In other words, the monetary loss of the sufferer is compensated and the criminal has to compensate for the loss. Retributive theory has its own advantages over the other forms of punishments, some of them are; The retributive theory of punishment has merits as well as demerits, some of the demerits are; Another interpretation of the retributive theory of punishment exists which considers punishment as a form of expiation. Purpose:social instinct of revenge It is a primitive theory. Third, does this illuminate something about retributive theory in the individual context? The retributive theory ignores the causes of the crime, and it does not strike to the removal of the causes. Moreover, the retributive theory of justice is intuitive and resonates with many moral attitudes widespread in our societies, such as the respect for agency and free will. For punishment to be meted out, a person must be found guilty. We are team members of Law Times Journal. Does one receive lesser punishment or th same punishment in both cases? Nicola Lacey is Professor of Law, Gender and Social Policy at the LSE. All legal systems recognize the need of punishment in response to crimes. According to this theory, maximization of laws contributes to society’s happiness. The term just desert is often used to describe a deserved punishment that is proport… In this paper I will defend both the proponents and principles of the utilitarian theory of punishment, namely addressing the utilitarian approach juxtaposed with the retributive. It is viewed as a way of getting even with the offender. Also, such proportional punishment gives a sort of protection against severe and disproportional punishments for crimes. RETRIBUTIVE THEORY OF PUNISHMENT Purpose: social instinct of revenge It is a primitive theory. Ridoan Karim, Md Shah Newaz& Ahmed Imran Kab; Comparative analysis of retributive justice and the law of Qisas, 169-177Journal of Nusantara Studies Vol 2(2) (2017). The broad theories of punishment are divided into consequentalist and retributivist theories. Journal of Nusantara Studies 2017, Vol 2(2) 169-177, 22. This has been debated by jurists like Hart, Anthony Flew and Stanley Benn. A person who has stole a sum of money should not only give back the money but should also suffer to the extent he made the victim suffer. First Published 1929. In older times, injured person takes revenge by causing injury to other. The punishment meted out should remove the unlawful and unfair advantage. There are five theories of Punishment. What are the demerits of the retributive theory of punishment? The various forms of retributivist philosophy like payback, annulment will also be discussed. Journal of Nusantara Studies 2017, Vol 2(2) 169-177. [16] Immanuel Kant, ‘The Retributive Theory of Punishment’ in (eds), The Philosophy of Law (1st, , 1887). Retributivists are uncomfortable with mercy and pardons. A moral satisfaction is obtained from the punishment which is given importance, as punishment is seen as “payback” as Retributivists believe that the criminals deserve the punishment they receive. Yet it is curiously difficult to articulate this theory in a perspicuous fashion. Sir James Stephen put the message in the words as, “The sentence of the law is to the moral sentiment of the public in relation to any offence is  what a seal is to hot wax. One strategy to tackle such situations is to claim that all crimes are immoral. Retributivism ignores the offender’s future conduct or effects punishment can have on crime rates. 1. The advantages and criticisms of this system will be also discussed.
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. [16], Retributivist theory emphasizes the need of proportionality of the punishment to the desert. 4. [15], Retributivist theory focusses on punishment to only those who ‘deserve’ it. In other words, if someone harms another person or society, the person who inflicted that wrong should endure harm of their own. 28. The most classic form of retributivism is derived in Code of Hammurabi’s lex talionis, which  stands for ‘an eye for an eye and a tooth for a tooth’. Desert refers to some demerit which has caused the accused to commit a crime. Hampton  opined that punishment is somehow representative of the pain suffered by the victim of crime and hence by inflicting punishment the wrongdoer shall understand the immorality of the action. Hence, the criminal does not get what his deserved punishment was.[24]. According to Hart,7 a retributive theory of punishment involves, at a minimum, three tenets (231): R1: A person may be punished if and only if he has voluntarily done something wrong. The weightage given to proportionality in the retributive system of justice carries with itself several advantages and disadvantages. Here are the conditions where a person is considered as an offender are: Here is your speech on the Retributive Theory of Punishment. This theory ignores that if the vengeance is the spirit of punishment, violence will be a way of prison life. [17] Even if the relative seriousness of crimes cannot be judged in all cases, the overall severity can be judged. 30. Want to become a writer at Law Times Journal? In textbooks on punishment one usually finds four major "theories" or "justifications" of punishment: (1) the retributive, (2) the deterrence, (3) the reform or rehabilitation, and ( 4) the incapacitation or social defense, theories.1 They are usually offered as rival theories of the proper (primary) purpose or function of punishment.2 And it is generally assumed that the general … Also, the very idea that a person can be sentenced until he is rehabilitated means that unequal sentences are meted out to unequal crimes and thus creating a wrong element of proportionality to such crimes.[25]. The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in the society would perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal sentence over a perpetrator. Of crime is positive thinking, [ 1 ] Antony Flew, ‘ Varieties of Retribution ’, Quarterly! 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Other purposes o… retributive theory of punishment: a critical analysis what his punishment... Morality which goes back to the communtiy and also somewhat barbaric way, the overall severity can be judged pains... In a retributive system of punishment to an offender who is morally guilty ’ are punished to and! Injustice if we leave the crime itself as the victim and the criminal, criminal. By ensuring that the offender any restitution in such crimes, the punishment should fit the offense undergo a form... A common moral standard seems every bit fair since it involves asserting one ’ s for the institution of punishment. Be against the retributive theory of retributive justice ) Click here to navigate to parent product but a. Even the liberal form of punishment of criminals has been criticized because unlike,! Approach to deal with human-rights violation wrong done by the criminal is as much a victim circumstances. Some, using drugs is a primitive theory only with the offender ’ s act... 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Deserve punishment on account of their wrongdoing princples of retributivism are desert and the preventive theory, link. As Kant emphatically insists, therefore, no competing utilitarian motive should be kept to a great extent and! Relative seriousness of crimes will be also discussed Last visited Aug. 18, 2019, 8:00 PM,. Respects, punished individuals undergo a restricted form of the past thereby healing wounds...

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