CRW2601
CRIMINAL LAW
,RETRIBUTIVE THEORIES
Retributive or absolute theories of punishment, "perhaps the best known
with ancient roots,"[9] aim to restore the legal balance upset by the crime;
they are also known as "just desert."[10] Ancient notions of justice, including
the idea of "an eye for an eye" (the ancient lex talionis), "clearly informed this
theory of punishment." [11]
In modern criminal law, "one should be careful not to
confuse retribution with vengeance." [12] The focus now is not on vengeance,
private or otherwise; it is, rather, "a more nuanced and enlightened
attempt to restore the balance that was disturbed by the criminal conduct."
[13]
It has been argued, accordingly, that it would be more appropriate to
refer to this approach as "restorative justice."[14] An important point or
premise to keep in mind, when considering the retributive theory of
punishment, is the fundamental notion of criminal law that individuals are
personally responsible for their own wrongdoing. This is the idea of self-
determinism or free will. [15] Retributive theories generally take proportionality
into account and consider the perpetrator's record of previous wrongdoing.
They do not seek to justify punishment with reference to some future
benefit which it may achieve; it is incorrect, in fact, to describe retribution
as a "purpose of punishment." Retribution, according to this theory, is the
essential characteristic of punishment.
UTILITARIAN THEORIES
There are three types of utilitarian or relative theories of punishment:
1. prevention;
2. deterrence; and
3. reformation.
The first two, deterrence and prevention, are connected, in that the goal of
deterrence is to prevent recidivism or repeat offending.
PREVENTIVE
According to the preventive theory of punishment, the purpose of
punishment is the prevention of crime. This theory can overlap with its
deterrent and reformative counterparts, since both deterrence and
reformation may be seen merely as methods of preventing crime. Among
the "less drastic examples of the preventive approach" are "(preventive)
imprisonment, and the forfeiture of a driver's license." [17]
On the other hand, there are other forms of punishment (such as capital
punishment and life imprisonment, and the castration of sexual offenders)
which are in line with the preventive purpose, but which do not necessarily
serve also the aims of reformation and deterrence.[18] These forms are "the
most extreme manifestation" of the preventive theory: "The criminal
offender is permanently incapacitated and can no longer pose a risk to
society."[19] Capital punishment "can also be seen as the ultimate form of
retribution."[20]
DETERRENT
Of all the relative theories, the theory that punishment should serve as a
deterrent "is arguably the most popular."[21] There is an important
distinction to be made between
1. individual deterrence, which is aimed at the deterrence of a certain
individual from the commission of further crimes, by individualising the
punishment; and
Page 2 of 60
, 2. general deterrence, "aimed at a wider audience," [22] which seeks to deter
the entire community, or at least a significant portion, from committing
the type of crime in question.
Individual deterrence may be said to be aimed primarily at the
prevention of recidivism, although the rate of recidivism in South Africa
is around ninety per cent,[23] which would seem to suggest that it is not
meeting with success.
Page 3 of 60
, Morgan Oosthuizen
SOUTH AFRICAN CRIMINAL
LAW
If the punishment meted out to the individual offender is
"disproportionately harsh" in its service as a warning to the rest of society,
"the punishment can no longer be described as a 'just desert' (in terms of
the retributive theory) and, in the South African context, there might also be
a constitutional objection." [24] Accordingly, "the general deterrent approach
to punishment is [...] less attractive (at least not as attractive as the
retributive theory, which holds out the possibility of better proportionality)."
[25]
REFORMATIVE
The third of the utilitarian or relative theories of punishment is the
reformative theory, which is encapsulated by the judgment in S v Shilubane,
[26]
where the court found "abundant empirical evidence"—it cited none,
though—that retributive justice had "failed to stem the ever-increasing wave
of crime" in South Africa. [27] The courts, it decided, must therefore
"seriously consider" alternative sentences, like community service, as
viable alternatives to direct imprisonment. [28] A reformatory approach, the
court found, would "benefit our society immensely by excluding the
possibility of warped sentences being imposed routinely on people who do
not deserve them." [29] "This approach," write Kemp et al, "is, on the face of
it, quite attractive, since it purports to be sophisticated and aimed not at
retribution, but at reform (which connotes positive impressions of the
betterment of individuals and society)." [30] There are, however, "many
practical and theoretical objections." [31] They all come down, in essence, to
the contention that reformation "does not actually work in practice--the
criminal justice system is simply not good at 'reforming' people." [32]
Furthermore, "there is also a theoretical/moral objection: if the focus is only
on the individual offender that needs to be reformed, then there is no
justice in terms of the victims or the broader society. That leaves the very
real impression or perception that 'justice was not served.'"[33]
COMBINATION THEORIES
Because "the various theories of punishment all contain positive and
negative aspects,"[34] an "obvious approach should therefore be a well-
balanced combination of the elements that are best suitable in terms of
the interests of society, the individual offender and the nature of the crime."
[35]
In criminal law, this is known as "the combination theory of punishment."
[36]
The most-cited and -generally accepted of the combination theories is
that laid out in S v Zinn,[37] where Rumpff JA laid out a basic triad of
sentencing considerations:
1. the crime;
2. the offender; and
3. the interests of society.[38]
This judgment has been taken as "confirming the combination theory as
the best approach" in South African law. [39]
In S v Makwanyane,[40] which eliminated capital punishment in South Africa,
Chaskalson P provided a clearer combination of the other theories of
punishment, laying emphasis on deterrence, prevention and retribution. [41] S
v Rabie,[42] Although recognised as a legitimate object of punishment,
retribution should not, according to the court, be given undue weight,
given South Africa’s human rights ethos and the role to be played by ubuntu
in society; the primary object of punishment should be prevention and
rehabilitation, not revenge. The court held that "punishment should fit the
Page 4 of 60
CRIMINAL LAW
,RETRIBUTIVE THEORIES
Retributive or absolute theories of punishment, "perhaps the best known
with ancient roots,"[9] aim to restore the legal balance upset by the crime;
they are also known as "just desert."[10] Ancient notions of justice, including
the idea of "an eye for an eye" (the ancient lex talionis), "clearly informed this
theory of punishment." [11]
In modern criminal law, "one should be careful not to
confuse retribution with vengeance." [12] The focus now is not on vengeance,
private or otherwise; it is, rather, "a more nuanced and enlightened
attempt to restore the balance that was disturbed by the criminal conduct."
[13]
It has been argued, accordingly, that it would be more appropriate to
refer to this approach as "restorative justice."[14] An important point or
premise to keep in mind, when considering the retributive theory of
punishment, is the fundamental notion of criminal law that individuals are
personally responsible for their own wrongdoing. This is the idea of self-
determinism or free will. [15] Retributive theories generally take proportionality
into account and consider the perpetrator's record of previous wrongdoing.
They do not seek to justify punishment with reference to some future
benefit which it may achieve; it is incorrect, in fact, to describe retribution
as a "purpose of punishment." Retribution, according to this theory, is the
essential characteristic of punishment.
UTILITARIAN THEORIES
There are three types of utilitarian or relative theories of punishment:
1. prevention;
2. deterrence; and
3. reformation.
The first two, deterrence and prevention, are connected, in that the goal of
deterrence is to prevent recidivism or repeat offending.
PREVENTIVE
According to the preventive theory of punishment, the purpose of
punishment is the prevention of crime. This theory can overlap with its
deterrent and reformative counterparts, since both deterrence and
reformation may be seen merely as methods of preventing crime. Among
the "less drastic examples of the preventive approach" are "(preventive)
imprisonment, and the forfeiture of a driver's license." [17]
On the other hand, there are other forms of punishment (such as capital
punishment and life imprisonment, and the castration of sexual offenders)
which are in line with the preventive purpose, but which do not necessarily
serve also the aims of reformation and deterrence.[18] These forms are "the
most extreme manifestation" of the preventive theory: "The criminal
offender is permanently incapacitated and can no longer pose a risk to
society."[19] Capital punishment "can also be seen as the ultimate form of
retribution."[20]
DETERRENT
Of all the relative theories, the theory that punishment should serve as a
deterrent "is arguably the most popular."[21] There is an important
distinction to be made between
1. individual deterrence, which is aimed at the deterrence of a certain
individual from the commission of further crimes, by individualising the
punishment; and
Page 2 of 60
, 2. general deterrence, "aimed at a wider audience," [22] which seeks to deter
the entire community, or at least a significant portion, from committing
the type of crime in question.
Individual deterrence may be said to be aimed primarily at the
prevention of recidivism, although the rate of recidivism in South Africa
is around ninety per cent,[23] which would seem to suggest that it is not
meeting with success.
Page 3 of 60
, Morgan Oosthuizen
SOUTH AFRICAN CRIMINAL
LAW
If the punishment meted out to the individual offender is
"disproportionately harsh" in its service as a warning to the rest of society,
"the punishment can no longer be described as a 'just desert' (in terms of
the retributive theory) and, in the South African context, there might also be
a constitutional objection." [24] Accordingly, "the general deterrent approach
to punishment is [...] less attractive (at least not as attractive as the
retributive theory, which holds out the possibility of better proportionality)."
[25]
REFORMATIVE
The third of the utilitarian or relative theories of punishment is the
reformative theory, which is encapsulated by the judgment in S v Shilubane,
[26]
where the court found "abundant empirical evidence"—it cited none,
though—that retributive justice had "failed to stem the ever-increasing wave
of crime" in South Africa. [27] The courts, it decided, must therefore
"seriously consider" alternative sentences, like community service, as
viable alternatives to direct imprisonment. [28] A reformatory approach, the
court found, would "benefit our society immensely by excluding the
possibility of warped sentences being imposed routinely on people who do
not deserve them." [29] "This approach," write Kemp et al, "is, on the face of
it, quite attractive, since it purports to be sophisticated and aimed not at
retribution, but at reform (which connotes positive impressions of the
betterment of individuals and society)." [30] There are, however, "many
practical and theoretical objections." [31] They all come down, in essence, to
the contention that reformation "does not actually work in practice--the
criminal justice system is simply not good at 'reforming' people." [32]
Furthermore, "there is also a theoretical/moral objection: if the focus is only
on the individual offender that needs to be reformed, then there is no
justice in terms of the victims or the broader society. That leaves the very
real impression or perception that 'justice was not served.'"[33]
COMBINATION THEORIES
Because "the various theories of punishment all contain positive and
negative aspects,"[34] an "obvious approach should therefore be a well-
balanced combination of the elements that are best suitable in terms of
the interests of society, the individual offender and the nature of the crime."
[35]
In criminal law, this is known as "the combination theory of punishment."
[36]
The most-cited and -generally accepted of the combination theories is
that laid out in S v Zinn,[37] where Rumpff JA laid out a basic triad of
sentencing considerations:
1. the crime;
2. the offender; and
3. the interests of society.[38]
This judgment has been taken as "confirming the combination theory as
the best approach" in South African law. [39]
In S v Makwanyane,[40] which eliminated capital punishment in South Africa,
Chaskalson P provided a clearer combination of the other theories of
punishment, laying emphasis on deterrence, prevention and retribution. [41] S
v Rabie,[42] Although recognised as a legitimate object of punishment,
retribution should not, according to the court, be given undue weight,
given South Africa’s human rights ethos and the role to be played by ubuntu
in society; the primary object of punishment should be prevention and
rehabilitation, not revenge. The court held that "punishment should fit the
Page 4 of 60
