Unit 5: Reaction to Crime
5.1 Concept of Punishment
Punishment = the state’s deliberate infliction of pain, deprivation or censure on a person convicted of an offence, through a legal process, as the crime’s institutional answer. Its defining features (the analytical four): an offence behind it, an intended suffering within it, an authorised agent inflicting it, and a justification claimed for it — the last being the whole of punishment theory. Punishment’s scale of severity in modern law runs from censure and fine through community service and imprisonment to life imprisonment (capital punishment now beyond Nepal’s constitutional pale). Nepal’s frame: the Criminal Code 2074’s penalty catalogue and the Criminal Offences (Sentencing and Execution) Act 2074’s execution machinery; the Constitution’s floor — Art 16’s life with dignity (and its clause (2): no law shall provide for capital punishment) and Art 22’s torture bar (no inhuman treatment even as punishment’s face).
5.2 Sociology of Punishment
Punishment is not only a legal act but a social institution — its forms track society’s structures. Durkheim: punishment’s real function is the reaffirmation of the collective conscience — the denunciation ritual that binds the law-abiding (the expressive face). Foucault: the spectacle of the scaffold (punishment on the body) gave way to discipline and surveillance (punishment through the soul — the prison, the timetable, the norm) — penality’s history as power’s history. Garland: the late-modern turn — welfare corrections’ decline and the “culture of control” (mass imprisonment, the risk society’s preventive state). The sociology’s exam lesson: ask of any punishment not only “is it deserved?” but “what social work does it do?” — for Nepal: the shift from Muluki Ain‘s caste-graded, corporal penality to the 2074 codes’ equal, corrective penality is society’s own history written in penal form.
5.3 Approaches of Punishment
5.3.1 Punitive Approach
Punishment as deserved suffering for its own sake — the debt-to-society theory in administration: fixed tariffs, severity as the message, the prison as default. Strength: the retributive instinct’s honesty (proportionality, blame); weakness: the criminogenic prison (Unit 6), recidivism’s return, and the brutalisation effect where punishment imitates the crime it condemns.
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