Retributive justice
Encyclopedia
Retributive justice is a theory of justice that considers that punishment
, if proportionate
, is a morally acceptable response to crime
, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
In ethics
and law
, "Let the punishment fit the crime" is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity of the infraction. The concept is common to most cultures throughout the world. Its presence in the ancient Jewish culture is shown by its inclusion in the law of Moses
, specifically in Deuteronomy
19:17-21, and Exodus 21:23-21:27, which includes the punishments of "life for life, eye for eye
, tooth for tooth, hand for hand, foot for foot." That phrasing in turn resembles the older Code of Hammurabi
. Many other documents reflect this value in the world's cultures. However, the judgment of whether a punishment is appropriately severe can vary greatly between cultures and individuals.
Proportionality requires that the level of punishment be scaled relative to the severity of the offending behaviour. However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crime more harshly than minor crime, but retributivists differ about how harsh or soft the system should be overall.
Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. 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, and strictly for punishing crimes according to their severity.
Depending on the retributivist, the crime's level of severity might be determined by the amount of harm, unfair advantage or moral imbalance the crime caused.
" in ancient law. The Bible is no exception: in its oldest form it too included the "lex talionis," the law of "measure for measure
" (this is only the literal translation of middah ke-neged middah).
In the 19th century, philosopher Immanuel Kant
wrote in The Metaphysical Elements of Justice of retribution as a legal principle: "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."
Immanuel Kant regards punishment as a matter of justice. He states that if the guilty are not punished, justice is not done.
dismisses this idea and replaces it with the idea 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 making a resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades.
s, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed man and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or not large enough to punish the millionaire.
, declaring the transgressor an outlaw
and shunning
, 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
, restorative justice
and transformative justice
. A general overview of criminal justice
puts each of these ideals in context.
One libertarian
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.
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
, if proportionate
Eye For An Eye
Eye for an Eye is a Polish hardcore punk rock band founded in 1997 in Bielsko-Biała. EFAE, as it is also known, plays an old school style of punk, more along the veins of The Exploited or even, some say, Agnostic Front. The punk stylings of EFAE has been compared to fellow countrymen Post Regiment,...
, is a morally acceptable response to crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
In ethics
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
and law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, "Let the punishment fit the crime" is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity of the infraction. The concept is common to most cultures throughout the world. Its presence in the ancient Jewish culture is shown by its inclusion in the law of Moses
Torah
Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five books of the bible—Genesis , Exodus , Leviticus , Numbers and Deuteronomy Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five...
, specifically in Deuteronomy
Deuteronomy
The Book of Deuteronomy is the fifth book of the Hebrew Bible, and of the Jewish Torah/Pentateuch...
19:17-21, and Exodus 21:23-21:27, which includes the punishments of "life for life, eye for eye
Eye For An Eye
Eye for an Eye is a Polish hardcore punk rock band founded in 1997 in Bielsko-Biała. EFAE, as it is also known, plays an old school style of punk, more along the veins of The Exploited or even, some say, Agnostic Front. The punk stylings of EFAE has been compared to fellow countrymen Post Regiment,...
, tooth for tooth, hand for hand, foot for foot." That phrasing in turn resembles the older Code of Hammurabi
Code of Hammurabi
The Code of Hammurabi is a well-preserved Babylonian law code, dating to ca. 1780 BC . It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay...
. Many other documents reflect this value in the world's cultures. However, the judgment of whether a punishment is appropriately severe can vary greatly between cultures and individuals.
Proportionality requires that the level of punishment be scaled relative to the severity of the offending behaviour. However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crime more harshly than minor crime, but retributivists differ about how harsh or soft the system should be overall.
Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. 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, and strictly for punishing crimes according to their severity.
Depending on the retributivist, the crime's level of severity might be determined by the amount of harm, unfair advantage or moral imbalance the crime caused.
History
In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract rights, and a rough sense of justice demands the infliction of proportionate loss and pain on the aggressor as he has inflicted on his victim. Hence the prominence of the "lex talionisAn eye for an eye
The meaning of the principle, an eye for an eye, is that a person who has injured another person receives the same injury in compensation. The exact Latin to English translation of this phrase is actually "The law of retaliation." At the root of this principle is that one of the purposes of the...
" in ancient law. The Bible is no exception: in its oldest form it too included the "lex talionis," the law of "measure for measure
An eye for an eye
The meaning of the principle, an eye for an eye, is that a person who has injured another person receives the same injury in compensation. The exact Latin to English translation of this phrase is actually "The law of retaliation." At the root of this principle is that one of the purposes of the...
" (this is only the literal translation of middah ke-neged middah).
In the 19th century, philosopher Immanuel Kant
Immanuel Kant
Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....
wrote in The Metaphysical Elements of Justice of retribution as a legal principle: "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."
Immanuel Kant regards punishment as a matter of justice. He states that if the guilty are not punished, justice is not done.
Subtypes
There are two distinct types of retributive justice. 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 the philosopher Michael DavisMichael Davis (philosopher)
Michael Davis is a philosopher of law, ethics, and political philosophy, author, and Professor of Philosophy at the Illinois Institute of Technology, and Senior Fellow at IIT's Center for the Study of Ethics in the Professions...
dismisses this idea and replaces it with the idea 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 making a resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades.
Criticism
Many more jurisdictions following the retributive philosophy, especially in the United States, follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff. As a result, some argue that judges do not have enough discretion to allow for mitigating factorMitigating factor
A mitigating factor, in law, 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 sentence.-Death penalty in the United States:...
s, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed man and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or not large enough to punish the millionaire.
Alternatives
Traditional alternatives to retributive justice have been exileExile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
, declaring the transgressor an outlaw
Outlaw
In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute...
and shunning
Shunning
Shunning can be the act of social rejection, or mental rejection. Social rejection is when a person or group deliberately avoids association with, and habitually keeps away from an individual or group. This can be a formal decision by a group, or a less formal group action which will spread to all...
, 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
Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital or in the community ....
, restorative justice
Restorative justice
Restorative justice is an approach to justice that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender...
and transformative justice
Transformative justice
Transformative justice is a general philosophical strategy for responding to conflicts. It takes the principles and practices of restorative justice beyond the criminal justice system. It applies to areas such as environmental law, corporate law, labor-management relations, consumer bankruptcy and...
. A general overview of criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
puts each of these ideals in context.
One libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
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.