Retributive and corrective justice, criminal and private law1. The retributive theory suggests that the offender should pay for his or her crime. Thus the retributive theory of punishment seems to be the correct view. In primitive societies punishment was mainly retributive. Retribution is perhaps the most intuitive and the most questionable aim of punishment in the criminal law. In addition, we will give voice to some major objections to the utilitarian theory. The utilitarian authors will offer answers to such questions as. The theory is based on the rule of natural justice.
A retributive theory, on the other hand, sees the primary justification in the fact that an offence has been committed which deserves the punishment of the offender. 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. By pointing to the unacceptable consequences of other moral theories, offering a solution to the most glaring objection to retributive justice, and giving justification for the certain. The examples of restorative justice and retributive justice.
For definitions and a general discussion of retribution, see, for example, hugo adam bedau, retribution and the theory of punishment, 75 j. Social norms, necessity, and social desirability are some of the factors that lawmakers balance when developing punishment statutes. Theology punishment or reward distributed in a future life based on performance in this. The principle is that if a man has caused the loss of a mans eye, his eye one shall cause to be lost. Perhaps the problem lies not in kants inconsistency nor in the senility sometimes claimed to be apparent in the metaphysic of morals, but rather. Process of punishment is essential for the smooth running of society. Gromet2 retributivism is a deontological theory of punishment that calls for the deserved punishment of a guilty offender in proportion with his moral blameworthiness for a past offense. Retributive justice is the only real justice, but its advantage is that it gives criminals the appropriate punishment that they deserve. In the absence of punishment, there will be chaos, confusion and disorder in the state and the weak will be exploited and victimized by the strong. This theory ignores that if the vengeance is the spirit of punishment, violence will be a way of prison life.
Punishment can be used as a method of reducing the incidence of criminal behavior either by deterring the potential offenders or by incapacitating and preventing them from repeating the offence of by reforming them into lawabiding citizens. A crime is committed as a result of the conflict between the character and the motive of the criminal. Posted by andrew on may 5, 2012 in criminal law, key concepts 0 comments. Retributive justice requires that the punishment fit the crime and that like cases be treated alike. The retributive theory of just deserts pdf paperity. True deterrence doctrine, according to the utilitarian philosophy of jeremy bentham, allows for the punishment of innocent individuals if doing so would serve a valuable societal function e. By retribution i mean a goal of punishment that involves making the guilty prisoner suffer for the sake of suffering.
Theories of punishment with special focus on reformative theory. It is quite possible that the criminal is as much a victim of circumstances as the victim himself might have been. Retributive justice is the only kind of justice in crime and punishment. Moreover, i would argue that similar philosophical concerns animate other areas of criminal justice. Justice has been done when the wrongdoer has been sufficiently punished. Retribution can therefore be seen as vengeance curbed by outside intervention and the principles of proportionality and individual rights. The guilty deserve to be punished, and no moral consideration relevant to punishment outweighs the offenders criminal desert is the philosophy of retributive theory.
Retributive justice, response to criminal behaviour that focuses on the punishment of lawbreakers and the compensation of victims. The retributive theory ignores the causes of the crime, and it does not strike to the removal of the causes. Retributive justice stanford encyclopedia of philosophy. Administration of justice theories of punishment 3. One may commit a crime either because the temptation of the motive is stronger or because the restrain imposed by character is weaker. On the utilitarian and retributive justifications of punishment. Retribution appears alongside restorative principles in law codes from the. A theory of differential punishment jack boeglin zachary shapiro a puzzle has long pervaded the criminal law. Although retribution, deterrence, and rehabilitation are all crucial components of punishment justification, independently the theories have weaknesses that avert the moral rationalization of punishment. This theory is especially successful with younger offenders. Sir salmond has stated that the retributive purpose of punishment consists of avenging the wrong done by the criminal to the society. What are the advantagesdisadvantages of a retributive. Reformative theory of punishment pdf download this paper open pdf in browser share email add to.
Unlike the theory of deterrence and the preventive theory, the retributive theory is a retrospective theory, it looks back. Kants theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. In accordance with a retributive theory of punishment, restitution aims at restoring the relationship between the offender and the victim by. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a pdf plugin installed and enabled in your browser. The strengths and limits of the theory of retributive punishment. The retributive theory seeks to punish offenders because they deserve to be punished. Deferred punishments consist of penalties that are imposed only if an offense is repeated within a specified time. May 05, 2012 theories of punishment utilitarian vs. In this lesson, well learn the meaning of retribution with a. The strengths and limits of the theory of retributive. Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that she suffers in return. Hart offered a model of the retributive theory of punishment. Utilitarian justifications for punishment our first theoretical foray into punishment is the utilitarian perspective.
This theory is based on the idea of vindictive justice, or a tooth for a tooth and an eye for an eye. Punishmentretribution, rehabilitation, and deterrence. Retributive justice in the real world pdf paperity. May 06, 2010 the progress of civilization has resulted in the change in the theory, method and motive of punishment. The retributive theory of just deserts indiana law journal. The retributive justification for punishment is a priori, and thus is unaffected by statistics in particular, or experience in general. Punishment may take forms ranging from capital punishment, flogging, forced labour, and mutilation of the body to imprisonment and fines. Some prominent theories of punishment include retribution, deterrence, rehabilitation, and the moral education theory. Middle english retribucion, repayment, reward, from old french retribution, from late latin retributio, retribution, from latin retributus. On the utilitarian and retributive justifications of. The concepts of just desserts and let the punishment fit the crime are other ways to describe this theory, in which justice is seen in terms of fairness and proportionality. In general, the severity of the punishment is proportionate to the seriousness of the crime. Click here to read the utilitarian theory of punishment. I shall then attempt to state in greater detail and less equivocally, the retributive theory that i suggest accords with the facts of the morality of punishment as they emerge from our consideration of the shortcomings of the utilitarian accounts and from a consideration of other areas of justice.
The term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for certain purposes. It also requires that the response to a crime is proportional to the offence. Lets focus on the two main approaches to justify punishment from a political theory point of view. According to this theory, evil should be returned for evil without any regard to consequence. Nov 04, 2015 theories of punishment can be divided into two general philosophies. Punishment administered in return for a wrong committed. Under retributive justice schemes, it is also important that offenders actually be guilty of the crime for which a penalty has been imposed. Retributive definition of retributive by the free dictionary. The objective of this paper is to compare the retributive concept of punishment with the islamic theory of qisas and to unravel how islam attempts to establish justice through punishment while. In the retributivist theory of punishment, the punishment is seen as a form of payback for the crimes one has committed. Apr 06, 2018 restorative justice is not retributive justice. Much debate surrounds how to punish criminal offenders. Prevention of future crimes or rehabilitation of the offender are other purposes of punishment.
In textbooks on punishment one usually finds four major theories or justifications of punishment. Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. To punish a man in order to convey a lesson to others is improper and in human. This interpretation of kants theory of punishment has been developed by herbert morris, persons and punishment, 52 m onist 475 1968, and murphy, supra note 1. It is often referred to as punishment based on just deserts, and it. Still, it leaves one with certain misgivings regarding the internal consistency of his position. Retributive theory is based on rights, desert and justice.
Retributive theory law and legal definition uslegal, inc. This theory is more defective than even the retributive theory. According to the reformative theory, the aim of punishment is the improvement of the offender himself. Philosophies of punishment punishment serves numerous socialcontrol functions, but it is usually justi. The utilitarian theory of punishment seeks to punish offenders to discourage, or deter, future wrongdoing.
For instance, punishment as a means of constructing social solidarity, punishment as an expression of culture and sensibilities, and punishment as a reflection of normalization and discipline. Retribution was formerly based on the theory of revengean eye for an eye and tooth for tooth. A critical analysis of retributive punishment as a. Retribution is different from revenge because retributive justice is directed only at wrongs. Theology punishment or reward distributed in a future life based on performance in this one. Retributive justice is a criminal justice theory that has historical roots, with references to it that go far back into ancient times. 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 term crime does not, in modern criminal law, have any simple and universally accepted definition,1 though statutory definitions have been provided for. Rehabilitation seeks other gains, such as lowering the crime rate or reducing certain activities such as drug. A defense of retributivism as a theory of punishment. Today, on the other hand, the retributive theory is based on the idea that punishment is the necessary alkali to neutralise the evil effects of the crime.
The incremental retributive impact of a death sentence. In these last two modules we shift gears to examine one. Punishment retribution, rehabilitation, and deterrence introduction thus far we have examined issues of vice in american law and asked if they should or should not be considered crimes. Wrongdoers deserve blame and punishment in direct proportion to the harm inflicted. The concept of a retributive punishment, therefore, is the concept of a punitive harm, suffering, or deprivation, because it is harm, suffering, or. A critical analysis of retributive punishment as a discipline measure in nigerias public secondary schools. It is summed up in the principle that the punishment should. Punishment, the infliction of some kind of pain or loss upon a person for a misdeed i. The modem age seems generally to favour and apply this theory. This tradition of resultbased differential punishment. The issue of retributive punishment is the main focus in this paper and its. Retributive justice essentially refers to the repair of justice through unilateral imposition of punishment, whereas restorative justice means the repair of justice through reaffirming a shared. If vindication of the authority of the moral law is the aim of punishment it will be partly done by the reformation of the criminal and partly by the noncommission of crimes by others, but neither reformation of the noncommission crimes.
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