retributive justice

retributive justice, response to criminal behaviour that focuses on the punishment of lawbreakers and the compensation of victims. In general, the severity of the punishment is proportionate to the seriousness of the crime.

Retribution as a philosophy

Retribution appears alongside restorative principles in law codes from the ancient Near East, including the Code of Ur-Nammu (c. 2050 bce), the Laws of Eshnunna (c. 2000 bce), and the better-known Babylonian Code of Hammurabi (c. 1750 bce). In those legal systems, collectively referred to as cuneiform law, crimes were considered violations of other people’s rights. Victims were to be compensated for the intentional and unintentional harms they suffered, and offenders were to be punished because they had done wrong.

Retribution is based on the concept of lex talionis—that is, the law of retaliation. At its core is the principle of equal and direct retribution, as expressed in Exodus 21:24 as “an eye for an eye.” Destroying the eye of a person of equal social standing meant that one’s own eye would be put out. Some penalties designed to punish culpable behaviour by individuals were specifically tied to outlawed acts. Branders who used their skills to remove slave marks from runaway slaves, for example, had their hands amputated.

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No other punishment philosophy gives so much importance to actus reus (a guilty act) and mens rea (a guilty state of mind). Under retribution, both elements of the crime must be present before punishment can be imposed. In addition, offenders may be punished only for the guilty acts they actually commit; those who plan a murder but succeed only in wounding a victim, for example, should not be punished as harshly as those who actually carry out the murder.

Under retributive justice schemes, it is also important that offenders actually be guilty of the crime for which a penalty has been imposed. True deterrence doctrine, according to the utilitarian philosophy of Jeremy Bentham, allows for the punishment of innocent individuals if doing so would serve a valuable societal function (e.g., creating and maintaining an image that crime is detected and punished so that others are deterred from crime). That idea is repugnant to retributionists, who believe that punishment should be meted out only to those who have broken laws. The value of retribution cannot be cheapened by using it to compensate for inadequacies of the justice system.

Retribution also forbids the punishment of offenders who cannot be held responsible for their actions. Insane or intellectually disabled individuals, for example, should not be penalized for acts that result from mental illness or disability. In addition, acts that are truly accidental, as well as those committed by children, are not subject to the same punishment as those committed by adults who possess criminal intent. The reasoning is simple when viewed through the lens of retributive theory. If individuals do not or cannot form mens rea (i.e., they cannot freely choose how they act), they do not deserve to be punished for their actions. As in the time of Hammurabi, however, victims are entitled to damages, because causing harm—even in the absence of intent—carries the obligation of restoring one’s victims.

Under retribution, it is improper to allow guilty individuals to go unpunished. Because punishment must be deserved and follow culpable actions, it is inappropriate to deny individuals the consequences of their actions. In some respects, punishment is something that individuals “earn” when they exercise their free will in an unacceptable manner. Here again, deterrence doctrine differs from retribution, because true deterrence allows offenders whose skills are needed by the community to be spared sanctions. Utilitarianism’s overall goal is deterrence, which allows pardoning guilty parties if doing so is somehow better for the community as a whole.

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Punishing offenders also restores balance to society and satisfies society’s need or desire for vengeance. Offenders have misused society’s benefits and have thus gained an unethical advantage over their law-abiding counterparts. Retributive punishment removes that advantage and tries to restore balance to society by validating how individuals ought to act in society. In some respects, punished individuals undergo a restricted form of rehabilitation. Punishing criminals for their crimes reminds others in society that such conduct is not appropriate for law-abiding citizens, and the offenders themselves realize they have done wrong and deserve to be punished.

Criticisms of retribution

Of course, no punishment theory is without its critics. Many of those who criticize retribution argue that the philosophy is outdated. As societies become more civilized, they should outgrow the need or desire for revenge. Others note that punishing criminals just because they have acted inappropriately does not address any underlying issues that may have led to the crimes in the first place. Some offenders need treatment rather than punishment; without treatment, the cycle of crime will continue unabated.

Other critics note that it is not feasible to establish a satisfactory scale of punishments for crimes. Even if such a scale could be developed, it would probably fail to consider offenders’ differing roles and motivations in committing crimes. Yet such considerations are important to retributionists, given their focus on deserved sanctions rather than punishment for its own sake.

Finally, a few critics note that doing unto others what they have done unto you is not as fair as it may initially seem. The victim suffered only the injury, but the offender must suffer both the injury and the anxiety of waiting for the injury to be imposed as punishment.