Punishment Vs Utilitarianism

Punishment or penalty is the last end, which uses criminal addressing institutionalized, legally and legitimately to the offenses that they crack the legal order of society. The punishment is an evil that causes physical, mental and moral pain and why, precisely, requires, at least in the theoretical, justification, i.e., a set of moral and rational support, ethic-philosophical, and legal reasons. The ethic-philosophical dimension of the sentence exposes the classic modern philosophical debate between the retributivism and the preventive utilitarianism; in the discussion are in sight, mainly, the doctrines of Kant and Schopenhauer, two thinkers who have conflicting theories. The first, just the retributionist, and the second, utilitarianism preventions.

A problem since time immemorial has worried men is determined to what extent and to what point is legitimate to punish who has committed an offence. The punishment is a form of physical, moral suffering arising as natural and spontaneous response to an offence who, in turn, of

an arbitrary and deliberate way, harm to an innocent person. The offender that seemed somehow, brutal or subtle, it violates certain order loved and esteemed as right or useful by tradition, law or the values that society and the Authority considered right and necessary to preserve the good life, the common good and well-being of men.
The institutional response is the punishment or penalty. However, justify the punishment means to provide reasons and rational arguments which, ultimately, legitimize or make acceptable rationally this institution. Philosophers and Jurists throughout the centuries have wondered if the fact that a person has committed an offence is, must inflict their punishment. The considered in itself, is evil, a conscious and deliberate, damage done by men with authority and financed by the State. The means that traditional responses are emanating of legalism, authoritarianism, utilitarianism and the retributionist are not enough. The criteria drawn up by these doctrines lack argumentative deficiencies and of rationality, which makes them suspicious and unconvincing. Without a justified reason, may require to anyone, in fact, accepting the institution of punishment, if due to lack of it as arbitrary and irrational. It does not suggest that all the faults and crimes should go unpunished so just check this social and legal institution to, in the light of new considerations, specify its nature, its purpose and its eventual legitimization.
Feels that the justification of punishment involves a series of relationships and implications concerning the very existence of the State and the criminal law.

This means that the political and moral legitimacy of the criminal code, in both technique of social control, which requires freedom of citizens, is largely the same problem of the legitimacy of the State, as organized force monopoly. In the history of criminal law, reforms and turns of the law have always preceded by ethical and philosophical doctrines about the end of the penalty and reasonable conditions it must meet. What natural worth suffering has moved to philosophers and criminal defense to find a moral justification for it that is sufficiently convincing and reasonable. Being worth it, as it is and coercion in general, an essential element of the right, the moral justification of punishment is a necessary philosophical condition for the ethical legitimacy of

law.
The problem of the moral justification of punishment or penalty, legal sense, gives rise some of ethical, axiological, methodological and epistemological problems that science and criminal philosophy should begin to distinguish. Three logically involved issues are separate: the crime, the justification of punishment or punishments, which arise because of crime and research, and qualification of these procedures. He that interests people properly is the second, insofar and as soon as it implies all of the philosophical and moral problems. A criminal philosophy should, therefore, aim to investigate the scope and possibilities of a doctrine of justification moral punishment, in order that this may play a role based on a criminal policy, in a penal theory and, of course, in a legal system. An epistemological approach i.e. the axiomatic foundations of the theory requires to make a series of distinctions often passed by high and cause many confusions and deviations. It is required to distinguish at least two levels of discourse: the extra-legal and the ant legal. The first is based on external purposes and must be of worth. The second tries to be worthwhile. That is an eminently philosophical discourse. This, essentially legal. The philosophical discourse is to discover the purpose which justified or not justified punishment (criminal law), related to a normative doctrine concerning values. Legal discourse, on the other hand, describes, or create to describe, the criminal phenomena by means of propositions that are true or false.
Natural causality, which manifests itself through the inclinations, can be, and should be, neutralized by the moral causality that is not determine in any way by the laws of nature, but it is in itself reason the principle and basis of the action. Man, therefore, as a rational creature endowed with will and able to act freely, precisely because it is free and rational, conscientiously choose among complying with foreign law or transgressing it. Nevertheless, to transgress it, cannot in way some evade their responsibility and that eventually might arise from it, the guilt that accompanies the action, which is contrary to the law. The philosopher Kant, as modern and enlightened man who believed in the self-determination of the person in being moral and political, conceived because of the State and the relationship between the State and the individual as a link that should keep above all always and in all circumstances safe personal freedom. The State must respect the person and this means precisely, from the political point of view, that everyone has the right to seek happiness and to conceive it in their way, without external interference that might endanger their moral autonomy. The State cannot force anyone to be happy, but that their duty consists of ensuring the conditions for freedom of each, which allow the individual its realization. Moral and religious systems may have their ideas of virtue and construct their canons of ethical behavior, even, can, and perhaps should, influence the conduct of members who take their beliefs so behave internally and externally according to an ideal of virtue. However, that is a moral problem and is not up to the State in any way the morals of its citizens but solely the legitimacy of their actions. Morality is a matter of people and each one will solve by going to their status of being free and rational; but the legitimacy is a matter of State, not to preserve any morality, but to allow the external framework for individuals looking for in a manner consistent with the law, happiness and personal fulfillment.