Author – Kanak Sharma, Faculty of Law, Aligarh Muslim University

Abstract 

Retributive justice emphasizes the role of punishment in restoring moral balance by holding offenders accountable for their actions. This article examines the philosophical foundation of retributive justice, arguing that punishment is not only a deterrent but also a means of reestablishing fairness and moral order in society. By addressing the harm caused to victims and reinforcing societal norms, retributive justice aims to ensure that wrongdoers receive punishment proportional to their offenses. The article critically assesses whether this approach effectively contributes to long-term justice or perpetuates cycles of vengeance and inequality.

Introduction

Retribution is one of the earliest grounds for punishment. Perhaps the most famous example of this in Western philosophy is the Old Testament saying “an eye for an eye, a tooth for a tooth, a life for a life.” Immanuel Kant (1724-1804), an eighteenth-century German philosopher, advanced this basic concept in contemporary philosophy by relating its validity to the power of the state. It has recently been attacked as a regressive notion that is no more morally superior than vengeance. Retribution and revenge share a common structure. Retribution and revenge differ from deterrence and rehabilitation approaches, which prioritize reducing crime for the future. Both are performed as a result of a past error.

According to Sir John Salmond, the goal of retributive punishment is to retaliate for the harm a criminal has caused to society.

Thus, the people who believe in the theory of retributivism believe that the person doing wrong should suffer pain proportionate to what he has inflicted on an individual or the society as a whole.

Retributive theory punishes only those who have committed a crime and ensures that punishment is proportional to the degree of injury caused. It does not punish those who may commit a crime in the future.

What is Retributive Justice?

Retributive justice is a theory of justice that emphasizes the punishment of offenders as a response to their wrongdoing, with the punishment being proportional to the severity of the offense committed. This concept is rooted in the idea that individuals who commit crimes deserve to be punished as a form of moral retribution or payback for their actions. Retributive justice focuses on the past actions of the offender rather than seeking to achieve certain future outcomes, such as rehabilitation or deterrence.

1. Those who commit serious crimes deserve proportionate punishment. 

2. It is intrinsically morally good for a legitimate punisher to give them the punishment they deserve. 

3. Punishing the innocent or inflicting disproportionately large punishments on wrongdoers is morally unacceptable.

Over the past few decades, retributive justice has been a dominant concept in punishment theorizing. However, certain aspects of it, such as desert and proportionality, the normative status of suffering, and the ultimate justification for retribution, are still debated and problematic. 

Critics of retributive justice argue that it can sometimes lead to overly punitive measures and fail to address the underlying causes of crime. Additionally, there are concerns about the potential for disproportionate punishment and the perpetuation of cycles of violence. However, proponents of retributive justice argue that it provides a morally appropriate response to wrongdoing and reinforces societal norms of accountability and responsibility. 

Theories Of Punishment

1. Deterrent

Incapacitation, often known as the deterrent theory, involves arresting a person to prevent them from harming others.

The meaning of the word ‘Deter’ in the Deterrent Theory of punishment is to refrain someone from committing a crime. To understand it better, it can be framed as, ‘A man may be punished not just because he has committed an illegal act, but also to ensure that crime is not committed’.

Thus, the goal of this approach is to dissuade or prohibit offenders from attempting a new crime or repeating the same ones in the future.

The sociological school of jurisprudence can be related to deterrent theory as it indicates law to be a social phenomenon as the theory revolves around the hope to control the crime rate in society.

Social contract philosophers such as Jeremy Bentham, Thomas Hobbes, and Cesare Beccaria established the basis for modern deterrence in criminology.

These philosophers believed that if the punishment was certain, immediate, and harsh, a rational individual would weigh the pros and cons of any behavior that might break the law and its consequences. 

2. Retributive 

Retributive theory is the most basic and ancient theory of punishment. Based on the Doctrine of Lex talionis, which when literally translated means, “Tooth for Tooth, Eye for Eye, Limb for Limb and Nail for Nail”. Jurists who agree in this notion argue that by punishing those who commit crimes, they gain an understanding of their victim’s grief and the degree of immortality in their actions. Also known as the Vengeance Theory, this type of punishment sends a message to society that the legal system is present in the country to protect them and eliminate the unfair advantage that a criminal has when committing a crime.

3. Prevention 

Supported by the believers of the Utilitarian theory, like Austin, Bentham, and Mill, preventive theory quest to incapacitate criminals to prevent anticipated crimes, whether of similar or varying nature. The philanthropic nature of the theory is a reason why these jurists believed in it. To ensure the effectiveness of preventive theory, the principle of “Justice delayed is justice denied” is to be followed.

Promptness is crucial, as any delay in inquiry or investigation can render the function or punishment ineffective.
The theory seeks to limit future threat by altering the offender, either temporarily or permanently.

This is accomplished by isolating the perpetrator from society by temporary detention, lifetime imprisonment, or, in extreme cases, capital punishment.

4. Reformative 

Reformative theory, also known as rehabilitative sentencing, aims to reform criminals through individualization rather than punishment, based on Mahatma Gandhi’s principle of “Condemn the Sin, not the Sinner”.

This theory is founded on the humanitarian concept that simply committing a crime does not cause the wrongdoer to lose his or her humanity.

Supporters of this approach argue that treating an offender sympathetically, tactfully, and lovingly can help him become an orderly and law-abiding citizen.

In the case of Mohd. Giasuddin v. State of Andhra Pradesh Justice Krishna Iyer observed “Every saint has a past, and every sinner has a future” encapsulates this theory. According to this theory, crime is linked to the prevalent physical or emotional condition of the patient, the treatment of society towards him and the environment and circumstances around him.

Thus, it arises as a result of the conflict between the criminal’s character and intent.
Given this argument, the reformative theory views criminals as patients.

As a result, the state is required to work toward the offender’s reform throughout his time in prison and ensure that he can live a life of dignity once his sentence has been served. 

5. Expiatory
   

This belief holds that if the perpetrator expiates or repents and recognizes his error, he must be pardoned. The victim receives compensation from the wrongdoer, yet the accused does not face physical punishment. 

He is economically punished, and compensation is paid to the victim or the victim’s relatives. Different punishments are prescribed for different sorts of crimes. Various Punishment theories are proposed with various intentions.
The variations in the mode of punishment come as a result of society reactions to lawbreaking.

Role Of Punishment In Restoring Moral Balance

The criminal justice system seeks a fine balance between punishment and rehabilitation. While punishment acts as a deterrent and a kind of vengeance, rehabilitation is critical for breaking the pattern of criminality and supporting reintegration into the society.

However, in many circumstances, the balances lean significantly towards punishment, ignoring the critical component of rehabilitation. “I have spent nearly 28 years in prison,” Armand Coleman told Harvard Law School students and professors via Zoom on an early spring afternoon. He spent 22 years in a maximum-security jail and 12 in solitary confinement. “But the time I spent in the restorative-justice program was the hardest thing I ever had do,” Coleman told me.

“It just… he paused for a moment. “It was very difficult to come to terms with what I did, and also to come to terms with the things that happened to me that turned me into the person I was.”

Coleman and his companion, Emmanual “Noble” Williams, both former inmates of MCI Norfolk, one of the Commonwealth’s oldest and largest institutions, were guest lecturers in senior lecturer Nancy Gertner’s seminar on mass incarceration and sentencing legislation. They’d come to talk about an approach to criminal justice that has gained ground during the past couple of decades as an alternative to the prevailing legal process.

Restorative justice focuses on the harm done and measures to repair it, instead of prosecution and punishment. The men had come to discuss how profoundly it had altered their lives.
These days, “restorative justice” refers to an ever-widening range of procedures and initiatives used in prisons, workplaces, and educational institutions. At its most comprehensive, restorative justice informs the work of truth and reconciliation commissions such as those established in South Africa and Rwanda following apartheid and atrocities. It is the idea that spurs the American discussion over reparations for slavery.

Within the criminal justice system, restorative justice typically entails in-person meetings between an offender and victim. The wider community, which includes friends, relatives, and other victims of the crime, also attends these events, which are frequently referred to as “circles.” As restorative-justice facilitators first meet separately with both victim and offender to gather information and go over in detail the expectations and structure of the upcoming dialogue and the process as a whole, weeks or even months of planning and preparation have elapsed before everyone sits down together. 

During the in-person discussion, which might involve multiple parties, each talks uninterruptedly and one at a time about the crime, its consequences, and the events and personal histories that led up to it. The criminal owns up to his actions, admits guilt, and extends a thorough public apology; victims speak up about their suffering, needs, and sentiments. After that, the group decides on a course of action that the offender can follow to address those needs, make amends for the harm, and stop committing new offenses.
Currently, rules allowing the application of restorative justice in at least some criminal cases have been passed by numerous US states. Generally, programs operate in one of three ways: 

as an alternative discipline option, a means of diverting the criminal process from which offenders—particularly juvenile or first-time offenders—can escape charges and a conviction, or, in more severe situations, a means of reducing a criminal sentence. The program in which Coleman and Williams participated was of a fourth type; it was started years after the men’s convictions and had no bearing on the men’s sentences or dates of release, but its fundamental goal remained the same: to assist participants in accepting responsibility for their transgressions, deepening their understanding of themselves, and, to the greatest extent possible, “make things right,” as Coleman has phrased it. 

By addressing the underlying factors that contribute to criminal behavior, such as addressing social, economic, mental health, and other related issues, and providing appropriate support and resources, rehabilitative or restorative justice approaches aim to break the cycle of crime and help individuals reintegrate into society as productive and law-abiding members. 

These approaches recognize that simply punishing individuals for their criminal behavior without addressing the underlying causes is not always effective in preventing future criminal involvement. By addressing the root causes of criminal behavior, individuals are given the opportunity to understand and address their challenges, develop coping skills, and make positive changes in their lives. This can help them overcome the risk factors that may have led to their criminal behavior in the first place, and reduce the likelihood of reoffending. Moreover, these approaches emphasize the importance of providing support and resources to individuals during and after their involvement in the criminal justice system. 

This can include access to education, job training, mental health services, substance abuse treatment, housing assistance, and other forms of support that can address their needs and facilitate their successful reintegration into society. By providing appropriate support and resources, individuals are better equipped to overcome challenges, build a positive future, and become productive and law-abiding members of their communities. 

Overall, addressing the underlying factors that contribute to criminal behavior and providing appropriate support and resources are critical components of rehabilitative or restorative justice approaches, which prioritize individualized and holistic strategies for lowering recidivism and encouraging a smooth transition back into society

Conclusion

The punitive stance of the existing criminal justice system, which prioritizes punishment above rehabilitation, is frequently criticized. On the other hand, a progressive approach to criminal justice reform aims to replace the punishment model with rehabilitation in order to turn criminals into contributing members of society. This method recognizes that addressing underlying problems including mental health, addiction, and societal injustices is essential to lowering crime and enhancing public safety, as punishment alone does not address the reasons of criminal conduct.

In conclusion, the role of punishment in restoring moral balance is multifaceted and depends on various factors such as societal values, cultural norms, and the specific goals of the justice system. While punishment can deter wrongdoing, satisfy the desire for retribution, and protect society from harm, its effectiveness and moral legitimacy are subject to debate. Alternative approaches such as rehabilitation and restorative justice offer alternative perspectives that prioritize healing, reconciliation, and the prevention of future harm. Ultimately, the most effective approach to restoring moral balance may involve a combination of punitive measures, rehabilitation efforts, and restorative practices tailored to the needs of individuals and communities.
Balancing punishment and rehabilitation within the criminal justice system is crucial for achieving long-term positive outcomes.

Sentimental reform can assist in ending the cycle of crime, lowering recidivism rates, and promoting safer and more resilient communities by reassessing severe sentencing systems, embracing evidence-based rehabilitation programs, and implementing tailored treatments. In order to ensure that the criminal justice system fulfills its mandate of advancing justice, fairness, and societal well-being, it is necessary to move the emphasis from just punishing offenders to actively engaging in their rehabilitation.

FAQs

Q.1 What is retributive justice? 

Answer. Retributive justice is a theory of punishment where offenders are punished proportionally to the severity of their crimes, with the aim of restoring moral balance by ensuring accountability.

Q.2 What is the main goal of retributive justice? 

Answer. The primary goal is to ensure that the punishment fits the crime, restoring moral order by giving offenders what they deserve for their actions.

Q.3 How does retributive justice address victims’ needs? 

Answer. While retributive justice prioritizes punishing the offender, it also acknowledges the harm done to victims by ensuring that wrongdoers are held accountable, providing a sense of closure or justice.

Q.4 What are the criticisms of retributive justice? 

Answer. Critics argue that retributive justice can lead to excessive punishment, perpetuate cycles of vengeance, and fail to address underlying social issues that contribute to crime.

Reference

• Restoring Justice, available at Harvard Magazine (https://www.harvardmagazine.com/2021/06/features-restorative-justice) 

• Theories of punishment, available at Manupatra Articles (https://articles.manupatra.com/article-details/Theories-of-punishment)