Retributive justice or retributionism is a theory of justice – and more specifically a theory of punishment – that holds that proportional retribution is a morally acceptable response to the offense or crime, regardless of whether or not this measure produces benefits and / or tangible damages.
Justice and law, the principle of proportionality of the penalty (expressed in the maxim Let the punishment fit the crime) states that the severity of the penalty must be reasonable and proportional to the seriousness of the offense. The concept is present in most cultures of the world. For example, in the law of Moses, specifically within Deuteronomy 19:17-21, which measures such retribution as “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot” (in short, “measure to measure and so on”). However, the principle of proportionality of the penalty does not necessarily require compliance to be equivalent to the offense, as in the previous bill of retribution.
Philosophers of criminal law have contrasted retributionism with utilitarianism. For utilitarians, the penalty has a teleological purpose, justified by its ability to achieve future benefits, for example the reduction of crime rates, or preventionism. For retributionists, on the other hand, the penalty is retrospective in nature, consistent with past criminal conduct in retribution, and strictly intended to punish according to the seriousness of said conduct. The seriousness of criminal conduct can distinguish, according to the retributionists, by the level of damage caused, the amount of advantage unfairly acquired or by the “moral imbalance” caused on the grounds that a crime has been committed”.
There are two types of retributive justice:
- The classic version that states that the retributive measure must be proportional to the amount of damage caused by the offense.
- A more recent version, replaces the previous idea with the affirmation that the retributive measure must be proportional to the amount of unfair advantage obtained by the criminal.
The retributive theory is developed from the work of two German thinkers and idealists, Immanuel Kant and Friedrich Hegel. One must try to avoid confusing the positions of one and the other, as well as believing that retributionism is a current limited to a single premise. On the contrary, there are some substantial differences between the different authors ascribed to the retributive theory.
Kant starts from Justice as an absolute value. It is, then, what he calls a “categorical imperative”, a kind of prescription that must be respected whatever the cost. The strength of Kant’s position is evident when he affirms that the disappearance of civil society would be preferable to tolerating an injustice (in the well-known example of the island).
In this sense, the penalty should not serve any purpose other than that of restoring justice, broken by the violation of the law. Man must not be instrumentalized, that is, he cannot be used as a means to an end (as would, for example, general or special prevention).
Some authors have objected that today’s society cannot be guided by foundations of a strictly metaphysical nature, lacking any logical or empirical basis.
In Hegel’s theory, great value is placed on the dignity of people. It would be an attack on dignity not to punish someone who has decided to commit a crime using his free will.
According to Hegel, breaking the law creates a negative imbalance. The penalty, then, would serve to restore the Law, violated by the offense. His theory, therefore, could be summarized as follows: the penalty is the negation of the negation. In this regard, it has been criticized that a negative plus a negative results in an even greater negative, not a neutral value: if an additional evil is added to an evil, the Law is not restored, only the evil of the first offense is enlarged.
The most curious thing about Hegel’s position is that it could seem that he embraces preventive-general conceptions, which would be totally far from the essence of retributionism. Thus, the work of this thinker would indicate that the penalty serves the purpose of morally reproaching the offending conduct. It has been tried to reason that this can be included in the retributive theory, although there is no unanimous acceptance in the doctrinal field.
Includes texts translated from Wikipedia