View source for Retributive justice

{{Short description|Type of punishment}}
{{Use American English|date=January 2019}}
{{Use mdy dates|date=January 2019}}
{{Criminology and penology|penology}}

'''Retributive justice''' is a legal concept whereby the criminal offender receives punishment proportional or similar to the [[crime]]. As opposed to [[revenge]], retribution—and thus retributive justice—is not personal, is directed only at wrongdoing, has inherent limits, involves no pleasure at the suffering of others (e.g., ''[[schadenfreude]]'', [[Sadistic personality disorder|sadism]]), and employs procedural standards.<ref>{{cite book|last=Nozick|first=Robert|url=https://archive.org/details/isbn_9780674664791|title=Philosophical Explanations|publisher=Harvard University Press|year=1981|isbn=978-0674664791|location=Cambridge, MA|pages=[https://archive.org/details/isbn_9780674664791/page/366 366]–368|quote=retributive justice revenge.|url-access=registration}}</ref><ref>{{cite web|title='Positive' Retributivism and the Meaning of Desert|url=http://plato.stanford.edu/entries/legal-punishment/#PosRetMeaDes|access-date=June 2, 2014|website=Stanford Encyclopedia of Philosophy|archive-date=July 11, 2010|archive-url=https://web.archive.org/web/20100711125538/http://plato.stanford.edu/entries/legal-punishment/#PosRetMeaDes|url-status=live}}</ref> Retributive justice contrasts with other purposes of punishment such as [[deterrence (legal)|deterrence]] (prevention of future crimes), [[exile]] (prevention of opportunity) and [[Rehabilitation (penology)|rehabilitation]] of the offender.

The concept is found in most world cultures and in many ancient texts. Classical texts advocating the retributive view include [[Cicero]]'s ''[[De Legibus]]'' (1st century BC), [[Immanuel Kant]]'s ''Science of Right'' (1790),<ref>{{Cite book|last=Kant|first=Immanuel|url=https://philpapers.org/rec/KANSOR|title=Science of Right}}</ref> and [[Georg Wilhelm Friedrich Hegel]]'s ''[[Elements of the Philosophy of Right]]'' (1821).<ref>{{Cite web|last=Hegel|title=Contents of Hegel's Philosophy of Right|url=https://www.marxists.org/reference/archive/hegel/works/pr/prconten.htm|access-date=2018-03-06|website=www.marxists.org|archive-date=October 19, 2017|archive-url=https://web.archive.org/web/20171019190828/https://www.marxists.org/reference/archive/hegel/works/pr/prconten.htm|url-status=live}}</ref> The presence of retributive justice in [[ancient Jewish]] culture is shown by its mention in the [[Torah|law of Moses]],<ref>{{Bibleverse|Deuteronomy|19:17–21}}</ref><ref>{{Bibleverse|Exodus|21:23–27}}</ref> which refers to the punishments of "life for life, [[Eye for an eye|eye for eye]], tooth for tooth, hand for hand, foot for foot" as also attested in the [[Code of Hammurabi]]. Documents assert similar values in other cultures, though the judgment of whether a particular punishment is appropriately severe can vary greatly across cultures and individuals in accord with circumstance.

==Purposes==
Some purposes of official retribution include:<ref name=retrospective/>
* To channel the retributive sentiments of the public into the political and legal systems.  The intent is to deter people from resorting to [[lynching]]s, [[blood feud]]s, and other forms of [[vigilante]] self-help.
* To promote [[Social Solidarity|social solidarity]] through participation in the act of punishing, under the theory that "the society that slays together stays together."
* To prevent a situation in which a citizen who would have preferred to obey the law as part of his [[Civic responsibilities|civic responsibility]] decides that he would be a fool to not violate it, when so many others are getting away with lawlessness that the point of his [[Obedience (human behavior)|obedience]] is mostly defeated.
* To punish an offender.
* To compensate victims in proportion to the crime.

==History==

In all ancient legal systems, retribution for wrongdoing took precedence over the enforcement of rights. A sense of [[natural law]] demanded that a criminal should be punished with similar loss and pain as they inflicted on their victim. Therefore, the concept of ''[[lex talionis]]'' (an eye for an eye) was common in ancient law. The [[Code of Hammurabi]] includes the oldest extent example of ''lex talionis'', and the [[Hebrew Bible]] also includes a commandment: {{transliteration|he|middah ke-neged middah}} (law of '[[an eye for an eye|measure for measure]]'). The Roman lawyer and philosopher [[Cicero]] proposed "let the punishment fit the offence" ({{langx|la|noxiae poena par esto}}), giving examples of violence being punished by death, fines being imposed on those convicted of greed etc.<ref>{{cite book |last=Cicero |first=Marcus Tullius |author1-link=Cicero |title=De Legibus |trans-title=[[De Legibus|On the Laws]] |translator-last=Keyes |translator-first=Clinton |orig-date=c. 50 BC |at=Book III, paragraph XX |series=[[Loeb Classical Library]] |volume=213 |publisher=Harvard University Press |date=1928 |url=https://www.loebclassics.com/view/marcus_tullius_cicero-de_legibus/1928/pb_LCL213.513.xml |language=en}}</ref>

In the late 18th century, the philosopher [[Immanuel Kant]] argued that retribution is the only legitimate form of punishment the court can prescribe:<ref name="martin 174">Martin, Jacqueline. 2005. ''The English Legal System'' (4th ed.). London: Hodder Arnold. {{ISBN|0-340-89991-3}}. p. 174.</ref>
{{blockquote|Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime.|source=''[[Metaphysics of Morals]]'' § 49 E.}}
Kant regarded punishment as a matter of justice, which must be carried out by the state for the sake of the law, not for the sake of the criminal or the victim. He argues that if the guilty are not punished, justice is not done and if justice is not done, then the idea of law itself is undermined.<ref name="james 2k7">[[James Rachels|Rachels, James]]. 2007. ''[[The Elements of Moral Philosophy]]''</ref>

One of the reasons for the abandonment of retribution by many legal systems in the 20th century was the abandonment of the concept of personal [[autonomy]], which had become discredited.<ref name="retrospective" /> While retributive justice is usually considered as a cornerstone of criminal punishment, it has been shown that it also plays a role in [[private law]].<ref>Perry, Ronen. 2006. "[https://poseidon01.ssrn.com/delivery.php?ID=608092126118021019123066093017124094059092037020027043122087102090122103076118008118007114061061050022034101116007118000091109023006066082083002113086108109065093062030050101126111113093087027111067016126084117095099026121124123031019017082083068119&EXT=pdf The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory (PDF)]." ''[[Tennessee Law Review]]'' 73:177–236. {{SSRN|846309}}. p. 177.</ref>

== Principles ==
According to the ''[[Stanford Encyclopedia of Philosophy]]'', retributive justice is committed to three principles:<ref name=":0">{{Cite book|last=Walen|first=Alec|url=http://plato.stanford.edu/archives/sum2015/entries/justice-retributive/|title=Retributive Justice|date=2015-01-01|editor-last=Zalta|editor-first=Edward N.|edition=Summer 2015|access-date=May 3, 2016|archive-date=January 17, 2018|archive-url=https://web.archive.org/web/20180117143951/https://plato.stanford.edu/archives/sum2015/entries/justice-retributive/|url-status=live}}</ref>
* "Those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment."
* It is "intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives [those who commit certain kinds of wrongful acts] the punishment they deserve."
* "It is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers."

=== Proportionality ===
[[Proportionality (law)|Proportionality]] requires that the level of punishment be related to the severity of the offending behaviour. An accurate reading of the biblical phrase "an eye for an eye" in [[Book of Exodus|Exodus]] and [[Book of Leviticus|Leviticus]] is said to be: "''only'' one eye for one eye",<ref>{{Cite book | last = Plaut | year = 1981 | title = The Torah&nbsp;– A Modern Commentary | publisher = Union of American Hebrew Congregations | place = New York |page=571ff}}</ref> or "an eye in place of an eye." However, this does not mean that the punishment has to be ''equivalent'' to the crime. A retributive system must punish severe crimes more harshly than minor crimes, but retributivists differ about how harsh or soft the system should be overall. The crime's level of severity can be determined in multiple ways. Severity can be determined by the amount of harm, unfair advantage or the moral imbalance that the crime caused.

Traditionally, philosophers of punishment have contrasted retributivism with [[utilitarianism]]. For utilitarians, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, justified by the crime that has already been committed. Therefore, punishment is carried out to atone for the damage already done.<ref name="Cavadinodignan">Cavadino, M., and J. Dignan. 1997. ''The Penal System: An Introduction'' (2nd ed.). London: Sage. p. 39.</ref>

==Subtypes==
Retributive justice is of two distinct types. The classical definition embraces the idea that the amount of punishment must be proportionate to the amount of harm caused by the offence. A more recent version advocated by [[philosopher]] [[Michael Davis (philosopher)|Michael Davis]] asserts that the amount of punishment must be proportionate to the amount of unfair advantage gained by the wrongdoer. Davis introduced this version of retributive justice in the early 1980s, at a time when retributive justice was resurging within the [[philosophy of law]] community, perhaps due to the failings{{original research inline|date=July 2014}} of reform theory in prior decades.{{Citation needed|date=July 2017|reason=Reliable source needed for the whole paragraph.}}

A retributive justice system's assessment of blameworthiness (or lack thereof) can either justify punishment or serve merely to limit the punishments society imposes for other reasons.<ref name=retrospective>{{cite journal|url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1893&context=journal_articles|title=The changing purposes of criminal punishment: A retrospective on the past century and some thoughts about the next|author=Alschuler, Albert|journal=The University of Chicago Law Review|date=Winter 2003|volume=70|number=1|pages=1–22|doi=10.2307/1600541|jstor=1600541|access-date=January 25, 2022|archive-date=December 1, 2018|archive-url=https://web.archive.org/web/20181201005122/https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https%3A%2F%2Fwww.google.com%2F&httpsredir=1&article=1893&context=journal_articles|url-status=live|url-access=subscription}}</ref>

==Criticisms==
Many jurisdictions that adopt retributive justice, [[Incarceration in the United States|especially in the United States]], use [[mandatory sentencing]], where judges impose a penalty for a crime within the range set by the law. However, judges have limited discretion to consider [[mitigating factor]]s, leading to lesser penalties under certain circumstances.{{citation needed|date=May 2022}}

When the punishment involves a fine, the theory does not allow the financial position of an offender to be considered, leading to situations in which a poor individual and a millionaire could be forced to pay the same amount. Such a fine would be punitive for the poor offender while insignificant for the millionaire.<ref>Martin, pp. 174–175.</ref> Instead of pure retribution, many jurisdictions use variants such as the [[European Union]]'s emphasis on punitive equality, which base the amount of a fine not just on the offense but also on the offender's income, salary, and ability to pay. Consequently, in 2002, a senior Finnish executive at [[Nokia]] was given a fine of [[Euro sign|€]]116,000 (US$103,000) on a traffic ticket issued for driving {{convert|75|km/h||abbr=on}} in a {{convert|50|km/h||abbr=on|adj=on|sp=us}} zone,<ref>{{Cite news|url=http://news.bbc.co.uk/2/hi/europe/1759791.stm|title=Nokia boss gets record speeding fine|date=14 January 2002|work=BBC News|access-date=18 June 2018|archive-date=June 18, 2018|archive-url=https://web.archive.org/web/20180618132502/http://news.bbc.co.uk/2/hi/europe/1759791.stm|url-status=live}}</ref> based on his income of €14 million ([[United States dollar|US $]]12.5 million) per year. Similarly, a Finnish businessman was required to pay €54,000 based on his yearly income of €6.5 million, making the fine equally punitive as a typical €200 (US$246) fine for the same offense would have been had it been issued to a Finn earning an average salary.<ref>{{Cite web|url=https://www.theatlantic.com/business/archive/2015/03/finland-home-of-the-103000-speeding-ticket/387484/|title=Finland, Home of the $103,000 Speeding Ticket|last=Pinsker|first=Joe|date=March 12, 2015|website=The Atlantic|access-date=18 June 2018|archive-date=March 6, 2018|archive-url=https://web.archive.org/web/20180306054934/https://www.theatlantic.com/business/archive/2015/03/finland-home-of-the-103000-speeding-ticket/387484/|url-status=live}}</ref> The retributive theory's lack of consideration of the perpetrator's and victim's status has led many jurisdictions to move away from it in various ways, including punitive equality and taking into consideration the status and wealth, or lack of status and wealth, of an offender and their consequent ability to both pay fines and defend themselves effectively in court.

One critique of some concepts of [[just deserts]] is that they are primitive, emphasizing social harm rather than the character and culpability of offenders, e.g., California's 1976 statute calling for "terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." More generally, prioritizing justice for the public over crime control goals has come under criticism as attributable more to the relative ease of writing sentencing guidelines as crime tariffs (as opposed to describing the appropriate influence of situational and personal characteristics on punishment) than to any sound arguments about [[penology|penological]] theory.<ref name=retrospective/>

==Alternatives==
Traditional alternatives to retributive justice have been [[exile]] and [[shunning]]. In pre-modern societies such sentences were often the equivalent of the death penalty as individuals would find it impossible to survive without the support and protection of the society that they had wronged.{{Citation needed|date=July 2017|reason=}}

Modern alternatives to retributive measures include [[Justice#Utilitarianism|utilitarian justice]], [[involuntary commitment|psychiatric imprisonment]], [[restorative justice]] and [[transformative justice]]. A general overview of [[criminal justice]] puts each of these ideals in context.

One [[Libertarianism|libertarian]] approach to this issue argues that full restitution (in the broad, rather than technical legal, sense) is compatible with both retributivism and a utilitarian degree of [[deterrence (psychology)|deterrence]].<ref>{{cite web |url=http://www.la-articles.org.uk/libertarian_restitution.htm |title=Why Libertarian Restitution Beats State-Retribution and State-Leniency |author=J. C. Lester |access-date=2008-01-13 |archive-date=September 4, 2006 |archive-url=https://web.archive.org/web/20060904220138/http://la-articles.org.uk/libertarian_restitution.htm |url-status=live }}</ref>

==See also==
{{Portal|Law|Society}}
* [[Capital punishment]]
* [[Cycle of violence]]
* [[Eye for an eye]]
* [[Penal harm]]
* [[Proportionality (law)]]
* "[[Two wrongs make a right]]"

==References==
<references />

==Further reading==
* {{cite encyclopedia|last=Mack|first=Eric |author-link=|editor-first=Ronald |editor-last=Hamowy |editor-link=Ronald Hamowy |encyclopedia=The Encyclopedia of Libertarianism |chapter=Retribution for Crime|chapter-url=https://sk.sagepub.com/reference/libertarianism/n263.xml|url= https://books.google.com/books?id=yxNgXs3TkJYC  |doi=10.4135/9781412965811.n263 |year=2008 |publisher= [[SAGE Publishing|Sage]]; [[Cato Institute]] |location= Thousand Oaks, CA  |isbn= 978-1412965804 |oclc=750831024| <!-- lccn = 2008009151 | -->pages=429–431|url-access=subscription }}

{{Types of justice}}

{{Authority control}}

[[Category:Penology]]
[[Category:Theories of law]]
[[Category:Justice]]
[[Category:Punishment]]
[[Category:Retribution]]