Rethinking theoretical foundations of retributive theory of punishment

Bindal, Amit (2009) Rethinking theoretical foundations of retributive theory of punishment. Journal of the Indian Law Institute, 51 (3). pp. 307-339. ISSN 0019-5731

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THE LEGAL theory of punishment, which has based its foundational edifice on the bedrock of revenge, as a justification to punish, has been formulated in its best form by Immanuel Kant and is famously styled as
the retributive theory of punishment. Retributive theory categorically asserts that it is the criminal guilt, which is the real basis of punishment, irrespective of the social utility of such punishment. The retributive theory is primarily based on the ‘justice model’ wherein, as Kant maintains, guilt is a necessary condition for the legitimate infliction of punishment. Thus, punishment of innocent, in retributive scheme of things, is a conceptual and moral aberration. The basic and core foundational elements of retributive theory are right, justice and desert. This monograph attempts to deal with all the three aspects. However, before stepping into these elaborations, it is more important to ‘clear the air’ and disentangle the labyrinthine complexity, which has crept in legal theory about retributive theory. This is due to unwarranted discourse, especially but not only, by Indian legal theorists as well as justices in their variegated writings. It is pertinent to examine some of such unsubstantiated and off the cuff remarks made by some authors, which can be described as ‘folklore jurisprudence’ (borrowing the expression from Upendra Baxi) about the retributive theory of punishment.

Item Type: Article
Keywords: Retributive punishment | Retributive theory | Punitive brutality
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr Sombir Dahiya
Date Deposited: 06 Apr 2022 09:58
Last Modified: 09 Apr 2022 07:12


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