Retributive Justice

The Palgrave Handbook of Positive Peace, 2021

Retribution is one of the oldest justifications for punishment. In Western thought, it is perhaps most famously evident in the Old Testament's adage of an eye for an eye, a tooth for a tooth, a life for a life. In modern theory, the eighteenth-century German philosopher Immanuel Kant (1724-1804) developed this classic notion further by linking its justification to the state's authority. It has often been criticized in more recent times as a regressive theory that is no more morally superior than revenge. Retribution and revenge share a common structure. Unlike the theories of deterrence and rehabilitation that are legitimated on the basis of producing the future good of crime reduction, retribution and revenge are backward focused. Both are performed due to a past wrong. This chapter explores the differences and similarities between retribution and revenge and argues that while retribution has its limitations, it contains important elements necessary to restore balance in society and to create a positive peace. First, that the full extent of the wrong committed is publicly acknowledged, and second, that unlike the dangers inherent in revenge and deterrence, the punishment cannot create more harm than was caused by the crime.

Thomist, 2019

Philosophical Forum, 2019

Unlike other kinds of theories of justice, reparatory justice can only be negatively defined, in non-ideal contexts in which initial wrongs had already been committed. For one, what counts and what does not count as wrongdoing or as an unjust state of affairs resulted from that wrongdoing depends on the normative framework upon which a theorist relies. Furthermore, the measures undertaken for alleviating historical injustices can be assessed only from the vantage point of other, independent normative considerations. In the present paper I argue that this lack of substance is a feature that, far from being problematic, is what makes reparatory justice attractive. The specific example that I put forward is that of a reparatory justice account which seeks to instantiate the desiderata of a sufficientarian theory of justice. At first, distributive justice fills the content of reparatory justice, specifying up to what level reparations in-kind or compensatory measure should go. Afterwards, reparatory justice clarifies and provides epistemic inputs for distributive justice. Reparatory justice thus becomes an epistemic source for distributive justice, in that it provides the means for assessing whether someone's level of well-being can be traced to her choice or to a wider, historically-sensitive operationalization of her "circumstances".

In this essay I will be giving a comprehensive account of the retributive theory of punishment as exemplified by Kant. In doing so I will state how Kant understands this theory as being the most justified form of punishment, paying particular attention to his notion of agent autonomy and respect. After giving a brief account to Kant’s theory of punishment I will show there is little if any difference between retribution and revenge. Following this I will be comparing his theory with the consequentialist view that punishment provides us with some form of beneficial outcome. I will show that consequentialism has two beneficial outcomes. The first being deterrence in which others are dissuaded in acting immorally in fear of being caught and punished. The second being rehabilitation which claims that if the manner of punishment is administered properly it may improve the character of the wrongdoer. Once these have been explained they will be critically analyzed, so that we can see what the implications of each has on both the wrongdoer and society itself. Hopefully by the end of this is essay I will have demonstrated some of the merits of Kant’s theory of retributivism but show that irreversible punishments such as capital punishment cannot be defended due to the fallibility of human reasoning, As such what I want to argue for is a softer form of consequentialism that emphasizes a sort of checked rehabilitation that incorporates Kant’s view that people should be treated with dignity and respect, regardless of their crime.

Facta Universitatis, Series: Law and Politics

The justification of punishment is a difficult problem. The paper attempts to examine retributivism in the normative perspective and to penetrate the structure of the fundamental premises and theses of retributivism. Retributivism assumes that punishment is just, in the broad understanding of the term, while in reality punishment is not just; the model of retributive punishment is contrafactual, which is evident above all in the problem of punishing the innocent. A proper modification of retributivism's normative premises (i.e. how and why people ought to be punished, etc.) consists in seeing these premises not as unconditionally binding directives but as optimization rules, a kind of prima facie duty. These are mainly the ethical duties of the state considered from the point of view of criminal policy. In effect, it is possible to formulate a non-fundamentalist (non-idealistic) variant of retributivism - better corresponding to social reality. The core of the paper consists in ...

Restorative Justice, 2017

In this paper, I defend fairness-based retributivism against two important objections, the nobenefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory's distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

2011

The war crimes committed between 1992 and 1995 in Bosnia-Herzegovina have mainly been under the jurisdiction of the legal systems set up by the international community. To solve the atrocities of the past, institutions like the ICTY and the WCC were set up. But to this day there is estimated to be thousands of direct perpetrators still walking free in and around Bosnia-Herzegovina. The purpose of this study is to see exactly how this search for justice is progressing and what is preventing it to operate more efficiently sixteen years after the signing of the Dayton Peace Agreement. By analyzing the main international strategies in dealing with retributive justice, namely the ICTY in The Hague and the WCC in Sarajevo, I conclude that there have been consequences to the internal legal structure of Bosnia-Herzegovina and a general negative perception among the victims of the war on the attributes of retributive justice.