Deterrence. Retributive Theory is applied in the civil courts. The broad theories of punishment are divided into consequentalist and retributivist theories. , Retributivist theory focusses on punishment to only those who ‘deserve’ it. As Kant emphatically insists, therefore, no competing utilitarian motive should be allowed to encroach upon the retributive motive. The very question of setting a common moral standard seems every bit fair since it involves asserting one’s view over others. Discussions of merit, desert, blame, and punishment inevitably involve questions about the fittingness and proportionality of our responses to others, and retributive theories of punishment put the norm of reciprocity at their center. Often, the victims themselves find it difficult to identify clearly the reason or reasons that led them to forgive and … Another problem for utilitarian theorists is that, for the theory to work properly, other factors such as moral culpability or remorse cannot be weighed in determining punishment. Utilitarian theory of punishment. “Retributive” means “punitive”; to recompense; to pay back; to make a return to; in the way of requital.”Retributive Theory says to return the same injury to the wrong-doer which he had committed against the victim; it says “a tooth for a tooth” and “an eye for an eye”. Philosophy, 29, 293-294,  S I Benn, ‘An Approach to the Problems of Punishment’  Philosophy 127, 325,  HLA Hart, Punishment and Responsibility (1st, Clarendon Press, Oxford 1968) 5,  Joel Feinberg, Doing & Deserving; Essays in the Theory of Responsibility (1st, Princeton University Press, Princeton 1970) 98,  Although this broad classifcation has been challenged, but the two words are used to group together a set of very diverse theories. Does one receive lesser punishment or th same punishment in both cases? This theory not only takes into account the actual crime control but also the undesirable consequence of the sanction. Governments apply several theories to support the use of punishment so that the society maintains law and order. But by punishing the criminal, the status quo ante crime is restored. Deterrence Theory: Punishment is used to deter people from committing a crime. The practice of punishment, to put the point another way, rests on a plurality of values, not on some one value to the exclusion of all others. As opposed to revenge, 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, sadism), and employs procedural standards. Retributive justice is a theory of justice that considers punishment, if proportionate, is a morally acceptable response to crime, by providing satisfaction and psychological benefits to the victim, the offender and society. The retributive theory of punishment holds that punishment is justified by the moral requirement that the guilty make amends for the harm they have caused to society. Herbert Hart defined retributivism as ‘the application of the pains of punishment to an offender who is morally guilty’. Hampton opined that punishment is somehow representative of the pain suffered by the victim of crime and hence by inflicting punishment the wrongdoer shall understand the immorality of the action. Here are the conditions where a person is considered as an offender are: In this paper I will defend both the proponents and principles of the utilitarian theory of punishment, namely addressing the utilitarian approach juxtaposed with the retributive. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance. M Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. The reformative theory was born out of the positive theory that the focal point of crime is positive thinking. Such discretion was criticized by the scholars of that time.. Here is your speech on the Retributive Theory of Punishment. This theory is based on the basic principle “an eye for an eye” which in simple terms means that the offender must suffer the same as the victim. Retributive Theory. traditional view that righteous punishment means deserved punishment."  Murray N. Rothbard, “Punishment and Proportionality,” in Assessing the Criminal: Restitution, Retribution, and the Legal Process, R. Barnett and J. Hagel, eds. However, this theory has been criticized because unlike retributvism, it punishes offenders before they have even committed a crime. In textbooks on punishment one usually finds four major "theories" or "justifi cations" of punishment: (1) the retributive, (2) the deterrence, (3) the reform or rehabilitation, and (4) the incapacitation or social defense, theories. Hence, a lenient and reformative system of punishment should be observed in such cases. The Pure Theory hoMs that the practice of punishment and any individual act of punishment is moral y justified if and only if it conforms to all four of the principles of retributivism: 1 O 37 2 The most classic form of retributivism is derived in Code of Hammurabi’s lex talionis, which stands for ‘an eye for an eye and a tooth for a tooth’. Nicola Lacey is Professor of Law, Gender and Social Policy at the LSE. This approach was a reconcilitatory approach to deal with human-rights violation. Nevertheless it must be admitted that there are considerable difficulties to be overcome before the retributive view of punishment justifies itself to reflection.  Morris contended that by punishing wrongdoers each citizen learns the particular significance of the evil underlying offenses and the degree of seriousness. The retributive theory of punishment is based on avenging the crime that offender has committed. The degree of desert and the proportion of punishment needs to be in balance. Abhishek Mohanty, Retributive Theory of Punishment: A Critical Analysis, https://www.lawctopus.com/academike/retributive-theory-of-punishment-a-critical-analysis/ (Last visited Aug. 17, 2019, 4:15 PM), 30. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 22.  Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. Retributivists argue that criminals deserve punishment on account of their wrongdoing. Unlike deterrence theory, an innocent can never be punished. By punishing them, the unfair advantage is wiped out. Retributive justice theory is often contrasted with utilitarian and rehabilitative principles of punishment. A modest theory of ‘limiting retributivism’ emphasizes on the need of punishment to be within a range of not lenient and not too severe punishment. It has been commented that retributivism is seen as making some appeal to ‘moral desirabiltiy’. The appeal of retributive justice as a theory of punishment rests in part on direct intuitive support, in part on the claim that it provides a better account of when punishment is justifiable than alternative accounts of punishment, and in part on arguments tying it to deeper moral principles. Editorial members at Law Times Journal is a team of writers led by Vedanta Yadav. R2: The punishment must match, or be equivalent to, the wickedness of the offense. The retributive theory suggests that the offender should pay for his or her crime. Retributive theories of punishment, otherwise known as absolute theories, work on the age-old notion of ‘an eye for an eye’, and in doing so, seek to correct upsets in legal balances that have come about as a result of a committed crime; making it one of the oldest approaches to criminal punishment in existence. 30. Id. Also, the idea of making an example out of an offender runs counter to the proportional punishment which has been long championed by retributivists. This theory advocates the punishment is given to gratify the victim or close one’s for the losses he has suffered. The retributive theory ignores the causes of the crime, and it does not strike to the removal of the causes. 1. First Published 1929. Retributive theory has its own advantages over the other forms of punishments, some of them are; The retributive theory of punishment has merits as well as demerits, some of the demerits are; Another interpretation of the retributive theory of punishment exists which considers punishment as a form of expiation. For example, a overspeeding driver on an empty road cannot be said to be doing anything immoral although overspeeding constitutes an illegal act. Reteibutive punishment vindicates “the value of victim denied by the wrongdoer’s action through the construction of an event that not only repudiates the action’s message of superiority over the victim but does so in a way that confirms them as equal.” In this way punishment “can annul the message, sent by the crime, that they are not equal in value”. It is intended to rebalance any unjust advantage gained by the offender by ensuring that the offender suffers a loss. Retributivism is backward-looking. Many share the intuition that those who commit wrongful acts,especially serious crimes, should be punished even if punishing themwould produce no other good. Retributivists do not punish a criminal for what he or she might do, but only punish for the crimes one has committed and in the amount the person deserves. In some premodern societies, punishment was largely vindictive or retributive, and its prosecution was left to the individuals wronged (or to their families). Ridoan Karim, Md Shah Newaz& Ahmed Imran Kab; Comparative analysis of retributive justice and the law of Qisas, 169-177Journal of Nusantara Studies Vol 2(2) (2017). The abolishment theory seeks to abolish punishment wholly and the philosophy of denunciation can be said to be a combination of utilitarian and retributive where the punishment given to an offender is an expression of societal condemnation. The issue of punishment of criminals has been a well debated topic for societies since time immemorial. Restorative justice is not retributive justice. Deterrence and retributive are examples of classical and non-classical philosophies.
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. The retributive theory ignores the causes of the crime, and it does not strike to the removal of the causes. Under this theory, offenders are punished for criminal behavior because they deserve punishment. Retributive theories of punishment The theory places careful emphasis on taking care not to confuse retribution with vengeance, claiming that retribution is an enlightened attempt to restore imbalances caused by criminal misconduct, while vengeance is simply seeking revenge in … Punishment in a retributive system is proportional to the severity of the crime committed. Theories of punishment: a socio legal view,http://www.legalserviceindia.com/articles/pun_theo.htm(Last visited Aug. 17, 2019, 6:00 PM), 31. The various forms of retributivist philosophy like payback, annulment will also be discussed. Buell begins by defining retributive punishment as punishment that is “pursued in order to fulfill a moral imperative—that the wrongdoer must be punished.” Buell then surveys the different accounts of what constitutes such punishment— inter alia the experience of suffering, the “setting back” of well-being or interests, and the expression of condemnation. Want to become a writer at Law Times Journal? Norval Morris viewed retributive punishments to be imprecise in their assessment. Hence the process of unifying morality for ‘punishing evil’ is far complicaed than what it might appear. Immanuel Kantdiscussed the concept of punishment in. Thus, according to this theory, the objective of punishment needs to … Call us at- 8006553304, © 2014-2021 Law Times Journal | All Rights Reserved, The Retributive Theory of Punishment: A Brief. This theory is based on the assumption that offenders are punished to prevent and discourage them from engaging in crimes in future. Some have defended retributivism as a logical doctrine; others have argued that retributivism is a necessary and sufficient moral requirement for a system of punishment; still others have maintained that retributivism is only a necessary moral … R3: The justification for punishing persons is that the return of University Press, 1966), reprinted in revised and … Punishment as an end itself. The punishment meted out should remove the unlawful and unfair advantage.  . What are the advantages of the retributive theory of punishment? According to Hart,7 a retributive theory of punishment involves, at a minimum, three tenets (231): R1: A person may be punished if and only if he has voluntarily done something wrong. It is intended to rebalance any unjust advantage gained by the offender by ensuring that the offender suffers a loss. Punishment has been justified as a measure of retributive justice, in which the goal is to try to rebalance any unjust advantage gained by ensuring that the offender also suffers a loss. Retributive Theory Of Punishment 1051 Words | 5 Pages. The two principles are somewhat interlinked.  T. M. Scanlon, What We Owe to Each Other (Cambridge: Belknap/Harvard University Press,1998), p. 266. Such a doctrine was advocated by early Italian criminologist Cesare Beccaria who viewed the harsh punishments of his day as being disproportionate to many of the crimes committed. According to this theory, maximization of laws contributes to society’s happiness. This theory is based on the idea of vindictive justice, or a tooth for a tooth and an eye for an eye. The retributive theory seeks to punish offenders because they deserve to be punished.
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. the theory of punishment which is assumed prior to reflection is a retribu-tive theory. ! The offender takes complete responsibility for the crime and initiates restitution to the victim. have defined punishment as something unpleasant in lieu of an offense against legal rules, imposed by a legal authority and administered by the society. Quite contrary to the idea of rehabilitation and distinct from the utilitarian purposes of restraint and deterrence, the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society, and so expiate them of guilt. To inflict suffering on an offender seems merely to be adding the evil of suffering to the evil of the offence, unless there be some … Sometimes a greater good can be achieved by pardoning a criminal instead of punishing him. Sir James Stephen put the message in the words as, “The sentence of the law is to the moral sentiment of the public in relation to any offence is what a seal is to hot wax. This view was taken forward by Hampton who said that by the very act of commission of crime, the criminal fails to respect the victim’s value as a human being. Retributivist theories of punishment see it as important because it punishes the criminals in proportion to their crime thereby restoring a proper balance. All rights reserved. Under the retributive system of punishment, the link between the victim and the accused is termed irrelevant. The Appeal of Retributive Justice. The appeal of retributive justice as a theory of punishment restsin part on direct intuitive support, in part on the claim that it isbetter than alternative accounts of punishment, and in part onarguments tying it to deeper moral principles. The various forms of retributivist philosophy like payback, annulment will also be discussed. We do injustice if we fail to punish criminals because they then do not receive what they deserve. It is not essential that the criminal will, after having been punished, realize his mistake in violating the moral law and … Punishment satisfies the feeling of revenge. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 10. But this involves imposing of morality which goes back to the first criticism of the theory. 29.  Consequentalist theories are concerned with the practice of punishment if it brings out better consequences. Yet it is curiously difficult to articulate this theory in a perspicuous fashion. Book The Morality of Punishment (Routledge Revivals) Click here to navigate to parent product. Punishment is, according to some, 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 action or behavior that is deemed undesirable or unacceptable. The very nature of morality being subjective makes it difficult to deliver punishments for crimes. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 4. On this latter theory, if a certain sort of behavior is morally wrong, that is a prima facie reason to criminalize it (although other factors may ultimately bar criminalization); if behavior is not morally wrong that is a very good reason not to criminalize it (for no retributive justice is achieved by the punishment of those who do good or at least do no wrong). All legal systems recognize the need of punishment in response to crimes. Punishment … Further, a comparison of the retributivist system against the other forms will also be covered. What is the philosophy behind retributive theory? This distinction is important because the proportional punishment can only be set properly if one knows whether A is morally and causally responsible for the said act. For punishment to be meted out, the accused should and must be found guilty. Retributive theory. Imprint Routledge. , In 1975, consequentalist ideas were dominant in the English-speaking countries for a century. In some premodern societies, punishment was largely vindictive or retributive, and its prosecution was left to the individuals wronged (or to their families). The idea of equality of punishment is actually difficult to implement in many situations. LN RECENT YEARS, attempts to defend retributive theories of punishment against utilitarianism have taken a variety of forms. 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