March 18, 2005
Vengeance as Justice
from - smijer
It's noteworthy that the two conservative big-wigs who have recently come out in favor of cruel vengeance as just punishment (Eugene Volokh and Glenn Reynolds) are not known for being a part of the religious right. I say this because the conservative Christian view of original sin (that is, that all people "deserve" eternal hell, and are only saved by "grace"), as well as the conservative soteriology (the view that Christ's suffering and death replace the suffering due to the sinner) are entirely based in the view that cruel vengeance is integral to justice. Without that view, the conservative doctrine of original sin and redemptive sacrifice are meaningless.
So, while Volokh and Reynolds are not overtly and vocally religious, they seem to share at least part of their value system with the religious right. Maybe that explains the comfortable alliance between the religious right and other conservatives. After all, it is a theocratic state's notions of justice for which Volokh expresses such enthusiasm in the first place.
That's not to say that all conservatives share this value system. John Cole weighs in on the side of a civilized view of justice. (And, while Cole was silent on the nomination of Gonzales for Attorture General, it turns out there are more conservatives against torture than we previously believed... I think it is still clear that the conservative culture is more violence-friendly than the liberal culture, but it's worth noting that it is not homogeneous in this regard!)
For those of us who do not have a conservative religious view of punishment, there remains room for discussion about the role of pain or suffering in a system of human justice. I think it is safe to say that anyone with even remotely humanist values can agree that the mob justice of the Iranians is a barbarism best left behind us, as a race. I think it is also safe to say that any thinking person can easily conclude that it is improper to inflict pain merely for its own sake. But what is proper, and how do we decide?
A good starting point is to remind ourselves that justice is nothing more than the way we take a wrong and try to put it right.
I have yet to see how hurting someone just to vent our outrage can take a wrong and make it right. But, hurting someone in an effort to teach or rehabilitate them could, arguably, help to remove a danger to others. Hurting someone to deter others from following a bad example could, arguably, prevent danger to society. Placing a dangerous person in quarantine from society, for a time or for life, could, arguably, prevent them from doing further arm, and could, arguably, cause them suffering. And, of course, all of these potential benefits must be balanced against a standard of fairness and caution. For, if justice is to make things "right", it must not create further wrong. If I cause more suffering to the criminal than his actions merit*, even if mine is the just goal of preventing future harm, or undoing the harm he has done, then I run the risk of creating a new wrong in place of the one that I am seeking to rectify. Then, by definition, I have not been careful enough to ensure the cause of justice was served. Furthermore, if I cause suffering to an innocent party by mistake, then I have not taken enough care to ensure the cause of justice was served: the more severe the punishment, the greater injustice I am inevitably going to create in those cases where an innocent is punished by mistake. Because we are trying to right a wrong, it is important that we take as much caution as possible to avoid creating a wrong in the process, and it is for this reason that we should seek to fulfill our just goals of rehabilitation, prevention, deterrence (and one other possible just goal) without causing more suffering than necessary. Therefore, the separate issue of what is fair should rarely even come up.
* This is an entirely separate question. I think our instinct for fairness would tell us that the maximum penalty must create no more suffering for the injurer than he or she intended to cause or did cause to the victim(s). Furthermore, my own values tell me that penalties should be softened when the the perpetrator was innocent of malice, and softened further if the perpetrator was guilty only of unthinking negligence. How we decide what is "fair" is a completely separate question from what just goals our punishment is designed to accomplish.
I have purposely left to last discussion of just compensation. One of the best ways a justice system can right a wrong is by causing the wrong-doer to compensate the victim's loss to the best of his ability, and without causing him or her "unfair" (see above) suffering. In all of the blogospheric buzz that Volokh has created, I have seen little from the anti-torture side of the debate discussing how the infliction of pain could possibly compsenate a victim of a loss. As much as many of us would like to pretend otherwise, it is human nature to derive satisfaction from seeing a rulebreaker "suffer the consequences" of his actions. Where a thief may be required to return stolen property, a killer can never return the life of a victim. Can the suffering of the killer provide closure to the victim's families, and would closure for those families be a valid form of partial recompense for their loss? I don't think we can rule that out, but if reason is our guide, I think we can easily see that the "compensation" that comes to a victim's family this way is very slight, indeed, and that it is not made much greater by causing greater suffering to the perpetrator. So, while we cannot rule out the argument of "closure" as compensation, we cannot be excused by that argument for reverting to barbarian practices of punishment.
Volokh's mistake - what makes his viewpoint "uncivilized" - is the same as the religious conservative's: it is to fail to start with the aim of justice. Instead, he indulges himself in imprecise thinking informed only by unchecked emotion. This is what defines the "mob rule" mentality that Cole complains of. He does not take into account the properly defined role of justice: to right a wrong, He does not take into account the possibility of applying a punishment that fits a heinous crime to the innocent by mistake. Volokh and his sympathizers imagine themselves in place of the families, and imagine the suffering that was caused to the alleged mass murderer in Iran was no more than the suffering of his victims. Instead of starting with the intention of making a right, they start by asking themselves how a visceral desire can be fulfilled, and only then think of what would be "fair" as an afterthought. That's what makes this viewpoint so dreadfully wrong.
And that is what is so scary about two outspoken and popular legal professors espousing this view. We would hope our students of law would be trained to look for justice first, instead of being taught to satisfy visceral desires for revenge first. The respective universities should transfer these profs to the Divinities department, right away.
Update: In an attempt to fend off criticism on this issue, Volokh again shows how his viewpoint is informed by emotion without reason. In his second point, he regrets that Nazi war criminals were not made to suffer more than they did without offering a reason, grounded in justice, why he should want that. In point 4, he even goes so far as to assert that retribution is, itself, a "constructive" purpose, without even touching on the single justification that might exist for that viewpoint: as a form of compensation to victim's families. This is the most damning point of all. If justice was his goal, then he could not have demanded his critic to present evidence that of a negative: that retribution served no constructive goal. He would have himself supported his view that retribution could serve a constructive goal by showing how it might act as a partial restorative to a victims family. Instead he makes no mention of any conceivable way that retribution can take a wrong and make it right - showing that justice is not the heart of his reasoning. This is very damning. He should not be teaching law, starting from this viewpoint. In point 6, he states: "The question is how this risk of error balances against the moral imperative for retribution," again without showing where a moral imperative for retribution comes from. Perhaps he mistakes his desire for vengeance for a moral imperative. He says, "Yet my tentative current sense is that for a small number of extraordinarily monstrous crimes, the need for retribution is so strong — and the risk of error can be made so low — that not just death but deliberately painful death is the proper punishment," without ever showing how retribution can be needed, or why that need is so strong that it overrides the other considerations he brings up.
Second Update:Volokh Backflails.::
Posted by smijer at March 18, 2005 01:27 PM