In one legal philosophy class, there was a heated discussion about the appropriate sentencing in a rape case. Enraged by the sheer violence of the crime, many students suggested severe punishments. However, the professor revealed that the real punishment given in the case was less brutal than the students’ suggestions, and he warned the class of the dangers of hotheaded desire for stronger punishments. In the current social context, this particular lesson may be of use.
For some time now, the media has been continually telling us how disorderly our society has become, with endless stories of violent crimes and lack of discipline in general. Sensational reports of sex crimes and alcohol abuse have been the favorite feature lately, often accompanied with criticism that the current justice system is too tolerant. Whether or not this increasing frequency of crime reports corresponds to actual increases in crime is uncertain.
One thing certain, though, is that these reports do grip people’s attention. In fact, people’s reaction to such reporting has been quite strong. The current public opinion is that our law is outrageously lenient, and that we should strengthen government’s authority with harsher criminal punishments. Consequently, politicians are swiftly passing laws that extend police authority, such as allowing officers to enter private premises without warrant under particular circumstances. Even castration and death penalties are discussed as punishment for sex criminals.
Overall, Korea seems to be turning into a puritan-like state, prioritizing severe punishments and an austere discipline over human rights, while the public is clearly under the impression that eye-for-an-eye punishments will resolve crime problems. However, is this indeed in accordance to justice and social welfare? It is time to take a moment to recover our calm and employ our reason to assess the recent trend.
To begin, in analyzing the present public opinion, we may realize that it is highly emotional and irrationally vengeful. The recent measures have not been thoroughly thought over from a utilitarian perspective, meaning that we have not considered whether these measures will indeed promote social good. Emotion, rather than reason, is the source of today’s public opinion. Unfortunately, this is exactly against the fundamental ideologies of law, for which humanity has struggled for a long time. Beccaria, an Italian legal philosopher referred to as the father of modern criminal law, suggests in Of Crimes and Punishments that the law is an institution of social contract, to which people have dedicated small portions of their freedom, in order to enjoy greater social good. The law exists to safeguard the social contract, and it must be justified from a utilitarian perspective. Hence when the law deviates from its utilitarian purposes to act on irrational grounds like vengeance, it loses its raison d’être. This may be the case of today’s measures.
Moreover, the lack of utilitarian purpose in current measures naturally leads to their lack of practical efficiency as well, in addition to ideological discrepancy. To cite Beccaria again, harsher punishments and a more austere authority may be effective in inciting fear among the people for a short time, discouraging them from committing crimes. Sadly, he adds, the human mind will eventually get used to the harsh conditions. Therefore, the intended effect of shock and awe will quickly fade in time. Thus severe punishments and strong authority cannot be long term solutions for crime. In fact, they could make society even worse off, as they make people grow more insensible and tolerant of violence. The violence of both crimes and punishments may be intensified together.
In conclusion, the public nowadays is asking for more severe punishments under a more powerful authority. These measures could possibly be in opposition to the ideology of law, and they equally lack practical significance. Beccaria once warned to distance oneself from “the excitable mass” and their “ignorance that chokes human society with monasterial laws.” Indeed, it appears that this warning should be taken into careful consideration these days, and we should utilize our reason to see that severe punishments and a powerful state are never the solution. We must instead find the real causes of the recent problems, and search for fundamental solutions.