The Passions of Law

Chapter Four. Justice v. Vengeance: On Law and the Satisfaction of Emotion

I think that the deterrent argument is simply a rationalization . The motive for punishment is revenge—not deterrence . . . . Punishment is hate. A. S. Neill Merciful God, do not have mercy on those who had no mercy. Eli Wiesel (on the 0th anniversary of the liberation of Auschwitz) In this essay, I am concerned with the expression and, more important, the satisfaction of emotion in law. In particular, I am interested in the desire for vengeance as expressed and satisfied by law or, more accurately, by the justice system. It is not an attempt to justify vengeance, nor do I intend to reduce punishment according to law to the expression of such emotions as hatred, vengeance, and resentment. Picasso’s Guernica is an expression of outrage, indignation, and despair, and it would be a poorer painting (like a talented art student’s rendition) if it were not for those emotions. But only an ideological hack would reduce the significance of Guernica to the emotions it expresses (like the bluenoses today who would ban Nabokov’s Lolita as nothing but an expression of pedophilia). What I want to defend here is the ineliminable relevance of vengeance to considerations of justice and to Chapter Four Justice v. Vengeance On Law and the Satisfaction of Emotion Robert C. Solomon  law. I also want to examine the ways in which the often violent demands for vengeance may be sublimated and satisfied by law. My point is not to be outrageous. Like any normal person, I would argue that the purpose of punishment by law is deterrence constrained by considerations of justice. As an abnormal philosopher, however, I also want to argue that justice itself is (in part) a matter of emotion and that the desire for vengeance is basic to its concerns.1 Perhaps we should note right from the start that “vengeance” is not the name of an emotion as such, nor is there any single emotion name that corresponds to vengeance. The archaic wrath is perhaps the best we have. Its kin are anger and outrage,though pointed resentment is,perhaps,the emotion closest to vengeance. One might say (as Aristotle says of anger) that the desire for revenge is built into resentment, part of its motivational structure , but resentment is not yet vengeance, nor is anger. There is vengefulness , but this seems to refer to a general trait rather than a particular emotion , and there is the desire for revenge, of course, but desires in general lack the complex structure of emotions.“Vengeance”is typically used to refer to the desired outcome of certain intentional acts and strategies,not their motive or the emotion behind them. When I clumsily refer to vengeance as an emotion, therefore, I am only trying to avoid the intolerable awkwardness of always referring to “the complex of (various) emotions that gives shape to and motivates the desire for revenge and the demand for its satisfaction .”2 How should we think about vengeance in the light of the law? How should we think about punishment and its relationship to revenge? To what extent is punishment in criminal law the expression of and the demand for satisfaction of revenge? What, then, is the role of mercy, forgiveness , and compassion in law? These are by no means comfortable questions and the answers, I think, are not comforting. As Arthur Lelyveld has written,“There is no denying the aesthetic satisfaction, the sense of poetic justice, that pleasures us when evil-doers get the comeuppance they deserve . The satisfaction is heightened when it becomes possible to measure out punishment in exact proportion to the size and shape of the wrong that has been done.”3 Try as we philosophers might, vengeance and its satisfaction will remain durable components of any realistic theory of human nature. Jeffrey Murphy, in a previous, less kindly, less gentle incarnation, accepts such a thesis in the context of law and legal theory. “Speaking very generally , we may say that the criminal law (among other things that it does) in-  r o b e r t c . s o l o m o n stitutionalizes certain feelings of anger, resentment, and even hatred that we typically (and perhaps properly) direct toward wrong-doers, especially if we are the victims of those wrong-doers.”4 I think that this is right even if it is also troubling, and even if Murphy himself has had a change of...