3 should not include this savage law, made more atrocious because legalized murder is carried out according to deliberate procedures. It seems odd that the law, in other words, the expression of popular will, which detests and punishes murder, would commit the act itself, and do so in order to deter citizens from committing murder by ordering a public execution.” 8 7. The subject has received attention in the philosophy of Law for the last two centuries. In the twentieth century, L. Racaséns Siches, for example, confessed, in the 1960s, his anguish with respect to the doctrine of retribution used to justify the penalty, in other words, the understanding that “undeserved harm that an individual inflicts on another should be inflicted on that person” (jus talionis); thus, the central objective of legal retribution (or retributive justice) is the reestablishment or the restoration of the act perpetrated by the crime; 9 however, he conceded that even with this response to the law violated (expression of social censure of the crime), in the context of reintegration of the established legal regime (which does not fail to express a “vindictive side”), it is necessary to be watchful for the failings of human justice and the irreparable nature of judicial error. 10 8. In one of his works, Recaséns Siches went further, discarding the “objective idea” of retribution in the following way: The degree of guilt cannot be determined by taking into account only objective prejudices; but rather it should also depend on the level of premeditated intent and ill will. The purpose of considering subjective factors, including the motive and all the circumstances of the offender does not in any way diminish the primary purpose of punishment, as fitting or proper; on the contrary, it only reinforces this purpose. Finding the person guilty is clearly consistent with the norm of retribution, precisely because punishment is only symbolic compensation or restoration of the prior state, and consequently, should also depend on subjective factors. In the place of simple mathematical equality, proportional equality enters into the equation: for an equal crime, equal punishment according to the measure of the interior inequality which lies under external equality, or according to the extent of internal equality, which lies under exterior inequality. 11 8 C. Beccaria, De los Delitos y de las Penas, Madrid, Alianza Ed., 2000 (new edition) chapter 28, pp. 81 and 86-87 (Translation by the Secretariat of the Court). In his 1776 commentary on the aforementioned work of Beccaria, Voltaire emphasized that “much worse than death” – was the uncertainty and waiting and observed that “refined executions that human reason has invented to make death horrible seem to have been invented more by tyranny than by justice;” Ibid. pp. 129 and 149. In another essay, The Price of Justice (1777), Voltaire again referred to prison as “torture” and added that murder should not be punished with another murder since “death repairs nothing;” Voltaire, O Preço da Justiça São Paulo, Martins Fontes, 2001 pp. 17-19 and 101; for him the raison d’Etat did not go beyond an “invented expression to serve as an excuse for the tyrants;” ibid. p. 80. 9 L. Ricanséns Siches, “La Pena de Muerte, Grave Problema con Múltiples Facetas,” in A Pena de Morte (Coloquio Internacional de Coimbra of 1967), vol. II, Coimbra, University of Coimbra, 1967, pp. 12 and 14-16 (Translation by the Secretariat of the Court). 10 11 Ibid., pp. 17, 19-20. L. Recaséns Siches, Panorana del Pensamiento Jurídico en el Siglo XX, vol. II (1a. ed.), Mexico, Editorial Porrúa, 1963, p. 796 (Translation by the Secretariat of the Court).