The theory of punishment that has been propounded has laid inherent importance on the retributive theory of justice. This theory of retributive justice forms its foundation on the principle of punishment is the best response to crime. The reasoning behind the same is that when the offender breaks the law, only forfeit of something in return shall result in the delivering of justice. This theory of punishment is based on the simple principle of, ‘An eye for an eye, a tooth for a tooth’. This theory that aims at revenge than the social welfare objectives on the accused suffering the same pain as inflicted by him on the victim. Differing from the utilitarian theory that focuses on yielding social benefits out of punishment, the retributive theory concentrates on the crime in itself by looking backward at transgression and such basis to form the punishment.
The concept of retributive justice can be cleared as that form of justice committed to the following principles:
(1) that those who commit certain kinds of wrongful acts. Pragmatically serious crimes, morally deserve to suffer a proportionate punishment;
(2) That it is intrinsically, morally good- good without reference to any other goods that might arise- If some legislative punisher gives them the punishment they deserve; and
(3) That it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishment on wrongdoers. The theory though has played a dominant role in theorizing punishment, especially over the last few decades, it has time and again been condemned for its certain characteristics such as the normative status of suffering.
AMBIGUITIES IN THE THEORY OF RETRIBUTION
Sidgwick regarding the objective of retribution said that whatever be the ultimate motive of the Punisher, his immediate aim is to make things unpleasant for the criminal. But the believer in retributive punishment seems to make this not only the immediate aim of punishment but also its whole reason d’etre. According to the famous philosopher, Kant “punishment must be imposed on the criminal only because he has acted unlawfully, illegally or criminally”. Moreover, 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 James Stephen. Sir James Stephen made a statement that “The sentence of the law can be compared to hot wax when the seal is imprinted on it. In the same way punishment under the law is the sentiment of the public in relation to any offense. In the evidence to the Royal Commission on Capital Punishment, Lord Denning observed, “that ultimate aim of any kind punishment is not that it acts as a deterrent but it should be denounced by the community”.
In the opinion of HLA Hart, the punishment should not be for the sake of denunciation alone but a deserved punishment does serve as a denunciation. According to him, we do not live in a society in order to condemn though we condemn in order to live. The Supreme Court in Dhananjay Chatterjee case held that appropriate punishment is the manner in which the courts respond to the society’s cry for justice and that justice demands imposition of such punishment that is appropriate for the crime committed and to reflect public abhorrence.
ADVANTAGES OF THE RETRIBUTIVIST THEORY
Retributive theory concentrates on punishing only the criminals and prevents any innocent from being subjected to any punishment. For punishment to be meted out, the accused should and must be found guilty. The retributive theory emphasizes the need of proportionality of punishment to a great extent. Also, such proportional punishment gives a sort of protection against severe and disproportional punishments for crimes. Every justice system requires a strong system to impose punishments as a response to crimes otherwise; The system gets very weak if the perpetrators are acquitted in return of some money or exercise of some power. Acquitting a guilty is as dangerous as convicting an innocent and this important factor is recognized only in the retributive system of justice.
CRITICISM OF RETRIBUTIVIST THEORY
The retributive system of justice, though very suitable in certain situations, comes with some drawbacks. Firstly, the very nature of morality being subjective makes it difficult to deliver punishment for crimes. The immorality of crimes needs to be comparable. Society has its citizens adhering to very different conceptions for both good and bad. For example, the act of involvement in drugs shall be recreation for some as a fact of personal liberty but for others, as a contribution to the offense recognized by law. The very question of laying down a common moral standard seems every bit air since it involves asserting one’s view over the others. Hence the process of unifying morality for ‘punishing evil’ is far complicated than the theory that attempts to achieve the same fails considerably in this matter.
The second drawback of retribution theory is its approach towards dealing with amoral crimes. Although most crimes are illegal and amoral such as rape, murder, theft etc, there are crimes such as traffic offenses and jaywalking which although illegal cannot be classified as immoral. Retributivists are uncomfortable with mercy and pardons. Sometimes a more productive result can be achieved by pardoning a criminal instead of punishing him. Again according to Kant, “if there is no proper justice system the value humans living on this planet will be degraded to nil”. The state justifies such sentences on the grounds of saving taxpayers money and courts time. Hence, the criminal is let free or gets less punishment. This can lead to common people losing trust in the judiciary.
The retributive system of punishment in which offenders are punished, However, it is necessary to draw a line to ensure that no person is unnecessarily and invariably obliged to punish to the limit of justice. The punishment must be decided directly in proportion to the severity of the act committed by the person and no man should be punished more than he deserves, mainly because such can lead to dangerous circumstances. Thus, this theory should be enforced to mitigate any kind of procedural delays and punishment limited to act as deterrence for the theory to succeed as the most effective theory of inflicting punishments to deter crimes in the society.