As I Stand before You: The Emergence and Existence of Individual Justice

• Author: Siobhán Drislane
• Position: BCL, LLM (Criminal Justice) (NUI)
• Pages: 66-76

66

(2009) COLR

AS I STAND BEFORE YOU: THE EMERGENCE AND EXISTENCE

OF INDIVIDUAL JUSTICE

Siobhan Drislane *

A INTRODUCTION

This article seeks to explain the concept of individual justice which has been

identified in theories of penology. It will begin by setting out the historical practices of

punishment and then move on to trace the changing attitudes which led to the recognition

of individuality by the criminal justice system. Finally the application of the concept will

be noted in the context of contemporary Ireland.

B PUNISHMENT IN THE PAST

Prior to the nineteenth century persons guilty of a serious offence were typically

subjected to harsh physical punishment, which could include torture, branding or even

dismembering of their body. Various structural elements were devised to assist with these

punishments, such as the stake, the wheel or the scaffold for hanging. Foucault notes that

the tortures used were often symbolic in nature; that is the form of the punishment

referred to the crime itself. He notes, for example, that the ‘tongues of blasphemers were

pierced, the impure were burnt, the right hand of murderers was cut off.’1 Furthermore,

even where the primary punishment was non-corporal, such as banishment or the

payment of a fine, a ‘degree of torture’ might also be included in the penalty.2 Thus

banishment might be preceded by public exhibition or branding, while the payment of a

fine could be accompanied by a flogging. These horrific acts were carried out for several

reasons. The first was so that the crime of the offender was acknowledged, both by

himself and by society. Therefore, the body of the offender was used to proclaim that a

crime had been committed, acknowledged and now condemned. The physical punishment

(or death) was essentially a moment of truth and confession.3 Secondly, the punishment

was a public display of the power of the sovereign. As the law was the will of the

sovereign, by committing the crime the offender had not only offended society, but also

the sovereign himself. The public punishment of the offender was not only retribution for

the offence, but it also reasserted the power of the sovereign. The act of the punishment

was a clear message to all that it was the sovereign who held the ultimate power, and that

this power would be used to punish those who offended the sovereign. The fact that

painful methods were used to punish the offender may also have served to convey that

the sovereign was a far greater force that any individual, it was stronger and more

resilient and so could inflict suffering in a way that no other could. Thirdly, the public

spectacle of punishing an offender was a means of public deterrence. By carrying out

*BCL, LLM (Criminal Justice) (NUI).

1 Foucault Discipline and Punish: The Birth of the Prison (Gallimard France 1975) 45.

2 ibid 33.

3 Foucault (n 1) 43.