People usually speak of two broad senses of justice: procedural justice and substantive justice. Procedural justice has to do with a just process. We think that a process is unjust if it is biased or skewed in some way or on some basis that we believe is inappropriate or irrelevant. A just process is one that is not unjust. For example, if we are playing a game and the referees or umpires seem to be favoring one team over another (say, by calling fouls on only one team even when both teams perform the same actions), then we think that this is unjust. That is, we think the rules of the game are not being applied to both teams justly. Or, in an election, if we think that some ballots or voters are being excluded for inappropriate or irrelevant reasons, we think that there is an injustice happening. (Not all exclusions would necessarily be unjust; if a particular person has failed to register to vote, then that person’s ballot might be excluded, but this would not necessarily be an injustice.) Over the years, much of the focus of constitutional law has been over issues of procedural justice, that is, making sure that inappropriate and irrelevant factors (such as, say, issues of race or gender) are not built into the law or the application of the law. This issue is often spoken of as “due process.” While procedural justice often involves upholding some sense of equality – for instance, treating like cases alike or weeding out irrelevant biases – equality of outcomes is not necessary for justice. For instance, in a sporting event, one team wins and another loses; this is an unequal outcome. However, as long as we believe that the rules of the game were followed equally and fairly, we do not think that the outcome was unjust. Likewise, as long as we think that an election was fair and open, we do not think the outcome is unjust, even if our favored candidate loses.

Besides procedural justice, the other broad sense of justice is substantive justice. This has to do with the substance, or outcomes, of interactions. Within substantive justice, there are several forms of justice. One form is called distributive justice. Distributive justice involves the just distribution of goods or services or other things of social value. Goods and services (e.g., money or objects or opportunities for education) can be distributed among people in many different ways. For instance, one person could own or possess all of them, or everyone could have exactly the same amount of each good or service, or there could be some other distribution. What would make the actual distribution just or unjust? What standards or criteria would determine whether a particular distribution of goods and services is just or unjust? These are issues of distributive justice.

The other major form of substantive justice is called retributive justice (sometimes also called corrective justice). The term “retributive” is based on the notion of a tribute, or offering, in recognition of something, and “re-,” or giving back. So, retribution is the giving back to someone something in recognition of what they gave or did previously. This could be a positive, pleasant thing, such as rewarding someone for some previous good deed. However, almost always, the notion of retribution is meant as something negative and unwanted; in the legal context, retribution is punishment. This form of justice has to do with what happens once an injustice has occurred. While distributive justice is focused on what we consider to be a fair distribution of goods and services, retributive justice is focused on what to do when an injustice has taken place. The issue of legal punishment is a significant part of retributive justice. If we think that someone has acted in ways that violate accepted rules, then we might think of that action as an injustice, either in terms of procedural justice or in terms of distributive justice. For instance, if someone commits a crime, we might think of that as a violation of social rules (hence, a violation of procedural justice) and as a result of that crime has brought about an unjust distribution of goods or services (such as stealing someone else’s money, resulting in a redistribution of goods). Although such actions relate to procedural and distributive justice, the primary focus is that the criminal must be “brought to justice” and be given some form of punishment so that “justice can be served.” This sense of justice, again, is retributive, or corrective, justice (or correcting an injustice that has happened).

There are two basic philosophical perspectives on retributive justice: utilitarianism (with an emphasis on deterrence) and retributivism (with an emphasis on desert). Utilitarianism holds that the reason people should be punished as a means of retributive justice is that punishment will deter people from acting unjustly in the future. In addition, the amount of punishment (or retributive justice) is determined by what will in fact deter people from acting unjustly in the future. So, if a small fine suffices to deter people from speeding, then that is what is a just corrective. If a heavy fine or perhaps imprisonment is needed to deter, then that is what is a just corrective. The retributive view, as opposed to the utilitarian view, holds that the reason people should be punished, as a means of corrective justice, is that they simply deserve it; they have disrupted the just balance or have violated the just system of rules. Even if punishing a criminal did not deter that person or others from misbehaving in the future, the criminal would still deserve punishment, under the retributive view. Justice, on this view, is not about utility, but about desert. Furthermore, there is the basic sense that the punishment must fit the crime, so, the death penalty would be extremely harsh as a punishment for the crime of a speeding violation, while ten hours of community service would be extremely lenient for the crime of murder, even if either of these punishments actually deterred future instances of those particular crimes.

There are various versions of the retributivist view. One version is referred to as minimal retributivism. This version holds that it is always wrong to punish the innocent, but leaves open the possibility of not punishing the guilty. On the other hand, the version of maximal retributivism holds that it is always wrong not to punish the guilty. The difference between these versions is that the former emphasizes the notion that the innocent do not deserve punishment, while the latter emphasizes the notion that the guilty do deserve punishment.

Because retributive justice, particularly in the sense of legal punishment, is given for some offense against legal rules, it must be intentionally administered by some recognized legal authority (i.e., the courts and the legal system). This distinguishes retributive justice from vengeance and personal vendetta. For example, retributive justice is said to be impersonal, while vengeance is not; retributive justice puts limits on the harm done to the offender (the punishment must fit the crime), while vengeance might not.

John Rawls (1971) argued that the two different views regarding retributive justice – that is, utilitarianism and retributivism – actually address different questions. If the question is “Why do we have legal punishment at all?” then the correct answer is utilitarian; if the question is “Why do we have this particular punishment for this particular offense or offender?” then the correct answer is retributivist.

Beyond the views of utilitarianism and retributivism, some people have argued for an alternative retributive justice perspective. This alternative perspective is that therapy for offenders and/or restitution for victims are more important and more effective than punishment, both for the offenders and victims. In particular, they claim restoration or restitution for the victims of injustice, to whatever extent is reasonable and possible, should be the focus of corrective justice. Simply punishing an offender, they say, does not help those who have been wronged. Restitution, not retribution, is what is needed and better meets the goals of both deterrence and desert.

The two broad forms of substantive justice (distributive and retributive) often overlap. For instance, issues of reparation or affirmative action involve both forms. In the case, say, of past discrimination against minorities, there was an unjust distribution of goods and services (minorities were unfairly discriminated against). Now, acts of reparation (i.e., repairing the damage, so to speak) or of practices of affirmative action are steps toward retributive, or corrective, justice, toward correcting the injustice that occurred in the past. There remain unresolved issues about justice, beyond those noted above concerning acceptable standards and criteria of justice. There include issues of what count as relevant “agents” of justice and injustice. For instance, many people claim that a whole social system can be unjust, that injustice can happen even if no particular individuals are trying to act unjustly (e.g., that discrimination can occur even unintentionally).

In addition to matters of corrective justice within a given legal system or political unit or culture, there are other issues of global justice that relate to retributive justice. One such issue is how retributive justice gets defined. For instance, for Islamic countries that house normative matters within the context of Shari’ah Law (i.e., normative prescriptions and proscriptions that are revealed in holy Qur’anic scripture), retributive justice is understood as having been informed by Qur’anic text. So, certain punishments that are deemed to be unjust, or inappropriate, for some non-Muslims are seen as not only appropriate, but in fact perhaps even mandated under Shari’ah Law (such as the stoning to death of an adulterer). Or, different legal systems have different forms and levels of punishment for the “same” crime (e.g., different punishments for, say, the possession of illegal drugs). One issue, then, is the just identification of retributive justice as well as criminal offenses. Another issue is mechanisms for adjudicating across different global units. As noted above, retributive justice focuses on the correcting or re-balancing of things once an injustice has occurred. At the global level, how might these be defined and addressed? What correction is possible, for instance, for a small island nation with respect to the effects of global warming, effects caused by other nations, and by what mechanism can it bring about any correction? For instance, what authority, if any, should the World Court have, given that it is outside of any national legal system? Is the “court of world opinion” a matter of cultural imperialism, given that this is often a matter of First World nations and economies putting cultural and economic (and even military) pressure on other nations?

Related Topics

Capital Punishment

Fairness

Global Justice

Kant, Immanuel

Punishment

Rawls, John

Rectificatory Justice

Retribution

Truth Commissions

Utilitarianism