Crime is defined as an act that the jurisprudence makes punishable and is frequently called an discourtesy. It is an discourtesy against the populace, as compared to a civil wrong, which is a error against an single and gives rise to an action for amendss. Crimes produce two sorts of hurts: Social and Personal. Social hurt pertains to the State and it is repaired through the infliction of punishment prescribed by jurisprudence, and Personal hurt pertains to the offended party and it is repaired by damages which is civil in nature. It is exactly because of these hurtful effects that the State is empowered to do penal Torahs and oblige its people to follow them in order to keep peace.
Crime has been in being for a long clip, although it was non called as such. In the Bible, Adam and Eve disobeyed the Lord by eating the fruit of the tree of cognition despite an express prohibition to make so. Some may see what they did as a offense, although against a different being. Biblical passages found in the first five books of the bible, jointly called Torah, have referred to the rule of “ an oculus for an oculus ” as footing of the infliction of punishment.
The earliest statute set of offenses or discourtesies with corresponding penalty was the Code of Ur-Nammu dating back in 2050 BC. It was written in the Sumerian linguistic communication and contained a list of forbidden Acts of the Apostless with their corresponding punishment if violated. The Code had commissariats on dismissal based on corruptness, protection of the hapless, and significantly, a system of penalty wherein the penalty for the offense committed is just. Its name, Ur-Nammu ‘s Code, is really a misnomer, because historiographers are of the sentiment that his boy, Shugli, is the existent writer of the Code.
In 1700 BC the Babylonian King, Hammurabi developed a codification of Torahs with the rule, lex talionis ( which literally means the jurisprudence of revenge ) , which was called the Hammurabi ‘s Code. This rule enshrined in ancient jurisprudence, merely means that the pained party may return the same piquing action to the beginning of such act. For case a individual from one folk kills a member of another folk ; the jurisprudence allows the infliction of the same and equal punishment to the piquing party, which means the wrongdoer shall be put to decease. Lex talionis embodies the rule of exact revenge. The punishment for the misdemeanor of the codification was barbarous, barbarian and inhumane. Larceny was punished by cutting off a finger or the manus. The lingua was cut off if a individual commits calumny. The bench is headed by a individual individual or a group of individuals make up one’s minding on a instance, non on virtue or jurisprudence, but on the footing of imposts and tradition. In some instances, an accused was made to plunge in the River Euphrates to happen out if he is guiltless or non. If the wrongdoer floats, it means he is guiltless, hence, he keeps his house and the accuser is put to decease. However, if he drowns, it means that he is guilty and the accuser gets his house.
In Ancient Greece, the penal jurisprudence is described as being “ Draconian, ” derived from Draco, the first Grecian legislator. Laws were singled out as being merciless. Capital penalty or decease was imposed for offenses, even for minor discourtesies. Ancient Rome had offered a more systematic system than Ancient Greece. However, the footing of punishment remained to be requital and it was made incumbent upon the victim ‘s household to function such penalty.
A system of authorities was already in topographic point before the Spaniard conquered the Philippines in 1565. It was called “ barangay ” which came from the Malay word “ balangay ” which in bend meant boat. Why it was named as such is non clear, nevertheless, some historiographers opine that:
“ It may be inferred that the seafaring Filipinos, to give name to their nostalgic memories as they sailed in the high seas towards the Philippine archipelago, named their small towns after boats which brought them safely across the seas until they reached the Filipino Islands. ”
The Datu was the caput of the barangay. If the community was bigger, their leaders were called Rajahs. The Datu exercised Executive, Legislative and Judicial powers. Like today, both Oral and Written Laws existed. Historians had by and large agreed, that the first statute set of Torahs in the Philippines is the Code of Kalantiyaw dating back from 1433, written by Datu Kalantiyaw. Alternatively of the word jurisprudence, it consisted of the undermentioned orders:
“ First Order. Ye shall non kill ; neither shall ye make injury to the aged ; lest ye incur the danger of decease. All those who disobey shall be condemned to decease by being drowned in the river or placed in boiling H2O.
Second Order: Ye shall obey ; allow all your debts with the main be met duly. He who does non obey shall have for the first one hundred ciliums. If the debt is big, he shall be condemned to thrust his manus in thrice into boiling H2O. For the 2nd clip, he shall be condemned to be beaten to decease.
Third Order. Ye shall obey ; allow no one have adult females that are really immature nor more than he can back up ; nor be given to excessive lecherousness. He who shall non follow this order shall be condemned to swim for three hours for the first clip, and for the 2nd clip, he shall be lacerated with irritants.
Fourth Order. Observe and obey ; allow no one disturb the lull of the Gravess. When passing by the caves and trees where they are, give regard to them. He who does non detect this shall be killed by emmets, or crush to decease with irritants.
Fifth Order. You shall obey ; he who exchanges for nutrient, allow it be ever done in conformity with his word. He who does non follow, shall be beaten for one hr, he who repeats the discourtesy shall be exposed for one twenty-four hours among emmets.
Sixth Order. You shall be obliged to idolize sights that are held in regard, such as those of trees of recognized worth and other sights. He who fails to follow shall pay with one month ‘s work in gold or in honey.
Seventh Order. These shall be put to decease ; he who kills trees of venerable visual aspect ; who shoot pointers at dark at old work forces and adult females ; he who enters the houses of the headsmans without permission ; he who kills a shark or a streaky caiman.
Eighth Order. Bondage for aA doamA ( a certain period of clip ) shall be suffered by those who steal off the adult females of the headsmans ; by him who keep crabbed Canis familiariss that bite the headsmans ; by him who burns the Fieldss of another.
Ninth Order. All these shall be beaten for two yearss: who sing while going by dark ; kill the Manaul ; rupture the paperss belonging to the headsmans ; are malicious prevaricators ; or who mock the dead.
Tenth Order. It is decreed an duty ; that every female parent Teach in secret to her girls affairs refering to crave and fix them for muliebrity ; let non work forces be cruel nor penalize their adult females when they catch them in the act of criminal conversation. Whoever shall disobey shall be killed by being cut to pieces and thrown to the caimans.
Eleventh Order. These shall be burned: who by their strength or craft have mocked at and at large penalty or who have killed immature male childs ; or seek to steal away the adult females of the seniors.
Twelfth Order. These shall be drowned: all who interfere with their higher-ups, or their proprietors or Masterss ; all those who abuse themselves through their lecherousness ; those who destroy theirA anitosA ( spiritual icons ) by interrupting them or throwing them down.
Thirteenth Order. All these shall be exposed to emmets for half a twenty-four hours: who kill black cats during a new Moon ; or steal anything from the heads orA agorangs, nevertheless little the object may be.
Fourteenth Order. These shall be made slave for life: who have beautiful girls and deny them to the boies of heads, and with bad religions hide them off.
Fifteenth Order. Refering beliefs and traditions ; these shall be beaten: who eat the morbid flesh of animals which they hold in regard, or the herb which they consider good, who wound or kill the immature of theManaul, or the white monkey.
Sixteenth Order. The fingers shall be cut-off: of all those who breakA anitosA of wood and clay in theirA alangans and temples ; of those who destroy the stickers of theA catalonans ( priest/priestess ) , or interrupt the imbibing jars of the latter.
Seventeenth Order. These shall be killed: who profane sites whereA anitosA are kept, and sites where are buried the sacred things of theirA diwatas and headsmans. He who performs his necessities in those topographic points shall be burned.
Eighteenth Order. Those who do non do these regulations to be obeyed: if they are headsmans, they shall be put to decease by being stoned and crushed ; and if they areA agorangs they shall be placed in rivers to be eaten by sharks and caimans.
Despite Historians ‘ belief that the Kalantiyaw was the first statute set of Torahs in the Philippines, in 1968, William Henry Scott, proved that it was a counterfeit really made in the twentieth Century. However, such fact notwithstanding, there is a consensus among them that the ancient penal Torahs were similar to what was allegedly written by Kalantiyaw, if non the same, cruel, inhumane and barbaric. Punishment was disproportional to the offense committed. Disputes, whether condemnable or civil, were settled either by the caput of the barangay, the council of seniors or through arbitration. The ancient rule of lex talionis, which had a really narrow definition of, “ an oculus for an oculus, ” was really much alive in the early history of the Philippines, really much like in the other parts of the universe at that clip.
Bing a settlement of Spain for more than three hundred old ages, the Torahs of the Philippines are combination of common and civil Torahs, which were a merchandise of the drawn-out period within which the state was under the Spanish government. Political and commercial Torahs follow a common jurisprudence way, and, civil and condemnable Torahs, follow the civil jurisprudence.
Although long before the Spaniards came, the Philippines had a bench, headed by the datu, it was the vanquishers who gave as an organized system. The Royal Audencia was established to map as the Supreme Court during the Spanish Colonization of the Philippines, which had the power to settle contentions, and to look into the maltreatments of the Governor General in the Philippines. On the side of the jurisprudence, the Spanish Codigo Penal was extended to the Philippines by virtuousness of Royal Decree of 1870. This was finally replaced with the Spanish Penal Code of 1848, by theA Comision Codificadora de las Provincias de Ultramar, which was put in topographic point by Spanish governments, and took consequence in the Philippines in July 14, 1876. The Spanish Penal Code contained two of import inventions, which our old penal system did non hold: captivity, as a signifier of penalty, and word, as a signifier of wages for good behavior while incarcerated.
Captivity or imprisonment is the most relevant invention that the Spanish colonisers introduced in our penal system. It was used to confine a individual under intuition of perpetrating a offense, and to penalize, disable the wrongdoer, deter from perpetrating an discourtesy or rehabilitate him, upon strong belief. Captivity replaced the barbaric and inhumane punishments of olden times. The capital penalty, nevertheless, remained in the penal system, but was reserved for the most ghastly offenses, such as slaying.
The Spanish Penal Code remained in consequence during the American colonisation of the Philippines. However, seeing the demand for penal jurisprudence alteration, governments formed a Committee on Revision, the primary map of which was to revise the Penal Code put in topographic point by the Spaniards. The 1927 Commission on Revision headed by Anacleto Diaz, Quintin PAredes, Guilermo Guevara, Alex Reyes and Mariano de Joya, as members. The Committee based the revised codification on the Spanish Penal Code of 1848. On December 8, 1930, Act No. 3815 or the Revised Penal Code of the Philippines took consequence ; nevertheless, it did non undergo of import alteration of orientation or construction. The Revised Penal Code remain in consequence today, with well the same list of offenses and same mulcts, as the Spanish Penal Code of 1870.
Punishment is an allowed and a coveted signifier of societal control, provided that it complies with the basic restrictions provided for by municipal Torahs and relevant international Torahs. It is allowed to be imposed to continue societal order, which represents that province of peace and tranquility, where “ persons and groups are in maintaining with the overall strategy, imparting predictability to societal establishments. ” More, significantly penalty is imposed to accomplish justness.
Ancient civilisations have based their construct of justness, chiefly, on retribution, requital, and compensation. Punishment must be equal to the discourtesy committed, such that if a individual kills another, he shall be put to decease as penalty for his offense.
Punishment is imposed for assorted grounds, such as: to revenge the incorrect making against the wrongdoer, to instil fright in punishment if an discourtesy is committed, to disable the wrongdoer by maintaining him detained so that he will non make any more offenses and, in conclusion, to reform the wrongdoer by individualising his punishment which will, hopefully, lead to rehabilitation. These are the four doctrines of Punishment: Retribution, Deterrence, Incapacitation and Rehabilitation, severally. In most parts of the universe, requital is the primary justification in enforcing punishments. However, with the increasing regard for human self-respect, renewing justness is deriving velocity.
Following the Enlightenment period, the value of human self-respect surfaced. Immanuel Kant had said that non everything must be determined by value, self-respect he says is the “ absolute
interior value. ” The lifting importance and consciousness of human self-respect resulted in the decrease of terrible penalty imposition and paved manner for the more modern systems of penalty such as captivity and payment of mulcts for most minor discourtesies.
The new millenary brought approximately divergent positions on criminology. German philosopher Frederick NietzscheA in his book, The Birth of Tragedy, A said, “ Man ‘s highest good must be bought with a offense and paid for by the inundation of heartache and agony which the pained deities visit upon the human race in its baronial aspiration. ”
Following the rise of criminology, many different positions on penalty and its bases arose. In the twentieth century, Gallic philosopher and historian, Michel Foucault in his book, A Discipline and Punish, A made a survey ofA criminalisation or punishmentA as a coercive method of province control. He said that there are two types of penalty: Monarchal and Disciplinary. He said in his work that the intent of punishment was an indefinite one, “ the problematization of the felon behind his offense, the concern with a penalty that is a rectification, a therapy, a standardization, the division of the act of opinion between assorted governments that are supposed to mensurate, buttocks, diagnose, remedy, transform persons. ” Harmonizing to Focault, this more modern construct of punishment being a signifier of rectification is one of the bases of punishment.
In modern times, penalty is said to be imposed for the intents of: Retribution, Deterrence, Incapacitation and Rehabilitation.
Retribution has gone a long from its antediluvian and really narrow definition of “ an oculus for an oculus. ” Such rule had since so evolved to intend, proportionality of the punishment to the gravitation of the discourtesy committed. The infliction of penalty is besides seen as a disincentive in perpetrating offenses. It is believed that by enforcing a punishment for a error, other people will non be perpetrating offenses because of fright of holding to endure penalty. Incapacitation, on the other manus, means decreasing the likeliness of the wrongdoer commiting an discourtesy so you commit him in an establishment. Last, rehabilitation is said to be one of the principle behind the infliction of punishment. By rehabilitation it is meant that penalty must be used as an chance to do some positive alteration in the wrongdoer.
Amongst the four doctrines behind the infliction of penalty, requital is the most common justification in the infliction of punishment. Majority of the states in the universe adhere, chiefly, to retributive justness, such as the Philippines, wherein retaliatory justness is the norm. However, due to increasing concern for human self-respect, renewing justness is deriving popularity. In fact the present Constitution recognizes the demand to continue human self-respect, therefore:
“ Section 11.A The State values the self-respect of every human individual
and warrants full regard for human rights. ”
The Philippines has, similarly, adhered to such rule, imminent from its more recent statute law such as the Juvenile Justice and Welfare Act of 2006, which explicitly provided for renewing justness rule.
The infliction of penalty is brought approximately by the authorization in the fundamental law which provides:
“ Section 5.A The care of peace and order, the protection of life, autonomy, and belongings, and publicity of the general public assistance are indispensable for the enjoyment by all the people of the approvals of democracy. ”
In order to keep peace and order within the district, the State is empowered to do Torahs. However, such authorization is non unchecked because the Constitution itself provides for a prohibition on the infliction of cruel and unusual punishments, inordinate mulcts and passing of an ex-post facto jurisprudence. The same prohibitions are mirrored in the United Nations Universal Declaration on Human Rights, International Covenant on Civil and Political Rights, and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the Philippines adhere to.
Retaliatory justness vis-a-vis Restorative justness
Retaliatory justness has been the primary justification of enforcing penalty in most states. It pertains to the old proverb “ allow the penalty fit the offense ” made popular by Cesario Beccaria or to the more popular “ an oculus for an oculus, ” the dominant rule during the ancient times. Retaliatory Justice trades with proportionality of the offense to the punishment to be imposed upon an wrongdoer.
Renewing Justice, on the other manus, trades with individualising the punishment given to a offender, maintaining in head that something must be done for the wrongdoer in order to reform him and maintain him from making offenses and to efficaciously reintegrate him to society. Rehabilitation, reformation and reintegration are basic premises. The lifting involvement on Restorative justness is brought approximately by the increased rating and regard for human self-respect.
The cardinal premiss in a retaliatory paradigm is that offenses are hurts against the province, while renewing justness emphasizes that offenses are more than discourtesies against the province, but chiefly are misdemeanors against people and relationships. In the retaliatory theoretical account, a finding of incrimination and disposal of incrimination is involved. On the other manus, in renewing justness, the interested parties, viz. the wrongdoer, offended party and the community, action, rapprochement and reassurance.
In retaliatory system, finding about whether a offense was committed, who did it and how should he be punished are the basic inquiries. It focuses on the wrongdoer and the offense that was committed and the punishment that the province must enforce. Similarly, renewing justness is concerned with answerability, albeit chiefly to the offended party and the community, and non to the State.
Statement of the Problem
Between the Retributive justness rules and Restorative justness paradigm, which is better suited for the Philippines? What is more in maintaining with the general public assistance? Which between retributive and renewing justness efficaciously addresses the value of human self-respect despite it being a penalty? Consequently, will the new paradigm work, if there is so a displacement from retaliatory paradigm to restorative justness?
II. Aims of the Study
The aim of this survey is to re-examine the retaliatory justness theory as the primary justification of enforcing punishment, in visible radiation of the constitutional duty of the State in affording the extreme regard for human self-respect and human rights.
Besides, this survey aims to find, by comparing their values and rules, which between Retributive Justice and Restorative Justice is a better tantrum, as footing of enforcing punishment, in visible radiation of the constitutional commissariats every bit good as international instruments to which the Philippines is a signer.
Last, to find the effectiveness of utilizing Restorative Justice, as footing of punishment, by analyzing states which have adapted its rules.
III. Significance of the Study
The re-examination of the doctrines of penalty embodied in our penal Torahs will find whether the current legal model complies with the alterations in the relevant Torahs which it is dependent upon.
Upon the finding of conformity or non-compliance, necessary penal jurisprudence reforms may be suggested to outdo conform to the alterations.
IV. Scope and Restrictions
The survey will concentrate merely on Retributive and Restorative Justice rules, refering condemnable affairs merely.
The survey will concentrate on the 1987 Constitution, specifically the commissariats on the responsibility of the province to keep peace and order, regard human self-respect and prohibition on cruel and unusual punishments and excessive an lone and several mulcts, applicable penal Torahs, such as: the Revised Penal Code, the Death Penalty Law, Indeterminate Sentence Law, Probation Law and Juvenile Justice and Welfare Act, severally.
The survey will do usage of Supreme Court determinations, dictums which have touch upon Retributive and Restorative rules.
To better understand the development of Retributive and Restorative justness, the usage of foreign stuffs, American law and International Torahs shall be extensively used.
Non-legal books and other mention stuffs were utilised.
V. Methodology/Organization of Thesis
The advocate chiefly used the library in the Ateneo Professional Schools, the Rizal Library in the Loyola Schools, every bit good as that of the Miguel de Benavides Library of the University of Santo Tomas in Manila. Materials from the Internet were besides used, every bit good as Academic Papers, Journals and legislative paperss or documents. Interview with a reputable authorization in Criminal jurisprudence was besides conducted.
This thesis shall be organized by chapters.
The first chapter shall be the introductory chapter, which contains the background, aims and significance of the survey, the range and restrictions, and the methodological analysis or the organisation of the thesis. The background provides a brief treatment of the factual surroundings of the survey, which is done by supplying a historical background and the current province of things. The aims and significance will catalogue what the advocate seeks to accomplish and what impact it will convey to the society. The restrictions will put away the restraints and pertinence of the survey.
The 2nd chapter is to the full devoted to the intent, range, restrictions, and beginnings of Criminal Law in the Philippines. A treatment of offense, penalty and the Revised Penal Code was besides done.
The 3rd chapter contains an in depth treatment of the Retributive Justice Paradigm.
The 4th chapter contains an scrutiny of the Restorative Justice Philosophy.
The 5th chapter contains the analysis of the writer, after taking into consideration the relevant Torahs, international instruments and other stuff paperss.
Finally, chapter six contains the writer ‘s decision and recommendation.
VI. Definition of Footings
As found in the survey, the following shall intend:
a. Code: when used in a sentence shall refer to the Revised Penal Code.
B. Crime: for the intents of the treatment, offenses shall be used synonymously with felony or discourtesy.
c. Felony: for the intents of the treatment, felonies shall be used synonymously with discourtesy or offense.
d. Law: when used in a sentence, it shall refer to the Revised Penal Code.
e. Offense: for the intents of the treatment, offenses shall be used synonymously with felony or offense.