions go beyond that dogma entering criminology or politics.

I think that its important to identify the society here. Its a powerstructure with the purpose to organise and standardize a group of individuals. The main objectives of the society are more important than the individuals and therefore there are many times disagreements which has to be enforced.

This is another misconception. In fact the individual is just as impostant as the society, that's why he has guarantees and inherent rights.

[sharrukin]

Wrong the state postdates the human being, so the society recognices older and inherent rights that every positive legislation must respect. A man alone, will not be an human from my conception. Is not nature wich recognices this is the same society that punish humans. You didn't understand me, I'm not talking about positive rights, but natural ones that predate all forms of state.

I understood you perfectly well.
I am talking about natural rights as well and I am saying there is no such thing! Men do not have natural rights. They have rights that are derived from the mind of man and laid down in charters, law and constitutions. What do you mean when you say the "state"? If you mean organized human society then the state predates Homo Sapiens as our pre-human ancestors had organized society.

You're right but this does not justifies the privation of physical freedom as putting someone in jail. Thouugh i'll never eat that speech of the founding fathers, even more in the USA where one of the amendments clearly states that every american has the right to keep arms.

Actually it does. The state is required to protect its citizenry from all enemies foreign and domestic. It has the right and duty to take the lives of soldiers in an attacking army and it has the same right and duty regarding those who would attack its citizens domestically. If it fails to do this basic function it begins to lose legitimacy in the eyes of its own citizens. A part of that function of defence is the prevention of violence and abuse from other citizens. The actual punishment is a separate question as to how to accomplish that end.

Every American DOES have the right to keep arms until the American state decides that they do not. It is in their constitution and not in other constitutions. Again there are no natural rights!

[Redleg]

This is incorrect every guarantee on all the legislations of western society at least base all it's assumptions on those inherent natural rights that i mentioned, to be justice the positive right or law must ajust to those. And that the society has the ability is sure thing, but is it justified?

Yep I know but both you and BP did not want to discuss morals - inherient rights come from morals and ethics. Your only natural right is the ability to breath air.

It will be partially moral Red, but I want more the introduction of phylosophy that morals, wich i particualrily dislike, though i cannot deny their influence on human thinking.

Then we can not have an accurate conservation about justice and punishment since morals are interwoven into the concept of both.

I totally agree, but I don't see why it has to be privation of freedom. If you ask me: Could it be just a fine? Yes, or also a debt if he has to provide it.

Justice must have an equalizing effect - or its not justice. If you deny someone the right to breath - its within societies purview to deny you the right to breath and/or to deprive you of other freedoms.

Why? The state never has formally atributed itself the ability to judge the way a man carries his life (well in previous times yes), so the state judges only actions now, that's one of the principal reasons why the state cannot look at the causes that lead the man to murder or rape. But again this is a question of phylosophy, and looking at it from the phylosophy i think that the legislative system should change all it's penal background to fit the rights of the human being.

Again you want to discuss rights of the human being without discussing morals - Rights are something that is given to the people by the government. Without the desire to discuss morals - we can not discuss inherient rights.

The judge and/or jury can only consider the actions in deciding guilt. Punishment can use midigation and extenutating (SP) circumstances in considering what punishment the individual must do to provide retribution for their crime.

Yes but the one that condems is the state, the subject could be accepted if the society convicted, but even there it's discussable for the same reasons that i gave already.

The state is the mouthpiece of the society.

I totally agree with this, but some authors and members here believe that prevention is the justification, that's the basis of all penal system.

Then they would be incorrect

No, the society recognises those rights but the rights exists on the human for his quality of human, a construct of the human being cannot become the Leviatan and ignore those qualities. So those rights exists before the society, society only recognises them, though that might not seem so truth in the case of privation of freedom, and the circle closes again.

Then I would have to say you have a different philosophy then I - rights are not something that are just there. Any discussion of rights entails a discussion of morals, and ethics of the society. You don't have to believe in a high power to discuss rights - since its society that often grants the same rights through the morals and ethics of that society. However when man was alone by himself in the pre-history of time - the only right he had was the ability to breath air. Everything else he had to earn in his struggle for survival.

[Redleg]

The society couldn't care less on retribution. Any damages to a victim or the state are always second to the actual punishment. The punishment itself doesn't really mean something for the society, society doesn't understand revenge.

Again you would be incorrect all one has to do is look at the definitions

1 : RECOMPENSE, REWARD
2 : the dispensing or receiving of reward or punishment especially in the hereafter
3 : something given or exacted in recompense; especially : PUNISHMENT

1 : the act of punishing
2 a : suffering, pain, or loss that serves as retribution b : a penalty inflicted on an offender through judicial procedure
3 : severe, rough, or disastrous treatment

So in essence punishment is indeed primarily about retibution by its definition.

You can divide in punishment in 3 categories:

1. Prevention (thanks for the word, by the way ).
A law is there for a reason. The punishment for breaking this law should be so costly that it prevents people breaking it. Very much like military balance actually.

2. Protection.
Some crimes require the society to be protected from the individual, therefore the punishment has to remove the individual from the society, hence protecting it from his actions.

These are not punishment catergories - these are side-effects of punishment in the justice system.

3. Retribution
This is the moral part. Some would argue that "re-education" is better than revenge. I believe that this portion is always the one that is under hefty discussions. Bottomline is that you want to satisfy the victim and teach the criminal, in what ever order that works for you. For the society itself it's irrelevant as long as 1 and 2 are fulfilled.

I think that its important to identify the society here. Its a powerstructure with the purpose to organise and standardize a group of individuals. The main objectives of the society are more important than the individuals and therefore there are many times disagreements which has to be enforced.

You are correct retribution does contain morals - morals are very much intertwined (SP) with justice and punishment. The desire not to discuss morals leaves most arguements about punishment only half complete.

[A.Saturnus]

The justification of punishment is its function. It is acceptable for society to punish the individual if this serves the common good. A requirement is that it happens within the law.
Whether society is the cause for the individual to act against the law is only of secundary importance. Whatever the causes were for the crime, what matters is the danger presented by the individual and the act of lawbreaking. Imprisonment is chosen as a useful means of punishment for some crimes.

[Papewaio]

So you believe in the archaic idea of "eye for an eye", not this is definetily out of the question, today the idea of basic rights of the human being are acceptable (right to live, to be free, to honor, to privacy, etc). The ironic is that they are irrebocable, so to enprison a person you must erase his condition of human being, to me it has not justification, the only case will be in those really dangerous, deranged persons that have lost all reason and can cause real problems, to all the other cases a fine according to the case will be enough.

So you think the best way to apply the law is to use a capitalisitic system... afterall how would you fine someone in an anarchistic system?

[Soulforged]

So you think the best way to apply the law is to use a capitalisitic system... afterall how would you fine someone in an anarchistic system?

So? I'm talking in abstract, I'm not adding it to any society in particular. In any case is just an option. Other options that have been reviewed seriously by scientists is erase all appliable penal law, and use civil law only.

Then we can not have an accurate conservation about justice and punishment since morals are interwoven into the concept of both.

You're wrong phylosophy is enough. The natural rights comes from the escense of humanity and not for morality that's just another human mental construct, so it can be separated with out much problem.

Justice must have an equalizing effect - or its not justice. If you deny someone the right to breath - its within societies purview to deny you the right to breath and/or to deprive you of other freedoms.

Let me ask you a question Red, I'm always curious about everything but one thing still amuses me, the death penalty. Do you, as Texan, support it? You seem to like very much the policy of an eye for an eye, though it has no real use in a real just system (with this I'm presumming, yes, that your legal system is not just)

Again you want to discuss rights of the human being without discussing morals - Rights are something that is given to the people by the government. Without the desire to discuss morals - we can not discuss inherient rights.

And I say to you again what i said to sharruking. Those rights don't surge from laws, this rights surge from the very escense of humanity recognised lately by the law, and the law must adjust to them.

The state is the mouthpiece of the society.

That's a very conservative view. In reality the state acts like an impartial party, in judicial system it doesn't represent anybody, of course in your system, it's different for the inclusion of juries. But it has no difference in the basis of my arguments, and also considering that it's all formal nothing real.

Then they would be incorrect

Well then you'll be solving the problem of centuries.

Then I would have to say you have a different philosophy then I - rights are not something that are just there. Any discussion of rights entails a discussion of morals, and ethics of the society. You don't have to believe in a high power to discuss rights - since its society that often grants the same rights through the morals and ethics of that society. However when man was alone by himself in the pre-history of time - the only right he had was the ability to breath air. Everything else he had to earn in his struggle for survival.

Well breathing will not be a right, but let's see. I think that you're confusing my concepts. Some rights are considered imperferct (this kind of conceptions are used mostly in civil and international law), thus when some event takes place (let's say in the case of the person: "born alive") then it becomes a positive perfect right, with this rights i'm talking about happens something of the same. Society does not contract with the "Leviatan" it asks for the recognition of those ancestral rights like guarantee for the protection of the individual and humanity in general. What I'm saying is: if you recognice this then you cannot negate it without calling the person a non human person, because those rights are escensial and irrebocables to the person, there's no turning back.

[bmolsson]

These are not punishment catergories - these are side-effects of punishment in the justice system.

I think that we have different opinions on why we have a justice system, no surprise there though.
Also I think I misunderstood the discussion. If its only about how sever the punishement as retribution should be, I really have nothing to add.

[Soulforged]

I think that we have different opinions on why we have a justice system, no surprise there though.
Also I think I misunderstood the discussion. If its only about how sever the punishement as retribution should be, I really have nothing to add.

No it's about justification, and you just added some info.

I understood you perfectly well.
I am talking about natural rights as well and I am saying there is no such thing! Men do not have natural rights. They have rights that are derived from the mind of man and laid down in charters, law and constitutions. What do you mean when you say the "state"? If you mean organized human society then the state predates Homo Sapiens as our pre-human ancestors had organized society.

Now i understand you. When i talk about natural rights I talk about equality, it borns with the man and it's recogniced (very recently really) by the society. And state is that imposing force that takes the monopoly of cohercion and dominion over a territory. But yes I was refering to society in general. What I say is that those rights come from the escense of human, from our qualities.

Actually it does. The state is required to protect its citizenry from all enemies foreign and domestic. It has the right and duty to take the lives of soldiers in an attacking army and it has the same right and duty regarding those who would attack its citizens domestically. If it fails to do this basic function it begins to lose legitimacy in the eyes of its own citizens. A part of that function of defence is the prevention of violence and abuse from other citizens. The actual punishment is a separate question as to how to accomplish that end.

You see, this doesn't justify it also. The problem here is dogma, what the people thinks about the "criminal" on the streets is another problem, is acceptable too, but I'm trying to focus on the freedom of every person. That freedom guarenteed in the escense of humanity and violated by the state, though your point is absolutly valid, I disagree, for this matter. The judicial system should not think on the way that the people think they should respect a dogma and keep things just. The prison doesn't makes the man "better" it degrades him, even treating him in the most human way, just to enprison him is enough to private him from his inherent humanity.

[sharrukin]

You see, this doesn't justify it also. The problem here is dogma, what the people thinks about the "criminal" on the streets is another problem, is acceptable too, but I'm trying to focus on the freedom of every person. That freedom guarenteed in the escense of humanity and violated by the state, though your point is absolutly valid, I disagree, for this matter. The judicial system should not think on the way that the people think they should respect a dogma and keep things just. The prison doesn't makes the man "better" it degrades him, even treating him in the most human way, just to enprison him is enough to private him from his inherent humanity.

Society is a large gathering of people in organized groups. You cannot say that what people think and what they want has no validity because people are the state. The Aztecs thought that carving someones heart out and offering it to the gods was a pretty cool way to treat prisoners. What people think has a huge impact on what becomes justice within a society. There is no objective scientific definition of justice or right and wrong. Justice is what people see as the proper retribution for a moral wrong. Under Aztec law cutting someones heart out can be the legally correct action! Now you can argue Morality if you choose but you cannot divorce morality and justice. The judicial system MUST consider what people think or it isn't justice.

When you say the essence of humanity what are you talking about? What essence? What inherent humanity? How are men equal? A moral code is the only thing that gives man value above that of a beast. You seem to shy away from morality in a way that I do not really understand.

[Redleg]

You're wrong phylosophy is enough. The natural rights comes from the escense of humanity and not for morality that's just another human mental construct, so it can be separated with out much problem.

Again would you care to wage a bet on it? Thomas Jefferson's famous quote in the Declaration of Independence is shows where natural rights come from. Morality is indeed a human mental construct and it serves as the main source of laws for the legal system and justice. Let me ask you - are you using this philosophy for Natural Rights of Man.

http://www.yale.edu/lawweb/avalon/rightsof.htm

One must be careful - again these are just words and rights granted to man by man - nothing inherient in them at all.

Or are you using Thomas Paine's Rights of Man.

http://odur.let.rug.nl/~usa/D/1776-1...ROM/rofm04.htm

Let me ask you a question Red, I'm always curious about everything but one thing still amuses me, the death penalty. Do you, as Texan, support it? You seem to like very much the policy of an eye for an eye, though it has no real use in a real just system (with this I'm presumming, yes, that your legal system is not just)

I support the death penalty to be used in only the most extreme cases, and where the evidence is conclusive of the guilt of the individual accused. The Texas Death Penatly is to loosely applied in my opinion. Mass Murders, rapist who then murder their victim, and child molestors who kill the innocent child. These individuals have deprived people of their right to life, and society should reserve the right to deprive them of thier freedom and their life.

And frankly the eye for an eye concept of punishment works very well for me. If you deprive someone of their life - you suffer the consequences of that decision. If you steal from someone - then society gets to deprive you of something - freedom for a period of time in this case. I don't take the concept of eye for an eye literially - but figuretively.

And I say to you again what i said to sharruking. Those rights don't surge from laws, this rights surge from the very escense of humanity recognised lately by the law, and the law must adjust to them.

Law adjusts to society because society for the most part causes most laws to be legislative into being. A few laws are based soley on morals and society accepts those laws as just and right - rights come from the society not the law. The law enforces the rights that society has bestowed upon themselves.

Now if you which to discuss inherient rights correctly - I will use both the French Revolution declaration of the RIghts of Man and Thomas Jefferson's concept as described in the American Declartion of Independence. Both follow the same concept of a creator granting certain rights to man.

[Soulforged]

Society is a large gathering of people in organized groups. You cannot say that what people think and what they want has no validity because people are the state. The Aztecs thought that carving someones heart out and offering it to the gods was a pretty cool way to treat prisoners. What people think has a huge impact on what becomes justice within a society. There is no objective scientific definition of justice or right and wrong. Justice is what people see as the proper retribution for a moral wrong. Under Aztec law cutting someones heart out can be the legally correct action! Now you can argue Morality if you choose but you cannot divorce morality and justice. The judicial system MUST consider what people think or it isn't justice.

Wrong, the penal law has little to do with morality, even more on developed nations, and I'm talking about penal law.

When you say the essence of humanity what are you talking about? What essence? What inherent humanity? How are men equal? A moral code is the only thing that gives man value above that of a beast. You seem to shy away from morality in a way that I do not really understand.

The essence is by it's definition the nature of the human. If we look at the human then we'll know that he's free, he has a life, and so on... and maybe i used wrong the words it's "equity" it means that all humans are equal before the law and equal in rights just for being human, thing that's denied to the privated of his freedom.

Again would you care to wage a bet on it? Thomas Jefferson's famous quote in the Declaration of Independence is shows where natural rights come from. Morality is indeed a human mental construct and it serves as the main source of laws for the legal system and justice. Let me ask you - are you using this philosophy for Natural Rights of Man.

And again i say you (though I'm talking about law doctrine) that this is the recognition of society of things that predate it.

One must be careful - again these are just words and rights granted to man by man - nothing inherient in them at all.
Or are you using Thomas Paine's Rights of Man.

I don't know about him. But again i agree they're given to man by man, when the humanity revels itself inside on the person and the other sees how the person is, he recognises it's nature. I'll read what you posted because I'm interested, but mean while I'll have to say to you, that this discussion has no point, because the society and the state recognises those rights to the individuals, so it doesn't matter if they're inherent or predate (though i believe it) society because they're irrebocable once given.

I support the death penalty to be used in only the most extreme cases, and where the evidence is conclusive of the guilt of the individual accused. The Texas Death Penatly is to loosely applied in my opinion. Mass Murders, rapist who then murder their victim, and child molestors who kill the innocent child. These individuals have deprived people of their right to life, and society should reserve the right to deprive them of thier freedom and their life.

Well I totally disagree with this, because the state cannot decide over the person life. But even looking at it with your logic. When the person is surely guilty?

And frankly the eye for an eye concept of punishment works very well for me. If you deprive someone of their life - you suffer the consequences of that decision. If you steal from someone - then society gets to deprive you of something - freedom for a period of time in this case. I don't take the concept of eye for an eye literially - but figuretively.

And if you take it figuretively then why is that privation is not enough for you in many cases? Also the eye for an eye concept is barbaric, wheter it's took literally or figuretively. As Ghandi said: "...it leaves us all blinds."

Law adjusts to society because society for the most part causes most laws to be legislative into being. A few laws are based soley on morals and society accepts those laws as just and right - rights come from the society not the law. The law enforces the rights that society has bestowed upon themselves.

I agree, but this doesn't proove me wrong, even more when it's the state that privates and kills (in your case).

Now if you which to discuss inherient rights correctly - I will use both the French Revolution declaration of the RIghts of Man and Thomas Jefferson's concept as described in the American Declartion of Independence. Both follow the same concept of a creator granting certain rights to man.

So for you a declaration (that has power of law) creates rights? You're contradicting yourself.

[Redleg]

The essence is by it's definition the nature of the human. If we look at the human then we'll know that he's free, he has a life, and so on... and maybe i used wrong the words it's "equity" it means that all humans are equal before the law and equal in rights just for being human, thing that's denied to the privated of his freedom.

As long as society treats all law breakers equally then all human rights are being honored. (Notice how I structured this sentence - I am trying to make a point about how your arguement seems to me.)

And again i say you (though I'm talking about law doctrine) that this is the recognition of society of things that predate it.

Before a structured society man had no rights - it was the law of survival. If man could not fend for himself he died. Society is what allows man to have rights - from whatever concept man wishes to express his society values and morals.

I don't know about him. But again i agree they're given to man by man, when the humanity revels itself inside on the person and the other sees how the person is, he recognises it's nature. I'll read what you posted because I'm interested, but mean while I'll have to say to you, that this discussion has no point, because the society and the state recognises those rights to the individuals, so it doesn't matter if they're inherent or predate (though i believe it) society because they're irrebocable once given.

I suggest you read the link provided on Thomas Paine's Rights of Man it will help you understand a little where I am coming from - that and Thomas Jefferson's views on rights. The discussion of rights is important because of the concept of punishment in which you are expousing. If man has a right to privacy and freedom - then society must also have the right to punish an individual who breaks the law. This punishment must equal the crime that was committed so that society has its retribution from the criminal for his actions. If one takes a life - and is found guilty then society must have the ability to punish the man equal to the crime that he committed.

Well I totally disagree with this, because the state cannot decide over the person life. But even looking at it with your logic. When the person is surely guilty? And if you take it figuretively then why is that privation is not enough for you in many cases?

Denying a man his freedom is more then acceptable for me in most cases involving murder - I listed the expections to this rule. If a man commits murder in the heat of the moment - then his punishment should just be term in jail. If he committs many murders for his sole enjoyment - then that individual should receive the death pently.

Also the eye for an eye concept is barbaric, wheter it's took literally or figuretively. As Ghandi said: "...it leaves us all blinds."

The eye for an eye concept however happens to be what most of the worlds penal system is indeed based upon. If you committ a crime society has the right to punish you for your actions. The amount of retribution demanded by society is based upon the actions of the criminal.

I agree, but this doesn't proove me wrong, even more when it's the state that privates and kills (in your case).

IT wasn't meet to prove you wrong - its an explantion of how I see society and the way criminals are punished based upon the law.

So for you a declaration (that has power of law) creates rights? You're contradicting yourself.

Not at all - the Declaration of Independence is a document that explains a philosophy. Just like Rights of Man by Thomas Paine or the French Revolutions declaration. They describe what rights society will grant the individual based upon a supreme being. I strongly suggest you read both documents - links have been provided in the previous post - to fully understand where I am coming from.

Edit: You just might like Thomas Paine's work also - since if I remember it correctly its leaning more into the direction I believe you are trying to state. The good thing about this discussion is that I remembered parts of the work - but am going to have to get a new copy of both Rights of Man and Common Sense

[Soulforged]

As long as society treats all law breakers equally then all human rights are being honored. (Notice how I structured this sentence - I am trying to make a point about how your arguement seems to me.)

Well my point is that they're not treated equally.

Before a structured society man had no rights - it was the law of survival. If man could not fend for himself he died. Society is what allows man to have rights - from whatever concept man wishes to express his society values and morals.

Ok but again, the rights exists before and society recognices tha major "legislation" predating itself and then gives it form.

I suggest you read the link provided on Thomas Paine's Rights of Man it will help you understand a little where I am coming from - that and Thomas Jefferson's views on rights. The discussion of rights is important because of the concept of punishment in which you are expousing. If man has a right to privacy and freedom - then society must also have the right to punish an individual who breaks the law. This punishment must equal the crime that was committed so that society has its retribution from the criminal for his actions. If one takes a life - and is found guilty then society must have the ability to punish the man equal to the crime that he committed.

Yes but my point is that the state and society recognices those rights as irrebocable from the moment they've form, so it's not turning back, that's when the justification of privation fails, unless that you want to treat the convicted like a non-human, maybe like it was considered in ancient laws: the monks for example were dead in life (they were called civily dead)

Denying a man his freedom is more then acceptable for me in most cases involving murder - I listed the expections to this rule. If a man commits murder in the heat of the moment - then his punishment should just be term in jail. If he committs many murders for his sole enjoyment - then that individual should receive the death pently.

Yes it appears acceptable to me too, until i look to the rights that the individual as human person has. But again when is the person absolutely guilty? You'll know that there's no case of absolte certainty on science, and law is not an exception.

The eye for an eye concept however happens to be what most of the worlds penal system is indeed based upon. If you committ a crime society has the right to punish you for your actions. The amount of retribution demanded by society is based upon the actions of the criminal.

You're wrong. Retribution is not about the eye for an eye. This requires qualitative equality, while retribution could easily accept fines in most cases, thus considering just quantity and not quality. Besides there're other considerations that're being discussed right now on the dogma that may proove all your position wrong, but not retribution, well really most humanist and jurists have proove you wrong. If I'm not incorrect I think that the only legislative world that accepts death penalty is the common law.