Retributive justice
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Retributive justice maintains that proportionate punishment is a morally acceptable response to crime, regardless of whether the punishment causes any tangible benefits.
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, and strictly for punishing crimes according to their severity.[1]
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.
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[edit] History
In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract 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 included the "lex talionis," the law of "measure for measure" (this is only the literal translation of middah ke-neged middah).
In the 19th century, philosopher Immanuel Kant wrote in The Metaphysical Elements of Justice of retribution as a legal 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."[2]
[edit] Subtypes
There are two distinct "flavors" of retributive justice. The classical definition embraces the idea that the amount of punishment must be proportional to the amount of harm caused by the offence. A more recent version, advocated by Michael Davis, dismisses this idea and replaces it with the idea that the amount of punishment must be proportional 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. This was to many a breath of fresh air into a theory that had been all but abandoned decades prior, particularly in the United States. There currently appears to be a greater amount of discussion about the difference between these two flavors of retribution than between retribution itself and the other theories of punishment.
[edit] Criticism
According to some theories of ethics, punishment (or proportional punishment) is evidently self-contradictory. Retributive punishment is unethical, these theories claim, if "two wrongs do not make a right."
Some hold that the motive behind the Christian sanction for interpersonal relations ("turn the other cheek" before seeking retribution for a wrong), and the motive behind the sanctions for social magistrates (which include the application of retributive justice, e.g., "just stonings"), conflict. On the other hand, the motives for the social sanctions can be attributed to other justifications beyond simple retaliation.
Many 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 man 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 insufficiently large to punish the millionaire.[3]
[edit] Alternatives
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.[1]
[edit] See also
- An Eye for an Eye
- Code of Hammurabi
- Proportionality (law)
- The bloody code
- Victor's justice
- Restorative justice
- Stephan Kinsella
- Hans-Hermann Hoppe
[edit] Notes and references
- ^ Cavadino, M & Dignan, J. (1997). The Penal System: An Introduction (2nd ed.), p. 39. London: Sage.
- ^ Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 174. London: Hodder Arnold. ISBN 0-340-89991-3.
- ^ Martin, pp. 174–175.
[edit] Further reading
- Brenda Almond ed., Introducing Applied Ethics (Blackwell 1995), Part III.
- Anthony Duff ed., Punishment (Dartmouth 1993).
- Anthony Duff & David Garland eds, A Reader on Punishment (OUP 1993).
- David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP 2001).
- H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon 1968).
- Ted Honderich, Punishment: the supposed justifications (Revised edn, Pluto Press 2005).
- Matt Matravers, Punishment: The Rationale of Coercion (OUP 2000).
- C.L. Ten, Crime, Guilt, and Punishment: A Philosophical Introduction (Clarendon 1987).
- Nigel Walker, Why Punish? (OUP 1991).
