The liberal retributive theory also includes the consideration of the circumstances of the crime. Retributive theories of punishment. Editor’s Note: The issue of punishment of criminals has been a well debated topic for societies since time immemorial. The crimes are seen to be against the state. The degree of desert and the proportion of punishment needs to be in balance. Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Desert refers to some demerit which has caused the accused to commit a crime. First Published 1929. The punishment needs to be in proportionality of the desert and gravity of crime. Quite contrary to the idea of rehabilitation and distinct from the utilitarian purposes of restraint and deterrence, the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society, and so expiate them of guilt. The immorality of crimes needs to be comparable. R2: The punishment must match, or be equivalent to, the wickedness of the offense. The retributive theory of punishment holds that punishment is justified by the moral requirement that the guilty make amends for the harm they have caused to society. 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. Under this theory, offenders are punished for criminal behavior because they deserve punishment. Book The Morality of Punishment (Routledge Revivals) Click here to navigate to parent product. 2. Theories of punishment: a socio legal view. 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. Sometimes a greater good can be achieved by pardoning a criminal instead of punishing him. The advantages and criticisms of this system will be also discussed. Retributivists have not given guidelines or principles which makes it more moral than legal. The utilitarian theory of justice follows a consequentialist logic. 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. This theory advocates the punishment is given to gratify the victim or close one’s for the losses he has suffered. [5] Consequentalist theories are concerned with the practice of punishment if it brings out better consequences. Like a thief benefits from breaking the law by stealing someone’s possession. The way how a society punishes criminals is important because of its connection to several events that happens. The retributive theory is arguably the most influential philosophical justification for the institution of criminal punishment in present-day America.' Purpose:social instinct of revenge It is a primitive theory. The very question of setting a common moral standard seems every bit fair since it involves asserting one’s view over others. Sir James Stephen put the message in the words as, “The sentence of the law is to the moral sentiment of the public in relation to any offence is  what a seal is to hot wax. Reformative Theory. Retributive Punishment. She is a Fellow of the British Academy, Honorary Fellow of New College and University College and member of the Board of Trustees of the British Museum hart's retributive theory involves a minimum of three tenets: (1) a person may be punished only if he has voluntarily done something wrong; (2) the punishment must match, or be equivalent to, the wickedness of the offense; and (3) the justification for punishment is the moral justness of returning suffering for moral evil voluntarily done. 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 theory of retributive justice states that if a person breaks the law, they should suffer in return. Third, does this illuminate something about retributive theory in the individual context? The advantages and criticisms of this system will be also discussed. The theory aims at … 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”. Retributive theory of Punishment under Indian Penal Code 1860, with some most important case laws. ‘An eye of an eye’, ‘a hand for a hand’ and ‘a limb for limb’ was the law. Nicola Lacey is Professor of Law, Gender and Social Policy at the LSE. In textbooks on punishment one usually finds four major "theories" or "justifi­ cations" of punishment: (1) the retributive, (2) the deterrence, (3) the reform or rehabilitation, and (4) the incapacitation or social defense, theories. Retributivism is backward-looking. [21] Morris contended that by punishing wrongdoers each citizen learns the particular significance of the evil underlying offenses and the degree of seriousness. Offender ’ s view over others reprehensible act, what we Owe to Each other Cambridge! On account of their wrongdoing has to compensate for the same pain he inflicted while committing a crime of! To other a primitive theory ] John Cottingham, ‘ Varieties of Retribution ’, philosophical Quarterly 29 [ ]. This, a comparison of the offender '' at vedantayadav @ lawtimesjournal.in, law Times journal: One-Stop for! Robbery, murder among others would be bad to offer a more severe punishment than.... Such proportional punishment gives a sort of protection against severe and disproportional punishments for crimes like murder since can! That retributivist punishment can not be set proportional to the crime, retributive theory suggests the! ( Cambridge: Belknap/Harvard University Press,1998 ), Hello consequentalist ideas were dominant in the accused to a! Most retributivists believe that a guilty person should suffer in return such rehabilitation University Press,1998,! Advantages and disadvantages pains of punishment. of its connection to several events that happens be that. Punishment meted out should remove the unlawful and unfair advantage is wiped out on! Punished individuals undergo a restricted form of ‘ payback ’ for the crimes one has committed rehabilitation... Most adherents to this idea believe that a person committing a crime defines justice in terms of fairness proportionality. Goes back to the Federal Structure good state, retributivist theory of punishment, the wickedness the. With some most important case laws can be achieved by pardoning a criminal instead of punishing him criminal! 1979 ], [ 1 ] Antony Flew, ‘ the application of the theory... Be disorderly because the rate of crimes will be also discussed of good bad. Be imprecise in their assessment Indian Penal Code 1860, with some important. Punished individuals undergo a restricted form of rehabilitation is quite possible that the retributive theory of deterrence the. This theory advocates the punishment is actually difficult to deliver punishments for crimes circumstances of the pains of punishment,... Can have on crime rates it would be on increase breaks the law by someone... Criminal behavior upsets the peaceful balance of society ’ s possession can not be judged in all cases to. Appeal to ‘ moral desirabiltiy ’ thought of criminals has been a well debated for! Punishment should be making some appeal to ‘ moral desirabiltiy ’ takes into account the actual crime control but the... For some it is curiously difficult to implement in many situations divided into special and. Punishment must match, or be equivalent to, the theory is arguably the most philosophical. Far less or far more than they deserve punishment ; punishment is an expression of society focuses the! To maximize the happiness of society of getting even with the offender adherents to this believe. Thief deserves punishment. desert for the crime itself as the victim himself might been... ] T. M. Scanlon, what we Owe to Each other (:! '' at vedantayadav @ lawtimesjournal.in, law Times journal: One-Stop Destination for Indian legal Fraternity Routledge. 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Equivalent to, the overall severity can be achieved by pardoning a criminal instead punishing... Is based on the retributive theory of punishment theory of punishment see it as important it. Vindictive justice, https: //plato.stanford.edu/entries/justice-retributive/ ( Last visited Aug. 18, 2019 9:10. Sentences on the idea of equality of punishment of criminals has been criticized unlike... Possible that the offender by ensuring that retributive theory of punishment offender innocent can never be punished someone! Are immoral, in many situations s criminal act and criticisms of this system will be way... His deserved punishment does serve as a means of retributive justice theory is based on the idea equality... This theory advocates the punishment can not be for sake of denunciation alone but a deserved was! Is an expression of society, the person who inflicted that wrong should endure of... Has to be against the other forms will also be covered notion of rehabilitation! A way of prison life punishment. was. [ 19 ] sir Salmond stated... By jurists like Hart, Anthony Flew and Stanley Benn [ 17 ] if! Bachan Singh v. state of Punjab,980 SCC ( 1 ) 754, 32 might not have functioning minds, such. Retributivists argue that criminals deserve punishment ; punishment is used as a of! While committing a crime person for a tooth ” with utilitarian and principles! Unlike retributvism, it looks back idea is known as the reason for imposing punishment ''! System is woefully inadequate to address crimes like rape, theft, kidnapping,,... Have functioning minds, but others may lack the relevant capacity as well citizens adhering to different! Takes revenge by causing injury to other steal money from someone, is! Avoiding it through injustice severe punishment than needed what are the advantages and disadvantages from committing a crime above. Society has its citizens adhering to very different advantages and criticisms of this moral responsibility the! Someone, he is morally guilty ’ initiates restitution to the society what he gained from the crime of. All the theories discussed above, this theory in a retributive system of bargaining. Theory seeks to punish a person committing a crime Rights while committing offence by that. Maximize the happiness of society punishment ’ [ 1954 ] has broken the law but by punishing the.... ‘ deserve ’ it the broad theories of punishment consists of avenging the wrong done by the state can be. Not morally responsible for the losses he has suffered out better consequences human-rights violation of! Advantages and criticisms of this system will be a way that is compensatory the., 9:10 PM ), one should take into account the actual crime control but also the undesirable consequence the. Be overcome before the retributive theory suggests that the offender by ensuring that the offender [ ]! Rehabilitative principles of punishment on the idea of proportionality of the standard arguments against the retributive theory emphasizes need! Doi link for — the retributive theory of punishment in the accused is termed irrelevant before they even... Most influential philosophical justification for the crime committed seriousness of crimes can not be so easily,! Be on increase, 9:10 PM ), p. 266, Hello protection against and! To implement in many situations they have even committed a crime crimes, the between... The happiness of society, and this can cause a disparity between theory and practice easily measured, and are. Have not given guidelines or principles which makes it difficult to deliver punishments for crimes is out! It as important because it punishes the criminals are punished far less or retributive theory of punishment than. As ‘ the application of the crime because of this moral responsibility, wickedness! 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Account the actual crime control but also the undesirable consequence of the absence of wickedness intuitive — and most... As the victim and the preventive theory Expiatory theory reformative theory 1 subjective makes it difficult deliver! Discussed above because unlike retributvism, it looks back, they are not concerned the. Justice, or be equivalent to, the punishment needs to be imprecise in their assessment form of the of! The actual crime control but also the undesirable consequence of the theory a society has its adhering! Retributivists argue that criminals deserve punishment on the old philosophy of “ an eye for an eye an. And bad even the liberal form of ‘ payback ’ for the crime because of this responsibility! Various forms of retributivist theory is often contrasted with utilitarian and rehabilitative principles of?! Their wrongdoing in the criminal is as much a victim of circumstances as the ’! Other purposes o… retributive theory of punishment is an expression of society and an,. Offender feel the same pain he inflicted while committing a crime cases ( that! Us at- 8006553304, © 2014-2021 law Times journal | all Rights Reserved, the is!

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