Non Consequentialist Approach Essay

Week 7

Q1

According to Duff and Garland, what are the central differences between consequentialist and non-consequentialist’ theories of punishment?

- The former asserts that the “correctness” of an action should be assessed based upon its consequences. Thus to justify punishment, it must be devoid of actual or potential undesirable results. Seeing as it is incredibly unlikely that this will be achieved, this is qualified by the opting for a method that operates at the greatest level of efficiency whilst having the least negative impacts. Although a further complication is that there is no fixed criteria of what constitutes a positive impact or a fixed hierarchy of negative results. The utilitarian approach is one means of helping to measure the positive impacts, looking at human rights and societal as well as individual welfare; something that the non-consequentialist approach does not focus on. This denotes the biggest difference being that this

However, when we put so much formal criminality into practise, can we hope to create a definition that caters only to substantive criminality when its formal counterpart makes up a predominant part of a society’s law? One could suggest a two-fold definition that sees the formal aspect providing a more subtle support mechanism for the latter to make it practical and workable. But incorporating the formal aspect would almost ignore the fluidity of criminality and ignore the fact that criminality is an ever changing thing; thus casting doubt over whether it is wise to even begin to make a definition of criminality. And if I revert back to the suggestion of a two-fold definition, it would be rendered redundant when the formal side cannot match the substantive side; something that is unlikely to occur so