Crimes are socially proscribed wrongs. They are wrongs which are not merely private affairs, which concern those directly involved in them, but also concern the society as a whole. Every crime has a punishment. ‘Punishment’ has been in existence since the early colonial period. It has continued to be a tool used to deter criminals from committing criminal acts. Philosophers believe that punishment is vital in the modern society as it is a worldwide response to crime and violence. The way how a society punishes criminals is important because of its connection to several events. Punishing offenders also restores balance in the society.
PHILOSOPHIES OF PUNISHMENT
The theories of punishment can be categorized into four philosophies.
(i) Utilitarian- The utilitarian philosophy focuses on maximizing the happiness of the society by deterring or preventing an offender from committing any prospective crime.
(ii) Abolishment- The abolishment philosophy seeks to abolish punishment completely.
(iii) Deterrent- The deterrent philosophy is of the objective to prevent the criminals from committing or attempting any crime.
(iv) Retributive- The retributive philosophy is based on the concept of ‘an eye for an eye’.
RETRIBUTIVE THEORY OF PUNISHMENT
The Retributive Theory of Punishment is one of the oldest punishment ideologies. It is based on the basic concept of ‘an eye for an eye’. The punishment has ancient roots in the concept of Lex Talionis. The principle of Lex Talionis developed in the early Babylonian law that states, criminals should realize the suffering of the pain by subjecting him to the same kind of pain as he inflicted upon the victim.
Later, in the nineteenth century eminent philosopher Emmanuel Kant argued in the Metaphysics of Morals that judicial punishment can never be used merely as a means to promote some other good for the criminals himself or for the civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime. In his view, the only purpose punishment should serve is to penalize the criminal for committing a crime.
The theory of Retributive Punishment is based on two core principles, desert and proportionality. The two principles are interlinked, the punishment has to be proportional to the crime committed. The principle of desert in philosophy refers to the condition of being deserving of something, whether good or bad. The principle of proportionality requires the level of punishment to be related to the severity of the offence. This form of punishment is seen as a form of ‘payback’ for the crimes one has committed. Supporters of this theory have also distinguished between positive and negative forms of retributivism. Positive Retributivism states that an offender’s desert provides a reason in favor of the punishment. Negative Retributivism not only provides a positive reason to punish but rather a constraint that punishment should only be imposed on those who deserve it, that is, in proportion to the desert.
The demand for retributive punishment in recent crimes has increased. The need for speedy and instant grave punishment has increased public sentiments and demands for retributive punishment. The unfortunate and repulsive increase in rape cases has made the demand for such punishment a need of the hour. From a long time, we have witnessed instances of such punishment. For instance, in the mythological series Ramayana, the whole story began from retribution itself. Lakshman resorted to cut the nose of Raavan’s sister, because of which Raavan later is seen to kidnap Sita. In order to avenge this act of kidnapping, Lord Ram goes ahead and kills Raavan. The Mahabharata too portrays the use of retributive punishment. Pandava Arjun at one point was prepared to leave the battlefield. But his mentor, Shri Krishna guides him and tells him that, when all the doors are shut, only then war is to be resorted to because if any person refuses to fight, it will largely affect the society in terms of taking stand against gross injustice. The Indian system of justice is already an example of ‘justice delayed is justice denied’. This strengthens the need for a retributive punishment as such punishment would create a fear in the mind of wrongdoers and make a positive impact on the increasing crime rate in the country.
Merits and Demerits:
The Retributive Theory of Punishment focuses on punishment to only those who ‘deserve it’. It emphasizes on the need of proportionality of the punishment to the desert. All legal systems recognize the need of punishment in response to crime. If criminals are allowed to walk free or bribe and escape punishment, it would indicate that they have not committed any wrong. Consequently, the unfair advantage they would have gained by seeking recourse to illegal methods would not be paid back. Supporters of Retributive Theory argue that unless the criminal gets the punishment he deserves, some effects might be produced; the victim may seek revenge or victim may refuse to make complaint or offer testimony.
The requirement of desert to punish crimes has in itself some hindrances. The nature of morality being subjective makes it difficult to deliver punishment for crimes. A universal standard has to be derived to assess crimes. In a society citizens adhere to very divergent concept of good and bad. At community level for instance, using drugs is a matter of personal liberty for some whereas, for the other it is seen to be a sinful act. Even nations have varied laws on matters like rape, prostitution, drug use and so on. This makes it complicated to deliver punishment. The concept of crime is vast. A crime can be immoral and illegal such as rape, murder, theft as well as there are crimes which ae illegal but cannot be termed as immoral such as traffic offences, jaywalking. In such amoral crimes, the punishment cannot be set proportional to the iniquity of the crime due to the absence of such iniquity. When the punishment involves fine, the theory does not take into consideration the financial position of an offender. Consequently, a situation in which a poor individual and a millionaire may be forced to pay the same amount. Such punishment would be punitive for the poor offender while insignificant for the millionaire. Hence, deriving a punishment in such cases becomes even more complicated. Many also criticize retribution theory of punishment as outdated. As societies become more civilized, they tend to outgrow the need or desire for revenge. A major flaw in this theory is that this form of punishment focuses more on punishing the criminal and not preventing the prospective crime. At times a greater good can be achieved by pardoning a criminal instead of punishing him.
Many argue that the Retribution Theory of Punishment is a backward-looking ideology. This is because punishments beyond the original balancing of justice for the past harm is outside the scope of this theory. The dosage of the punishment is the core principle of this form of punishment. It is said that, “if you slander another, you slander yourself; if you steal from another, you steal from yourself; if you kill another, you kill yourself”. This depicts the Right of Retaliation. Retributivism justifies punishment in terms not of its contingently benefits effects but of its intrinsic justice as a response to crime.
Author: Arisia K,