{"id":3466,"date":"2018-02-02T08:40:46","date_gmt":"2018-02-02T08:40:46","guid":{"rendered":""},"modified":"2019-08-07T15:26:51","modified_gmt":"2019-08-07T15:26:51","slug":"retribution-and-reparation","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/criminal-law\/retribution-and-reparation.php","title":{"rendered":"Retribution & Reparation"},"content":{"rendered":"

‘A wrongdoer deserves punishment for a wrongful act and he must compensate the surviving victims of his act’ (Nozick). In what sense are retribution and reparation duties?<\/strong><\/em><\/p>\n

Introduction<\/h2>\n

This discussion is<\/p>\n

going explore the issues of retribution and reparation; it will consider the<\/p>\n

works of theorists such as Dworkin, Hart, Austin, Bentham, Rawls and Nozick and<\/p>\n

explore which avenue is the fairest and provides the best justice for the<\/p>\n

victims of crime and society as a whole. The key term that will be considered<\/p>\n

in the discussion is inequality. Inequality is the key term that needs to be<\/p>\n

discussed when contemplating the validity of re-distributing resources.<\/p>\n

Re-distribution can be done by either handing out state benefits of money,<\/p>\n

housing or material items or by providing more opportunities to those that are<\/p>\n

in disadvantaged positions. Nozick and Rawls are examples of two extremes in<\/p>\n

liberalist thought; Nozick represents the true laissez-faire <\/em>liberals<\/p>\n

whereby redistribution is against equal opportunities and the only way to<\/p>\n

present a just government is to follow free-market principles. Rawls, on the<\/p>\n

other hand, argues that re-distribution can be fair as long as it is just, but<\/p>\n

would not suggest quota systems or the socialist democratic state of the<\/p>\n

Scandinavian nations. This section will end by comparing the two theorists.<\/p>\n

There are other theorists such as Kymlicka who argue that re-distribution is<\/p>\n

the only manner of ensuring that inherent inequalities are eradicated in the<\/p>\n

political system. Such lines of arguments come from feminist thinkers, such as<\/p>\n

MacKinnon. Also this discussion will consider Hart’s in reference to distributive<\/p>\n

and corrective justice. In conclusion the discussion will turn back to the arguments<\/p>\n

in reference to victims of crime and society and ask which argument is the most<\/p>\n

valid or whether there is a better argument to deal with re-distributive<\/p>\n

justice.<\/p>\n

Hart’s Theory<\/h3>\n

Hart’s theory is<\/p>\n

based within the positive and negative liberties; it follows the traditional<\/p>\n

civil liberties method whereby the rights are either given directly or<\/p>\n

impliedly by the state. This is based upon a traditional positive frame, but<\/p>\n

there is an understanding that the duties between the right holder and the duty<\/p>\n

bearer are not within the traditional form. The traditional view was that the<\/em><\/p>\n

rights holder should be regarded as a beneficiary of the legal obligation to be<\/p>\n

performed by the duty bearer: a recipient in other words, of the benefit<\/p>\n

provided by such performance.<\/em> Rather Hart believes that the person whom holds the right should have some<\/p>\n

control or input over how the legal right should be performed in respect to the<\/p>\n

obligation owed by the duty bearer:<\/p>\n

The analysis of a right correlative to<\/em><\/p>\n

obligation which is suggested by the foregoing criticisms of the benefit theory<\/p>\n

that for such a right is to exist it is neither sufficient nor necessary for<\/p>\n

the person who had the right to be a beneficiary of the obligation; what is<\/p>\n

sufficient and necessary is that he should at least have some measure of<\/p>\n

control over the correlative obligation. <\/em><\/p>\n

Therefore Hart provides more power<\/p>\n

to the individual; however not the power over the government which the<\/p>\n

universal human rights theorists would argue. In short the positive and<\/p>\n

negative of Hart may give the right holder more powers than traditional<\/p>\n

positivists; it still invests a majority of the power in the state. This means that<\/p>\n

liberty of the individual is not inherent, but rests in the determinations,<\/p>\n

supremacy and only the obligations of this power and the check of legitimacy<\/p>\n

ensures that the individual is treated justly and fairly. Therefore it is<\/p>\n

possible to stretch this argument to include both retributive and reparative<\/p>\n

justice; however the key to this argument is justice therefore the perpetrator<\/p>\n

of the crime should be treated justly, therefore retribution is not a just<\/p>\n

reason and is not legitimate therefore the protection of society and<\/p>\n

rehabilitation of the criminal would be a better application of Hart’s theory;<\/p>\n

however this theory based on correlative obligations would not rule out the<\/p>\n

possibility of compensation paid by the perpetrator to the victim because this would<\/p>\n

be fair, legitimate (through the courts) and just.<\/p>\n

Austin & Bentham & Dworkin<\/h3>\n

Bentham argues<\/p>\n

that the validity of law is due to a larger scale of citizens and community in<\/p>\n

which the protection of the basic community can take precedent over the wants<\/p>\n

of the each particular individual. Shestack in The<\/u><\/p>\n

Philosophical Foundations of Human Rights<\/u> argues that positivism is simply a question of rights, but instead of<\/p>\n

maximising the pleasures and desires <\/strong>of the individual the government<\/p>\n

would be maximising the general welfare of individuals’ <\/strong>therefore<\/p>\n

minimising frustration of wants and preferences<\/strong>. Bentham is an early<\/p>\n

utilitarian, which is similar to the basic line of argument as presented by<\/p>\n

positivists, where the basic question of law is a conflict of rights between<\/p>\n

the individual and the state. Hart is an example of a modern positivist whom<\/p>\n

adapted the basic theory as set forward by Bentham to deal with the modern<\/p>\n

consequences of rights and supremacy of the state which is now a lot more<\/p>\n

complex than the simple picture of Bentham’s, which is illustrated by Hart in Positivism<\/em><\/p>\n

and the Separation of Law and Morals<\/em> .<\/p>\n

Therefore the basis of Hart’s analysis was to separate the morality with the<\/p>\n

rule of law to ensure that an analytical approach to the rights of the<\/p>\n

individual and the needs of the community are expressed sufficiently; by adding<\/p>\n

in the analytical rights of individuals within this structure. Therefore<\/p>\n

ensuring not only the protection of the community, but justifying the validity<\/p>\n

of the law that protects individual’s rights over the wants of the state.<\/p>\n

Hart argues in Definition and Theory in Jurisprudence<\/em> that this is because the state is subject to the legal rules<\/p>\n

and conventions to protect individual’s as well as reduce tensions and ensure<\/p>\n

the legitimacy of the government in much the same way that the individual needs<\/p>\n

to follow the rules and conventions of the state. Therefore Hart utilizes the<\/p>\n

analytical approach used by Bentham and would consider the role of the State in<\/p>\n

the International Community in much the same way as the Individual within the<\/p>\n

State.<\/p>\n

As Bentham, Hart<\/p>\n

would not focus on the justification of legal rights but consider the general<\/p>\n

rules and conventions of the arena to deal with the conflict of rights between<\/p>\n

the parties involved; however Hart’s legal exposition of human rights law does<\/p>\n

not seem to be focused on the exact same justifications of law as Bentham would<\/p>\n

be, which is illustrated by Hart in Essays on Bentham<\/u> and The Concept of Law<\/u>. This is because in the 20th<\/sup> Century human rights law and conventions are viewed as a common part of legal<\/p>\n

arena; whereas Bentham is dealing with an era where human rights or individual<\/p>\n

rights law is a relatively new concept. Therefore Hart would start from the<\/p>\n

premise that individual rights are valid and does not need to justify is as<\/p>\n

analogous to municipal law within the state as Hart argues in Definition and Theory in Jurisprudence<\/em>,<\/p>\n

because he steps away from the need of justification and focuses on the<\/p>\n

analytical concept of law, i.e. the validity of laws on the basis of the needs<\/p>\n

of the general community outweighing the needs of the individual; whereby the<\/p>\n

individual is protected from an illegitimate government by affording these<\/p>\n

basic rights, which can only be overridden in legitimate circumstances as Hart<\/p>\n

illustrates in Positivism and the Separation of Law and Morals<\/em>.<\/p>\n

Therefore justice is reliant upon ensuring the integrity of the state for both<\/p>\n

Bentham and Hart, whereby the needs of the state outweigh the wants of<\/p>\n

individuals; however individuals are allowed to do anything that is not<\/p>\n

legislated against by the government, but certain rights are respected<\/p>\n

otherwise the government would lose its legitimacy. Therefore the key to this<\/p>\n

argument is that a criminal is punished not fore retributive or reparative<\/p>\n

reasons but for the safety of society, for this is the only legitimate reason<\/p>\n

for enforcing the law for the society, i.e. everything else that is governed by<\/p>\n

law is the province of the individual.<\/p>\n

Austin,<\/p>\n

on the other hand, focuses on the illegitimacy of any convention or law that<\/p>\n

proposes that it is supreme over the sovereign state’s power, therefore if one<\/p>\n

applies this to a criminal who supercedes the law this is the reason for<\/p>\n

punishment because the power of the state’s laws govern and are supreme to the<\/p>\n

rights of the individual, i.e. the routes by Bentham and Austin are different<\/p>\n

but the same outcome occurs. Hart in Positivism and the Separation of<\/em><\/p>\n

Law and Morals<\/em> expressly deals with this central thesis of Austin’s; Austin[‘s]thinking<\/em><\/p>\n

that restraints on supreme legislative power could not have the force of law,<\/p>\n

but would remain merely political or moral checks.<\/em> Constitutional is an<\/p>\n

example of restraining the supremacy of the state, i.e. the rights of<\/p>\n

individuals that supersede the power of the state which is the basis of<\/p>\n

Austin’s argument, which is exposed and critiqued by Hart in The Concept of<\/u><\/p>\n

Law<\/u> for the conception of the legally unlimited sovereign misrepresents the<\/em><\/p>\n

character of law in many modern states where no one would question that there<\/p>\n

is law<\/em>. Justice for Austin is not vested in the individual; rather it is<\/p>\n

vested in the state and any law that overpowers the legitimacy of the state<\/p>\n

affects the validity of the state. This validity is broken by the individual<\/p>\n

rights afforded by natural justice because these rights erode the sovereignty<\/p>\n

of the state, therefore justice would be purely punishing the individual for<\/p>\n

breaching these basic rules and purely deterrent and retributive in nature but<\/p>\n

the rights of the victim are negligible.<\/p>\n

If one was to<\/p>\n

consider the works of Dworkin, especially the text entitled Taking Rights<\/u><\/p>\n

Seriously<\/u>; whereby the individual holds rights as trumps<\/em> then this<\/p>\n

would legitimize the role of international and constitutional law which deals<\/p>\n

with the extent that the state can revoke the rights of the individual; leaving<\/p>\n

only primitive law as the difficult law to institute. Dworkin does not champion<\/p>\n

the vague aspiration of liberty but more specific rights, such as the freedoms<\/p>\n

provided for in justice treaties and conventions, e.g., speech, assembly,<\/p>\n

freedom, religion These freedoms are the core to Dworkin’s theory and cannot<\/p>\n

be interfered with by the government; these rights are essential to ensure the<\/p>\n

general welfare of the society. Dworkin’s theory tries to amalgamate<\/p>\n

compensation and the welfare of society and uses a resource based theory, which<\/p>\n

punishes criminals on the basis of justice and welfare of society; however it<\/p>\n

also allows for the victim of crime to be compensated so provide reparative<\/p>\n

justice.<\/p>\n

Rawls<\/h3>\n

Rawl’s in his<\/p>\n

thesis for engendering equality states that justice<\/p>\n

is the prime basis of all government and to ensure justice human rights are the<\/p>\n

obvious means and end to ensure justice is fulfilled. Rawl’s theory is based<\/p>\n

on a few key ideas, which are the rights and duties<\/strong> of<\/p>\n

government\/institution of society and the burdens and benefits <\/strong>of<\/p>\n

citizens co-operating. Rawls bases his theory that each individual has an<\/p>\n

inherent and inviolable being set in justice – this being cannot be overridden<\/p>\n

for the welfare of the society. This theory does not fall foul to the arguments<\/p>\n

against modern utilitarianism. Rawl’s does use the social contract fiction of<\/p>\n

Hobbes and Locke, however the basis of moving from ignorance (state of nature)<\/p>\n

is reason and this reason set up on principles of justice that his social<\/p>\n

contract is based upon. These principles are; 1) that each person has basic<\/p>\n

rights and liberties in accordance with freedom; and 2) there is distributive<\/p>\n

justice, where inequalities are restrained by the greatest benefit of least<\/strong><\/p>\n

advantaged <\/strong>and each person has the condition of fair equality of<\/strong><\/p>\n

opportunity<\/strong>. These principles cannot be derogated for the public good and<\/p>\n

liberty is the supreme principle. .<\/p>\n

Rawl’s theory is<\/p>\n

very important when looking at justice theories because it begins to tackle the<\/p>\n

universality of justice based on justice, as well as the inequalities apparent<\/p>\n

in society. The theory does have flaws but it one of the more comprehensive<\/p>\n

theories setting up basis rights and freedoms. Unfortunately, again this<\/p>\n

theory is based on a social contact fiction and blurs the edges of reality.<\/p>\n

Rawl’s theory may fail<\/p>\n

when it comes to non-citizens or global equality, because they have not<\/p>\n

contracted with the state to uphold their rights. Yet Rawls would probably<\/p>\n

argue that his theory is based on justice and the social contract is based upon<\/p>\n

a very theoretical plane, where justice prevails and in favour of justice these<\/p>\n

rights would be afforded to all persons and not just citizens. Therefore Rawls<\/p>\n

would allow for reparative justice but retribution would be unjust, rather aims<\/p>\n

to rehabilitate and return the perpetrator to society would be appropriate,<\/p>\n

i.e. in order for the perpetrator to compensate society as well as help level<\/em><\/p>\n

the playing field<\/em> because it is usually lack of opportunity and poverty<\/p>\n

that causes crime and if the perpetrator is rehabilitated and educated then<\/p>\n

society will be benefited.<\/p>\n

Cahn<\/p>\n

looked at justice from the flip-side of Rawl’s, in other words humanity needs<\/p>\n

to learn from its bad experiences and ensure that legal violations of the past<\/p>\n

are not repeated. Shestack summarizes this theory as ‘justice is the active<\/p>\n

process of remedying or preventing what arouses the sense of injustice. An<\/p>\n

examination of the instances which will be considered injustice thereby allows<\/p>\n

a positive formulation of justice’.<\/p>\n

This is a learning process and when necessary retributive and reparative<\/p>\n

justice could apply in order to deter the crimes from reoccurring but this view<\/p>\n

is too late and biased to the views of the controlling powers.<\/p>\n

Nozick<\/h3>\n

Nozick’s theory<\/p>\n

is primarily concerned with the notion of a free market stemming back to<\/p>\n

Lockean theory whereby self ownership is the only method to ensure that all<\/p>\n

persons are treated equally and justly. Nozick, as with Locke, focuses on<\/p>\n

property ownership but the main difference is that Nozick is writing in a<\/p>\n

liberalist era where material gain and wealth are examples of the main goals in<\/p>\n

the modern era; whereas Locke was writing in an era where property ownership<\/p>\n

was far and few between. The core thinking of Nozick is the entitlement theory<\/p>\n

whereby there are three principles which are; the transfer principle; the<\/p>\n

acquisition principle; and the rectification principle. It must be stressed<\/p>\n

that Nozick’s liberalism is entrenched in the theory of natural and core rights<\/p>\n

as set out originally be Locke. Therefore all men are created equally as<\/p>\n

derived from the state of nature but in order to create a civil society men<\/p>\n

contracted for a just system of governance with essential human rights. These<\/p>\n

three principles state that; unowned property can be acquired into the<\/p>\n

ownership of an individual, as all things are subject to ownership (acquisition<\/p>\n

principle); property can be transferred between individuals as long as there is<\/p>\n

no duress, i.e. voluntary – this can be done at a price, free or in receipt of<\/p>\n

other goods (transfer principle); and the final principle rectifies violations<\/p>\n

in property ownership to be transferred or compensated to the original owner in<\/p>\n

the case of theft, fraud or duress (rectification principle). The final<\/p>\n

principle illustrates the importance of property ownership to Nozick’s<\/p>\n

conception of justice and natural rights. However there are some problems with<\/p>\n

this such as how do cultures who do not believe in property ownership, rather<\/p>\n

the guardianship of the land be included in such a theory. Or the problems of inherent inequality, because such a theory based on the free market would view<\/p>\n

re-distributive actions by the government as unjust. The main problem for this<\/p>\n

thinking is the original premise whereby Nozick assumes all people began as<\/p>\n

equals, because the present Western society has been created primarily by white<\/p>\n

men, which can be seen by his use of history:<\/p>\n

This principle uses historical information about previous situations<\/em><\/p>\n

and injustices done in them… and information about the actual course of<\/p>\n

events that flowed from these injustices, until the present, and it yields a<\/p>\n

description (or descriptions) of holdings in the society. The principle of<\/p>\n

rectification presumably will make use of its best estimate of subjunctive<\/p>\n

information about what would have occurred… if the injustice had not taken<\/p>\n

place. If the actual description of holdings turns out not to be one of the<\/p>\n

descriptions yielded by the principle, then one of the descriptions yielded<\/p>\n

must be realized.<\/em><\/p>\n

In addition if crimes<\/p>\n

and injustices are determined purely on this theory the word jutice loses its<\/p>\n

value and the rights of the victim outweighs the duties of the state owed to<\/p>\n

the perpertrator, i.e. it cuts out concepts such as rehabilitation and leveling<\/em><\/p>\n

the playing field <\/em>so that disadvantaged persons do not feel that they have<\/p>\n

to turn to crime. The reparative side of Nozick’s theory has some value if used<\/p>\n

properly, i.e. it teached the perpertrator that acts that harm other<\/p>\n

individuals and break the laws of society are not without a price tag and will<\/p>\n

act as a method of paying back the victim; however in the same vein of argument<\/p>\n

it can be used to ensure that the perpertrator pays back society for the crime<\/p>\n

committed. As Nozick states:<\/p>\n

In the absence of [a full treatment of the principle of rectification]<\/em><\/p>\n

applied to a particular society, one <\/em>cannot<\/em> use the analysis<\/em><\/p>\n

and theory presented here to condemn any particular scheme of transfer<\/p>\n

payments, unless it is clear that no considerations of rectification of<\/p>\n

injustice could apply to justify it.<\/em><\/p>\n

Case Study – Death Penalty, the Ultimate form of Retribution<\/h3>\n

There is no justification of this penalty because of the problem<\/p>\n

of wrongful convictions and the likelihood of innocence have been one of the<\/p>\n

most influential movements for outlawing the death penalty in the USA. An<\/p>\n

example of this is Roper v Simmons (No. 03-0633)<\/em><\/strong> a 17 year old<\/p>\n

that was sentenced to death but exonerated in April 2004 because the DNA<\/p>\n

evidence did not support the conviction. This has lead to the Supreme Court to<\/p>\n

consider the constitutional legitimacy of sentencing under 18’s to death.<\/p>\n

However the ethical considerations of killing someone who may be innocent is<\/p>\n

shocking and definitely goes against the rights, notion of fairness and justice<\/p>\n

as set out by human rights theorists, as well as the drafters of the human<\/p>\n

rights laws and constitutions. This brings to mind the introduction of the<\/p>\n

precautionary principle, an environmental law principle in the EU, which states<\/p>\n

that if irreparable harm or serious harm of any kind is possible then the<\/p>\n

action should not be taken. If one considers the statistics of the exonerated<\/p>\n

individuals, never mind those who have already been put to death, there have<\/p>\n

been 117 cleared of committing the crime that has sentenced them to death. Of<\/p>\n

the 750 that have been put to death since 1976 at least 8 are probably<\/p>\n

innocent. Another 13 have had there sentence commuted to life because they are<\/p>\n

probably not guilty and 117 have been exonerated. Therefore say these figures<\/p>\n

are correct then at least 15% of have been sentenced to death wrongly and 1%<\/p>\n

have been murdered by the state. With a substantive right such as life then<\/p>\n

this figure should 0% because murder is wrong. If there were not people<\/p>\n

fighting for the innocence of death row inmates then this figure would be at<\/p>\n

least 15% but is probably more.<\/p>\n

Therefore this creates a compelling ethical argument, supported by statistics<\/p>\n

to ban the death penalty as disproportionate and a violation of constitutional<\/p>\n

rights<\/p>\n

Conclusion<\/h3>\n

Rawls provides<\/p>\n

the more cohesive approach to ensuring equality because he takes into account<\/p>\n

inherent equalities and aims to level the playing field<\/em>; whereas<\/p>\n

Nozick’s argument stems from the belief that all have equal opportunities and<\/p>\n

market-place values create valid inequalities. The latter picture painted by<\/p>\n

Nozick avoids reality because the modern day society has been created on<\/p>\n

inherent inequalities and the only way to eradicate these inequalities is<\/p>\n

through re-distributive justice. Rawls uses the notion of rights to justify his<\/p>\n

argument, which falls in line with the present era of equality rights. This<\/p>\n

also seems to be the way that the arguments of Dworkin and Hart could be<\/p>\n

interpreted. The arguments of Bentham, Austin and Cahn seem the most likely<\/p>\n

argument that allow retribution and punishment; however if retribution is<\/p>\n

allowed then this may include the death penalty; however the words justice and<\/p>\n

human rights may supersede this. The truth is that an eye for an eye<\/em> or life<\/em><\/p>\n

for a life<\/em> is the basic meaning of retribution and Nozick’s argument could<\/p>\n

be extended to this, i.e. you commit a crime you owe the equal to society. This<\/p>\n

is not justice and creates a society based on hypocrisy, i.e. state sanctioned<\/p>\n

murdered.<\/p>\n

In order to<\/p>\n

create a just criminal justice system all aspects have to be just and<\/p>\n

retribution and reparation are not the only factors, how about redistribution<\/p>\n

of resources so there is no need to turn to crime and rehabilitation to benefit<\/p>\n

the society with a value-adding citizen; however there is very important<\/p>\n

benefit with Nozick’s argument of reparation, which is the perpetrator learns<\/p>\n

there are two price tags to pay – one to society and one to the victim. However<\/p>\n

in this sense it also means that society has to ensure that society is just and<\/p>\n

creates a system that does not force the poor or uneducated to crime; therefore<\/p>\n

it is necessary to advance substantive rights to disadvantaged groups in order<\/p>\n

properly level the playing field <\/em>rather than affording rights which<\/p>\n

already are inherently present as has been suggested by Ratna Kapur and Brenda<\/p>\n

Cossman:<\/p>\n

[Substantive<\/em><\/p>\n

equality] takes into account inequalities of social, economic and educational<\/p>\n

background of people and seeks the elimination of existing inequalities by<\/p>\n

positive measures The central enquiry of this approach is whether the rule or<\/p>\n

practice in question contributes to the subordination of the disadvantaged<\/p>\n

group. Accordingly discrimination consists of the treatment of disadvantages or<\/p>\n

further oppresses a group that has historically experienced institutional and<\/p>\n

systemic oppression, <\/em>[which turns many to crime that could have been repelled by the state if<\/p>\n

there was substantive equality]. <\/em><\/p>\n

Bibliography<\/h3>\n
    \n
  • Amnesty International Canada, can be found at: Nozick, 1974<\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"

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