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This chapter discusses the various ways that the State’s reaction to offending can be legitimised as well as the subsequent goals that could guide this reaction.
Each approach has its own theoretical and practical problems.
Although the different approaches are often mutually exclusive, there have been attempts to compromise.
They set a critical standard against which the practice of punishment can be measured and scrutinised on a regular basis (Duff & Garland, 1994).
It may be naive, however, to expect an explicit unified philosophical theory of punishment to govern both the justification of punishment and the aims at sentencing for all people involved, in each and every case.
But what is to be considered as suitable and just punishment?
Although the institution of legal punishment is self-evident and a fact of life in the eyes of most people, the answer to such a fundamental question is not so evident and consequently, the practice of punishment needs a moral justification that addresses such questions.
One way of guarding the rules that keep society together and providing us with (a sense of) security, is through the institution of legal punishment: a means by which suitable and just reactions are meted out to those who infringe the rules.
The institution of legal punishment has become such a self-evident and intrinsic part of our lives that we even demand a justification for its absence in cases where we expect it (Tunick, 1992). In principle, however, most people would agree on a description of punishment that incorporates the following seven features formulated by Walker (1991, pp. It involves the infliction of something that is assumed to be unwelcome or unpleasant for the recipient. The infliction is intentional and done for a reason. Those who order it are regarded as having a right to do so. The occasion of the infliction is an action or omission which infringes a law, rule or custom. The person punished has played a voluntary part in the infringement. The punisher’s reason for punishing is such as to offer a justification for doing so. It is the belief or intention of the person who orders the infliction, and not the belief or intention of the person undergoing it, that settles the question whether it is punishment.
2.2 Crime threatens our personal safety, our property and ultimately the social coherence of society.
We consider criminality to be a serious and urgent national problem (cf. Our fear of crime not only stems from the direct threats it poses to us, but also from the general feelings of insecurity that result from the awareness of its existence.