Sir Salmond has stated that the retributive purpose of punishment consists of avenging the wrong done by the criminal to the society. Send your current work/resume with title "Resume-Editor" at vedantayadav@lawtimesjournal.in, Law Times Journal: One-Stop Destination for Indian Legal Fraternity. In this paper, the author will focus on the aspects of retributivist system of punishment. Retributive justice theory is often contrasted with utilitarian and rehabilitative principles of punishment. Retributive justice contrasts with other purposes o…
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 4. Retributivists argue that criminals deserve punishment on account of their wrongdoing. Critical analysis of theories of punishment, http://jsslawcollege.in/wp-content/uploads/2013/05/critical-analysis-of-theories-of-punishment1.pdf(Last visited Aug. 18, 2019, 8:00 PM), 33. Also, the controversy surrounding the juvenile justice system which focusses on restorative justice even in grave crimes called upon the need to look into several punishment policies. Retributivists stick to the point that all crimes should be punished. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 19. In today’s societies, the maximum punishment that can be imposed is the death penalty which has its own critics. Reformative Theory. It is based on a very small doctrine, namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’. 29. T&F logo. In its application, however, proportionality cannot be so easily measured, and this can cause a disparity between theory and practice. The Utilitarian Theory Of Punishment 1494 Words | 6 Pages. “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”. The principle is that if a man has caused the loss of a man’s eye, his eye one shall cause to be lost; if he has shattered a man’s limb, one shall shatter his limb; if a man has made the tooth of a man that is his equal fall out, one shall make his tooth fall out. Here is your speech on the Retributive Theory of Punishment. 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.”[13] In this way punishment “can annul the message, sent by the crime, that they are not equal in value”. [21] Morris contended that by punishing wrongdoers each citizen learns the particular significance of the evil underlying offenses and the degree of seriousness. 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. [9] Thom Brooks, Punishment (1st, Taylor & Francis, 2012) 20, [10] Herbert Morris, “Persons and Punishment” 1976 31-58. What can be the punishment for crimes like rape, kidnapping, forgery and so on? 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. Hence, the criminal does not get what his deserved punishment was.[24]. Retributivist theories of punishment see it as important because it punishes the criminals in proportion to their crime thereby restoring a proper balance. Editor’s Note: The issue of punishment of criminals has been a well debated topic for societies since time immemorial. It is based on the old philosophy of “an eye for an eye, a tooth for a tooth”. Call us at- 8006553304, © 2014-2021 Law Times Journal | All Rights Reserved, The Retributive Theory of Punishment: A Brief. 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). This theory not only takes into account the actual crime control but also the undesirable consequence of the sanction. Desert refers to some demerit which has caused the accused to commit a crime. [11], One view of retributuivism put forward by Hegel in early nineteenth century saw the idea of punishment to cancel, negate or annul the offender’s crime. 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. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 22. We are team members of Law Times Journal. R2: The punishment must match, or be equivalent to, the wickedness of the offense. 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). 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. 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. 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. [7] T. M. Scanlon, What We Owe to Each Other (Cambridge: Belknap/Harvard University Press,1998), p. 266. 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 the retributivist theory of punishment, the punishment is seen as a form of ‘payback’ for the crimes one has committed. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 16. In older times, injured person takes revenge by causing injury to other. Also, the idea of making an example out of an offender runs counter to the proportional punishment which has been long championed by retributivists. It is intended to rebalance any unjust advantage gained by the offender by ensuring that the offender suffers a loss. 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. Does another interpretation of retributive theory exist? 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. By Alfred Ewing. For punishment to be meted out, the accused should and must be found guilty. Some might not have functioning minds, but others may lack the relevant capacity as well. [30], [1] Antony Flew, ‘The Justification of Punishment’[1954]. 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]. 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. This has been debated by jurists like Hart, Anthony Flew and Stanley Benn. 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. 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. For some, using drugs is a matter of personal liberty while for some it is seen to be an reprehensible act. Retributive Theory 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. There are five theories of Punishment. Retribution means giving offenders the punishment they deserve. What is the philosophy behind retributive theory? 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. Another problem of retributivist theory is with dealing with amoral crimes. Such a system is woefully inadequate to address crimes like murder since there cannot be any restitution in such cases. 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.”. Desert refers to the demerit made by the offender which resulted in a crime, it can be said to be a three-way relationship between the person who deserved the punishment, what they deserve, and the virtue in which they deserve the punishment. Retributive Theory Of Punishment 1051 Words | 5 Pages. 3. The more the desert, the more the punishment should be. The idea of punishment as a form of denunciation of the criminal and his act by the society has been envisioned by scholars like Morris, Hampton and Sir. Hence, according to Retributivists it would be bad to offer a more severe punishment than needed. It was an act of private defence. [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. The retributive theory seeks to punish offenders because they deserve to be punished. [17] Murray N. Rothbard, “Punishment and Proportionality,” in Assessing the Criminal: Restitution, Retribution, and the Legal Process, R. Barnett and J. Hagel, eds. But this involves imposing of morality which goes back to the first criticism of the theory. 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 … The retributive theory of punishment follows that punishment is used as a means of retributive justice. Yet it is curiously difficult to articulate this theory in a perspicuous fashion. Deterrence. The offender takes complete responsibility for the crime and initiates restitution to the victim. 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. This approach was a reconcilitatory approach to deal with human-rights violation. 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. 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.”. Article shared by. 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