Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. 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 (i.e., '' schadenfreude'',

sadism Sadism may refer to: * Sadomasochism, the giving or receiving of pleasure from acts involving the receipt or infliction of pain or humiliation * Sadistic personality disorder, an obsolete term proposed for individuals who derive pleasure from the s ...

), and employs procedural standards. Retributive justice contrasts with other purposes of punishment such as

deterrence Deterrence may refer to: * Deterrence theory, a theory of war, especially regarding nuclear weapons * Deterrence (penology), a theory of justice * Deterrence (psychology) Deterrence in relation to criminal offending is the idea or theory that t ...

(prevention of future crimes) and 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 Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the esta ...

's ''

De Legibus The ''De Legibus'' (''On the Laws'') is a dialogue written by Marcus Tullius Cicero during the last years of the Roman Republic. It bears the same name as Plato's famous dialogue, '' The Laws''. Unlike his previous work ''De re publica,'' in wh ...

'' (1st century BC), Kant's ''Science of Right'' (1790), and Hegel's ''Philosophy'' ''of Right'' (1821). The presence of retributive justice in ancient Jewish culture is shown by its mention in the law of Moses, which refers to the punishments of "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot" in reference to the Code of Hammurabi. Documents assert similar values in other cultures. However, the judgment of whether a punishment is appropriately severe can vary greatly across cultures and individuals.

Purposes

Some purposes of official retribution include: * to channel the retributive sentiments of the public into the political and legal systems. The intent is to deter people from resorting to lynchings,

blood feud A feud , referred to in more extreme cases as a blood feud, vendetta, faida, clan war, gang war, or private war, is a long-running argument or fight, often between social groups of people, especially families or clans. Feuds begin because one pa ...

s, and other forms of

vigilante Vigilantism () is the act of preventing, investigating and punishing perceived offenses and crimes without legal authority. A vigilante (from Spanish, Italian and Portuguese “vigilante”, which means "sentinel" or "watcher") is a person who ...

self-help. * to promote 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 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 is mostly defeated.

History

In the early period of all systems of code, retribution for wrongdoing took precedence over the enforcement of rights. A rough sense of justice demanded that a criminal should be punished with the infliction of proportionate loss and pain as he inflicted on his victim. Therefore, ''

lex talionis "An eye for an eye" ( hbo, עַיִן תַּחַת עַיִן, ) is a commandment found in the Book of Exodus 21:23–27 expressing the principle of reciprocal justice measure for measure. The principle exists also in Babylonian law. In Roman c ...

'' (an eye for an eye) was very prominent in ancient law. The

Hebrew Bible The Hebrew Bible or Tanakh (;"Tanach"
'' measure for measure'). In the 19th century, philosopher

Immanuel Kant Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German philosopher and one of the central Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works in epistemology, metaphysics, ethics, and ...

argued in ''

Metaphysics of Morals The ''Metaphysics of Morals'' (german: Die Metaphysik der Sitten) is a 1797 work of political and moral philosophy by Immanuel Kant. In structure terms, it is divided into two sections: the ''Doctrine of Right'', dealing with rights, and the ''D ...

'' (§ 49 E.) that retribution is the only legitimate form of punishment the court can prescribe:Martin, Jacqueline. 2005. ''The English Legal System'' (4th ed.). London: Hodder Arnold. . p. 174.

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.

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. Rachels, James. 2007. ''

The Elements of Moral Philosophy ''The Elements of Moral Philosophy'' is a 1986 ethics textbook by the philosophers James Rachels and Stuart Rachels. It explains a number of moral theories and topics, including cultural relativism, subjectivism, divine command theory, ethical e ...

'' One of the reasons for the abandonment of retribution by 20th-century reformers was that they gave up on the idea of personal autonomy, since they believed science had discredited it. 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.

Principles

According to the '' Stanford Encyclopedia of Philosophy'', retributive justice is committed to three principles: * "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 hose who commit certain kinds of wrongful actsthe punishment they deserve." * "It is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers."

Proportionality

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

Exodus Exodus or the Exodus may refer to: Religion * Book of Exodus, second book of the Hebrew Torah and the Christian Bible * The Exodus, the biblical story of the migration of the ancient Israelites from Egypt into Canaan Historical events * Ex ...

and Leviticus is said to be: "''only'' one eye for one eye", 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 In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals. Although different varieties of utilitarianism admit different chara ...

. 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.Cavadino, M., and J. Dignan. 1997. ''The Penal System: An Introduction'' (2nd ed.). London: Sage. p. 39.

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 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 Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal val ...

community, perhaps due to the failings of reform theory in prior decades. 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.

Criticisms

Many jurisdictions that adopt retributive justice, especially in the United States, use

mandatory sentencing Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...

, where judges impose a penalty for a crime within the range set by the law. However, judges have limited discretion to consider

mitigating factor In criminal law, a mitigating factor, also known as an extenuating circumstance, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sente ...

s, leading to lesser penalties under certain circumstances. 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. Instead of pure retribution, many jurisdictions use variants such as the

European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been de ...

'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 Nokia Corporation (natively Nokia Oyj, referred to as Nokia) is a Finnish multinational telecommunications, information technology, and consumer electronics corporation, established in 1865. Nokia's main headquarters are in Espoo, Finland, i ...

was given a fine of

€ The euro sign () is the currency sign used for the euro, the official currency of the eurozone and unilaterally adopted by Kosovo and Montenegro. The design was presented to the public by the European Commission on 12 December 1996. It consists ...

116,000 (US$103,000) on a traffic ticket issued for driving in a zone, based on his income of €14 million (

US $ The United States dollar ( symbol: $; code: USD; also abbreviated US$ or U.S. Dollar, to distinguish it from other dollar-denominated currencies; referred to as the dollar, U.S. dollar, American dollar, or colloquially buck) is the officia ...

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. 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 Desert () in philosophy is the condition of being deserving of something, whether good or bad. It is sometimes called moral desert to clarify the intended usage and distinguish it from the dry desert biome. It is a concept often associated wi ...

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 penological theory.

Alternatives

Traditional alternatives to retributive justice have been exile and

shunning Shunning can be the act of social rejection, or emotional distance. In a religious context, shunning is a formal decision by a denomination or a congregation to cease interaction with an individual or a group, and follows a particular set of rul ...

. 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. Modern alternatives to retributive measures include

psychiatric imprisonment Involuntary commitment, civil commitment, or involuntary hospitalization/hospitalisation is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hos ...

, restorative justice and

transformative justice Transformative justice is a series of practices and philosophies designed to create change in social systems. Mostly, they are alternatives to criminal justice in cases of interpersonal violence, or are used for dealing with socioeconomic issues in ...

. A general overview of

criminal justice Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other ...

puts each of these ideals in context. One 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