What Retributive Justice Is
Retributive Justice is a matter of giving people their just deserts.
The central idea is that the offender has gained unfair advantages through his or her behavior, and that punishment will set this imbalance straight.
|
Central to retributive justice are the notions of merit and desert. We think that people should receive what they deserve. This means that people who work hard deserve the fruits of their labor, while those who break the rules deserve to be punished. In addition, people deserve to be treated in the same way that they voluntarily choose to treat others[1]. If you behave well, you are entitled to good treatment from others.
Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens in a society enjoy the benefits of a rule of law. According to the principle of fair play, the loyal citizen must do his part in this system of reciprocal restraint. An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider. He has helped himself to unfair advantages, and the state needs to prevent this to preserve the rule of law.[2]
Terrence Lyons talks about the balance that lies between providing incentives for dictators to step down and enforcing punishment mechanisms for leaders who have behaved unjustly.
|
In cases of wrongdoing, someone who merits certain benefits has lost them, while someone who does not deserve those benefits has gained them. Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense."[3] It is suffered as a debt that the wrongdoer owes his fellow citizens. Retributive justice in this way aims to restore both victim and offender to their appropriate positions relative to each other.
Retributive justice is in this way backward-looking. Punishment is warranted as a response to a past event of injustice or wrongdoing. It acts to reinforce rules that have been broken and balance the scales of justice.
Why Retributive Justice Matters
Protracted conflicts often involve violence or cruelty suffered by innocent civilians. In some cases, this violence is carried out systematically, in the form of genocide, ethnic cleansing, enslavement, or systematic racial discrimination. In other cases, rapes, murders, and acts of torture may be carried out more haphazardly.
In those cases where the parties involved are "at war," such actions violate the war convention and the rules of jus in bello. They are war crimes. But even when a war has not been officially declared, these cruel acts of murder and torture constitute human rights violations, prohibited by international law.
Many believe that those who perpetrate such war crimes, or crimes against humanity, should be brought to justice. This is typically accomplished through international courts or tribunals that carry out war crimes adjucation.
Retributive justice is a matter of giving those who violate human rights law and commit crimes against humanity their "just deserts." Punishment is thought to reinforce the rules of international law and to deny those who have violated those rules any unfair advantages. Together with restorative justice, retribution is concerned with restoring victims and offenders to their rightful position.
The Negative Side of Retributive Justice
The idea that we should treat people as they deserve is commonly accepted. We do not think that war criminals should be allowed to live carefree lives after committing unspeakable crimes against humanity.
However, there is a dangerous tendency to slip from retributive justice to an emphasis on revenge. Vengeance is a matter of retaliation, of getting even with those who have hurt us. It can also serve to teach wrongdoers how it feels to be treated in certain ways. Like retribution, revenge is a response to wrongs committed against innocent victims and reflects the proportionality of the scales of justice. But revenge focuses on the personal hurt involved and typically involves anger, hatred, bitterness, and resentment. Such emotions are potentially quite destructive. Because these intense feelings often lead people to over-react, resulting punishments can be excessive and cause further antagonism.
In addition, punishments dictated by revenge do not satisfy principles of proportionality or consistency. This is because revenge leads to punishments that vary according to the degree of anger provoked. Wrongs that do not provoke anger will receive no response. Acts that provoke a great deal of anger will, on the other hand, provoke an overly intense response and lead to reciprocal acts of violence.
For example, resentment about past injustice can "motivate people who otherwise live peaceably to engage in torture and slaughter of neighbors identified as members of groups who committed past atrocities."[4] Devastating inter-group violence in the form of mass killings can result.
It is not surprising that revenge seldom brings the relief that victims seek. The victim simply gets caught up in feelings of hatred.[5] Vengeful motives lead individuals to exact more than necessary, causing even further harm and setting in motion a downward spiral of violence.[6] Once there is this sort of violence break over, it is difficult to break out of the cycle of revenge and escalation. Overly harsh punishments do not make society any more secure and only serve to increase the level of harm done. In addition, in an atmosphere of heightened violence, there is little room for apology or forgiveness for wrongs committed.
Many believe that "the victim should not seek revenge and become a new victimizer but instead should forgive the offender and end the cycle of offense."[7] However, forgiveness does not take the place of justice or punishment, nor does it rule out giving the wrongdoer his just deserts.
Justice, Not Vengeance
Mark Amstutz, a professor at Wheaton College, finds fault with retributive approaches to justice because they do not pay sufficient attention to how individuals are to reconstruct their lives.
|
The idea that wrongdoers should be "paid back" for their bad deeds need not lead to a demand for primitive vengeance.
Retributive justice requires that the punishment fit the crime and that like cases be treated alike. Wrongdoers deserve blame and punishment in direct proportion to the harm inflicted. Retribution can therefore be seen as vengeance curbed by outside intervention and the principles of proportionality and individual rights.[8]
Indeed, one way to avoid the escalation of violence is "to transfer the responsibilities for apportioning blame and punishment from victims to public bodies acting according to the rule of law."[9] It is commonly thought that formal institutions with trained judiciaries are best equipped to carry out just retribution. Such institutions can effectively bring offenders to justice by giving them the punishment they deserve.
In the context of international affairs, there is a need to give wrongdoers what they deserve, but in a way that avoids further escalation of the conflict. War Crimes Adjucation carried out by international courts is one avenue of retributive justice. In addition, Truth Commissions play an integral role in the investigation of past crimes.
Trials for war crimes can convert the desire for revenge into state-managed punishment that is proportional and fair. However, in some cases of large-scale war violence such trials may be unlikely or ineffective. Restorative Justice, through reparations or compensation, might often be the more effective option.
[1] Rachels, James. "Punishment and Desert." In Ethics in Practice, ed. Hugh LaFollette (Malden, Massachusetts: Blackwell Publishers, 1997), 466.
[2] Murphy, Jeffrie G. Retribution Reconsidered (Norwell, Massachusetts: Kluwer Academic Publishers, 1992), 23.
[3] Cragg, Wesley. The Practice of Punishment: Towards a Theory of Restorative Justice (New York, Routledge, 1992), 15.
[4] Minow, Martha. Between Vengeance and Forgiveness (Boston, Massachusetts: Beacon Press, 1998), 11.
[5] Minow, 13.
[6] Minow, 10.
[7] Minow, 14.
[8] Minow, 12.
[9] Minow, 11-12.
Use the following to cite this article:
Maiese, Michelle. "Retributive Justice ." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: May 2004 <http://www.beyondintractability.org/essay/retributive_justice/>.
Sources of Additional, In-depth Information on this Topic
Additional Explanations of the Underlying Concepts:
Online (Web) Sources
Fieser, James. Capital Punishment. The University of Tennesse at Martin.
Available at: http://www.utm.edu/research/iep/c/capitalp.htm.
In legal philosophy, there are two principal theories of punishment: utilitarian and retributive. This piece explores both theories as a possible defense of capital punishment and also raises common criticisms of the practice.
Crocker, David A. Retribution and Reconciliation. Institute for Philosophy and Public Policy.
Available at: Click here for more info.
This piece discusses retributive justice in the context of the South African Truth and Reconciliation Commission. The author suggests that while there may be strong practical reasons to spare oppressors from trials and criminal sanctions, there is no moral argument that justifies the rejection of a retributive paradigm.
Retributive Model.
Available at: http://www.hec.ohio-state.edu/abs/handbook/retributive_justice.htm.
This piece provides an overview of the retributive model and explores the core values and definitions that ground this model. This includes definitions of offenders, offenses, and types of sanctions. It goes on to outline various forms of accountability in the context of juvenile crime.
"The U.S. Penal System: Restorative and/or Retributive Justice?." , 2000
Available at: http://woodstock.georgetown.edu/publications/report/r-fea61a.htm.
This piece describes a forum surrounding the possible reform of the U.S. penal system. It summarizes the panelists' discussion about the politics of punishment, the moral component of crime, the religious roots of America's penal system, and the role that families, schools, and communities play in criminal justice.
Charles, J. Daryl. Thoughts on Revenge and Retribution. The Pew Forum on Religion and Public Life.
Available at: http://pewforum.org/deathpenalty/resources/reader/20.php3.
This piece discusses the moral underpinnings of retributive justice. The author suggests that retribution is not grounded in vengeance, but rather in the notion that wrongdoers should recieve their just deserts. Justice requires that crimes against humanity be punished, a goal that can be adequately achieved only through retributive justice.
Offline (Print) Sources
Minow, Martha L. "Defining Vengeance and Forgiveness." In Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press, 1998. Pages: 9-24.
Theoretical discussion of the area between the concepts of vengeance and forgiveness.
Oldenquist, Andrew. "An Explanation of Retribution." The Journal of Philosophy 85:9, September 1988.
This essay discusses how justification for retribution might be found in human concepts of a working society and a moral community. The writer discusses the difference between retribution and revenge, and also to what extent retributive judgements are "true" or "false". Click here for more info.
Minow, Martha L. Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press, 1998.
This book looks at the capacity and limitations of formal national responses to genocide, systematic rapes, and mass torture. Such responses have come in the form of legal proceedings, truth commission, reparations, and memorials, and give rise to questions about retributive justice, forgiveness, and healing.
Deutsch, Morton. "Justice and Conflict." In The Handbook of Conflict Resolution: Theory and Practice. Edited by Coleman, Peter T. and Morton Deutsch, eds. San Francisco: Jossey-Bass, 2000.
This chapter examines justice and conflict. It looks at distributive, procedural, retributive and reparative justice, the sense and scope of justice, and the implications injustice has on the course of conflict.
Rachels, James. "Punishment and Desert." In Ethics in Practice. Edited by LaFollette, Hugh, ed. Malden, Massachusetts: Blackwell Publishers, 1997.
This article discusses the principle of "just deserts," and suggests that a retributive understanding of punishment is justified in light of our wide acceptance of this principle.
Murphy, Jeffrie G. Retribution Reconsidered: More Essays in the Philosophy of Law. Massachusetts: Kluwer Academic Publishers, 1992.
Murphy discusses the retributive theory of punishment and the way in which it is in tension with a liberal theory of the state. He questions the purpose of punishment, and raises questions about which instances of immoral conduct should be criminalized.
Day, J. P. "Retributive Punishment." Mind 87:348, October 1978.
A philosophical essay regarding retribution. Day discusses retribution so by breaking the concept down into 1) defining retribution, 2) justifying retribution, and 3) distributing punishment. In attempting to justify retribution Day addresses the "Retributivist paradox" and claims it can be solve via Hegelian ideas of human rights. Click here for more info.
Dolinko, David. "Some Thoughts About Retributivism." Ethics 101:3, April 1991.
This essay discusses some of the philosophically standard problems with retribution, including its place as a deterrent and how to balance it with the "respect for persons", or human rights. Click here for more info.
Cragg, Wesley. The Practice of Punishment: Towards a Theory of Restorative Justice. New York: Routledge, May 1992.
The author argues that the state should determine policies for criminal sentencing and corrections with the principle of restorative justice in mind.
Armstrong, K. G. "The Retributivist Hits Back." Mind 70:280, October 1961.
In this essay the writer attempts to clarify what retribution, in a societal context, is and defend retribution generally by attacking some of the mischaracterizations of it.
Cottingham, John. "Varieties of Retribution." The Philosophical Quarterly 29:116, July 1979.
In this essay the writer, in an attempt to clarify the field of discussion concerning retribution, discusses nine distinct variations of retributive punishment. Click here for more info.
Return to Top
Audiovisual Materials on this Topic:
Offline (Print) Sources
The Pinochet Case. Directed and/or Produced by: Guzman, Patricio. First Run Icarus Films. 2001.
This film follows the international criminal case against Augusto Pinochet of Chile. Click here for more info.
Return to Top
|
