Retributive and Restorative justice: the relevance of criminal severity and

shared identity in people's responses to justice

ABSTRACT
Retributive and Restorative justice are two distinct ways to resolve misconduct in the criminal
justice system. This study investigates the role of criminal severity and shared identity in
affecting people's attitudes to justice.
According to the study, retributive justice emphasizes punitive methods to rectify moral
wrongs, with a focus on punishment in response to criminal behavior whereas Restorative
justice, on the other hand, strives to restore peace by incorporating offenders in the process of
making atonement and rebuilding connections with victims and the community.
Furthermore, the study emphasizes the importance of shared identity in shaping people's
attitudes toward vengeance or restoration. It implies that people's choices for retributive or
restorative justice are shaped by their feelings of shared identity and perceptions of value
consensus within a community. According to this shared identity concept, the desire for
revenge or restoration is inextricably tied to how people understand themselves in connection
to others and the larger society.

In Conclusion, this article provides insight into how crime severity and shared identity
influence people's attitudes to justice, emphasizing the subtle interaction between punishing
measures and restorative methods in resolving wrongdoing within society.

INTRODUCTION
Approaching crime and misconduct is guided by the fundamental principles of justice in a
civilised society. Cultures have struggled to define justice throughout history, which has
resulted in the creation of several ideas and methods. Popular methods that are gaining traction
include restorative justice and retributive justice. The way societies deal with crime, deal with
criminals, and bring peace back is shaped by these systems.

Restorative justice prioritizes rehabilitating criminals, making apologies, and actively

involving victims and communities in conflict resolution based on the principles of healing,
restitution, and reconciliation. In contrast, retributive justice seeks to balance justice by
imposing punishments proportionate to the crime committed, sometimes without the input of
victims or the community1 .

The purpose of this comparative study is to investigate the complex connections between these
two conceptions of justice. This article examines the principles' effective application,
philosophical underpinnings, historical origins, and results in contemporary criminal justice
systems.This strategy seeks to provide readers a thorough grasp of the advantages and
disadvantages of each technique as well as the ethical issues that affect its application.

Understanding the historical roots of judicial systems is crucial for appreciating their
philosophical underpinnings. Throughout history, societies have used both punitive and
rehabilitative measures to address crime, which has influenced current judicial systems.

This article uses a systematic comparison method to evaluate the practical consequences of
different judicial systems. The study assesses their efficacy in decreasing recurrent offenses,
mitigating crime-related suffering, and serving the needs of victims and communities.
Additionally, it considers challenges faced by restorative and retributive justice systems, such
as ethical dilemmas, legal concerns, and social perceptions on punishment and rehabilitation.

This article uses case studies from many cultural and legal situations to present a
comprehensive understanding of how these systems might be implemented internationally2 .
The quest for justice is a difficult and varied endeavor with no uniform answer. Societies must
navigate the complexities of choosing between these different methods.

EMERGENCE OF RESTORATIVE AND RETRIBUTIVE JUSTICE

SYSTEMS

RESTORATIVE JUSTICE :-

1
Government of Canada, Restorative justice and recidivism, PUBLICSAFETY.GC.CA (2015),
Restorative justice emerged as an alternative to criminal prosecution and traditional sentencing
methods. The approach has gained popularity in mainstream court systems during the past
decade. In 1989, the New Zealand government implemented family group conferencing, a
restorative justice programme3

It’s historical development can be traced through following developments :-

1.Contemporary Revival
The restorative justice movement began in the mid-20th century. Researchers and professionals
questioned the effectiveness of traditional punishment measures and explored other options.
In the 1970s and 1980s, pioneers such as Howard Zehr and Mark Yantzi advanced restorative
justice ideals, particularly in criminal justice 4 .

2.Recognition on a global scale

Restorative justice is gaining popularity and acceptability on a global scale. The United Nations
and other organisations endorse restorative justice ideas as a valuable method to conflict
resolution.

Restorative programmes, according to evidence, produce much higher levels of victim

satisfaction, offender responsibility, and lower reoffending than typical prosecution. Hence the
increased focus from policymakers and opponents of retributive justice.

Restorative initiatives as compared to standard prosecution, produce much higher victim

satisfaction, offender responsibility, and lower re-offending rates. As a result, retributive justice
draws increased attention from politicians and critics.

RETRIBUTIVE JUSTICE:-

3
Family group conferencing was established in 1989 when the Children, Young Persons and Their Families Act
(1989) was approved in New Zealand.
4
H. Zehr, Changing Lenses: A New Focus for Crime and Justice (Waterloo, ON: Herald Press, 1990) at 181.
All historical legal systems placed emphasis on punishing wrongdoers than protecting
individual rights. According to natural law, punishment for a criminal must equal to the loss
and suffering experienced by the victim.

Philosophers such as Kant, Hegel, and Locke propagated the key retributivist concepts of
punishment as an essential moral duty. The concepts of retribution and "just deserts" ingrained
themselves into the law and judicial systems5 .

Cicero, the Roman jurist and philosopher, asserted that "the punishment shall fit the offence"
(Latin: noxiae poena par esto) provided examples, including the death sentence for murder and
fines for avarice6 .

DEFINITION AND PROVISION

In the process of "restorative justice," parties involved in a particular offence decide how to
handle the fallout and future ramifications of the offence together.

The characteristics listed below can be found in a restorative justice system:

1.Victim-centered: This approach prioritises the rights and well-being of victims. The
intention is to allow victims a voice, rehabilitation chances, and an opportunity to have their
concerns heard.

2.Accountability of the Offender: Violators are made to answer for their acts and are urged
to accept the damage they have caused. They are offered chances to atone for their
transgressions.

3.Collaborative Problem-Solving: In restorative justice procedures, victims, offenders, and

pertinent parties convene for mediated dialogues or conferences to explore the harm, its

5 Hegel, Kant, and Locke developed the basic retributivist concepts of punishment as a necessary moral
practice.
6
THE RATIONALE OF PUNISHMENT, (2007)
ramifications, and potential solutions.

The Indian "criminal justice system" also faces the issue of insufficient victim engagement.
Several of the country's criminal procedural rules exhibit characteristics that are close to the
paradigm of restorative justice, even if the concept is not explicitly incorporated in them.
Importantly, some of these sections were inserted over several amendments and were not
included in the original legislation. These changes are the result of the judicial system's
recognition of victims as significant players.

A number of Indian laws are in line with the restorative justice tenets included in The Code of
Criminal Procedure 1973. In order to come to a mutually beneficial solution, these rules
encourage the participation of both the victim and the people who caused the injury. In this
context, some important rules are

PLEA BARGAINING
The Code of Criminal Procedure, 19731, Sections 265A–265L,7 provides a significant
benefit. It gives a criminal the opportunity to maybe get a less sentence if they acknowledge
their guilt. Instead, the offender could have to go through a drawn-out trial and only get
punishment if the allegations are found true if a plea deal is not reached.

The court has the power to award probation to an offender under Section 360 of the Code of
Criminal Procedure 197318 . This may happen following a period of excellent behaviour on the
part of the offender, or following a warning and instructions to keep maintaining good
behaviour

RETRIBUTIVE JUSTICE SYSTEM

A theoretical paradigm known as retributive justice emphasises punishment as a means of

seeking retribution or recompense for wrongdoing.

7 Sec.265A-256 L Criminal Procedure Code, 1973.

8 Sec. 360, Criminal Procedure Code, 1973.
The characteristics that follow can be found in a retributive justice system:

Punishment Matching the Offence: Criminals are punished according to the gravity of their
offence, with the goal of reestablishing justice or balance by making sure that the damage
they inflict is commensurate with their sentence.

Emphasise on Offender Accountability: Imposing penalties like fines, incarceration, or

other punitive measures is meant to make offenders accountable for their acts.

Deterrence and Prevention: By employing punishment as a deterrent and incarcerating or

otherwise taking punitive measures against future criminals, retributive justice seeks to
dissuade individuals from committing further crimes.

In conclusion,the goal of retributive justice is to uphold social standards by punishing

offenders according to the seriousness of their crimes. This is done in an effort to deter future
criminal activity and provide victims and the society a sense of justice.

Various provision contain strict regulations pertaining to crimes; a few of these are listed
below:

RAPE
Section 375 of the IPC discusses rape, while section 376 of the IPC lists the associated
penalties9 . In India, the seriousness of the crime determines the length of the sentence, which
ranges from a few years to life in jail.

CAPITAL PUNISHMENT

In India, the death penalty, commonly referred to as capital punishment, is applied in certain
cases of serious crimes. The following are the main sections of the Indian Penal Code that
address the death penalty:

Section 302 : Section 302: This section addresses the punishment for murder. The death
sentence may be applied in certain cases of murder10 .

9 Indian Penal Code, 1860, No. 375, Acts of Parliament, 1860 (India).
10 Indian Penal Code, 1860, No. 302, Acts of Parliament, 1860 (India).
Section 376A: This section deals with penalties corresponding to rape. It was amended to add
provisions for the death sentence in cases of rape that result in the victim's demise or resulting in
a lifelong vegetative condition11 .

Section 396: This section deals with dacoity and murder. Dacoity with murder is one of the
offences that carries the death sentence12 .

PRINCIPLES AND PURPOSE OF RETRIBUTIVE AND RESTORATIVE JUSTICE

The following are the objectives and components of restitution-based justice.

CONCENTRATE ON RECOVERING INJURY

Redressing the damage that the offender's actions have caused is a crucial aspect of restorative
justice. It seeks to satisfy victim, community, and criminal needs and involves everyone who
is involved in the legal system, including offenders, victims, and community members.

ACCOUNTABILITY

Offenders are held accountable for their conduct, but in a way that fosters understanding of the
impact of their actions on others. This usually means taking responsibility and implementing
changes.

EMPHASIS ON REHABILITATION

Rehabilitating the criminal is often the primary goal of restorative justice. It makes an effort to
address the underlying reasons of criminal behaviour and put an end to violations.

11
Indian Penal Code, 1860, No. 376A, Acts of Parliament, 1860 (India).
12
Indian Penal Code, 396, No. 45, Acts of Parliament, 1860 (India).
The objectives and components of the retributive-based justice system are as follows:

CRIMINAL JUSTICE

Retributive justice is based on the principle of penalising criminal behaviour. The intention is
to punish the perpetrator for their offence by imposing a sentence that is suitable for it.

REHABILITATION'S SCOPE IS LIMITED:

Although rehabilitation may still play a role in retributive justice, the primary goals of
punishment and deterrence usually take precedence over it. Determined

LEGAL PROCESS

Retributive justice is based on well-established legal institutions and procedures to determine

guilt and apply punishment. It preserves the concept of due process.

RELATED CASES:-

RESTORATIVE JUSTICE

1.Anupam Sharma v NCT of Delhi and Another13

The Delhi High Court ruled that restorative justice and mediation are equivalent in this
situation. The aim and core component of "restorative justice" is the restoration of the "victim's
interest." The victim's engagement in the "settlement" process is encouraged under restorative
justice. Either directly or indirectly, the victim and the offender participate in a consensual
process of cooperation and negotiation. The Gujarat High Court claims that this ruling is a step
towards achieving the goal and objective of restorative justice for crime victims in the area of
"victimology."

13
Anupam Sharma vs Nct Of Delhi And Anr 146(2008)DLT497
2.Manohar Singh v State of Rajasthan and Ors14

The Supreme Court ruled in this case that the entire intent of Section 357 of the 1973 "Code of
Criminal Procedure" is to guarantee that the victim's interests are taken into account within the
framework of the "criminal justice system." Sometimes the situation is so bad that it is not
appropriate to keep someone incarcerated. Rather, complete justice might be ensured by
directing the guilty to pay money to the victim or any other person who was harmed by the
conduct.

3. R v. Moses15

A restorative justice process was used by the criminal court system in this Canadian case.
In order to address the harm done and come up with a solution that would satisfy both sides,
the offender and the victim's family had to attend a restorative justice conference.

RETRIBUTIVE

The retributive justice system has been mentioned in several of the cases that follow.

1.Georgia v. Gregg16

This case was one in a line of cases that examined the legality of the death penalty in the United
States. The Supreme Court upheld the death sentence in this case, emphasising the concepts of
retaliation and proportionality in punishment for very severe acts.

2.Simmons v. Roper17

14
Manohar Singh vs State Of Rajasthan And Ors 2015 AIR SCW 928, 2015 (3) SCC 449, AIR 2015 SC( CRI)
513
15
R v. Moses [2020] NZCA 296
16
Georgia v. Gregg 428 U.S. 153 (1976)
17
Simmons v. Roper 543 U.S. 551 (2005)
The Supreme Court ruled in this case that it is unlawful to execute those who have committed
crimes before the age of eighteen. The Court considered the retributive aspect of the death
penalty while accounting for the young offenders' diminished responsibility.

3.Derek Chauvin v. State18

Retributive justice gained attention due to the case of Derek Chauvin, a former police officer
who is suspected of killing George Floyd. The case examined issues of accountability,
sentencing propriety, and public demands for reprisals for the purported offence

CRITIQUE AND OBSTACLES

RESTORATIVE:-

Restorative justice is a widely praised approach of handling criminal behaviour and settling
disputes, but it is not without its critics and challenges. A few of the challenges are listed below:
1.Inadequate Implementation: The fact that restorative justice programmes aren't always
available or used consistently is one of the primary criticisms. There may be disparities in
access to the benefits of restorative justice based on the crime scene location.
2.Inequality: Restorative justice may not always be applied equally, which might lead to
different results based on racial, socioeconomic, or resource-available considerations.
3.Insufficient Culpability: Restorative justice opponents contend that significant offenders
may not receive enough responsibility, particularly if they fail to express true regret or keep
their promises.

RETRIBUTIVE :-

Retributive justice, which places a strong emphasis on punishment as a reaction to criminal

behavior, is likewise subject to challenges and criticism. Some of the primary issues and
criticisms of the retributive justice system are as follows:

18
Derek Chauvin v. State 27-CR-20-12646
1.Overemphasis on Punishment: Retributive justice critics contend that punishment is given
precedence over other important goals, such as victim restitution, rehabilitation, and addressing
the root causes of crime.
2.Incapability to Reduce Recidivism: The punitive approach is often criticised for failing to
address the underlying issues that drive criminal behaviour in the first place, and some studies
suggest that punitive measures like incarceration may not be able to significantly lower
recidivism rates.
3.Severe conditions: People have voiced concerns over the brutality and unkind conditions
seen in a number of prison systems. These concerns include issues with violence,
overcrowding, and limited access to mental and medical support.

4.Accused of Unfair Crimes: The retributive justice system is not perfect, and innocent people
may be wrongfully convicted and imprisoned. The focus on punishment, according to critics,
can lead to false convictions that have long-term effects.

HYBRID APPROACHES: PROSPECTIVE ASPECTS

Hybrid approaches that combine elements of restorative and retributive justice systems might
be used to solve some of the shortcomings and criticisms of each approach. These hybrid
approaches aim to find a middle ground by placing a focus on rehabilitation, healing, and
community engagement while still holding offenders accountable for their actions. Combining
restorative and punitive justice strategies may lead to the following possible outcomes:

In order to address the underlying reasons of criminal behaviour, hybrid methods can provide
a framework that allows for both restorative justice components and punishment and
accountability where necessary. In an attempt to reduce recidivism, this technique aims to
rehabilitate criminals.

Rehabilitation Groups in Prisons: Some hybrid models use restorative circles and dialogues
to foster healing and communication between staff and inmates, which may reduce violence
and improve the prison environment.

Probation and Reentry Programmes for Rehabilitation: Mixed approaches have the
potential to extend restorative principles into the reentry phase and aid in the successful
reintegration of offenders into society by providing assistance, catering to their needs, and
involving the community in their transition.

Cooperation and Education: Restorative justice training can assist justice professionals,
including judges, attorneys, and law enforcement, in making decisions that strike a balance
between retributive and restorative justice elements.

CONCLUSION
Restorative justice is not a one-size-fits-all solution, it might not be suitable in every
circumstance, especially when there has been significant violence or when there are unwilling
participants. For restorative justice programmes to be effectively executed, the parties involved
in the justice system must also be dedicated to its guiding principles, have access to enough
resources, and have facilitators who are competent.

When there are willing parties and low-level offenders involved, restorative justice may be an
effective tactic for resolving disputes and some types of criminal behaviour. Despite its flaws
and challenges, it provides a more thorough and victim-centered substitute for conventional
punitive justice systems, emphasising rehabilitation, responsibility, and community
engagement. The method's effectiveness is dependent on how well it is used, evaluated, and
takes into account the particular needs and circumstances of each case.

Retributive justice offers a precise framework for determining guilt and applying just penalties.
It deters potential offenders and holds people accountable for their actions. It further abides by
established legal processes and due process guidelines.

The appropriateness and effectiveness of retributive punishment are ultimately determined by

the specifics of the offence, its nature, and the societal objectives of the criminal justice system.
Many countries are looking at ways to overcome the drawbacks of too harsh laws and enhance
outcomes for both criminals and society at large by striking a balance between punishment and
rehabilitation.