Retributivism

The concept is found in most world cultures and in many ancient texts. The presence of punitive justice in ancient Jewish culture is evidenced by its inclusion in the Law of Moses ^[1] . Very similar formulations are found in the Hammurabi Code. In other words, “ lex talionis ” (an eye for ko) prevailed in ancient law, but the judgment of whether the punishment is appropriately harsh can vary greatly depending on the culture and individuals.

In the XIX century, the German philosopher Immanuel Kant revealed in detail the main provisions of retributivism in his works "Critique of Practical Reason" and "Fundamentals of the Metaphysics of Morality . "

Retributivism is one of the two most common political and ethical motives for formal punishment along with consequentialism . Both of these concepts were formulated and finalized by philosophers and legislators and are successfully applied by law enforcement agencies, but can be considered more descriptive rather than explanatory. Sociologists note that although attempts to justify themselves are made in terms of these principles, this does not fully explain why violent punitive actions occur.

Retributivism is a theory of retaliation ^[2] . It covers all theories that justify punishment because the offender deserves it. The main point of retributivism is the thesis that the offender deserves the punishment simply because he committed a crime and thereby expressed his will to be punished ^[3] - the one who commits the crime deserves to be treated accordingly.

One of the founders of the theory of retrobutivism can be considered I. Kant. For example, in one of his works Critique of Practical Reason, he wrote:

“If someone who enjoys pestering and annoying peace-loving citizens ultimately gets fair, good beating, it’s evil, of course, but everyone approves of it and considers it good on its own, even if there are no results for it”

- Kant, I. Criticism of practical reason // Eksmo-press. - 2015. - 224s

Thus, punishing people can increase the amount of unhappiness in the world, but according to Kant, this is normal, because the suffering is experienced by the criminal, who, in the end, deserves them.

According to Kant, there is only one principle in retributivism - this is the principle of equality or retaliation ( “Eye for an eye, tooth for a tooth” ). If a person committed a crime, then he caused suffering to another and therefore made a will that he was ready to suffer in this way.

“What, however, is the method and the degree of punishment that public justice makes for itself as a principle and a measure? The only principle is the principle of equality (in the position of the arrow on the scales of justice), according to which the court is inclined in favor of one side no more than in favor of the other. So, the evil that you inflict on someone else in the people who do not deserve it, you inflict on yourself ... Only the right of retribution, if only you understand it as being carried out within the framework of justice (and not in your private judgment), can accurately determine the quality and measure of punishment; all other rights are vague and cannot, due to the interference of other considerations, conclude in accordance with a sentence of pure and strict justice ”

- Kant I. Fundamentals of the metaphysics of morality. M., 1999. - p. 713

Consequently, we can conclude that the concepts of “well-deserved retribution” and “justice” play a central role in the political and legal theory of I. Kant. It excludes the possibility of justifying the punishment of the innocent, a provision inherent in other theories of punishment (for example, consequentialism).

Retributivism answers three questions: 1) what behavior should be punished; 2) how tough; 3) which justifies the possibility of applying punishment ^[4] .

According to the Stanford Encyclopedia of Philosophy , punitive justice is based on three principles:

1. "Those who commit certain types of wrongful acts, paradigmatically serious crimes, morally deserve a proportionate punishment." ^[5] .
2. This is “inherently morally good — good without reference to any other issues that may arise in the process — if some legal punisher imposes the punishment they deserve.” ^[five]
3. “It is morally unacceptable to deliberately punish the innocent or to impose disproportionately large penalties on the perpetrator.” ^[five]

Punitive justice comes in two different forms. The classic definition embraces the idea that the amount of punishment should be proportional to the amount of harm caused by the crime. A later version, supported by the philosopher Michael Davis , argues that the amount of punishment should be proportionate to the amount of unfair advantage received by the offender.

Against retributivism was one of the founders of utilitarianism J. Bentham . Retentivism, according to Bentham, is completely unsatisfactory, since it promotes "bringing suffering" on people, without any compensation in the form of an increase in the amount of happiness ^[6] . Retributivism forces us to increase rather than reduce the amount of suffering in the world, and its supporters openly acknowledge this.

The basic principle of retributivism - the right to equal retribution (lex talionis) has great merit: it gives a clear answer to the question of what kind of punishment the offender deserves. However, there are four known problems associated with this principle.

1. the right of equal retribution requires the state to commit heinous acts in response to vile crimes. Do we want to contain a “state rapist”?
2. this principle does not explain how to punish certain crimes, for example, abduction of children, in the case when the offender himself is childless.
3. for the same crime committed by accident, by negligence or intentionally, the punishment will be the same.
4. some crimes will be punished too softly (failed crimes, crimes without victims, tax evasion), that is, those crimes where there is no damage or it is of little significance for each individual citizen ^[7] .

In addition, the stumbling block of any retributivist theory is the explanation of the idea of ​​well-deserved retribution. Contemporary objections to the point of view presented above have been highlighted in the publications of Russ Schafer-Landau , in which he sharply criticizes retributivism. The researcher claims that retributivism is not able to formulate a holistic theory of punishment. Such a theory should include:

• the general justification of the criminal punishment, that is, why it is the correct reaction of society to crimes, and not, for example, compensation for damage, exile or psychotherapy for criminals;
• justification of the severity of punishments;
• the solution to the problem of responsibility, that is, what types of behavior should be punished by criminal law ^[8] .

According to this author, retributivism is not able to give a satisfactory answer to any of these questions.

• Artemenkov M.N. Basic principles of the theory of punishment in the works of I. Kant // History of State and Law. 2011.No 8.P. 18-20.
• Maltsev G.V. Justice of retribution and retribution: TOC o "1-5" retributive approach // Sociology of power. 2012. No2.
• Kant I. The foundation of the metaphysics of morals // Kant I. Lectures on ethics. M., 2000.
• Kant I. Criticism of practical reason / trans. N. M. Sokolova // Kant I. Works: in 8 vol. T. 4. M., 1994.
• Moiseev S.V. Philosophy of Law. Novosibirsk, 2004.
• Aronson, D.O. Justification of legal punishment in Kant's philosophy // Kant collection. 2013. No3.
• Kulikov M.V. Retributivism and consequentialism in theories of legal punishment // Bulletin of the Kuzbass Institute. 2011. No4 (7). S.74-77
• Honderich, T. Punishment: The Supposed Justifications Revisited (Revised ed.). London, UK; Ann Arbor, MI: Pluto Press. - 2006.