Retributive justice is a theory of criminal justice wherein punishments are justified on the grounds that the criminal has created an imbalance in the social order that must be addressed by action against the criminal. The theory is often associated with harsh punishment, and the phrase an eye for an eye, a tooth for a tooth' is a commonly heard justification for this theory. However, proponents of the theory point out that the retribution should be proportional to the crime, and that minor crimes should have mild punishments while major crimes should have harsh punishment. The theory is sometimes justified by the belief that punishment is expected to act as a deterrent.

Contents

1 History 2 The subject in modern times 3 Subtypes 4 Sources

History

In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract rights, and a rough sense of justice demands the infliction of the same loss and pain on the aggressor as he has inflicted on his victim. Hence the prominence of the "lex talionis" in ancient law. The Bible is no exception: in its oldest form it included the "lex talionis," the law of "measure for measure" (this is only the literal translation of "middah ke-neged middah").

Some of the oldest laws which deal with this topic are found in the jurisprudence of Babylon, mainly as laid down in the Code of Hammurabi. The instances given in this code of the rule of "measure for measure" go far beyond the "eye for an eye" of the Bible, even when the latter is taken in its most literal sense. Thus, where a man strikes a pregnant free-born woman so as to cause her death through miscarriage (comp. the case put in Ex. xxi. 22-23), under that old Babylonian code (§ 210) the daughter of the assailant should be put to death. Again, when through the carelessness of the builder at house falls and the owner's son is struck and killed in the ruins, the builder's son should be put to death. This extravagant application of the "measure for measure" law is made impossible in Biblical by Deut. 24:16, "Fathers shall not be put to death for the children, neither shall the children be put to death, for the fathers." Nevertheless the main thrust of the Hebrew law is the equality of all people; under the Babylonian law, wealthy people could pay fines for their crimes, rather than suffer the same punishment as poor people.

According to Exodus 21., the owner of an ox that gores a "son" or a "daughter" (i.e., a freeman or a freewoman), provided it has previously been shown to him that the ox was "wont to push with his horns in time past," should be put to death, though he may save himself by paying it ransom; this is a clear survival of the old idea of financial restoration.

It does not appear that in this matter the Sadducees adhered to the letter of the Law, for among the many disputes recorded in the Mishnah between Pharisees and Sadducees, no allusion is found to such a broad difference in the form of redress allowed for bodily injuries, a matter of much importance and of frequent occurrence. There is a vague report that the followers of Boethus, a sect going beyond the Sadducees in their divergence from the traditions, taught a literal enforcement of the rule, "an eye for an eye, a tooth for a tooth," but it does not appear that this sect was ever in power and able to give effect to its theories. On the other hand, while a ransom in money in place of the "eye" or "tooth" of the assailant is quite compatible with the Scriptural law of assault and battery, taken as a whole, it is not so clear that the natural construction of this law would not demand the bodily infliction of the penalty, according to the written words, whenever the guilty party is unable or unwilling to pay the ransom.

The rabbinical tradition narrows very much the Scriptural law as found in Deuteronomy; but this, in its turn, falls very far short of the severity and wide scope of the Babylonian law. The latter not only visits with death as a malignant slanderer one who wilfully, though unsuccessfully, accuses another of sorcery, or of any other capital crime, but even one who claims goods as having been stolen from him without being able to produce witnesses to his ownership (Code of Hammurabi, §§ 1-3, 11).

The subject in modern times

In practice, punishment has this effect. Many long-term studies in many countries, including People's Republic of China, U.S.A., and in the Islamic World and South Africa, have shown that, what the researcher wished it to show, namely: for instance, death penalty measures do not deter murder. Furthermore, longer sentences do not deter crime nor reduce recidivism, other than a brief respite while the offenders are actually imprisoned. Some exploit this limited idea of success to argue for tough justice measures, e.g. "three strikes you're out", which often deal out very long prison sentences in an attempt to keep the offenders off the street longer, and thus to reduce the long term crime rate. Critics charge this can lead to a form of carceral state where huge numbers of people are imprisoned or, at best, on parole.

However, this too seems not to reduce crime, as the crowded prison conditions and desocialization of inmates seem to make it all but impossible for any education, training or rehabilitation to occur, so that the inmate could find productive work in society after release. California presently is attempting to solve the problem by simply keeping all three-time repeat offenders in prison until they die. What affect this has on crime is highly disputed.

At the same time, some have argued that a zero tolerance policy toward minor crimes creates a social atmosphere of order, which prevents more serious crime from occurring.

Furthermore, there are many who advocate harsh measures against criminals regardless of the presence or absence of a deterrent effect. The belief underlying this view is that the need for a criminal to be punished is a requirement that comes from basic fairness and justice and not necessarily as a result of deterrence.

Alternatives to retributive measures include psychiatric imprisonment, restorative justice and transformative justice. They are discussed more in those articles. A general overview of criminal justice puts each of these ideals in context.

Retributive justice can be opposed to restorative justice. It is a way to see crime as a violation of the state. It is defined by lawbreaking and establishment of guilt. It determines blame and administers punishment in a contest between the offender and the state.

See also: sociology of crime

Subtypes

There are two distinct "flavors" of retributive justice. The classical definition embraces the idea that the amount of punishment must be proportional to the amount of harm caused. A more recent version, advocated by Michael Davis, dismisses this idea and replaces it with the idea that the amount of punishment must be proportional 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 making a resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades. This was to many a breath of fresh air into a theory that had been all but abandoned decades prior, particularly in the United States. There currently appears to be a greater amount of discussion about the difference between these two flavors of retribution than between retribution itself and the other theories of punishment.

Sources

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