The Principle of Retributive Justice and Subjects: Femicide in Türkiye ()
1. Introduction
Today, because of the increasing acts of harassment, rape, torture and murder of women, and the application or non-application of basic principles of justice (procedural, interactional, and distributive justice) interpreted from a teleological-logical or utilitarian and vengeful perspective, the importance of why the principle of retributive justice should be applied has become more felt. Because, since the 18th century, the idea behind all the efforts made in the name of reform (punishment/rehabilitation/deterrence) is essentially the desire to benefit from the perpetrators on an individual and social level. In other words, it is an attempt to reintegrate them into society and create a so-called “harmonious” citizen.
In this process, the efforts to inoculate the perpetrator “as a characteristic of his/her action rather than a culpable wrongdoing”, to “protect human dignity”, and by constantly attributing the role of victim and victim, seem to have encouraged perpetrators and potential perpetrators rather than deterring them. However, the long-lasting emotional, social, and cultural traumas of the victims and potential victims of barbaric killings have not been taken into consideration.
It is incomprehensible that by utilizing the possibilities of social, economic, and cultural capital and Panoptic states of masculinity, women’s lives can be arbitrarily, knowingly, and intentionally, in the most barbaric way. It is especially unacceptable in the modern legal system, which is represented by a goddess of justice holding the scales and the sword.
This situation has become more evident in the problematic of barbaric and murderous gender-based violence. On the other hand, in a social space where women are angry, insecure, helpless and their faith in justice is shaken, they are forced to live with emotions such as fear, fear of crime, anxiety, hatred, anger and disgust. Despite the extraordinary increase in femicides in Turkey between 2008 and 20231, on the one hand, and on the other hand, the decision to withdraw from the Istanbul Convention, which entered into force on 1 August 2014, in March 2021, and the entry into force of Law No. 6284 on 20 March 2012, perpetrators (murderers) continue to kill their victims in the most brutal way.
As a natural consequence of this, some women in Turkish society have had to seek different individual solutions to survive. One of these solutions is the endeavor to make their voices heard in the digital public sphere (Twitter). In a way, they want the institutionalized principle of “criminal justice” to be implemented to be outside the Panoptic patriarchal power mechanism, which is metaphorically constructed with fear, anxiety, and fear of crime, and to survive.
According to a very clear principle in teleological or utilitarian theory, “every state has a duty to protect its citizens, first and foremost by deterring potential criminals through the threat of punishment and, to a much lesser extent, by preventing actual criminals from re-offending, for example by imprisoning them.” (Day, 1978: p. 498)
The “status of being a citizen” of a modern state requires this. In this context, the aim of the study2 is to determine the social perception of the principle of retributive justice, which focuses on the criminal act itself, within the framework of its basic components (obligation and proportionality) and its subjects (perpetrator and its supporters; punisher/judge; victim and its supporters).
In addition, the aim is to discuss theoretically and concretely why “transitional justice”3 (economic, democratic regime, social, cultural, moral, health and legal crises, etc.) should be applied as a solution to lethal gender violence that brings results, recognising that it will bring certain problems. For this purpose, a sociological assessment will be made on whether this principle plays a key role through “emotional tweets of angry individuals” and survey data with 94 respondents. Therefore, firstly, the definition, characteristics, roles and relationship of retributive justice with other justice principles will be briefly reviewed. Because, both in terms of theoretical background and practice, there is an unreconciled subjective concept of those who accept and those who object to this principle of justice (incompatibility with modern values and norms, thinking that it is equivalent to revenge, etc.). For this reason, with further explanation and afterwards, the relationality established between this principle of justice and the basic subjects will be elaborated.
2. Retributive Justice
In a transition phase where change and transformation, homogeneity and heterogeneity, and global crises (war, rising nationalism, violence, crises, such as health, economic/political/cultural/moral/legal/democratic and identity crises) are experienced simultaneously, it is unfortunately foreseeable that no consensus will be reached in the near future. For example, the philosophical basis of the principle of retributive justice is, for some, Immanuel Kant, while for others it is G. W. Friedrich Hegel4.
Therefore, it is necessary to take a look at what the concept means. Because in order to draw attention to the importance of applying this principle of justice in favour of the victims in cases of violence against women and femicides, it would be useful to first get to know and think about this concept a little.
In its general moral sense, the concept of “justice” refers to giving individuals “what they deserve”, i.e. what they are severally “entitled to”, or at least “what they have a right to expect” (Garvin, 1945: p. 271) . The concept of justice in its legal sense means that an action (or class of actions or institution) can only result in equal treatment of equals; in other words, the equal distribution of goods and/or evils to equals (Emmons, 1970: p. 133) . As Kelly (2009: p. 451) puts it, justice typically requires giving people advance warning that they face the threat of punishment for certain actions.
Retributive justice, a principle of justice5, etymologically “involves the idea of someone paying something back to someone else”. Thus, retributive punishment involves the idea of repayment to the offender (or by the offender, or both) of something similar to what they did to the victim (s) of the offence. In other words, this concept refers to “the damage, suffering or deprivation caused to the victims of the acts defined as a typical offence” (Bedau, 1978: p. 604) . Punitive punishment is a form of restitution or compensation imposed by the authority (Day, 1978: p. 501) . According to Carlsmith & Darley, retributive justice focuses on the reasonableness and legitimacy of punishments for “offences committed” (cited in (Hegtvedt & Parris, 2014: pp. 105) ). According to Liberman (2013: p. 286) , retributive justice is punishment that makes criminals “pay” for their crimes and gives them the punishment they deserve instead of achieving goals such as protecting public safety. Retributivism is the view that guilty wrongdoers should be punished apart from the social benefits that a system of punishment can bring. This conception of justice is based on reactive attitudes that assume that the moral capacity of the offender is to act in a way that morality requires (Kelly, 2009: p. 446) .
In addition, Liberman (2013: p. 288) adds that “the realization of retributive criminal justice is an end in itself, ‘just desert’, rather than a means to personal or societal security or stability, although it may incidentally affect security or harmony.”
Retributive justice is related to deontological ethics and is therefore considered to involve certain forms of behavior that are binding in nature, carrying their own moral validity apart from any consequences they may have. Certain actions have direct virtue or vice and deserve reward or punishment for that reason alone. Retributive justice, then, is “an essential component of confronting the past” (David & Choi, 2009: p. 162) . But the real purpose of this principle is to regulate the future. According to Bennett (2017: p. 61) , the essence of retributivism is the claim that a response to wrongdoing is necessary to distinguish itself from wrongdoing, the absence of which implies consent, complicity, or condonation. The important point for this principle is that “it is the victim who relates to the oppressor rather than the oppressor; in fact, the problem is the need to look at what the oppressor is doing.” (Bennett, 2017: p. 69) The nature and purpose of criminal justice, implies that offenders should be considered as members of a group: the group of offenders who, with adequate incentive provided by crim inal sanctions, would typically not reoffend (Kelly, 2009: p. 453) .
Lenta (2019: p. 386) argues that in many versions of retributivism, the common thread is the negative desert6 claim that “no one who is not guilty should be subjected to punishment and that it is wrong to punish more than is deserved.” At the core of punishment is the positive desert claim, which is valuable as a moral desert. And the punishment of malicious persons is morally obligatory, since it is good in itself.
And the punishment of malicious persons is morally obligatory, since it is good. Alam (2014: p. 35) states that “retributivism, which has a punitive function, is only the first step towards the discovery and acceptance of the truth, followed by accountability through punishment: 1) condemnation of the offender (s), including the offender, the architect of the offence and/or those who facilitated the commission of the offence; 2) redress for the victim; 3) deterrence against future recurrence.” (Alam, 2014: p. 35) In the words of H. Moberly, “the educational effect of punishment seems to depend on the acceptance of its justice.”
Retributive justice, then, is not only about its possible educative effect. “If I do something wrong and am punished for it, in order for me to derive any moral benefit from the punishment, I must recognize that it is in itself, and before any reaction of my mind to it, a recompense for my action.” (Garvin, 1945: p. 276)
It is not important that punishment has only instrumental benefits and deters potential offenders. In a well-functioning state and society, criminal law is not simply “a system of taxes and burdens designed to place a value on certain forms of behavior and thereby direct people’s behavior for mutual benefit”. On the contrary, criminal law is necessary because its existence recognizes to society that “it would be far better if the acts prohibited by criminal law were not done at all”.
In other words, punishment and criminal law are valuable because they have expressive value, because they express to society the vindication of rights and the condemnation of wrongs (Tsai, 2021: p. 33) .
The aim of punishment is to bring about the restoration of society and promote the common good. Failure to recognize this is perhaps the possibility that retributivism can lead to a naked desire for revenge and blood. This is indeed a state of fear of cruelty (Villa-Vicencio, 1999: p. 176) .
Considering some of the above selected definitions on the principle of retributive justice7, it is foreseen that the role and effects of this principle are subjective, and that common acceptance has not yet been established and that discussions on the subject will continue for a long time. In a sense, the principle of retributive justice is “in the Old Testament, the state acting as the enforcer and taking revenge on behalf of the injured party” (Shaw, 2020: p. 88) .
In this context, it is very important that universal concepts of justice are applied in favor of those harmed in the solution of femicides. Because in today’s world; in different cultural, social, moral, religious, political, and legal frameworks, the forms of punishment given to barbaric forms of lethal female violence also differ. As Bennett (2017: p. 70) states, “if at the center of retributivism is the differentiation from the oppressor, this perspective may support its relativism. Because what matters is the relationship between the individual who makes the distinction and the oppressor.”
A review of the literature reveals that there are nine different theories of punishment8 (Cottingham, 1979: pp: 239-240) . Nigel Walker (1999) reinterpreted some of Cottingham’s theories of punishment and contributed to a variety of punitive theories such as Intuitions of Desert, Rule-Theory, Kantian Theory, Expressive Theories. Walker (1999) reinterpreted 9some of Cottingham’s theories of punishment and contributed to a variety of punitive theories such as Intuitions of Desert, Rule-Theory, Kantian Theory, Expressive Theories.
In addition, Walker (1999: p. 604) argues that the most important taxonomic distinction in retributive justice is between “duty” theories and “right” theories. Duty theories have to face at least one serious problem, at least if they recognize the principle that the innocent must not be penalized. This creates a dilemma when penalizing the guilty means penalizing the innocent. To defend this by saying as I have heard sentencers say-that it is his fault that his dependents suffer seems like a sophistry. “Right” theories do not have to face this particular dilemma: they allow sentencers to take account of the effect on the innocent.
Moreover, Koritansky (2005: p. 319) states that in the literature, on the one hand, there are “two different debates about the ultimate logic of retributive justice (utilitarianism and retributivism)10 and these two debates have not reached a consensus that convinces the general public”.
On the other hand, this principle has been analysed in relation to restorative and distributive justice principles. Villa-Vicencio (1999: p. 166) , for example, argues that restorative and retributive models of justice for victims and communities have much more in common than meets the eye. These two models of justice, properly conceived, belong together. Each is the corrective of the other11.
Day states that “distributive justice and retributive justice are both types of justice, because they are both applications of the rule of justice.” “The specific difference between them is that the rule of distributive justice is associated with the application of the rule to the distribution of goods, while the rule of retributive justice is associated with the application of the rule to redistribution after the redistribution of goods by an offence.” (Day, 1978: pp. 505-506)
Scheffler (2000: p. 986) argues that “the problem of distributive justice is the problem of how to allocate scarce goods among moral equals, whereas the problem of retributive justice is not the problem of how to allocate a limited supply of utility among equally valuable citizens, but the problem of how society can be justified in imposing a particular burden of punishment on a particular person.” Similarly, Corlett (2001: p. 87) argues that “Rawls is mistaken in arguing that retributivism should aim to legitimize the institution of punishment, since retributivism is a view that seeks and must seek a justification for both the institution of punishment and its practices.”12
In contrast to restorative justice, retributive justice emphasizes holding perpetrators legally responsible for their actions and applying the appropriate punishment for the crime (Alam, 2014: p. 34) . Retributive justice, which looks retrospectively at whether people are morally blameworthy for crimes committed in the past, contrasts with consequentialist or instrumentalist theories of punishment that rely on the potential future beneficial consequences of punishment, such as deterring other potential rule violators (Tsai, 2021, p. 38) .
Transitional justice13, like other forms of justice, is about distinguishing between right and wrong and responding appropriately and proportionately to the wrongful act, the agent of the wrongful act, and the sufferer of the wrongful act. Yet, unlike other forms of justice, transitional justice occurs in response to or in the aftermath of violent conflict and political upheaval. As such, there are a few exceptional elements, which include the extreme nature of the harm caused, the larger sociopolitical context, and the likelihood of collective suffering, all of which bears historical significance at the national. Indeed, in transitional justice, not only are crimes almost always politicized but so too are the institutions and processes of transitional justice (Alam, 2014: p. 15) .
Retributive justice deals with the future; “transitional justice, by both the virtues of its conceptualization and overarching purpose, is at once focused on the past, the present, and the future.” Moreover, whereas retributive justice is a legal and moral restitution, “transitional justice offers a range of political and legal mechanisms.” (Alam, 2014: p. 16)
2.1. Principles of Retributive Justice
Determination and resilience are essential for the transition from darkness to light. In the case of femicides, caution must be exercised when pursuing utilitarian goals in the principles of retributive justice. According to Sterba (1997: pp. 359-360) , in determining the amount of punishment to be imposed on an offender, the principles of limiting the punishment to the least amount of harm that is sufficient to: 1) provide general deterrence among offenders and 2) prevent recidivism among offenders should be taken into account. What does H. L. A. Hart (Lenta, 2019: p. 388) , who is “not a retributivist” and has tried to develop a model for the principle of retributive justice, have to say about this? According to him, “the only appropriate response to criminal behaviour is strong and authoritative moral condemnation and punishment.” (Villa-Vicencio, 1999: p. 171)
Jean Hampton emphasises similar points to Hart and states: “punishment as a necessary expression of moral outrage in the face of repeated gross violations of human rights, crimes against humanity and genocide is perhaps the evil that can only be appropriately countered by an authoritarian punitive stance.” (Villa-Vicencio, 1999: p. 171)
Two basic principles of retributive justice (the principle of responsibility, the principle of proportionality) in the model proposed by Hart, who tries to determine the basic principles of retributive justice against a legal and moral wrongdoing, will be included. This form of explanation will be analysed in the context of the subjects (perpetrator, victim, prosecutor) with whom a necessary causal interaction is established due to the act of “femicide”. In other words, the meaning attributed to these principles will be reviewed.
2.1.1. The Principle of Responsibility
The principle of responsibility is based on the idea that “human behaviour should be adapted to the law and, furthermore, that the penalties required by the law should not be imposed on him unless there is a fair opportunity or chance.” When this principle is conceived in terms of “individual desert”, it can be said that “punishment can only be deserved when one has voluntarily wronged someone.”
According to this principle, “holding criminals accountable for punishment defines the status of perpetrators, who are held morally responsible when they commit these acts, even if legal, and at the same time reaffirms the equal dignity of victims who are denied it because of their wrongdoing.” (Lenta, 2019: p. 386) Put differently, criminals deserve punishment and therefore, at least for most retributivists, an intrinsic value is realised when they receive the punishment they deserve.
The best-known discussion of the difficulty of retributivism in holding individuals accountable for collective wrongs (for their role in them) has been made by Christopher Kutz. According to Kutz’s (2000: p. 18) non-retributive view, accountability is positional and relational: “agents are accountable to others for a harm as a function of their relationship to others as well as everyone’s relationship to the harm or wrong.”14 An individual who intentionally participates in a collective wrong is to some extent responsible for it, even if his or her causal contribution is insignificant.
This explanation causes individuals to be held responsible for the collective wrongs in which they engage (Lenta, 2019: p. 395) .
Criminal liability is the corollary of obligations we have not to act in ways that cause certain harms either directly or when combined with the acts of other people. Offenders are liable because their criminal acts, acts they were on notice to avoid, have contributed causally to an aggregate so cial harm or to the violation of a person’s rights. The risk of being held ac countable together with other offenders in this way is assumed by the offender as a price of his action, something made clear by the law in advance (Kelly, 2009: p. 458) .
2.1.2. The Principle of Proportionality
It is based on the idea of “the correspondence between the severity of the offence committed and the severity of the punishment”. In the process of punishing the perpetrator, there are two main justifications. The primary retributivist justification is the idea that the offender deserves it; the secondary retributivist justification is the idea that the elements of social utility should be taken into account. As Richard Burgh puts it, “in other words, justice requires not only a principle of desert, but also a principle of proportionality between the gravity of the offence and the punishment deserved.” (Corlett, 2001: p. 89) According to this principle, called the “principle of proportionate rights” by Andrew von Hirsch, “the severity of punishment should be proportionate to the seriousness of the wrong. Seriousness depends both on the harm caused (or risked) by the act and on the degree of culpability of the actor.” (Bedau, 1978: p. 613)
Although proportionality requires that the severity of punishment should be appropriate in absolute terms to the seriousness of the offence (usually calculated as a function of the level of culpability of the offender and the extent of the harm caused), if the punishment for a very serious offence is not severe enough, it will fail to satisfy the offender’s desire, but it does not require that there be any precise level of severity of punishment for any offence. “It is the perception of the severity of the suffering experienced as a consequence of the offence.” (Corlett, 2001: pp. 95-96)
Murphy (2017: p. 90) , on the other hand, argues that if individuals are to be held accountable for the wrongs they collectively cause, proportionality judgements should take into account “other actions of a particular actor that are related to his or her action.” However, Murphy adds that this poses a challenge for retributivism, as “it is not clear whether proportionality judgements that look beyond the consequences of an individual agent’s actions are compatible with the proposition of giving individuals what they deserve for what they have done.”
The appropriate response to the concern that the principle of proportionality requires that perpetrators of particularly heinous crimes receive sentences that exceed the upper limit of severity set in liberal democratic judicial systems is that the application of a very severe punishment, such as life imprisonment, in response to the worst offences would satisfy the principle of proportionality (Lenta, 2019: p. 394) .
Retributivists take these concerns about proportionality into account, arguing that punishments should be proportionate to the severity of the offence, because only then are they deserved. Retributivists typically accept two further principles relating to the amount of punishment to be imposedon wrongdoers: commensurateness15 and proportionality16. It might seem obvious that retributivism, assuming its tenets are accepted (Lenta, 2019: p. 386) .
As Scanlon (2003: p. 222) notes in his discussion of transitional justice (transition from authoritarianism to democracy), “allowing those who have committed horrendous crimes to continue their lives as normal citizens as if nothing had happened” has created a serious sense of injustice.
This principle, which is possible in theory, seems to be impossible for some offences. For example, how will this principle be realised in cases of harassment, rape and the most primitive forms of murder of women? The difficulty arises in assessing violence and ensuring proportionality, with reference to what the offender serves.
In this regard, Andrew Von Hirsch and Andrew Ashworth write: “The gravity of an offence depends on the degree of harmfulness of the behaviour and the degree of culpability of the actor.” (Kelly, 2009: p. 456)
The full measure of punishment is that an offence should be determined not according to the harm caused in such favourable circumstances, but according to the worst harm that similar conduct could reasonably be expected to cause in the context of general disobedience. For offences such as murder, of course, there will be no difference (Sterba, 1997: pp. 357-358) .
People who have no other purpose than to ensure that criminals receive some kind of “morally proportionate consequence” for their misdemeanours nevertheless believe that punishments should be imposed and are willing to pay a price for such punishments (Tsai, 2021: p. 38) .
This is true even for retributivists who accept the doctrine of lex talionis, which requires “retaliation in kind” in the application of punishment, but do not interpret it unreasonably strictly (Lenta, 2019: p. 394) . Even for retributivists who adopt lex talionis17, retributive justice can be realised in transitional circumstances if the worst offenders are subjected to punishments at the high end of a morally legitimate punishment scale (Lenta, 2019: p. 395) .
3. Femicide, Retributive Justice, and Its Subjects (Perpetrator, Victim, Judge)
In the context of the retributive principle, it will now be necessary to unpack the causal interrelationships between the three subject types of femicide and to assess the individual and social effects they cause.
Within the framework of the concept of desert (deservedness), we can speak of three main subjects of lethal female violence. In fact, this principle of justice has, for a long time, only dealt with two parties. The first is the defendant/ perpetrator who commits the lethal offence and the legal authority (judge)18 who punishes him/her.
Of course, it is necessary to remember the “victim/survivor subject” (and his/her relatives, other potential victims) who is being processed and who carries traumatic pain, anger/resentment, and hatred as physical property. Because, until the 1970s, victims were the forgotten party in the criminal justice system.
In the following, these three subjects of the principle of retributive justice, which has become the most important principle in the prevention of femicides, will be discussed within the framework of their interrelatedness.
3.1. Offending Perpetrator
As a representative of the common good, the principle of retributive justice affirms the individual autonomy of the perpetrator.19 The bad deservedness resulting from the offence committed is the only justification for punishment, and the limits of the deservedness also constitute the limits of just punishment (Bindal, 2009: pp. 319-320) . For example, the concept of deserved punishment seems to be compatible with the principle that “offenders knowingly, willingly and voluntarily violate a law and the offender thus accepts punishment as a reaction to the violation of the law and disregard of the social contract.” (Corlett, 2001: pp. 84-85)
Murphy (2017: p. 94) argues that in offences committed in conditions of pervasive structural inequality, individual punishment cannot fulfil its aim of “restoring equality”. In other words, punishing a violator “will fail to justify the moral status of the victim because it does not or cannot fully address the source of the challenge to the victim’s status”. In other words, “there is the existence of the wider institutional context in which unequal treatment is sanctioned and often still justified.” Lenta (2019: p. 392) objects to this, stating: “A ‘single instance of wrongdoing’ committed in these circumstances does not violate the ‘widely accepted and institutionally sanctioned’ assessment of the victim as a moral equal.”
In addition, Murphy (2017: p. 94) doubts that punishing perpetrators can deliver a “message of equality”. This is because the credibility of the state’s communication would be jeopardized by the fact that it has previously committed, or at least been complicit in, human rights violations. Murphy notes that “the message is not about equality, but rather about power” and that “the fact that situations that used to be ignored are now met with harsh treatment risks showing that only those in authority can do what they want.”
Actors occupying the positions of offender and victim of crime will have different interests that may conflict with each other. Morally and legally punishing perpetrators who commit offences puts them on an equal footing with their victims, while at the same time reminding them of the level of moral responsibility expected of them.
Unlike the victim, the offender has committed a serious offence by breaking the laws of the society. The perpetrator, as a violator of criminal justice, is very comfortable and self-confident because he/she feels that he/she can be protected because of his/her social/cultural/economic capital. “Well-connected and privileged people may already feel effective in their ability to influence decision-makers and may already be relatively involved in politics and governance, or may feel less need to participate because they have other means to pursue their interests. They may also already have favourable perceptions of the state’s policies.” (Tsai, 2021: p. 60) And in this way, the perpetrator can almost normalise and even enjoy committing crimes. In other words, perpetrators who kill their female victims both rationalise this act by blaming the victim and take pride in their act.
In addition, during the trial process, perpetrators who were sure that they would be rewarded due to the policy of impunity expressed that they did not regret their actions at all. For example, the tweet “murderer, I don’t regret it, but my conscience hurts a bit, don’t let me out, I might kill someone again”… “Disgusting and cunning bastard”…“I don’t regret it!” is very meaningful in terms of expressing the righteous anger and resentment towards the perpetrator.
Moreover, as the violence of masculinities is reinforced, situations of impunity have a devastating effect on victims and potential victims. In other words, in the case of criminal injustice, the possibility of individual revenge arises. In the words of Roberts (1992: p. 141) , “the impunity of offenders will lead to injustice, and the unequal distribution of sanctions among equally guilty individuals will lead to inequity.” Therefore, “subjecting the offender to punishment is necessary to confirm and reassert the equality of the victim vis-à-vis the offender.” (Lenta, 2019: p. 392)
However, imposing a harsher penalty on perpetrators may also have a deterrent effect on potential perpetrators of the offence in question. One reason for this is “to prevent intolerable harm typically caused to individual victims (or associated persons) by the same acts. Certain types of acts, such as rape or murder, are intolerable, no matter how many offences of this kind are committed. These damages or potential damages are a violation of the most fundamental human right and criminal sanctions are necessary to prevent this violation.” (Kelly, 2009: p. 456)
3.2. Victim
Punitive responses often contrast sharply with restorative justice, which focuses on healing the harm done to the victim and society, while focusing on the perpetrator (Hegtvedt & Parris, 2014: p. 107) . The victim is a witness to a crime and may be called to testify before the court. The role of the victim gains meaning through punitive metaphors such as “getting even”, “taking revenge” and “balancing the scales” (Haque, 2005: pp. 279-280) .
Victims are often excluded from the criminal justice process, as cases often end in settlement and therefore never go to court. Victims who are excluded from the proceedings are often disillusioned with the criminal justice system and feel that justice has not been done. The insensitive reactions of criminal justice authorities can also lead to secondary victimization on their part (Wemmers, 2010: pp. 27-28) .
When society does not take any action against the perpetrator, it creates the impression that the victim is not cared for and that he or she is a cipher to be used for a greater purpose, or even an object unworthy of protection. The important thing is to ensure that the victim is given equal status by society with everyone else. Compensation means redressing the imbalance in human values between the perpetrator and the victim (Villa-Vicencio, 1999: pp. 174-175) .
This is because victims of genocide and other mass crimes are, in the words of Shoshana Felman, “individuals who have not only suffered unjustly, but have also been silenced by history.” They have been killed, disappeared or silenced by fear or shame; their experiences have been denied, covered up, ignored. In order to right the wrongs they have suffered, it is necessary to restore their voices and enable them to bear witness to the horrors they have experienced (Mohamed, 2015: p. 1177) .
The public condemnation and punishment of perpetrators and the restoration of the injured moral status of victims by the law is one of the fundamental duties of the modern state. In other words, the state has a moral obligation to hold criminals accountable and punish them for violating the law.
Therefore, criminal justice interventions aimed at reducing secondary trauma also improve access to justice. In other words, the dignity and autonomy of victims can be rebuilt and homicide against women can be prevented by increasing the likelihood of accountability of perpetrators. Therefore, the implementation of criminal justice can prevent women from being victimised again (Cited in (Walby et al., 2015: p. 129) ).
However, most of these initiatives have not yielded positive results. Criminal justice is therefore necessary in temporary interim phases, but can produce a more lasting result when other structural inequalities are addressed.
Recently, there have been empirical studies on the inclusion of the victim in the court proceedings. For example, Sarah Goodrum (2013: p. 257) examined the victim-prosecutor relationship, the limited rights of victims and their satisfaction, focusing on people who have lost relatives to homicide. In her case-biographical analysis, Heimer (2001) tried to explain the gaps between the tone of the emotional dimension, the responsibilities of judges and the expectations of victims. In this study, Heimer argues that organizations, such as the criminal justice system, respond to “cases” in a standardized and unemotional way, while individuals (victims of crime) respond to cases in a more intimate or “biographical” way.
3.3. Punishing Judge
The punisher may exercise his or her choices objectively when carrying out the task of punishment and exercising his or her legal authority. A judge may refer to the importance of sentencing a murderer who, for whatever reason, appears to pose too much danger to others in the future to a longer sentence in order to neutralise him and prevent him from re-offending.
The moral relationship between the punisher and the offender is clear. This relationship includes the power to punish the offence as well as the duty to reflect justifications, excuses and mitigating circumstances in the application and adjustment of punishments. The former is a response to the injustice suffered by the victim and the latter is a response to the circumstances encountered and the choices made by the offender. The traditional principle of proportionality encompasses both duties and states that it is permissible (or necessary) to punish wrongdoers in proportion to their wrongdoing. However, this permission (or requirement) is not universal: modern states in particular claim exclusive jurisdiction over punishment (Haque, 2005: pp. 280-281) .
However, Haque (2005: pp. 280-281) argues that the relationship between the punitive perpetrator and the victim of crime is controversial20. In their empirical studies, Tyler and Degoey found that trust in the benevolence and moral character (but not competence) of officials shapes individuals’ willingness to accept their decisions (Tsai, 2021: p. 52) .
Nevertheless, it is also noteworthy that there are discourses about judges who are “involved in criminal activities or have pent-up anger and may manipulate sentences for their own personal revenge”. For example, Corey & Joireman (2004: p. 85) state that “in the Gacaca case, the Tutsis were very concerned about the independence and impartiality of the Gacaca judges, as almost all of those selected were involved in some way in the genocide.” Banerjee (2002) states that the prosecutors who investigated the Gujarat events were highly biased.
4. Methodology of the Research
The study sought to answer the question, what is the role of the principle of retributive justice in preventing lethal gender-based violence? For this purpose, using 14,214 tweets (1707 coding) and an open-ended questionnaire of 94 people, qualitative (observation, content analysis of tweet and questionnaire responses) and quantitative (semi-structured questionnaire and tweet counts) research techniques were used together in a complementary manner, without considering a hierarchical order. The data obtained were codesesed by content analysis21 method. This codesesing was done by utilising both codesesing with predetermined concepts and codesesing with concepts extracted from the data. Firstly, words were determined based on the data, and then the concepts in the categories of the punitive justice principle in the literature were entered into the system. Then, codes and sub-codes were created.
In this framework, the analysis findings of the study are detailed below.
Findings
Figure 1 shows the parties to the principle of retributive justice (the perpetrator and the defense lawyer defending the perpetrator, the victim/victim and the prosecutor as the legal authority with the status of punisher), the reasons why this principle should be applied in cases of fatal violence against women, the expressive emotional reactions experienced during and after the trial, as well as the desired forms of punishment for the perpetrator.
According to Figure 1, the emotion of anger/resentment is felt the most against lethal gender violence (295 codes). This feeling is sometimes felt towards the legal actors (the defense lawyer and the prosecutor) who priorities the safety of the perpetrators and undertake their protection, towards the murderers themselves and their families who raised them, and thus towards the educational and political power.
It is sometimes felt against the protracted and fruitless litigation processes themselves and, more generally, against the legal system itself. In addition, it is considered that punitive vindication (characteristic of the modern principle of retributive justice as repayment of the harm caused by the perpetrator to the victim) should be provided by the legal authority (the judge).
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Figure 1. Retributive justice (hierarchical codes-subcodes model).
As Darley & Pittman (2003) state, “instances of retributive justice, especially when the harm inflicted is intentional, evoke an overriding urge to punish the offender, which may be accompanied by a sense of moral outrage, a combination of anger, disgust, and humiliation.”
Bindal (2009: p. 311) argues that “the theory of retribution is in no way motivated by barbaric motives, such as the desire for revenge or vindictiveness, but is, on the contrary, a form of punishment proportionally appropriate to the crime.” And furthermore, “the only idea behind this proposition is that of justice.”22
Bindal (2009: p. 312) states that “the theory of punishment is built on a model that respects human autonomy and the rights to be and remain human.” According to him, this model is more attractive than the therapeutic or rehabilitative model, which sees the “accused” as “sick, helpless or childlike”, and the utilitarian model, which “can be used or manipulated for the common good”.
In addition, according to Figure 1, the subjects of retributive justice are the offender (and the defense lawyer for the accused), the victim/survivor and the judge as the representative of the legal authority. In fact, until the 1970s, victims in the criminal justice system were considered as witnesses of a crime against the State, which essentially defined their role in the criminal justice system. Still today, in common law or adversarial criminal justice systems, the proceedings are based on two parties: The state versus the accused. These two parties, both armed with laws to protect them, fight it out before a judge.
The victim is not a party to the proceedings. In the 1980s, new efforts were made to improve the treatment of victims of crime in the criminal justice system. For example, in 1985 the United Nations (UN) General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Authority, which includes a list of recommendations for Member States. States have aimed to ensure access to justice and fair treatment of victims. However, despite all efforts, the implementation of victims’ rights has proved to be extremely difficult (Wemmers, 2010: pp. 27-28) .
As expressed by Twitter users and survey participants; the following codes are among the causes of fatal female violence: Transformation of social values/ immorality/conscience (134 codes), distrust/disappointment in the general justice system (106), excuses for crime (103 codes); characteristics of the justice system in the country/injustice (34 codes); political power/regime (13 codes); status/ power/money (4 codes). Some of the emotional reactions left by these reasons in the society are anger/resentment (295 codes), disgust (156), despair (103 codes), hatred/grudge/revenge (74 codes).
As James Stephens said: “It is necessary to respect victims’ feelings of hatred and revenge. But, more importantly, it is necessary to institutionalize it to avoid excesses that are incompatible with other important values of the justice system.” (cited in (Bindal, 2009: p. 315) ) This is precisely the point to which the theory of retribution points. In other words, it is becoming more and more important today, when specialized justice, such as the lynching of the accused, is on an unprecedented rise.
As Bindal rightly argues, the above data confirms why the principle of retributive justice is a model that should be applied in cases of fatal violence against women. This is because one of the predictions of retributivism is that “in a more organized way, the desired result can be achieved, and the masses can be deterred from private justice.”
What kind of punishment is required for the perpetrator of lethal forms of violence? Silencing criminals/execution/killing (27 codes), individualised sentencing (13 codes), the imposition of deserved pain and serious penalties (16 codes), demanding justice to get out of the darkness (10 codes), aggravated life sentence (9 codes), tit for tit (10 codes), civil penalty sanction/confinement (6 codes) and castration (2 codes).
In Figure 2, there are two separate interrelated figures. According to the figure on the left, a high level of correlation was found between the codes distrust/ disappointment in the general justice system (106), mentality of the defense lawyer (code 140).
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Figure 2. Intersectionality between deservedness, judgements about victims’ lifestyles, the way the perpetrator is punished and certain emotions (figure-codesese map on the right).
It is necessary to insist that the principle of retributive justice is functional in chaotic times of instability (times of transition when the regime is in crisis) and in structural and institutional Panoptic patriarchal regimes, especially when it comes to forms of violence against women and femicide.
In this regard, for example, it would be useful to look at the findings of Corey & Joireman (2004) . According to them, “the Gacaca arrangement is unique and quite different from other Western legal systems that emphasize the individual. The person found guilty faces a range of possible penalties, ranging from community service obligation to life imprisonment, but the offender cannot be sentenced to death (unlike national courts). The authorities expect that thousands of people will be released and return home while the Gacaca trials continue, either because they have been found not guilty or because they have been sentenced to community service or have already served their sentence.”
Costantino (2006) empirically explains the retributive injustice following femicide in Guatemala during the thirty-six years of civil conflict (1960-1996) in which civilians, mostly indigenous, were subjected to genocide by military and secret security forces.
In the empirical study conducted by Aka (2022) , it was found that the principle of retributive justice is mostly practiced in favor of perpetrators (prioritizing their protection and safety), although it creates intense fear and anxiety on victims and potential victims.
According to Figure 3, very high and high level) correlations were found between anger/resentment and hatred/grudge/revenge (60 times); between anger/resentment and despair (57 times); between anger/resentment and surprised
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Figure 3. Intersectionality between the general glaciation of the justice system, deservedness, the way the perpetrator is punished and emotion (codesese relationship browser).
(51 times). In addition, there was a correlation between excuses for crime (lifestyle, legalisation of moral codes) and mentality of the defence lawyer (44 times); between mentality of the defence lawyer and deser (37 times); between mentality of the defence lawyer and mentality of the defence lawyer (39 times); between mentality of the defence lawyer and anger (33 times); between mentality of the defence lawyer and desert (37 times); between distrust/disappointment in the general justice system and desert (32 times).
These data in fact blame the forgotten subject of the criminal justice system and victimize him/her a second time. As Vetten and Bhana note, “through insensitive or victim-blaming, misinformed processes, victims and survivors are forced to experience secondary victimization.” Helping rape victims by preventing secondary trauma to victims is effective in increasing conviction rates of victim-centered interventions (Walby et al., 2015: p. 129) .
In addition to this, in Figure 3, intersectionality was found 22 times between anger/resentment and silencing criminals/execution/killing codes and 17 times with individualized sentencing cod; 32 times between desert and distrust/disappointment in the general justice system codes.
These data can be analyzed as follows: As an equal member of the society, the perpetrator has both violated the law and committed a grave moral offence by killing his female victim. Thus, by violating the principle of equal citizenship, he gained superiority over both the law and the victim. The punitive authority (the prosecutor) must give the perpetrator the punishment he deserves (The principle of Responsibility).
In this way, the honor of the humiliated victim is restored. It also restores the victim’s status as an equal citizen before the law. Outraged Twitter users and survey respondents believe that if the punisher fails to achieve this equal deservingness of punishment, the perpetrator should either be silenced or punished individually (in accordance with the principle of proportionality). Furthermore, if the perpetrator is not remorseful for his/her crime and rationalizes it, this would have a negative impact on both the victim and society.
This data is significant in that it indicates that the principle of retributive justice is very important in lethal forms of gender-based violence. In other words, when the perpetrator is not punished as he or she deserves, the victim and his or her parties will have a desire for individual revenge. This would make harmonious coexistence more difficult and undermine trust in the law. As Jean Hampton reminds us, “punishment has a telos”: not to punish, but to restore good order and promote the common good (Villa-Vicencio, 1999: p. 174) .
In this principle of justice, “the methods of punishing criminality and criminals have become more important.” (Heller, 1987: p. 206) The principle of punishment includes the idea that “wrongdoing” is a function of two independent components, intrinsic and extrinsic: a factor intrinsic to the offender, “malice, motive or reasons for causing (or attempting to cause) culpable harm to others”; and a factor extrinsic to the offender, “harm to the victim (s)” (Bedau, 1978: p. 612) .
In other words, the punishment that the perpetrator deserves cannot compensate for the harm caused to the victim, but it can, to some extent, provide the victim with emotional relief.
5. Conclusion and Assessment
The principle of retributive justice, which has become a universal categorical imperative, must be applied in the harshest manner in order to prevent femicide, which is constantly on the rise (unfortunately, this is not a trend of regularity and success in economic development) and which takes place in the most brutal manner in the world and in Turkey during transitional phases in which structural crises are sometimes experienced simultaneously and sometimes diachronically. Because in the modern world, the inability to stop such barbaric murders of women leads to the further strengthening of the dominant states of masculinity and to these states reaching the status of being the God (king-state) of the earth.
Retributivism, which in primitive tribes meant restitution, has unfortunately become a necessity in the modern world (of course, in the prevention of irreparable crimes, lethal forms of violence against women, etc.). For example, as Tsai (2021) puts it: “When the US Supreme Court reinstated the death penalty in 1976, it recognized that ‘the instinct for revenge is part of human nature’ but went on to discuss the importance of society deciding what is a just revenge that benefits society as a whole.”
In changing and transforming conditions of time and space, the degree of punishment should also increase in accordance with the increasing forms of violence. The meanings attributed to the categories of reform, rehabilitation, deterrent punishment, etc. also change according to the moral, ethical, conscientious, and legal values and norms of time and culture.
The punitive perpetrator, who destroys his prey (victim) with primitive, barbaric and vengeful motives, must now be subjected to the harshest forms of punishment both for his moral and legal misdemeanors’, and in order to serve as a deterrent and a precedent for himself and potential perpetrators. Based on this idea, the following can be said about the data of the study:
While there is a much more intense correlation between emotions, there is a high and medium level of correlation between the arguments developed to create new victimization for the victims for the perpetrators to receive less or no punishment and the mentality of the defense lawyer. In particular, the defense lawyer’s defense based on the moral codes of the murdered victims was found to be very disgusting and caused anger/anger. Some of these tweets:
“a woman is raped and murdered, and it is judged on the basis of her not being a virgin, drinking beer, shaking hands with men.” “It’s 2019, bigots are still trying to mitigate rape by saying ‘but she was not a virgin’.” “What a disgrace it is that justice still defends murderers and rapists.”
These data are also very significant in terms of showing that general forms of lethal violence have become deeper and more primitive. Would the number of women killed in the world and in Turkey have increased to such an extent if punishments had been severe and harsh in a deterrent manner? Of course, it is not possible to explain the answer to this question only with impunity and inadequate punishment.
Different discourses and truths of power are produced in every period and space. In Bourdieu (2001: p. 1) ’s words, “our perception of reality and the laws that shape our experience of the real world in which we are determined and controlled are constructed from the dominant point of view. Spheres of knowledge production, such as law, facilitate certain forms of action as well as the nurturing of tolerance towards certain forms of aggression and the legitimization of certain power relations and hierarchies.” For example, when we argue that emotions such as pain, anger, fear, hatred, helplessness, sadness, insecurity, and disbelief, which can be read because of discriminatory practices, are learnt within social and cultural structures, the use of symbolic forms of violence becomes legitimate. Accordingly, “the established order, with its relations of domination, its rights and privileges, its privileges and injustices, ultimately sustains itself so easily” because the legal nature is so deeply rooted in the cognitive structures of individuals that it needs no justification.
It is necessary to insist on the social and cultural structure in which the principle of retributive justice, which is considered to have an important role in both the cause and prevention of violence against women and femicides, is functional. Because with the structural transformation of social values, moral, ethical, and conscientious norms, the mentality that normalizes violence has become more effective.
Despite the increase in the severity of the crimes committed, justifications are being produced that innocently justify this violence in a mind-boggling way. In other words, the traces of moral, economic, political, religious, economic, political, religious and cultural changes, transformations and crises have been made visible on vulnerable and fragile women’s bodies. Moreover, this primitive form of murderous violence has become increasingly barbaric. For example, “raping and throwing from the 20th floor”, “dismembering the body and throwing it in the rubbish bin” and “burning the body to destroy evidence” (the idea that “no evidence means no crime”).
The principle of proportionality of criminal justice, which is not applied according to the gravity of the violence, seems to have taken on a role of encouraging and incentivizing this lethal form of violence. In the end, the survey participants and Twitter users drew the most attention to the following point: In the case of all forms and fatal violence against women, the policy of impunity and light and inadequate punishment is circulated, while deterrent heavy and harsh penalties are not imposed. As one survey respondent put it:
“The law generally protects murderers and rapists in femicide cases and imposes sanctions accordingly. Therefore, the victims and their relatives unfortunately do not get the results they want after years of litigation. In addition, in murder cases, the punitive authority (the prosecutor) and the defense lawyer try to obtain a lesser sentence for the suspected murderer through the victim’s accusatory defense on moral grounds.”
As an equal member of society, the perpetrator, by killing his female victim, broke the law and committed a grave moral offence. Thus, he has gained the upper hand over both the law and the victim, contrary to the principle of equal citizenship. The sentencing authority (the prosecutor) must give the perpetrator the punishment he or she deserves (principle of necessity). This restores the honor of the victim who has been humiliated. At the same time, the victim regains his or her status as an equal citizen before the law. Outraged Twitter users and survey participants believe that if the punisher does not apply this equal punishment, the perpetrator should either be silenced or punished individually (according to the principle of proportionality). Furthermore, if the perpetrator shows no remorse for his or her crime and rationalizes it, this will have a negative impact on both the victim and society.
In accordance with the modern social contract and the status of equal citizenship, regardless of their socio-political and economic status, the perpetrator who commits serious crimes and misdemeanors in the most brutal manner must be punished by the punitive legal authority within the framework of “obligation and proportionality”. In addition, the painful experiences of the victim subject (and other potential victim subjects) should be shared in court proceedings without questioning their lifestyle and moral codes.
People should receive the benefits they deserve as well as the punishments they deserve. In the neoliberal economic/political/cultural and social space, individual rights must be protected in the conflicting relations between individuals’ perceptions of entitlement and their preferences for redistribution. At the same time, institutional arrangements to support retributive justice must be made very carefully. Legal, moral, and ethical norms should be reorganized and perpetrators who violate these norms should be punished in the harshest manner.
Instead of destructive forms of masculinity and the way it manifests itself, a justice system must be built in which human dignity is protected, no one is hurt, and everyone’s individual freedoms are respected. And this must of course be adopted as social, educational, and family policies.
As a final word, there should be an active interaction between the punishing subject and the victimized subjects, and the principle of lex talionis should be applied to perpetrators where necessary and within the legal framework.
NOTES
1In Türkiye, between these years, there have been some structural crises with heavy socio/political, economic/moral and legal costs. For example, after the 1990s, “neoliberal conservative economic policy and ideology were put into circulation, which made its weight felt in all social institutions and structural forms of relations; neoliberal conservative economic policy and ideology were put into circulation; the principles of security and justice underwent structural transformation; very different forms of emotions (anger, hatred, fear, resentment, despair) became very much felt.” (Aka, 2019, 2022, 2023) As a concrete practice of the transition to a society of control, severe mobbing incidents were experienced in institutions (Aka, 2017) . Panoptic patriarchal forms of power were accepted in many structures, ideologies and practices; they started to be felt more as a new form of socialisation and acculturation. There was a debate on deliberative democracy, which turned out to be a utopian assumption that could not be realised (my emphasis). The Gezi Events (2013), which can be defined as a new middle class movement, and the Coup Attempt on 15 July 2016 and the subsequent State of Emergency (OHAL) was declared in Turkey on 21 July 2016 based on Articles 119-122 of the 1982 constitution. The state of emergency was extended 7 times in total, lasted for 2 years and ended on 18 July 2018. Global health crisis on 17 November 2019 (Covid 19). Turkey also experienced a natural disaster in which many people died (Earthquakes Affected 10 Provinces with a Population of 13.5 Million People, 2023). In a social and cultural structure where there is sharp polarisation and the distance between people has widened considerably, one of the most important reasons for the increase in lethal violence against women is unfortunately the injustice of punishment. Other crises are also very important factors for this primitive form of violence.
2Reading the Panoptic Effects of Femicide on Twitter: “The Case of Türkiye” was supported by Canakkale Onsekiz Mart University Scientific Research Projects Coordination Unit. Project Number: 3186.
3It refers to a range of policy interventions designed to ensure justice, uncover truth and promote reconciliation in order to promote peace and establish democracy in the aftermath of political conflicts and authoritarian regimes (David & Choi, 2009: p. 162) .
4This reminds us once again how important it is to read the theorists’ own texts.
5The English verb “to retribute” derives from the Latin verb retribuere and means the same as it does, viz. “to give back” (Day, 1978: p. 500) ; tribuere, literally “to divide among tribes” (Fassin, 2018: p. 47) . Fassin’s point is that the root meaning traces to a tort-like idea, that when members of one tribe harm members of another, they have to pay compensation to keep the peace. There is something at least mysterious, however, in the modern thought that an individual could owe suffering punishment to his fellow citizens for having committed a wrong. How does his suffering punishment “pay his debt to society”? Important as it is to recognize this question, it is also important to recognize that the concept of retributive justice has evolved, and any quest for its justification must start with the thought that the core of the concept is no longer debt repayment but deserved punishment (Stanford Encyclopedia of Philosophy, 2020) .
6The conception of just deserts, a fundamental moral idea, is rendered meaningless. If a man deserves something, he deserves it for what he has done, not for what the bestowal of that something upon him will produce in the way of social effects. If reward and punishment are directed, not at past deeds, but at future states of the universe, then it could conceivably be required to reward the criminal and to punish the innocent (Garvin, 1945: p. 275) .
7Three ideas sometimes confused with retributivism: lex talionis, retrospective criminal justice, and sublimated vengeance (Stanford Encyclopedia of Philosophy, 2020) .
8Repayment, Desert, Penalty, Minimalism, Satisfaction, Fair Play, Placation, Annulment, Denunciation Theries.
9Not all theories treat the notion of a rule as central. Others see punishment simply as an expression, whether of disapproval or of the desire to restore the status quo (Walker, 1999: pp. 604-605) .
10 Koritansky (2005: p. 319) states that these two debates were inconclusive and that both sides reached a kind of impasse. According to him, “this is because the retributivists have based their position mainly on Immanuel Kant’s penology.” Koritansky’s claim is that “it is Thomas Aquinas who provides a more convincing, moderate and reasonable account of punishment.”
11 Villa-Vicencio (1999: p. 167) shall also argue that revenge, both in its naked form as well as in its ameliorated version as “judicial retribution”, as a response to abuse or loss, is both understandable and probably necessary. Moreover, he will seek to show that a thorough and deep understanding of justice and reparation requires more than revenge. I shall argue that the protection of life and the right to peaceful co-existence is a fundamental human right that needs to take precedence over abstract, unbending notions of justice and even the (moral/legal?) obligation to prosecute.
12Corlett therefore states that “Rawls is wrong about whether and why retributivism and utilitarianism can be reconciled, but this does not mean that Rawls does not point to an importantdistinctionbetweenthe kinds of questions that retributivists face.” Brooks (2001: p. 561) critically evaluates J. Angelo Corlett’s recent interpretation of Kant’s theory of punishment and his rejection of Hegel’s penology.
13Transitional justice initiatives usually address the most egregious human rights abuses and thus are by nature selective in terms of what crimes are addressed, which perpetrators are held accountable, and even which victims are offered redress. Transitional justice is less about reconstructing the past and more about transforming the present and creating a new direction for the future. There is no universal agreement on the most appropriate timeframe for transitional justice to be useful. This is one of the most important debates in the field (For details see (Alam, 2014: pp. 15-16) ).
14This relational view of accountability justifies holding individual group members responsible for collective harms because the perspectives of the person at fault are also taken into account. Central to this view is the “principle of complicity” which is “underpinned by the second-person perspective of the perspective of the person harmed”: “When I intentionally participate in the wrongdoing of others or in the harm they cause, I am responsible for their actions. I am responsible for the harm or wrong we do together, regardless of the actual difference I make.” (Kutz 2000: pp. 122-123)
15Commensurateness is a cardinal principle requiring that the severity of punishment be condign in the sense that it reflect in absolute terms the seriousness of the offence (usually understood as a function of the wrongdoer’s culpability and the extent of the harm caused) for which it is imposed.
16Proportionality is an ordinal principle mandating that there be a tariff of punishments, with the more serious crimes aligned with more serious punishments and less serious offences with lighter exactions.
17Lex talionis is Latin for the law of retaliation. It connects to the original retributive notion of paying back a debt, and it specifies that the debt is to be paid back in kind. Kant also endorses, in a somewhat different way, this notion of punishment. Invoking the principle of equality for punishment, Kant writes: whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. Thus, he who steals deprives himself (by the principle of retribution) of security in any property… [and if] he has committed murder he must die (Stanford Encyclopedia of Philosophy, 2020) . Lex talionis insists that no more be demanded of the perpetrator than an “eye for an eye” (Villa-Vicencio, 1999: p. 176) . Formally, the lex talionis is “the principle that the punishment must be in favour of the one who imposes it.” It is made proportionate to the gravity of the offence or otherwise “appropriate to the offence”…Lex talionis can also be understood “materially”, i.e. as a principle that requires the punishment to be (at least in part) proportionate to the harm caused (or perhaps limited to the harm caused).
18In other words, the moral and legal relationship between the punisher and the offender is in itself based on an extremely simple logic: “The power to punish the misdemeanour and, in addition, the duty to apply and adjust the penalties, to take into account justifications, excuses and mitigating circumstances. The former is a response to the injustice suffered by the victim, the latter to the circumstances encountered and the choices made by the offender.” (Haque, 2005: pp. 280-281)
19According to Villa-Vicencio (1999: p. 175) , this expectation is a double-edged sword. It means telling the perpetrator that “you are being punished because you have the capacity not to behave in the way you did.” As such, punishment is not a punishment to satisfy a basic need for revenge, but a means of restoring the moral order of society. It involves a constant questioning of the extent to which retributive justice fulfils this purpose.
201) The State initiates and conducts the prosecution 2) the prosecution is justified by the state’s interest; 3) the victim has no legal recourse against non-prosecution; and 4) how can the duty to punish the offender be owed to the victim, given that the victim cannot waive the duty to punish and forgive the offender? Each of these questions both privatises and misunderstands legal practice (Haque, 2005) .
21Content analysis can be understood as a methodological framework within which various textual and non-textual analytical approaches are applied. This methodological approach makes it possible to systematically draw valid conclusions from data “in terms of the contexts of their use” (Krippendorf, 2004, p. 18; cited in (Einspanner, Dang-Anh, & Thimm, 2016: p. 157) ) by interpreting frequency distributions and co-ocurrence patterns of single analytical units.
22He makes this claim based on the classical form of punishment, which imposed punishment in a disproportionate manner: The savage and barbaric conception of punishment, disproportionately applied, corresponds to the pre-classical conception of punishment. This conception of punishment sees criminality or deviance as an otherworldly phenomenon attributed to demonic activity. Thus, disproportionate punishments were imposed on those accused of offences. The dominant ideology governing this form of punishment assumes that “divinity is on the side of the good and righteous and intervenes in wrongdoing.” (Bindal, 2009: p. 311)