Retributive justice is a theory of
punishment
Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular acti ...
that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. As opposed to
revenge
Revenge is committing a harmful action against a person or group in response to a grievance, be it real or perceived. Francis Bacon described revenge as a kind of "wild justice" that "does... offend the law ndputteth the law out of office." Pr ...
, retribution—and thus retributive justice—is not personal, is directed only at wrongdoing, has inherent limits, involves no pleasure at the suffering of others (i.e., ''
schadenfreude
Schadenfreude (; ; 'harm-joy') is the experience of pleasure, joy, or self-satisfaction that comes from learning of or witnessing the troubles, failures, or humiliation of another. It is a borrowed word from German, with no direct translation ...
'',
sadism
Sadism may refer to:
* Sadomasochism, the giving or receiving of pleasure from acts involving the receipt or infliction of pain or humiliation
* Sadistic personality disorder, an obsolete term proposed for individuals who derive pleasure from the s ...
), and employs procedural standards. Retributive justice contrasts with other purposes of punishment such as
deterrence
Deterrence may refer to:
* Deterrence theory, a theory of war, especially regarding nuclear weapons
* Deterrence (penology), a theory of justice
* Deterrence (psychology)
Deterrence in relation to criminal offending is the idea or theory that t ...
(prevention of future crimes) and
rehabilitation
Rehabilitation or Rehab may refer to:
Health
* Rehabilitation (neuropsychology), therapy to regain or improve neurocognitive function that has been lost or diminished
* Rehabilitation (wildlife), treatment of injured wildlife so they can be retur ...
of the offender.
The concept is found in most world cultures and in many ancient texts. Classical texts advocating the retributive view include
Cicero
Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the estab ...
's ''
De Legibus
The ''De Legibus'' (''On the Laws'') is a dialogue written by Marcus Tullius Cicero during the last years of the Roman Republic. It bears the same name as Plato's famous dialogue, '' The Laws''. Unlike his previous work ''De re publica,'' in wh ...
'' (1st century BC),
Kant's ''Science of Right'' (1790), and
Hegel's ''Philosophy'' ''of Right'' (1821). The presence of retributive justice in
ancient Jewish
Jewish history is the history of the Jews, and their nation, religion, and culture, as it developed and interacted with other peoples, religions, and cultures. Although Judaism as a religion first appears in Greek records during the Hellenisti ...
culture is shown by its mention in the
law of Moses
The Law of Moses ( he, תֹּורַת מֹשֶׁה ), also called the Mosaic Law, primarily refers to the Torah or the first five books of the Hebrew Bible. The law revealed to Moses by God.
Terminology
The Law of Moses or Torah of Moses (Hebrew ...
, which refers to the punishments of "life for life,
eye for eye
''Eye for Eye'' (1987) is a science fiction novella by Orson Scott Card. It first appeared in the March 1987 issue of ''Asimov's Science Fiction'' magazine. In 1990 it appeared in Card's short story collection ''Maps in a Mirror'' and also a ...
, tooth for tooth, hand for hand, foot for foot" in reference to the
Code of Hammurabi
The Code of Hammurabi is a Babylonian legal text composed 1755–1750 BC. It is the longest, best-organised, and best-preserved legal text from the ancient Near East. It is written in the Old Babylonian dialect of Akkadian, purportedly by Hamm ...
. Documents assert similar values in other cultures. However, the judgment of whether a punishment is appropriately severe can vary greatly across cultures and individuals.
Purposes
Some purposes of official retribution include:
[
* to channel the retributive sentiments of the public into the political and legal systems. The intent is to deter people from resorting to ]lynching
Lynching is an extrajudicial killing by a group. It is most often used to characterize informal public executions by a mob in order to punish an alleged transgressor, punish a convicted transgressor, or intimidate people. It can also be an ex ...
s, blood feud
A feud , referred to in more extreme cases as a blood feud, vendetta, faida, clan war, gang war, or private war, is a long-running argument or fight, often between social groups of people, especially families or clans. Feuds begin because one part ...
s, and other forms of vigilante
Vigilantism () is the act of preventing, investigating and punishing perceived offenses and crimes without Right, legal authority.
A vigilante (from Spanish, Italian and Portuguese “vigilante”, which means "sentinel" or "watcher") is a pers ...
self-help.
* to promote social solidarity
''Solidarity'' is an awareness of shared interests, objectives, standards, and sympathies creating a psychological sense of unity of groups or classes. It is based on class collaboration.''Merriam Webster'', http://www.merriam-webster.com/dictio ...
through participation in the act of punishing, under the theory that "the society that slays together stays together."
* to prevent a situation in which a citizen who would have preferred to obey the law as part of his civic responsibility decides that he would be a fool to not violate it, when so many others are getting away with lawlessness that the point of his obedience is mostly defeated.
History
In the early period of all systems of code, retribution for wrongdoing took precedence over the enforcement of rights. A rough sense of justice demanded that a criminal should be punished with the infliction of proportionate loss and pain as he inflicted on his victim. Therefore, ''lex talionis
"An eye for an eye" ( hbo, עַיִן תַּחַת עַיִן, ) is a commandment found in the Book of Exodus 21:23–27 expressing the principle of reciprocal justice measure for measure. The principle exists also in Babylonian law.
In Roman c ...
'' (an eye for an eye) was very prominent in ancient law. The Hebrew Bible
The Hebrew Bible or Tanakh (;["Tanach"](_blank)
''Random House Webster's Unabridged Dictionary''. Hebrew: ''Tān ...
is no exception, as it also included the ''lex talionis'' in its oldest form: (law of 'measure for measure
''Measure for Measure'' is a play by William Shakespeare, believed to have been written in 1603 or 1604 and first performed in 1604, according to available records. It was published in the ''First Folio'' of 1623.
The play's plot features its ...
').
In the 19th century, philosopher
A philosopher is a person who practices or investigates philosophy. The term ''philosopher'' comes from the grc, φιλόσοφος, , translit=philosophos, meaning 'lover of wisdom'. The coining of the term has been attributed to the Greek th ...
Immanuel Kant
Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German philosopher and one of the central Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works in epistemology, metaphysics, ethics, and ...
argued in ''Metaphysics of Morals
The ''Metaphysics of Morals'' (german: Die Metaphysik der Sitten) is a 1797 work of political and moral philosophy by Immanuel Kant. In structure terms, it is divided into two sections: the ''Doctrine of Right'', dealing with rights, and the ''D ...
'' (§ 49 E.) that retribution is the only legitimate form of punishment the court can prescribe:[Martin, Jacqueline. 2005. ''The English Legal System'' (4th ed.). London: Hodder Arnold. . p. 174.]Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime.
Kant regarded punishment as a matter of justice, which must be carried out by the state for the sake of the law, not for the sake of the criminal or the victim. He argues that if the guilty are not punished, justice is not done and if justice is not done, then the idea of law itself is undermined.[ Rachels, James. 2007. '']The Elements of Moral Philosophy
''The Elements of Moral Philosophy'' is a 1986 ethics textbook by the philosophers James Rachels and Stuart Rachels. It explains a number of moral theories and topics, including cultural relativism, subjectivism, divine command theory, ethical egoi ...
''
One of the reasons for the abandonment of retribution by 20th-century reformers was that they gave up on the idea of personal autonomy
In developmental psychology and moral, political, and bioethical philosophy, autonomy, from , ''autonomos'', from αὐτο- ''auto-'' "self" and νόμος ''nomos'', "law", hence when combined understood to mean "one who gives oneself one's ...
, since they believed science had discredited it. While retributive justice is usually considered as a cornerstone of criminal punishment, it has been shown that it also plays a role in private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
.
Principles
According to the ''Stanford Encyclopedia of Philosophy
The ''Stanford Encyclopedia of Philosophy'' (''SEP'') combines an online encyclopedia of philosophy with peer-reviewed publication of original papers in philosophy, freely accessible to Internet users. It is maintained by Stanford University. Eac ...
'', retributive justice is committed to three principles:
* "Those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment."
* It is "intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives hose who commit certain kinds of wrongful acts
A hose is a flexible hollow tube designed to carry fluids from one location to another. Hoses are also sometimes called ''pipes'' (the word ''pipe'' usually refers to a rigid tube, whereas a hose is usually a flexible one), or more generally ' ...
the punishment they deserve."
* "It is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers."
Proportionality
Proportionality requires that the level of punishment be related to the severity of the offending behaviour. An accurate reading of the biblical phrase "an eye for an eye" in Exodus
Exodus or the Exodus may refer to:
Religion
* Book of Exodus, second book of the Hebrew Torah and the Christian Bible
* The Exodus, the biblical story of the migration of the ancient Israelites from Egypt into Canaan
Historical events
* Ex ...
and Leviticus is said to be: "''only'' one eye for one eye", or "an eye in place of an eye." However, this does not mean that the punishment has to be ''equivalent'' to the crime. A retributive system must punish severe crimes more harshly than minor crimes, but retributivists differ about how harsh or soft the system should be overall. The crime's level of severity can be determined in multiple ways. Severity can be determined by the amount of harm, unfair advantage or the moral imbalance that the crime caused.
Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism
In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals.
Although different varieties of utilitarianism admit different charact ...
. For utilitarians, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, justified by the crime that has already been committed. Therefore, punishment is carried out to atone for the damage already done.[Cavadino, M., and J. Dignan. 1997. ''The Penal System: An Introduction'' (2nd ed.). London: Sage. p. 39.]
Subtypes
Retributive justice is of two distinct types. The classical definition embraces the idea that the amount of punishment must be proportionate to the amount of harm caused by the offence. A more recent version advocated by philosopher
A philosopher is a person who practices or investigates philosophy. The term ''philosopher'' comes from the grc, φιλόσοφος, , translit=philosophos, meaning 'lover of wisdom'. The coining of the term has been attributed to the Greek th ...
Michael Davis asserts that the amount of punishment must be proportionate to the amount of unfair advantage gained by the wrongdoer. Davis introduced this version of retributive justice in the early 1980s, at a time when retributive justice was resurging within the philosophy of law
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal vali ...
community, perhaps due to the failings of reform theory in prior decades.
A retributive justice system's assessment of blameworthiness (or lack thereof) can either justify punishment or serve merely to limit the punishments society imposes for other reasons.
Criticisms
Many jurisdictions that adopt retributive justice, especially in the United States, use mandatory sentencing
Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...
, where judges impose a penalty for a crime within the range set by the law. However, judges have limited discretion to consider mitigating factor
In criminal law, a mitigating factor, also known as an extenuating circumstance, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sente ...
s, leading to lesser penalties under certain circumstances.
When the punishment involves a fine, the theory does not allow the financial position of an offender to be considered, leading to situations in which a poor individual and a millionaire could be forced to pay the same amount. Such a fine would be punitive for the poor offender while insignificant for the millionaire. Instead of pure retribution, many jurisdictions use variants such as the European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
's emphasis on punitive equality, which base the amount of a fine not just on the offense but also on the offender's income, salary, and ability to pay. Consequently, in 2002, a senior Finnish executive at Nokia
Nokia Corporation (natively Nokia Oyj, referred to as Nokia) is a Finnish multinational corporation, multinational telecommunications industry, telecommunications, technology company, information technology, and consumer electronics corporatio ...
was given a fine of €
The euro sign () is the currency sign used for the euro, the official currency of the eurozone and unilaterally adopted by Kosovo and Montenegro. The design was presented to the public by the European Commission on 12 December 1996. It consists o ...
116,000 (US$103,000) on a traffic ticket issued for driving in a zone, based on his income of €14 million (US $
The United States dollar (symbol: $; code: USD; also abbreviated US$ or U.S. Dollar, to distinguish it from other dollar-denominated currencies; referred to as the dollar, U.S. dollar, American dollar, or colloquially buck) is the official ...
12.5 million) per year. Similarly, a Finnish businessman was required to pay €54,000 based on his yearly income of €6.5 million, making the fine equally punitive as a typical €200 (US$246) fine for the same offense would have been had it been issued to a Finn earning an average salary. The retributive theory's lack of consideration of the perpetrator's and victim's status has led many jurisdictions to move away from it in various ways, including punitive equality and taking into consideration the status and wealth, or lack of status and wealth, of an offender and their consequent ability to both pay fines and defend themselves effectively in court.
One critique of some concepts of just deserts
Desert () in philosophy is the condition of being deserving of something, whether good or bad. It is sometimes called moral desert to clarify the intended usage and distinguish it from the dry desert biome. It is a concept often associated wi ...
is that they are primitive, emphasizing social harm rather than the character and culpability of offenders, e.g., California's 1976 statute calling for "terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." More generally, prioritizing justice for the public over crime control goals has come under criticism as attributable more to the relative ease of writing sentencing guidelines as crime tariffs (as opposed to describing the appropriate influence of situational and personal characteristics on punishment) than to any sound arguments about penological theory.[
]
Alternatives
Traditional alternatives to retributive justice have been exile
Exile is primarily penal expulsion from one's native country, and secondarily expatriation or prolonged absence from one's homeland under either the compulsion of circumstance or the rigors of some high purpose. Usually persons and peoples suf ...
and shunning
Shunning can be the act of social rejection, or emotional distance. In a religious context, shunning is a formal decision by a denomination or a congregation to cease interaction with an individual or a group, and follows a particular set of rule ...
. In pre-modern societies such sentences were often the equivalent of the death penalty as individuals would find it impossible to survive without the support and protection of the society that they had wronged.
Modern alternatives to retributive measures include psychiatric imprisonment
Involuntary commitment, civil commitment, or involuntary hospitalization/hospitalisation is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hos ...
, restorative justice and transformative justice
Transformative justice is a series of practices and philosophies designed to create change in social systems. Mostly, they are alternatives to criminal justice in cases of interpersonal violence, or are used for dealing with socioeconomic issues in ...
. A general overview of criminal justice
Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the Rehabilitation (penology), rehabilitation of o ...
puts each of these ideals in context.
One libertarian
Libertarianism (from french: libertaire, "libertarian"; from la, libertas, "freedom") is a political philosophy that upholds liberty as a core value. Libertarians seek to maximize autonomy and political freedom, and minimize the state's e ...
approach to this issue argues that full restitution (in the broad, rather than technical legal, sense) is compatible with both retributivism and a utilitarian degree of deterrence
Deterrence may refer to:
* Deterrence theory, a theory of war, especially regarding nuclear weapons
* Deterrence (penology), a theory of justice
* Deterrence (psychology)
Deterrence in relation to criminal offending is the idea or theory that t ...
.
See also
* Capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
* Eye for an eye
"An eye for an eye" ( hbo, עַיִן תַּחַת עַיִן, ) is a commandment found in the Book of Exodus 21:23–27 expressing the principle of reciprocal justice measure for measure. The principle exists also in Babylonian law.
In Roman c ...
* Penal harm
Penal harm, an intentionally harsher punishment than "deprivation of liberty", is a range of unpleasant and miserable conditions and injuries justified by a certain ideology custodial sentences (mainly in prison or reformatory), inmates should en ...
* Proportionality (law)
Proportionality is a general principle in law which covers several separate (although related) concepts:
*The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in consti ...
* Restorative justice
* "Two wrongs make a right
In rhetoric and ethics, "two wrongs don't make a right" and "two wrongs make a right" are phrases that denote philosophical norms. "Two wrongs make a right" has been considered as a fallacy of relevance, in which an allegation of wrongdoing is c ...
"
References
Further reading
*
{{Authority control
Penology
Theories of law
Justice
Punishment