retributive justice

The retributive justice model is among the most ancient:

  • an eye for an eye, a tooth for a tooth

Its problems have also always been known: though it seems fair on the surface, in a common sense kind of way, the inevitable difficulties of enforcing retributive laws tend to escalate conflicts. Consider that in the process of removing a tooth from the offender, they might fight back and cost an enforcer an eye. Then, for that eye, the offender's eye would be forfeit. And, if someone thought the initial ruling for the first offender to lose a tooth was unfair, then, they would consider those who attacked and cost them a tooth to owe another tooth. So the issues of consensus about fairness, safety and closure are all involved even in the simplest sorts of situations.

Mohandas Gandhi accordingly refuted the notion this way:

  • "an eye for an eye, and soon the whole world is blind."

However, if one looks carefully into even that one saying, there is some of the pre-state society wisdom in it:

First, it sets a limit on retribution, in that, no one is authorized to take a life in return for the loss of any eye or tooth. This is a real problem in tribal society with strong kinship bonds and no real judiciary.

Second, it is at least a fixed and predictable result, and implies closure is possible, if the limits are respected. In societies where final closure is difficult to achieve, vendetta and feuds common, this is a main advantage over a more complex model that keeps fueding groups in close contact through such methods as criminal trials.

Third, it is obvious that it is in some ways a crude form of equity-restorative justice: two people each missing a tooth, or each missing an eye, are equal in competitive situations so they could be said to have had a sort of equity restored. But it is only a sort of animally defined equity: a musician can spare an eye easier than a finger, and a hunter can spare a tooth easier than an eye. So the perspective from which one assesses "equity" matters - a subject-object problem or God's Eye view problem can arise easily from failures to see the real functions of the eye and the tooth. The fact is, all human beings use their teeth and eyes different ways and the value of life is not equal for all of us in all societies. Most restorative justice models fail to really deal with this, though transformative justice models tend to do better.

Accordingly, retributive justice remains the default.

It does not produce outcomes optimal for the society in any functional sense, but, it does quell emotion by assuring the citizens by putting a violent form of "closure" above all other considerations. Such measures as a "mandatory death penalty" or "three strikes you're out" remove flexibility from the judiciary, making it far less independent and more likely to provide fixed responses, not flexible, restorative, or (least likely) transformative ones.

Ancient societies often had less retributive methods that were available especially for the nobility. See the examples of the weregilt and Sanhedrin especially.

Those who believe retributive justice or "punishment works" were long ago refuted by statistical arguments - the belief arises largely due to regresssion towards the mean: the fact that behaviour immediately after a "bad" event will be better, period, just as a statistical matter. Likewise, behaviour immediately after a "good" event will be worse, period, again as a statistical matter. So immediate punishment is perceived as "working" and is credited with the "better performance", while any immediate reward is perceived as "not working" as it rarely or never achieves the level of performance just seen. As always, it is the time horizon of measurement that makes the most important differences in perception of the performance, and the techniques that enhance performance.

Other short-term-focused stances such as "our lifestyle is not negotiable", tend to reinforce retributive justice in a particularly unfortunate and tragic way:
  • if lifestyle is not negotiable, but punishment works, then, the only way to achieve lifestyle change is punishment on a civilization-wide scale

Some see terrorism as arising directly from these views.

This is only one of the serious problems of any retributive model.

While often disciplinary, military or boot camp models are proposed as alternatives to simple retribution, many in the transformative justice movement see these models as being simply a form of social exclusion and punishment in themselves. As Ruth Morris put it:

  • "The idea of a boot camp is totally unimaginative. Most of these people have already experienced difficulties, annihilation of a positive self image and regimentation in their lives. To just give them more of the same is stupid." - Ruth Morris

To Morris, the punishment is the form of discipline itself.

The CBC Ideas series "In Search of Security", 2004, explored the concept specifically of deterrence and who should be trusted to coordinate unified response to a criminal or other emergency situation. It summarized Clifford Shearing's book "The Governance of Security", as concluding that "we have budgets for the police but we don't have budgets for security... making your principal focus the functions that need to be accomplished, then looking wherever for the knowledge and skills...". This is a typical separation of governance from operations but it has specific implications for justice, notably, a lack of uniform deterrence and clear communication of penalties as the retributive model had:

  • ''"You could use the same action, punishment, to respond to both of these objectives (deterrence and response)... It will work if you catch most of the people most of the time and are able to sanction them most of the time... Deterrence, while we kept trying for a long time, hasn't proved to be a particularly good preventative device. So now we have multiple providers of security, prevention has re-emerged... through private security and mass private property..." - Clifford Shearing, interviewed on CBC Ideas

So, in this view, deterrence is more or less abandoned, and to prevent crime is viewed as a more a matter of design of the infrastructural capital than of instructional capital in the society itself. The unified response is emphasized, as in emergency preparedness and first responder theory. The many and varied motives that lead someone to disrupt societies and break their rules are not, in themselves, seen as possible to subject to any unified form of deterrence.

Crime, then, is like any other emergency: it is not subject to any one obvious society-wide means of prevention, or if it is, those measures were long ago taken.

The emphasis of the justice system should be on response, not deterrence, and on ensuring that any systematic causes of crime are dealt with effectively if only to cut costs.

A similar shift in military doctrine can be seen as the deterrence-focused Mutual Assured Destruction doctrine gave way to the Human Security model in the last half of the 20th century, and may still be giving way to the Environmental Security model in which the root causes of scarcity and distributive fairness are addressed.