2.1 Revenge
Oliver Wendell Holmes wrote that retribution is "only vengeance in disguise."[66] Most of us, when we hear someone declare that we ought to punish for the sake of retribution, associate retribution with revenge or retaliation (which we wrongly conflate).[67] We think of the biblical expression of the lex talionis :
And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth.[68]
Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.[69]
We have been taught to resist the urge to retaliate:
Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.[70]
Christianity has denounced retaliation, and, consequently, in the minds of many, retributive accounts of punishment. Of course, many of us do not easily heed Christ's words. We hardly need the survey research of social scientists (though
[66] Oliver Wendell Holmes, The Common Law (Boston: Little, Brown, 1923), p. 45.
[67] The justice of retaliation, or lex talionis , was deeply entrenched in the moral sensibilities of the Greeks and other archaic societies: see Gregory Vlastos, "Socrates' Contribution to the Greek Sense of Justice," Archaiognosia , vol. 1, no. 2 (1980), pp. 304ff. It was thought of as repayment, and the metaphor of paying back a debt was often used to characterize this sense of justice. Revenge is different, measuring punishment by the feelings of the victim.
[68] Exodus 21:24.
[69] Leviticus 25:20.
[70] Matthew 5:38–39.
the data are available) to tell us that revenge is an urge deeply seated in us.[71]
The law of the talio , or of retaliation, is not necessarily connected to the idea of revenge. To see punishment as revenge is to focus on the motivations of the punisher, whereas the lex talionis is a law of equivalence that dictates what punishment is commensurate with the crime; it is not a theory of motivation. Both the talio and the view that we punish to avenge have been discredited by most modern retributivists.
Retributivists needn't commit to the lex talionis . One of the most famous and important retributivists, Hegel, is sharply critical of the lex talionis , using Blackstone's example to make his point: "an eye for an eye, a tooth for a tooth—and then you can go on to suppose that the criminal has only one eye or no teeth."[72] In any case, what amount of punishment we inflict is one question; why we punish is another. No retributivist of repute takes the lex talionis as the justification for punishing at all. One modern retributivist, Joel Feinberg, calls "incoherent" the version of retributive theory that insists "that the ultimate justifying purpose of punishment is to match off moral gravity and pain, to give each offender exactly that amount of pain the evil of his offense calls for, on the alleged principle of justice that the wicked should suffer pain in exact proportion to their turpitude."[73]
Nor need retributivists commit to the idea that we punish to avenge. The most persuasive retributivists distinguish their
[71] See, for example, the very dated but still interesting study by F. C. Sharp and M. C. Otto, "A Study of the Popular Attitude Towards Retributive Punishment," International Journal of Ethics , vol. 20, no. 3 (April 1910). The authors conclude that revenge is deeply built into the values of those surveyed, "contrary to traditional Christian ethics."
[72] G. W. F. Hegel, Philosophy of Right , trans. T. M. Knox (1821; London: Oxford University Press, 1952), par. 101, Remark, p. 72. Hegel opposes, not the idea that the severity of the punishment we inflict should be equivalent in value to the severity of the crime, but only the strict equivalence established by the lex talionis .
[73] Feinberg, Doing and Deserving , p. 116.
view from revenge theories of punishment. For Hegel, the judge who oversees legal punishment is not an avenger. Whereas revenge can be arbitrary and further the wrong, the judge of a rational modern state must be "cold, heartless, and have only the interests of the law," and this presupposes the education or cultivation (Bildung ) of a modern state.[74] says that the word Gerechtigkeit (justice) comes from the word Rache (revenge) and that in uncivilized (ungebildeten ) states justice is revenge,[75] but in rational modern states revenge is too contingent and arbitrary and subjective to serve justice or right.[76] In an earlier work Hegel explains that if we rely on the sufferer or his next of kin to punish, then right is mixed with arbitrariness; legal punishment depends, rather, on a third party.[77]
Revenge, as Hegel describes it, is subjective; it derives from feelings of anger and resentment within an individual. Not all retributivists, however, take anger to be a subjective measure residing only within individuals. Walter Berns defends punishment as an expression of anger, but the anger he means resides not merely within the hurt victim but within society. The anger Berns thinks punishment expresses is a righteous anger, an anger "somehow connected with justice." For Berns, this anger is not "a selfish indulgence," but "may more accurately be called a profound caring for others."[78]
[74] G. W. F. Hegel, Vorlesungen über Rechtsphilosophie (1818–1831), 4 vols., ed. Karl-Heinz Ilting (Suttgart-Bad Cansatt: Friedrich Fromman, 1973), vol. 4, p. 556.
[75] Ibid., vol. 4, p. 294.
[76] G. W. F. Hegel, Grundlinien der Philosophie des Rechts , in Hegel, Werke in zwanzig Bänden , ed. Eva Moldenhauer and Karl Michel (Frankfurt am Main: Suhrkamp, 1970), vol. 7, par. 102.
[77] G. W. F. Hegel, Philosophische Propaedeutik , in Hegel, Werke , vol. 4, part 1, par. 21.
[78] Walter Berns, "The Morality of Anger," in Hugo Bedau, ed., The Death Penalty in America (Oxford: Oxford University Press, 1982), pp. 334–35. See also Stanley Brubaker, "Can Liberals Punish?" American Political Science Review , vol. 82, no. 3 (September 1988): "[P]unishment expresses and satisfies righteous anger" (p. 825).
Anger is expressed or manifested on those occasions when someone has acted in a manner that is thought to be unjust, and one of its origins is the opinion that men are responsible, and should be responsible…. We can become angry with an inanimate object (the door we run into and then kick in return) only by foolishly attributing responsibility to it, and we cannot do that for long, which is why we do not think of returning later to revenge ourselves on the door…. Anger recognizes that only men have the capacity to be moral beings and, in so doing, acknowledges the dignity of human being.[79]
By punishing to vent our anger,
we demonstrate that there are laws that bind men across generations as well as across (and within) nations, that we are not simply isolated individuals, each pursuing his selfish interests and connected with others by a mere contract to live and let live.[80]
Berns tends to speak of punishment as justified "revenge." But rather than see his retributivism as a revenge theory, I think we should invoke a distinction Hegel suggests, between revenge, which is subjective and appeals to an individual's feelings of hurt; and righteous anger, which reflects a social judgment. We can then understand Berns's retributivism as advocating, not the vindictive satisfaction of personal desires to avenge, desires of the sort that fuel violently destructive blood feuds, but, rather, the satisfaction of the demands of justice and right. Berns's retributivism, then, more properly belongs to the next variety of retributive theories we shall consider.
Some may think our lust for revenge explains why we punish. But few retributivists of repute take revenge to be the principle we use to guide us in our practice, and most reject the view that the purpose of punishment in a modern state is
[79] Ibid., p. 334.
[80] Ibid.
to satisfy the desire to avenge. Retribution as revenge is not a compelling account of legal punishment, and it is not the version of retributivism I shall defend.