Retributive justice

Retributive justice is a theory of justice that considers punishment, if proportionate, to be the best response to crime. When an offender breaks the law, justice requires that they forfeit something in return. In contrast to revenge, this type of retribution is only directed at wrongs, has inherent limits, is not personal, involves no pleasure at the suffering of others, and employs procedural standards.[1][2]

In ethics and law, the aphorism "Let the punishment fit the crime" is a principle that means that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity of the infraction.[3] The concept is common to most cultures throughout the world and is evident in many ancient texts. 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, justified by the crime that has been committed and carried out to atone for the damage already done.[4]

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 code the redress of wrongs takes precedence over the enforcement of 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 talionis" 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 18th century, philosopher Immanuel Kant argued in Metaphysics of Morals, §49 E., that the only legitimate form of punishment the court can prescribe must be based on retribution and no other 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."[5]

Kant regards punishment as a matter of justice, and it 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. [6] Further, if justice is not done, then the idea of law itself is undermined.

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 Davis 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.

Criticisms

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 factors, 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 individual 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.[7] In some countries, such as Finland and several EU countries, fines are fixed as percentages of the offenders personal income, rather than a certain monetary amount. This allows for the law to remain fair, in that it applies to all citizens equally, yet prevents the wealthy from simply paying to break the law without suffering any substantial punishment.

Alternatives

Traditional alternatives to retributive justice have been exile, 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.[8]

See also

References

  1. ↑ Nozick, Robert (1981). Philosophical Explanations. Cambridge, MA: Harvard University Press. pp. 366–368.
  2. ↑ "‘Positive’ Retributivism and the Meaning of Desert". Stanford Encyclopedia of Philosophy. Retrieved 06/02/2014. Check date values in: |access-date= (help)
  3. ↑ See Cicero's De Legibus, 106 BC; see also Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 Tenn. L. Rev. 177 (2006); Ronen Perry, The Third Form of Justice, 23 Canadian Journal of Law and Jurisprudence (2010)
  4. ↑ Cavadino, M & Dignan, J. (1997). The Penal System: An Introduction (2nd ed.), p. 39. London: Sage.
  5. ↑ Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 174. London: Hodder Arnold. ISBN 0-340-89991-3.
  6. ↑ Rachels, James (2007). The Elements of Moral Philosophy
  7. ↑ Martin, pp. 174–175.
  8. ↑ J. C. Lester. "Why Libertarian Restitution Beats State-Retribution and State-Leniency". Retrieved 2008-01-13.
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