Talk:Retributive justice
From Wikipedia, the free encyclopedia
Contents |
[edit] Chinese theory of justice
moved China here:
- In China, as part of the strike hard (correct) program, minor criminals are shot, and the bill for the bullet sent to their families.
The problem with mentioning China is that the **theory** of criminal punishment is restorative rather than retributive. China does use the death penalty a lot, but death penalty cases are suspended if the defendant has shown sufficient remorse. This actually puts an innocent defendant in a ***really*** bad position, because saying "I didn't do it" or not confessioning abjectly to the crime and begging the mercy of the court means that you are more likely to be shot. But even though the result might be harsh, the underlying theory is not retributive, so I'm not sure it is a good example. Also it needs to be mentioned that the strike hard program only existed for a few years, and it no longer exists. Roadrunner
-
- I don't agree with you that capital punishment is restorative, but you are right that the Chinese system isn't retributivist. Anyway, any reference to Strike Hard has been deleted. Illuminatingvision 14:27, 20 December 2006 (UTC)
[edit] Not sure I agree with this article
According to Quinton in 'On Punishment' in Laslett, 'Philosophy, Politics and Society' (1956), the fundamental thesis of retributive justice is that guilt is a necessary condition of punishment. The further claim that it is a sufficient condition for punishment is logically (and in fact morally) independent of this, and it is to this latter claim that the lex talionis (an eye for an eye...&c.) applies. Note that 'an imbalance in the social order' is not an essential part of this theory: a retributionist who considers guilt a sufficient condition for punishment may hold that the punishment is justified eo ipso. Thus, the first lines of the article are, on this view, inaccurate: "Retributive justice is a theory of criminal justice wherein punishments are justified on the grounds that the criminal has created an imbalance in the social order that must be addressed by action against the criminal." and "The theory is often associated with harsh punishment, and the phrase an eye for an eye, a tooth for a tooth' is a commonly heard justification for this theory" Furthermore, the 'deterrent' argument must be distinguished from the retributionist position, even if the two are often to be found coming from the same person(s). The deterrent argument is a further justification for punishment, over and above the strong retributionist position (guilt = necessary and sufficient) which argues that punishment is justified by guilt de facto. It is worth noting that Cavell ('The Claim of Reason', 1974) argues that a retributivist holds that guilt is, in fact, a sufficient, as well as necessary condition for punishment, but that the first of these facts arises not from the fact that crime creates a 'social imbalance', but simply because the criminal is guilty. This really seems to be the crux of the matter - a retributionist, in this (more conventional) sense holds that guilt demands punishment. The social question is a further consideration. Quinton and Cavell are quite an authority on this issue (note that Rawls, 1952, agrees with Quinton), and I think the article needs clearing up, although I don't want to tamper with it without the author's consent. In conclusion, I think that the 'social imbalance' point should be reconsidered, and that the article must differentiate clearly between the four independent positions I have mentioned: guilt is a necessary condition of punishment; guilt is a sufficient condition of punishment; lex talionis: the degree of punishment should somehow 'match' the seriousness of the crime; punishment can have a deterrent effect on potential criminals.
- Agreed. I replaced social order with moral order. Punishment as a way to restore social order sounds utilitarian. Illuminatingvision 14:23, 20 December 2006 (UTC)
[edit] Retributive justice
In reference to the retributive justice article, do you have any more details about "the recent practical failings of restorative justice"? I am writing an article on restorative justice that will include 2001 stats from Department of Justice Canada showing restorative justice has lower recidivism than retributive justice[1]. Most of the data I have found (such as studies by University of Minnesota professor Mark Umbreit) show that restoration has better rates of victim and offender satisfaction as well. I will copy this message to the retributive justice talk page. — Nathanlarson32767 (Talk) 19:34, 27 Dec 2004 (UTC)
-
- All right. If you can find anything specific about problems with restorative justice in the 1980s, that could be a good addition to the restorative justice article. Recidivism is the type of thing that takes longitudinal studies to measure. Those stats tend to be hard to come by. As late at 2000, Department of Justice Canada was reporting that the data were inconclusive (see The Effects of Restorative Justice Programming: A Review of the Empirical. However, by 2001, they apparently felt confident in saying that RJ was associated with lower recidivism rates (see The Effectiveness of Restorative Justice Practices: A Meta-Analysis), although with the caveat that there was a "file-drawer" problem, whatever that is. I will copy this discussion to the Restorative Justice page. — Nathanlarson32767 (Talk) 18:48, 28 Dec 2004 (UTC)
[edit] Retribution vs. Deterrence
Why is there a discursion on Deterrence Theory of punishment in the article about the Retribution Theory, with only a small nod to Retributivists ("Furthermore, there are many who advocate punishment of criminals regardless of the presence or absence of a deterrent effect. The belief underlying this view is that the need for a criminal to be punished is a requirement that comes from basic fairness and justice and not necessarily as a result of deterrence.")? Also, Deterrence links to a psychology stub which barely summarizes Deterrence Theory.
I suggest creating a new stub (e.g., Deterrence (penology)), moving the stuff from here over there, and beefing up the discussion of Retribution Theory here. » MonkeeSage « 00:09, 18 May 2006 (UTC)
[edit] Comments on Justice
Editors interested in this topic might like to comment on my proposed renovation of Justice at Talk:Justice. Cheers, --Sam Clark 13:15, 28 July 2006 (UTC)
[edit] Retributive justice as question rather than answer
At the moment, this article takes RJ to be a particular kind of answer to the question of punishment. But at least in political philosophy, RJ is the name of that question: what, if anything, justifies punishment? The answer described here is usually known as 'retributivism'. Other answers to the question of RJ include communicative and deterrence theories. I'm planning to say something about this in my renovation of Justice (see above), but I'm wondering whether the planned section on theories of RJ should go here instead. Comments welcome... Cheers, --Sam Clark 11:00, 1 August 2006 (UTC)
- Agreed. I suggest a name change. Illuminatingvision 14:23, 20 December 2006 (UTC)
[edit] Retribution or tough on crime?
Much of this article seems to me to be more about tough on crime than retribution. Retribution is a justification for punishment and really has no direct relationship to overall penal harshness. Indeed, many of the significant proponents of retribution had the goal of reducing overall penal harshness (see for example Beccaria in the 18th century, and also the US 'justice model' advocates in the 1970s).
Retribution is best understood by reference to its competitor, utilitarianism. For utilitarians, punishment is forward-looking, for the purpose of achieving future social benefits (such as crime reduction). For retributionists, punishment is backward-looking, for the purpose of punishing a crime according to its level of severity. The ultimate goal, for its proponents, is to re-establish justice, not to reduce crime.
The article even mentions zero tolerance and Broken Windows, but these are policing strategies, not punishments. If anything, I would have thought that zero tolerance is not harmonious with the principles of retributionist philosophy. Zero tolerance is about zealously enforcing law in relation to minor offences for the purported purpose of reducing crime. However, retribution argues that crimes can only be punished according to the severity of the offence - NOT based on the punishment's ability to reduce crime (which would be a utilitarian goal). Thus minor offences must receive relatively minor penalties.
I can't see the relevance of three strikes either. The major justification purported for three strikes was taking career criminals off the streets in order to reduce crime. This is obviously not retribution but rather incapacitation, which is utilitarian. Three strikes prescribes the same punishment for offences potentially of vastly differing severity, so I would have thought it departs from retributionist proportionality.
Retribution should also be clearly distinguished from revenge or emotively-driven populism. Retribution thinks punishment should be based on reasoning about the original offence.
I'm not denying a historical connection (in rhetoric at least) between tough-on-crime and retribution, but they certainly are not synonymous. The relationship is complex and needs careful explanation, probably in a separate article. Tough-on-crime advocates tend to take pretty much any justification, particularly utilitarian ones such as deterrence and incapacitation.
See basically any book on punishment for a reference, for example the one that happens to be lying on my floor, The Penal System, by Cavadino and Dignan, 2nd edn, 1997, Sage, London, pp 32-57.
Some actual references to actual retributionist philosophers would be nice, eg. Beccaria, Kant, Hegal, von Hirsch, etc.
[edit] Article has major problems
This seems just to be a mishmash of 'tough on crime' examples, all of which are dubiously conflated as "retributive justice". What does retributive justice mean exactly? Does it mean philosophical retribution? If so, what do broken windows and three strikes have to do with that? Nothing. Philosophical retribution is all about proportionate punishment based on reasoning about the crime itself. The article is directionless. Needs either a major rewrite or deletion. Illuminatingvision 07:09, 20 December 2006 (UTC)
Okay, I've fixed this article up a lot, mainly by deleting stuff. This included almost the whole "Modern Philosophies" section, which I don't think had anything to do with either philosophy or retribution. The main problem was irrelevant original research attacking harsh policing and sentencing. Illuminatingvision 10:48, 20 December 2006 (UTC)
[edit] Proposing name change
The meaning of retributive justice is ambiguous. The Oxford Dictionary of Philosophy uses it in the same way as here, but this way contradicts its use in Justice (see the earlier comment, "Retributive justice as question rather than answer").
I think "Retributivism" is probably the better title, if only to avoid confusion and contradiction. I don't know how to change the name, so perhaps someone else could do it if people agree. Illuminatingvision 14:23, 20 December 2006 (UTC)
This is just an alert that the article has been immaturely edited under the subtypes section. I do not know how to fix it though. Schmorrell 19:14, 25 January 2007 (UTC)
- Thanks that's been fixed. Illuminatingvision 04:22, 26 January 2007 (UTC)
