Criminal deeds have become a part of human life many centuries ago. They are committed in the name of God, love, power, freedom, revenge or resentment. They bring pain and sorrow to the lives of some people, and take away the lives of others. Since the first crime has been committed, and people have realized that it was a form of evil to be fought with, they made thousands of attempts in order to break the vicious circle of ruthless crimes that draws people into the abyss of despair and wrongness, erasing their humaneness. Thus, there has been established a range of specific principles, or, in other words, logical ideas on the ways of possible punishment for those, who commit offences towards others. Many of these principles simply describe a general vision of crime punishment, and do not give any specific instructions as to how to handle it. Others take a form of strongly pronounced cruelty that is inconsistent with the moral laws, and, therefore, cannot be put to use.
The topic of crime punishment has been discussed in various political, ethical and philosophical studies and works. Philosophers, such as Andrew von Hirsch, Immanuel Kant, and others, have presented their ideas on the ways punishment may be performed from the standpoint of philosophy and morals. One of the written works, dedicated to the present issue and worth attention, is a book entitled “An Eye for an Eye?” by Stephen Nathanson. In his book, he reconsiders the principles of punishment, described by Kant and von Hirsch, and argues against them. His understanding of punishment system does not follow the classic philosophical principles, because he is sure that those cannot work properly due to a range of reasons. Therefore, he tries to find an alternative that may help society punish criminals wisely and according to the law, ethics and morality.
In one of the chapters from his book entitled “An Eye for an Eye?”, Stephen Nathanson presents his argument against the classic retributivist principle of punishment, also known as lex talionis. According to this approach, all criminals should be treated the way they have treated their victims. This is what one calls “an eye for an eye, a tooth for a tooth” principle. Thus, those who kill should be killed, and those who rape should be raped, etc.
Nathanson does not approve the present idea, and gives two major reasons for his disapproval. First and the most important one is that while acting the way criminals do towards their victims, legal justice becomes similar to them. Generally, it is ethically wrong, and breaks the laws of morality, because in case a victim is killed, a criminal should be killed as well. It is not acceptable in society. The second reason lies in obvious difficulties to apply a deserved punishment. For example, it relates to some cases, such as air pollution, drunk driving, and others. Therefore, Nathanson have made a conclusion that “an eye for an eye” principle cannot fully solve the problem of punishment for criminals.
Another interesting approach analyzed by Nathanson in the excerpt of his book “An Eye for an Eye?” is a principle of proportional punishment. Partly, it could be a relevant substitution for lex talionis. The worse is a crime, the harsher punishment a criminal receives. Nevertheless, this proposal gives no justification for the death penalty. It is a general idea with no particular instructions. Nathanson discusses the issue of the death penalty, trying to figure out whether it is appropriate from a strictly moral point of view or not. He reminds of inalienable rights every single human being possesses. He claims that those rights should be respected, and it means that depriving a murderer of his life is not a right thing to do, because it is an obvious disrespect of his rights.
Nathanson gives an example of Kant's point of view at the death penalty that fully supports “an eye for an eye” principle. A person should receive what he gives. Thus, what a person deserves is strongly connected to what he does, including depriving of his life if needed (Kant, 1999). On one side, it looks fair, but from the other one, it means that legal justice should perform the same barbaric and inhuman treatment as criminals do. In some way, Kant's view could be seen as valid and attractive, but Nathanson concludes that it should be rejected by society in terms of its immorality.
Proportional retributivism could become a good alternative and solution instead of equal punishment. This principle states that punishments should be proportional to the crime. Andrew von Hirsch, who supports the idea, as well as Kant, thinks that a punishment, which a person deserves, should depend on the person's actions. The difference between their views lies in substituting proportionality for equality as the criterion for setting the amount of punishment. By means of this, there should be made a list of crimes, ranked in order of seriousness (Hirsch, 1985). Then, there must be constructed a corresponding scale of punishments for each crime. Both of the lists should be correlated. Thus, punishments would be proportionate to crimes. The worse is crime, the harsher is punishment.
Nathanson points out that this principle does not have the defects that equality retributivism has. There is no need to act in the same barbaric way as criminals do. It does not require that a murderer should be deprived of his life. He would just receive the most severe punishment, presented on the scale (Nathanson, 2001). However, it does not give any instructions or ideas on how a particular punishment should be administered. It is plainly general. This is why proportional retributivism would not work properly.
Also, Nathanson particularly pays attention to the death penalty in the context of crime punishment principles. In “an eye for an eye” approach, death penalty is a must to be used towards those, who kill their victims. According to proportional approach, death penalty is not used. It is substituted by the harshest punishment. It is usually a long term in prison. Nathanson states that, mostly, the idea to abolish the death penalty is based on respect for human dignity. Legal justice should abstain from depriving a life of a criminal in any circumstances, because whatever he did, he remains a human being, having particular rights that cannot be taken away not for any reason whatsoever. Another reason for rejecting the death penalty is that one does not want to encourage violent actions made by some people towards others, because this is not right both from moral and ethical standpoints. Therefore, the death penalty remains an option no one wants to be put in use.
Through many years people have discussed the ways of punishing criminals. Legal system is imperfect even these days. This makes society go further and deeper into the issue. “An eye for an eye” principle, or a principle of equal punishment, has existed for centuries, but it still has not become the major solution for humanity. It does not prove its effectiveness. It does not show an appropriate level of morality and ethics. Moreover, in certain cases, it violates human rights. In spite of strong criticisms and disapproval of society, it still remains a major topic for discussions throughout the world.
First of all, there should come an understanding that there is a line, which cannot be crossed by anyone at any time. The laws of morality and ethics draw this line, and one follows. This is a so-called “line of morality”. When equal punishment comes into consideration, it means that a criminal, who, for example, raped a woman, should be raped, too. His action was immoral. His action was out of legal laws, and was, in fact, inhuman. When the same action is performed towards him by legal justice, how could we consider it different from the criminal's one? It is a crime itself, too, though with a different purpose. Thus, it is the same immoral and inhuman action. Then, why should we call raping by a rapist immoral and raping by legal justice moral? At this point, should it depend on who is a performer of a crime to determine whether this crime is moral or not? It is unacceptable. It is wrong, and must be rejected. Other point of view lies in the rights every human being has. These are the rights to life, respect, etc. In the described example above, a criminal violated the rights of a woman. Thus, why should legal justice not violate his rights in return? The answer is simple. It should not, because it is immoral.
Moreover, does the present crime, committed by a criminal, leave him these rights, or should they be removed from him due to the immoral act he made? The answer is no. He is a human being, and whatever he does his rights, such as a right to life, must not be removed from him under any existing circumstances. Therefore, all the determinations are based on morality. This line should not ever be crossed. This is the very reason why an eye for an eye principle is a failure.
Based on moral principles, legal justice is made to punish criminals, and show them a way to improve themselves, but not to be a criminal machine itself that destroys lives of people, even those, who commit crimes. Legal justice should be an example of how to treat and be treated right from the standpoint of ethics and humanism. This is the most important idea that should be taken into consideration.
An eye for an eye approach is different and should not be used. What it really does is not justice, but a chance to bring the same amount of pain to a criminal. Yes, it is punishment. But it brings out nothing but violence and cruelty. Basically, it cannot be called justice at all. It is more perceived as Halifax law, when a victim feeling pain, tries to make a revenge by doing the same towards a subject of his or her offence. The death penalty is not an indicator of justice, too. It is rather a way to show that society, in fact, does not value life itself, because its deprivation is perceived and understood as normal. Thus, it is not from the standpoint of morals.