The various forms of retributivist philosophy like payback, annulment will also be discussed. Many scholars believe that the idea of proportionality should only prescribe maximum sentences possible in the cases. All legal systems recognize the need of punishment in response to crimes. This theory is based on the assumption that offenders are punished to prevent and discourage them from engaging in crimes in future. Modern common law systems have a system of plea bargaining where in the accused admits to the guilt in lieu of a reduced sentence. T&F logo. Retributivism is backward-looking. The punishment meted out should remove the unlawful and unfair advantage. 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. Like a thief benefits from breaking the law by stealing someone’s possession. 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. In older times, injured person takes revenge by causing injury to other. Criticism Punishment is regarded as method of protecting society because social wel… In other words, if someone harms another person or society, the person who inflicted that wrong should endure harm of their own. What can be the punishment for crimes like rape, kidnapping, forgery and so on? Editorial members at Law Times Journal is a team of writers led by Vedanta Yadav. A person who has stole a sum of money should not only give back the money but should also suffer to the extent he made the victim suffer. The law of punishment is a categorical imperative, and woe to him who crawls through the windings of eudai monism in order to discover something that releases the criminal from punishment or even reduces its amount by the advantage it promises, 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. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 25. This theory not only takes into account the actual crime control but also the undesirable consequence of the sanction. 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 liberal retributive theory also includes the consideration of the circumstances of the crime. The retributive theory focuses on the crime itself as the reason for imposing punishment. The theory aims at punishing the offender what they deserve according to the acts already committed by them rather than prospectively stopping or preventing them from committing crimes. Retributive Justice,https://plato.stanford.edu/entries/justice-retributive/(Last visited Aug. 18, 2019, 9:10 PM), Hello. Punishment … Criminal behavior upsets the peaceful balance of society, and punishment helps to restore the balance. 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.
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. 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. If we leave the crime unpunished, it is regarded as an innocent deed. We do injustice if we fail to punish criminals because they then do not receive what they deserve. In the opinion of Hart, punishment should not be for sake of denunciation alone but a deserved punishment does serve as a denunciation. In some premodern societies, punishment was largely vindictive or retributive, and its prosecution was left to the individuals wronged (or to their families). It converts into a permanent final judgment what might otherwise be a transient sentiment.”[20], In his evidence to the Royal Commission on Capital Punishment, Lord Denning observed,“ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime.”. 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. [16] Immanuel Kant, ‘The Retributive Theory of Punishment’ in (eds), The Philosophy of Law (1st, , 1887). Here is your speech on the Retributive Theory of Punishment. Does another interpretation of retributive theory exist? 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 viewed as a way of "getting even" with a wrongdoer—the suffering of the wrongdoer is seen as a desired goal in itself, even if it has no restorative benefits for the victim. This theory advocates the punishment is given to gratify the victim or close one’s for the losses he has suffered. 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. vism. References: WikiMatrix. The retributive theory is arguably the most influential philosophical justification for the institution of criminal punishment in present-day America.' Herbert Hart defined retributivism as ‘the application of the pains of punishment to an offender who is morally guilty’. Hence the process of unifying morality for ‘punishing evil’ is far complicaed than what it might appear. This idea is known as the doctrine of proportionality. Although most crimes are both illegal and immoral like rape, murder, theft etc., there are crimes like traffic offences and jaywalking which although illegal cannot be said to be immoral. 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. [8] Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. 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. The Appeal of Retributive Justice. In such crimes, the punishment cannot be set proportional to the wickedness of the crime because of the absence of wickedness. It is based on a very small doctrine, namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’. 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. The broad theories of punishment are divided into consequentalist and retributivist theories. In the retributive theory, the punishment awarded is an end in itself in comparison to the forms of punishment in the utilitarian theory where the punishment is a means to is means to an end hence the success is not definite unlike in the retributive theory. That is, because of their lack of experiential capacity, corporations cannot be given their “just deserts.” But people can also lack experiential capacity for punishment. Philosophy, 29, 293-294, [2] S I Benn, ‘An Approach to the Problems of Punishment’ [1958] Philosophy 127, 325, [3] HLA Hart, Punishment and Responsibility (1st, Clarendon Press, Oxford 1968) 5, [4] Joel Feinberg, Doing & Deserving; Essays in the Theory of Responsibility (1st, Princeton University Press,  Princeton 1970) 98, [5] Although this broad classifcation has been challenged, but the two words are used to group together a set of very diverse theories. But however, it recommends punishing in proportion to the harm caused or threatened, but only when such and to such extent that such punishment will prevent future crimes. 30. The issue of punishment of criminals has been a well debated topic for societies since time immemorial. Retributive is impartial and neutral as it. Since they are backward-looking, they are not concerned with the possibility of a person committing a crime. The very nature of morality being subjective makes it difficult to deliver punishments for crimes. The various forms of retributivist philosophy like payback, annulment will also be discussed. The reformative theory was born out of the positive theory that the focal point of crime is positive thinking. In the case of Bachan Singh v. State of Punjab4, it was stated that the retributive theory of punishment in the sense of society’s reprobates is not an outmoded concept in context to serious crimes, further taking the view of Lord Justice Denning it was further stated that punishment as an expression of society should adequately reflect what the society feels, hence crimes which are of an outrageous nature have punishments which the offender deserves because the society insists on adequate punishment, it does not matter if the punishment is deterrent or not, it would be a mistake to consider the objects of punishment as preventive, reformative or deterrent.eval(ez_write_tag([[728,90],'lawtimesjournal_in-medrectangle-4','ezslot_3',112,'0','0'])); The retributive theory of punishment has two principles, desert and proportionality. “Justice has been done when the wrong-doer has been sufficiently punished.” The weightage given to proportionality in the retributive system of justice carries with itself several advantages and disadvantages. Retributivists do not concern themselves with the consequences of the acts but only with the desert which has occurred. Under the utilitarian philosophy, laws should be used to maximize the happiness of society. 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. Retributive Punishment. Forgiveness itself includes individual transformation of the victims that can free the pain of the past thereby healing the wounds caused by the crime. The punishment for the crime should be proportionate.eval(ez_write_tag([[300,250],'lawtimesjournal_in-box-4','ezslot_4',113,'0','0'])); Immanuel Kantdiscussed the concept of punishment in The Metaphysics of Morals, he further stated the concept of morals and punishment should satisfy the rationality of morality and justice and guilt is an adequate condition for justifying punishment. Punishment as an end itself. 29. 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. Punishment satisfies the feeling of revenge. 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 degree of desert and the proportion of punishment needs to be in balance. The retributive theory suggests that the offender should pay for his or her crime. It is not essential that the criminal will, after having been punished, realize his mistake in violating the moral law and … It has been rightly pointed out by Sir Walter Moberly that the drama of wrong doing and its retribution has indeed been an unending fascination for the human mind. Removal of ‘Domicile’ Requirements for Rajya Sabha – Potential Threat to the Federal Structure. 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 retributive theory emphasizes the need of proportionality of punishment to a great extent. Does one receive lesser punishment or th same punishment in both cases? The more the desert, the more the punishment should be. [10] The criminals are seen to be free-riders on the law-abiding community. Punishment can be said to be an important tool to maintain a socio-economic-legal balance in the society and to ensure the peaceful environment amidst the citizens.1It can be said that the purpose of punishment is to neutralise the effect of thewrongful act of the offender.Antony Flew, HLA Hart  and Stanley Benn have defined punishment as something unpleasant in lieu of an offense against legal rules, imposed by a legal authority and administered by the society.2 Durkheim with a different approach has stated, that punishment is the reaction of the society against crime, punishment should be a proportionate response to the harm caused to the society.3, “An eye for an eye and a tooth for a tooth.”. 32. 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 retributive theory of punishment follows that punishment is used as a means of retributive justice. But even the liberal form of the retributive theory is not satisfactory. Another problem of retributivist theory is with dealing with amoral crimes. 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. 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. 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). Norval Morris viewed retributive punishments to be imprecise in their assessment. First Published 1929. 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. We are team members of Law Times Journal. For punishment to be meted out, a person must be found guilty. He is the former non-executive chairman of the NASDAQ stock market, and 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. What are the demerits of the retributive theory of punishment? 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. Hence, the idea of punishment is completely discarded and is thus opposite to idea of retributivists. 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). And because of this moral responsibility, the thief deserves punishment. Imagine a person … 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 …