The Retributive Theory of Punishment: A Brief

retributive philosophy

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

The Retributive Theory

“An eye for an eye and a tooth for a tooth.”

-Exodus 21: 23–25; Leviticus 24:17–20

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 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 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.

Sir Salmond has stated that the retributive purpose of punishment consists of avenging the wrong done by the criminal to the society. The retributive theory suggests that the offender should pay for his or her crime. Unlike the theory of deterrence and the preventive theory, the retributive theory is a retrospective theory, it looks back. 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. 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.

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.

The retributive theory of punishment has two principles, desert and proportionality. 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. The degree of desert and the proportion of punishment needs to be in balance. Hence, according to Retributivists it would be bad to offer a more severe punishment than needed. The punishment needs to be in proportionality of the desert and gravity of crime. 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.

Frequently Asked Questions

1. What are the advantages of the retributive theory of punishment?

Retributive theory has its own advantages over the other forms of punishments, some of them are;

  • 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.
  • Retributive punishment is not cruel or barbaric.
  • Retributive is impartial and neutral as it.

2. What are the demerits of the retributive theory of punishment?

The retributive theory of punishment has merits as well as demerits, some of the demerits are;

  • Retributivists have not given guidelines or principles which makes it more moral than legal.
  • Object of punishment is not only punishing the criminal and not preventing the prospective crime or reformation of the offender.

3. Does another interpretation of retributive theory exist?

Another interpretation of the retributive theory of punishment exists which considers punishment as a form of expiation. 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.

4. What is the philosophy behind retributive theory?

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. The punishment for the crime should be proportionate.

5. What was the view of Immanuel Kant?

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.  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 other persons have obeyed the law and therefore, he owesa debt to the society in the form of punishment.

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje 

References

1. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

2. Universiti Sultan Zainal Abidin

3. ISSN 0127-9386 (Online

4. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

5. Universiti Sultan Zainal Abidin

6. ISSN 0127-9386 (Online

7. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

8. Universiti Sultan Zainal Abidin

9. ISSN 0127-9386 (Online

10. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

11. Universiti Sultan Zainal Abidin

12. ISSN 0127-9386 (Online)

13. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

14. Universiti Sultan Zainal Abidin

15. ISSN 0127-9386 (Online

16. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

17. Universiti Sultan Zainal Abidin

18. ISSN 0127-9386

19. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

20. Universiti Sultan Zainal Abidin

21. ISSN 0127-9386

22. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

23. Universiti Sultan Zainal Abidin

24. ISSN 0127-9386

25. Journal of Nusantara Studies 2017, Vol 2(2) 169-177

26. Universiti Sultan Zainal Abidin

27. ISSN 0127-9386

28. 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).

29. 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. Theories of punishment: a socio legal view,http://www.legalserviceindia.com/articles/pun_theo.htm(Last visited Aug. 17, 2019, 6:00 PM)

31. Bachan Singh v. State of Punjab,980 SCC (1) 754

32. 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. Retributive Justice,https://plato.stanford.edu/entries/justice-retributive/(Last visited Aug. 18, 2019, 9:10 PM)

Previous articleGeneral Exceptions: Private Defence
Next articleRule of Law
Hello. We are team members of Law Times Journal. Editorial members at Law Times Journal is a team of writers led by Vedanta Yadav. Want to become a writer at Law Times Journal? Send your current work/resume with title "Resume-Editor" at vedantayadav@lawtimesjournal.in