The Real War on Terror

The Real War on Terror

It is normal that fear plays an important part in people’s political choices. This is not something new, and should not surprise us. However, fear usually leads to wrong political decisions, and we should try to avoid this. As in every aspect of life, to let fear dominate our choices is the fastest way to lose control. Since politics is all about control, losing it usually leads to very undesirable consequences. Every type of political system is defined by who has control of society. In a monarchy, the monarch controls the people. In a democracy, the people control the monarch, the president or the prime-minister. In an aristocracy, the people are controlled by a select group of aristocrats. In a dictatorship, the whole society is under the control of a dictator or of a number of dictators. Therefore, control is the key element in any political system. In order for a democracy to keep being a democracy, it is thus essential for the people to keep controlling their ruler or rulers. If the people lose the ability to control their rulers, then the rulers gain absolute control over the people, and democracy is replaced by a different system of government. Democracy means the rule by the people; if the people have no power, then democracy cannot persist.

However, sometimes people are tempted to renounce some of their power. Sometimes the people are even willing to relinquish the power they have over their rulers. Usually this happens when the people are afraid. The new millennium has been, so far, a millennium of fear. Many of us have been brought up watching the so called war on terror. After a decade of relative peace (the nineties) the west has been awaken by the events that occurred on the 11^th of September of 2001. Those events marked the beginning of a new era where terrorists have become the new number 1 enemies of the west. However, terrorists are not the only threat that we now must face. There are two great parallel wars, and not only one, going on in the world today. One is the war against Muslim fundamentalists. The second is the war against state oppression. The first is being fought by the governments of the west against Muslim fundamentalists in the name of the people that those governments represent. The second war, the one against oppression, is being fought by the people of the west against their own governments.

It has become common for governments to justify the violations of civil liberties in the name of the war on terror. Governments claim that, in order to protect their citizens against terrorists, they must be given more power. In other words, the people are expected to renounce to their power to control the government, and allow the government to control them more than ever. However, perhaps it is time to ask ourselves if we should give up our civil liberties in order to fight terrorism. If the people relinquish control in order to allow their governments to protect them from terrorists, then who will protect the people from their governments? Are civil liberties a fair price to pay for protection against terrorism? It is my opinion that they are not, that civil liberties are never a fair price to pay, since without civil liberty there can be no freedom or hope or democracy.

The events described have remitted us to one of the most fundamental political disjunctives: freedom v. security. It is likely that our future will depend on our choices now. If we allow ourselves to be overwhelmed by fear then we will chose security. However, relinquishing freedom in order to obtain security will inevitably leave us at the mercy of our governments. Such a decision would ultimately lead to state oppression, and oppression would create even more fear. This path is dominated by the politics of fear, where political decisions are driven by fear and lead only to more fear instead of a real state of security. Freedom, on the other hand, requires courage to preserve. And without freedom there cannot be any lasting happiness or democracy. People who have lived in police states know that it is never worth it to sacrifice freedom. Terror can assume many forms. It is not only represented by religious fundamentalists. State oppression is also a form of terror, and it is often one that is much harder to fight off. The true war on terror cannot be won by sacrificing freedom because it would only lead to more terror. Terror must be extinguished in all its forms, and this is only possible if the people can keep the power to control their representatives.

The war on terror is upon us. The wars on terror have already started and it is likely that they will not be over soon. The challenge we face is to fight terrorists and at the same time protect our civil liberties. We can only win this war if we can fight it without sacrificing the freedom we are trying to protect. It is of vital importance that we stop the western governments from using the excuse of terrorism in order to take our freedom away. The war on terror is not only a war against terrorists, it is also a war against oppression, and to acknowledge this is the first step to start winning the war.     

On European Constitutionalism

On European Constitutionalism

Introduction

In this essay I will aim at explaining to what extent it is true to claim that the EU has a constitution in all but name, as well as providing an account of the European legal system from a constitutionalist approach. In section one I will explain why the thesis that the EU has an unnamed Constitution is incorrect but that nevertheless the EU’s legal order possesses many typical constitutional features. In section two I will make an analogy between the EU and the UK legal systems, in order to illustrate the claim that a fully developed legal order can exist without containing a Constitution. In the third section I will elucidate how the radical changes that the EU has endured in the last five decades might invite us to question if the Westphalian system of sovereign nations is still a valid paradigm in our time. In the conclusion I will summarize what is said in the other sections and finish with some last consideration on the phenomenon of European Constitutionalism.


I. Constitutional Features of the European Legal System

The analysis of the elements that compose national constitutions is a good point of departure for a study of European Constitutionalism, since an attempt to elucidate whether the EU has or not a Constitution can only be conducted in a satisfactory manner if we can identify what elements can be found in most national constitutions and if those same elements are present in the European legal order. In order to identify the key elements of national Constitutions I will resort to the work developed in this field by Joseph Raz and to Craig’s analysis of Raz’s work.

Raz has acknowledged seven defining features of national constitutions. “First, the constitution will be constitutive in the sense of defining the main organs of government and their powers. Constitutions will contain both substantive and procedural norms of this nature. In Nation States which are federal, or where there is some measure of devolution, the structural provisions of the constitution will also identify the powers of the federal and state or regional governments.” (Craig, 2001, p. 126) In the case of the EU, this function is fully performed by the Treaty of Rome (Treaty establishing the European Economic Community of 1957 now renamed as Treaty on the Functioning of the European Union) and the Treaty of Maastricht (Treaty on European Union of 1992).

Therefore, we can affirm that this element is present in the EU legal system.

“A second feature is that a Constitution is meant to be stable. It can of course be altered, but it is meant to serve as a stable framework for the political and legal institutions of the country.” (Craig, 2001, p.126) However, the EU is a deeply unstable political form, being in constant legal and political transformation. The very nature of the process of European integration requires it to be that way. A Constitution would certainly provide the EU with a degree of stability that it is otherwise hard to achieve. But the question here is not so much the instability of the EU, but rather the fact that a Constitution must be, or at least usually is stable. The EU does not possess any document that can be considered stable in this sense. In fact, the closest thing to an EU constitutional framework, the sum of the key European Treaties, is in constant mutation like the recent ratification of the Lisbon Treaty shows. If we also consider the signings of the Treaties of Amsterdam in 1997 and the Treaty of Nice in 2001, which introduced important modifications to the “Treaty on European Union” and the “Treaties Establishing the European Union”, than we must conclude that the Constitutional basis of the EU presents clear signs of instability, and we should conclude that this constitutional feature is not present in the EU legal order.

Third, Constitutions “are normally enshrined in one or a small number of written documents.” (Craig, 2001, p.126) Again, this is not the case of the EU. The mainstream theories of European Constitutionalism usually consider a European “de facto” Constitution to be composed of a set of treaties (at least three, namely the Treaty on the functioning of the EU, the Treaty on European Union and the Charter of Fundamental Rights) that have been “constitutionalized” by the jurisprudence of the ECJ. However, this set of disparate legal sources is not an equivalent to a single document or even to a small number of written documents. The EU has a legal order which has many constitutional features, but this is not equivalent to say that it has a Constitution

“The fourth attribute of constitutions is that they are superior law. Ordinary law that conflicts with the Constitution will be invalid or inapplicable.” (Craig, 2001, p. 126)

Thanks to the development of the principles of Direct Effect and Primacy of EU law, the ECJ has managed to covert the EU law in a superior legal form, since when national norms collide with the European legal order they are considered inapplicable by the ECJ. Furthermore, the European Treaties are also considered superior to other types of European legislation, like the regulations and directives, which seems to indicate that, from the structural perspective, the EU legal system seems to operate following a strong Constitutionalist logic.

“Fifth, constitutions are justiciable, meaning that there are judicial procedures whereby the compatibility of laws and other acts with the constitution can be tested, and those that are incompatible can be declared invalid.” (Craig, 2001, p.126) European Constitutionalism also satisfies this requirement, since the ECJ has been acting as a Constitutional (as well as Constitutionalizing) Court for the last fifty years. In fact, it was the boldness of the ECJ to declare invalid the national rules that went against European norms which has truly allowed the EU to develop into a supranational rather than a mere international organisation. Ever since the establishment of the supremacy of EU law principle in the Costa v. Enel case, the ECJ has repeatedly declared the incompatibility of national laws with the EU legal framework (Factortame; Frontini v. Ministero delle Finanze; Defrenne v. Sabena) thereby declaring the inapplicability of the national dissenting laws.

“The penultimate feature of constitutions is that they are entrenched. The constitution can only be amended by special procedures, which are different from those governing ordinary legislation.” (Craig, 2001, p.126) And to a certain extent this is also true in the case of the EU. The EU constitutional framework, which is composed by international treaties, is created and modified in a different way in relation to the bulk of ordinary European legislation in the form of regulations and directives. It is also true that European Treaties are substantially harder to approve and to modify than ordinary EU legislation.

Finally, constitutions express what Raz terms a common ideology. They contain provisions about issues such as democracy, federalism, civil and political rights which express the common beliefs of the population about the way their society should be governed. (Craig, 2001) If we recur to the entirety European of its sources, it becomes clear that the EU legal system is rich in this aspect. However, there is no single document that can, by itself, claim to express the ideological legal dispositions that characterize the EU as a political-social entity. In what comes to fundamental rights, it is necessary to resort to the European Charter of Fundamental Rights. On the other hand, it is necessary to recur to the Treaty on European Union, particularly to its preamble, to identify the higher values that inspire the European Polis, “freedom, democracy, equality and the rule of law”. In fact, in the preamble of the aforementioned Treaty, what can be described as a common ideology is said to inspire the creation of the European Union and of a European citizenship. On the Title I of the same treaty, common provisions are established, elaborating on what is said on the prologue of the Treaty, and also providing dispositions on the relation between the Union and its constituent members, particularly articles 4, 5 and 7. Title II of the same treaty is also a very relevant mention, since it provides an extensive set of provision on Democratic Principles. However, any compilation of EU legal principles would not be complete without the crucial Treaty on the Functioning of the European Union, in particular part II which provides dispositions on non-discrimination and citizenship of the union, and especially part III which provides dispositions on the single market. Also, a full layout of the ideological and federative principles of the EU must include the valuable case-law provided by the ECJ, in particular the principles of primacy and direct effect of the EU law as well as its many decisions based on the non-discrimination and single market dispositions of the Treaty on the Functioning of the European Union which not only provided an interpretation of the Treaty but also had a transforming effect on EU law and politics.

Valuable conclusions may be taken from the previous study. I believe that it has made clear the fact that the EU legal system possesses many Constitutional features, but not all.

In particular, the most decisive argument against the thesis of a “de facto” European Constitution is that there is no single Constitutional document that can bear that name. As such, I believe that it is more sensible to allude to a quasi-constitutional European legal system rather than a unnamed European constitution.


II. Similarities between the British and the European Legal Systems: An Analogy

In the previous section I have assessed which types of Laws are usually present in a national constitution, and tried to establish if those Laws are present somewhere in the structure of the European Legal system. I have concluded that most of the Laws that are usually present in a Constitution can be found in the European Legal system, albeit they are not codified. This feature is not unique to the European Legal system. The UK for instance, also does not have a Constitution. However, most of the elements present in national constitutions of other countries can be found somewhere in the British legal structure. A comparative politics approach in this case is highly relevant, since both legal systems share many similarities, and both have constitutional features without actually having a Constitution.

The EU and the UK political systems share many similarities. Firstly, although the UK is considerably more centralized than the EU, both can be described to some extent as federations. Also, both organizations have been founded by an international treaty. In the British case, the Treaty of Union led to the union of England with Scotland, thus creating the UK. In the case of the EU there have been many treaties that paved the way to the signing of the Maastricht Treaty in 1992 which led to the creation of the EU in its present form and with its current name. Constitutions usually are the instrument through which countries are founded, but in the cases of the UK and the EU this has been achieved through international treaties.

Also, both the EU and the UK are similar in the sense that their Law is not codified. The absence of legal codes means that constitutional dispositions must be found in other sources, such as international treaties. In the case of the EU this is particularly relevant, since the International Treaties, namely the treaties of Rome and Maastricht actually form the constitutional legal basis of the EU. Given the absence of a European Constitution, the powers of the institutions, the decision-making process, the division of powers and the rights and duties of European citizens (especially the rights) are all contained in these two international treaties.

Also, because there are no codes of laws, the decisions of the Courts become extremely influential. Systems that are not codified confer considerable authority to the Courts of Justice, since these systems are usually much more susceptible of containing legal vacuums and unclear legal dispositions. In the case of England and the UK this gave rise to the system of Common Law where court’s decisions are binding, and in the case of the EU it created a very strong Court of Justice that has greatly shaped the European legal system by interpreting in a bold way the unclear and incomplete European treaties.

Finally, it has been said that although the EU does not have a constitution in name it has an unnamed constitution composed of International Treaties, European Laws and decisions of the ECJ. The same exact statement can and has been used to equally describe the British Legal system (that a British Constitution can be found in different sources such as International Treaties, Parliament Acts and decisions of the British courts). This statement is true to a great extent since we can expect to find the elements of most national constitutions in other legal sources in both the UK and the EU legal systems.

Summarising what has been said so far in this section, the UK and the EU share similarities such as being federations, having been created by international treaties and not having a codified system of laws and not having a constitution. Remarkably, both systems compensate for not having a constitution by a combination of international treaties, political laws and influential court decisions.

An even closer look from a comparative politics approach shows us that at least three successful democracies in the world, the UK, New Zealand and Israel, have managed to create and maintain an effective democratic polis without ever adopting a Constitution. On the other hand, historical dictatorships such as Nazi Germany, the USSR and Pinochet’s Chile, operated under a Constitution. These examples prove how political systems can be democratic and based on the rule of law without having the need to develop a Constitution, and how the mere existence of a Constitution does not guarantee the implementation of democracy or the rule of law. (Skoch, 2005)

My observations in this section lead me to judge that 1) A fully sovereign state can be created and maintained without possessing a Constitution; that 2) The mere existence of a Constitution does not guarantee the democratic or legalist character of any political structure; and that 3) A State can develop a political structure characterized by Democratic institutions and the rule of law without having to develop a formal Constitution.


III. European Constitutionalism, the Constitutionalization of the EU and a New Model of Sovereignty for Europe

The evolution of the EU as a legal-political construction has motivated academics to develop concepts such as that of European Constitutionalism. Arguably the core of the concept of European Constitutionalism is that, although the EU does not have a constitution, the successful implementation of the principles of Supremacy and Direct Effect of EC Law led to the constitutionalization of the European Treaties. (Armstrong, 1998) It is important to refer to this particular aspect of the theoretical debate on the nature of the European legal system, since it is intimately connected with the idea of a “de facto” European Constitution. I have previously argued that such a notion should be discarded, but I have not made a reference to the possibility that one particular European Treaty could be considered to be a Constitution to some extent. With the recent ratification of the Lisbon Treaty, it would be tempting to consider that particular treaty to be the philosopher stone of the European legal system and therefore grant it a quasi-constitutional status. This however, would be a mistake. The Lisbon Treaty does not constitute a legal framework by its own, like any constitutional document should. The Lisbon Treaty has been designed as an amending treaty, and has three main functions: 1) it modifies the Treaty of Rome and the Treaty of Maastricht; 2) it has made the European Charter of Fundamental Rights a legally binding document; and 3) it systemizes the European system of Treaties since it establishes a Legal-Political basis composed of the three documents previously mentioned. After discarding the Lisbon Treaty as an amending treaty rather than a constitutive one, we should however consider the three most important European treaties as serious candidates for consideration as Constitutional documents. But unfortunately none of the three documents can be considered by itself as a legal basis for the EU, since only the three together can fully perform that function. Hence, none of these three documents can be considered, on its own, a constitutional document. There is, nevertheless, another possibility. We could consider that a de facto European Constitution would be the combination of the three treaties. Thus, the European Constitution would not be a unitary document, but a document composed of three different parts. Furthermore, that three-folded European Constitution is protected and interpreted by the ECJ, which often performs functions that would usually be performed by Constitutional Courts of Justice. Although this last thesis has some considerable weight, if we stay faithful to the conception that a Constitution must be one document, we should still have to deny that the EU has a Constitution of some kind, although the combination of the Treaty of Rome, the Treaty of Maastricht and the Charter of Fundamental Rights now constitute a solid legal foundation for the European Polis.

There is a considerable difference between actually having a Constitution and having a constitutional framework that performs most of its functions. The attempt to ratify a European Constitution and its subsequent rejection by the European people have illustrated this perfectly. Consider the question “why are Europeans willing to accept a de facto constitutional arrangement (like the present one), but are not willing to ratify a fully fledged European Constitution?" It is important to understand that for the ratification of the European Constitution the direct approval of the European people, often summoned in a referendum, was asked for. On the other hand, the current legal constitutional framework has been developed through mechanisms that are not directly dependent on popular participation, namely the ECJ, the European Council, the European Parliament and the European Commission. If the peoples of Europe had decided to give their approval to a European Constitution, a new European society, founded on a common political consciousness rooted on the will of the people, would have been created. Furthermore, the symbolic power of a fully fledged Constitution, to this moment a prerogative of sovereign nations, would certainly illustrate a commitment of Europeans with the European integration process. Therefore, an actual Constitutionalization of Europe (the ratification of a European Constitution) would have an incredible importance, not necessarily because of its legal implications, but because of its legitimacy and symbolic features). The failure of the European Constitutional project, on the other hand has raised some significant obstacles to the European Integration Process. As Richard Whitman eloquently wrote in his essay “No and after-options for Europe”, “public dissatisfaction with Europe, expressed through the voting down of an agreement forged by member-state governments, indicates that there is a disjuncture between the views of citizens and those of their elite as to the benefits of continuous and deepening collaboration within the framework of an ongoing European Integration process”. (Whitman, 2005)

But even in spite of the rejection of the EU Constitution, the process of European Integration continues to show signs of progress, particularly the ratification of the Lisbon Treaty at the end of the last year. As a Political Structure, the EU is in continuous evolution, and it is no longer clear if it is an International Organization, a Federation or both at the same time. As an organization the EU presents a number of very peculiar characteristics that makes it increasingly unique. The model of legal integration that it has been pursuing is something new in the history of mankind and it might change the history of political institutions forever. The process of legal integration of the European Polis is an incredible and unlikely event, and is categorized by a crescent shift of power in Europe, from the Nations towards the EU. The role of the ECJ as a transforming agent has been paramount, since the introduction of the principles of Direct Effect and Supremacy of European law has been instrumental to create a new legal hierarchy in Europe, where European laws have precedence over national laws. This kind of structure is characteristic of Federations, where federal laws take precedence over regional laws, as can be observed in the German and American cases. However, as Weiler pointed out in his essay “A Constitution for Europe? Some Hard Choices”, this hierarchy of norms “is not rooted in a hierarchy of normative authority or in a hierarchy of real power.” As Weiler explains, the European case is atypical because “European Federalism is constructed with a top-to-bottom hierarchy of norms, but with a bottom-to-top hierarchy of authority and real power”. (Weiler, 2002)

If national Constitutions, governments, parliaments and courts of justice are subjected to the higher authority of EU Law can we still consider European nations to be fully sovereign? I believe we cannot. We have reached a stage where the Westphalian system of sovereign nations cannot be further upheld. A new kind of International Law, namely modern EU law, has eliminated the absolute form of sovereignty that European nations possessed in the past. The legal structure of the European Communities has started to change ever since the ECJ declared that “the Community constitutes a new legal order of International Law for the benefit of which the States have limited their sovereign right, albeit within limited fields”. (Weiler, 2002, p. 572) The transcendental issue of European Constitutionalism is not if the EU has a constitution or not, but rather if EU law can override national laws and constitutions, and EU law has, as the ECJ’s jurisprudence testifies, already acquired that power. Therefore, the model of sovereignty of EU member states has evolved and adopted a new shape, “in which authority and policy-making influence are shared across multiple levels of government - subnational, national and supranational” (Marks, Hooghe and Blank, 1996, p. 342) Under this new model, sovereignty is shared by different levels of government, beginning in regional levels, passing through the national level and finally reaching international levels. This model applies to virtually every dimension of European governance, including the legal hierarchy of the European Polis, the European decision-making process and even the direction of the process of European integration. Despite the fact that the member-States retain the real power in most levels (taxing, coercion, popular legitimacy and popular allegiance), their commitment to obey to a non-coercive European higher authority, what Weiler has decided to call Constitutional Tolerance (Weiler,2002) is what has granted a formidable power to the EU supranational and international institutions. The willingness of the States to respect the authority of the EU institutions and laws has created a new kind of Political Structure that is based not on coercive power but rather on the respect for supranational institutions and norms.


Conclusion

In this essay I have argued that the notion of the EU having a constitution in all but name is incorrect, since the EU does not have a document that can properly be considered as such. I have defended the idea that a Constitution is a code of laws, usually the most fundamental laws of the State, and that the EU does not possess such a document. Although the Lisbon Treaty has, de facto, introduced many of the measures that the rejected EU Constitution was aiming at, a set of International Treaties do not and cannot replace a constitution.

Like Paul Craig has claimed in his essay “Constitutions, Constitutionalism and the European Union”, although the EU possesses some characteristics of a Constitution, “it does not however possess a constitutional document that is identifiable as such containing these features. There is no document that treats the constitutional attributes in a manner separate from the many other norms contained within the treaties. Nor is there any such document that draws together the Constitutional doctrine developed by the European Court of Justice.” (Craig, 2001) Therefore a strict answer to the question “does the EU have a Constitution in all but name?” is no. In spite of this, I have argued that by a combination of Treaties, Jurisprudence and Laws it gathers enough elements to have a well developed constitutional law. I have compared the European case with the British case, and I have come to the conclusion that the UK and the EU share many political and legal features. The most important is that the EU, like the UK, has a system of law that is not codified, but has nevertheless a complete legal system if we combine all its legal sources. In other words, the EU does not have a Constitution, but it doesn’t really need one, just like the UK. In the case of the EU a Constitution would nevertheless represent a major breakthrough, since it would be a symbolic step towards a greater integration of Europe. Although a European Constitution would essentially be a symbolic step, since the EU has a legal system that gathers most of the elements of any national constitution, this is a step that Europeans are reluctant to take. However, even in spite of the failure of adopting a Constitution, the European legal system has managed to develop into an integrated European system of government and laws that presents numerous Constitutional features and follows a constitutional logic. This new model of governance and law has greatly undermined if not toppled the Westphalian order of sovereign nations in Europe.


Bibliography

Cases:

Costa v. Enel.

Defrenne v. Sabena.

Factortame.

Frontini v. Ministero delle Finanze.

van gend en loos.


International Treaties:

1707. Treaty of Union

1957. Treaty on the Functioning of the European Union.

1992. Treaty on European Union.

1997. Treaty of Amsterdam.

2000. European Charter of Fundamental Rights

2001. Treaty of Nice.

2007. Treaty of Lisbon.


Academic Articles:

ARMSTRONG, K. 1998. Legal Integration: Theorizing the Legal Dimension of European Integration. Journal of Common Market Studies, 36, 156-173.

CRAIG, P. 2001. Constitutions, Constitutionalism and the European Union. European Law Journal, 7, 125-150.

MARKS, G., HOOGHE, L., K. BLANK 1996. European Integration from the 1980's: State-Centric versus Multi-level governance. Journal of Common Market Studies, 34, 345-78.

RAZ, J. 1998. On the Authority and Interpretation of Constitutions: Some Preliminaries. In: ALEXANDER, L. (ed.) Constitutionalism. Cambridge University Press.

SKACH, C. 2005. We the peoples? Constitutionalizing the European Union. Journal of Common Market Studies, 43, 149-70.

WEILER, J. 2002. A Constitution for Europe? Some Hard Choices. Journal of Common Market Studies, 40, 563-80.

WHITMAN, R. 2005. No and after-options for Europe. International Affairs, 81, 673-87.

Punishment or Rehabilitation?

Should the main purpose of prison be to punish or to rehabilitate the offender?

In modern societies, prisons are more important than they have ever been throughout history. In almost every country in the western world, prison sentences have become a synonym of punishment, while other types of punishment have been progressively abandoned. However, is prison as punishment ever justified? And to what end? And should prisons aim at the sole punishment of offenders, or should they aim instead at reforming the prisoner? I will commence by analysing the motifs that can justify sending people to prison, thus taking their freedom away. Secondly I will discuss two theories of criminal justice which conceive prison sentences as a way to punish offenders. Finally, I will consider the view of those who believe that the primary aim of prisons should instead be the rehabilitation of prisoners. I shall conclude by giving my personal opinion on what role prisons should perform in modern societies.

How can we justify sending people to prison? What gives the State the right to take people’s freedom away? Let us begin by imagining a society that does not punish people who offend other people. Actions such as killing, raping or stealing would not be met with any resistance from the State. People would be forced to live in a situation where they would have to defend themselves, without being able to expect any help coming from the State. In other words, they would have to guarantee their own safety against possible offenders. In this situation, offenders would likely organise themselves in gangs, in order to prey on defenceless victims with enhanced efficiency. This would convince people to unite in groups in order to defend themselves from the gangs, thus creating a situation of perpetual civil war. The situation here described bears great resemblance to the State of Nature described by Thomas Hobbes in his work “The Leviathan”. Hobbes argued that in such a State of Nature people would live under constant danger and fear, and life “would be solitary, poor, nasty, brutish and short”. (Hobbes, 1660, chapter XIII) In such a state no cooperation between individuals could possibly be achieved because people would live under constant fear of each other. In order to avoid civil war and prompt individuals to cooperate it is thus necessary to provide the State with coercive means, so that it can punish individuals who offend others. Therefore, the justification of the institution of punishment is that if the State was not allowed to punish individuals when they committed crimes, it would otherwise be impossible to prevent people from systematically offending other people. Consequently, the only way to establish order in a society is to create laws that punish individuals when they offend other individuals.

This justification of punishment directs us to towards what might be called the deterrence point of view in regard to crime and punishment. According to this view, the only way to prevent individuals from offending other individuals is to let them know that if they resort to crime, they will be caught and they will be punished accordingly. The only way to effectively stop them from committing crimes is to convince them that the consequences of committing a crime are far greater than the possible gains they could achieve by committing the crime.

From a deterrence point of view, imprisonment is not substantially different than any other kinds of punishment. The important thing is that the punishment is always an undesirable consequence which is designed to deter criminals, may that be a prison sentence, a death penalty or a fine.

It is my opinion that the deterrence point of view is by far the strongest justification of punishment and also that deterring criminals is the most important function of any system of criminal law. The foundations of any peaceful society can be found in its system of criminal law, particularly in its ability to deter people from committing crimes. However, it would be a mistake to underestimate the appeal of the retributivist view on punishment. In fact, one of the oldest know legal codes, the Sumerian, was based on the well-known rule of “an eye for an eye, a tooth for a tooth”. While deterrent theories are consequentialist because they justify punishment on the basis of the desirability of its consequences, retributivism conceives the punishment of a person as an end in itself, and is therefore considered to be a deontological theory of punishment. (Matravers, 2000)

Consequentialist and Deontological theories are the two main theories of punishment. They differ substantially, and they seek to justify punishment in very different ways. As a result, the two theories also conceive substantially different system of application of the institution of punishment. As we have seen, consequentialism will justify punishing on the basis of the results that arise from the punishment of criminals. As a consequence, punishment is seen as a deterrent for crime. Retributivism, on the other hand, will justify punishment by claiming that there is a universal moral obligation to punish people who commit evil acts. Consequently, punishment is not regarded as a way to stop crime, but rather as a moral obligation. (Ten, 1991)

I consider that unlike the deterrent position, it is not so easy to justify a retributionist position, because it is not based on practical reasons, but rather on controversial philosophical considerations. Justifying imprisonment or any other kinds of punishment from a retributionist perspective is not an easy task because any justification has to rely on a universal notion of justice, according to which there is a universal need to repay evil with evil. However, is there any real proof that such a thing exists? Is there any proof that a universal justice exists, by which we should punish every offence with a proportional punishment?

And even if such a thing existed, why should only the State have the authority to apply that punishment? Why not any individual, considering that justice is a universal concept that applies to us all and not to the State in particular? Who or what gave the State the exclusive authority to punish evil people? In fact, the concept that a criminal must be punished according to what he has done has no stronger arguments supporting it than the personal feelings of those who defend this view. In that sense, retribution is not very different from revenge. Both are based on the notion that someone that commits an act of evil must receive in exchange a punishment that matches the evil act which he committed. The only real difference between revenge and retribution is that the first is taken by the interested party and the second is imparted by an impartial court of justice. Normally this is considered to be a very important difference, and those who think that way tend to believe that revenge is wrong and retribution is right. Personally, although I understand the difference between both, I cannot understand how that difference between them makes revenge wrong and retribution right. After all, both aim at the same thing, to pay evil with evil. I believe that a justification of punishment, based on the concept of universal justice cannot be sustained. No State in the world can claim to be the representative of a universal justice, since such a concept is only an invention of men, and even if it existed, its representation would descend on every individual and not only on the State in particular.

Furthermore, if we decide to adopt a retributivist view, imprisonment must be regarded as an undesirable consequence, the same way as in the deterrence position. However, proportionality plays a key role in retributivist systems, since punishments are supposed to be proportional to the crimes committed. So, if we want to adopt a pure retributivist view, any imprisonment sentence would be as bad as the crime it is a punishment for. This constitutes a problem, since retributivists find themselves in a position where they have to quantify the evilness of the crimes committed, and try to match it in the number of years of imprisonment and the living conditions in prisons. Obviously, such a task is extremely hard, if not impossible.

In the last century, a concurrent general theory of criminal justice has gained considerable popularity. This view replaces the institution of punishment by the implementation of programs which aim at the rehabilitation of offenders. The rehabilitation point of view is extremely different from both the retributionist and the deterrence perspectives. One of the most significant differences is that from a rehabilitationist perspective a prison sentence is not seen as an undesirable consequence, but rather a way to reform the criminal. As a result, a rehabilitationist system will look very different from criminal systems which are based on the deterrence of crime or on the retribution of offences.

In a rehabilitationist criminal system, sentences are designed with the rehabilitation of criminals in mind. Thus, sentences such as the death penalty, corporal punishments and fines are excluded and replaced by other forms of punishment, especially prison sentences. But even the conception of prison is substantially different for punishment-driven theories and rehabilitation-driven theories. Punishment-driven theories view prisons as a way to punish offenders, to make them suffer. On the other hand, rehabilitationists regard prisons as a place where criminals can be converted into law-abiding citizens.

But is it even possible to successfully rehabilitate someone? And if it is, how do we transform a criminal into a law-abiding citizen?

What seems rather clear is that, thus far, no country in the world has successfully developed a successful rehabilitationist criminal system. In fact, in most countries, prisons work almost as “criminal workshops” where spending time in prison is likely to make someone much more dangerous to society than he was before going to prison. It seems clear that, in order for rehabilitation to work, a different approach to the penitentiary system would be required. Although, in theory, it should be possible to rehabilitate criminals, a whole penitentiary system should be designed with that specific purpose in mind in order for it to work. The current model of prisons will never be able to provide the rehabilitation of criminals, since it is primarily designed to punish criminals, and not to reform them.

The challenge for rehabilitationism is to create a system that can successfully transform thieves, murderers, thugs and rapists into peaceful citizens. But even disposing of unlimited resources, would that be possible at all? And even if it was possible, would it be desirable to adopt rehabilitation as the general aim of an entire system of criminal law? After all, the choice to pursue the rehabilitation of criminals would represent a dramatic shift from the customary punishment-based systems of criminal justice. It is worth quoting H.L. A. Hart on this topic:

“Reform can only have a place within a system of punishment as an exploitation of the opportunities presented by the conviction or compulsory detention of offenders. It is not an alternative General Justifying Aim of the practice of punishment but something the pursuit of which within a system of punishment qualifies or displaces altogether recourse to principles of justice or proportion in determining the amount of punishment. This is where both Reform and individualized punishment have run counter to the customary morality of punishment.” (Hart, 1968, p.26)

Hart thus highlights a certain incompatibility of punishment and reform, and particularly the contradictory nature of retributivism and rehabilitationism. Hence, even if it was possible to rehabilitate offenders in some cases, to rely on treatment to decide the sentences of offenders inevitably leads to unjust sentences from a retributivist perspective. (von Hirsch, 1992)

However there are others and arguably much more powerful reasons why a penal system based on reform instead of punishment is not a viable option. Specifically, the lack of power of deterrence is a crucial weaknesses of any system based on reform. If people knew they would not be punished if they committed a crime, wouldn’t that encourage possible offenders and thus precipitate society into chaos? The necessity to avoid a constant state of anarchy is precisely what makes the existence of a criminal law system vital for any society. Yet, if a criminal system is not able to deter possible criminals from acting, would it serve society in a sufficient way? The answer to that question is, I believe, no. As Hart pointed out (1968), reform can only be executed after the crime is committed, and this means that its use is restricted to the prevention of crime by compulsive criminals. Allow me to cite Hart once more:

“Society is divisible at any moment into two classes (i) those who have actually broken a given law and (ii) those who have not yet broken it but may. To take Reform as the dominant objective would be to forgo the hope of influencing the second and – in relation to the more serious offences – numerically much greater class. We should thus subordinate the prevention of first offences to the prevention of recidivism.” (Hart, 1968, p.27)

Even if we unwisely decided to ignore the aforementioned flaw of reform-oriented theories of criminal justice, there is still another reason why a theory of that type could not be successfully implemented. The implementation of a system of criminal justice destined at the rehabilitation of criminals rather than their punishment would simply be too costly. The resources to maintain such a system are unavailable to most, if not all, states in the world. This might not be a weighty objection on the theoretical domain, but in the real world, the degree to which a system may actually be implemented using the available resources, is as important as the moral validity of any theory. In this context, it is a great disadvantage that systems directed at the rehabilitation of criminals are hopelessly impractical.

Finally, there are a number of cases where the rehabilitation of criminals is impossible because of the very nature of the crime or the criminal. It is possible to argue, with greater or less success that rehabilitation measures can be applied to many criminals. However, there are some particular cases where rehabilitation is condemned to fail or simply does not make sense at all. For instance, how do you rehabilitate a murderer? After all, there are numerous motivations that can lead someone to commit a murder, and each case is different from the next. In many cases the murderer is not even, in normal circumstances, a danger to society and doesn’t necessarily need to be rehabilitated. In other cases, like in the cases of serial killers or chronic murderers, it is very unlikely that any kind of rehabilitation program will be enough to prevent them from killing more people in the future. A similar argument could be used for rapists. Many rapists are citizens who are not usually considered as a threat to society, but who commit rape once under particular circumstances. Others are serial rapists who probably could not be transformed into law-abiding citizens even after several years of rehabilitation, and in any case it would be too risky to return them to society without any restraints.

Some very interesting conclusions can be taken from the previous analysis. Rehabilitationism is an interesting point of view, and has some positive aspects. But its lack of deterrent power constitutes its most serious flaw. It is also important to remember that any serious program of rehabilitation requires a considerable amount of resources, substantially more elevated than the resources needed to maintain a retributionist or deterrent system of criminal law.

Should the main purpose of prison be to punish or to rehabilitate the offender? If we choose to say that prisons should be a form of punishment, then we would be adopting a position based on deterrence or retribution. If we answered that the main objective of prisons should be the rehabilitation of prisoners that would distinguish us as rehabilitationists.

I have previously argued that rehabilitationism has some advantages, but that it is not acceptable as a general system of criminal law. It lacks a vital quality, deterrent power, which ultimately makes it an unsustainable model. Nevertheless, in some cases, adopting measures directed at the rehabilitation of criminals can actually be positive. In some cases, to punish someone would ultimately do more bad than good, and in those cases rehabilitation could work as a feasible alternative. However, as a dominant model for penitentiary systems in modern societies, rehabilitationism is inadequate.

So we are left the remaining alternative: punishment. The ultimate justification for taking someone’s freedom varies from retributionists to those who believe that the principal aim of criminal laws is deterrence. Retributionists base their justification of punishment on the concept of universal justice. I have argued that this position is not sustainable, since there are no objective arguments that can sustain this position. On the other hand, a theory of crime and punishment based on the necessity to deter against crime provides a much more compelling and solid justification of punishment, regardless of the form of punishment chosen. Since prisons are the standard form of punishment in most if not all western countries, privation of freedom by the State can be justified on the basis of the absolute necessity to use punishment as a deterrent against criminal actions.

Bibliography:

HART, H. L. A. 1968. Punishment and Responsability, Oxford, Clarendon Press.

HIRSCH, A. V. 1992. Should Penal Rehabilitationism be Revived? Criminal Justice Ethics, 11.

HOBBES, T. 1660. The Leviathan.

MATRAVERS, M. 2000. Justice and Punishment: The Rationale of Coercion, Oxford; New York, Oxford University Press.

TEN, C. L. 1991. Crime and Punishment. In: SINGER, P. (ed.) A Companion to Ethics. Oxford; Malden: Blackwell.