Discussant: George M.
Taduran
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Criminal law theory is characterized by a longstanding debate between two broad positions:
retributivism, which posits criminal law is justified by the moral demand to punish culpable
offenders in accord with moral desert, and mixed instrumental moral theorism, which posits that
criminal punishment requires both an instrumental purpose and a prerequisite of offender
culpability. In the light of above statement, discuss the ongoing debate regarding criminal law
theories.
Retribution
Retribution is a probably the oldest and most ancient justification for punishment,
"you hurt me, I will hurt you" is its literal meaning. Retribution suggests that the severity
of punishment should be proportionate to the gravity of the offence. while deterrent
theory considered punishment as a means of attaining social security. The retributive
theory treated it an end.
According to this theory crime is like a disease. . This theory maintains that you
can cure by killing. The aim of reformists is to try to bring about a change in the
personality and character of the offender, to make him a useful member of society.
The justification of retributive theory of punishment is that the criminal is to be
punished simply because he has committed a crime. It is initially based on revenge.
Retributive theory intends that a man deserves punishment because he has
acted wrongfully. What retributionists have insisted upon is that no man can be
punished unless he is guilty, that is, unless he has broken the law.
More precisely,
(1) he performed an action of a certain culpability;
(2) that the penalty will give satisfactions equivalent to the gri
evance caused by his action,
(3) that similar ones have been and will be imposed on similar offenders,
(4) that he was responsible for his action and performed it with a knowledge of
possible consequences according to a penalty system and
(5) that unlike non-offenders, he has gained satisfactions attendant on the
commission of an offence. As it stands, it is worth consideration as a
sufficient argument for punishing a man
LIMITATION
It must be stated that the theory of retribution has its origin in the crude animal
instinct of individual or group to retaliate when hurt. The modem view, however, does
not favour this contention because it is neither wise nor desirable. On the contrary, it is
generally condemned as vindictive approach to the offender.
The critics of this theory say that retributive punishment is barbaric and brutal.
Benthem in his utilitarian theory criticises retributive p u n is h m e n t seriously.
Salmond says crimes are not like those of debit or credit accounts in the bank.
Revenges cannot be reattributed just like bank account. If you injure the criminal, again
the criminal is compelled to do criminal act to take revenge and therefore this creates
chain reaction in the society. The primary function of the criminal justice system is to
punish the wrong-doer, and to see that the similar types of the crime should not reoccur
in future, and to prevent the criminal behaviour in the society, and to see that the peace
and prosperity should prevail in the society.
However, it may be pointed out, that retributive theory, in the present correctional
context cannot be upheld, as it is, as it suffers from some limitations. Retribution
approach is largely repressive and does not coincide with the modem humanitarian
correctional approach in dealing with the criminals. Modem penal system has changed
in such a way that it cannot tolerate sanguinary methods of punishment.
The abolition ofthe concept of physical torture and public punishment in the
modem society is an indication that goes against the retribution theory. To say in
support of retribution theory that a man’s penalty will be like those imposed on offenders
who have caused similar grievances is also not consistent with the modem penal
philosophy. Further, some crimes are covered under the insurance scheme such as
insurance of movable and immovable property against theft and fire and as such the
shock of crime is absorbed through these modem methods.
Retributivism, after considering its limitations in modem penal system can be
characterized as on account of the justification of punishment which looks to the past. In
practice deterrence and reformation theories receive more attention of modem
criminologists and penologists. These two theories are said to look to the future.
However, in some circumstances where deterrence or reformation fail and something
must be done to preserve the law and order in the society, the retribution has its impact
as a justification for punishment.
THE RELTRIBUTIVE THEORY OF PUNISHMENT
While discussing the history of the administration of justice, it was seen that
punishment by the State is a substitute for private vengeance. In all healthy
communities, any crime or injustice stirs up the retributive indignation of the people at
large. Retribution basically means that the wrongdoer pays for his wrongdoing, since a
person who is wronged would like to avenge himself, the State considers it necessary to
inflict some pain or injury on the wrongdoer to otherwise prevent private vengeance.
Whereas other theories regard punishment to some other end the retributive
theory looks on it as an end. It regards it as perfectly legitimate that evil should be
returned for evil, and that a man should be dealt with the way he deals with others. An
eye for an eye and a tooth for a tooth is deemed to be the rule of natural justice. Though
the system of private revenge has been suppressed, the instincts and emotions that lay
at the root of these feelings are yet present in human nature.
RETRIBUTION AS EXPIATION
There is yet another interpretation of the retributive theory, which considers
punishment as a form of expiation. To suffer punishment is to pay a debt due to the law
that has been violated. As per this formula, guilt plus punishment is equal to innocence.
According to this view of the retributive theory, the penalty is a debt which the offender
owes to his victim, and when the punishment has been endured, the debt is paid, and
the legal bond forged by the crime is dissolved.
Therefore, the object of true punishment must be to substitute justice for
injustice, to compel the wrong doer to restore to the injured person that which is his
own, and by such restoration and repentance, the spirit of vengeance of the victim is to
be satisfied