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Chapter II Retribution: A theory of Justice 2.

1 Introduction This chapter deals with the jurisprudential aspect of death penalty and tries to explain its origins and application and the aims it tries to achieve with refer ence to society. Moreover, this chapter deals in details with the essential elem ents and components of ‘retributive justice’ and its importance in maintaining law a nd order within the society. Not only this but also the chapter tries to explain the importance of death penalty as an act of retributive justice. 2.2 Retribution as a means of justice Retribution has been defined by John Rawls as, ‘...retributive view is that punish ment is justified on the grounds that wrongdoing merits punishment. It is morall y justified that a person who does wrong should suffer in proportion to his guil t, and the severity of the punishment depends on the depravity of his act. The s tate of affairs that a wrongdoer suffers for his wrongdoing is morally better th an where he does not, and it is better irrespective any of the consequences of p unishing him.’ Thus, it is fairly clear from the above definition by Rawls’ that those who see pu nishment as something which in itself carries some value speak of justice in pun ishing the wrongdoer for his offence. Another, conclusion from the above definition can be made that the purpose of pu nishment is to gratify the desire for vengeance. Moreover, punishment gratifies the feeling of closure experienced by individuals by the feeling that the offen der has been brought to justice. On the further analysis of Rawls’ definition one finds that the retributive theory of justice does not see the offence as having been committed only against the i ndividual who was directly affected, rather it sees it as an affront to the enti re society. Therefore, the purpose of punishment according to this theory of ju stice is to avenge the wrong done by the offender to the entire society. 2.3 Origin and development of the retributive theory of justice The concept of retribution has always existed within the human society and can b e said to be one of the earliest methods of administration of justice known to m ankind. In primitive Society, the person who was wronged was allowed to have his revenge against the wrongdoer. One of the first and the primary principles on which the theory of retributive j ustice is based is founded in The Bible which states at Deuteronomy 21:19, ‘ And y our eye should not feel sorry: soul will be for soul, eye for eye, tooth for too th, hand for hand, foot for foot’ and a very similar precept is also mentioned in Quran. The verses preceding Deuteronomy 21:19 talk about the punishment to be m eted out to a ‘false witness’, where it holds that, ‘You must also do to him just as h e had schemed to do to his brother, and you must clear away what is bad from you r midst. So those who remain will hear and be afraid, and they will never again do anything bad like this in your midst.’ Thus, it is pretty evident that the Bib le talked about the retribution to be carried in relation to society, to clear o ut the negative elements in a society. Hence, the Biblical or Mosaic law was bas ed on the principle of equivalence and balance. The principle of deterrence was also to be found in this as the Israelites, the people for whom the Mosaic law was given, were required to be extraordinarily careful to avoid doing injury to another. During the Greek era as well the concept of retributive justice was favoured by the most influential philosopher of that time, Plato, who was of the view that, ‘J ustice gives benefits and injuries to friends and enemies.’ And ‘ if justice is the good health of the soul as injustice is its shame and disease, chastisement is their remedy. If a man is happy when he lives in order, than when he is out of it, it is of importance to him to enter it again and he enters it through chast isement. Every culpa is ugly, it is contrary to justice and order; the expiation is beautiful because all that is beautiful and to suffer for justice is also be

is frequently called a sanction or an enforc ement of the obedience.’ In present context the theory of retributive justice is well expounded by Immanu el Kant. whether for the offend er himself or for society.5 The development of death as a penalty In the ancient Hindu law the concept of punishment was supposed to expiate a per son from his wrongdoings. ‘ Judicial punishment c an never serve merely as a means to further another good. Therefore. eye for a n eye. jinayat and these were to be punished by Qisas and diya. as a deterrent. under which punishment should be in kind. According to the retribution theorists are of the opinion that the more serious crimes should receive more severe penalties. time and plac e. ‘The evil which will probably be incurred in case a command be disobe yed or in case in a duty be broken. such as the motive and nature of offence. During the medieval period. The law also laid down the elements that must be taken into consideration before awarding of punishment. the Roman Law. such a s whether the punishment of an offence be ‘comparative’ or ‘absolute’ and whether an agr eeable formula for ascertaining the punishment can actually be devised or not. according to the proportionality principle.’ Kant lays emph asis upon the importance of retribution as a form of justice by giving the examp le of an isolated society. and b y the fact whether the offence is repeated or not. In Islamic law two kinds of cri mes and punishments exist. an ‘island society’. as he proposed the consequence of any violation of the l aw laid down by the politically superior to be met with ‘Sanction’ which he himself defined as. learning and monetary position of the offender. and for the reformation of the offender.’ Such principle of justice was also mentioned in lex talionis. The proponents of the retributive theory of justice believe that any deviation f rom the punishment as retribution would be morally wrong as it would be equivale nt to treating punishment as a means to an end rather than the end itself. which when agrees to dissolve must e xecute the last prisoner in its prison so that ‘bloodguilt does not cling’ on the so ciety. whi ch is ‘ law of retaliation. The main purpose of punishments was to meet the urge of the person who suffered. who was of the view that. due to the conquest of much of India by the Mughals.4 Essential components of the theory of Retributive Justice The whole idea of retribution as a means to justice is based on two core princip les of justification of punishment and the proportionality of it. the German philosopher. This brings us to the principle of proportionali ty of punishment. such as punishment for illegal sexual intercourse for persons who ha d ever been married is stoning. The Arthashastra lays down death penalty for murder. For the Hadd crimes the punishment provided is death for cert ain crimes. was also a proponent of the retri butive form of justice. becoming as pure as those who performed good deeds. strength. namely Hadd. the retributive theory of justice sees every punishment justified acc ording to the gravity of crime. Another debate is about the exculpatory factors. The English legal philosopher and the most important jurist of the Analytical Po sitivist School of Jurisprudence. age. This particular principle has certain legal controversies attached to it.. a tooth for a tooth. the severity of the offen ce committed should be the key ingredient in deciding upon the quantum of punish ment and only that much punishment should be permitted by law.. The law of punishment is imperative. conduct. even if the death of the ot her person resulted from quarrel or duel. Islamic law became the primary law of the land. but must be inflicted on him for the sole reason th at he has committed a crime. as is stated in Manu that men who are guilty of crimes and have been punished by the King go to heaven. and so on. for revenge. such as can a person be awarded lesser punishment because the experiences of his childhood explain his present behaviour. Similarly under the Qisas crimes the blood aveng .autiful. John Austin.’ 2.the evil to be incurred by disobedience is frequently s tyled a punishment. 2.

ers of a victim of murder could ask the judge that the perpetrator be condemned to death. .