2.1.2.1 Moral and philosophical foundations of retributive justice
According to Schweigert (2002) retributive justice is not only an attempt to deter crime by carefully calibrated punishments but a powerful tool rooting in violence, revenge and social order. An attempt to explain the power of punishment and retribution would be the memetic theory proposed by Rene Girard (1977). Social mechanisms of mimesis are put at the basis of this approach: learning and cooperation arising from mutual interest in the same things can rise to competition and conflict. This basis of a conflict, according to Girard would be inherent to every society, and inevitably resulting in a terrifying experience of uncontrolled violence and vengeance. Assigning the cause of the conflict to an individual, enables a community to unite against the “scapegoat” and recover its original harmony. A recovery of harmony is achieved in traditional cultures through sacrificial rites in which the community unites in killing or banning a human or animal victim. In Western society, the criminal justice system is in place to provide these rites. Convicted offenders are incarcerated with an aim to re-establish a sense of safety without allowing recourse to the dangers of unrestrained vengeance. Retribution can be regarded the convening of the society over the convicted criminal. The punishment is fundamentally not aimed at reforming those, who are convicted,
but targeted to the encourage feelings of safety in society. This approach manifests the power of the state, overcoming the threat posed by the offender as stated by Girard (1977).
Articulated by John Stuart Mill (1861/1979), retribution has a personal basis in experience, as becomes apparent in the assumptions which determine retributive justice:
1.) Society has a deep sympathy for the victim. More than a compassionate response to the victim, it is rather an identification with that person’s loss and suffering. A feeling of violation along with the victim, which arouses the need for a response of self-defence against the threat.
2.) The assumption that the offence can be located in a single individual. In light of a social nature and a dynamic relationship between people the designation of a single guilty individual is always to be regarded arbitrary. However the assumption stands necessary for retributive justice to proceed. Retributive justice has a more communal than impersonal appeal, as it is located within society, as has a more symbolic than utilitarian use. Therefore justice can be revealed a communal ritual more than as a rational calculation of cause and effect.
2.1.2.2 Moral and philosophical foundations of restorative justice
Schweigert, F. J. (2002) claims the moral and philosophical foundations of restorative justice are grounded in social practices such as mediation and nonviolent conflict resolution, the rediscovery of restitution, community development and empowerment, community justice in non-European cultures, and biblical justice. These practices are regarded guiding and grounding elements in a philosophy of restorative justice. According to Wright (1991) experiments in victim-offender conferencing consisted of practices of mediation and nonviolent conflict resolution (Wright, 1991, pp. 53-54). Schweigert, F. J. (2002) states that mediation offers a response to a conflict which has an empowering component towards the parties involved as effects in a nonviolent and constructive conflict resolution become apparent. Empowerment, voluntarism, and non-coercion are key dynamics of restorative justice are regarded to be the key dynamics in restorative approaches to justice. These dynamics have a shared basis which is built upon participation and a willingness to accept the parameters of the process and contribute to its success. However, the force of authority behind the process is primarily moral, rather than primarily legal as recorded in retributive approaches to justice. Moral authority is targeted at the conscience of a person to be translated into action according to individual choice. (Schweigert, F. J., pp. 2) Adhering to these findings, Schweigert stated how retributive approaches bind with a rigid universality, whereas restorative approaches target morality, binding with a sensitivity to the circumstances. That moral act could in consequence “display flexibility in all the complexities of social existence”(p.3). Schweigert claims the power of restorative practices would be the moral grounding, as it targets the conscience of a participant and their choice of trying to “do something good” in the circumstances.
2.1.2.3 Deontology vs. Utilitarianism
The focus in a philosophical review will examine deontological as opposed to utilitarian school of thought. Deontological justifications or utilitarian justifications, or a mix of the two are used in order to justify the imposition of a form of punishment upon offenders according to Materni (2013). In accordance to retributive justice approaches, Immanuel Kant (1790) argued that offenders would deserve to be punished in proportion to their ‘‘internal wickedness’’. The imperative to punish would not derive from future consequences of the punishment, but rather from a universal goal of giving people what they deserve. Kant’s view refers to punishment of a particular individual serving deterrent functions even when the punishment may not be based solely on deterrence as its justification. According to Kant, punishment needs no justification beyond the deservingness of the perpetrator. The critical variable for retribution, then, is the moral outrage generated by the crime. More serious crimes deserve more serious punishments. In short, a theory of retributive justice will be concerned with those factors that increase or decrease the moral outrage that the action generates. The theory is focused solely upon the action and seeks to balance the moral magnitude of the offence with the punishment. Modern views of retributive justice seek proportionality rather than absolute parity. Thus, more serious crimes receive more serious punishments, but the punishments, on average, could be either more or less severe than the offence, as measures differ. By contrast, Jeremy Bentham (1843), representing a utilitarian approach, argues that punishment ought to be assessed by the potential harm or benefit it represents to society. Any decision to punish individuals must outweigh the potential harms to the individual and to society against the benefits to society. Punishment therefore would only be considered moral if society stands to benefit. Utility, is also concerned with punishing an offender to reduce the likelihood of future offences. This approach stems from the more general utilitarian movement in philosophy, according to which all of one’s actions should be aimed towards improving the world. The morality of punishment rests solely upon whether it is likely to increase or decrease the total happiness in a society. Although punishment is expected not to serve the offender, it is used in order to serve society as it is aimed at reducing further crime. If the expected utility of the proposed punishment is positive then the punishment should take place. Within this general framework exist several versions of utility which will be touched upon very briefly. “Specific deterrence” is aimed at deterring the specific offender from reoffending when he has just completed the sentence imposed. “Incaptiation” is designed to affect the behaviour of the offender by rendering future offences impossible for a long time period through measures that keep the offender from reoffending, such as incarceration. The goal from an incapacitationist perspective would be to prevent known criminals from reoffending, and therefore the most important criteria in deciding whether to sentence, is the likelihood of recidivism. The inevitable tension generated by this approach would result in a society punishing not for the action committed, but for the probability that an action will be performed. Therefore, when the theory would operate perfectly, no crimes would be committed, and no person in jail has actually committed a crime (Carlsmith, Darley & Robinson, 2002).
The main points of tension arising when looking at deontological and utilitaristic understanding will be pointed out in more detail in the following, as stated by Carlsmith, Darley & Robinson (2002):
1.) According to deontological understanding, the effect of a given crime extends beyond the initial victim and includes all those
a.) who subsequently live in fear of future crime as well as
b.) those who become more likely to commit crimes as a result of witnessing an unpunished crime.
Subsequently, the cost of punishment, with its far-reaching effect, is almost certainly outweighed by the benefit to society. This means the “cost to society” for even minor crimes would be so high, that a proportional response would have to be severe. A utilitarian approach would in comparison always limit the punishment just efficient enough to ensure to deter future instances of the crime, and that deservingness never enters the equation.
2.) The logic of deterrence, adhering to a deontological principle, would be following the goal of preventing future crimes merely by the threat of severe sanction. However, the belief in the efficacy of deterrence would predict that the threat of punishment alone would ensure minor crimes not being “over-punished” and that the actual punishment would never have to be carried out.
3.) Effective ways of integrating retribution and utility seem difficult to find, as the approach taken resembles often an “either/or” approach. The difficulty in combination arises when readers and society claim to be wanting both. Carlsmith, Darley & Robinson (2002) stated societies arising need for a joint integrative approach which would prevent future offences as well as ensures the perpetrator to receive a fair punishment. Punishment can serve both functions effectively. However, the two justifications are not i