Lecture on Legislation
Aynal haque
Lecturer, Green university of Bangladesh
Deterrent Theory
Salmond considers deterrent aspects of punishments is the
most important. According to him punishment is before all
things deterrent and the chief aim of law is to make the
evildoer an example and a warning to all that are like
minded with him.
The main object of punishment is to make commission of an
offence an ill bargain for the offender and deter other from
committing the crimes. This end of criminal justice is
achieved by inflicting severe punishment on the offenders.
Cont.
There is a lot of criticism of deterrent theory of
punishments in moderns times. It is contended that the
deterrent theory of punishment is ineffective in checking
crime. Even when there is a provision for severe
punishment in penal system people continues to commit
crime.
The critics of deterrent theory argues that it has proved to
be ineffective in restricting crimes even during the reign of
Queen Elizabeth who was a staunch supporter of deterrent
theory and awarded severe punishments for minor offences
such as pickpocketing.
Cont.
Offences were rampant and pickpockets were seen busy in
their criminal activity among the crowds which gathered to
which the execution of condemned pickpocket.
It is pointed that with the increase in the severity of
punishments crimes has also increased. Excessive
harshness of punishments tends to defeat its own purposes.
Deterrent punishments is likely to harden the criminals
instead of creating in him the fear of law. Hardened criminal
are not afraid of punishments.
Preventive Theory
Another object of punishment is preventive or disabling. The
offenders are disabled from repeating the offences by such
punishments as,
1. Imprisonment
2. Death
3. Exile
4. Forfeiture of office etc.
Cont.
By putting criminal in jail he is prevented from committing
another crime. The preventive theory concentrate on the
prisoner but seeks to prevent him from offending again in
future.
According to Justice Holmes:
Prevention of crime would seem to be the chief and only
universal purpose of punishment.
Cont.
Example:
An example of preventive punishments is the cancellation of
driving license of a person. As he has no license, he is
prevented from driving.
Relation between preventive theory and
deterrent theory
There is a difference between preventive theory and
deterrent theories of punishment.
1.Deterrent theory aims at giving a warning to the society
at large that crime shall not pay.
Preventive theory aims at disabling the actual criminal from
doing harm.
2. Deterrent theory set a lesson unto others and show
that crime does not pay.
Cont.
This theory pointed to the criminal and rest of the world
that ultimately punishments follow the crime and therefore
crime should be avoided.
On the other hand preventive theory disable the wrongdoer
from repeating the crime . The theory does not act so much
on the motive of the wrongdoer but disables his physical
force to commit the offence.
Reformative Theory
This theory is of recent origin and its origin to the Italian
school headed by Lombroso and French Writer La –
Cassagne who put forward the doctrine that main object of
punishment should be reform of the criminals. The majority
of the criminals are as they are because of heredity.
Cont.
According to this theory the object of punishment should be
the reform of the criminals. This theory believes even if an
offender commit a crime he or she does not cease to be a
human being.
The object of punishment should be bring about the moral
reform of the offender. He must be educated and taught
some art or industry during the period of his
imprisonment so that he may be start his life again
when he is released from the jail.
Cont.
While awarding punishments the judge should study the
character, and age of the offender his education and overall
environment, the circumstances under which he committed
the crime.
The object of doing so is to acquaint with the exact nature of
the circumstances so that he may give punishment which
suits the circumstances.
Cont.
The advocate of the reformative theory contend that by a
sympathetic, tactful and loving treatment of the offenders a
revolutionary change may be brought about in their
characters. Even the cruel hardened prisoners can be
reformed and converted into helpful friends by good words
and mild suggestions.
Hanging a criminal is merely an admission of the fact that
human beings have failed to reform the erring citizens.
Corporal punishments like whipping, death penalty destroy
all the finest sentiments of human being.
Criticism of this theory
There are so many incorrigible offenders who are beyond
the reach of reformative influences with whom crime is not
a bad habit rather crime is an instinct.
This theory alone is nit sufficient and there should be a
compromise between the deterrent theory and the
reformative theory and the deterrent theory must have the
last word. The primary and essential end of criminal justice
is deterrence and not reformation.
Cont.
According to Salmond,
The deterrent motive should not be abandoned in favor of
the reformative altogether since the permanent influence of
criminal law is contributing largely to the influence of moral
and social habits which shall prevent the abnormal
commission of crime.
Salmond warned us the only acceptance of reformative
theory is bound to lead to disastrous consequences it
should not be extended to the treatment of all the people
except the very young and insane persons.
Cont.
He added the deterrent theory must not be ignored in
criminal justice. Salmond writes the reformative elements
must not be overlooked but neither must it be allowed to
assume undue prominence.
In orderly and law abiding communities concessions may be
made in the interests of reformation which in more
turbulent society like ours would be fatal to the public
welfare.
Retributive Theory
In primitive society punishment was mainly retributive. The
person wronged was allowed to have his revenge against
the wrongdoer. It was regarded as an end in itself.
According to this theory evil should be returned for evil
without any regard to consequence. This theory is based on
the rule of natural justice, which is expressed by the maxim
that an eye for an eye, and a tooth for tooth. If a person
does a wrong intentionally it must be avenged.
Cont.
Most of the lawgivers and jurists considered retribution as
the chief purpose of the criminal justice.
This theory emphasizes that the pain to be inflicted on the
offender by way of punishment must outweigh the pleasure
derived by him from his criminal act. Thus the retributive
theory suggest that punishment is an expression of society's
disapprobation for the offenders criminal act.
Theory of compensation or expiatory theory
According to this theory, the object of punishment must not
be merely to prevent further crime but also to compensate
the victim of crime.
The contention is that the mainspring of criminality is greed
and if the offender were made to return the ill-gotten
benefits of the crime, the spring of criminality would dry up.
Criticism
Critics of this theory pointed out that it tends to
oversimplify the motives of the crime. The motives of the
crimes are not always economic. Offences against state,
religion marriage and even persons may not always be
actuated by economics motives.
There may be other motives involved in the case. In those
case theory of compensation may be neither workable nor
effective.
Which theory should we follow?
A perfect system of criminal justice can not be based on any one theory of
punishment. Every theories of punishment have their own merits and every
effort must be made to take the good points of all.
The deterrent aspects of punishments must not be ignored. Likewise the
reformative aspect must also be given its due place.
We should remember that no single theory of punishment would serve the
interest of criminal justice of administration. Undoubtedly reformative theory
must be given due credence but at the same time deterrent and preventive
aspect of punishment must also not be ignored. A perfect penal code must be
a judicial combination of these various purposes of punishment.
Meaning of legislation
The term legislation is derived from latin word legis
meaning law and latum meaning to make put or set. So
legislation means the making or setting of law.
Cont.
According to salmond legislation is that source of law
which consists in the declaration of legal rules by a
competent authority.
According to Gray legislation is the formal utterance of
the legislative organ of the society.
Legislation is a source of law:
According to analytical statute, legislation is the normal
process of law making. This school do not approve judiciary
rule of law making. They also do not admit the claim of
custom as a source of law.
According to Historical School: Legislation is the least
creative of the source of law. It is not possible to make
law by legislative action. According to this school law not
only can not be directly made by human action but can not
be abrogated or changed by such action.
Both the school go to extremes. The mistake made by the
analytical school is that ,
It regards legislation as the sole source of law and does not
attach any importance to custom and precedent.
On the other hand the mistake made by the historical school
was that it totally disregard legislation as a source of law.
Cont.
There are two obvious reasons for legislation being
regarded as one of the most important source of law.
1. It involves lying down of legal rules by the legislatures
which the state recognized as law
2. It has the force and authority of the state.
Supreme legislation and
subordinate legislation
According to Salmond legislation are two types. Legislation is
either,
1. Supreme legislation
2. Or subordinate legislation
Supreme Legislation: Legislation is supreme when its comes
from the sovereign power of the state and is incapable of being
repealed, annulled, or controlled by any other legislative
authority.
Cont.
According to the constitution of Bangladesh, Parliament is the
supreme or sovereign legislative authority . So any law made by the
parliament
1. Is the supreme law
2. Any authority can not repeal or change the law which is made by
the parliament
The executive is the subordinate legislative authority . So
1. Any law regulation made by the executive is called as
subordinate legislation
Cont.
According to Article 65 of the constitution of
Bangladesh,
Legislative power is exclusively vested into the parliament
and parliament may delegates the power of making rules,
regulation, bye laws to any other person or authority. The
person or authority to whom the power is given if make any
legislation that legislation is called delegated legislation or
subordinate legislation.
Delegated Legislation
Delegated legislation is a legislation made by a body or
person other than parliament by virtue of the power
conferred by the parliament.
When the function of the legislation is entrusted to organs
other than the legislatures by the legislature itself the
legislation made by such organs is called delegated
legislation.
Reasons for the rapid growth of
delegated legislation
1. Pressure upon Parliament:
Many factors have been responsible for the rapid growth of
delegated legislations. The concept of state has changed and instead
of talking of a police state we think state in terms of a welfare state.
This change has actually multiply the functions of the government.
As a result government needs to pass ore and more laws to achieve
the aim and objectives of welfare state.
It is realized that this massive amount of laws can not be enacted by
the parliaments even if they work day and night.
Cont.
The results is that parliament resorts to the passing of the
skeleton of bills and leaving the work of filling in the details
to the department concerned.
2. Technicality:
Modern legislations become highly technical and it is too
much to expect that ordinary parliament members will
appreciate all the implications of modern legislation. Under
these circumstances it is considered safe to approve general
principles of legislation by the parliament and leave the
details to the ministries concerned.
Cont.
3. Flexibility:
It is impossible for any statesman or civil servant to foresee all
contingencies that might arise in the future and provide guidelines for
them in the bill when it is being passed by the parliament. It is
convenient if some power is given to the department concerned to add
to the details to meet any contingency in future.
Moreover full knowledge of the local conditions may not be available to
the government at the time of passing of the law and it is desirable to
adjust the law by means of orders in council to meet the requirements
of various localities.
Cont.
Delegated legislations gives flexibility to law and there is
ample scope for adjustment in the light of experience during
the working of any particular legislations.
