7.3.2 Retributive Theories
The counterpart to utilitarian goals of punishment is retribution. According to
retributive theories, offenders are punished for their crimes because theydeserve
punishment.
Crime Deserves Punishment Where utilitarians look forward by basing punish-
ment on social benefits, retributionists look backward at the crime itself as the
rationale for punishment. According to retributive theories, there is an intrinsic
moral link between punishment and guilt. Punishment is therefore primarily a
question of responsibility for the crime committed (just desert) and not of beneficial
consequences. One of the best known ancient forms of retributive thinking can be
found in thelex talionisof Biblical times: “an eye for an eye, a tooth for a tooth, and
a life for a life.” One should be punished because a crime has been committed, and
the punishment should be proportional to the seriousness of the offense and the
degree of culpability of the offender: “Let the punishment fit the crime” captures the
essence of retribution.
Justice or Vengeance? The main criticism against retribution is that the funda-
mental question why an offender deserves to be punished in the first place is not that
easy to answer. Retribution may reflect a basic intuition of justice—what goes
around comes around—but it may in fact be nothing more than a rationalized desire
for vengeance. In short, how can we prove this alleged moral link between crime
and punishment? Isn’t it strange to believe that the moral balance disturbed by an
evil act (crime) can simply be restored by inflicting upon the offender another evil
(punishment)? Some retributionists attempt to answer this question by viewing the
offender as a person who has taken an unfair advantage of others in society by
committing a crime and by assuming that punishment restores fairness. If society
would allow a person who violates the law to continue to enjoy the illegal benefits,
he would be given an unfair advantage over citizens who do obey the law.
Others argue that punishment is justified because retribution is society’s way of
expressing and communicating through the apparatus of criminal law a moral
disapproval of certain transgressions. Punishment thus functions as a means of
societal condemnation and denunciation.
To conclude this section, we should note that there is no such thing as an ultimate
theory of punishment. In practice, the modern European conception of punishment
is a pragmatic combination of utilitarian and retributive theories. However, it is
interesting to see that in the last three decades, there is a revival of retributivist
thinking, of the idea that the justification of punishment lies in its intrinsic character
as a deserved response to crime. However, much depends also on the nature of the
crime. For instance, the punishment of economic crimes, like tax fraud, is more
motivated by deterrence than by retribution.
128 J. Keiler et al.