credits to WD Fyfe for the image
“Justice is the means by which established injustices are sanctioned” (France, 1901).
This statement from Anatole France is an apt reflection of the basic philosophical foundations of retributive justice. Under the custodial model of retribution, those who have been proven guilty would be receiving just punishment for their deeds, and the people who have been victimized and the social structure which may have been directly or indirectly tainted or offended, will be given the opportunity to restore what has been lost from them – not only through consolation of some sorts, but through the knowledge that the perpetrator of the crime committed against them would be paying his/ her just retribution – an injustice that has already been sanctioned.
Perhaps, it is easy to advocate for a less firm approach to correction, particularly in the utilitarian aspects of rehabilitation, deterrence and incapacitation, when one would use the already tried-and-tested principle of humaneness. Yet for the people who have been oppressed and hurt by criminal acts, such approaches would not be comprehensible. How could justice be adequately served if the person that has been victimized does not receive that which has been denied of him/ her by his/ her offender?
Plenty may disagree with me in this regard, particularly if my aforementioned statements would be assumed as nothing but a mere euphemism for vengeance. Indeed, the society would benefit more if the system of correction would indeed strive to “correct” what has been wrong on the person – a rehabilitative form of intervention, founded on the assumptions of the medical model. The criminal would have to go through some series of behavior modification procedures, and after a few months or years be pronounced as “rehabilitated” or “cured.” But would it really do so?
I believe that retributive justice rests on the basic assumption of human beings as capable of making their own judgments and decisions – creations of sound mind and sound body. It would indeed violate this very principle to think that the individual’s decisions – when later on proved to be detrimental not only to himself/ herself but to the other people and the society as well, would be perceived as somebody who warrants “professional intervention;” somebody afflicted with an illness that needs to be treated and a condition that needs to be rehabilitated. While it would be morally repugnant to assume that a person, who perceive himself/ herself as superior on the merit of his/ her expertise or educational background could dictate whether a person who is subject to him/ her is dysfunctional and hence needed to be treated, it would also be abhorrent to regard the criminals’ wrong decisions and actions as products of their own moral or personal inferiority and “illness” as a human being. Do we not all agree that each was created equal – gifted with the capacity for liberty and freewill? That it is also because of this gift why human beings enter into a social contract with others and created a government that could enforce the necessary control – in order to ensure that in the pursuit of liberty and freewill, the common good would prevail. Thus, the process of retribution would not be a form of vengeance – basically because it would not be administered by the offended party, but a neutral system that is created for this very purpose.
In the very process of retributive justice, we are assured that the innocent would not be punished (Bradley, 2003) for isn’t retribution about getting what one deserves? In order to fairly exercise retribution, the criminal justice system must be above reproach because like in any other exercise, the framework would be futile and dysfunctional if it would not be observed properly. Retributive justice likewise carries the essence of fair play – of the society’s striving for the balance of individual autonomy and the common good: tip one scale and chaos would result. When a person violates the laws of the land, s/he may use the guise of personal autonomy. Yet, s/he could never escape the contract which s/he violated. S/he is regarded as a person with inherent worth and dignity and in the philosophy of retributive justice; s/he would not be treated as a helpless person in need of guidance and assistance from those who know more. Rather, s/he would be treated as a person who is in full command of his/ her own actions.
Retributive justice does not contradict the Christian edict. For is it not Christ himself, who said that the people would be judged on the merit of his/ her actions, on the scale for which s/he weighed others? If the nation’s criminal justice system would be using a scale that is fair and impartial, what does it fear of future retribution? Like Bradley (2003), I believe that the central aim of punishment is retribution; to redress a grievance using the appropriate means. Deterrence, rehabilitation and incapacitation were only secondary aims – which I believe would naturally follow once a person gains full cognizance of the extent of his/ her mistakes. Retributive justice could in fact, appease the offended side, so it would not have to employ means that could only worsen the situation and inflict further danger in our society. Retributive justice could in fact, prevent the aggrieved to commit revenge – because they know that the appropriate justice has been served.
Bradley, Gerard V. (2003). “Retribution: The Central Aim of Punishment.” Harvard Journal of Law and Public Policy. 01934872. Vol. 27, Issue 1.
Cole, George F. & Smith, Christopher. (2007). The American System of Criminal Justice. 11th edition.Belmont: Thomson Learning Inc.
France, Anatole (February 2008). Crainquebille.United States of America: Wildside Press
Tan, Nicholas. (22 November 2008). “Rehabilitation vs. Retribution.” International Debate
Education Association. Accessed 27 January 2010 from www.idebate.org