Table of Contents
Retribution is a system of justice in which the offender is punished rather than being assisted to change. Retribution is a term that is linked to a Latin word “tribution” which is translated as “paying back.” Therefore, retribution is a justice system where the offender is required to pay back for the wrongs done through certain punishment. In essence, it is difficult to determine the first moment at which the retribution concept was adopted by human beings in administering justice.
However, the fact that religious books seem to demonstrate the application of retribution may indicate that retributive justice has been an integral part of human societies for a long time. In the Bible, the story of creation featured some aspects of retribution when Adam and Eve disobeyed God and were removed from the Garden of Eden.
According to the Bible, they were supposed to engage in hard labor and undergo other tribulations as punishments for not abiding with God’s instructions. Similarly, the Mosaic law appeared to have orchestrated retributive justice through the well-known “eye-for-an-eye” principle in which offenders were correspondingly punished depending on their violations.
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Still, in the Bible, the Christians believe that God will eventually reward the faithful with eternal life whereas the sinners will be perpetually tormented in a way that resembles a retributive justice system. In the Quran, the retributive justice system is notable through the direct mentioning of Allah as the “Lord of retribution” who will chastise those rejecting to belief in him. In most of the traditional societies, it was common for the offenders to be excommunicated or killed to remove them from society. This was a practice which basically corresponded to retributive justice.
During the time of the Roman Empire, the death penalty was widely applied as a punishment for the crimes which were deemed serious. For example, it was common for the traitors to be dragged by oxen or horses on the ground and eventually be cut into four pieces. Those who could kill their masters were boiled in the water while the witches were burned at stake.
Accordingly, retributive justice has been supported by its proponents for several reasons. Firstly, retributivists supposed that punishment should be justly proportionate to the wrongdoings committed. In most societies, the administration of justice is underpinned by the rule of law, which demands strict adherence to the regulations irrespective of a person’s status in society. Since the rule of law is committed to establishing a just society, failure to punish offenders accordingly is seen as an injustice towards the victims. As mentioned in the preceding part, retribution is grounded on the principle of paying back according to which the offender should get chastisement equivalent to the felonies.
Secondly, another retribution school of thought considers retributive justice as necessary to prevent the criminals from unfairly taking advantage of the law-abiding society. In any community, some people may get unfair advantages by stealing from others to enrich themselves without laboring. To prevent such occurrences, retribution is necessary to stop the tendency of seeking unfair advantages from others.
Thirdly, engaging in crimes may be seen as the way through which offenders deny the existence of the victims’ rights. For instance, by killing, a murderer infers that the victim has no right to live. In that consideration, failure to punish criminals may be interpreted as vindication of the offenders’ undermining of other people’s rights. Therefore, retribution justice is seen as reclaiming or restoring the rights which have been flouted by the criminals. Particularly, retribution is taken as an act of annulling the crimes so that the prior status quo is regained.
Nonetheless, retribution justice has been criticized for some shortcomings underlying retributivist theory. Firstly, the subjectivity of moral standards in society has been perceived as the main weakness where crimes might be viewed differently from one place to another. The incomparability of morals has made delivery of justice through retribution difficult, therefore retribution justice has been made to look unfair. Some acts like prostitution are generally viewed as immoral across various societies. Even so, different governments may have varying legal implications so that what may be lawful in one place is illegal in another one. In that view, retribution justice of one place may be taken as injustice at another place and this makes retribution justice lack uniformity across societies.
Secondly, retribution justice is thought to play the role of paying back the criminals for their wrongdoings in a fair manner. Nevertheless, it has been identified that what is claimed to be a retribution is actually the act of revenge where the wrongdoers are punished more significantly than they deserve. In society, revenge is characterized by hatred, anger, bitterness, and a tendency to see crimes as perpetrated against individuals rather than society. According to Consedine (1995), retributive justice has an underlying philosophy of vengeance, which results in injustice for both the offenders and the victims of crimes.
Consedine cited high recidivism rates as pointers to the failure of retributive justice in many countries. Recidivism is the tendency of convicted criminals to commit crimes again once they are set free from the prisons. In the United States of America (USA), it is thought that close to 40% of the offenders who are released after serving their jail terms indulge in other criminal activities and are taken back to the prisons within one year.
Restorative Justice
As opposed to the retributive justice, which regards criminal offenses as committed against the state, restorative justice perceives crimes as wrongdoings against the society and the people. In restorative justice, setting things right is seen as more appropriate remedy to correct unlawful activities as compared to punishments. Similarly, restorative justice considers crimes as creating an imbalance in the society which should be resolved by involving the victims, offenders, and other societal members in delivering justice.
Unlike the retributive justice system, which seems to have existed since the time immemorial, restorative justice is relatively new in many societies. During the 1970s, the significance of restorative justice was discovered in North America and some countries in Europe. For example, Canada is one of the North American nations with well-established restorative justice systems.
In this concern, Canada has put in place particular basic principles of restorative justice, which are applicable in the country. For instance, the participation of the offenders and the victims in the restorative justice system ought to be voluntary and based on informed consent. Also, the offenders need to take responsibility for the offenses for restorative justice to be successful. Besides, restorative justice should have goals that it intends to achieve at the end of the justice-seeking process.
Considering that restorative justice is somewhat a new system of administering justice, its emergence has been principally attributed to the failure of the conventional retributive system. According to a meta-analysis on restorative justice conducted by Wilson et al. (2017), the majority of the researchers have found that applying restorative justice is capable of reducing delinquencies as opposed to the traditional court systems.
Compared to retribution, restorative justice has been perceived as a better option for many reasons. Firstly, it is claimed that restorative justice approaches wrongdoings from a positive and constructive perspective. Essentially, the main purpose of restorative justice is to reestablish the good relationship which existed between the victims, offenders, and societies before offending. Rather than focusing on the victims only, restorative justice is compassionate to both the victims and the offenders.
Secondly, another strong point of restorative justice is that it concentrates on creating a healing process for the victims, wrongdoers, and community members. Through dialogue, restorative justice makes victims access information on why the offenses were directed at them. This is in contrast to the retribution in which the victims may never get firsthand information from the criminals on why they were offended.
Whereas restorative justice holds the offenders responsible and accountable for their crimes, it allows healing and restoring the damaged lives of the victims. As outlined in the preceding section, one of the strengths of restorative justice is that it is effective in reducing recidivism.
Thirdly, restorative justice is cheap in terms of the cost of administering justice since petty crimes are prevented from entering the formal judicial systems and proceedings. Additionally, the victims feel safe and assured that the offenders may not commit other crimes against them in the future. This is in contrast to retribution in which offenders may revenge on the victims for taking them through legal systems.
Nevertheless, restorative justice has been condemned for several inadequacies underlying it. Firstly, it has been established that participation of the victims and offenders may not be voluntary and based on the informed consent. In some cases, restorative justice has been put into action when both the offenders and victims are psychologically unprepared to undergo the restorative process.
Secondly, most scholars agree that there is no certain definition and scope of restorative justice and, therefore, restoration of victims and offenders has been approached from different perspectives. In that deliberation, measuring the success of restorative justice may be difficult if it has no unified principles and philosophies.
Thirdly, the restorative justice system has been reproved for concentrating on applying remedies without meaningful fact findings. Unlike the retributive system, restorative justice seeks to hold the alleged offenders responsible and accountable for the supposed crimes without thorough consideration of the facts. In addition, it has been argued that restorative justice may cause the victims and offenders to consider that the system is fair and that they have been restored. Particularly, the restorative justice process may make the victims feel that their rights are reinstated while in reality, they are not.
One of the aims of restorative justice is to make the offenders apologetic about their misconduct and feel remorseful. Nonetheless, it is difficult to establish the genuineness of their apologies and the authenticity of their remorsefulness. On this note, it is possible for the offenders to fake apology to defeat the judicial systems and undermine the outcomes of restorative justice.
Besides, the application of restorative justice may take a considerably long time in some situations. For instance, in a school setting, when restorative justice is applied in disciplining students, this practice may consume a lot of time. As a consequence, the expected justice may be rendered valueless in consideration of the legal principle presupposing that “Justice delayed is justice denied.”
