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Preventive Theory of Punishment

“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

What is Actus Non-Facit Reum (1)

The preventive theory of punishment aims at staving off prospective crimes by incapacitating the criminal. This idea of punishment is analogous to that of the deterrent theory. Utilitarians such as Bentham, Mill and Austin of England substantiated the preventive theory of punishment due to its humane virtue. The founder of the preventive theory stated that punishment’s purpose is to dissuade offences, which can be done when the offender is checked by disablement. The disablement of the criminal may be limited or unlimited.

Preventive philosophy asserts that the preventive theory of punishment serves as a beneficial impediment and a useful preventive measure. The effectiveness of the preventive theory banks on the factor of timeliness; if there is a holdup in the inquiry or investigation, the punishment or sanction would be rendered futile.

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 suggests that punishment’s preventive theory is quite nearly interlinked to the deterrent theory and the restoration theory of punishment. We can relate particular deterrence to the preventive theory. Specific deterrence is for the certain individuals who have committed the crime, and it stops criminals from perpetrating any future crimes; the preventive theory also aims at deterring future crimes by disabling the criminal, either permanently or temporarily. Moreover, the preventive theory strives at transforming the criminal by reformation and re-education, which is the basis of the fear of punishment.

Case Laws:

  1. Dr Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC
  2. Surjit Singh v. State of Punjab, L.J. 2768(S.C)
  3. Mukesh & of v. State for NCT of Delhi & Ors., C. A. NOS. 609-610 OF 2017

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Written by Ritik Gupta

His name is Ritik Gupta; currently pursuing law. He has always kept pride as his everything. He deems writing as not like any other hobby but a reflection of one’s intellectuality. He likes to research on the parasitic problems and then lay them down in such a means that can be of assistance to the society. He just not studies law but treats it a controversial weapon to defeat the wrong.

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What is Actus Non-Facit Reum

What is Actus Non-Facit Reum?

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