The Preventive Theory: A Detailed Explanation

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preventive theory

The fear of acts which disrupt social equilibrium has inspired the imposition of punishment by those who have the power to establish and enforce the desired standards of conduct.”

-Joel Meyer, Reflections on Some Theoriesof Punishment1

In total, there exist five theories of punishment, but, the preventive theory, the deterrenttheory and the retributive theory are considered as the main three theories of punishment.

The deterrence theory suggests that the punishment which is awarded is to deter (stop) people from committing crimes by creating fear; while the purpose of the retributive punishment isthat the criminal should pay for his or her crime, this theory further prevents private vengeance as the State inflicts pain or injury on the wrong-doer for the crime he has committed, the moral satisfaction obtained from the punishment is given importance. The preventive theory of punishment seeks to prevent prospective crime by disabling the criminal.

The Preventive Theory

“There can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.”

Justice Holmes

As the name suggests that the preventive theory of punishment aims at preventing prospective crimes by disabling the criminal. This idea of punishment is similar to that of the deterrent theory.  Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of punishment due to its humanizing nature. The profounder of the preventive theory stated that the objective of punishment is to prevent offences, which can be done when the offender is checked by disablement.The disablement of the criminal may be limited or unlimited.2

Preventive philosophy states that the preventive theory of punishment serves as an effective deterrent and also as a useful preventive measure. The effectiveness of the preventive theorydepends on the factor of promptness, if there is a delay in the inquiry or investigation, the punishment or sanction would be rendered ineffective.3

The preventive mode of punishment can be classified in the following manner;

1. By instilling the fear of punishment

2. By disabling the criminal, permanently or temporarily, from committing any other crime

3. By way of reformation and/or re-education

This implies that the preventive theory of punishment is somewhat closely interlinked to the deterrent theory and the rehabilitation theory of punishment, in fact, we can relate specific deterrence to the preventive theory. Specific deterrenceis deterrence for the specific individuals who have committed the crimeand stops criminals from committing any prospective crimes; the preventive theory also aims at preventing future crimes by disabling the criminal, either permanently or temporarily. Further, the preventive theory aims at transforming the criminal, by reformation and re-education, which is the purpose of the fear of punishment.

Case: Dr Jacob George v. State of Kerala4

It was stated, that the purpose of punishment is four-fold. First is retribution which is for vengeance, second is preventive which is an eye opener for the criminal, the third is deterrence which provides punishment and the fourth is reformation.One theory cannot be preferred overanother, there should be independent usage of each theory of punishment and should combined according to the merits of the case.

Temporary and Permanent Disablement

The end goal of the preventive theory of punishment is to disable the criminal to prevent prospective crime. This disablement of the criminal may be limited or unlimited; where, limited disablement is temporary and unlimited disablement is permanent in nature. 

Imprisonment may be stated as limited disablement, when it is not life imprisonment. Here, the criminal is being disabled from committing any crimes in the future for only a temporary period of time.

Case: Surjit Singh v. State of Punjab5

One of the accused, a policeman entered the house of deceased with the intension to commit rape but failed to do so as the as sons of deceasedshouted for help. Another accused suggested the policeman to kill the deceased. The accused were liable under section 450 of the Indian Penal C

While on the contrary, the death penalty or capital punishment is more of a temporary form of disablement.

Case: Mukesh &Anr. v. State for NCT of Delhi & Ors.6

Nirbhaya and her friend were assaulted by 6 people (males), one was a minor.Nirbhaya was raped, her body was mutilated. Nirbhaya died of multiple organ failure, cardiac arrest and internal bleeding. The accused were sentenced to death, and the juvenile was sent to a juvenile home.

Frequently Asked Questions

1. What is the difference between the preventive theory of punishment and the deterrence theory of punishment?

The deterrence theory tries to put an end to the crimeby causing fear of punishment and by setting an example for the society while the preventive theory aims at preventing a crime by disabling the offender from committing any prospective crimes.

2. Is the preventive theory still prevalent?

The main objective of the preventive theory is to disable the criminal which can be temporary by way of imprisonment or permanent by way of capital punishment; both of which are prevalent today. As mentioned in the case of Dr Jacob George v. State of Kerala, one theory cannot be preferred overanother, there should be independent usage of each theory of punishment and should combined according to the merits of the case.                                               

3. Can corporal punishment be included in the preventive theory of punishment?

Corporal punishment is a barbaric form of punishment which includes punishments like modulation, flogging or whipping and torture; which may even lead to the death of the offender. This form of punishment is now abolished. The main motive of the preventive theory of punishment is to disable the offender from committing any prospective crimes. The corporal form of punishment can be included in the preventive theory and the deterrence theory.

4. Is life imprisonment temporary or permanent disablement?

Even though imprisonment may be deemed as a form of temporary disablement of the offender from the society; life imprisonment is disabling the offender from the society for his or her life span, hence disabling the offender permanently from the society so as to prevent any prospective crime.

5. Was Bentham a supporter of the preventive theory of punishment?

Jeremy Bentham was a utilitarian. The theories of punishment can be classified into two philosophies, utilitarian and retributive. The retributive, seeks to punish offenders or criminals because they deserve so. While the utilitarian, seeks to punish offenders or criminals by discouraging them, or bydeterring them. The utilitarian philosophy, furthers seeks to maximize the happiness of society.

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje 

References

1. Joel Meyer, Reflections on Some Theories of Punishment, 595 Journal of Criminal Law and CriminologyVol 59 Issue 4 (1969)

2. Shikha Mishra, Theories of Punishment – A Philosophical Aspect, 76 Imperial Journal of Interdisciplinary Research (IJIR) Vol2 Issue8 (2016)

3. CRITICAL ANALYSIS OF THEORIES OF PUNISHMENT, http://jsslawcollege.in/wp-content/uploads/2013/05/CRITICAL-ANALYSIS-OF-THEORIES-OF-PUNISHMENT1.pdf (Aug. 12, 2019, 1:15 PM)

4. Dr Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC

5. Surjit Singh v. State of Punjab, 2007IIICr. L.J. 2768(S.C)

6. Mukesh &Anr. v. State for NCT of Delhi &Ors, CRIMINAL APPEAL NOS. 609-610 OF 2017