A Few Short Steps to the Gallows

Beware gentle reader! To pass beyond this point is begin a quick march to a place you would rather not go. Be prepared to make tough choices. Watch your step but try to keep up with the group.

We begin with a version of Robert Nozick’s “Falling Man” case

Sam is standing at the bottom of a well when a large man accidentally falls in at the top and hurtles down towards Sam.  Sam can’t get out of his way. When he lands the falling man’s bulk will certainly kill Sam instantly but, with Sam cushioning his fall, the falling man will certainly survive. Sam happens to have in his possession a ray gun which is capable of vaporizing the falling man, saving Sam’s life.

Is it morally permissible for Sam to vaporize the fat man? Nozick thought so. Yes, the falling man is innocent. He does not want to kill Sam. But Sam is innocent too and he has a right to self-defense. That was Nozick’s point.

Not everyone agrees. Some philosophers think you don’t have the right to defend yourself against innocent threats. So let us roll back and start at what I hope is bedrock common ground.

Sam is standing at the bottom of a well as before. But this time the large man jumped in deliberately.  He wants to kill Sam; believes that his falling bulk will do the job and is confident that — with Sam’s body cushioning his fall— he will walk away unharmed. Sam knows all this and he still has that ray gun.

Is it morally permissible for Sam to vaporize this falling man?  Surely!  This is attempted murder. Sam would be acting in self-defense.

If you don’t believe you have the right to self-defense—ever— you should certainly stop reading now and, well… best of luck to you in your future endeavors.

Are they gone? Good. Let us proceed.

Same as the first case: Innocent man hurtling towards Sam. But now Sam doesn’t have a ray gun. He has an ordinary gun. The falling man would be hard to miss so Sam can be confident of wounding him; perhaps fatally. But this won’t stop the falling body or prevent Sam’s death.

Knowing all this (somehow, suppose) may Sam use his gun?

Notice that if Sam does shoot in this case we cannot properly describe what he is doing as “self-defense”. Shooting doesn’t defend him from anything. It would be more accurate to call it retaliation — preemptive retaliation — for the harm the falling man is about to inflict on him; is this permissible?

I myself don’t think so. The falling man is innocent. Hurting him is not going to save Sam’s life. For him to deliberately harm this innocent person seems to me gratuitous, spiteful and morally wrong.

If you disagree with me about this— if you think it is permissible for Sam to retaliate however innocent the falling man may be— then you can stay with us but I won’t be talking to you in what follows. Try not to get too far out front of the group (and stay well back from me.)

Next step:

The same as VILLAINOUS FALLING MAN except that Sam now has only the ordinary gun. If Sam shoots he will certainly injure, and perhaps kill, the falling man. The falling body will still kill Sam, but the villain won’t walk away unscathed.

Given that this falling man is trying to murder him, would Sam be doing something morally wrong if he were to shoot in this case?

What do you think? Okay, settle down. I can hear some of you complaining (there are always some) about these fanciful philosophical “what ifs”. How can you be expected to have robust moral intuitions in response to these unrealistic fables?

Alright. Gloves off. Remember you asked for this.

Sally, a small frail woman, wakes in the middle of the night. There is someone in her room. Instantly she realizes who it must be.

In recent months her community has been terrorized by a serial rapist-murderer. His modus operandi has been publicized by newspapers and television. He tortures, rapes and kills his victims. And it is well known that the more his victims resist, the crueler his attack. Sally has seen an interview with the only victim to have managed, barely, to survive her injuries. She credited her survival only to her extreme passivity and obedience to the rapist’s commands. 

Sally cannot escape. She is alone. She can seem him now: a huge, muscular brute. She could claw and kick at him, and perhaps inflict a little pain, but she cannot hope to stop him.

Realistic enough for you?

Now there is a difference between this case and last FALLING MAN story. The difference is that Sally has a positive, prudential reason not to hurt the person who is going to harm her: she will improve her chances of survival (slightly) by not fighting back. So, prudence dictates that Sally should lie back and accept her fate. But prudence is not morality. Our question here, as before, is: is it morally permissible for Sally to try to harm the rapist even though she knows that doing so will not deter him?

Before you answer, make sure you understand the question. You are not being asked here for general crime stopping tips or proscribing for every possible case of rape. The question is whether or not it would be morally wrong for Sally, this particular woman, to hurt this rapist, this particular monster, before he kills her. And be careful not to read into the story elements that aren’t there. Maybe you think, or want Sally to think, that she can scar her attacker in ways that will make it easier for the police to apprehend him after her death. 
 Maybe you think, or want Sally to think, that by fighting the rapist she may deter him from future crimes. Sorry, no. This is my story and none of those things are true in my story.

So, what do you think?

My own view is that it is morally permissible for Sally to try to hurt the rapist. I think she may fight him tooth and nail. She may bite, kick, and scratch. She may try to claw his eyes out. I do not think it would be wrong for her to do so even if she knows to a certainty that it will not save her.

And let me be clear: I am not just saying that it would be understandable if she fought back. I am not saying that, given her extreme circumstances, violence on her part is forgivable. I think there is nothing to forgive; if Sally manages to harm the rapist, she will not have done anything wrong.

If you do not agree— If you think it would be every bit as wrong for Sally to try to hurt the rapist as it would be for her to attack some random, innocent stranger on the street— then you need read no further. Thank you for playing.

The Problem of Retaliation

If you are still reading then I will assume you agree with me about Sally’s case. And I assume we must likewise agree that it would be permissible for Sam to retaliate against the villainous falling man. You might not think it okay for Sam to shoot to kill— you may draw the line at killing— but if it is permissible for Sally to wound her attacker how can it be impermissible for Sam to do likewise?

If we agree about this, then we have a problem, you and I. Prima Facie, it is wrong for anyone to hurt another person without a justification. But in the cases we have been considering that justification cannot be self-defense. Neither can we find justification on utilitarian grounds. At the end of the day, if our victims strike back, more people (albeit villainous people) will be worse off than if they do nothing.

We seem to have discovered a new right: A Right to Retaliation.

Where does this right come from? What justifies this kind of harming of others?

So far as I can tell, a right to retaliation of the sort we have been considering has gone mostly unnoticed by philosophers. And while philosophers have had plenty to say about when it is or isn’t morally permissible to harm others, I think the tradition contains only one possible explanation of why retaliation is okay; though it is not an explanation that most contemporary philosophers would be happy to give. It would be to say that our victims’ retaliation against these villains is morally okay because it is just retribution for the wrongs they are about to endure. This would explain why we think it wrong to retaliate against innocent threats but not villainous ones: retribution is punishment and only wrongdoers deserve punishment.

Perhaps then our new right is a new argument for an old idea: the idea of Retributive Justice.

Retributive Justice— Lex Talonis, an eye for an eye, a tooth for a tooth,  and all that— has an ancient history  and many intimidating  advocates including Hammurabi,  Jehovah and Immanuel Kant.  But it fell deeply out of fashion in the 19th century.  Critics thought it sounded too much like the expression of a primitive desire for revenge.   

For a long while, Utilitarian justifications of punishment became the accepted wisdom: to be justifiable, punishment must make everyone better off by deterring future wrongdoing and/or by improving the general happiness in some other way.

It took a surprisingly long time for philosophers to notice that Utilitarian accounts of punishment could not explain why we think guilt and innocence matter; that is they couldn’t explain why punishment should be just. If, say, hanging an innocent man might prevent an imminent riot, why not string him up? If what makes punishments okay are future consequences, what difference does it make what anyone did in the past?

Utilitarianism’s inability to account for justice led some philosophers to try to revive the idea of retribution. Old fashioned Retributionists from Jehovah to Kant had tended to speak as if retribution was justified by some hidden dimension of metaphysical, karmic machinery : there were scales to be balanced, debts to be paid, stains to be washed away, Yins to be Yanged. Contemporary Retributionists have been anxious to avoid the mumbo jumbo of “desert ” and “balance” and they have been at pains to stress that retribution is very different from revenge.

Robert nozickNozick said there were five differences between revenge and retribution: In the first place, while someone might take revenge for, say, an imagined slight, you can extract retribution only for genuine wrongdoing. In the second place, retribution properly so called must be proportional to the harm done, whereas revenge might be wholly disproportional. In the third place, revenge must be taken by an injured party whereas, Nozick says, “the agent of retribution need have no special or personal tie to the victim.” In the fourth place, “Revenge involves a particular emotional tone, pleasure in the suffering of another, while retribution either need involve no emotional tone, or involves another one, namely, pleasure at justice being done.” In the fifth place, retribution must be done on general principles. Whether a victim wants revenge or in what measure will depend upon how they feel. “Whereas the imposer of retribution… is committed to (the existence of some) general principles… mandating like punishments against like wrongs”.

Nozick disapproved of revenge of course, but he thought the idea of retribution was defensible.  His  argument for it was pedagogical:  When we punish people we are trying to teach them that what they have done is wrong; not to keep them or anyone else from doing it again (though that might be a nice by-product) but because it is true that what they did was wrong and it is always a good thing to teach people what is true. The pain and suffering that goes along with punishment is, well, just a way of getting the students’ full attention. And Nozick didn’t think it mattered if the punished actually learned their lesson or mended their ways. Teacher may do a good job and everyone should be grateful to teacher, even if the students learn nothing at all. It is a distinctly professorial theory of punishment.

Another contemporary  school takes a similar line but plays to a bigger stage.   This theory of “punishment-as-comunication”  holds that by punishing we are sending a message not just to the punished but to society as a whole.  We are signaling to one and all that that we think certain behavior is wrong. Punishment is a kind of performance art with the  sufferings of the punished serving as the medium of the message.

In contrast to these communicative theories, other accounts argue that retribution is justified by the moral demands of social equality and/or economic efficiency:   we punish the wrong doer to remove from him any advantages he might gain by his wrong doing thus leveling the social playing field and preventing monopoly.  In this view, punishment is a kind of progressive taxation. 

To be fair, these theories are all attempts to justify large scale social institutions. They are concerned with punishments under the law, administered by the courts, and were not designed to deal with the kinds of up-close, first person retaliation we have been considering. As we noted before, the Problem of Retaliation has mostly escaped philosophical notice. And that may be a pity. Because if we think of what Sam and Sally are doing as punishing their attackers, these neo-Retributionist theories will not seem very plausible. Must we really think that Sally is justified in fighting back only if she intends to educate her attacker? Must she be concerned with sending a message to him or anyone else to justify her actions? At that moment should her actions really be governed by considerations of social equity?

Of course you can reject these philosophical theories of retribution and still believe in retribution itself. You may, if you like, just insist that the villains in these stories have given up their rights not to be harmed and (damn it!) deserve what’s coming to them. But saying that is just to stamp the foot and beg the question. To say they deserve whatever punishment Sam or Sally can administer is just to say that it is morally okay for Sam and Sally to retaliate. To say that the villains, by acting badly, have “given up their rights” not to be harmed is just another way of saying that it is okay to harm them. The question remains: why is it okay?

So maybe it was a mistake to try to justify retaliation as any kind of punishment. The whole idea of retribution has a kind of icky Old Testament feel to it anyway. But, if we can’t justify Sam and Sally’s retaliation as retribution, how can we uphold their right to fight back?

As you might have guessed, I have another account up my sleeve, though I can’t promise that you will like it much better.

Retaliation as Compensation

My proposal is simply that we should regard retaliation in cases like Sam and Sally’s as a form of compensation for the victims. The right to Retaliate is just an instance of the right to compensation.

I assume we all agree that if Sam and Sally were to somehow survive the attacks on them they would be entitled to compensation from their attackers. Even after the criminal courts had dealt with the villains , we would expect the civil courts to award their victims large sums.

Compensation, unlike Retribution, is not controversial. It is commonly complained against the idea of retributive justice that once you get beyond “an eye for an eye, a tooth for a tooth” (which, literally construed, few believe anyway) it gives us no non-arbitrary way to calculate precisely how much suffering the punisher is entitled to inflict upon the guilty. Many take this to show that the whole idea of retribution is nonsense. Some argue that this shows all punishment is immoral.

Maybe so, but no one ever makes this argument against the idea of compensation. Everyone— or at least all grown-ups — know that it is false that “You can’t put a value on human life.” Judges, juries and actuaries do it all the time for lives, eyes, teeth, emotional trauma, alienation of affection and every other ill that flesh is heir to. Of course, the values set are sometimes arbitrary and controlled by non-moral factors, but no one takes this as proving that compensation is an incoherent idea or that requiring compensation—sometimes forcibly– is an immoral practice.

Alas, the question of how much monetary compensation Sam or Sally should receive is moot. They will soon be dead. But suppose that in these last dark moments of their lives Sam or Sally gain some small satisfaction in the thought that their killers will not walk away unscathed. Suppose they just want to harm their attackers for the small solace of hurting someone who is going to hurt them? Why would it be wrong for them to allow themselves that small gratification in the moments left to them? Aren’t they owed that by their attacker?

Be careful to note that I am not arguing that by harming their attackers our victims will be compensating themselves for their impending deaths. You cannot compensate someone for being dead. Indeed it is a notorious philosophical puzzle to explain in what sense, if any, a killed person has actually suffered a harm. After all, it is not as if the dead are worse off than they otherwise would have been. They aren’t worse off; they aren’t any way at all: they’re dead.

In contrast, the grief and Sam and Sally presently endure is not problematic: each suffers here and now as they contemplate their untimely ends. It is for that real live occurrent suffering that compensation is owed. If that suffering can be alleviated, now — and it is now or never– by the knowledge the bad guy will suffer too then, I say, the victim may make it so. We count the attacker’s pain as compensation they owe their living victims.

Of course, we do not normally encourage people to take cheer in contemplating the suffering of others. Schadenfreude is normally deplored on the grounds that it is psychologically unhealthy and liable to lead to bad behavior. But Sam’s and Sally’s circumstances are not normal and we have already agreed, you and I, that in their circumstances retaliation would not be wrong.

The appeal to compensation explains why guilt and innocence matter. You are only entitled to compensation from someone who has wronged you—that is, from someone who has harmed you by acting wrongly. If Sam had survived THE INNOCENT FALLING man he would not be entitled to compensation if the falling man were truly innocent of malice and negligence. Likewise it would be wrong for Sam to preemptively retaliate against the INNOCENT FALLING man. Sam will still suffer anguished moments, but no compensation is due because the anguish is not the attacker’s fault.

Observe that what I am arguing for here is not retribution by the philosophical standard. Retribution, properly so-called, is supposed to be impersonal, un-emotional, disinterested and guided by universal rules. In contrast, retaliation can be compensation only if retaliating actually makes the victim feel better and whether that is so will depend upon facts quite specific to the victim and, to some extent, under the victim’s, and only the victim’s, control. If Sam or Sally were so psychologically constructed that they took no comfort in afflicting their afflicters– if they chose instead to spend their last moments asking the Lord to forgive their trespassers and endeavoring to love their enemy– they would not be making a moral mistake. And to take the extreme case: if Sam or Sally were suicidal masochists– so they welcomed their killers actions– then they would not be entitled to any compensation from their killers, since they will not be harmed by them. In that case, according to this theory, it would be morally wrong for them to harm their attackers.

Retaliation-as-compensation is not impersonal, unemotional, disinterested or universal. It is entirely personal, emotional, interested and dependent on what particular victims believe and want.  It operates only if victims can take active pleasure, or at least solace, in contemplating the sufferings of their attackers.

This is not retribution I am advocating. This is revenge.

Well, I warned you, you might not like where this was going but let me remind you, you got here on your own. If you don’t like saying that sometimes people have a right — a moral right— to revenge, then you are welcome to fall back to the idea of retribution or to come up with your own solution to The Problem of Retaliation.

Or perhaps, things having taken this ugly turn, you now want to deny that retaliation is ever morally permissible. In that case you should walk yourself back through our cases and try to figure out where you took a wrong step. Be sure, though, to stop along the way to explain to Sally why it would be wrong for her to fight back.

Or just maybe, having coming this far, you are prepared to agree that, at least in extreme cases like these, some people (victims) are morally entitled to harm other people (villainous attackers) for no other reason than the satisfaction (or hope of it) of causing them harm.  Why not say that in these very limited circumstances, it is not wrong to take revenge.

But now we face another problem: just how limited is the right to retaliation?

Revenge  Insurance 

Even though Sam and Sally have only a few moments to act it doesn’t seem that their retaliation must be limited to that interval. The VILLAINOUS FALLING MAN may only feel Sam’s shot after he lands; and so, after Sam is dead. But that possibility doesn’t seem to argue against Sam’s shooting while he can. Or again, suppose that Sam has a hand grenade not a gun. He can be sure that if he pulls the pin it will injure his attacker when it goes off, but knows it won’t go off till after he, Sam, is dead. How could it be okay for Sam to pull the trigger but not to pull the pin? The Retributionist would say it doesn’t matter because the bad guy deserves what he gets whenever he gets it. I say it doesn’t matter because Sam may take comfort (and hence compensation) now from the knowledge of his attacker’s future suffering. In any case it is difficult to see, other things being held constant, how the exact time at which retaliation kicks in can be morally decisive.

On the other temporal side:  It is clear that Sam and Sally may act only when they are certain of the harm their attacker means to do them.  But, given that we agree that retaliation is permissible in some circumstances,  it seems that it must be permissible for Sam or Sally to prepare ahead of time to retaliate should those circumstances arise. If we believe that people have a right to self-defense then we will believe that people have a right to arm themselves ahead of time in case they need to defend themselves. Given that we agree that people sometimes have a right to retaliate it seems we should also agree that it would not be wrong for Sam or Sally to arm themselves ahead of time—to buy a gun or grenade—with rightful retaliation in mind.

Of course, there is the worry about how Sam or Sally can really be certain about what is about to happen. And, in Sam’s case, how could he be sure the falling man is villainous? This doesn’t argue against retaliation in principle, but it recommends caution in retaliating and, perhaps, delay. The ideal retaliatory weapon would be one which the victim could rely on to injure the attacker always, but only if and when, the attacker had already inflicted harm and was a villain. Perhaps a hand grenade controlled by some particularly sagacious iPhone app?

“Now, things are getting farfetched again!” Very well, time for another thought experiment.

You are travelling to a lawless third world country to do good works. You make preparation for your journey: You get the appropriate shots. You increase your health insurance in case the shots don’t work. To protect the family you are leaving behind, you increase your life insurance and add a double indemnity clause.

Friends advise you to arm yourself, but you are not comfortable with guns. Instead, you visit the office of a private security agency ( “The Agency”)to investigate the possibility of hiring bodyguards. The Agency’s sales rep explains to you that because of the prevalence of violence and the total absence of law in this country the demand for private security there is high and so the service is very expensive. Looking at their rate sheet you realize it is far more costly than you can afford. As you rise to leave, the sympathetic rep offers you a brochure for one of The Agency’s other services. They call it “Revenge Insurance”.

The brochure explains that Revenge Insurance does not provide any protection to its policy holders.  However, in the event that a subscriber is the victim of wrongful injury while in-country, the agency will undertake to use its considerable resources to track down the wrongdoer. When they find him, The Agency’s operatives will not try to have the wrongdoer pay the policy holder compensation or recover stolen goods. That is a separate service and, given the general poverty in the country, rarely worth the cost.  But, if you have Revenge Insurance, what the agency will do to the bad guy who injured you is hurt him .

How much they will hurt him is a matter of negotiation. There are limits: The agency will not conduct extended tortures because its operatives find them distasteful and unprofessional. For the same reason, they will not apply penalties that its agents feel wildly disproportionate. They will not, for example, cut off the hand of the child who steals your fake Rolex (though if the watch is real, well…) But within these weak constraints the agency offers a wide spectrum of options ranging from the brutal (but popular) “eye-for-an-eye” policy to gentler schedules that will, for example, only force your murderer to write a letter of apology to your mom and attend a couple of anger management classes. If you don’t like any of the offered off-the-shelf plans, you can negotiate your own custom roster of harms-for- injuries constrained only by your imagination, your budget and The Agency’s sense of propriety. The only proviso is that your choices cannot be changed after the time of purchase. Victims of violence too often demand additional penalties agents find disproportionate. 

The Agency has many references to show that it can be trusted to fulfill its contracts. Indeed The Agency is so scrupulous that it generally insists on making good on its commitments even on those rare occasions when victims change their minds after the fact. The Agency worries that too much clemency will undermine its reputation for ruthlessness so it charges a stiff penalty to any subscriber who wants to “forgive and forget”.

Question: Assuming that it works exactly as advertised, would it be morally permissible for you to buy Revenge Insurance?

Given everything we have agreed to so far, you and I, it seems that we must answer “Yes”. Buying a policy is just putting in place a mechanism that will reliably retaliate against people who wrong you and we have agreed that that is permissible. True, the retaliation won’t occur till after you have suffered the wrong–perhaps after you are dead– but we have already agreed that that does not make a moral difference.

Is it significant that The Agency isn’t just a mechanism? That it works through agents– people– who, at your bidding, may end up hurting other people? Should you worry that by taking out your policy you will be inducing the agents to do something wrong? It doesn’t seem so. If you think you have a moral right to retaliation in some measure, it is hard to see how you can think it wrong for someone else to help you achieve it in just that measure. If you had hired the Agency to provide you with bodyguards, you would have been contracting them to hurt other people in certain circumstances. But in those circumstances their actions would not be wrong since they would be enforcing your right to self defense. Why should it be different when they are enforcing your right to retaliation.

And notice that it doesn’t make a difference on this point whether you regard retaliation as retribution or compensation: “Revenge Insurance” is just Retaliation Assurance, and both theories treat retaliation as morally okay. The theories only give divergent answers when we turn from the question of whether you may buy revenge insurance to the question of whether you should.

KantFor a Retributionist like Kant the answer would be straightforward: Kant would have said you should buy a policy because you ought to buy one. You are, Kant thought, morally obliged to make sure that wrong doers get punished. They deserve it! You are shirking your moral duty unless you do everything you can to make sure that bad guys get what they deserve. And this is so, Kant says, whatever the cost or consequences. Which would seem to entail that even poor Sally is morally required to fight back, despite the fact that doing so is guaranteed to increase her suffering.

In contrast, if we think that retaliation is justified only as compensation, we will think it nonsense to suppose that you are ever obliged to retaliate. You do nothing wrong if you refuse compensation. Forgiveness may not be morally required, but neither is it prohibited.

On the compensation view, whether you should buy Revenge Insurance will be a calculation of cost and benefit. It will depend on how you feel. It will depend, to use an old fashioned word, on your sentiments.

You bought that life insurance policy, at least in part, because it makes you feel better, now, to know that your loved ones will be well cared for if you die. Given that you face a good chance of being murdered, would it make you feel better, now, to know that anyone who murders you will themselves suffer ? If it would, how much is that feeling worth to you? If it wouldn’t– if you find the idea of other people being hurt abhorrent, whatever wrong they may have done you– then put away your credit card: Revenge Insurance is not for you. You may think that forgiveness to your credit in some larger sense but if someone else— some Sally or Sam– feels differently, we have not found moral grounds to deny them their right to retaliation.

Of course, the REVENGE INSURANCE story is a bit far fetched in ways that are morally relevant. How could one know that The Agency will always get things right? If they get the wrong guy, or if the guy had a good excuse, or if he wasn’t really responsible for his actions, then hurting him –to whatever extent you contracted for– will be wrong and it will be your fault.

Then too even if the guy isn’t innocent there is the worry the Agency will misapply your chosen menu of retaliations to administer more harm than you think retaliation morally permits.

And then there are larger issues of social justice: If we think Revenge Insurance a benefit, then shouldn’t we worry that it is a benefit enjoyed only by well off tourists at the cost of the indigent natives?

These are sensible concerns. Luckily we can go a long way to answering them by a wave of the philosopher’s magic wand.

Let us give this country a government! Let it be as benign and democratic a government as you can imagine. And let us give this government all the foreign aid it might require to improve the lot of its citizens.

Let us build hospitals and provide them free of charge to its citizens under a system of national health insurance!

Let us provide for the disabled and the widowed and the orphaned by providing state sponsored life insurance for every citizen!

Let us abolish private protection agencies and create a police force to defend all its citizens against the violence of their fellows!

070712_1859_AFewShortSt1And, because no police force can prevent all violence, let it us give a final crowning comfort to the citizenry by nationalizing The Agency, and providing Revenge Insurance for one and all!  

We will convene the people’s representatives to draw up a menu of appropriate retaliations-for-harms that every citizen can agree to. We will recruit impartial juries of citizens to judge the facts of each case. We will replace the Agency’s mercenaries with Wise and Learned Men who are well schooled in the detailed application of whatever revenge policy the polity selects.   We could even have them wear wigs!

Justice as Retaliation

And so after all this magic, we are in familiar country. We have talked ourselves into recognizing the moral legitimacy of a system of criminal law and judicial punishment. Remarkably, we got here without assuming any of the traditional apparatus of Retributive Theories of justice or punishment. We began only by recognizing the right to retaliation. It turns out to be all we needed to make moral sense of the large scale social practice.

This is evidence, I submit, that the idea of retaliation is more morally basic than the idea of retribution; that retribution, if it makes sense at all, must be understood in terms of retaliation, not vice versa.

Neither have our arguments for justice as retaliation turned on any appeal to utilitarian consequence. We did not argue that advertising your Revenge Insurance might deter people from attacking you, though it obviously might. Neither did we have to suppose that a system of universal Revenge Insurance– that is, a system of Criminal Justice — will reduce the amount of wrongful violence in society, though it obviously does.

Our justification for punishing the wrong doer is not that we are enacting God-like retribution. Neither do we have to argue that inflicting the punishment will make any person, living or dead, happier or better off.  We punish to keep a promise to the victims:  a promise made before they were victims, a promise they were entitled to ask for; that we were entitled to give and that we are now obliged to honor.  It was the giving of the promise to retaliate, way back then, that comforted the victim-to-be way back then, not the present fulfillment of that promise.  

The criminal justice system promises all of us here and now that it will punish those who trespass against us. There are good reasons to want public institutions to keep their promises, whether to protect us, or care for us, or retaliate on our behalf.  Those reasons of course include considerations of general utility.  But those considerations count only if what was promised was already morally permissible and what makes punishments permissible is that they are retaliations against wrong doers. 

The police enforce the citizens’ right to self defense;  the civil courts enforce their ongoing rights to compensation;  the criminal courts, their right to retaliation.

Justice as Revenge

Nothing in this new theory of Justice entails any particular schedule of punishments for wrongs. We saw that deciding what sort of revenge insurance to buy for yourself  would be a highly subjective calculation of cost and benefit.  If we are to provide retaliation assurance as a public good, the calculation becomes complicated and political.  Retaliation is more important to some of us than others and we will disagree about proportionality. But if it is to be guaranteed us by a public institution and if we expect others to carry out retaliation on our behalf, then we will need to compromise with one another and balance retaliation’s value with other public benefits and costs. 

On this view, deciding what punishments are just would be a complicated business– far more complicated that counting missing eyes and teeth.  And so it is.

And because, in the end, the value of retaliation to any of us will depend upon our sentiments, our theory explains why it is that what is just will vary from culture to culture and may change over time within a single society as sentiment evolves.  

If it is disturbing  to find that justice is founded  in revenge, it should be a comfort to remember that revenge rests on sentiment.  The desire for revenge is deeply rooted in human psychology but so to are impulses to  forgiveness and compassion.  That, in itself,  is an embarrassment for traditional theories of punishment: compassion has no special relevance to the Retributionist’s or Utilitarian’s unsentimental calculations of utility and desert.  In contrast, the conception of Justice we have arrived at here explains why justice is the sort of thing that can be tempered with mercy.

Still, we must ask ourselves:  Suppose that in her final moments Sally had gallows
somehow reached out to us and asked us to promise to avenge her rape and murder.  Would we have given her the consolation of that promise?  And, if we  did, would we now be prepared to keep our promise, keeping in mind that any of us might someday ask the others for a similar promise? 

If your answer is “yes”, well … here we are.


Thanks to Kadri Vihvelin, Bill Barthelemy and David Gordon for thier help.