While some contend that the legal system’s failings stem from a lack of due process, disparity of resources, or perhaps lopsided power, Fordham lawprof Thane Rosenbaum writes in the Chronicle of Higher Education that the missing ingredient necessary to make our system work is vengeance.
It’s finally time to humanize justice by restoring the face of vengeance. Doing so is not an invitation to lawlessness but a mandate that the law must act with the same moral entitlement, and the same spirit of human fulfillment, as the righteous avenger.
Vengeance is as old as man himself. It is an instinct at the very core of our emotions; indeed, it’s a byproduct of our evolutionary history. Human survival depended greatly on convincing neighboring clans, tribes, and states that no attack or moral injury would go unanswered. Payback was nonnegotiable and self-regulating. Reclaiming one’s honor was not undertaken out of haphazard rage. To avenge was to achieve justice, and to do what was just necessitated the taking of revenge.
The law of the jungle. An eye for an eye. Hammurabi was right? Call it what you will, the point remains that Rosenbaum, who happens to have a book coming out later this month called Payback: The Case for Revenge, not only praises the notion of revenge, but argues that it’s a moral imperative.
But the distinction between justice and vengeance is false. A call for justice is always a cry for revenge. By placing their faith in the law, those who justifiably wish to see wrongdoers punished are not disavowing vengeance. If anything, they are seeking to be avenged by the law. No matter what they say, victims aren’t choosing justice over vengeance; they are merely capitulating to a cultural taboo, knowing that the protocol in polite society is to repudiate revenge. But make no mistake: When it comes to the visceral experience of being a victim, revenge and justice are one and the same.
Notwithstanding our “refined” view of the criminal justice system, which regulates and punishes conduct on behalf of society rather than the aggrieved victim, Rosenbaum equates “justice” with vengeance. And not just any sort of vengeance, meaning whatever punishment satisfies a judge’s sense of sufficiency, but the victim’s lust for “justice.” In other words, the point of the criminal justice system should be to satisfy the desire for revenge of the victim. Anything less is unfulfilling.
Without the debt canceling, equalizing, restorative dimensions of revenge, faith in humankind is lost and the world makes less sense. That’s precisely what people mean when they lament that there is “no justice in the world”—a wrongdoer has gotten away with murder, and all who depend, morally and emotionally, on the sum-certainty of vengeance are left helpless, dumbfounded, and enraged. The revenge we are so often denied in our private lives is experienced vicariously—courtesy of the movies.
So if justice and revenge are fundamentally the same, why can’t we be more honest about the role that revenge plays in our lives?
To the extent Rosenbaum speaks to how some victims, some survivors of victims, feel about the inadequacy of the system, he’s no doubt right that it often fails to satisfy their “moral and emotional” needs. After all, what parent of a murdered child wouldn’t feel the visceral desire to inflict pain, at least as harsh if not worse, on the “animal” who did it. Most of us would.
But then, his assertion that we’re dishonest about it is nonsensical. It’s not difficult to understand how that parent would feel, and few of us would blame the survivor for feeling that way. We’re not dishonest about base human needs. As a society, however, we have made a decision that “justice” is not allowing the worst of human instincts to be unleashed, but to craft a system that imposes punishment based on society’s detached goals, not the victim’s emotional needs.
This doesn’t fly with Rosenbaum. Screw society and its pretense of refinement and purpose. What about the pain?
Governments became involved—essentially taking a monopoly on vengeance—only during the Enlightenment, when the social contract obligated citizens to surrender to, and faithfully accept, the rule of law.
But regardless of who becomes the designated revenge-taker—either the state, with its impersonal security apparatus, or the avenger, who is discharging his personal duty—human beings can no more suppress their revenge impulse than can they curb their instincts for sex and hunger for food. Getting even is a biological necessity. We need our revenge, notwithstanding how feverishly religions and governments have worked to eradicate it from the human experience. Vengeance can be curtailed, but it can never be truly undone, nor should it. Vengeance keeps returning … well … with a vengeance.
Plea bargains? The worst thing ever created, not because it undermines the distinction between guilt and innocence by providing incentives for the plea or costs for the challenge, but because it woefully fails to satisfy the victim’s desire for vengeance.
So we tolerate a legal system where over 95 percent of all cases are resolved with a negotiated plea—bargained down from what the wrongdoer rightfully deserved. That means that convicted criminals are rarely asked to truly repay their debt to society. Even worse, this math-phobic system tragically discounts the debt owed to the victim, who is grossly shortchanged.
Plea bargains, with their bargain-basement rationales, epitomize the degree to which our legal system has too little respect for victims and even less regard for the moral imperative that justice must be done. What is paramount under the talionic principle seems to be optional under our laws. A justice system that recognized the duty it owed to victims would not rely so heavily on this method of resolution, which casually distorts the truth and trivializes the remedy.
What does the “wrongdoer rightfully deserve”? Life plus cancer? Spikes stuck through his eyes? Let your wildest revenge fantasies take flight, Rosenbaum is your advocate. After all, it’s not right until the victim feels that surge of emotional vindication rush through his veins.
While all of this would make for a fabulous Onion satire of the system, or reflect the systemic vision of tin-foil-hat wearing avenger who types late into the night in the hope that it will purge the demons who voices he can’t stop hearing, this came from the mind of a law professor, an individual charged with the shaping of the minds of law students who may some day be entrusted with the discretion of a prosecutor or the authority of a judge.
And while there is no doubt that Thane Rosenbaum should have the right to express his adoration of revenge no matter how much delusional it appears, this article appeared in the Chronicle of Higher Education in an effort to persuade others engaged in teaching to share his lust for vengeance. Is this really the sort of ideation they seek to disseminate and promote?
And just in case you haven’t had enough of Rosenbaum’s vomit of moral imperatives, his article next month will be about how to make an Iron Maiden in your basement to guarantee that people whose dog poops on your lawn will pay dearly.
H/T Stephanie West Allen