RETRIBUTION

Punishment

Deriving from the notions of retribute (to give back or return) or to receive in recompense and the Christian sense of deserved, adequate or fit, the term is now used exclusively to refer to punishment.

Retribution is punishment deserved because of an offence and which fits the severity of the offence.

Punishment is justified because it makes the offender give up money, personal freedom or comfort that is equivalent to the harm or loss done to others.

Retribution must be distinguished from revenge and retaliation.

Retribution and Revenge - NEIL VIDMAR, Duke University - School of Law
HANDBOOK OF JUSTICE RESEARCH IN LAW, Joseph Sanders and V. Lee Hamilton, eds. 
Abstract: Retribution and revenge, two highly related concepts, are arguably the oldest, most basic and most pervasive justice reactions associated with human social life. While scholarship about retribution and revenge has tended to focus on criminal justice, empirical evidence indicates that retribution is important in other matters related to law. For example, medical malpractice, discrimination, and a panoply of civil lawsuits can be primarily fueled by a desire for retribution. Retributive motives can appear at the core of intractable business disputes and other commercial disagreements. In this article, Professor Vidmar develops a conceptual framework to study retribution as a psychological and social phenomenon. He explores a number of conceptual issues, including how a social science approach differs from legal and philosophical approaches. His discussion explores the sociological and psychological functions that punishment serves. Separate sections of the article discuss the cognitive dynamics of retribution and its emotional/behavioral aspects as well. The article raises important questions about retribution. Are reactions different if the justice is dispensed by the victim, by neutral authorities, or by "acts of fate" (or God)? What are the consequences when nothing happens to the perpetrator? How does excessive punishment of the offender or remorse affect retributive reactions? The author's insight raises important implications for legal and other settings in which punishment is administered. - papers.ssrn.com/sol3/papers.cfm?abstract_id=224754

Just Say No to Retribution - EDWARD L. RUBIN, Vanderbilt University - School of Law 
Abstract: Retribution has become increasingly popular, among both legislators and scholars, as a rationale for punishment. The proposed revision of the Model Criminal Code adopts this newly fashionable standard and abandons its previous commitment to rehabilitation. The concept of retribution, however, is too vague to serve as an effective principle of punishment. It is sometimes defined as a requirement that the criminal be "paid back" for the harm he inflicted, but this is a virtually empty metaphor, since prison time has very little to do with repayment. A second definition of retribution involves desert, but the term is both over- and under-inclusive with respect to criminal punishment. 
Retribution does have a core meaning, however; it inevitably involves the idea of morally condemning the offender. The difficulty is that moral condemnation is entirely inconsistent with the premises of the modern administrative state. Modern governments are supposed to be instrumental - we want them to meet our needs, not to generate their own moral systems. It might be argued that a retributive standard responds to the people's morality, and more specifically to their anger at the criminal. But modern government is supposed to serve people's needs, not their passions, and our own Constitution is based on this exact ethos. In addition, retributive discourse is likely to exacerbate one of the most serious problems in American criminal justice, which is the over-use of imprisonment, particularly for non-violent offenders. 
The principles of punishment that should be adopted in place of retribution are rehabilitation and proportionality. Proportionality involves a relative ranking of crimes and punishments, so that the most severe punishments are imposed for the most serious crimes, and milder ones are used for less serious crimes. It would forbid the two California sentences that the Supreme Court just upheld against an Eighth Amendment challenge, where a person who stole $399 worth of golf clubs, and another who stole $150 worth of videotapes, received sentences of 25 years to life. Retributivists often adopt proportionality as their own means for establishing a punishment scale, but this only illustrates the emptiness of retribution as a concept. If retribution means anything, it is that we have some fixed idea about the amount of punishment a particular criminal deserves or should be paid back with, not that punishments should be determined by their relationship to other punishments. In fact, proportionality is an independent principle. While it is inconsistent with the concept of retribution, it serves as a complementary principle to rehabilitation. - papers.ssrn.com/sol3/papers.cfm?abstract_id=413660

Retribution, Crime Reduction and the Justification of Punishment 
David Wood, Law Faculty, University of Melbourne 
The ‘dualist project’ in the philosophy of punishment is to show how retributivist and reductivist (utilitarian) considerations can be combined to provide an adequate justification of punishment. Three types of dualist theories can be distinguished—‘split-level’, ‘integrated’ and ‘mere conjunction’. Split-level theories (e.g. Hart, Rawls) must be rejected, as they relegate retributivist considerations to a lesser role. An attempted integrated theory is put forward, appealing to the reductivist means of deterrence. However, it cannot explain how the two types of considerations, retributivist and reductivist, are to be genuinely integrated as opposed to merely conjoined. An attempt to find integration at the deeper level of political philosophy is then examined, in the form of Lacey's communitarian theory of punishment. In the end, mere conjunction dualism must be accepted by default. This conclusion points to a deep-lying schizophrenia in our substantive criminal law. Although developing this theme is beyond its scope, the paper ends by saying a little on how a mere conjunction dualist theory of punishment leads on to a similar theory of criminalization. - ojls.oxfordjournals.org/cgi/content/abstract/22/2/301

Chris Yeomans, "Hegel on Retribution and Punishment"
Proceedings of the Ohio Philosophical Association - No. 3 (2006): 
Abstract: Hegel's theory of punishment is an intriguing part of his political philosophy, but it is difficult to interpret. Hegel is clearly a retributivist -- that is, he holds that punishment is inherently just, and that the justice of punishment can be explained without reference to the expected consequences of punishment (e.g., reform or deterrence). But rather than appealing to the notion that the criminal deserves to be punished, he instead claims that the criminal will is inherently null, and punishment is merely a way of expressing this status by explicitly nullifying the criminal's action. As is par for the course in Hegel studies, some commentators see Hegel as making a profound point about the conceptual connection between crime, punishment and rights, as others accuse him of sophistry. I think that there is an interesting truth in Hegel's discussion, and that his argument is more sophisticated than other interpreters have recognized. For Hegel, retribution (of which punishment is one species) is justified because it is required by the teleological character of human agency as reflected in our goal-directed control of property, and that control is necessary for us to be free persons.  

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