Definition and significance of the purpose of punishment
Der Purpose of punishment in criminal law refers to the normative and practical objectives pursued by the imposition and enforcement of penalties within the framework of a state legal order. The term is a cornerstone of every criminal law doctrine and serves as both the legitimation and interpretative basis for criminal sanctions. At the heart of the matter lies the question of why offenses and crimes are subject to penalties and why actual criminal acts are punished. Various theories regarding the purpose of punishment are central to legislation as well as to the practical determination of punishment and have decisively shaped discussions about the meaning and purpose of punishment to this day.
Systematics of the purposes of punishment
With regard to objectives, purposes of punishment can be divided into absolute (retribution), relative (prevention), and combined theories:
Absolute theory of punishment (retributive theory)
The absolute theory of punishment sees the sole purpose of punishment in retribution for a committed crime. Here, the injustice of the act is central; punishment is carried out for the sake of justice, independent of any future effects. The punishment is meant to balance guilt and atonement. Key proponents of this view include Immanuel Kant and Georg Wilhelm Friedrich Hegel. From this perspective, punishment is a moral balancing act and is not tied to societal benefit.
Relative theories of punishment (prevention theories)
Unlike absolute theory, relative theories emphasize the societal function and effect of punishment. These are divided into various preventive approaches:
General prevention
Die general prevention aims to deter potential offenders in society from criminal acts through the threat and enforcement of penalties. The deterrent effect (general prevention) is central; the punishment serves to maintain the legal order and affirm social norms.
Positive general prevention
Within general prevention, positive general prevention is emphasized. This focuses less on deterrence and more on strengthening legal awareness and public trust in the legal system. Through the consistent punishment of legal violations, the general public and the “sense of justice” are to be stabilized.
Negative general prevention
Die negative general prevention particularly emphasizes the deterrent effect of punishment. By threatening and enforcing sanctions, third parties are to be discouraged from committing similar offenses.
Special prevention
Die special prevention (special prevention) focuses on the individual effect of punishment on the specific offender. Here, the deterrence of the individual offender, his improvement (rehabilitation), and his incapacitation (e.g., through imprisonment if dangerous) are paramount.
Union theories
Modern criminal law doctrine usually takes into account Union theorieswhich combine both of the above-mentioned schools. Punishment is to serve both the principle of justice (retribution) and preventive objectives (deterrence, rehabilitation, protection of society). This combined approach is recognized in German criminal law and shapes both legislation and jurisprudence.
Purposes of punishment in legislation and case law
Purposes of punishment in the German Criminal Code
The German Criminal Code (StGB) does not specify an explicit purpose of punishment but in practice considers a combination of culpability, retribution, and prevention as decisive. Accordingly, § 46 StGB (Principles of sentencing) reflects various purposes, in particular, guilt, the conduct of the offender and his motives, as well as the effects of the punishment on the offender and the general public. The jurisprudence of the Federal Court of Justice (BGH) and the Federal Constitutional Court (BVerfG) regularly emphasizes that punishments must not be imposed arbitrarily but must be tied to guilt and socio-ethical purposes.
Purposes of punishment in the international context
A comparison at the international level shows differences in the emphasis on the purpose of punishment. In the Anglo-American legal system, deterrence and rehabilitation are often more prominent. In Scandinavian and continental European legal systems, a mixed approach of atonement and prevention dominates.
Significance of the purposes of punishment for sentencing
The purposes of punishment have a significant influence on sentencing. Judges must select the type and degree of punishment so that both the offender’s guilt and the impact on society and the offender are appropriately considered. Special significance is given to both special and general preventive effects, particularly in cases of repeat offenders or offenses with a high public interest.
Criticism and development of theories on the purpose of punishment
The debate about the meaning and structure of the purposes of punishment is ongoing. It is critically questioned to what extent the purposes can actually be achieved, especially with regard to rehabilitation and deterrence. More recent social trends call for greater emphasis on measures that promote social restitution (restorative justice) rather than insisting solely on repressive sanctions.
Summary
The purpose of punishment is a central element of criminal law and encompasses various legitimate objectives, from retribution to prevention. The precise weighting of these objectives varies depending on theory, legal tradition, and specific social context. In modern legal systems, integrative concepts exist that appropriately take all objectives into account. The significance of the purpose of punishment ranges from legislation, through sentencing, to social debate about the function of criminal law.
Further topics:
- sentencing
- Rehabilitation
- Special prevention
- General prevention
- Atonement
- Restorative Justice
Frequently asked questions
How do the different purposes of punishment influence sentencing in German criminal law?
Sentencing is largely determined by the purposes of punishment recognized in criminal law. In the German system, the concept of retributive justice (principle of guilt) and preventive considerations (special and general prevention) form the foundation. When determining the penalty, the court discusses which purposes are paramount: For first-time offenders committing similar offenses, special preventive aims such as rehabilitation and deterrence may take priority, which is why the court may consider a suspended sentence as sufficient. For particularly serious or highly wrongful offenses, general prevention is given more importance, so that a harsher custodial sentence may be imposed to deter the public. The absolute purpose of punishment (retribution) ensures that punishment never exceeds the limits of guilt, as expressed in § 46 StGB. The judicial weighting of the relevant purposes is regularly found in the reasoning of the judgments as it governs the interpretation and application of sentencing provisions.
To what extent do conflicts arise between different theories on the purpose of punishment?
Conflicts between theories on the purpose of punishment are common in legal scholarship and practice, particularly concerning the balance between retributive and preventive criminal law theories. A classic conflict arises, for example, when special preventive rehabilitation of an offender suggests a milder penalty, whereas general preventive deterrence, due to public protection needs, demands a harsher sanction. Excessive focus on prevention can also lead to the principle of guilt being compromised if the severity of punishment is determined mainly by presumed preventive benefit rather than individual guilt. Legislation and case law seek to address these conflicts by establishing a balanced “pluralism of purposes of punishment”: Each decision must always achieve a comprehensible, guilt-appropriate balance between prevention and retribution.
What role does general prevention play in the case law on minor offenses?
General prevention plays a significant role in minor offenses, as these offenses can occur frequently and in large numbers (e.g., shoplifting, fare evasion). By prosecuting even minor offenses, society is reminded that legal norms are binding and violations have consequences. This maintains respect for the law, which is part of so-called negative general prevention (deterrence). At the same time, especially for first-time or minor offenses, case law also considers positive general prevention by imposing milder sanctions (e.g., conditional dismissals, warnings) to strengthen public confidence in the proportionality of the justice system.
How do social developments and changes in values affect the application of purposes of punishment?
Social developments and ongoing changes in values impact the weighting and practical application of the purposes of punishment. For example, increased public awareness of certain offenses (such as sexual or hate crimes) has led to greater emphasis on general prevention and increases in corresponding sentencing ranges. Conversely, growing skepticism about the effectiveness of prison sentences and greater acceptance of alternative sanctions can shift focus toward special preventive measures and rehabilitation. Human rights considerations, for instance with juvenile offenders, have also led to a greater emphasis on education and reintegration as purposes of punishment. Case law continuously adapts its argumentation to these social changes.
Are the purposes of punishment equally relevant for all crimes or are there exceptions?
In principle, purposes of punishment systemically apply to all criminal offenses under German law, but their practical relevance varies significantly depending on the severity of the offense, type of offender, and type of offense. For the most serious crimes such as murder, the absolute purpose of retribution usually predominates, as society places particular value on atonement and just punishment. General prevention is also significant here. For minor or first-time offenses, however, special preventive objectives, especially rehabilitation and resocialization, are given greater weight, as the offender is often not yet criminalized. In juvenile criminal law, according to § 2 JGG, the educative aspect—a form of special prevention—is paramount. Exceptions also exist with regulatory offenses, as these are not considered punishments but are sanctions with predominantly preventive character.
To what extent can purposes of punishment influence the structuring of probation regulations?
Statutory relaxations regarding the granting of probation are largely shaped by preventive-oriented purposes of punishment. The possibility of suspending a sentence on probation, regulated in §§ 56 et seq. StGB, is based on the assumption that the offender can be kept from further offenses in the long term by the conviction and specific probation conditions (positive special prevention). By contrast, the absolute purpose of punishment is of lesser importance in the context of probation, as the seriousness of guilt can exclude the granting of probation. Probation also pursues social-integrative goals by making rehabilitation easier, since the offender should not be socially uprooted by imprisonment. Probation decisions are therefore always made with these preventive aspects in mind and must be fully explained by the court in its judgment.
How does the idea of rehabilitation as a purpose of punishment affect the execution of sentences?
Rehabilitation, as a central special preventive purpose of punishment, plays a prominent role in German correctional practice. The legal basis for this is found in particular in the Prison Act (StVollzG), which defines the reintegration of the inmate as the primary objective of the penal system. Accordingly, the specific implementation of corrections—such as work opportunities, therapeutic and educational programs, temporary leave, and preparation for release—is designed to make imprisonment a transitional phase toward reintegration into society. Judicial decisions regarding custodial relaxations, day release, or early release (§ 57 StGB) are also assessed from this standpoint. The consistent commitment to rehabilitation as a guiding principle distinguishes the German correctional system internationally and is also reflected in the case law of the Federal Constitutional Court.
