Retributive justice is a theory of justice that considers that proportionate punishment is a morally acceptable response to crime, regardless of whether the punishment causes any tangible benefits.
Definition
In ethics and law, "Let the punishment fit the crime" is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportional to the severity of the infraction. The concept is common to most cultures throughout the world. Its presence in the ancient Jewish culture is shown by its inclusion in the law of Moses, specifically in Deuteronomy 19:17-21, which includes the punishments of "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." Many other documents reflect this value in the world's cultures. However, the judgment of whether a punishment is appropriately severe can vary greatly between cultures and individuals.
Proportionality requires that the level of punishment be scaled relative to the severity of the offending behaviour. However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crime more harshly than minor crime, but retributivists differ about how harsh or soft the system should be overall.
Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. For utilitarians, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, and strictly for punishing crimes according to their severity.[1]
Depending on the retributivist, the crime's level of severity might be determined by the amount of harm, unfair advantage or moral imbalance the crime caused.
History
In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract rights, and a rough sense of justice demands the infliction of proportionate loss and pain on the aggressor as he has inflicted on his victim. Hence the prominence of the "lex talionis" in ancient law. The Bible is no exception: in its oldest form it included the "lex talionis," the law of "measure for measure" (this is only the literal translation of middah ke-neged middah).
In the 19th century, philosopher Immanuel Kant wrote in The Metaphysical Elements of Justice of retribution as a legal principle: "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."[2]
Immanuel Kant regards punishment as a matter of justice. He states that if the guilty are not punished, justice is not done. (Rachels, James 2007) "The Elements of Moral Philosophy".
Subtypes
There are two distinct "flavors" of retributive justice. The classical definition embraces the idea that the amount of punishment must be proportional to the amount of harm caused by the offence. A more recent version, advocated by Mr. Shehan[citation needed], dismisses this idea and replaces it with the idea that the amount of punishment must be proportional to the amount of unfair advantage gained by the wrongdoer. Davis introduced this version of retributive justice in the early 1980s, at a time when retributive justice was making a resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades. This was to many a breath of fresh air into a theory that had been all but abandoned decades prior, particularly in the United States. There currently appears to be a greater amount of discussion about the difference between these two flavors of retribution than between retribution itself and the other theories of punishment.
Criticism
According to some theories of ethics, punishment (or proportional punishment) is evidently self-contradictory. Retributive punishment is unethical, these theories claim,"two wrongs do not make a right."
Some hold that the motive behind the Christian sanction for interpersonal relations ("turn the other cheek" before seeking retribution for a wrong), and the motive behind the sanctions for social magistrates (which include the application of retributive justice, e.g., "just stonings"), conflict. On the other hand, the motives for the social sanctions can be attributed to other justifications beyond simple retaliation.
Many more jurisdictions following the retributive philosophy, especially in the United States, follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff. As a result, some argue that judges do not have enough discretion to allow for mitigating factors, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed man and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or not large enough to punish the millionaire.[3]
Dualism is a legal concept which contends that national law and international law are two separate and distinct areas of law. It can be contrasted with the legal theory of monism which contends the opposite. Can regard specifically to the European Community law with contrast to Domestic law
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Legal origins theory
In economics, the legal origins theory states that many aspects of a country's economic state of development are the result of their legal system, most of all where a particular country received its law from. The first papers on the theory were published from 1997 onwards by a group of researchers around Andrei Shleifer.
Theory
Since, historically, most countries received their law through colonial transplantation, law is considered to be exogenous to the analysis. Some economists have thus classified countries on whether they adhere to common law or whether their legal system is based on French civil law, German civil law or Scandinavian civil law and done empirical research finding correlations between economic indicators and that classification.
The basic thrust of the theory is that common law, as opposed to French civil law, and to a lesser degree to German and Scandinavian civil law, is associated with more orientation towards institutions of the market (instead of state interventionism), which is why, according to proponents of the Legal Origins Theory, common law countries tend to be economically more developed.
While the theory originally started out in corporate law, where common law was found to be correlated with better shareholder protection and more developed financial markets, the theory has in the meantime been extended to many other fields, such as whether or not a country is likely to have military service (common law countries are least likely to).
Criticism
Early papers developing the theory in particular faced a good deal of criticism. Most of all, the research underlying the indexes on specific legal rules used in the earlier papers on corporate law did not meet the basic minimum standards of comparative law and thus crudely mischaracterized continental European corporate governance systems. Because of this, the papers' authors were met with hostility from European corporate law scholars. However, indexes made in later papers somewhat improved on this point.
The question of whether the Legal Origins Theory adequately describes reality it is still hotly debated, most of all among financial economists and scholars of corporate law.
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Legal positivism
Legal positivism is a school of thought in jurisprudence and the philosophy of law. The principal claims of legal positivism are that:
- laws are rules made, whether deliberately or unintentionally, by human beings;
- there is no inherent or necessary connection between the validity conditions of law and ethics or morality.
Legal positivism and natural law
Legal positivism stands in opposition to various contrary ideas in the tradition of natural law - a body of legal theory asserting that there is an essential connection between law and justice / morality. Many legal positivists endorse the separation thesis: the idea that legal validity has no essential connection with morality or justice. A law is a valid law if posited, in the proper manner, by a recognized authority, regardless of its moral implications.
Legal positivism in the English-speaking world
In English speaking philosophy, legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. Bentham drew a sharp distinction between people he called:
- Expositors - those who explained what the law in practice was; and
- Censors - those who criticised the law in practice and compared it to their notions of what it ought to be.
The philosophy of law, strictly considered, was to explain the real laws of the expositors, rather than the criticisms of the censors.
The legal philosopher John Austin, attempting to put the system in a nutshell, held that the distinguishing feature of a legal system is the existence of a sovereign whose authority is recognized by most members of a society, but who is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it bears the warrant of the sovereign and will be enforced by the sovereign power and its agents. Of course, in the Republic of the United States, the citizens have granted through the Constitution authority and power to the government to determine and enforce the laws. Austin would agree that there is nothing in legal positivism that forbids a hierarchy of laws from existing, or that the power be vested always in a single person or group.
In another sense, according to the distinguished American judge Oliver Wendell Holmes, legal positivism is in a sense the science of those who observe and give counsel as to what governments might do. According to Holmes, law is not so much a body of rules and procedures as it is a body of knowledge that predicts what courts are likely to do. Holmes' is a more lawyerly sort of legal realism; it acknowledges that the rules printed in statute books and precedents can be swayed by effectively marshalled cases and legal argument. A prediction of how the judge will act, though, can at best be stated in terms of probability.
Insofar as positive laws are, as John Austin writes, commands of a sovereign, or, as Holmes argues, decisions of a court, they might appear as arbitrary. Similarly, Niklas Luhmann argues that the essence of positive law is that it is a decision. “We can reduce this concept of positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable).” (Luhmann, 1987) Positive law, therefore, is changeable law. For example, abortion may be illegal yesterday, legal today, and illegal tomorrow. The malleability of law has, of course, great advantages. Law can be adapted to pressing needs. Especially in the fast-paced world of business, the adaptability of modern law enables it to be a powerful instrument for the willful promotion and regulation of social and economic relations.
It is a common mistake, therefore, to think that positive laws, as willful and changeable, are therefore arbitrary. Precisely because positive laws are willful, positive laws are those laws that must justify themselves with reason. Positive laws are precisely those laws most in need of reasons and justifications. It is for this reason that the rise of positive laws is accompanied by the rise of legal science as a means of offering these reasons and justifications. It is no surprise, therefore, that law, today, is infused with the language and practice of the social sciences, from law and economics to the sociology of law and other normative socio-legal studies.
Law and ethics
Legal positivism implies that law is something that can be separated from ethics. In this view it is possible that there are laws without ethical content or legal rules that have no ethical component, and laws that are positively evil, such as the laws of slavery and segregation.
Some natural lawyers argue that even the most pedestrian of laws carry the moral or ethical requirement that the State of Nature may be abridged only for the basic maintenance of the greater society. Such order is a moral imperative. Thus, a law requiring driving on the right side of the road indeed has a philosophically moral basis. Not that right is socially preferable to left but rather that right is socially preferable to nothing.
Of course, not all legal decisions are as free of ethical content as this one is. Legal positivism is not synonymous with ethical positivism, or for that matter with moral relativism. It is at least a possible viewpoint that there exists a natural ethical code while maintaining that its translation into law remains local and contingent. The argument of legal positivism is not that ethics is irrelevant to every law; rather, that law and ethics are two different things, two fields that occasionally overlap but whose underlying logic remains separate. The legal positivist emphasizes that the law that forbids theft and the law that commands that you drive on the proper side of the road are two exemplars of the same phenomenon.
Against this view, it may be argued that law has its own internal morality; for example, laws must be promulgated, announced to the public; intelligible; and not baldly self-contradictory. Unless laws fulfill these requirements, they cannot fulfill their role in the social order, for without fulfilling these requirements, it would be impossible for anyone to know the laws or obey them. These requirements are ethical requirements, and they constrain law even without regard to any rules of ethics exterior to the legal process.
- Libertarian theories of law
Libertarian theories of law build upon classical liberal and individualist anarchist doctrines. The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of contracts and social order, though "social order" is often seen as a desirable side effect of a free market rather than a philosophical necessity. Historically, the Austrian economist Friedrich Hayek is the most important libertarian legal theorist. Another important predecessor was Lysander Spooner, a 19th century American individualist anarchist and lawyer. John Locke was also an influence on libertarian law theory (see Two Treatises of Government). Ideas range from anarchism (as anarcho-capitalists may still designate themselves libertarians) to the mere enforcement of contracts. Some advocate mild regulation, including the existence of a police force, military, public land, and public infrastructure. Geolibertarians oppose ownership of land on Georgist grounds. The focus, however, remains on establishing Minarchism.
The prediction theory of law was a key component of the Oliver Wendell Holmes' jurisprudential philosophy. At its most basic, the theory is a refutation of most previous definitions of the law. Holmes believed that the law should be defined as a prediction, most specifically, a prediction of how the courts behave. His rationale was based on an argument regarding the opinion of a "bad man." Bad men, Holmes argued in his paper The Path of the Law, care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes's mind, therefore, it was most useful to define "the law" as a prediction of what will bring punishment or other consequences from a court.