Criminal law theory is characterized by a longstanding debate

between two broad positions: retributivism, which posits criminal

law is justified by the moral demand to punish culpable offenders
in accord with moral desert, and mixed instrumental moral
theorism, which posits that criminal punishment requires both an
instrumental purpose and a prerequisite of offender culpability.
In the light of above statement, discuss the ongoing debate
regarding criminal law theories. 

Retribution
According to this theory crime is like a disease. . This theory maintains that you
can cure by killing. The ultimate aim of reformists is to try to bring about a change
in the personality and character of the offender, so as to make him a useful member
of society.

Retribution is a probably the oldest and most ancient justification for punishment,
"you hurt me, I will hurt you" is its literal meaning. Retribution suggests that the
severity of punishment should be proportionate to the gravity of the offence. while
deterrent theory considered punishment as a means of attaining social security. The
retributive theory treated it an end in itself.

According to this theory crime is like a disease. . This theory maintains that you
can cure by killing. The ultimate aim of reformists is to try to bring about a change
in the personality and character of the offender, so as to make him a useful member
of society.

The justification of retributive theory of punishment is that the criminal is to be

punished simply because he has committed a crime. It is initially based on revenge.

Retributive theory intends that a man deserves punishment because he has acted
wrongfully. What retributionists have insisted upon is that no man can be punished
unless he is guilty, that is, unless he has broken the law.

More precisely,
(1) he performed an action of a certain culpability;

(2) that the penalty will give satisfactions equivalent to the grievance caused by his
action,

(3) that similar ones have been and will be imposed on similar offenders,

(4) that he was responsible for his action and performed it with a knowledge of
possible consequences according to a penalty system and

(5) that unlike non-offenders, he has gained satisfactions attendant on the

commission of an offence. As it stands, it is worth consideration as a sufficient
argument for punishing a man

LIMITATION
It must be stated that the theory of retribution has its origin in the crude animal
instinct of individual or group to retaliate when hurt. The modem view, however,
does not favour this contention because it is neither wise nor desirable. On the
contrary, it is generally condemned as vindictive approach to the offender. The
critics of this theory say that retributive punishment is barbaric and brutal.
Benthem in his utilitarian theory criticises retributive p u n is h m e n t seriously.
Salmond says crimes are not similar to those of debit or credit accounts in the
bank. Revenges cannot be reattributed just like bank account. If you injure the
criminal, again the criminal is compelled to do criminal act to take revenge and
therefore this creates chain reaction in the society. The primary function of the
criminal justice system is to punish the wrong-doer, and to see that the similar
types of the crime should not re-occur in future, and to prevent the criminal
behaviour in the society, and to see that the peace and prosperity should prevail in
the society.12 The Hon’ble Supreme Court held that the whole goal of punishment
is curative. Accent must be more and more on rehabilitation rather than on
retributive punitivity inside the prison.13 The retributive theory had its day and is
no longer valid. Deterrence and reformation are the primary special goals which
make deprivation of life and liberty reasonable as penal panacea
However, it may be pointed out, that retributive theory, in the present correctional
context cannot be upheld, as it is, as it suffers from some limitations. Retribution
approach is largely repressive and does not coincide with the modem humanitarian
correctional approach in dealing with the criminals. Modem penal system has
changed in such a way that it cannot tolerate sanguinary methods of punishment.
The abolition ofthe concept of physical torture and public punishment in the
modem society is an indication that goes against the retribution theory. To say in
support of retribution theory that a man’s penalty will be similar to those imposed
on offenders who have caused similar grievances is also not consistent with the
modem penal philosophy. To illustrate, “ifsome economic benefit is to be
distributed to a group of people, some ofwhom are very poor and some of whom
are not so poor, we are likely to distribute a large amount of benefits to each of
those who are very poor and smaller amount to others who are not that much poor.
Similarly, the fact that some persons have committed similar offences is not itself a
reason for similar 118 action because some ofthem may be young and first
offenders, who need a lenient view of punishment than those who are recidivists
though committed the similar offence. In modern society, even the fact that
punishment gives satisfaction to victims of offences and others cannot be fully
pressed as many crimes are not reported to the State, if so reported are not
registered by the State or if registered and prosecution is launched a large number
of them go unpunished. Further, some crimes are covered under the insurance
scheme such as insurance of movable and immovable property against theft and
fire and as such the shock of crime is absorbed through these modem methods.
Retributivism, after considering its limitations in modem penal system can be
characterized as on account of the justification of punishment which looks to the
past. In practice deterrence and reformation theories receive more attention of
modem criminologists and penologists. These two theories are said to look to the
future. However, in some circumstances where deterrence or reformation fail and
something must be done to preserve the law and order in the society, the retribution
has its impact as a justification for punishment.

THE RELTRIBUTIVE THEORY OF PUNISHMENT While discussing the

history of the administration of justice, it was seen that punishment by the State is
a substitute for private vengeance. In all healthy communities, any crime or
injustice stirs up the retributive indignation of the people at large. Retribution
basically means that the wrongdoer pays for his wrongdoing, since a person who is
wronged would like to avenge himself, the State considers it necessary to inflict
some pain or injury on the wrongdoer in order to otherwise prevent private
vengeance. Whereas other theories regard punishment as a means to some other
end the retributive theory looks on it as an end in itself. It regards it as perfectly
legitimate that evil should be returned for evil, and that a man should be dealt with
the manner in which he deals with others. An eye for an eye and a tooth for a tooth
is deemed to be the rule of natural justice. Though the system of private revenge
has been suppressed, the instincts and emotions that lay at the root of these feelings
are yet present in human nature. Therefore, according to this theory, the moral
satisfaction that society obtain from punishment cannot be ignored. On the other
hand, if the criminal is treated very leniently, or even in the midst of luxury, as the
reformative theory would have it. (and as actually happens in some prisons of the
world, which are equipped with airconditioning, private toilets, TV sets etc.), the
spirit of vengeance would not be satisfied, and it might find its way through private
vengeance. Therefore, punishment, instead of preventing a crime, might indirectly
promote it. Unfortunately, the retributive theory ignores the causes of the crime,
and it does not strike at the removal of the causes. A mere moral indignation can
hardly 134 prev4nt crime. It is quite possible that the criminal is as much a victim
of circumstances as the victim himself might have been. It is also unfortunate that
this theory overlooks the fact that two wrongs do not really make a right. The
theory also seems to ignore that if vengeance is the spirit of punishment, violence
will be a way of prison life.

RETRIBUTION AS EXPIATION
There is yet another interpretation of the retributive theory, which considers
punishment as a form of expiation. To suffer punishment is to pay a debt due to the
law that has been violated. As per this formula, guilt plus punishment is equal to
innocence. According to this view of the retributive theory, the penalty is a debt
which the offender owes to his victim, and when the punishment has been endured,
the debt is paid, and the legal bond forged by the crime is dissolved. Therefore, the
object of true punishment must be to substitute justice for injustice, to compel the
wrong-doer to restore to the injured person that which is his own, and by such
restoration and repentance, the spirit of vengeance of the victim is to be satisfied