ABSTRACT

It is only apparently paradoxical that both the forces that criticize particular forms of punishment from a libertarian and reformist stance and the forces that berate the present penal regime from a ‘law and order’ stance help to create a climate of opinion in which modern means of punishment have ‘failed’. This climate in large measure derives from viewing particular means of punishment as means to some definite end - a state of affairs that should prevail among the recipients of such means, such as deterrence or reform.1 One consequence of this ‘climate of failure’ - given that the vast majority of citizens intuitively sense that some form of penal sanction is

necessary - is to give credence to those justifications of punishment and those views of the purpose of punishment that are least con­ cerned with success or failure. I refer here to justifications in terms of ‘just deserts’, victim satisfaction and ‘social defence’.2 These justifications of and purposes for punishment are the very ones that anybody concerned to minimize the punitiveness of sanctions and who favours the most thorough legal regulation of punishment should fear. Deterrence and reform have been the goals in terms of which reformers have sought to reduce the severity of punishments. The failure to achieve these goals makes it possible to argue for punishments that appear less likely to fail precisely to the degree they approach the ritualistic ends of vengeance and the raising of the morale of the law-abiding.