Retributive Theory of Punishment:

A Critical Analysis
January15,2015byhariharankumarLeaveaComment

By Abhishek Mohanty, WBNUJS

Editors Note: The issue of punishment of criminals has been a
well debated topic for societies since time immemorial. This has
been debated by jurists like Hart, Anthony Flew and Stanley
Benn. The broad theories of punishment are divided into
consequentalist and retributivist theories. In this paper, the author
will focus on the aspects of retributivist system of punishment. The
advantages and criticisms of this system will be also discussed. The
various forms of retributivist philosophy like payback, annulment
will also be discussed. Further, a comparison of the retributivist
system against the other forms will also be covered.

INTRODUCTION
If we see A holding a knife over Bs dead body, we might conclude
that A is morally and causally responsible for Bs death. However
there might also be a case that A killed B in an act of self-defence. In
this case, A is only causally and not morally responsible for the
death of B. How does one decide punishment in such cases? Does
one receive lesser punishment or th same punishment in both
cases?
The issue of punishment of criminals has been a well debated topic
for societies since time immemorial. Broadly, punishment was
defined by Antony Flew[1], Stanley Benn[2] and HLA Hart[3] to be
something unpleasant for an offense against legal rules which is
adminstered by the society and imposed by a legal authority. An
essential ingredient of a certain expressive function: punishment is
a conventional device for the expression of atitudes of resentment
and indignation, and of judgments of disapproval and reprobation,
on the part either of the punishing authority itself or of those in
whose name the punishment is inflicted[4]. The broad theories of
punishment are divided into consequentalist and retributivist
theories.[5] Consequentalist theories are concerned with the
practice of punishment if it brings out better consequences.
Retributivist theories of punishment see it as important because it
punishes the criminals in proportion to their crime thereby restoring
a proper balance.

The way how a society punishes criminals is important because of

its connection to several events that happens. The recent Delhi rape
case where an increased demand for the rapists to be hanged was
made inspite of our court system allowing for death penalty in very
select cases and that too in the rarest of the rare case threw up the
debate regarding the system of punishment which should be
followed in such cases. Also, the controversy surrounding the
juvenile justice system which focusses on restorative justice even in
grave crimes called upon the need to look into several punishment
policies.

BASIS OF RETRIBUTIVISM
The most classic form of retributivism is derived in Code of
Hammurabis lex talionis, which stands for an eye for an eye and a
tooth for a tooth. Most retributivists believe that a guilty person
should suffer pain. Herbert Hart defined retributivism as the
application of the pains of punishment to an offender who is morally
guilty.[6] . It has been commented that retributivism is seen as
making some appeal to moral desirabiltiy.[7] If a thief intends to
steal money from someone, he is morally responsible for the same.
And because of this moral responsibility, the thief deserves
punishment.
The core princples of retributivism are desert and proportionality.
The two principles are somewhat interlinked. For retributivists, the
punishment has to be proportional to the crime committed. Desert
refers to some demerit which has caused the accused to commit a
crime. Retributive punishment has to be proportional to the degree
of desert. The more the desert, the more the punishment should be.
Retributivism is backward-looking. Retributivists do not punish a
criminal for what he or she might do, but only punish for the crimes
one has committed and in the amount the person deserves.
Retributivists do not concern themselves with the consequences of
the acts but only with the desert which has occurred.
In the retributivist theory of punishment, the punishment is seen as
a form of payback for the crimes one has committed.[8] Mostly
retributive justice seeks to punish a person for a crime in a way that
is compensatory for the crime. Retributivists argue that criminals
deserve punishment on account of their wrongdoing. If they deserve
punishment, then justice demands we punish. We do injustice if we
fail to punish criminals because they then do not receive what they
deserve.[9]
Another school of thought of retributivists sees punishment as a way
to remove the unfair advantage that the criminals possess due to
commission of the crime. Like a thief benefits from breaking the law

by stealing someones possession. The punishment meted out

should remove the unlawful and unfair advantage. [10] The
criminals are seen to be free-riders on the law-abiding community.
By punishing them, the unfair advantage is wiped out.[11]
One view of retributuivism put forward by Hegel in early nineteenth
century saw the idea of punishment to cancel, negate or annul the
offenders crime.[12] In this view, the criminal rejects the victims
rights while committing a crime. If we leave the crime unpunished, it
is regarded as an innocent deed. But by punishing the criminal,
the status quo ante crime is restored. This view was taken forward
by Hampton who said that by the very act of commission of crime,
the criminal fails to respect the victims value as a human being.
Reteibutive punishment vindicates the value of victim denied by
the wrongdoers action through the construction of an event that
not only repudiates the actions message of superiority over the
victim but does so in a way that confirms them as equal.[13] In this
way punishment can annul the message, sent by the crime, that
they are not equal in value.[14]
Now returning to the situation given in the opening, a lower
punishment shall be given in the second case since there was no
desert on the part of A. It was an act of private defence. This
distinction is important because the proportional punishment can
only be set properly if one knows whether A is morally and causally
responsible for the said act.[15]

ADVANTAGES
OF
RETRIBUTIVIST THEORY

THE

Emphasizes proportional punishment

Retributivist theory focusses on punishment to only those who
deserve it. Unlike deterrence theory, an innocent can never be
punished. Since they are backward-looking, they are not concerned
with the possibility of a person committing a crime. For punishment
to be meted out, a person must be found guilty.[16]
Retributivist theory emphasizes the need of proportionality of the
punishment to the desert. Instead of restitution where the
wrongdoes repays the society what he gained from the crime, but
such a punishment is flawed. A person who has stole a sum of
money should not only give back the money but should also suffer
to the extent he made the victim suffer.[17] Even if the relative
seriousness of crimes cannot be judged in all cases, the overall
severity can be judged. Also, such proportional punishment gives a

sort of protection against severe and disporoportional punishments

for crimes.[18]
In 1975, consequentalist ideas were dominant in the Englishspeaking countries for a century. Officials in the United States were
allowed broad discretions to individualize sentences. Punishment
could be lengthened arbitrarily or even shortened. Such discretion
was criticized by the scholars of that time.[19]

Retributive punishment sends out a message

The idea of punishment as a form of denunciation of the criminal
and his act by the society has been envisioned by scholars like
Morris, Hampton and Sir. Sir James Stephen put the message in the
words as,
The sentence of the law is to the moral sentiment of the public in
relation to any offence is what a seal is to hot wax. It converts into
a permanent final judgment what might otherwise be a transient
sentiment.[20]
In his evidence to the Royal Commission on Capital Punishment,
Lord Denning observed,ultimate justification of any punishment is
not that it is a deterrent but that it is the emphatic denunciation by
the community of a crime.
In the opinion of Hart, punishment should not be for sake of
denunciation alone but a deserved punishment does serve as a
denunciation. According to him, we do not live in society in order to
condemn though we may condemn in order to live.[21] Morris
contended that by punishing wrongdoers each citizen learns the
particular significance of the evil underlying offenses and the degree
of seriousness. Hampton opined that punishment is somehow
representative of the pain suffered by the victim of crime and hence
by inflicting punishment the wrongdoer shall understand the
immorality of the action.
The Supreme Court in the Dhananjoy Chatterjee[22] case held that
appropriate punishment is the manner in which the courts respond
to societys cry for justice and that justice demands imposition of
punishment befitting the crime to reflect public abhorrence.

Not meting out to punishment is unfair to victims and society

alike
All legal systems recognize the need of punishment in response to
crimes. If the perpetrators of crime are allowed to walk free or pay
money and escape punishment, that would mean that they have not

committed any wrong. The unfair advantage that they would have
gained by seeking recourse to illegal methods would not be paid
back or annulled if such a situation arises.

CRITICISMS
OF
RETRIBUTIVIST THEORY

THE

The requirement of desert required to punish crimes has in itself

some difficulties. The very nature of morality being subjective
makes it difficult to deliver punishments for crimes. The immorality
of crimes needs to be comparable. For this, a sort of gold standard is
required to assess a crime. A society has its citizens adhering to
very different conceptions of good and bad. For some, using drugs is
a matter of personal liberty while for some it is seen to be an
reprehensible act. Nations have varying laws on subjects like
prostitution, drug use etc. The very question of setting a common
moral standard seems every bit fair since it involves asserting ones
view over others. Hence the process of unifying morality for
punishing evil is far complicaed than what it might appear.
Another problem of retributivist theory is with dealing with amoral
crimes. Although most crimes are both illegal and immoral like rape,
murder, theft etc., there are crimes like traffic offences and
jaywalking which although illegal cannot be said to be immoral. For
example, a overspeeding driver on an empty road cannot be said to
be doing anything immoral although overspeeding constitutes an
illegal act. In such crimes, the punishment cannot be set
proportional to the wickedness of the crime because of the absence
of wickedness. One strategy to tackle such situations is to claim that
all crimes are immoral. But this involves imposing of morality which
goes back to the first criticism of the theory.
Retributivists are uncomfortable with mercy and pardons.
Sometimes a greater good can be achieved by pardoning a criminal
instead of punishing him. However, Kant famously quoted that if
justice goes, there is no longer any value in human beings living on
the earth[23]. A bloody war is more acceptable than avoiding it
through injustice. Modern common law systems have a system of
plea bargaining where in the accused admits to the guilt in lieu of a
reduced sentence. The state justifies such sentences on the grounds
of saving of taxpayers money and courts time. Hence, the criminal
does not get what his deserved punishment was.[24]

COMPARISON
THEORIES

WITH

OTHER

Deterrence Theory: Punishment is used to deter people from

committing a crime. It is divided into special deterrence and general
deterrence. Special deterrence imposes punishment to discourage a
person from committing a crime whereas general deterrence
punishes an offender to make an example out of him. However, this
theory has been criticized because unlike retributvism, it punishes
offenders before they have even committed a crime. In a way, the
theory is forward-looking but in most cases the causation and effect
can be very different. It does not require desert for the crime to be
punishable. Also, the idea of making an example out of an offender
runs counter to the proportional punishment which has been long
championed by retributivists.
Rehabilitation Theory: Although the goal of rehabilitation is to
reform the offender and transform him to a law-abiding citizen, it
has long been argued that such processes have not been very
successful. Moreover, the very idea of unfair advantage which the
criminal gains, makes it morally improper to expect that the criminal
will reform himself to a good human being. Retributivists stick to the
point that all crimes should be punished. Hence by this idealistic
thought of criminals changing to their earlier good state,
retributivist forcefully reject the notion of such rehabilitation. Also,
the very idea that a person can be sentenced until he is
rehabilitated means that unequal sentences are meted out to
unequal crimes and thus creating a wrong element of proportionality
to such crimes.[25]
Restorative system: In this system, instead of any punishment
being meted out, the victim, offender and the community
participate together in a process of restitution. The offender takes
complete responsibility for the crime and initiates restitution to the
victim. Hence, the idea of punishment is completely discarded and
is thus opposite to idea of retributivists. Such a system is woefully
inadequate to address crimes like murder since there cannot be any
restitution in such cases.
It must be noted that retributivist punishment can not be meted in
all cases. The weightage given to proportionality in the retributive
system of justice carries with itself several advantages and
disadvantages. Retributivism ignores the offenders future conduct
or effects punishment can have on crime rates. However, in many
cases(like that of juveniles), one should take into account the effect

of punishment on the accused. Hence, a lenient and reformative

system of punishment should be observed in such cases.
The idea of equality of punishment is actually difficult to implement
in many situations. What can be the punishment for crimes like
rape, kidnapping, forgery and so on? The state cannot exercise the
same brutality since it would be demoralising to the communtiy and
also somewhat barbaric. In todays societies, the maximum
punishment that can be imposed is the death penalty which has its
own critics. But however in many cases like the Delhi rape case,
terrorist attacks the death penalty has been imposed and not
condemned by the society.[26]

RECOMMENDATIONS
TO
RETRIBUTIVIST
SYSTEM
PUNISHMENT

THE
OF

Under the retributive system of punishment, the link between the

victim and the accused is termed irrelevant. The crimes are seen to
be against the state. But in several cases, the victims relation to
the accused is pivotal because of the effect that the punishment can
have on the relation can be damaging.[27] The Truth and
Reconciliation Commission in South Africa used restorative justice
instead of punishing the wrongdoers. The wrongdoers could be
pardoned by the victims of the crimes. This approach was a
reconcilitatory approach to deal with human-rights violation. This
approach helped the people of South Africa to achieve a sort of
compromise without which the consequences of a full-fledged
criminal process would have led to further racial divide already
prevalent in the country.
Many scholars believe that the idea of proportionality should only
prescribe maximum sentences possible in the cases. A modest
theory of limiting retributivism emphasizes on the need of
punishment to be within a range of not lenient and not too severe
punishment. Norval Morris viewed retributive punishments to be
imprecise in their assessment.[28] Several other writers have
proposed flexible retributive limits on different grounds. For
example, Armstrong wrote that:
the right to punish offenders up to some limit, but one is not
necessarily and invariably obliged to punish to the limit of justice
For a variety of reasons(like reformng the criminal) the approporiate
authority may choose to punish a man less than it is entiled to, but
it is never just to punish a man more than he deserves.[29]

Some utilitarian approaches to punishment like Ends-Benefits

proportionality also takes cognizance about the concet of
proportionality. But however, it recommends punishing in proportion
to the harm caused or threatened, but only when such and to such
extent that such punishment will prevent future crimes. This theory
not only takes into account the actual crime control but also the
undesirable consequence of the sanction.[30]