1

DOES CHOPPING OFF WITH A BIGGER KNIFE CHOPS

OFF MORE?
IS THERE ANY RELATIONSHIP BETWEEN THE HARSHNESS OF A
PUNISHMENT AND ITS DETERENCE?

Tipu Salman Makhdoom

Advocate Supreme Court of Pakistan

The life of the law has not been logic; it has been experience.
Oliver Wendell Holmes, Jr.

INTRODUCTION:
Punishment, to say the least, is horrible; 1 a conscience and deliberate
infringement of rights of a person, on behalf of the society. Just as in a living
bodya biological societya cell loses its individuality and is liable to be
eliminated if it starts working against the living system of which it is a part; so
does a person loses his individuality in a human society and is liable to
infringement of his rights (punishment) if s/he starts working against the
political decisions of the society.
The institution of Punishment, however, raises extremely difficult, though very
interesting, intellectual and philosophical questions, such as; Should
Punishment be inflicted as a means to an end or as an end in itself? If its a
means (which the author will argue that it is), then what should be its ultimate
aim and how should that be achieved?

J.M. Coetzee, Disgrace (Vintage, 1999) 219. What the dog will not be able to work out (not in a month
of Sundays! he thinks), what his nose will not tell him, is how one can enter what seems to be an ordinary
room and never come out again. Something happens in this room, something unmentionable: here the
soul is yanked out of the body; briefly it hangs about in the air, twisting and contorting; then it is sucked
away and is gone. It will be beyond him, this room that is not a room but a hole where one leaks out of
existence.

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Starting with the pre-historic conception of Punishment, we will have a birds

eye view of different dominant arguments about the rationale of Punishment
and finally will take a glimpse of utility of various approaches for which
punishment is used, concluding which approach are we using and why is it not
working in our system?

EVOLUTION OF PUNISHMENT:
Though punishment in general terms is a social term and in popular meanings
varies from the wrath of gods to the scolding of a caring parent, its legal
meanings are precise and definite. In legal parlance, Punishment can be simply
described as a societys reaction to crime.2 Although the concept of crime is
also an interesting subject to discover in its own right, we cannot go into such
details and will take crime, for the purposes of our present discussion, in its
generally accepted legal meanings. While Paton defines crime as a breach of
public law,3 Salmond considers it to be an act deemed by law to be harmful to
society in general. 4 Now turning to punishment, a workable definition of
Punishment is infliction of hard treatment by an authority on a person for his
prior failing in some respect (usually an infraction of a rule or command).5 Not
only is there a great confusion regarding the concept of punishment in its
various social facets, but the scholars are not agreed even about a legal
definition of punishment. Thus, there is a lot of debate about the nature and
exact definition of Punishment, especially regarding its murky boundaries with
tort. In this scenario, Hart6 defines Punishment in terms of five elements, viz,
infliction of pain on an offender for commission of a crime which pain is
intentionally administered by human being under a law.7
In addition to above elements, however, achievement of specific objectives,
such as revenge or reformation, are also vital aspects of the punishment. Thus
confinement of a psychotic person by legal order of an authority, although
2

Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 301

David P. Derham, A Text-Book of Jurisprudence by G.W.Paton (Oxford University Press, 1964 reprinted
1967) 317
4

P.J. Fitzgeral, Salmond on Jurisprudence (Sweet & Maxwell, 1966); Reprinted by National Book
Foundation of Pakistan, 92
5

Joel Feinberg, Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970); from Joel
Feinberg & Hyman Gross, Philosophy of Law (Wadsworth Publishing Company, 1991) 635
6

H.L.A. Hart

H.L.A Hart, Punishment and Responsibility (New York and Oxford: Oxford University Press, 1968); from
Joel Feinberg & Hyman Gross, Philosophy of Law (Wadsworth Publishing Company, 1991) 657

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involves suffering of the confined which can be for inflicting injury to someone
and thus breaking law, yet it is done neither as a result of guilt of the psychotic
(revenge) nor considering that this will reduce the incidence of psychoses in the
community (reformation);8 and so is not a punishment.

Punishment, as crime, is an age old institution. We can safely say that the
institutions of crime and punishment are as old as the institution of law, rather
the institution of society itself. There has been a gradual evolution of concept of
punishment. This evolution has been less entwined with the concept of crime
and more with the perspective of intellectuals about society and the place of a
citizen in it.
Historically, three types of crimes followed by three types of punishments are
found in the non-literate societies. The most serious category of offences, such
as treason, would result in death penalty. Death penalty would be justified on
the grounds that offender was a pollution for the tribe and his elimination was
required for the hygiene of the tribe as well as sacrifice to god. The second
category of crimes were injuries inflicted by one family member to a member of
another family of the same tribe. Such injuries including murder and theft
were considered private injuries and punishment of the offender was the
revenge taken by the victim party directly, without the intervention of the tribal
society as a whole. Third group of offences were the injuries, including murder
& theft, committed by a person against another member of his own family in
the tribe. Such offences were punished only through expression of social
disgust on the ground that physically punishing the offender will further
weaken the victim family. With the rise of Kingship and institution of formal
Courts backed by the central authority of State, crime and Punishment became
public matters.
However, the basic concept of punishment still remained devoid of any utility.
Criminals were mutilated or killed as a punishment, but it was primarily to
eliminate him from society or to incapacitate him to commit the crime again or
else, simply to mark him so that everyone should know that he is not the man
to be trusted.9

Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 305

W.L.M. Lee, History of Police in England (London: Methuen, 1901), 10, quoted in Edwin H. Sutherland &
Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978), 307-8
[a] detected criminal was either fined, mutilated, or killed but punishment as we now understand the
term, was seldom inflicted, that is to say, the dominant idea was neither to reform the culprit nor to deter
others from following in his footsteps. If a man was killed it was either to satisfy the bloodfeud or to
remove him out of the way as a wild beast would be destroyed; if a man was mutilated by having his
forefinger cut off or branded with a red-hot iron on the brow, it was done not so much to give him pain as

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Another few centuries went by like this; man dealing with crime and
punishment according to his mythological view of the world, without thinking
through the issue logically. It was not until the modern period that the clearly
punitive reaction to crime-the purposive infliction of pain on the offender because
of some assumed value of the pain-became popular.10 Now we will take a glance
on various aims that different schools of thought are set to achieve through
infliction of punishment. Which of these schools of thought is adopted is a
decision which makes a whole lot of difference in a system of administration of
justice.

MODERN THOUGHT ON THE RATIONALE OF PUNISHMENT:

Generally speaking, there are three dominant reasons justifying punishments
viz., retribution, incapacitation and deterrence. Retribution is seen as a means
of equalizing the offender with the victim; incapacitation ensures isolation of
bad social material from good social material; and deterrence presses
psychological impressions on the offender as well as on other potential
offenders, persuading them rationally that committing crime would be a bad
bet.11
Philosophically, however, punishment can be looked at from two aspects.
Either it can be regarded as a method of protecting society by reducing the
occurrence of criminal behavior, or else as an end in itself.12 It seems that like
in every other field, the combat here too is between idealists13 and realists.14
to make him less expert in his trade of thieving and to put upon him an indelible mark by which all men
should know that he was no longer a man to be trusted; if a fine were levied, it was more with a view to
the satisfaction of the recipients of the money or cattle or what not, than with the intention of causing
discomfort or loss to the offender.
10

Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978), 305-308

11

Mc Guire, J., Understanding Psychology and Crime: Perspectives on Theory and Action. Maiden head,
Berkshire: Open University Press (2004), 171-198. Quoted in; Eilidh Mac Donald, Does Imprisonment as
a Punishment Deter Crime? Available at: http://justspeak.org.nz/wp-content/uploads/2012/11/Doesimprisonment-deter-crime.pdf. Accessed on 24th of June, 2014.
12

P.J. Fitzgeral, Salmond on Jurisprudence (Sweet & Maxwell, 1966); Reprinted by National Book
Foundation of Pakistan, 94
13

A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and
institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.
John Rawls, A Theory of Justice (Oxford University Press, 1971) 3
14

Never forget that everything Hitler did in Germany was legal. Martin Luther King, Jr.

Rosemarie Jarski, A Word from the Wise (Ebury Press, 2006) 290

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Idealists see a situation or a problem from the point of view of a perfection to be

achieved, no matter how difficult or unachievable it may seem. On the other
hand, realists see a problem with the sole purpose of solving it within the
available and possible resources. Thus, while idealists relate punishment to
guilt and moral liability of the offender, which he discharges by undergoing the
punishment and the price he pays while undergoing punishment, thus
enabling the victim feel satisfied, realists bind it to controlling the incidences of
crimes in the society.
John Rawls maintains that there are two justifications for inflicting
punishment i.e., Retribution and Utilitarian. Retribution entails that
punishment is justified on the moral ground that a person who does wrong
should suffer in proportion to his wrongdoing.15 Utilitarian view, on the other
hand, holds that punishment is only justified if it effectively promotes the
interests of the society. According to Rawls, whether one holds Retributive or
Utilitarian view depends on the perspective from which punishment is looked
at. Therefore while a Retributionist would ask why J was sent to jail, a
Utilitarian would ask why do people put other people in jail? Whereas
Retributionist will get the answer that J committed a crime, was caught, tried
and was found guilty in trial which ended him up in the gallows, the answer to
the question of a Utilitarian would be very different from the first answer as
this question is not trying to understand the nature of an event, but the nature
and the underpinnings of a phenomenon; a whole institution. So the Utilitarian
answer would be that J was sent to jail in order to isolate him so as to protect
good people from the bad ones. 16
The rationale of Retribution 17 is based on three elements. Firstly, that
committing a crime amounts to violation of the Social Contract 18 and thus
15

John Rawls, Two Concepts of Rules, The Philosophical Review, Vol. 64 (1955) pp. 3-13, reprinted in
Ethics by Lawrence M. Hinman, University of San Diego, 2
16

John Rawls, Two Concepts of Rules, The Philosophical Review, Vol. 64 (1955) pp. 3-13, reprinted in
Ethics by Lawrence M. Hinman, University of San Diego, 3
17

It must be seen that the Islamic view of punishment is very different from the Western concept because
western concept of punishment is based on a crime which is seen as a secular act of violating a social
law. In contrast to western view, Islamic philosophy of punishment is very different as in Islam the concept
of crime and sin are intertwined. Thus Islamic philosophy of punishment, although containing tinges of
other aspects too, is overwhelmingly based on Deterrence (Zajr). As according to most of the Islamic
Jurists, threat of punishment in the After-Life does not sufficiently deter people from committing crimes,
which makes punishment in this world a necessity.
Rudolph Peters, Crime and Punishment in Islamic LawTheory and Practice from Sixteenth to the
Twenty-frist century (Cambridge University Press, 2005), 30
18

The famous theory that society is created through a contract by every member of the society thereby
trading part of his liberty for the protection by the society.

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society gets the right to punish the culprit for such a violation. Secondly, that
criminal deserves the punishment as he is guilty of an act which is not only
wrong but is against the collective good and interests of the society. And
thirdly, that punishing the offender is entwined in the very nature of the
human being and thus is an essential feature of the society without which the
social fabric cannot be maintained. 19 On the other hand, the rationale of
Punishment according to Utilitarianism is based on the principle that
Punishment is a tool to keep the crimes in the society to the minimum.20 This
implies that criminal is not seen as an enemy to be defeated, in mind, body,
and to an extent financially, but simply as a problem to be solved, be it by
reformation, incapacitation or elimination. However, utilitarian approach does
not limit itself to solving the problem at hand, but takes care of potential
offenders too. Thus, in order to discourage offenders from repeating the crime
and to check potential criminals from realizing their potential, it uses
deterrence as a goal of punishment. What factors of punishment are actually
related to its deterrence is the subject that we will explore in the next section.

IS DETERRENCE OF PUNISHMENT RELATED TO ITS HARSHNESS?

PAKISTAN SCENARIO:
It has been argued21 that there are no objective rational criteria for measuring
the just-ness of a punishment inflicted for a particular crime; neither can it
be! The decisions of the legal and the penal institutions of the society,
regarding the mode and extent of punishment, are irrational. The decision that
a particular act falls in the category of a crime22 and the consequent decision
as to what punishment is to be awarded justly in a particular case, is
essentially a moral decision and there being no criteria for taking such
decisions, they are made arbitrarily.23 A latest view on the subject states that
[w]e do not punish on the basis of deliberative probability analysis. Rather, we
punish in response to visceral, deeply held, and sometimes difficult-to-explain
intuitions. Moreover, the degree of sanction is driven by moral outrage and

19

Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 4-5

20

Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 5

21

J. Charles King, A Rationale for Punishment, Journal of Libertarian Studies ( Spring 1980), 151-165

22

Miriam H. Baer, Choosing Punishment, Boston University Law Review (2012) Vol.92, 577, 596.

But criminal philosophy has yet to distill, in a concrete and usable fashion, an objective means for
identifying the quantum and nature of conduct that deserves punishment.
23

J. Charles King, A Rationale for Punishment, Journal of Libertarian Studies ( Spring 1980), 161

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various cognitive biases, not by scientific calculations of optimal deterrence. 24

Thus when punishment is seen as retribution, it is taken as an end in itself
and all that can be achieved from it is most appropriate revenge. Therefore
punishment as retribution, although can justify itself on the ground that it
promotes a feeling of justness in the society generally and especially in the
victim, its utility for the general benefit of the society is dubious. It is especially
dubious because neither the criteria for its appropriateness nor the
effectiveness of its consequences can be measured or planned.
In Utilitarian perspective, punishment is taken as a means to achieve a higher
and nobler goal than merely taking revenge on behalf of the victim. The
Utilitarian aim of punishment is prevention and reduction of crime in the
society. Arguably, the most effective way to achieve this goal is deterrence. The
popular way of increasing deterrence of a crime is by increasing the harshness
of its punishment. However, modern studies indicate that relationship of
harshness of a punishment with its deterrence is dubious. According to general
belief, severity of imprisonment should be directly proportional to its length.
However, studies have indicated otherwise. Several studies reveal that longer
prison sentences do not reduce chances of repetition of a crime. This can be
because most of the jail inmates adopt themselves to prison environment, 25
thus lessening the degree of severity to a considerable effect.26 It is a popular
belief that deterrence can be increased by either of the two modes: by
increasing likelihood of punishment or by increasing severity of it.
Psychological research indicates that high probability of detection and
conviction is much more effective deterrence against a crime, as compared to
high degree of harsh punishment.27
Conviction rate in Pakistan, along with many third world countries, is low by
western standards.28 The reason, however, is obviously not the lack of harsh
punishments; we have plenty of them. In Pakistan, due to low conviction rates,
and especially due to the length of intervening span between the commission of
24

Miriam H. Baer, Choosing Punishment, Boston University Law Review (2012) Vol.92, 588

25

This is especially relevant in the cases of longer sentences.

26

Gendreau, P., Goggin, C., & Cullen, F.T. The Effects of Prison Sentences on Recidivism, Department
of the Solicitor General Canada (1999), Public Safety Canada.
27

Gabriel, U. & Oswald, M.E. (2007), Psychological analysis of punishment, D.S. Clark (Ed.),
Encyclopedia of Law and society: American and Global Perspectives (pp. 1252-1254), Thousand Oaks:
Sage. Also see Policy Backgrounder No. 148, August 17, 1998. Available at:
http://www.ncpa.org/pdfs/bg148.pdf. Accessed on: 24th of June, 2014.
28

Conviction rate in USA is 95% while in Pakistan its merely 5%, ref; The News International (Pakistans
English language daily Newspaper, Low Conviction rate linked to poor probe, prosecution, Friday,
November 22, 2013. However, the USA figures will probably reduce drastically if statistics are confined to
serious crime alone.

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offence and conviction, which ranges from few months to few years and
sometimes even to decades, conviction is neither seen as an effective deterrence
by the culprits, nor as a sufficient retribution by the victims. However, due to
untrustworthy political system, incurring frequent regressions due to
imposition of recurrent martial laws, people have opted out of the political
solution and instead, have picked up a social solution. This social solution,
however, has jeopardized our whole system of criminal administration of
justice. Instead of deposing true facts of occurrence and focusing their efforts
on getting conviction29, Pakistani victims have started framing their complaints
with the aim of getting the occurrence fit in the category of cognizable
offences.30 This inevitably leads to distortions in true facts, which ultimately
plays its part in further lowering the conviction rate. Again, instead of focusing
their efforts on getting conviction of the offender, 31 victim focuses on
maneuvering the investigation in order to ensure that accused is refused bail
and he spends longer possible time in jail as an under-trial prisoner; because
that is what a Pakistani victim considers the actual punishment that he can
get inflicted on his accused. This again distorts the actual facts of the case and
plays a significant role in further lowering the conviction rate. In its turn, this
further lowered conviction rate, coupled with the time required for getting a
criminal convicted, further lowers the public trust in the judicial system, and
the snow ball effect continues.

CONCLUSION:
Deciding what act is to fall in crime and how must it be dealt with, is a political
question with society holding the sole prerogative of deciding it. But gone are
the days when societies would behave as a mob and take foundational social
and political decisions on the basis of sophistries of the shallow orators.
Modern complex society demands rational decisions on scientific basis.
Although there can be instances where increasing harshness of punishment
would have proved to be an effective deterrent, this cannot be taken as a rule of
thumb. Modern studies suggest that increasing severity of punishment is often
ineffective, sometimes even counter-productive, in enhancing its deterrent
effect. The effective deterrence is increasing the probability of detection &
conviction. But this cannot be achieved unless investigation is conducted
efficiently & scientifically and trial procedures are made simpler, fairer and

29

Due to above stated reasons.

30

In this category of offences investigating agencies can arrest the accused without first obtaining
warrants of arrest from a judicial magistrate.
31

Again for the above stated reasons.

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expeditious, which, in turn, will win over the public trust in the system,
encouraging them to be fairer in their complaints.
In our society, where investigation is often inefficient and seldom fair, severity
of punishment for a crime always generates cautious, narrow and
untrustworthy view of the judiciary to the prosecution case. This further
explains such a dramatically low conviction rate.
Another vital aspect of the scenario, however, is rampant mis-statements by
everyone involved in the trial. This results in extremely low conviction rate,
which gets translated into low deterrence. Thus lack of social awareness as to
the need of fair trial is also a major contributing factor in over all failure of the
system. The realist picture of our system of criminal administration of justice,
in so many words, is that in order to take revenge from the culprit,
complainant falsely implicates his/her whole family. Culprit falsely denies the
charges. Investigation officer does not investigate fairly and places before the
court a distorted picture of the case. Then all these liars demand justice from
the Courts. And they get what they deserve.32 Thus in order to curtail crime in
our society, focus should be on creating awareness about working of system of
criminal administration of justice and increasing probability of detection and
conviction rather than increasing harshness of punishment.

32

Statement made by a retired trial judge in an informal meeting with the author.

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