According to this theory, punishment is an act of injustice. Punishment is an end in itself, not a means to any end beyond itself. The primary aim of punishment is retribution. The aim of punishment is to defend the supremacy and authority of the moral law and to do justice to a criminal.
The moral law is voluntarily broken by a criminal and justice demands that he should be punished, and that the authority of the moral law should be established. The moral law is supreme and authoritative. If it is broken by a person, he ought to be punished.
To appease the offered majesty of the moral law, punishment ought to be inflicted on the criminal as vindication of its authorative. If the criminal is not punished, the moral law loses its dignity, authority and majesty.
Punishment is the act of restoring the moral order which has been broken by the criminal. The guilt of the offence is whipped out by the punishment of the criminal. Punishment is inflicted on the offender neither for his good nor for that of others. It is demanded by the sense of justice.
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The retributive theory justifies capital punishment under exceptional circumstances. Right to live is the fundamental right. If a person takes away the life of another, Justice demands, that he should be deprived of his life. But capital punishment is generally condemned at the present time.
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It is objected by some that this theory is based on the base passion of revenge. But this is wrong. Revenge is condemned by religion because it involves personal malevolence. But a court of justice is riot moved by personal malevolence inflicting punishment upon a criminal. A court awards punishment to a criminal with strict impartiality according to the law. It accords to the criminal what is due, what Is due, what Tie has earned by creating a negative value he has produced.
Aristotle regards punishment as a negative reward. The man who deliberately breaks a moral law is entitled to a negative reward. The society gives him what is his due. It does not deprive him of his due. It gives him what he has earned by committing the crime. Kant holds that punishment ought to be inflicted on the criminal because he has committed a crime, not as a means to his own good or hat of others. He advocates the retributive theory of punishment.
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Kant says, punishment can never be administered merely as means for promoting another good either with regard to the criminal himself or to society. The penal law is a categorical imperative. Hegel also advocates this view. He also holds that punishment is demanded by the criminal. It is his reward. It is what he deserves what he has earned by breaking the moral law. It may be said to be his negative reward.
This is why some criminals who escape punishment by the state inflict upon the themselves some form of penance. They feel that they have not got their deserts which they have earned by their evil deeds. Bradlely, a Neo-Hegelian, also holds the same view. “We pay the penalty” he says, because we owe it and for no other reason; and if punishment is inflicted for any other reason whatever, than be because it is merited by wrong, it is a grass immorality, a crying injustice; punishment is inflicted for the sake of punishment. Punishment is an act of justice; it is a retribution for a breach of the moral law.
Thus the Retributive theory of punishment seems to be the correct view. It includes the two other theories. If vindication of the authority of the moral law is the aim of punishment it will be partly done by the reformation of the criminal and partly by the non-commission of crimes by others, but neither reformation of the non-commission crimes by others. But neither reformation of the criminal nor prevention of the crime is possible, unless it is recognized that punishment is a vindication of the authority moral law. It is only when a criminal realizes that he is punished to vindicate the authority of the moral law and that it is his right to get his desert that he repents and is reformed. Again, the recognition of this fact leads others also to recoil from crimes. Retribution also brings about prevention and reformation.
The Retributive theory assumes two forms: (1) Regoristic and (2) Mollified.
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According to its Regoristic form, punishment is inflicted according to the character of the offence. If the offence is severe, the punishment should be severe; and if the offence is light, the punishment should be light, irrespective of other circumstances. Eye for an eye, tooth for a tooth is the motto of this view. In inflicting punishment attendant circumstances should not be taken into account. For example, a man has killed a person: therefore he should be changed irrespective of any other circumstances.
According to the mollified form punishment should be inflicted according to the character of the offence under particular circumstances. Here the extenuating circumstances. e.g., the age of the criminal, his intention, provoking circumstances, etc. should be taken into account. The mollified from of the Retributive theory seems to be the most satisfactory of punishment.
Rashdall advocates the reformative theory of punishment, and criticizes the retributive theory. He brands it as a vindictive theory. The amount of pain to be inflicted on the criminal in proportion to the crime cannot be ascertained. There is absolutely no comment surability between them. In due amount of pain has been inflicted, no more pain should be inflicted for utilitarian considerations. But this is untenable.
Whether punishment ought to be inflicted and how much punishment ought to be inflicted is not determined by utilitarian considerations. Punishments are a means to the spiritual good of the criminal and society.