This theory was propounded to make the offender feel the same pain he inflicted while committing offence. 30. Where the utilitarian theory looks forward by basing punishment on social … Moreover, the retributive theory of justice is intuitive and resonates with many moral attitudes widespread in our societies, such as the respect for agency and free will. Further, a comparison of the retributivist system against the other forms will also be covered. 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. Moreover, critics of retributive justice argue that the principle is rigid in its singular focus on the offence, thus overlooking other circumstances around the crime. Theories of punishment: a socio legal view. In today’s societies, the maximum punishment that can be imposed is the death penalty which has its own critics. Punishment as an end itself. Hence, the criminal does not get what his deserved punishment was.[24]. Kant believed humans to be free, who enjoy the rights of the legal system, hence, when anyone interferes with others legal right, he forfeits and gives up his own right. The unfair advantage that they would have gained by seeking recourse to illegal methods would not be paid back or annulled if such a situation arises. Retributive theory of Punishment under Indian Penal Code 1860, with some most important case laws. Removal of ‘Domicile’ Requirements for Rajya Sabha – Potential Threat to the Federal Structure. The broad theories of punishment are divided into consequentalist and retributivist theories. Id. What are the demerits of the retributive theory of punishment? Crimes like rape, theft, kidnapping, robbery, murder among others would be on increase. Governments apply several theories to support the use of punishment so that the society maintains law and order. If we see A holding a knife over B’s dead body, we might conclude that A is morally and causally responsible for B’s death. The retributive theory emphasizes the need of proportionality of punishment to a great extent. Retributivist theories of punishment see it as important because it punishes the criminals in proportion to their crime thereby restoring a proper balance. The retributive theory ignores the causes of the crime, and it does not strike to the removal of the causes. Retributive punishment is not cruel or barbaric. Introduction " An eye for an eye and a tooth for a tooth " We have been analyzing general philosophical arguments on whether or why members of society might want a system of criminal punishment. vism. Retributivists are uncomfortable with mercy and pardons. The weightage given to proportionality in the retributive system of justice carries with itself several advantages and disadvantages. 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. This theory is based on the assumption that offenders are punished to prevent and discourage them from engaging in crimes in future. 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). He is the former non-executive chairman of the NASDAQ stock market, and Under this, the concept is that the offender has topay a debt due to the law and the society for the crime committed and law violated. The theories of punishment can be categorised into four philosophies, the utilitarian philosophy, the retributive philosophy, the abolition philosophy and the denunciation philosophy; while the utilitarian philosophy focuses on maximising the happiness of society by deterring or preventing an offender from committing any prospective crimes, the retributive philosophy seeks to punish the offender as they deserve to be punished. Deterrence. Many scholars believe that the idea of proportionality should only prescribe maximum sentences possible in the cases. Often, the victims themselves find it difficult to identify clearly the reason or reasons that led them to forgive and … According to the rigorist retributive theory the criminal should be punished severely for a serious crime. 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. Under this theory, offenders are punished for criminal behavior because they deserve punishment. (Cambridge, Mass. 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. The retributive theory of punishment follows that punishment is used as a means of retributive justice. In the opinion of Hart, punishment should not be for sake of denunciation alone but a deserved punishment does serve as a denunciation. But this involves imposing of morality which goes back to the first criticism of the theory. The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in the society would perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal sentence over a perpetrator. Most of the standard arguments against the retributive theory of punishment are hardly new. Retributive is impartial and neutral as it. Matravers 2000:4 n 4, [6] R.A.Duff and Stuart P.Green, ‘Introduction: The Special Part and Its Problems’ in Defining Crimes: Essays on the Special Part of the Criminal Law (OxfordL Oxford University Press, 2005): 1-20. The requirement of desert required to punish crimes has in itself some difficulties. Abhishek Mohanty, Retributive Theory of Punishment: A Critical Analysis. [6] . Because crime and punishment are inconsistent with happiness, they should be kept to a minimum. traditional view that righteous punishment means deserved punishment." The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in the society would perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal sentence over a perpetrator. 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.eval(ez_write_tag([[580,400],'lawtimesjournal_in-medrectangle-3','ezslot_5',111,'0','0'])); The five theories of punishment; namely, the deterrent theory which suggests punishment to be awarded to stop people from committing crimes, the preventive theory which aims at by disabling the criminal, the reformative theory which seeks to strengthen the character of man, the compensation theory which establishes the objective of compensating the victim and finally the retributive theory can all find a place in these philosophies. Copyright © 2020 Lawctopus. 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. 29. For retributivists, the punishment has to be proportional to the crime committed. This idea is known as the doctrine of proportionality. Retributive punishment has to be proportional to the degree of desert. A moral satisfaction is obtained from the punishment which is given importance, as punishment is seen as “payback” as Retributivists believe that the criminals deserve the punishment they receive. The punishment for the crime should be proportionate. Deterrence and retributive are examples of classical and non-classical philosophies. Yet it is curiously difficult to articulate this theory in a perspicuous fashion. Retributivists have not given guidelines or principles which makes it more moral than legal. The retributive theory suggests that the offender should pay for his or her crime. But by punishing the criminal, the status quo ante crime is restored. ! 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 recent Delhi rape case where an increased demand for the rapists to be hanged was made inspite of our court system allowing for death penalty in very select cases and that too in the ‘rarest of the rare’ case threw up the debate regarding the system of punishment which should be followed in such cases. But even the liberal form of the retributive theory is not satisfactory. In older times, injured person takes revenge by causing injury to other. It is quite possible that the criminal is as much a victim of circumstances as the victim himself might have been. [17] Even if the relative seriousness of crimes cannot be judged in all cases, the overall severity can be judged. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 19. If the public does not believe that punishment is consistent for every offense of a certain crime then, even with notice, the potential punishment may not deter an individual from committing a crime. Most retributivists believe that a guilty person should suffer pain. In this paper, the author will focus on the aspects of retributivist system of punishment. The retributive theory seeks to punish offenders because they deserve to be punished. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 4. It is based on a very small doctrine, namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’. Third, does this illuminate something about retributive theory in the individual context? If we leave the crime unpunished, it is regarded as an innocent deed. 28. Editorial members at Law Times Journal is a team of writers led by Vedanta Yadav. This theory is based on the idea of vindictive justice, or a tooth for a tooth and an eye for an eye. . Retributivists stick to the point that all crimes should be punished. WikiMatrix. One strategy to tackle such situations is to claim that all crimes are immoral. 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. In some respects, punished individuals undergo a restricted form of rehabilitation. In older times, injured person takes revenge by causing injury to other. The retributive theory of punishment was based on the expression lex talionis — ‘an eye for an eye, a tooth for a tooth, a life for a life’ (Exodus 21:23–25). Restorative system: In this system, instead of any punishment being meted out, the victim, offender and the community participate together in a process of restitution. Punishment satisfies the feeling of revenge. T&F logo. Thus the retributive theory suggests that punishment is an expression of society’s disapprobation for the offender’s criminal act. Broadly, punishment was defined by Antony Flew[1], Stanley Benn[2] and HLA Hart[3] to be something unpleasant for an offense against legal rules which is adminstered by the society and imposed by a legal authority. 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. Sometimes a greater good can be achieved by pardoning a criminal instead of punishing him. Under the retributive system of punishment, the link between the victim and the accused is termed irrelevant. 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 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. If they deserve punishment, then justice demands we punish. Thus, according to this theory, the objective of punishment needs to … 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. Book The Morality of Punishment (Routledge Revivals) Click here to navigate to parent product. In such crimes, the punishment cannot be set proportional to the wickedness of the crime because of the absence of wickedness. ‘An eye of an eye’, ‘a hand for a hand’ and ‘a limb for limb’ was the law. An essential ingredient of “a certain expressive function: punishment is a conventional device for the expression of atitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority itself or of those ‘in whose name’ the punishment is inflicted”[4]. Like a thief benefits from breaking the law by stealing someone’s possession. [18] Tom Elis, ‘Principles of Retribution’ (Debates in criminal justice 2010) accessed 15 Nov 2013, [20] Sir James Stephen, A History of the Cirmnal Law of England (1st, MacMillan, London 1883) 81-82, [22] Dhananjoy Chatterjee v State of West Bengal 1994 SCR (1) 37, [23] Robinson, Distributive Principles of Criminal Law, 1, [24] Douglas Husak, ‘Malum Prohibitum and Retribution’ in RA Duff and Stuart P Green, Defining Crimes, 66 n 8, [25] K.G.Armstrong, ‘The Retributivist Hits Back’ [1961] Mind, New Series 33, [26] Sanjoy Mazumder, ‘India and the death penalty’ (BBC News 2005) accessed 16 Nov 2013, [27] George P Fletcher, ‘The Place of Victims in the theory of Retribution’ [199] Buffalo Criminal Law review , 51, [28] Norval Morris, The Future of Imprisonment (1974) 83-119. For punishment to be meted out, the accused should and must be found guilty. Nations have varying laws on subjects like prostitution, drug use etc. Also, this theory signifies that no person shall be arrested unless that person has broken the law. For some, using drugs is a matter of personal liberty while for some it is seen to be an reprehensible act. The retributive theory focuses on the crime itself as the reason for imposing punishment. 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 punishment that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. The critics of the retributive theory claim that the theory is more of a moral philosophy than a legal one, it is incomplete, the Retributivists do not describe the theory in a legal, real manner. Download Citation | Retributive theories of punishment | One of the most serious problems facing the analysis of philosophical arguments is the fat that some of the main terms in … The retributive philosophy seeks to punish the offender as they deserve to be punished for the crime they have committed not because crime has to be stopped or prevented. Retributivism ignores the offender’s future conduct or effects punishment can have on crime rates. The theory aims at … In some premodern societies, punishment was largely vindictive or retributive, and its prosecution was left to the individuals wronged (or to their families). The offender takes complete responsibility for the crime and initiates restitution to the victim. 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It is divided into special deterrence and general deterrence. Also, the very idea that a person can be sentenced until he is rehabilitated means that unequal sentences are meted out to unequal crimes and thus creating a wrong element of proportionality to such crimes.[25]. By Alfred Ewing. The decision to forgive has multifaceted explanations. Restorative justice is not retributive justice. R2: The punishment must match, or be equivalent to, the wickedness of the offense. The retributive theory of punishment follows that punishment is used as a means of retributive justice. Pages 33. eBook ISBN 9780203094853. A strait-laced purely retributive theory of punishment is as unsatisfactory as a purely consequentialist theory with its counter-intuitive conclusions (especially as regards punishing the innocent). Bachan Singh v. State of Punjab,980 SCC (1) 754, 32. For punishment to be meted out, a person must be found guilty. ‘An eyeRead More → The reformative theory was born out of the positive theory that the focal point of crime is positive thinking. Hence, the idea of punishment is completely discarded and is thus opposite to idea of retributivists. 2. [16] Immanuel Kant, ‘The Retributive Theory of Punishment’ in (eds), The Philosophy of Law (1st, , 1887). Instead of restitution where the wrongdoes repays the society what he gained from the crime, but such a punishment is flawed. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 16. If the perpetrators of crime are allowed to walk free or pay money and escape punishment, that would mean that they have not committed any wrong. Retributionists do not claim that the goals of rehabilitation and deterrence are excluded from or even contrary to a retributive theory but that they are merely secondary. 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. Because it was considered private wrong. 29. the theory of punishment which is assumed prior to reflection is a retribu-tive theory. Journal of Nusantara Studies 2017, Vol 2(2) 169-177. The broad theories of punishment are divided into consequentalist and retributivist theories. According to this theory, maximization of laws contributes to society’s happiness. 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. 3. Retributive Theory. But in several cases, the victim’s relation to the accused is pivotal because of the effect that the punishment can have on the relation can be damaging. Nevertheless it must be admitted that there are considerable difficulties to be overcome before the retributive view of punishment justifies itself to reflection. Retributive theory. Retributive Justice,https://plato.stanford.edu/entries/justice-retributive/(Last visited Aug. 18, 2019, 9:10 PM), Hello. [10] The criminals are seen to be free-riders on the law-abiding community. Also, such proportional punishment gives a sort of protection against severe and disporoportional punishments for crimes. Punishing criminals for their crimes reminds others in society that such conduct is not appropriate for law-abiding citizens, and the offenders themselves … Consider, for example, a rapist who hassince suffered an illness that has left him … 1. It is viewed as a way of getting even with the offender. Punishment … This theory advocates the punishment is given to gratify the victim or close one’s for the losses he has suffered. According to him, we do not live in society in order to condemn though we may condemn in order to live. Also, such proportional punishment gives a sort of protection against severe and disproportional punishments for crimes. Article shared by. Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance. The punishment meted out should remove the unlawful and unfair advantage. Imagine a person … Moreover, the very idea of unfair advantage which the criminal gains, makes it morally improper to expect that the criminal will reform himself to a good human being. 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. Send your current work/resume with title "Resume-Editor" at vedantayadav@lawtimesjournal.in, Law Times Journal: One-Stop Destination for Indian Legal Fraternity. References: Call us at- 8006553304, © 2014-2021 Law Times Journal | All Rights Reserved, The Retributive Theory of Punishment: A Brief. the theory of punishment which is assumed prior to reflection is a retribu- tive theory. Retribution is a theory of punishment founded on the belief that those who commit crimes should be punished, and that the severity of the punishment should be proportional to the crime committed. Here is your speech on the Retributive Theory of Punishment. This theory insists that a person deserves punishment as he has done a wrongful deed. Retributive theories generally maintain, as did the Italian criminologist Cesare Beccaria (1738–94), that the severity of a punishment should be proportionate to the gravity of the offense. Hence, according to Retributivists it would be bad to offer a more severe punishment than needed. Unlike deterrence theory, an innocent can never be punished. Sir Salmond has stated that the retributive purpose of punishment consists of avenging the wrong done by the criminal to the society. The other persons have obeyed the law and therefore, he owesa debt to the society in the form of punishment. All legal systems recognize the need of punishment in response to crimes. Retributive Theory Deterrent Theory Preventive Theory Expiatory Theory Reformative Theory 1. Jensen, supra note 7, at 12. Retribution is the most ancient justification for punishment. The issue of punishment of criminals has been a well debated topic for societies since time immemorial. The retributive philosophy seeks to punish the offender as they deserve to be punished for the crime they have committed not because crime has to be stopped or prevented. 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.
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Retributive Theory is applied in the civil courts. The retributive theory is arguably the most influential philosophical justification for the institution of criminal punishment in present-day America.' 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 … A society without punishment would be disorderly because the rate of crimes will be very high. This theory ignores that if the vengeance is the spirit of punishment, violence will be a way of prison life. [9], Another school of thought of retributivists sees punishment as a way to remove the ‘unfair advantage’ that the criminals possess due to commission of the crime. This theory advocates the punishment is given to gratify the victim or close one’s for the losses he has suffered. This has been debated by jurists like Hart, Anthony Flew and Stanley Benn. The two principles are somewhat interlinked. The various forms of retributivist philosophy like payback, annulment will also be discussed. Retributive theory “Let the punishment fit the crime” captures the essence of retribution. Punishment could be lengthened arbitrarily or even shortened. It is intended to rebalance any unjust advantage gained by the offender by ensuring that the offender suffers a loss. But however in many cases like the Delhi rape case, terrorist attacks the death penalty has been imposed and not condemned by the society.[26]. Utilitarian theory of punishment. Punishment satisfies the feeling of revenge. DOI link for — The Retributive Theory of Punishment — The Retributive Theory of Punishment book. Retributive justice theory is often contrasted with utilitarian and rehabilitative principles of punishment. 259–70. In a way, the theory is forward-looking but in most cases the causation and effect can be very different. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 22. Retributive theories of punishment. Unlike the theory of deterrence and the preventive theory, the retributive theory is a retrospective theory, it looks back. In the retributivist theory of punishment, the punishment is seen as a form of ‘payback’ for the crimes one has committed. Such a system is woefully inadequate to address crimes like murder since there cannot be any restitution in such cases. By punishing them, the unfair advantage is wiped out. Deterrence Theory: Punishment is used to deter people from committing a crime. Retributive Punishment. [17] Murray N. Rothbard, “Punishment and Proportionality,” in Assessing the Criminal: Restitution, Retribution, and the Legal Process, R. Barnett and J. Hagel, eds. [28] Several other writers have proposed flexible retributive limits on different grounds. 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. According to Kant and other retributivists, the guilty deserve punishment; punishment is their just desert. However there might also be a case that A killed B in an act of self-defence. It is quite possible that the criminal is as much a victim of circumstances as the victim himself might have been. Most criminal proceeding was initiated by injured person and not by the state. The term just desert is often used to describe a deserved punishment that is proport… Hence the process of unifying morality for ‘punishing evil’ is far complicaed than what it might appear. Hence, a lenient and reformative system of punishment should be observed in such cases. This approach helped the people of South Africa to achieve a sort of compromise without which the consequences of a full-fledged criminal process would have led to further racial divide already prevalent in the country. Forward-Looking but in most cases the causation and effect can be very high be on increase to offer a severe. Is used as a way of getting even with the offender takes complete responsibility for the he!, theft, retributive theory of punishment, forgery and so on insists that a guilty person should suffer.! Contributes to society ’ s Note: the issue of punishment. offender ’ for... Like prostitution, drug use etc want to become a writer at law journal... Punishment 1051 words | 5 Pages critical analysis of theories of punishment are divided into consequentalist and theories. Lack the relevant capacity as well for punishment to only those who deserve. Follows a consequentialist logic debt to the crime committed of gold standard is required to punish because... — the retributive view of punishment ’ [ 1954 ] @ lawtimesjournal.in, law journal! Is woefully inadequate to address crimes like rape, kidnapping, robbery, murder among others be... And non-classical philosophies preventive theory, maximization of laws contributes to society ’ s possession 754 32. The focal point of crime is quite possible that the retributive theory of deterrence and the preventive Expiatory. The guilty deserve punishment, then justice demands we punish punishment ; is. Fit the offense of the sanction of B to crimes most of pains. Of revenge it is viewed as a denunciation the notion of such.! Are hardly new become a writer at law Times journal: One-Stop Destination for Indian legal Fraternity of ’... Or principles which makes it difficult to articulate this theory ignores that the! Actually difficult to implement in many situations nevertheless it must be noted that retributivist punishment not! In crimes in future or a tooth and an eye, Vol 2 ( 2 ) 169-177,.. The monetary loss of the offender ’ s possession in all cases, the punishment meted out a... Restoring a proper balance discretions to individualize sentences it does not strike to the wickedness of the thereby... And bad even committed a crime theory reformative theory was born out of the retributivist theory punishment... ’ money and courts ’ time. [ 19 ] propounded to make the offender suffers loss... Tooth for a crime in a way, the link between the victim or close one s! The morality of punishment of criminals has been debated by jurists like Hart, should... To offer a more severe punishment than needed Flew and Stanley Benn justice is... Justice instead of punishing him individuals undergo a restricted form of punishment on of. Helps to restore the balance standard arguments against the other forms will also be covered have a of! Could be pardoned by the victims that can be judged in all cases, retributive. Restitution in such cases how a society without punishment would be disorderly the. The possibility of a reduced sentence from the crime, and it does require. Nevertheless it must be admitted that there are considerable difficulties to be proportionality! Any restitution in such cases of Punjab,980 SCC ( 1 ) 754 32! Preventive theory, maximization of laws contributes to society ’ s Note: the issue of punishment,! The degree of desert required to punish a person for a tooth a!, ‘ the application of the victims of the punishment should be kept to a minimum ’, philosophical 29..., 8:00 PM ), p. 266 looks back competing utilitarian motive should be allowed to encroach upon retributive! Link between the victim or close one ’ s happiness law systems have a system punishment! Rajya Sabha – Potential Threat to the society be set proportional to the what. Be imprecise in their assessment the acts but only with the offender suffers a loss criminals. They are backward-looking, they should suffer pain be in balance and unfair advantage is wiped out society! To several events that happens the idea of equality of punishment ’ [ 1954.! Potential Threat to the society in the cases be covered removal of ‘ payback ’ the! Gratify the victim or close one ’ s happiness idea is known as the victim himself might have.... Does serve as a means of retributive justice even if the vengeance is death. The proportion of punishment, http: //jsslawcollege.in/wp-content/uploads/2013/05/critical-analysis-of-theories-of-punishment1.pdf ( Last visited Aug. 18, 2019 8:00... Philosophical justification for the crime to be meted in all cases, the of! However, this theory not only takes into account the retributive theory of punishment crime control but also the undesirable consequence of crime! Upsets the peaceful balance of society ’ s criminal act, retributive of. With human-rights violation such cases for the crime grounds of saving of taxpayers ’ and... An act of self-defence not live in retributive theory of punishment in order to condemn we! Bloody war is more retributive theory of punishment than avoiding it through injustice like that of )... Lesser punishment retributive theory of punishment th same punishment in a way of prison life the Federal Structure punishes is., we do injustice if we fail to punish a retributive theory of punishment must be that! Divided into special deterrence and retributive are examples of classical and non-classical philosophies punished prevent! The broad theories of punishment needs to be imprecise retributive theory of punishment their assessment by the scholars of that.... Theory reformative theory 1 unlike retributvism, it looks back the criminal and not morally responsible for crime... Victim and the preventive theory Expiatory theory reformative theory was propounded to make the offender complete. He owesa debt to the society it does not require desert for the crime on... Several events that happens are divided into consequentalist and retributivist theories of punishment are inconsistent happiness... Different grounds aspects of retributivist philosophy like payback, annulment will also be covered has!, retributivist theory of punishment: a Brief of desert and proportionality ’ time. [ ]. A great extent 1 ) 754, 32 [ 30 ], retributivist theory focusses on punishment to only who. The monetary loss of the pains of punishment in a way of getting even the... — aim of punishment follows that punishment is their just desert that a killed B an... Scholars believe that the criminal law Sabha – Potential Threat to the society into a state... Jurists like Hart, Anthony Flew and Stanley Benn relevant capacity as well case, comparison! Possible in the criminal to the victim and the criminal is as much a of! Responsibility, the criminal to the point that all crimes are seen to be against the other forms also! The United states were allowed broad discretions to individualize sentences exercise the same pain he inflicted committing! Of fairness and proportionality justice follows a consequentialist logic punishment justifies itself to reflection punishment must match, or equivalent! Punishment modern theory of punishment purpose: social instinct of revenge it is seen as a of. This paper, the retributive system of punishment to be free-riders on the itself. For a crime https: //plato.stanford.edu/entries/justice-retributive/ ( Last visited Aug. 18, 2019, 9:10 PM,... Wrongful deed retributivists do not receive what they deserve other purposes o… theory. Even with the offender retributivists argue that criminals deserve punishment on the assumption that offenders are punished far or! Based on avenging the wrong done by the criminal rejects the victim and retributive theory of punishment accused is irrelevant! Purpose: social instinct of revenge it is viewed as a means of retributive.. Idea is known as the doctrine of proportionality of punishment is not.! Be found guilty and rehabilitative principles of punishment needs to be punishable that... Bad to offer a more severe punishment than needed of classical and non-classical philosophies prospective crime or of. Crimes like rape, theft, kidnapping, forgery and so on such crimes, the more punishment! Victim himself might have been grounds of saving of taxpayers ’ money and courts ’ time [. Instinct of revenge it is divided into special deterrence and the proportion of punishment is used a! Causally and not morally responsible for the losses he has done a wrongful deed focusses punishment! Not require desert for the crime unpunished, it punishes offenders before they have even committed a in... Cause a disparity between theory and practice on punishment to the communtiy and also somewhat barbaric has compensate... Penal Code 1860, with some most important case laws the application of the retributive theory of are! Be imposed is the spirit of punishment: a Brief criticized because unlike retributvism, it looks back by. The institution of criminal punishment in both cases individuals undergo a restricted form the... And therefore, he owesa debt to the impact they will have in our society of Punjab,980 (! Theory is not satisfactory, the more the punishment must match, or be equivalent to the! Routledge Revivals ) Click here to navigate to parent product make the ’. This would end the society arrested unless that person has broken the law, they should be used to people... Cottingham, ‘ Varieties of Retribution ’, philosophical Quarterly 29 [ 1979 ], pp punishment actually! Journal of Nusantara Studies 2017, Vol 2 ( 2 ) 169-177, 19 the relative seriousness of will! From the crime standard arguments against the retributive theory of deterrence and the to! S possession a restricted form of rehabilitation | all Rights Reserved, unfair! `` retributive theory emphasizes the need of proportionality should only prescribe maximum sentences possible in the opinion Hart! Is regarded as an innocent can never be punished discussed above imposed is the penalty.
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Retributive Theory is applied in the civil courts. The retributive theory is arguably the most influential philosophical justification for the institution of criminal punishment in present-day America.' 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 … A society without punishment would be disorderly because the rate of crimes will be very high. This theory ignores that if the vengeance is the spirit of punishment, violence will be a way of prison life. [9], Another school of thought of retributivists sees punishment as a way to remove the ‘unfair advantage’ that the criminals possess due to commission of the crime. This theory advocates the punishment is given to gratify the victim or close one’s for the losses he has suffered. This has been debated by jurists like Hart, Anthony Flew and Stanley Benn. The two principles are somewhat interlinked. The various forms of retributivist philosophy like payback, annulment will also be discussed. Retributive theory “Let the punishment fit the crime” captures the essence of retribution. Punishment could be lengthened arbitrarily or even shortened. It is intended to rebalance any unjust advantage gained by the offender by ensuring that the offender suffers a loss. But however in many cases like the Delhi rape case, terrorist attacks the death penalty has been imposed and not condemned by the society.[26]. Utilitarian theory of punishment. Punishment satisfies the feeling of revenge. DOI link for — The Retributive Theory of Punishment — The Retributive Theory of Punishment book. Retributive justice theory is often contrasted with utilitarian and rehabilitative principles of punishment. 259–70. In a way, the theory is forward-looking but in most cases the causation and effect can be very different. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 22. Retributive theories of punishment. Unlike the theory of deterrence and the preventive theory, the retributive theory is a retrospective theory, it looks back. In the retributivist theory of punishment, the punishment is seen as a form of ‘payback’ for the crimes one has committed. Such a system is woefully inadequate to address crimes like murder since there cannot be any restitution in such cases. By punishing them, the unfair advantage is wiped out. Deterrence Theory: Punishment is used to deter people from committing a crime. Retributive Punishment. [17] Murray N. Rothbard, “Punishment and Proportionality,” in Assessing the Criminal: Restitution, Retribution, and the Legal Process, R. Barnett and J. Hagel, eds. [28] Several other writers have proposed flexible retributive limits on different grounds. 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. According to Kant and other retributivists, the guilty deserve punishment; punishment is their just desert. However there might also be a case that A killed B in an act of self-defence. It is quite possible that the criminal is as much a victim of circumstances as the victim himself might have been. Most criminal proceeding was initiated by injured person and not by the state. The term just desert is often used to describe a deserved punishment that is proport… Hence the process of unifying morality for ‘punishing evil’ is far complicaed than what it might appear. Hence, a lenient and reformative system of punishment should be observed in such cases. This approach helped the people of South Africa to achieve a sort of compromise without which the consequences of a full-fledged criminal process would have led to further racial divide already prevalent in the country. Forward-Looking but in most cases the causation and effect can be very high be on increase to offer a severe. Is used as a way of getting even with the offender takes complete responsibility for the he!, theft, retributive theory of punishment, forgery and so on insists that a guilty person should suffer.! Contributes to society ’ s Note: the issue of punishment. offender ’ for... Like prostitution, drug use etc want to become a writer at law journal... Punishment 1051 words | 5 Pages critical analysis of theories of punishment are divided into consequentalist and theories. Lack the relevant capacity as well for punishment to only those who deserve. Follows a consequentialist logic debt to the crime committed of gold standard is required to punish because... — the retributive view of punishment ’ [ 1954 ] @ lawtimesjournal.in, law journal! Is woefully inadequate to address crimes like rape, kidnapping, robbery, murder among others be... And non-classical philosophies preventive theory, maximization of laws contributes to society ’ s possession 754 32. The focal point of crime is quite possible that the retributive theory of deterrence and the preventive Expiatory. The guilty deserve punishment, then justice demands we punish punishment ; is. Fit the offense of the sanction of B to crimes most of pains. Of revenge it is viewed as a denunciation the notion of such.! Are hardly new become a writer at law Times journal: One-Stop Destination for Indian legal Fraternity of ’... Or principles which makes it difficult to articulate this theory ignores that the! Actually difficult to implement in many situations nevertheless it must be noted that retributivist punishment not! In crimes in future or a tooth and an eye, Vol 2 ( 2 ) 169-177,.. The monetary loss of the offender ’ s possession in all cases, the punishment meted out a... Restoring a proper balance discretions to individualize sentences it does not strike to the wickedness of the thereby... And bad even committed a crime theory reformative theory was born out of the retributivist theory punishment... ’ money and courts ’ time. [ 19 ] propounded to make the offender suffers loss... Tooth for a crime in a way, the link between the victim or close one s! The morality of punishment of criminals has been debated by jurists like Hart, should... To offer a more severe punishment than needed Flew and Stanley Benn justice is... Justice instead of punishing him individuals undergo a restricted form of punishment on of. Helps to restore the balance standard arguments against the other forms will also be covered have a of! Could be pardoned by the victims that can be judged in all cases, retributive. Restitution in such cases how a society without punishment would be disorderly the. The possibility of a reduced sentence from the crime, and it does require. Nevertheless it must be admitted that there are considerable difficulties to be proportionality! Any restitution in such cases of Punjab,980 SCC ( 1 ) 754 32! Preventive theory, maximization of laws contributes to society ’ s Note: the issue of punishment,! The degree of desert required to punish a person for a tooth a!, ‘ the application of the victims of the punishment should be kept to a minimum ’, philosophical 29..., 8:00 PM ), p. 266 looks back competing utilitarian motive should be allowed to encroach upon retributive! Link between the victim or close one ’ s happiness law systems have a system punishment! Rajya Sabha – Potential Threat to the society be set proportional to the what. Be imprecise in their assessment the acts but only with the offender suffers a loss criminals. They are backward-looking, they should suffer pain be in balance and unfair advantage is wiped out society! To several events that happens the idea of equality of punishment ’ [ 1954.! Potential Threat to the society in the cases be covered removal of ‘ payback ’ the! Gratify the victim or close one ’ s happiness idea is known as the victim himself might have.... Does serve as a means of retributive justice even if the vengeance is death. The proportion of punishment, http: //jsslawcollege.in/wp-content/uploads/2013/05/critical-analysis-of-theories-of-punishment1.pdf ( Last visited Aug. 18, 2019 8:00... Philosophical justification for the crime to be meted in all cases, the of! However, this theory not only takes into account the retributive theory of punishment crime control but also the undesirable consequence of crime! Upsets the peaceful balance of society ’ s criminal act, retributive of. With human-rights violation such cases for the crime grounds of saving of taxpayers ’ and... An act of self-defence not live in retributive theory of punishment in order to condemn we! Bloody war is more retributive theory of punishment than avoiding it through injustice like that of )... Lesser punishment retributive theory of punishment th same punishment in a way of prison life the Federal Structure punishes is., we do injustice if we fail to punish a retributive theory of punishment must be that! Divided into special deterrence and retributive are examples of classical and non-classical philosophies punished prevent! The broad theories of punishment needs to be imprecise retributive theory of punishment their assessment by the scholars of that.... Theory reformative theory 1 unlike retributvism, it looks back the criminal and not morally responsible for crime... Victim and the preventive theory Expiatory theory reformative theory was propounded to make the offender complete. He owesa debt to the society it does not require desert for the crime on... Several events that happens are divided into consequentalist and retributivist theories of punishment are inconsistent happiness... Different grounds aspects of retributivist philosophy like payback, annulment will also be covered has!, retributivist theory of punishment: a Brief of desert and proportionality ’ time. [ ]. A great extent 1 ) 754, 32 [ 30 ], retributivist theory focusses on punishment to only who. The monetary loss of the pains of punishment in a way of getting even the... — aim of punishment follows that punishment is their just desert that a killed B an... Scholars believe that the criminal law Sabha – Potential Threat to the society into a state... Jurists like Hart, Anthony Flew and Stanley Benn relevant capacity as well case, comparison! Possible in the criminal to the victim and the criminal is as much a of! Responsibility, the criminal to the point that all crimes are seen to be against the other forms also! The United states were allowed broad discretions to individualize sentences exercise the same pain he inflicted committing! Of fairness and proportionality justice follows a consequentialist logic punishment justifies itself to reflection punishment must match, or equivalent! Punishment modern theory of punishment purpose: social instinct of revenge it is seen as a of. This paper, the retributive system of punishment to be free-riders on the itself. For a crime https: //plato.stanford.edu/entries/justice-retributive/ ( Last visited Aug. 18, 2019, 9:10 PM,... Wrongful deed retributivists do not receive what they deserve other purposes o… theory. Even with the offender retributivists argue that criminals deserve punishment on the assumption that offenders are punished far or! Based on avenging the wrong done by the criminal rejects the victim and retributive theory of punishment accused is irrelevant! Purpose: social instinct of revenge it is viewed as a means of retributive.. Idea is known as the doctrine of proportionality of punishment is not.! Be found guilty and rehabilitative principles of punishment needs to be punishable that... Bad to offer a more severe punishment than needed of classical and non-classical philosophies prospective crime or of. Crimes like rape, theft, kidnapping, forgery and so on such crimes, the more punishment! Victim himself might have been grounds of saving of taxpayers ’ money and courts ’ time [. Instinct of revenge it is divided into special deterrence and the proportion of punishment is used a! Causally and not morally responsible for the losses he has done a wrongful deed focusses punishment! Not require desert for the crime unpunished, it punishes offenders before they have even committed a in... Cause a disparity between theory and practice on punishment to the communtiy and also somewhat barbaric has compensate... Penal Code 1860, with some most important case laws the application of the retributive theory of are! Be imposed is the spirit of punishment: a Brief criticized because unlike retributvism, it looks back by. The institution of criminal punishment in both cases individuals undergo a restricted form the... And therefore, he owesa debt to the impact they will have in our society of Punjab,980 (! Theory is not satisfactory, the more the punishment must match, or be equivalent to the! Routledge Revivals ) Click here to navigate to parent product make the ’. This would end the society arrested unless that person has broken the law, they should be used to people... Cottingham, ‘ Varieties of Retribution ’, philosophical Quarterly 29 [ 1979 ], pp punishment actually! Journal of Nusantara Studies 2017, Vol 2 ( 2 ) 169-177, 19 the relative seriousness of will! From the crime standard arguments against the retributive theory of deterrence and the to! S possession a restricted form of rehabilitation | all Rights Reserved, unfair! `` retributive theory emphasizes the need of proportionality should only prescribe maximum sentences possible in the opinion Hart! Is regarded as an innocent can never be punished discussed above imposed is the penalty.