 Neither retribution theories nor utilitarian theories provide any answers to the any

major questions that are commonly raised with regard to punishment. What are those
questions?
 Theories of punishment go under different names: theory of retribution, theory of
deterrence, theory reformation and theory of prevention and rehabilitation.
Distinction b/w Utilitarian & retributive Theories:
 Theories that uphold the reduction of crime as an aim of criminal law are
referred to as utilitarian, whereas those pertaining to give offenders what they
rightfully deserve are referred to as retributive.
 Deterrence, reform and prevention are included in utilitarian theories.
The Theory of Retribution:
 The basic assumption of the retributive theory is that a crime is morally wrong. The
doctrine of mens rea is also based upon this idea, because it requires a blameworthy
intention.
 Evil from an act can be measured and graded and punishments can be served
considering the gravity of the act.
 Some offences are so minor that they do not need a punishment.
 Punishment is left on the discretion of the judge.
 To kill someone has strong retributions in Islam as Islamic law accords importance to
the blameworthiness of the act.
 For offence of a murder, the Hanafis do not permit the acceptance of kafarah for the
atonement and repentance of the killer goes in vain.
 According to jurists, punishment should be proportioned according to the guilt.
 According to Denning, the ultimate justification of punishment is not that it is
deterrent, but that it is emphatic denunciation by the community of a crime.
 Undeserved Punishment is what when it is imposed despite the fault of the defendant.
English contains a number of offences for ‘strict liability’ for which no fault is
required.
 Necessity of satisfying the public desire for vengeance against the wrongdoer.
 Modern criminologists have considered retributive approach barbarous.
 The moral guilt of a person who attempts a crime and becomes successful is same of a
person who attempts a crime but fails but still he is awarded less punishment because
failure in the commission of the crime is considered as a mitigating factor.
 Treating the offenders equally when they have an equal degree of moral guilt is
considered a fundamental rule of justice.
 Impose the penalty that has been imposed by other judges in similar circumstances.
 Law does not allow anyone to make a scapegoat in order to satisfy the whims of the
public at the moment the judgment is passed.