Retributive justice

Retributive justice is a theory of justice which holds that the best response to a crime is a suitable[1] punishment, inflicted for its own sake. The only goal in retributive justice is punishment. Preventing future crimes (deterrence) or rehabilitation of the offender are not important in determining punishments. Retributivists hold that when an offender breaks the law, justice requires that the criminal suffer in return. They maintain that retribution is different from revenge, because retributive justice is only directed at wrongs, has inherent limits, is not personal, involves no pleasure at the suffering of others,[2] and employs procedural standards.[3][4]

De Legibus, 106 BC; see also Ronen Perry,[5]

The concept is found in most cultures around the world and in many ancient texts. The presence of retributive justice 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". Very similar phrasing is found in the Code of Hammurabi. Many other documents demonstrate similar values in other 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 related to the severity of the offending behaviour. An accurate reading of the biblical phrase "an eye for an eye" in Exodus and Leviticus is said to be: 'only one eye for one eye',[6] 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 also be determined in different ways. Severity can be determined by the amount of harm, unfair advantage or the moral imbalance the crime caused.

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 already been committed. Therefore punishment is carried out to atone for the damage already done.[7]

History

The Patient Job by Gerard Seghers
Job is seen refuting the idea of retributive justice endorsed by his friends. Job's misfortunates were indeed undeserved and he will later confront God in a second whirlwind (40:6 - 41:34).

In the early period of all systems of code, the retribution for wrongs 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) was very prominent 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 retribution is the only legitimate form of punishment the court can prescribe. He said that, "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."[8]

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 [9] and if justice is not done, then the idea of law itself is undermined.

Principles

According to the Stanford Encyclopedia of Philosophy, retributive justice is committed to the following three principles:

  1. "Those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment."[10]
  2. It is "intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives [those who commit certain kinds of wrongful acts] the punishment they deserve."[10]
  3. "It is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers."[10]

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 instead argues 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, use Mandatory sentencing, where judges impose a penalty for a crime within the range set by the law. However, some argue that judges cannot allow for mitigating factors, leading to unjust decisions under certain circumstances. When the punishment involves a fine, the financial position of an offender is often not taken into account, leading to situations in which an unemployed individual and a millionaire could be forced to pay the same fine, creating an unjust situation; the fine would be too punitive for the unemployed offender or not large enough to punish the millionaire.[11] In some countries such as several in the EU, fines are fixed as percentages of the offender's personal income rather than a certain monetary amount. That allows for the law to remain fair, in that it applies to all citizens equally but 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.[12]

See also

References

  1. ↑ See: Eye for an eye
  2. ↑ See: Schadenfreude, sadism
  3. ↑ Nozick, Robert (1981). Philosophical Explanations. Cambridge, MA: Harvard University Press. pp. 366–368.
  4. ↑ "‘Positive’ Retributivism and the Meaning of Desert". Stanford Encyclopedia of Philosophy. Retrieved June 2, 2014.
  5. ↑ 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)
  6. ↑ Plaut 1981, pp. 571ff.
  7. ↑ Cavadino, M & Dignan, J. (1997). The Penal System: An Introduction (2nd ed.), p. 39. London: Sage.
  8. ↑ Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 174. London: Hodder Arnold. ISBN 0-340-89991-3.
  9. ↑ Rachels, James (2007). The Elements of Moral Philosophy
  10. 1 2 3 Walen, Alec (2015-01-01). Zalta, Edward N., ed. Retributive Justice (Summer 2015 ed.).
  11. ↑ Martin, pp. 174–175.
  12. ↑ J. C. Lester. "Why Libertarian Restitution Beats State-Retribution and State-Leniency". Retrieved 2008-01-13.
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