Justice And Criminal Justice
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Justice and criminal justice
How is criminal justice distinct from other kinds of justice?
There are clearly topics and issues of justice that are unrelated to criminal law or criminal justice. By asking if and how criminal justice is distinct, we are asking if and how it should be treated differently from these other topics.
Criminal justice systems
There are at least two questions, raised by H. L. A. Hart, in connection with criminal justice which do not directly concern punishment but are more closely related to a criminal justice system as a whole. They are
Why establish any institution of punishment at all?
Why establish this institution with its special concepts, principles of legislation, adjudicative procedures, and permissible penalties rather than some other?
Punishment
Different theories of criminal justice can usually be distinguished in how they answer questions about punishment. To avoid issues of semantics, in this section we must agree that punishment is a penalty imposed by a legal system along with (or because of) a stigma of wrongdoing or lawbreaking. This definition deliberately excludes penalties unrelated to wrongdoing or lawbreaking, even when imposed by a legal system. It also distinguishes or at least restricts this definition from the one used in operant conditioning.
Should we punish?
The answer to this question is important as a negative answer makes further questions about punishment irrelevant. In fact, if we answer no, then the theory of punishment does not even belong in the theory of criminal justice.
Most theories answer yes, that there are at least some criminals or criminal acts that should be punished. However, this question should not be so easily dismissed as there are theories which do answer no. Consider, for example, the political theory of anarchy. Also, certain versions of restorative justice might optimistically make the claim that punishment is unnecessary.
Why should we punish?
Answers to this question can be categorized as utilitarian or moralistic.
Utilitarian reasons for punishment include deterrence, incapacitation, rehabilitation, and restoration.
A popular moralistic basis for punishment is that punishment of a wrongdoer is good in and of itself. This is the position of many adherents to retributive justice. However, there are other moral arguments for punishment. These include the idea that victims have a right to retribution, or that the criminal has a right to punishment.
It is not necessary for a theory of punishment to have a single underlying reason, although many do.
Whom should we punish?
We should punish criminals. Unfortunately, the answer is not that simple. Should we