REGISTRATION NUMBER: CB4/37286/18
NAME: PAUL KYALO
COURSE: CRIMINOLOGY AND SECURITY STUDIES
UNIT: CRIMINAL JUSTICE SYSTEM
ASSIGNMENT: RETRIBUTIVE THEORY OF PUNISHMENT
DATE: 28th October 2018
TO: aholla@chuka.ac.ke
Introduction
Punishing offenders for crimes is the standard way of preventing further crime. Those punished for sins in the society serve as examples to the other members of the community, thus deterring them from engaging in criminal activities. Objectives of punishment include deterrence, retribution, incapacitation, rehabilitation, and restitution. The retribution theory of punishment forms the basis of the argument that ‘we punish animals to trey them, but humans are punished because they deserve it.’ Retribution simply means to give in return. The aim of this theory is to make the offender realize the pain they have caused on the victims. When the society discovers that the offender has been punished for a crime, they receive an absolute satisfaction that criminal justice is working effectively. This is because offenders face punishment since they deserve it, which enhances their faith in the government and the criminal justice system. It would be in appropriate to punish animals for retribution since they do not have the same thinking capacity as humans.
Retributive justice
This is a theory of punishment that when an offender breaks the law, justice requires that he or she suffer in return. It also requires that the response to a crime is proportional to the offence. It is important to note that retribution is different from revenge because retributive justice is directed only at wrongs, has inherent limits, is not personal and involves no pleasure at the suffering of others and puts in place procedural standards. It would in appropriate to punish animals for any other reasons such as revenge rather than to trey them.
Retributive concept is found in most world cultures and in many ancient texts. For instance, the presence of retributive justice in ancient Jewish culture is shown by the inclusion in the law of Moses, which includes the punishments of “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot”. A similar phrasing is found in the Code of Hammurabi. However, the judgment of whether a punishment is appropriately severe can vary greatly across cultures and individuals.
Purposes
One purpose of official retribution is to channel the retributive sentiments of the public into the political and legal systems. The intent is to deter people from resorting to killing, blood feuds, and other ugly forms of vigilante self-help. Another purpose is to promote societal solidarity through participation in the act of punishing, under the theory that “the society that slays together stays together.” Another purpose is 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 wrongs 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) was very prominent in ancient law. The Bible is no exception: in its oldest form it too included the “lex talionis“, the law of “measure for measure” In the 19th century, philosopher Immanuel Kant argued in Metaphysics of morals, that retribution is the only legitimate form of punishment the court can prescribe. He said that, “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.
While retributive justice is usually considered as a cornerstone of criminal punishment, it has been shown that it also plays a role in civil law.