Social Justice: Theories, Issues, and Movements

By Loretta Capeheart; Dragan Milovanovic | Go to book overview

CHAPTER 4

Retributive Justice

DISTRIBUTIVE JUSTICE has to do with how resources in a society are distributed fairly. The study of retributive justice, however, starts with a fraction committed and then attempts to devise the just response to it. Retributive justice can be used in two senses: it can refer to an eye for an eye, a tooth for a tooth type of punishment or to a response to harm that includes retribution. Our general heading stands for the second sense.


DEFINITION OF CRIME

The definition of crime that is most often assumed in the discussions of retributive justice is the legalistic definition (see Tappan 2001, 31). This is the dominant conceptualization employed by the U.S. criminal justice system. It reads: “Crime is an intentional act in violation of the criminal law (statutory and case law), committed without defense or excuse, and penalized by the state as a felony or misdemeanor.” For a crime to be so legally, one must show that both mens rea (state of mind; criminal intent) and actus reas (the act) existed, that a particular law was violated, that there was no defense or excuse (duress, insanity, necessity), and that there is a formal penalty attached (a misdemeanor is anything punishable up to a year and the time spent is in jail; a felony is punishable by more than a year and time spent is in prison).

Several alternative definitions have recently emerged due to the perceived narrowness of the legalistic definition (see Henry and Lanier 2001a). Schwendinger and Schwendinger (2001) have provided the following: “any person, social system, or social relationship that denied or abrogated basic rights to anyone are criminal.” Thus persons, social systems, or social relationships that deny in some way these basic rights to others are criminal. Another more recent approach is the crime prism (Henry and Lanier 2001b), which indicates how crime is commonly perceived and the conventionally understood acceptable responses. It indicates the differential response to and understanding of crimes of the powerful as opposed to crimes of the powerless.

The constitutive definition defines crime as “the expression of some agency's energy to make a difference to others and it is the exclusion of those others who in the instant are rendered powerless to maintain or express their

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