Retributivism is a theory of criminal justice that advocates the punishment of criminals in retribution for the harm they have inflicted. Retributivists believe that when an individual commits a crime he gains an unfair advantage in a society where everyone enjoys similar benefits and burdens. In this, retributivists justify punishment as a morally appropriate response to crime because punishment cancels the unfair advantage obtained by the offender. It is important to mention that retributivism involves positive and negative desert claims: the offender deserves punishment proportional in severity to their wrongdoing and the innocent cannot be punished. However, in reality, societies are rarely perfectly just: benefits and burdens are not distributed equally among all members, meaning that some individuals are left without basic social, political or economics rights; moreover, some legal systems can contain unjust laws. This raises a question of whether retributivist justification of punishment is valid in an unjust society. In this essay, I will argue that the answer is yes, however, it depends on the type of crime the offender has committed, the type of deprivation to which he has been subjected and the circumstances of the crime victim. My thesis will be examined by looking at the challenge of assigning the deserved punishment to the disadvantaged as well as by examining crime cases of different nature with different kinds of offenders and victims involved.
Criminological studies suggest that disproportionate share of crimes is committed by those who are poor and socially disadvantaged. It is also apparent that poverty and disadvantage of at least some from this group of offenders is a result of the structural injustice of society. For example, social and school exclusion of Black African and Black Caribbean communities is seen as the key to these groups’ involvement into criminal justice system. This raises a question of whether it is morally appropriate to punish the disadvantaged when it is the social injustice that constitutes one of the most powerful influences of criminal activity. Moreover, in this scenario, we cannot claim that the disadvantaged deserve to be punished. Subsequently, it can be argued that retributivist justification of punishment is not valid in an unjust society.
In addition, most legal systems function within a social contract. By its terms, all individuals in a society agree to abide the law in return for basic social, political and economics rights, and consent to be punished when they violate it. Nevertheless, it is unlikely that the disadvantaged groups such as the poor or individuals subjected to discrimination would like to enter the social contract because they receive very few benefits from the society and thus it is not in their self-interest to accept the current order. As long as an individual stays outside the social contract, it cannot be said that he deserves punishment. Moreover, the government has not right to punish him. Subsequently, it can be argued that retributive justification of punishment is not valid in an unjust society because the disadvantaged members remain outside the social contract and therefore they do not deserve punishment and cannot be punished.
Following the arguments above, it can be suggested that retributive punishment is not always appropriate when it comes to offences that bear a connection with the social arrangement or political system. These may include offences against public order and administration of justice as well as offences against property. For example, let us picture a situation where a disadvantaged member of society bribes the jury in litigation against a member of the privileged elite who was responsible for his disadvantage. In this case, it can be said that the offender restored the equilibrium of benefits and burdens between him and the victim, and thus he does not deserve punishment. Similarly, an offender who was born without a right to own property is not morally blameworthy when he steals from an individual who can own property and who was responsible for the absence of the offender’s right to own property.
Nevertheless, it is important to notice that in both cases we consider the offender’s actions as not morally wrong only because he committed a crime against a more privileged member of society who was to blame for the structural disadvantage to which an offender was subjected. In a situation where the offender commits a crime against his fellow citizen who experiences similar advantages and disadvantages with an offender, the crime is morally wrong and the offender deserves a retributivist penalty. This is because the offender gains an unfair advantage relatively to his victim when committing the crime. Subsequently, it can be said that retributivist justification of punishment is valid even in an unjust society.
Moreover, crimes that involve harms to persons such as murder or rape do not have any connection with the social arrangement or political order. Instead, they are linked to one’s obligation to human beings as an individual. According to Rawls’s, all human beings have “natural duty” to be kind to one another that hold irrespective of their institutional relationship. Consequently, it does not matter whether an individual is disadvantaged as a result of structural social injustice as well as social contract theory cannot justify this category of crimes. Thus, an individual deserves retributive punishment because he committed an act that is morally wrong.
So far, we considered an unjust society with the just law system that communicates reasonable guidelines of what is moral and what is not. However, there are cases where laws themselves are unjust. For example, when an offender breaks the law that discriminates them on a basis of morally impermissible criteria such as race or gender, it cannot be said that their actions were morally wrong because the law was not fair in a first place. This is not to say that the offender was right in violating the law or that they have to be excused from punishment. Nevertheless, as long as the offender is not guilty, a retributive penalty is not justified: the offender does not deserve punishment because he did not do anything that is morally wrong. For example, current law in Saudi Arabia states that women cannot drive. However, if it happens that a woman is arrested for driving, we cannot condemn her actions as morally wrong and, therefore, it is inappropriate to punish her for the moral wrongdoing. In this, it is reasonable to argue that retributivist justification of punishment is not valid in an unjust society where law system itself in unjust.
Finally, it can be argued that fairness and moral standards differ among people. Subsequently, it is very difficult to determine what is morally wrong and what is not because people bear different opinions about morality. This phenomenon is especially relevant in an unjust society because people tend to grow up in radically different conditions. For example, it can be the case that individuals, who grew up in the environment where it is considered normal to steal or to be violent, do not see theft or violence as morally inappropriate or they may not see them as morally inappropriate as other people do. This poses a great challenge to the retributivist justification of punishment because it makes it almost impossible to figure out what is morally wrong and therefore what punishment the offender deserves.
To conclude, I believe that validity of retributivist punishment in an unjust society largely depends on the context in which crime was committed. The nature of the crime, as well as circumstances of the victim and the offender, is crucially important to consider when judging on whether the offender is blameworthy or not. Nevertheless, although the validity of the retributivist approach is opened to the discussion when it comes to crime against public order and administration of justice or crime against property it cannot be denied that retributivist punishment is valid when it comes to crimes against persons such as murder or rape. Based on this, I am convinced that retributivist justification of punishment is valid in an unjust society.