Retributivist and Utilitarian Theories

Introduction

Retributive justice approach is a logical infliction of sentence warranted on the basis that the particular crime amounts to an inequality in the societal order that needs to be handled through action against the convicted person. Restorative approach of justice is a logical response to crime that lays emphases on cooling down the victims, communities and offenders caused by unlawful behavior. Applying restorative approach beyond the sphere of justice related to criminal, such as in corporate law, bankruptcy law or environmental, this approach is also referred to as transformative integrity. Restorative integrity and justice is on an upward trend that is attempting to attain ceasefire between victims and the offenders, in various forms of nonviolent conflict and mediation resolution. This approach confronts the heart of perceptions commonly experienced in the areas of criminal injustice, ideas such as rehabilitation, deterrence, crime prevention and incapacitation. These ideas are really used in the retributive approach (White, 2011). 

            Retributive approach originates from Norman invasion at a time when feudalism was introduced, and workers had to swear allegiance to his majesty the king. This classified any offence under an offence against the state, and not against individual. Restorative approach is based in communal activities of the current communities, where the victimized individuals and the offenders’ party take an approach of reconciliation privately. The current American attention to restorative approach to justice has its roots back to 1974 – a time when the US legal channels started researching with casualty-criminal reconciliation program (Zaibert, 2006).

            Restorative approach is also termed as communitarian, redemptive or reintegrative justice approach. Although, slight differences are there, all justice approaches aim at attainment of forgiveness, accountability, hope, and justice for all parties, more so to societies which have undergone the impairment expect to benefit from crime reversal. Liberation is an important ingredient, and is better if it is achieved liberation, therefore, this does not imply that this approach strives to attain a confession-based view. This approach which seeks to realize values, rather, it is a faith-based, or religion interventions (White, 2011).

            Retribution approach is a motivation for limits and existence of law. This perspective tries to justify the punishment, by highlighting points as to why a criminal deserves the punishment; this is the core of the morality of law. Retributivism is a presumption of reprimand which requires payback as a motivation for law. Pro-retribution believes that the justice channels exist for a justifiable and moral reason.  All injustices, even where there are no victims, amount to moral injustice-social harm. In other perspectives, crime offends both the moral law, and the justice of the land. According to Moore (1997), retributivism has a grip to a moral justice, where the only law is the one which addresses moral misbehaviors. Given that, the written laws include both explanation of the crime, and the description of the punishment for the crime; it goes without saying that law-based punishment is morally supported. This gives power to the stand of retributivists that the penalty is called for. Not that the criminal deserves the penalty, but the power of law demands the automatic execution of the punishment. Advocators for this approach believe that a punishment is a way to restore self-esteem of the offender.

            People mistake retributivism to vengeance or individualizing law by taking law into a person’s hand, but contrary is true.  The aim of this approach is not to make the victim feel better. The point that holds water here is that the law has to take full course, not regarding forgiveness and reconciliation. Forgiveness, mercy, good faith are not found under retributive approach, they are the components of restorative approach of justice (Kershnar, 2002).

            A relevant matter is the amount of support a casualty expects from the channel of justice. The retributive approach, is aimed at punishing offenders assuming all remorse, or regret from the offender side. Restorative justice is specifically aimed at driving the offender to attain remorse or regret, and this is exactly the summit where the retribution stops and the restorative approach takes over.  Giving casualty first priority or pursuing casualty’s rights seriously demands restorative approach. Retribution approach might only rationalize partial victim support services. To the intense, retributivism justice may support, though reluctantly, casualty reward programs. Restorative mean of justice mainly demands the criminal and casualty to confront each other in a way so as to make sure that the casualty attains some reward or ways of finding comfort. The sole aim of restorative approach is to restore the break in of trust and to find a lasting harmony instead of regret, hurt, or conflict. This approach is also assumed to be a peacemaking conduct. The key characteristics of restorative approach are:

- Justice demands reinstating casualty, criminals, and society which have been harmed by crime.

- Casualty, communities, and offenders should be given a chance to participate actively in the justice process.

- Authority is supposed to restore order, while the society should take the responsibility of restoring and maintaining the state of peace (Moore, 2010).

            As the discussion above has indicated, restorative approach differs significantly from the retributive one. While retributive is an approach that assumes punishment as an accepted moral response to offence, through provision of psychological rewards to the casualty, community, and criminal. The driving force behind this approach is that the only way of attaining justice is that which leads to the punishment of the offender. It is based on the needs of criminals and casualty, but not on that need of fulfilling the demand of the law and that of the society to punish the wrong doer. Casualty is awarded to play an active part in the dispute, and the criminal is led to taking accountability of their acts and to amend the damage they caused by reconciling and refunding any stolen goods.

            The assumption that we are supposed to treat individuals fairly is morally accepted. However, it is not expected that a war criminal lives a free live even after being involved in unspeakable injustices against humanity. The danger is in the tendency to get out of retributive justice to a point where vengeance takes the upper hand. It should be noted that vengeance is a mean of retaliation, to get even with offender. It’s a platform of teaching criminals what it feels like to be mistreated. Revenge is retaliation to crime committed to a victim and it tries to achieve the proportional magnitude of justice. Another disadvantage of revenge as a mean of administering justice is that any punishment based on revenge does not satisfy proportionality or principle of consistency. Revenge leads to unfair punishments administration in the sense that it varies regarding to the degrees of provocation. In this case there are crimes that may not necessarily provoke anger, thus it may not call for punishment in form of revenge, while actions that may raise a high magnitude of anger may call for unjustified punishment. In other words, there is a lack of an appropriate means of measuring the right punishment for a given offence (Brudner, 2009).

            An example is bitterness from a past injustice may lead a society, which is rather diplomatic, to engage in slaughtering their neighbors affiliated to the community that was involved in the past atrocities. Demoralizing inter-societies injustice in form of massacre may take place. Revenge rarely results to relief that is sought by casualty.  The casualty only fall a victim of hatred. Vengeance leads its victim to further harm emotionally, making his condition even worse than before. It should be noted that vengeance cannot fill the sphere of justice or penalty (Moore, 2010).