By: AYINLA FRIDAOUS OPEYEMI
INTRODUCTION
Justice basically epitomize impartiality, fairness, equity, righteousness, rightness and reasonability.
Justice is the concept of treating people without being biased or impartial in accordance with laid down rules and conduct alongside moral principles. It involves how benefits, burdens and liabilities are distributed fairly in the society.
Retributive justice is a principle of justice where wrongdoers receive punishment proportional to the severity of their crime, based on the principle that they “deserve” to be penalized for their actions. Retributive justice is about punishing the offender, deterrence and the principle of life for life, eye for eye, tooth for tooth, hand for hand and foot for foot that is offenders should be punished proportionately to the harm caused.
Restorative Justice is an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime. Restorative justice has shifted the focus of justice from punishment to healing and repairing to do with reconciliation, mending the harm made and it is mostly centered around the victim.
While retributive justice has been the norm in legal systems for a long time, restorative justice offers an alternative that prioritize healing. The two mode of justice needs to be balanced for there to be an effective justice delivery.
THE CONCEPT OF JUSTICE IN LAW
Justice, for ARISTOTLE, consists in restoring or maintaining a proper balance. It is a state of people having what they are due to. It involves treating equals equally and unequal unequally based on their merit, striving for proportionality in distributions and reciprocal transactions.
According to PLATO, justice is a fundamental human virtue and a condition of the soul where each part performs its proper function without interfering with others, creating harmony within the individual and society. He posits that justice is not the right of the stronger but the effective harmony of the whole.
Justice according to Black’s Law Dictionary, according to Black’s Law Dictionary, justice is defined as “the moral principle determining just conduct.” It refers to the quality of being fair and reasonable.
In Law, Justice can be defined as the administration of what is fair especially by the impartial adjustment of conflicting claims. Justice in law means that rules are created and applied fairly, ensuring equality before thelaw and courts are seen as instruments of justice, where disputes are settled impartially and rights are protected. In the case of Okpe v. Fan Milk Plc (2017) 2 NWLR (Pt. 1549) 282, it was held that Justice is fair and proper administration of laws, whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which, as of right, entitles the successful party to judgment. That is why justice is said to be a three-way-traffic as held in the case of JOSIAH V STATE (1985) 1 NWLR (Pt. 1) 125 where the court held that there is justice for the accused, Justice for the victim and finally justice for the society at large that is the society whose social norms and values had been desecrated and broken by the criminal act.
RETRIBUTIVE JUSTICE
Retributive Justice is a legal concept that bothers on a criminal offender receiving punitive damages and sentencing proportionate or similar to the offence committed. Unlike revenge, retributive justice isn’t personal. It is directed at the wrongdoing that was done and to deter and prevent further occurrence of such crimes.
The main essence of retributive justice is for the offender to deter from the commission of such crime in future and to serve as a lesson for other members of the society. It is also to serve as a balance of scale in the society i.e. the offender being punished is him paying for the disruption he caused in the society by the crime committed. It also emphasizes that wrongdoers are responsible for their actions and must face the consequences and be accountable for it.
In retributive Justice, it is improper to allow guilty individuals to go unpunished. Because punishment must be deserved and follow culpable actions, it is inappropriate to deny individuals the consequences of their actions.
However, it is trite to know that retributive justice is not without its cons. Punishment alone may not address the root of the issue that contributes criminal behavior. Punishing the criminals does not give assurance that they would deter from the offence they committed or other offences. It is also very costly to maintain large prisons especially in a developing country like Nigeria where the proper maintenance of prison has been a challenge for a long time. Retributive justice could also cause or create a cycle of revenge and retaliation jeopardizing the life of the victim. Also, because the goal of retributive justice is to punish the offender, little or no effort is put in place to reform the offender.
RESTORATIVE JUSTICE
Restorative Justice is a concept of justice that focuses on repairing the harm caused by wrongdoing rather than simply punishing the offender. It emphasizes healing for victims, accountability for offenders, and the restoration of relationships. The goal of restorative justice is to secure accountability and a plan that fosters understanding. Some of the most common programs typically associated with restorative justice are mediation and conflict-resolution programs, family group conferences, victim-impact panels, victim–offender mediation etc.
Restorative justice encapsulates resolving conflicts by repairing the harm caused rather than punishing the offender. It also allows the reintegration of the offender into the community and encourages making of reparation to the victim. Restorative justice also increases victim satisfaction and community cohesion. It fosters a sense of understanding among the victim, the society and the offender.
The limitation of restorative justice includes the fact that it only works better for lesser crimes. For instance, in a case of murder where the victim is no longer alive to participate, and the family may be too traumatized to want reconciliation. Society usually demands retribution instead.
The victims may be pressured to reconcile or forgive their offenders or be traumatized when brought to face their offenders like in a case of sexual assault. Also, the offenders may become manipulative and gaslight the victim to avoid accountability for their offense. Restorative justice would only work in a situation where the offender accepts accountability and responsibility which is rare in the contemporary justice system of today.
COMPARING RETRIBUTIVE JUSTICE AND RESTORATIVE JUSTICE
Retributive and Restorative justice shows two distinct approaches to the theory of punishment in Nigeria. While they both aim at upholding the rule of law and protecting the society, they have their differences. The most noticeable distinction being what they focus on. Restorative Justice put first healing and repairing the harm caused while retributive justice focuses on punishment of offenders for their wrong doing.
Retributive Justice is backward looking that is it focuses on the wrong that has been done while restorative justice is forward looking that is it focuses on how to repair the harm that was caused.
Retributive justice is about fair punishment, proportional to the wrongdoing, ensuring that offenders face the consequences of their actions. However, restorative justice is more of asking and encouraging offenders to take responsibility for their actions and making amends to the victim and community.
While restorative justice places first the voice and need of the victim which creates a sense of justice, retributive justice put at the forefront, punishing the offender as a medium for other members of the society to deter from such offence.
Retributive Justice can prevent offenders from committing further offences by imprisoning or incapacitating them but under restorative justice, they can only hope and encourage the offenders not to commit further offences.
CONCLUSION
It is important to understand that both retributive justice and restorative justice serves justice and seek to uphold the rule of law as earlier stated but in different ways.
Retributive justice emphasizes on punishment, deterrence and satisfying the society’s disapproval of criminal acts but overlooking the need of the victim and prison congestion.
Restorative justice on the other hand, prioritizes accountability, reconciliation and reintegration of offenders but can lead to pressure, exploitation and victimization of the victim.
However, in a country like Nigeria, focusing on a particular mode of justice or theory of punishment would make little or no effort in reducing crime rates and address the challenges facing the criminal justice system. A combined system of both is what would do that as it would ensure punishment where necessary and healing where required.
