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Retributivist Theory of Punishment

Retributivist Theory of Punishment

Retributive justice is a theory of justice that considers punishment, if proportionate, to be the best response to crime. When an offender breaks the law, s/he thereby forfeits or suspends her/his right to something of equal value, and justice requires that this forfeit be enacted.

 

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Broshan Schwarma

Broshan Schwarma

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Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority himself or of those 'in whose name' the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties.

Article:   An Expressive Theory of R…
Source:  Offline Book/Journal

If a dog is attacked, it snarls and strikes back. If human beings are attacked they respond in a similar way, experiencing (sometimes considerable) anger and a desire to retaliate. These natural, instinctive responses are not the source of retribution, which no dog or higher-order mammal other than a human being could ever inflict on an attacker.

Article:   An Expressive Theory of R…
Source:  Offline Book/Journal

In contrast, intent-based retributivists hold the view that in both cases A's wrongdoing is properly characterized as his shooting to kill B; it is irrelevant whether the bullet killed B or harmed no one. In both cases, A deserves the same punishment.

Article:   Modal Retributivism: A Th…
Source:  Offline Book/Journal

To take a well-worn example, imagine that A, intending to kill B, shoots a gun at B's heart. Should the punishment that A deserves depend on whether the bullet strikes and kills B as intended, or misses B due to an unforeseeable gust of wind which blows the bullet off course? Proponents of "harm-based" retributivism answer yes.

Article:   Modal Retributivism: A Th…
Source:  Offline Book/Journal

From a retributivist point of view-assuming that the original level of punishment is just-prisoners paying fees for more comfortable jail-time experiences receive less than their deserved punishment for a reason unrelated to their blameworthiness: their ability to pay. Thus, retributivism would not permit pay-to-stay programs.

Article: A Virtuous State Would No...
Source: Michigan Law Review

Retributive justice has its origins in the time of the Norman Conquest when feudalism was developed, and servants or vassals swore allegiance or "fealty" to their king.  This made any criminal offense a crime against the state, not a crime against another person.  Restorative justice has its origins in the communal practices of pre-modern societies where the offender's family and the victim's family got together and reconciled matters privately.

Article: Retributive and Restorati...
Source: Retributive and Restorati...

But what distinguishes retributivism from consequentialism is precisely that the former insists that punishment does not aim at any future effects, while the latter insists that punishment is justified only with reference to future effects such as crime prevention.  To miss this point is to misunderstand the very nature of the debate.

Article: RETRIBUTIVISM: ESSAYS ON ...
Source: RETRIBUTIVISM: ESSAYS ON ...

Retributivists, ancient and modern, have always been lured by one or another form of lex talionis (Davis 1992), despite objections dating from post-biblical times to the present (Walker 1991). Nor does it suffice to abandon like-for-like retaliation in punishment in favor of restating the basic retributive principle in nontalionic form: Severity in punishment must be proportional to the gravity of the offense. Few will argue against this principle, but it still leaves us with a spectrum of alternatives among which to choose, marked at one end by a positivistic legalism (offenders deserve whatever the penal code provides as their punishment) and at the other end by an inchoate moralism (offenders deserve whatever accords with their moral culpability and the harm they have caused).

Article: Punishment
Source: Stanford

The retributive justification of punishment is founded on two a priori norms (the guilty deserve to be punished, and no moral consideration relevant to punishment outweighs the offender's criminal desert) and an epistemological claim (we know with reasonable certainty what punishment the guilty deserve) (Primoratz 1989, M. Moore 1987). It is arguable, however, whether the guilty always do deserve to be punished; it is also arguable whether, even when they do they ought always to get what they deserve; and it is further arguable whether when they ought to be punished as they deserve, the punisher always knows what it is they deserve (except in the purely procedural sense alluded to above; see also below) (Bedau 1978). We cannot meet these challenges to the deontological retributivist by insisting that punishment is nothing more than a necessary conceptual consequence of living under the rule of law (Fingarette 1978).

Article: Punishment
Source: Stanford

Retributivism as a theory of punishment requires retribution as a rationale for law.  A retributionist assumes that the law exists for a reason -- a moral reason.  All crime, even victimless crime, involves a social harm -- a moral harm.  In other words, violating the law not only offends against the law of the land, but the moral code of the land. 

Article: Retributive and Restorati...
Source: Retributive and Restorati...
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