Punishment

This article has been written by Suryanshi Bothra. This article delves into the principles of the retributive theory of punishment. It examines its origins and critiques. The article also questions its role in shaping modern legal frameworks. The applicability of the retributive theory of punishment to the Indian legal system and prominent case laws is also discussed.  

Introduction

The quest for justice since the beginning of time has sparked debates about the best course of punishment. The maximum discourse has always been on the topic of retributive punishments. This theory is rooted in the principles of ‘eye for an eye’ and ‘tooth for a tooth’. The retributive theory of punishment is believed to be extracted from the Old Testament and is considered overly harsh. Retributivism seeks to turn the crime back on the criminal. This theory is often considered synonymous with vengeance, bloodlust, revenge, retaliation, and many other negative phrases. However, the retributive theory of punishment gained popularity due to some of the major features of modern retribution. According to some, it is considered to be the theory that seeks higher moral ground. It is one of the foundational principles that laid the foundation for the legal system. This article explores all the significant aspects and principles of retributive theory. The article addresses major questions regarding the theory and brings together the perspectives of a lot of legal philosophers. 

Meaning and objective of punishment 

The most fundamental aspect of criminal law is punishment. It is essential to hold the offenders accountable for their actions. Punishments are the infliction of suffering upon the person who has committed a certain offence or has violated the law. Only the state has the authority to sanction such punishments, and this authority is derived from the law. The main goal of punishment is to deter criminals from committing further crimes. Punishments play a significant role in ensuring the well-being of society by ensuring that people abide by the laws of the country, and those who don’t abide by them are penalised. Another important objective of punishment is to provide justice to the victim. It replenishes the faith of society in the justice system.

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Theories of punishment

Punishments are devised on the basis of popularly known theories of punishment. Legal philosophers for centuries have worked on theorising the forms of punishments. Countries mostly follow a combination of these theories of punishment. Different crimes warrant different kinds of punishment as prescribed by these theories. Most kinds of punishments that policymakers and judges favour can be categorised into the following theories:

Deterrent theory

The deterrent theory of punishment is a utilitarian theory based on the principles of hedonism. This theory relies on making the criminals aware that the crime is not worthwhile in proportion to the punishment. While giving the punishment, its effects on the general public are considered. One of the major problems with the theory is that if the punishment is too lenient, it does nothing to prevent crime. On the other hand, if the punishment is excessively harsh, it will only gather the public’s sympathy. It can be observed that even a death sentence has failed to deter the most heinous crimes. 

Restorative theory

This theory of punishment focuses primarily on repairing the harm caused by offenders. It is a victim-centred approach to punishment. It provides the victims with a voice, where the victim and the offender come together to assess the harm done and find the solution. Society, the victim, and the community become active participants in the conflict resolution process. It is based on the ideas of reparation, healing, and reconciliation. The offenders are given an opportunity to make amends. Plea bargaining, probation, and parole are all excellent examples of the application of the theory of restorative punishment.  

Preventive theory

This theory of punishment aims to dissuade criminals from committing crimes in the future. It relies on transforming the criminal permanently, or at least temporarily. Many utilitarian philosophers like Bentham, Mill, and Austin, supported the preventive theory due to its humanising nature. This form of punishment strongly relies on the fact that society could be improved if the criminal is unable to commit the crime. Disablement can be achieved through various methods, including by giving the offenders jail time and reforming them. However, incarceration is the most popular and practised form of preventative punishment.

Retributive theory

People who support the retributive theory of punishment support the consequentialist theories. This theory is built on the bedrock of revenge. In this form of punishment, the offender must be responsible for the act for which he is held liable. The theory allows defences of insanity and intellectual disability. Mens rea, or guilty conscience, is considered the deciding factor. If a person possesses criminal intent, they are exempt from punishment. These are reasons why its supporters believe that this theory is rooted in fairness and justice. However, its critics call it barbaric due to their moral objections to the concept of revenge.

Reformative theory

The aim of reformative punishments is to transform criminals into law-abiding citizens. This theory is centred around individualism. The idea of reformative justice can be observed in the Juvenile Justice (Care and Protection of Children) Act, 2015. Probation, parole, and indeterminate sentences are all critical aspects of the reformative theory of punishment. The Indian Penal Code (1860) also allows for the commutation of sentences based on certain requirements. In the case of habitual criminals, this theory is not applicable. Most victims consider this approach unfair since it is very offender-centric. People believe that, in many cases, this theory of punishment fails to deliver justice.

Comparison between different theories of punishment

Aspect

Retributive

Deterrent 

Reformative

Restorative

Focus

This theory focuses on proportional punishment for the crime. 

This theory focuses on the prevention of future crimes through deterrence. 

This theory focuses on reforming the convicts and rehabilitating them.  

This theory focuses on repairing the harm and restoring their relationships.

Purpose

It satisfies the moral demands for justice and punishment.

It discourages potential offenders. 

It addresses the root causes of the crime. It reintegrates the convicts into society. 

This theory promotes accountability. It warrants healing and dialogue between parties.

Approach to punishment

The punishment is proportional to the crime committed. 

It is a tool to deter others from committing the same crimes.

It focuses on education and reformation. 

This form of punishment focuses on community involvement and restitution. 

Advantages

This provides justice to the victims. There are clear guidelines and moral justifications. 

There is flexibility in punishment, which has a preventive effect on society. 

It is a more humanitarian approach to punishment. It reduces the rate of relapsing into a life of crime. 

This approach reduces hostility and focuses more on healing. 

Disadvantages

It has moral and ethical implications. It lacks rehabilitation.

It creates the potential for injustice. It works on the principle that people will make rational decisions.

It has the potential for leniency, and there is no guarantee for the desired results. 

It is quite time-consuming and does not suit all types of offenders and offences. 

What is retributive theory of punishment

The retributive theory of punishment relies on the foundation that crimes have consequences, and the consequences should be proportional to the crime of the individual. Immanuel Kant was one of the biggest advocates of retributive punishment and provided multiple practical aspects of its application. He is the most extensively read author on retributive theory. His books described retributivism as providing punishment to the offender just because the criminal deserves it. This fundamental aspect of retributivism is considered both its strength and weakness. 

Retributive theory emphasises that since crime is a negation of rights, the punishment cancels the crime. Punishment is merely the negation of the negation. It can also be termed as two wrongs to restore a right. The Doctrine of Correctional Vengeance gives the basic idea of retributive theory. This doctrine states that when society, trying to get justice, demands the authorities to inflict revengeful punishments on criminals to get justice for the victims, it is said to exhibit correctional vengeance. 

The retributive theory of punishment has consistently refrained from justifying the punishment of the innocent. In contrast to other theories, it does not employ offenders to achieve additional objectives, such as serving as a deterrent or setting an example.The only goal is to provide justice to the victim and punish the offender for the wrongs they have committed. The severity of the punishment is decided on a proportionate basis. The punishment is equivalent to the moral liability or blameworthiness of the offender. This theory provides a clear way of distinguishing who deserves punishment and who doesn’t. Punishment, therefore, is only given based on guilt. Retributive punishment acts as a strong deterrent. It helps in giving moral justice to the victim. It instils a feeling of trust within society towards the judiciary.

Origin and basis of retributive theory of punishment

Retribution, one of the oldest concepts in moral philosophy, is prominently featured in various religious texts. Within Christianity, numerous references to punishment for wrongdoing can be found, with the belief that sinners will face consequences for their actions in the afterlife. Hindus and Jains attribute retribution to ‘Karma’. The earliest application of retributive theory can be observed in “Mahabharata”. It has several instances with very good examples of how retributive punishment should be inflicted. Arjun was about to leave the battlefield during the war. He was too scared and had moral objections to go against his relatives. Lord Krishna conveyed to Arjuna that war should only be resorted to when all other paths are closed. Krishna explained that if, in such circumstances, an individual refuses to fight, it would result in grave injustice to society as a whole.  

Further, the Quran discusses retribution in the form of punishment for the wicked and disobedient. The Islamic rulers of India were the ones who introduced Islamic law. Theft, adultery, murder, and all heinous offences warrant grave punishments under Sharia law. Punishments like amputation of limbs, beheading, and stoning were prescribed. The objectives of all such punishments were rooted in the principles of delivering justice to the aggrieved. 

Paranjape, in his book titled, ‘Criminology, Penology, and ‘Studies in Jurisprudence and Legal Theory, talks about various theories of punishment. In the book, he explained the retributive theory of punishment as a theory emphasising that the pain proportional to the pain of the victim should be inflicted on the offender. 

In 1901 C.E., a French explorer found a set of inscriptions at Susa. This code, with around 282 laws, was enacted by Hammurabi. He was a Babylonian king and enacted one of the oldest complete legal codes. The code had provisions that, if a person causes a man of rank to lose his limb, let the limb of the offender be shattered. Similar philosophies were applied to the eyes and teeth. However, the codes dictated that the injuries of a poor man could be compensated with silver. His principle was based on equal and direct retribution and was governed by the state. 

Cesare Beccaria, an Italian criminologist, is known for his authorship of multiple books on crime and punishment. In contrast to other authors who emphasised the principle of lex talionis, Beccaria focused more on retribution or revenge. From the 1970s onward, legal scholars, philosophers, state courts, and the supreme courts across the world saw a huge rise in the popularity of the retributive theory of punishment. Over the years, retributive theory has manifested itself in various legislation and Supreme Court judgements in the form of severe punishments and the death penalty.

Lex talionis and retributive theory

Lex talionis, in Latin, means the law of retaliation. It is often expressed under the motto, “Let the punishment fit the crime.” In ancient Rome and Palestine, bodily harm, injury, and theft were considered private wrongs. As such, the matter was settled between the victim and the wrongdoer. It was usually done without the involvement of the state. According to this principle, talion was the ultimate satisfaction the injured person could demand. This could be an eye for an eye or money. The vengeance-based forms of lex talionis have been severely criticised. It potentially begins an endless cycle of hurt and violence. 

Principles of retributive theory of punishment

H.L.A. Hart was a legal professional and philosopher. He gave new insights into the retributive theory of punishment. He believed that the existing theorists who wrote on retributive punishment did not emphasise some crucial elements of the theory. Therefore, he proposed a theory in which he emphasised three principles. Desert is considered the fourth principle of retribution. All different variants of the retributive theory are formulated using these three principles as the foundation. Variations and amendments to these principles are used to create the theory. Those three principles are as follows:

Principle of responsibility

The principle of responsibility indicates that a person may only be punished if he/she has voluntarily done something wrong. According to the retributive theory of punishment, a guilty mind and a guilty conscience are essential. In short, the person will only be eligible for punishment if they are guilty of the act. These principles provided by Hart are not exclusive to retributive theory. They apply to almost all theories of punishment, just in a different way and with different objectives. This principle provides an answer to the question, “What sort of conduct may be punished?” However, these principles raise a very important question when talking about responsibility. What would be the stance of the retributive theory of punishment in cases of strict liability offences? Strict liability, according to tort and criminal law, is an offence when the defendant is guilty of committing an action regardless of the intent to cause harm. Retributive punishment theories, however, fail to provide solutions to the question of strict liability. 

Principle of proportionality 

The punishment for an offence should either be equivalent to or match the intensity of the offence. Retributive punishment embodies the idea of something being paid back by the wrongdoer. This principle provides an answer to the question, ”How severely?” It must be similar to the crimes committed against the victim. It relies heavily on the concepts of punitive harm, deprivation, and suffering. Some philosophers and legal writers have suggested a few modifications to the principles of Hart. One suggested modification is that punishment under this theory will only be valid if it causes harm to the offender.

Principle of just requital 

This principle of retributive theory addresses the question of why punishment is essential. It offers a rationale for penalising the offender. It asserts that punishment rectifies the moral wrongs committed by the criminal. Proponents of retributivism say that punishment rights moral evils, therefore it is morally good. This principle advocates for the victims. It says that the victims are entitled to see the wrongdoer getting punished. Non-retributivists generally oppose this aspect of the theory, as they argue that two wrongs do not make a right.

Desert

This concept focuses on culpable acts and omissions. The principle states that punishment may be imposed for the person’s bad faith, fraud, or wilful misconduct in carrying out his obligations. Hart’s model discussed above omits the principles of the desert. Some legal philosophers claim that even though Hart does not explicitly talk about the concept of desert, it can be observed in his first principle of responsibility. The desert can be seen as an additional fundamental principle of retributive justice. Desert, in a sense, is a moral concept. It can be analysed as a relation between the person who deserves something, what they deserve, and in what virtue. Some models that include the concept of desert categorise it into three specific categories based on the questions they answer. They are the desert object, the desert subject, and the desert basis. The concept of the desert also talks about who can appropriately give the desert subjects what they deserve. They can be referred to as desert agents. Let’s dive a little deeper into all the aspects of the desert. 

Desert subject

In the retributive theory of punishment, it is fairly easy to determine the subject of the desert. It is simply the wrongdoer. The problem arises when the offender is either a child or an insane adult. Similar problems arise in cases where the offenders are entities like the state or corporations. In the above-mentioned cases, it is questionable if the party being punished can understand that they are being condemned. Small children and insane people cannot understand the harm caused by them and its consequences.  

Desert object

Desert object helps us answer the question of what crime deserves what punishment. It can help us categorise different punishments for different wrongs. Retributivism claims that it is unjust to punish the wrongdoer more harshly than is deserved. Disproportionate punishments are wrong for both the criminal and the victim. It is equated with punishing an innocent person. Concepts like plea bargaining are not usually entertained by retributivists.  

Desert basis

The desert basis deals with the relevant kinds of wrong that can be punished under retributive theory. This discusses two important questions of the retributive theory. Murders and rapes are grave offences. Punishments for them can be defined; however, what would constitute an attempt is debated. In cases where the mental state of the offenders is less culpable, the punishment becomes less obvious. The retributive theory of punishment allows punishments for harms that are not caused only by moral wrongs. 

Types of retributivism

There are a considerably large number of variations in retributive theory. These different types have very minute differences.

Negative and positive retributivism 

Negative or weak retributivism asserts that based on the crime, the wrongdoer must not be punished more than the wrongdoer deserves. Positive or strong retributivism claims the opposite. It emphasises the fullest extent of punishment on the basis of the offender’s just deserts.

Moralistic and legalistic retributivism 

Different versions of retributive theory also differ on the basis of what the punishment is imposed for. In moralistic retributivism, moral culpability is considered central. It makes offences punishable even if they do not amount to a violation of the law. On the other hand, legalistic retributivism punishes the violation of a law even if there is no moral wrongdoing. There is also a combined version of these two variations of retributive theory. In this context, morally culpable offences as well as violations of criminal law are necessary individually for the justification of punishment.

Communicative and consequentialist retributivism

Communicative retributivism is yet another approach to retributive theory. This variation holds some scepticism over harsh treatments. Its core idea is to express strong disapproval of wrongdoing. It is often considered the default position of retributivists. Consequentialist retributivism also exists, which is quite different from regular retributivism. It is based on conceptual and logical consequences. Limiting retributivism limits the constraints of proportionality. Comparative proportionality is one of the major factors that determine the punishment for a crime. 

Deterrent Retributivism

Retribution is not primarily focused on deterrence. However, the public spectacle created by retributive punishment may act as a deterrent for potential offenders. The idea is that witnessing the offender face the consequences of his/her actions discourages others from engaging in similar criminal behaviour. Retributive punishments reinforce the shared values of the community by punishing individuals who violate moral principles and societal norms. Ensuring that offenders face the consequences of their crimes and retribution seeks to provide justice to victims in that form. Holding perpetrators accountable restores the confidence of the victims in the system. This encourages the victims to report crimes and cooperate with law enforcement. All of these indirectly contribute to crime reduction. 

Retributive theory of punishment in India

In ancient India, punishment philosophies were primarily focused on rehabilitation and reformation. It has emphasised the importance of moral and ethical principles in changing criminal behaviour rather than retribution. British colonialism saw a shift towards a more punitive and disciplinary approach. However, in recent years, holistic and restorative approaches to punishment have been gaining recognition. Overall, an interplay between historical, cultural, and social factors is reflected in the growth of punishment philosophies in India. Indian public attitudes towards crime and justice have significantly changed with the spread of social media. 

Despite the shift to preventive and reformative theories of punishment, glimpses of the application of the retributive theory of punishment are visible in the legislation as well as landmark cases in India. The penalties are proportionate to the severity of the crime. Indian courts, while sentencing consider both the crime and the criminal. An approach that takes into account all the various factors and circumstances leading up to the crime. Close attention is paid to the criminal’s social and economic circumstances. It is ensured that the sentences are just. It is usually tailored to the specific circumstances of the case. This aligns with the retributive principles of punishment. The punishment corresponds to the seriousness of the wrongdoing. 

Death penalty in India is retained for only heinous offences. Death penalties are guided by the principles of proportionality. Hence, they are often discussed in the context of retribution. The supporters of this theory argue that for the most heinous crimes, it is the only just punishment. In India, judges have certain discretion when giving out sentences, which allows them the liberty to decide on the punishment while staying within the ambit of the punishment prescribed according to the legislation. However, the checks and balances, as well as the appeals system, ensure that discretion is exercised judiciously. It is ensured, according to the retributive principles, that the punishment is neither too lenient nor excessively harsh.

Let’s look at a few landmark cases to understand the application of retributive principles in India.

In Anwar Ahmad v. State of Uttar Pradesh and Anr. (1975) before the trial and conviction, the convict had already undergone a six-month imprisonment term. Later, he was officially sentenced to six months in prison. The Court held that it was not necessary to sentence him again since the required ‘blemish’ had already been imposed upon him. Following the principle of retributive punishment, the court reasoned that it would inflict a very big loss on the family as well. The principle of proportionality was enforced in this judgement. 

In Sri Ashim Dutta Alias Nilu v. State of West Bengal (1998), the application of both deterrent and retributive punishment was observed. It was done to prevent the recurrence of the offence. Rapid societal progress and increased advancement in science and technology have led to a change in the outlook of people towards punishment. Due to an increase in literacy rates people have started thinking differently about punishments. Experts in different branches of knowledge have been trying to understand the nuances of the theory. The retributive theory of an eye for an eye and a tooth for a tooth is no longer considered the correct approach. 

The Delhi gang rape and murder case (2012) is another great example of the application of the retributive theory of punishment. The case is a tragic and notorious incident that sparked widespread outrage among the Indian population. Every discussion about retributive punishment in India discusses this case. In this Supreme Court judgement, four out of six felons were sentenced and hanged. Retributive punishment was given to the convicts involved in the extremely heinous Nirbhaya case. This judgement was much awaited and celebrated by society.

However, after such judgements, jurists and policymakers in India questioned whether retributive punishments like the death penalty really are the best ways to deal with crime. The 262nd report of the Law Commission of India, chaired by Justice A.P. Shah, discussed the death penalty in 2015. The commission concluded that India should make its first move towards the abolition of the death penalty. The commission claimed that there is no justification for treating terrorism differently from other cases. The commission discussed the concerns of lawmakers in mind. They debated the abolition of the death penalty for terrorism-related offences and waging war. Therefore, the commission suggested the abolition of the death penalty for all offences other than terrorism-related offences. 

Criticism of retributive theory of punishment 

The main criticism of this theory is that punishment per se is not a remedy for the crime of the offender. Critics say that it just aggravates the mischief. Society sees punishment in itself as an evil curing evil. The only reason it is justified is the faith that it yields better results. The application of the retributive principle is filled with inconsistencies within the legal system. 

Retributivism is quite often criticised because it fails to consider the specific circumstances surrounding a crime. Sometimes giving the eye for an eye punishment defeats the purpose of the punishment. Let’s take an example, What would be the punishment if a person raped someone? Capital punishments are given as a retributive measure. In this case, the basic principle of retribution suggests we give the person back what he did, i.e., sex. However, it would probably be more pleasurable for a criminal than torture for him. The root causes of crime often go unnoticed because retributive punishments focus on punishing past offences.

This theory leads to society developing feelings of vengeance. This is followed by destructive tendencies. This raises ethical questions regarding the motivations behind punishment. Revenge is like wild justice. Critics argue that the retributive principle may help enforce the rule of the jungle but cannot ensure the rule of law in a civil society. Sometimes the punishments become disproportionate to the grievousness of the crime. 

Consequences of a shift to retributive theory of punishment

There was a comparative study undertaken to compare the outcomes of retributive punishment and rehabilitative punishment. They examined the Tihar Jail in India and Halden Prison in Norway. This study objectively compares the jails, conditions, infrastructure, and treatment of prisoners. The study concluded that the Norwegian system was better. Norway focuses on the social and moral rehabilitation of offenders, while Indian prison systems are understaffed and the offenders are subject to bad treatment. The rate of convicts who go back to a life of crime in Norway is much less than in India.  

Countries like the United States of America, Saudi Arabia, Brazil, India, and the United Kingdom all have aspects of the retributive theory of punishment in their legal systems. There are also disparities in sentencing based on race, socioeconomic status, and political influence. In the states, African Americans, Hispanics and Mexicans are much more likely to get higher sentences. Due to the private prison system, the principles of retributive theory have been applied more often than necessary. The incarceration rates have increased exponentially. In Sudan, a man’s hand was amputated for theft.  These raise multiple human rights and ethical considerations. Countries like Brazil and India have problems with overcrowded prisons due to a retributive approach. This puts a strain on the prison facilities, and there isn’t sufficient investment in rehabilitation. This leads to convicts relapsing their way into the prison system again.

Conclusion 

In conclusion, the retributive theory of punishment stands as a significant philosophy within the realm of criminal justice. It has endured the test of time and has still managed to hold its significance. Retribution has played a central role in the creation of legal systems around the world. It influences societal attitudes towards justice. However, the retributive theory has its challenges and criticisms. Moral scepticism and concerns about potential errors have always been at the forefront of debates. The irreversibility of punitive measures such as the death penalty forces the sentence to make sure that the right person is convicted. Moreover, retributive theory coexists in a dynamic landscape. This landscape is filled with multiple opinions on justice. Philosophers, legislators and legal professionals have had differing opinions on utilitarianism, rehabilitative approaches, and human rights principles. 

With evolving societies, the discourse surrounding the effectiveness of retribution has come into question. A detailed understanding of all the different theories of punishment helps create a balanced approach to punishment. Striking the right balance between retribution, deterrence, and rehabilitation can help reform the criminal justice system. Societal protection remains a challenge for all parties involved in law-making and law enforcement. Whether retribution maintains its prominence and adapts to the changing requirements of the era is questionable.

Frequently Asked Questions (FAQs) 

What is an example of the retributive theory of punishment?

Eye for an eye, tooth for tooth, and life for life are all animation examples of the retributive theory of punishment. Modern-day capital punishment can be seen as the best example of the same. In countries like Sudan, Saudi Arabia, and many others that follow Islamic law, retributive theory is still followed. Amputations, stoning, and death remain common punishments.  

What are the characteristics of retributivism?

The principles of responsibility, proportionality, just requital, and desert are the main pillars of retributivism. 

What is the difference between the retributive theory of justice and Lex talionis?

The retributive theory of punishment is a moral and philosophical theory that provides proportionate punishment based on the crime committed by the offender. Lex talionis is an ancient theory that advocates mirror punishment. It literally states, “eye for an eye” and “tooth for a tooth”. Whatever harm is caused by the offender, the same harm should be inflicted upon him/her. 

References 

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