In primitive societies, men shared with animals the emotion of resentment at injury. The sense of fear and ignorance led to barbarous method of treatment of offenders. The concept of law and order was not yet known. Consequently, the common methods of settling disputes were through personal vengeance such as dual blood feuds and reparation, etc. As pointed out by Gillin, “in those days punishment was reflective reaction to injury”.
Thus, in early societies the basis of punishment was retribution and vengeance. This obviously led to exploitation of the weaker by the stronger which resulted into complete chaos. The life and property were most insecure and always exposed to dangers. At times, even the family members of victim or his clan settled disputes with the offender or his family.
It is significant to note that even the oldest epic Bhagwat Gita justified killing in some cases as a virtuous act and to act contrary to it was considered as a sin or an act of cowardice. Dharmasastra also contained a passage saying “killing of a murderer (Atatayinah) is one’s duty, may the killer be a preceptor, child, old man or even a learned Brahmin.”
The murderer should be slain at once without considering whether the act is virtuous or vicious. As pointed out Mr. Justice K.B. Panda, this exhibits profound knowledge and farsightedness of ancient Hindu law-makers who had not only contemplated of a right of private defence but had also given due recognition to it.
The cases of property damages were generally settled by compelling the offender to pay compensation to the injured. This remedy was, however, rarely used for personal injuries. With the advance of civilization, the sense or respect for mutual rights and duties developed among people which eventually led to the evolution of law.
Later, the State came into existence and took to itself the task of maintaining law and order in the community by punishing the law-breakers. The State also sought to redress the grievances of victims who were injured by the wrongful acts of criminals. The Sovereign used punishment as a substitute for personal vengeance through retribution.
In early days, the popular modes of punishment were exile, banishment and outlawry. These methods acted as an effective deterrent in maintenance of the law and order within the community. According to Maitland, four main forms of punishment were, (1) outlawry, (2) blood feuds, (3) bot, wite, and wer, and (4) loss of life or limbs were commonly used in the early English society.
The medieval period in the history of human civilization witnessed an era of religious predominance in the western world. The tenets of religion had great impact on the administration of justice and penal policy. Crime began to be identified with sin and violence was abhored. Ecclesiastical punishments were mixed up with the religious notions of cleansing of the soul for the reformation of criminal.
Ordeal by fire and water were commonly used to establish the guilt or innocence of the accused. The genesis of punishment then lay in supernatural forces. It was generally believed that an offender by his criminal behaviour invoked the wrath of God which entailed him punishment. Offender’s guilt could be washed off by penance, remorse or expiation which by itself was a sufficient punishment to mitigate his wrong.
This finally led to the evolution of solitary confinement as means of penance by putting the wrong-doer in isolation. Particularly, the ancient penal law of India laid greater emphasis on penance or Atma-Shuddhi of the offender and believed that if the offender sincerely repented for his offence, the mental torture that he suffers due to remonstrance was in itself a great punishment for him.
The noted Italian criminologist Garofalo, however, rejected the theory of moral expiation on the ground that a criminal by nature lacks moral consciousness and therefore, expiation as a punishment has merely a theoretical significance. It must, however, be stated that Garofalo’s conclusions on expiation as a mode of punishment may be true so far habitual offenders or recidivists are concerned but expiatory methods do have a great force in reforming the first offenders and those delinquents who commit crime impulsively or under compelling circumstances.
Criticising the theory of expiation, Sir Leo Page observed that “the theory is not only wrong but actively mischievous as it would mean imposing a duty on courts to determine the degree of pain precisely adequate to expiate moral guilt.” In his view this was patently impossible. According to him, “to assess the moral culpability of a man involves the ability to look into his heart, to take account of the strength of the temptations to which he was subjected as well as the conditions which have made him what he is.”
Enrico Ferri, the noted Italian criminologists also discarded the idea that expiation should enter the arena of punishment and said, “the question of moral guilt of a criminal or of arty other human being, lies within the domain of religion and moral philosophy…, the State and its system of criminal justice can do no more than to adopt .such measures to defend the community against criminals as are reasonable to themselves and proportionate to the danger threatened to society.