Retributive Justice

Retribution as a Philosophy

Retribution has been around for millennia. It predates the birth of Christ by at least 2000 years, as retributive elements appear alongside restorative principles in law codes from the ancient Near East, including the Code of Ur-Nammu (c. 2050 BCE), the Laws of Eshnunna (c. 2000 BCE), and the better-known Babylonian Code of Hammurabi (c. 1700 BCE). In these legal systems, crimes were considered violations of other people's rights. Victims were to be compensated for the intentional and unintentional harms they suffered, and offenders were to be punished because they had done wrong.

Retribution is based on the concept of lex talionis, [Page 1394]that is, the law of retaliation. At its core is the principle of equal and direct retribution: In the words of the Hebrew scriptures, “an eye for an eye, a tooth for a tooth, an arm for an arm, a life for a life.” In ancient times, those who wronged others suffered the same injuries they had given their victims. Destroying the eye of an equal meant that one's own eye would be put out. Some penalties designed to punish culpable behavior by individuals were specifically tied to outlawed acts. Branders who used their skills to remove slave marks from runaway slaves, for example, had their hands amputated. Lex talionis is most evident in ancient Near Eastern law codes and is vividly illustrated by the following four penalties listed in the Code of Hammurabi:

• 229.
  If a builder constructed a house for a seignior [a feudal lord], but did not make his work strong, with the result that the house which he built collapsed and so has caused the death of the owner of the house, that builder shall be put to death.
• 230.
  If it has caused the death of a son of the owner of the house, they shall put the son of that builder to death.
• 231.
  If it has caused the death of a slave of the owner of the house, he shall give slave for slave to the owner of the house.
• 232.
  If it has destroyed goods, he shall make good whatever it destroyed. Also, because he did not make the house strong which he built and it collapsed, he shall reconstruct the house which collapsed at his own expense.

Under retributive justice, criminals deserve to be punished for the injuries they caused and the wrongs they committed. The punishment to be endured is not unlimited, however; it should be proportional to the harm caused. It would be unacceptable, for example, to severely punish protesters simply because society (or some powerful individuals within society) wanted to eliminate the threat of rallies and demonstrations. Instead, protesters and other criminals must be punished commensurately with the harm they have caused. One's eye may be put out for destroying the eye of another, but punishment beyond that would be unacceptable.

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