"Revenge is a kind of wild justice, which the more man's nature runs to, the more ought law to weed it out."
-- Francis Bacon, Essays, "Of Revenge"
Susan Jacoby, the author of Freethinkers: A History of American Secularism (disputing negative review supplied by Slate), is also known for her now somewhat hard [published in 1983] to obtain volume on Wild Justice: The Evolution of Revenge. The two books are in fact related, since they both are written through the point of view of a civil libertarian with a secular view of government. Religious belief also has an important role in both books.
The interplay can be seen here:
"A sin … is not always a secular crime, but a crime is always a sin. Just as a fine can never repay society for the taking of human life, a formal religious purification ceremony can never serve as a substitute for genuine spiritual atonement. … Confusion between atonement and purification is a modern phenomenon, supported by none of the western religious traditions that have played such an important role in the restraint of personal vengeance. Retribution as a requirement for reconciliation is a pillar of the fundamental covenants governing both Judaism and Christianity ..."
The quotation also touches upon Jacoby's account of the civil libertarian position on retributive justice, one agrees that deterrence alone is not the purpose of punishment. It in fact requires that it be not for at least two reasons. First, (in the words of Justice Marshall's dissent in Gregg v. GA) it is "the basis of our insistence that only those who have broken the law be punished, and in this sense the notice is quite obviously central to a just system of criminal sanctions." For if deterrence alone is reason enough, we would have a Minority Report system that would be a true threat to liberty.
Second, it suggests the true value we place on human life and liberty. A value that is instinctual, if sometimes all too human (uncontrolled vengeance is not inhuman, just a dark side of ourselves). This aspect of retribution is related to deterrence for "it contemplates the individual’s shrinking from anti-social conduct not because he fears punishment, but because he has been told in the strongest possible way that the conduct is wrong." [Marshall]
Thus, libertarians are not unconcerned about punishment. Some, such as those for drunk drivers or domestic violence, are likely too small. Others, such as the death penalty, are problematic for different reasons (perverted moral message, pessimistic view that violence alone can solve problems, etc.*). The civil libertarian looks at the crime - even those who are not likely to commit one again would "deserve" a suitable punishment for the wrong committed.
In this view of things, "public forgiveness and private vengeance suffer from the same vice: They depreciate the victim. Respect for those who suffer requires that no one usurp the victim’s exclusive right to forgive his oppressor. Similarly it requires that the duty to punish be assumed by everyone other than the victim. That is what is meant by rule of law," Aryeh Neier, human rights activist.
She also quotes Cesare Beccaria, a 18th century reformer that influenced many of the founders of this country, about the importance of guarding against using religious law in the secular sphere:
"The relationship between man and God is one of dependence on a perfect being and creator who has reserved to himself alone the right to be lawgiver and judge at the same time, because he alone can be both without impropriety. … The gravity of sin depends upon the inscrutable wickedness of the heart. No finite being can know it without revelation. How can it furnish a standard for the punishment of crimes?"
As she notes: "The secularist measures crime by human standards and accepts, even embraces, the margin of error that would be unnecessary for a divine being to whom nothing is inscrutable. In a world of law, the absence of just revenge poses as great a threat to both liberty and order as revenge gone wild."
There is a lot more to this excellent book. Cathy Young, an admirer, does suggest one problem: "Jacoby treats revenge and retribution as synonymous, but perhaps there's a subtle difference. ... 'revenge' [has] the most tenuous connection to the perpetrators ... Retribution, on the other hand, addresses moral culpability - which is why virtually everyone is repelled by the idea of executing a person with diminished mental capacity."
Still, but a small complaint. Her basic argument:
"Insofar as humanly possible (and the task has often seemed humanly impossible), law attempts to remove personal animus from the process of apportioning blame and exacting retribution. It is the removal of private animus, not the absence of vengeance, that distinguishes the rule of law from the rule of passion"
rings true. "Vengeance" has a nasty ring, and Young is correct that "retribution" is a somewhat different concept, but Jacoby's basic point holds. And, on the whole, Susan Jacoby wrote a valuable well rounded book that addresses an issue that continues to be of fundamental importance.
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* This leads to my mixed feelings about arguments that the recent execution of an ailing 74 year old is heinous because of his condition. If the punishment was just, his condition itself does not necessarily matter. A death might be required to "express society's outrage at serious violations of its norms." The fact the process took so long does not get him off the hook or older criminals would get some sort of "free pass."
Pragmatically, the negative emotions raised by the execution makes it somewhat counterproductive, but this alone might not clinch things. Also, in his case, he was in jail for over twenty years -- this alone changes things, in part because it approaches a reasonable level of retribution. As might be dying in prison. Of course, the death penalty per se is problematic. All the same, his condition alone appears not to be enough under Jacoby's theory of retributive justice, and I would tend to agree.