Retributive Theory Research Articles

Beyond penal metaphysics: the weakening of the philosophical foundations of punishment

The present work seeks to prove the hypothesis that the history of German penal dogmatics draws a path of gradual weakening of the metaphysical foundations of punishment. Through a bibliography review, the path will begin with Kant, Hegel and the origin of retributive theories. Afterwards, the clash between the Classical School of German Criminal Law, headed by Karl Binding, and the Modern School, led by Franz von Lizst, will be discussed. Edmund Mezger's causalism and Hans Welzel's finalism will be observed, as well as the role of punishment for both authors. Claus Roxin's teleological functionalism, with his proposal to protect legal goods, and Günther Jakobs' systemic functionalism, with the idea of general positive prevention, will be analyzed below. From there we will move on to the critical theories of imputation of Winfried Hassemer and Klaus Günther and, finally, to the arrival of penal abolitionism in Germany, by the hands of Sebastian Scheerer. Finally, we will close by waving towards a weak criminal law, with a post-metaphysical character inspired in Gianni Vattimo’s Philosophy, which is capable of articulating in the half-light in favor of its own reduction, with a view to abolition.

Police Brutality and Endsars Protests in Akwa Ibom State, Nigeria

This study seeks to unravel the atrocities of the Nigeria Police Force on innocent Nigerians which led to a nationwide violent protest known as EndSARS. Survey research method was employed for this study and respondents were selected using multiple sampling techniques which include purposive, snowball and simple random sampling techniques. Primary data were collected through interview and participant observation, while secondary data were collected from extant literature. The study applied the Retributive Theory of Justice in order to explain the concept and empirical studies reviewed from other studies for conclusion and recommendations. The findings from the study showed that innocent Nigerians were killed and maimed by men of the Nigeria Police Force at any slightest provocation, without being punished by the law. The study recommends (amongst others) that the government should always ensure that erring police officers are punished to serve as a deterrent in order to reduce the menace of police brutality in Akwa Ibom State and Nigeria in general.

Exploring The Qur’anic Narrative’s Punishment of Lūṭ’s Tribe: A Comparative Study of the Similarities Between Their Sins and Suffering

This article explores the complex relationship between the wicked actions of Lūṭ’s community, as described in the Qur’an, and the particular type of retribution, known as ‘adhāb, that they experienced. The study used a qualitative research approach to thoroughly examine the Qur’ānic passages, aiming to reveal subtle connections between crimes and divine punishment. This research enhances comprehension of the concept of divine justice as depicted in the Qur’an by utilizing the theoretical framework of the theory of retribution, provided in a thematical explanation. The inquiry delves into the causality of the ‘adhāb as an effect of human transgressions, and in the study of Lūṭ’s narrative, there are various torments bestowed. The findings not only reveal historical and moral lessons embedded in the account of Lūṭ’s tribe but also offer a methodological framework for examining comparable narratives in the Qur’ān. This study seeks to prompt debates on the deep correlations between human behavior and divine repercussions, enhancing understanding of Islamic scriptures’ ethical and spiritual lessons.

A Comparative Analysis Of Prisoner’s Disenfranchisement In India And International Jurisdictions: A Critical Study

The fundamental pillar of a flourishing democracy is commonly recognized by way of the right to vote. It is a system by which individuals select representatives to advocate for their best interests. In this study, the authors examine the current global legal provisions of prisoners' voting rights within the framework of India. Suffrage was one of the major political issues that drove a revolt. Through laws, numerous Countries worldwide, such as the USA, UK, and India, have restricted the voting rights of inmates and former felons to varying degrees. Many of these Countries are among the largest democracies globally. The right to vote is a powerful symbol of societal inclusion, with its denial of the right to vote often being criticized. The importance of suffrage forms the basis of an individual's dignity towards their Country. There is an ongoing necessity to study and comprehend disenfranchisement concerning rehabilitative approaches to punishment, as the formerly leading "retributive theory" has failed to demonstrate its relevance in the modern era. A Comprehensive understanding of the concept of disenfranchisement is required, as there is no established principle governing the limitations of universal suffrage due to criminal charges. In light of international human rights jurisprudence, the authors aim to investigate the evolving dynamics of disenfranchisement.

Is the Rothbardian Theory of Punishment Retributive?

Murray Rothbard claims that it is “evident that our theory of proportional punishment—that people may be punished by losing their rights to the extent that they have invaded the rights of others—is frankly a retributive theory of punishment, a ‘tooth (or two teeth) for a tooth’ theory.” The present paper argues that it is not. The role that Rothbard assigns for victims in determining punishment justifies classifying his theory of punishment as corrective rather than retributive, for vesting victims with rights over punishment defeats the retributive justice requirement that criminals are punished solely because they deserve it and in accordance with their respective deserts. Instead of giving offenders what they objectively deserve, the Rothbardian theory of punishment allows victims to seek compensation in various forms, including revenge.

Criminal Disenfranchisement in India: An International Humanitarian Approach

The basic cornerstone of a flourishing democracy is generally recognized by the right to vote. It is a system through which people choose representatives of their best interests. In this research paper, the author examines the present international legal status of prisoners' voting rights in the context of India. Suffrage was among the significant political issues that sparked a rebellion. Through legislation, several nations throughout the world, including the US, UK, and India, have restricted the ability of inmates and ex-felons to vote at different levels. Several of these nations constitute the largest democracies in the world, voting rights are a strong symbol of inclusion in society, and their denial is frequently criticized. The significance of suffrage is the foundation for an individual’s dignity toward their nation. There is a persistent need to research and comprehend disenfranchisement in connection to rehabilitative approaches to punishments, formerly the "retributive theory” has failed to demonstrate its relevance. A little attempt to do this would need a thorough understanding of the concept of disenfranchisement because there is no set principle governing the restrictions of universal suffrage due to criminal charges. In light of international human rights jurisprudence, the author seeks to explore the evolving dynamics of disenfranchisement.

How victims matter: Rethinking the significance of the victim in criminal theory

Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim-centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.

PARADIGM OF PUNISHMENT AMOUNT OF STATE FINANCIAL LOSSES IN CORRUPTION CRIMES: A RESTORATIVE JUSTICE APPROACH

According to Jeremy Bentham, punishment should not be employed or inflicted if it is unjustified, unnecessary, unprofitable, or ineffectual. In the writing of this essay, this idea—which is connected to the paradigm of criminalizing state financial losses from corruption activities under $50 million by employing a restorative justice approach—will be explored in greater detail. A restorative justice method is more readily applicable to criminal acts of corruption with relatively small amounts of state losses, especially in light of the enactment of Law No. 1 of 2023 about the Criminal Code (New Criminal Code). This article employs normative legal research methodologies, including statutory, conceptual, and case approaches. The study's findings indicate that there has been a movement in the sentencing paradigm, formerly in the Wetboek van Strafrecht (Old Criminal Code), which was more geared towards the theory of retribution and relative theory, towards a more restorative character. Punishment is more concentrated in this restorative approach, with the goal of recouping state financial losses. As a result, the core principle that has been integrated into the New Criminal Code about the goal of punishment can be a place for law enforcers to design a model or plan for settling corruption offenses that number less than 50 million using a restorative justice approach.

Schuld ohne Vergeltung

Based on Claus Roxin’s reflections on the concept of culpability in Criminal Law and its dissociation from the theory of retribution, this study aims to outline considerations for the discussion on the recognition of culpability without punishment. After showing how retributivists and social defence theorists arrive at a dilemma regarding the need to impose deserved punishment, the solution developed by Roxin, which allows for the refusal of punishment even when culpability is established, is presented: the state action of imposing punishment must be justified, on the one hand, not in a retributive way, but by preventive purposes, and, on the other hand, limited – and not grounded – by the principle of culpability (which does not have a retributive character; hence the unilateral view of the principle of culpability). Finally, the political-criminal and dogmatic consequences of Roxin’s position are examined, and the reception of the thesis as well as the criticism addressed against it are analysed

STATUS OF REFORMATIVE PUNISHMENTS IN INDIA

Of all parts of the law, the branch that intently concern or contacts an individual in his everyday existence is criminal law. Wrongdoing could likewise be characterized as the commission of acts precluded by corrective law and hoodlums as people who carry out such demonstrations. The penalization framework is an indispensable piece of law enforcement and for keeping up with Government backed retirement. The advancement of progress has come about through the change in the theory, strategy, and intention of penalization. Discipline might be utilized as an approach to decreasing the occurrence of criminal ways of behaving either by hindering the expected guilty parties or by impairing and keeping them from rehashing the offense or by improving them into law-withstanding residents. In this manner, speculations of discipline contain strategies concerning the treatment of wrongdoing and hoodlums. They're ordered into four sorts. Every one of these aren't correspondingly elite and every one of them assumes a vital part in dealing with possible wrongdoers. The hypotheses of discipline are Retributive theory, Deterrent theory, Preventive theory, and Reformative theory. This review is in regard to reformative theory and dissecting the status in India.

열왕기하 23:29-30과 역대하 35:20-27에 나타난 요시야의 죽음 보도에 대한 언어적, 고고학적 고찰

Most recent studies of 2 Kings 22-23 and 2 Chronicles 34-35 have focused on Josiah’s religious reform in connection with the discovery of the book of the law and Josiah’s restoration of temple services. Although many of the insights from these studies are indispensable to understanding Josiah’s achievements, little consideration has been relatively paid to the reading of Josiah’s death in 2 Kings 23:29-30 and 2 Chronicles 35:20-27. Therefore, I would like to first argue that the final text of 2 Kings 23:29-30 itself contains both possibilities. The situation described in 2 Kings 23:29-30 can be a battle or a meeting. The author of Chronicles reports Necho’s negotiation and the death of Josiah specifically. Although 2 Kings 23:29b reveals that Josiah went to meet with Necho, Necho meticulously eliminates Josiah to achieve his political purpose.BR The report of Josiah’s death described in 2 Chronicles 35:20-27 introduces a much more detailed view of Necho’s international situation than in Kings 23:29-30. This can be deduced from the phrase ‘my house of war’. It is likely that ‘my house of war’ is Riblah, which is strategically located to station Egyptian troops and to dominate the region beyond the river. The author of Chronicles uses the words of Necho theologically to justify Josiah’s sudden death according to the theory of personal retribution. Because Josiah did not listen to Necho’s words that came out of God’s mouth, he died as the result. Josiah tried to stop Necho, but it was beyond his ability to change the great course of history at a time when the international situation was rapidly changing. Necho rules the area across the river instead of Assyria for a certain period.

Legal Actions of Terrorism Case in Central Sulawesi

This study focused on the legal action of terrorism cases in Poso, Central Sulawesi. The focus of the analysis is to accentuate the contents of the legislation related to the legal handling of terrorism cases in Central Sulawesi. Thus, the study was carried out through statute, comparative law and conceptual approach, as well as using qualitative data analysis method. Data were processed by first describing all the legal materials that had been collected through inventory, identification, classification and systematization according to the problems in this study. Material reconstruction was next, including rearranging legal materials sequentially and logically. The last step was analyzing legal materials systematically based on the sequence of problems. National and global scale terrorism groups have well understood the consequences and legal actions of terror acts. The maximum, multiple layers of punishment have been stated in Law No. 15 of 2003 concerning the Eradication of Criminal Acts of Terrorism as an effort by the Indonesian government to suppress the movement of terrorism groups. The legal action process, especially in the Santoso’ Group, is based on Law no. 15 of 2003 with a sentence of 6 to 15 years in prison and a 6 (six) months subsidiary confinement with reference to the Theory of Retribution and Prevention.

IMPLEMENTATION OF CHEMICAL CASTRATION PUNISHMENT FOR SEXUAL VIOLENCE AGAINST CHILDREN PERPETRATOR

The purpose of this research is to perform a legal evaluation of the implementation of Government Regulation No. 70 of 2020 on chemical castration punishment for offenders of sexual assault against children. The normative juridical technique was employed in the creation of this publication, which is a study centered on evaluating the rules or norms found in positive law. According to the research findings, the implementation of this regulation is intended to provide justice for victims, suppress the growth rate of cases, and provide a deterrent effect for perpetrators; these reasons are associated with criminal law theories such as retributive theory, deterrence theory, rehabilitation theory, and resocialization theory. Human Rights Law considers this penalty to be a breach of human rights, as outlined in the Universal Declaration of Human Rights and Human Rights Law No. 39 of 1999. Denmark, Sweden, Finland, Norway, Poland, the US state of California, Australia, New Zealand, Russia, South Korea, Israel, Estonia, and Moldova are some of the countries that have implemented this penalty. Countries that have implemented this penalty have two basic goals: first, to apply this punishment as a national punishment, and second, to apply this punishment voluntarily from the perpetrator.

How victims matter: Rethinking the significance of the victim in criminal theory

Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim-centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.

Ineficiența soluției lui Rawls din Two concepts of rules în contextul judiciar românesc

This paper aims to keep open the discussion on the need to formulate a theory that sets guidelines for the fair exercise of the discretion of judges applicable to the individualization of sentences. To achieve this goal, the essence of John Rawls's work, Two concepts of rules, is presented, in which the author briefly presents the criticisms of the justification of punishment based on utilitarian theories, formulated by the proponents of retributive theories, especially on the issue of punishing innocent people, then offers a solution to solve them. Its solution, formulated in such a way as to become generally applicable, is analyzed in the Romanian judicial context by reference to a hypothetical case, aiming to demonstrate that Rawls' approach, although legitimate, is insufficient and the problems of an utilitarian justification of punishment remain valid at least in part.

The Importance of Unfair Intentions and Outcome Inequality for Punishment by Third Parties and Victims

Abstract. Retributive theories predominantly focus on third party’s motives for punishment, which are rather affected by the offender’s malicious intentions than the actual outcome of the offense. However, victims experience an offense from a different perspective. The value/status approach argues that an offense has two facets that produce different threats: the intentional violation of values and status imbalance between offender and victims. We suggested that third parties and victims punish unfair intentions, whereas victims also punish because of the outcome inequality. In the present study, we orthogonally crossed the factors offender’s intention with the actual outcome and perspective of punisher (third-party versus victim). Results show that victims punish harsher than third parties. However, there are no qualitative differences of third-party punishment and punishment by victims. Rather, both punish malicious intentions and outcome inequality. We discuss how the findings relate to retributivism and other psychological theories of punishment.

Pena e direito penal em Kant: nove teses

In the traditional view, Kant, along with Hegel, is considered a prominent representative of retributivism. With this, the verdict of the scientific unsustainability of the retributive theory hits him, as well as other criticisms concerning his theory of criminal law. However, a close reading of his theory of law offers a much more differentiated picture. Kant’s theory of punishment is of timeless relevance and anticipates in part modern concepts such as punishment and blame. In order to understand it, one cannot choose just a few statements, as is usual, but rather, one needs to be aware of the “whole” doctrine of Law. In this paper, the outline of Kant’s penal theory will be presented in nine theses, confirmed with the relevant text passages.

Citizens’ Perceptions on the Role of Court Sentencing in Crime Control: A Survey of Mthatha High Court Juridical Area in South Africa

For over a century, the role of court sentencing on crime deterrence has generated significant debate. In this study, we explored the citizens’ perceptions on the role of court sentencing in South Africa’s Mthatha area. The findings are looked in the context of the broad theories of punishment namely: retributive theory, deterrence theory, preventive theory, reformative theory and compensation theory. A total of purposefully sampled 90 respondents were invited to participate in this study through closed-ended questionnaires. The univariate perception results of the study reveal that reformation of the offender, protection of the offender from being harmed by the victim in retaliation, and ensuring that the victims get justice are the most significant roles of court sentencing. Collectively, the reality that severe sentence scares potential criminals not to commit crime stands out and is the most correlated role of court sentencing. Court sentencing was also viewed to be having two pronged preventive effect on criminal activities. First, the criminal is incapacitated from engaging in criminal activities during the time of imprisonment; and second, the offender is removed from the environmental factors that led to offending. As part of the conclusion, the study recommends sentencing policies that mainly support reformation of offenders.

Strafe als Vergeltung. Plädoyer für einen hermeneutischen Retributivismus

Retributivism is usually taken to be a theory of the justification of punishment. In this contribution, I develop an alternative understanding of retributivism. Rather than as a theory of the justification of punishment, I propose to regard it as a hermeneutic theory, i.e.a theory about how we understand (some) punishments. I start with an explanation of what "hermeneutical retributivism" is (1). In what follows, I examine the ramifications of this view (2). It leads to a different assessment of the relation between retributive theories and prevention theories (2.1) and of the relation between punishments and non-punitive mea- sures such as preventive custody (2.2). It also leads to a reconceptualisation of the problem of the justification of punishments (2.3). Some concluding remarks summarize the arguments in favor of hermeneutical retributivism (3).

Retributivism and the (Lack of) Justification of Proportionality

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment (or at least to proportionately-determined upper punishment constraints). In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked.