A thesis submitted to the Faculty of Arts, University of the 'Witwatersrand, Johannesburg, in fulfilment of the requirements for the degree of Master of Arts. Johannesburg, 1998 / TIlls research report examines the traditional theories of punishment, that is, retribution, deterrence and rehabilitation, and assesses their practical and empirical relevance in South Africa at the present time. It is argued that the theories of retribution and deterrence are largely inadequate to deal with offenders effectively, and consequently little relief in the crime rate could be anticipated if we were to institute a system of punishment based purely on punitive considerations. By contrast, it is argued that the theory of rehabilitation offers a more holistic approach to deal with offenders, and is really the only system which takes crime control seriously. In sum, it is argued that a system of punishment rooted in retributive 01' deterrent principles will neither be more just, more effective nor more humane than a system which has rehabilitation of offenders as its goal.

Le droit de la famille contemporain connaît ces dernières années une profonde modification de son arsenal sanctionnateur. En première approche, ces évolutions donnent une impression de désordre : déclin des sanctions des manquements aux devoirs du mariage, renouvellement des sanctions des violences conjugales, résurrection de la suppression des allocations familiales, discussion sur la responsabilité pénale des parents du fait de leurs enfants, etc. La sanction, entendue ici comme toute conséquence juridique attachée à la violation d'une obligation familiale, n'échappe pas à l'inflation législative générale. Au cours des dernières décennies, le droit des sanctions a néanmoins subi des mutations spécifiques dans le domaine familial. Composé d'une vaste panoplie de mécanismes, relevant aussi bien du droit civil que du droit pénal ou du droit de l'aide et de l'action sociales, le droit familial des sanctions cherche tantôt à punir, tantôt à réparer, parfois à contraindre et, de plus en plus, à dissuader et inciter. La thèse offre une lecture des obligations et de l'ordre public familial à travers le prisme des sanctions. Il s'agit de s'attacher à la pertinence des sanctions, définie comme l'adéquation aux objectifs assignés par la politique familiale et la faisabilité des sanctions du point de vue de la technique juridique. Est-il possible d'élaborer une théorie générale des sanctions dans le domaine familial ? Peut-on dégager des principes directeurs qui éclairent les évolutions des sanctions en droit de la famille ? Plus précisément, dans un contexte où les individus contestent de plus en plus l'intrusion de l'État au sein de la sphère privée et où tout doit être consenti pour acquérir une légitimité, y a-t-il encore une place pour la sanction ? Quels sont notamment les devoirs compatibles avec l'individualisme ambiant et ceux qui ne le sont plus ? La thèse soutenue est celle d'une divergence des sanctions entre deux tendances opposées. Cette divergence conduit à une césure qui permet de comprendre et d'ordonner les évolutions en cours. L'exploration systématique des sanctions des obligations familiales permet en effet de découvrir une fracture grandissante du droit de la famille entre un droit horizontal du couple et un droit vertical des relations parentales. Ces deux droits, qui autrefois se renforçaient mutuellement par une complémentarité structurelle, se sont peu à peu disjoints. Ils apparaissent aujourd'hui comme des droits autonomes, voire contradictoires : leur philosophie diffère, leurs objectifs divergent et le droit tend à les traiter de façon dissociée. D'un côté, chacun attend aujourd'hui du couple qu'il permette l'épanouissement individuel, et ce avec le plus grand libéralisme possible. Le droit suit cette demande sociétale, comme en témoigne le relâchement des sanctions des obligations du mariage. Les limites de cette libéralisation horizontale existent certes, mais elles campent à la frontière de ce que la société juge tolérable, non plus dans le couple mais dans la pleine généralité des relations entre personnes adultes, qui n'ont plus grand-chose à voir avec la famille. Ces limites sont donc d'ordre générique. De l'autre côté, la pression sociétale monte en matière d'attentes dans la relation verticale. Il s'agit non seulement d'interdire des comportements jugés inacceptables ou déviants, mais surtout d'inciter les parents à remplir leurs missions. La société n'entend en effet pas prendre ces missions à sa charge en se substituant à la famille, alors même qu'elle donne aujourd'hui aux fonctions parentales une importance considérable. Dès lors, dans ce champ vertical, toute sanction performante trouve a priori une légitimité. Libéralisme horizontal, exigences verticales : comment concilier ces deux tendances ? C'est là toute la difficulté face à laquelle se trouve le droit des sanctions en matière familiale. / In recent years, the body of penalties related to family law has known huge developments. At first sight, these developments give a taste of disorder: decline of penalties when breach of marriage duties, renewal of penalties against wife-beating, restoration of the removal of family allowances, discussion on the criminal responsibility of parents to their children, etc. Punishment, understood here as any legal consequences attached to the violation of a family obligation, is no exception to the observed global legislative inflation. Nevertheless, in recent decades, the law of sanctions has known specific changes in the family area. Composed of a wide variety of mechanisms, both under the civil law or criminal law right to assistance and social action, family law sanctions seek to punish sometimes, sometimes to repair, sometimes forcing and, increasingly, to support or dissuade. The thesis offers a reading of obligations and public family through the prism of sanctions and punishments. It aims at focusing on the relevance of specific sanctions, defined as the capability to achieve family policy and the feasibility of sanctions from the point of view of legal technique. Is it possible to develop a general theory of punishment in the field of family law? Can we identify guiding principles that inform recent developments of sanctions in Family Law? More specifically, in a context where individuals increasingly challenging the intrusion of the state in the private sphere, and where constant attention is required to guaranty legitimacy, is there still a place for punishment? Which particular duties are still consistent with the dominant individualism and which are obsolete? The thesis is based on an observation: a divide between two opposing tendencies. This divergence leads to understanding and ordering the current historical developments. The systematic exploration of sanctions family obligations makes it possible to discover an increasing gap in family laws between on the one side an horizontal body of laws relating to the couple, and a vertical body of laws relating to the parental relationships. These two bodies of laws that once had been mutually reinforcing because they were structural complements have gradually disjoint. They now appear as autonomous, if not contradictory: their philosophies differ, their goals diverge and law tends to treat them as dissociated. On the one hand, everyone is expecting today that the couple life will allow individual bloom and fulfillment, with the utmost possible liberalism. The law follows this social demand, as evidenced by the relaxation of sanctions in marriage obligations. The limits of such liberalization of horizontal relationships exist, but they camped at the border of what society deems tolerable, not between husband and wife, but in full generality relations between adults. Such laws and obligations have no longer much to do with family. These limits are of a generic nature. On the other hand, societal pressure rises on expectations in the vertical relationship. This is not only to prohibit unacceptable behaviors or deviant, but also to encourage parents to fulfill their missions. Society does not intend to substitute family to accomplish these missions. It keeps giving parental duties a considerable importance. Therefore, in this vertical domain, any efficient punishment is a priori legitimate. Horizontal liberalism, vertical demand: how to reconcile these two trends? Therein lies the difficulty that faces the law of sanctions in the field of family.

Thesis (M.A.)--Ohio State University, 1983. / Includes bibliographical references (leaves 117-129). Available online via OhioLINK's ETD Center

Crime severity has been found to be one of the best predictors of sentencing decisions (Darley, Carlsmith, & Robinson, 2000). There is however a dearth of research examining the effect of offender and victim ethnicity on perceptions of crime seriousness, and the few studies that do exist have produced equivocal findings. Some studies find an effect of victim ethnicity (e.g., Cohen-Raz, Bozna, & Glicksohn, 1997), some studies find no significant effects of offender nor victim ethnicity (e.g., Benjamin, 1989), and some studies only find effects under certain conditions, such as when the crime is of low seriousness (e.g., Herzog, 2003a). The present study was conducted in an attempt to clarify these convoluted findings by using measures of modern and old-fashioned prejudice. Whereas old-fashioned prejudice refers to the belief that an out group is in someway inferior, modern prejudice refers to the view that a minority group no longer faces discrimination or that the minority group is being too pushy when advocating for equal rights (McConahay, 1983). Using a sample of undergraduate psychology students, it was found that when the crime was perceived as being quite severe, harsher punishments were recommended for the offender. Further to this, participants scoring high in modern prejudice perceived crimes to be more severe and recommended longer sentences in certain offender-victim ethnicity conditions than participants scoring low in modern prejudice. However, contrary to the hypotheses, no significant differences were found between high and low old-fashioned prejudice participants. Perceived offender responsibility and stability were also found to affect perceptions of crime severity and recommended punishment. When an offence was described as being stable (i.e., the offender had committed similar crimes in the past), participants rated the crime as being more severe and recommended a harsher punishment than when it was the offenders first offence. Additionally, when participants attributed responsibility for the crime to the offender, crime severity ratings were higher and recommended punishments were longer. The implications of these results are discussed and recommendations for future research are put forward.

This research provides a local case study of responses to ‘gender’ and ‘diversity’ within Canada’s federal parole system. I examine the following questions: How are certain ‘differences’ and categories of offenders constituted as targets for ‘accommodation’ or as having ‘special needs’? How do penal institutions frame ‘culturally relevant’ or ‘gender responsive’ policy and, in doing so, use normative ideals and selective knowledge of gender, race, culture, ethnicity, and other social relations to constitute the identities of particular groups of offenders? I explore these questions by tracing the history of policy discussions about gender and facets of diversity within legislation and penal and parole policies and practices, as well as the current approaches to managing difference used by the National Parole Board (NPB). Specific focus is given to the organizational responses and approaches developed for Aboriginal, female, and ‘ethnocultural’ offenders. In this study, I show that the incorporation of diversity into the federal parole system works to address a variety of organizational objectives and interests, including fulfilling the legislative mandate to recognize and respond to diversity; appealing to human rights ideals and notions of fairness; managing reputational risk and conforming to managerial logics; instituting ‘effective’ correctional practice; and addressing issues of representation. At the same time, the recognition of gender and diversity produces new penal subjectivities, discourses, and sites upon which to govern. I argue that the accommodation of gender and diversity provides a narrative of conditional release and an institutional framework that positions the NPB as responsive to the diverse needs and/or experiences of non-white and non-male offenders. In the Canadian context, the penal system strives to deliver ‘fair’ punishment through the selective inclusion of difference, and without altering or reconsidering fundamental structures, practices, and power arrangements. Diversity and difference are instead added onto and/or incorporated into preexisting penal policy and logics, including risk management and managerialism.

In this paper I discuss retributivist justifications for legal punishment. I argue that the main moral retributivist theories advanced so far fail to support a plausible system of legal punishment. As an alternative, I suggest, with some reservations, the legal retributivism advanced by Alan Brudner in his Punishment and Freedom.

I argue here that the practice of penal torture is not intrinsically wrongful. A common objection against the practice of penal torture is that there is something about penal torture that makes it wrongful, while this is not the case for other modes of punishment. I call this claim the asymmetry thesis. One way to defend this position is to claim that penal torture is intrinsically wrongful. It is the claim I argue against here. I discuss and reject three versions this claim. I first address a version that is based on the idea that penal torture, unlike other modes of punishment, is intrinsically wrong because it is inhuman. I then address a version grounded on the claim that, because penal torture is an assault upon the defenseless, it is morally impermissible. Finally, I discuss a version that concerns the idea that penal torture attacks human dignity and undermine agency.

Recent research has posited that retributiveness is an individual level disposition that can help us understand foreign policy preferences (e.g. Liberman 2006, Liberman 2007, Liberman in press, Stein n.d.). However, previous research is limited in two related respects. First, previous research relies on correlational data, blunting our ability to make clear causal inferences. Also, retributiveness is not made theoretically distinct from general hawkishness. In this paper, I present results from two experiments to refine our understanding of how retributiveness can affect support for use of the military. In the first experiment, I examine how retributiveness affects support for greater military commitment across a number of potential missions. In the second experiment, I examine how retributiveness interacts with different rhetorical justifications for military endeavors (e.g. punishing transgressors versus eliminating a foreign policy threat).

Crime severity has been found to be one of the best predictors of sentencing decisions (Darley, Carlsmith, & Robinson, 2000). There is however a dearth of research examining the effect of offender and victim ethnicity on perceptions of crime seriousness, and the few studies that do exist have produced equivocal findings. Some studies find an effect of victim ethnicity (e.g., Cohen-Raz, Bozna, & Glicksohn, 1997), some studies find no significant effects of offender nor victim ethnicity (e.g., Benjamin, 1989), and some studies only find effects under certain conditions, such as when the crime is of low seriousness (e.g., Herzog, 2003a). The present study was conducted in an attempt to clarify these convoluted findings by using measures of modern and old-fashioned prejudice. Whereas old-fashioned prejudice refers to the belief that an out group is in someway inferior, modern prejudice refers to the view that a minority group no longer faces discrimination or that the minority group is being too pushy when advocating for equal rights (McConahay, 1983). Using a sample of undergraduate psychology students, it was found that when the crime was perceived as being quite severe, harsher punishments were recommended for the offender. Further to this, participants scoring high in modern prejudice perceived crimes to be more severe and recommended longer sentences in certain offender-victim ethnicity conditions than participants scoring low in modern prejudice. However, contrary to the hypotheses, no significant differences were found between high and low old-fashioned prejudice participants. Perceived offender responsibility and stability were also found to affect perceptions of crime severity and recommended punishment. When an offence was described as being stable (i.e., the offender had committed similar crimes in the past), participants rated the crime as being more severe and recommended a harsher punishment than when it was the offenders first offence. Additionally, when participants attributed responsibility for the crime to the offender, crime severity ratings were higher and recommended punishments were longer. The implications of these results are discussed and recommendations for future research are put forward.

The 17th century was a time of change in Sweden. During the century many of the Swedish laws were altered. In the beginning of the 17th century this alteration resulted in a more severe sentence for most of the committed crimes, but a mitigation of the sentence for some of those crimes was effected in the middle of the 17th century. The aim of this study is to see how two local courts in the judicial system during the mid 17th century in Sweden treated adultery, and those who committed the crime against the background of what the law regarding adultery stipulated. The source material used are court records from Fryksdals hundred and Jösse hundred in western Sweden, and laws regarding adultery during the 17th century. This research shows that the laws regarding adultery were in themselves not gender specific, and their main concern was the marital status of those involved. The punishment for all forms of adultery was a death sentence during the first half of the 17th century, but during the latter part of the century the punishment for a specific form of adultery, when only one of the involved was married, was mitigated to a fine which differed according to marital status. In most of the cases both courts in Fryksdals hundred and Jösse hundred applied the law as it was written in their verdict, and the verdicts of acquittals were few. There is however a tendency in the findings towards a difference between the actual local courts at the end of the first half of the 17th century. Court records show that Fryksdals hundred, which generally had more crimes regarding adultery than Jösse hundred, during that time applied a more rigorous attitude towards those crimes. The conclusion is that, although the results from both hundreds do not differ much from the general picture of adultery in Sweden, there is still a tendency of a difference between the actual local courts themselves.