On Retributivism of Punishment

• Main Authors: Jen-Chieh Cheng, 鄭人傑
• Other Authors: 林東茂
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/ywe79b

碩士 === 東吳大學 === 法律學系 === 96 === The theories of punishment seek to understand why and how we punish. Punishment is often discussed in terms of two concepts: the general justifying aim of punishment (why we punish) and the principle of distribution (how we punish). In history, two of the most often used justifications of punishment are utilitarianism and retributivism. For utilitarians, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributionists, punishment is backward-looking, and strictly for punishing crimes according to their severity. Retributivism covers all theories that justify punishment because the offender deserves it. This is interpreted in two ways, either: a person must be punished because they deserves it (desert if a sufficient reason for punishment), or a person must not be punished unless they deserves it (desert is a necessary but not sufficient necessary condition of punishment). Retributive theories usually put forward that desert is a sufficient reason for punishment. In the 19th century, philosopher Immanuel Kant wrote in The Metaphysical Elements of Justice of retribution as a legal principle: "Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime." Immanuel Kant regards punishment as a matter of justice. He states that if the guilty are not punished, justice is not done. Kant thought that murder required the death penalty in order to respect the criminal as a rational and responsible moral agent - life imprisonment would deprive the criminal of the autonomy which is part of his heritage as a person. In ethics and law, "Let the punishment fit the crime" is the principle that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportional to the severity of the infraction. The concept is common to most cultures throughout the world. Depending on the retributivist, the crime's level of severity might be determined by the amount of harm, unfair advantage or moral imbalance the crime caused. As a result, retributivism should be the most convicing theory of punishment.