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
Iron Maiden played a show in my basement once.
I have never heard of this Thane Rosenbaum clown before, but this seems like a desperate cry for attention. A sexy thesis gets people paying attention to you, no matter how stupid the content is. See, e.g., Fox News, US Weekly.
It certainly does have that stench to it. But then, he does have a book to sell, and when one can’t come up with anything illuminating, fostering outrage is always a good alternative.
“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”
Seems like our author went to the Michael A. Bellesiles school of agenda driven social and historical research. The social decision to disavow lex talionis in favor of the rule of law is ancient. The Oresteian Cycle (458 BC) outlines the mythical origin of and is a social commentary on this transition from the endless cycle of violence that revenge breeds to a system predicated upon impartial, final –if flawed– justice by rule of law and jury. The final play even ends with a deadlocked jury and the murderer Orestes is acquitted because of it. But hell, let’s not let facts get in the way of our emotions especially when it is a self-righteous one.
This Reminds Me Of My Analysis On My Feelings On The Death Penalty. I Realize That If I Came On The Scene Of The Murder OF My Child,My Impulse Would Be To Kill The Murderer And I Might WeLl Try. But, I OpposeTheDeathPenalty Carried OuT By TheJustice System. Those Deaths Are Carried Out By People Who Are The Best-Educated And Most Priviledged, Who Contemplate What Will Be Done In Detail, Who Set The Date And Time Of Death, Who Are Not Driven By Drugs, Rage, Mental Illness, And A Lifetime Of Mistreatment And Lack Of Love And Attachment. That Makes The Death Penalty Morally (And Practically) wrong.
You’ve taken his attempt to intellectually rationalize his argument much farther than I did (or would). It just doesn’t deserve to be given that much credence.
Quick, get out of the house. A demon has taken over your shift key.
I seem to have put a little too much pedantic and humorlessness in my coffee this morning. 🙂 On the upside, I am having a better day than some because my keyboard is possession free!
There’s nothing like a cuppa joe to bring that humor back.
Color me stupid, but I was under the impression that one of the main purposes of the criminal justice system was to temper this visceral desire for vengeance.
To get better, you know, justice?
That is so Justice 1.0, you dinosaur.
This is what happens when a LawProf tries to talk about criminal law. GTFO.
I was wondering when I could strongly disagree with you again.
I’d like to see the math showing the further “society’s detached goals” move from “the victim’s emotional needs” the better society becomes. Perhaps as long as it doesn’t become too detached?
I contend the opposite – that society’s goals should be a reflection of individuals’ needs but detached from the emotions involved. I lack the data supporting either argument and keep a somewhat open mind about it.
Biologically / neurologically speaking, Thane’s reference to math at least as logical as any other statements made.
Sounds like he’d be a lot happier in Afghanistan. Maybe he’d sell more books, too, provided there is an audible Pashto edition.
Most critics of the criminal justice system are ignored, but some are more likely to be ignored than others.
What is so special about this guy?
So you think it’s a better idea to use the criminal justice system to vindicate every victim’s thirst for revenge rather than the interests of society? That’s a very Texas “but he needed killin’ ” perspective.
Not necessarily but the two are not mutually exclusive either. Also, with some exceptions, it is better to use the criminal justice system to do so than have the victims turn vigilante.
Perhaps I should ask how are the interests of society better served by disregarding this need for revenge, especially if punishment is being dealt by a – hopefully – dispassionate hand?
I suspect you’ve misunderstood (not that I can understand how that’s possible, given how the article repeats its thesis endlessly, that vengeance is not at all dispassionate and revenge equates to justice. It turns the criminal justice system into state-sponsored vigilantism, where the determining factor isn’t deterrence, isolation, rehabilitation, but the base infliction of pain to make the perpetrator suffer to the extent the victim believes it necessary.
Was this unclear?
Perhaps we should rephrase the question since you seem to be making a positive assertion. How are the interests of society served by codifying revenge into the penal code? How would one do this?
I could be wrong, but I think Shawn is saying that the victim’s personal desire for revenge is a pretty darn good metric for society as well. If the victim is happy with the punishment, then society has done it’s job. He is challenging me (us?) to provide the math that proves the current purposes of punishment (society’s detached goals) are better than personal vengeance. The problem is Shawn screws it all up by throwing in vengeance as imposed by a dispassionate government. Not clue what that means, since its internally contradictory.
I don’t agree with him that revenge = justice but do posit that punishment of the guilty, i.e. the base infliction of pain or a variant of it, is a necessary part of the “equation.”
Should the criminal justice system remove that element because the victim derives some sense of satisfaction as a result? Is it at least more effective at reducing recidivism?
My point is that the punishment portion is just as important as deterrence and rehabilitation and is beneficial to both the predator and the prey.
All of those, deterrence, punishment, and rehabilitation are determining factors in an effective system.
You’re kidding me? So the problem is that you don’t get the whole concept of sentencing? There has always been a punishment element (called retribution), but it’s only to the extent that society (via the judge) deems appropriate, not to suit the taste of a victim’s personal vengeance. Hear that whooshing sound?
It isn’t that I don’t get the concept, either. Though please correct me if I am mistaken: You are saying that sentencing should be based solely on what is needed to incapacitate and rehabilitate and that retribution should be based on guidelines as determined by society.
Your rephrasing of the point about the victim’s desire for revenge being a good metric to society is accurate, though. I don’t lay that down as an absolute but there is merit to it.
I am saying that sentencing measures should not completely remove the punishment – or retribution if you’d rather – aspect as it more directly relates to the victim. Further, there is also a benefit if the victim gets some satisfaction from it (though that has no guarantee and has more to do with the victim’s state of mind.)
Not the slightest clue what your point is, but fairly certain it has nothing to do with this post or anything else cognizable to anyone outside of Texas. Sorry, but you missed this one by a mile. And it was an easy one, too.
I’ll try again next time.
There’s always good barbecue at Goode’s to sooth the soul. And pecan pie, too.
But alas! I’ve left my Native Home and journeyed to less hospitable climbs (Seattle to be specific.) No amount of lattes will ever take the place Goode’s. The politics are funny here, too.
No shit? Wow, I never saw you moving to such cold, inhospitable, liberal climes.
The move was purely mercenary. It’s a good place for telecommunications.
However I tell everybody that Dick Cheney secretly sent me to subvert the state’s Democrats.
It seems to me that we, as a society, came to a consensus some time ago that it doesn’t serve our ends to foster vengeance for a few at the expense of greater social rationality. We might be tempted to shoot someone because he/she flipped us off at an intersection… but is that really a just punishment for what was likely an impulsive move?
Punishments should involve deterrence – treatments making the perpetrator unlikely to commit the act again – and rehabilitation, which may involve psychological counseling, more general therapy that may include how to stay successfully employed, meet life’s challenges better, etc.
There’s a reason vengeance has never succeeded as a punishment. Once you avail yourself of it, someone comes back at you. And the cycle never ends.