Key Takeaways

  • Retribution is a theory of justice based on proportional punishment to balance the moral scales after a crime.
  • It differs from utilitarian theories by focusing on past actions rather than future outcomes.
  • Retributive justice often reflects society’s need to express moral outrage and uphold social order.
  • Critics challenge retribution for lacking rehabilitative goals and risking emotionally driven punishment.
  • Historical and philosophical foundations link retribution to ideas of fairness, desert, and justice in ancient and modern legal systems.

Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Quite contrary to the idea of rehabilitation and distinct from the utilitarian purposes of restraint and deterrence, the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society, and so expiate them of guilt.

Why Is Retribution Used?

The impulse to do harm to someone who does harm to you is older than human society, older than the human race itself (go to the zoo and watch the monkey cage for a demonstration.) It's also one of the most powerful human impulses — so powerful that at times it can overwhelm all else. One of the hallmarks of civilization is to relinquish the personal right to act on this impulse, and transfer responsibility for retribution to some governing body that acts, presumably, on behalf of society entire. When society executes retribution on criminals by means of fines, incarceration or death, these punishments are a social expression of the personal vengeance the criminal's victims feel, rationally confined (it is hoped) to what is best for society as a whole.

Of course there are more sophisticated ways of thinking about retribution, and it's a good idea to be familiar with them since a judge (and that other kind of judge, the criminal law professor) is unlikely to accept "because it's a natural impulse" as justification for retribution in punishment. And with good reason.

Historical Roots and Theoretical Foundations of Retribution

Retribution as a concept can be traced back to ancient legal systems, including the Code of Hammurabi and Mosaic Law, where the principle of "an eye for an eye" (lex talionis) governed justice. The idea is that wrongdoers deserve punishment proportionate to the harm they have caused, not merely to prevent future crimes but to balance moral wrongdoing.

Philosophers like Immanuel Kant later reinforced this principle, arguing that punishment should be imposed strictly because the offender committed a crime—not for utilitarian purposes. According to Kant, failing to punish a criminal would be unjust, regardless of the consequences.

Modern retributive theory continues to emphasize proportionality, fairness, and moral accountability. It holds that individuals are moral agents responsible for their actions, and punishment restores moral balance by giving offenders what they deserve.

Is Retribution Ethical?

While "it's natural" tends not to carry much weight in the criminal law, "it's morally right" can. Moral feelings and convictions are considered, even by the criminal law, to be some of the most powerful and binding expressions of our humanity. In binding criminal trial juries to restrict guilty verdicts to situations of the highest certainty, "beyond a reasonable doubt" is also often described as "to a moral certainty." It is to their moral feelings of what is truly right that jury members are asked to look before delivering a verdict. It's perhaps not too much of a stretch, then, to argue that it's morally right to make criminals suffer as their victims have suffered, if that's the way one's moral certainty points.

No matter what one's moral feelings are about inflicting deliberate harm on a human being, the majority of the U.S. citizenry still holds that it's right to exact retribution on criminal offenders, sometimes even to the point of death. This is almost certainly true of the majority of victims, and their loved ones, for whom equanimity becomes more and more difficult depending on the severity of the crime. What rape victim does not wish to see her attacker suffer? What parent does not hate the one who killed their child? The outrage that would result from leaving these passions for revenge unsatisfied might be seen as a dramatic failure of the entire criminal justice system. It's a good argument for retributive justice, then, that in this world public vengeance is necessary in order to avoid the chaos ensuing from individuals taking revenge into their own hands. And, until the moral certainty of a majority of society points towards compassion rather than revenge, this is the form the criminal law must take.

Modern Challenges and Critiques of Retribution

While retribution remains a dominant theory in many criminal justice systems, it faces several criticisms:

  • Subjectivity of Moral Outrage: What one person sees as just deserts, another may view as excessive. This variability can influence sentencing outcomes.
  • Lack of Constructive Outcome: Retribution does not aim to rehabilitate or reintegrate offenders, potentially leading to repeated cycles of crime and punishment.
  • Emotional Basis: Critics argue retribution can be rooted more in vengeance and public anger than in rational justice.
  • Social Inequities: Application of retributive justice can reflect systemic biases, disproportionately affecting marginalized communities.

Despite these critiques, many argue that retribution satisfies a social need for moral closure and reflects collective values of right and wrong.

Retribution vs. Other Theories of Punishment

Retribution stands in contrast to other common purposes of punishment:

  • Deterrence: Focuses on preventing future crimes by making an example of the offender.
  • Rehabilitation: Seeks to reform the offender for reintegration into society.
  • Incapacitation: Aims to remove dangerous individuals from society.
  • Restoration: Emphasizes repairing the harm done to victims and communities.

Retribution differs because it is backward-looking, concerned solely with the offender’s past act and whether it merits punishment. This approach avoids using individuals as a means to an end, which is a central criticism of deterrence and incapacitation.

However, critics argue that retribution may disregard the potential for personal growth, remorse, and social reintegration—key goals of rehabilitative and restorative models.

Frequently Asked Questions

1. What is the main goal of retribution? Retribution seeks to punish offenders in proportion to the harm they caused, aiming to achieve moral justice rather than deter or rehabilitate.

2. How is retribution different from deterrence? While retribution looks backward at the crime and seeks moral balance, deterrence is forward-looking, aiming to prevent future crimes.

3. Is retributive justice still used today? Yes, many modern criminal justice systems incorporate retributive principles, particularly in sentencing guidelines based on offense severity.

4. What are common criticisms of retribution? Critics argue it can be emotionally driven, lacks rehabilitative value, and may perpetuate systemic inequalities in sentencing.

5. Can retribution coexist with other punishment theories? Yes, some legal systems apply a hybrid approach, using retribution alongside deterrence, rehabilitation, and restorative practices.

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