The Retributive Theory
Chapter Thirty-Two
Syllabus topic 2, "Theories of Punishment"
Pages 129 to 132 of 806
In one line
The retributive theory says the offender is punished because they deserve it and for no other reason, and its whole strength is that it explains why we do not punish the innocent.
In the wording a student can write in an exam: the retributive theory justifies punishment by the offence alone. The offender deserves to suffer because they have done wrong, and the justification is complete without any reference to the consequences of punishing. It is a backward looking theory. Its classical expression is Kant's, that punishment must be inflicted because the offender has committed a crime and never merely as a means to promoting another good; and Hegel's, that punishment is the right of the criminal, because it treats them as a rational being whose act is a universal principle they have themselves willed.
Why the law has it
Because the alternative theories cannot, by themselves, say who may be punished and how much.
A theory that justifies punishment by its consequences has to explain why an innocent person may not be punished when doing so would produce better consequences, and why an offender may not be punished more heavily than the offence deserves when a heavier sentence would deter more. Retribution answers both in a sentence: only the guilty, and only what the offence deserves.
That is why retribution survives in a form nobody calls vengeance. It has become the limiting principle of modern sentencing rather than its driving purpose.
The classical statements
Kant. Judicial punishment can never be administered merely as a means for promoting another good, either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. A human being can never be treated merely as a means to the purposes of another.
Kant's illustration is the one to remember. If a civil society were to dissolve itself by common agreement, the last murderer lying in prison ought to be executed before the dissolution, so that everyone may realise the desert of his deeds. Whatever one thinks of the conclusion, it isolates the theory perfectly: no consequence whatever can follow from that execution, and Kant says it is still required.
Hegel. Punishment is the right of the criminal. The criminal's act is a universal principle which they have willed for themselves, so in punishing them the law applies to them only what they have willed. To treat an offender as a subject to be deterred or cured, rather than as an agent who chose, is to fail to treat them as a person.
Retribution is not revenge
This is the distinction the theory is judged on, and an answer that does not make it has not understood the theory.
The Retributive Theory
| Retribution | Revenge | |
|---|---|---|
| Who inflicts it | The state, through a competent authority | The injured party or their friends |
| Against whom | Only the offender, after proof of guilt | Whoever the avenger believes responsible |
| Measure | Proportionate to the offence, and limited by it | Whatever the avenger's feeling demands |
| Emotion | Not required. A judge who feels nothing still punishes | The point of it |
| Rules | Fixed in advance, applied impersonally | None |
| Finality | The sentence ends the matter | Provokes counter-vengeance |
The best short formulation is that retribution is the claim that the offender deserves a proportionate penalty, and desert is a judgment about the act, not a feeling about the offender.
Lex talionis and its difficulty
The oldest form of retribution is the talion, an eye for an eye, and its virtue is that it supplies an exact measure. Its difficulty is that it is unworkable for most offences.
What is the equivalent punishment for forgery, for perjury, for driving without insurance, for insider trading? The talion has nothing to say about any of them, and taking an eye for an eye requires the state to do the very thing it forbids.
Modern retributivism therefore keeps the proportion and drops the equivalence. Offences are ranked by seriousness, punishments are ranked by severity, and the two scales are matched. That is the just deserts theory in [Retribution and Just Deserts].
Where retribution appears in Indian law
Retribution is rarely named in Indian judgments, and its influence is everywhere in the structure.
Proportionality of sentence to offence. The Sanhita grades punishments by the gravity of the offence, and appellate courts interfere with sentences that are disproportionate.
Only the guilty. The whole apparatus of proof, the presumption of innocence, and Article 20 of the Constitution.
Section 9 of the Bharatiya Nyaya Sanhita 2023. One punishment for an offence made up of parts, and no more than could be awarded for any one of two overlapping definitions. Those are desert limits, not deterrence limits: a deterrent theory would have no reason to cap the total.
The requirement of special reasons for a death sentence, section 393(3) of the Bharatiya Nagarik Suraksha Sanhita 2023, and the rarest of rare doctrine built on it, are attempts to confine the gravest penalty to the cases that deserve it.
The gravity of the offence in section 25(1) of the Bharatiya Nagarik Suraksha Sanhita 2023, which now requires the court to consider gravity in deciding whether sentences run concurrently or consecutively.
A worked example
An offender who has stolen twenty thousand rupees is before a court. The prosecution says that theft from ATMs has become common in the district and that an exemplary sentence would help.
The Retributive Theory
The deterrent answer. A heavy sentence, because the offence is common and the message is needed.
The retributive answer. A sentence proportionate to this theft. That other people are stealing is a fact about them and not about this offender's desert, and to add to his sentence because of what others are doing is to use him as a means.
Where they meet. Both theories permit a sentence within the range the offence deserves, and deterrence may properly influence the choice within that range. What retribution forbids is exceeding it.
That is the mixed theory in miniature, and it is how most sentencing systems actually work.
The criticisms
It cannot say how much. Proportion requires a scale, and the theory does not supply one. Why fourteen years for this and seven for that? Retribution says the graver offence deserves more without saying how much more.
It justifies suffering for no gain. Kant's dissolving society is the reductio. A punishment that helps nobody, deters nobody and reforms nobody is still required, and that is expensive in money and in human terms.
It is criticised as institutionalised vengeance. The reply is the table above, and it is a good reply, but the resemblance is close enough that the objection is always made.
It ignores the offender's circumstances. Two offenders who did the same thing deserve the same, on a strict view, however differently placed they were. Every mitigating circumstance is a departure from pure desert, and modern retributivists deal with this by locating circumstances inside culpability rather than outside desert.
Quick revision
- Retribution justifies punishment by the offence alone. Backward looking, and complete without reference to consequences.
- Kant: punishment must never be inflicted merely as a means to another good; the last murderer must be executed before a dissolving society disperses.
- Hegel: punishment is the right of the criminal, because it treats them as a rational agent who willed a universal principle.
- Not revenge: it is inflicted by the state, only on the guilty, in proportion, without requiring emotion, under rules fixed in advance, and it ends the matter.
- Lex talionis supplies an exact measure and is unworkable for most offences, so modern retributivism keeps proportion and drops equivalence.
- In Indian law it appears as proportionality, as the requirement of guilt, in section 9 of the Bharatiya Nyaya Sanhita 2023, in the special reasons rule and in the gravity requirement in section 25(1) of the Bharatiya Nagarik Suraksha Sanhita 2023.
- Criticisms: no scale, suffering for no gain, resemblance to vengeance, and difficulty accommodating the offender's circumstances.
Test yourself
1. State Kant's version of the retributive theory and the illustration he uses. That judicial punishment can never be administered merely as a means for promoting another good, either for the criminal or for civil society, but must be imposed only because the individual has committed a crime, since a human being may never be treated merely as a means to the purposes of another. His illustration is that if a civil society were to dissolve itself by common agreement, the last murderer in prison ought first to be executed, so that everyone may realise the desert of his deeds, although no consequence whatever can follow from that execution.
The Retributive Theory
2. Distinguish retribution from revenge on four grounds. Retribution is inflicted by the state through a competent authority after proof of guilt, only on the offender, in a measure proportionate to the offence and fixed by rules laid down in advance, and it ends the matter. Revenge is inflicted by the injured party, on whoever they believe responsible, in whatever measure their feeling demands, under no rules, and it provokes counter-vengeance.
3. Why did modern retributivism abandon lex talionis? Because equivalence is unworkable. There is no equivalent penalty for forgery, perjury or insider trading, and inflicting on the offender exactly what they inflicted requires the state to do what it forbids. Modern retributivism keeps the idea of proportion, ranking offences by seriousness and punishments by severity and matching the scales, and drops the idea of exact equivalence.
4. What is the role of retribution in a modern sentencing system? It is chiefly a limiting principle rather than a driving purpose. The forward looking theories explain why the institution of punishment exists; retribution explains why only the guilty may be punished and why no offender may be punished more than the offence deserves, however much a heavier sentence might deter.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.