Truth
Revenge or Justice? The Purpose of Law
Abstract
Law as Social Retribution?
Revenge, at first though sweet,
Bitter ere long back on itself recoils.John Milton
© Dr M D Magee
Contents Updated: Saturday, 1 August 2009
Revenge
The old tribal blood vendetta meant that a single wrong could provoke an endless series of retaliations in an orgy of revenge, which no one could escape whether they suffered severally or collectively. Society’s retributive institutions are to remove the burden of vengeance from people whose vindictiveness might endanger themselves and others, and even destabilize society.
The replacement of bloody vendetta by social retribution was a slow process. In the evolution of law from early tribal times, blood vengeance was eventually substituted by a tribal settlement, perhaps by money, or by turning over an acceptable victim, perhaps the criminal. This is how it was in the ancient Greek societies described by Homer. Then, in the middle of the first millennium BC, the notion of pollution restrained the older idea of blood vengeance. Some murders were banned as being against the code of tribal morality, such as the murder of a king entering the enemy’s camp under a truce. Such a murder was pollution—pollution of the earth—and those who did it, were doomed to wander the earth, notionally forever, like the biblical Cain, but most often for a term, until the crime was considered paid for. In fact, therefore, it stood for a period of exile from the tribe.
In the Jewish scriptures, written initially around 400 BC, the notion of pollution restrained the older idea of blood vengeance. The Greeks had similar ideas at about the same time. The link was that pollution of the earth—one of the four sacred elements—became a widespread offence under the hegemony of Persia. It was the time, in fact, when murder and human sacrifice were banned. Who, before the Persians had the power, or the moral incentive, to do the banning? The concept of pollution bridged the gap between tribal payment by goods or a victim, and the written law, such as that the Persians imposed on the Jews eventually being refined into Rabbinic Judaism.
Numbers 35:33 is clear that the earth is not to be polluted, especially by blood:
And you shall not pollute the land in which you are, for blood pollutes the land. And no ransom is to be taken for the land for blood which is shed in it, except for the blood of him who sheds it.
Here Numbers is forbidding the populace from taking its own vengeance against a suspected murderer, even setting aside cities of refuge so that an incensed crowd could not take summary justice, and the basis of the new law is precisely that the earth is sacred. The word for “land” and “earth” in Hebrew is cognate with the word “earth”, aretz.
Almost 2000 years later, Maimonides, was still explaining it in his commentary on Rabbinic law. He warned against financial restitution, the payment of a ransome, to absolve a murder:
For the life of a murdered person is not the property of the avenger of blood, but the property of God… There is no offence about which the law is so strict as it is about bloodshed, as it is said, So you shall not pollute the land wherein you are—for blood, it polluteth the land… (Num 35:33).Moses Maimonides
Rich men ought not to be able to pay off their bloody crimes with money! For the Persians and Greeks, and so for the Jews, religious purgation did not replace legal punishment, but followed it. Exile was the Greek punishment, and the purging occurred when the murder had served his term and sought re-entry to society. If society agreed, then the murderer would purge himself according to the religious rites and then be readmitted. So, too, in Jewish and Christian custom, punishment of the offender was a precondition to reconciliation. As Susan Jacoby put it (Wild Justice, 1983), “there can be no resurrection without a crucifixion”.
Christian Revenge on the Jews
Only God can judge the human heart, but on earth, it is God’s followers who exact the penalties. The institutional religions have rejected revenge as usurping a right that is God’s, yet they approve God’s revenge—revenge meant to serve His purpose and carried out by his agents. Except for natural disasters, considered by the religious as acts of God, divine vengeance is exacted by human beings, indeed human beings who think they are on a mission of God. These people are altogether harder to restrain from their revenge than other human beings.
For 2000 years, Jews have fufilled the vengence of Christians determined that God needs them to avenge His death at the hands of His ungrateful Chosen People. Only in the last hundred or so years have some Christians been willing to question this Christian truth. Christians accused Jews as a whole people for crucifying Christ. The gospel of Matthew puts the onus for Christ’s death on the Jews when the Jewish mob yells, “His blood be on us and our children”. Christians accused Jews as a whole people for crucifying Christ, though the gospels show the Romans as torturing him. In the medieval passion plays a full millennium later, the Jews were being shown as the torturers of Christ too! In the eleventh century, with the first crusade, Christians in Europe united against the common foe—not the Moslems—the Jews! Massacres of Jews in France and Italy followed the first reports that the Christians in Jerusalem were being persecuted.
The Church Fathers noted who was blamed, the Catholic Church in the middle ages repeatedly expressed it, Protestants after the Reformation were no less insistent upon it, and only after the Nazi holocaust of the Jews did Christians come to reject it. The Old Testament God is shown stirring the Israelites to horrific and shameful acts of vindictiveness against Canaanites, and the Catholic and Protestant Christians did the same to Jews, and then to each other. It shows of the lack of personal restraint against violence to others when someone feels justified by God.
Luther hoped to convert the German Jews to Protestantism just as the German Catholics had hoped to make them Catholics. But the German Jews were happy to remain Jews, and once Luther realized he was getting nowhere, he turned to making openly anti-Semitic speeches, and writing inflamatory anti-Semitic pamphlets. Foremost in them is the responsibility of the Jews for the death of Christ. If his words were to stir up ill-feeling against the Jews, it was their own fault. It was because they were guilty! By their guilt, they invited their punishment:
For such ruthless wrath of God is sufficient evidence, that they [the Jews] had assuredly gone astray. Even a child can comprehend this. For one dare not regard God as so cruel that he would punish his own people so long, so terribly, so unmercifully, and in addition keep silent, comforting them neither with words nor with deeds, and fixing no time limit and no end to it. Who would have faith, hope or love for such a God?Martin Luther
Er… Christians? Luther blamed the victim for their oppression. He continues:
They [the Jews] wish that the sword and war, distress and every misfortune may overtake us accursed Goyim. They vent their curses on us openly every Saturday in their synagogues and daily in their homes. They teach, urge and train their children from infancy to remain the bitter virulent and wrathful enemies of the Christians… They have been bloodthirsty bloodhounds and murderers of all Christendom for more than fourteen hundred years in their intentions, and would undoubtedly prefer to be such in their beds… So we are even at fault in not avenging all this innocent blood of our Lord and of the Christians which they shed for three hundred years after the destruction of Jerusalem, and the blood of the children which they have shed since then (which still shines forth from their eyes and skin). We are at fault in not slaying them.Martin Luther
How is the command that the sins of the fathers will be visited on the children compatible with the Golden Rule and the Sermon on the Mount? Those who have read the gospels agree that Jesus taught a doctrine of mercy and compassion, but most Christians think God is indistinguishable from the vengeful and vindictive ogre of the Old Testament.
Justice
Revenge is a kind of wild justice which, the more a man’s nature runs to, the more ought law to weed out.Francis Bacon, Of Revenge
In fact, law is not meant to weed out the impulse toward revenge but to contain it, thus keeping society orderly and humane. But the law contains revenge by meting it out itself as retribution. The retribution society metes out is to right a wrong to society itself on behalf of its members who have been wronged personally. Everyone in a society has a right to expect that those guilty of crimes against others in the society are punished, but the laws and institutions of a society should curb the criminal inclinations of citizens and should indicate what good behaviour is without demoralizing or destroying them. The scales of justice must have a real meaning for society’s members, for the legal system exists to maintain social equilibrium, and therefore to restore it when it has been disturbed.
Retributive law was to preserve society from perpetual vendettas by taking away the need for revenge from individuals and families, and doing it for them in a suitably measured and just way. It was to keep people feeling secure in society. If revenge is society’s retribution on wrongdoers, then law is concerned with forms of revenge that are acceptable to a just society, one in which it is acting for itself and its own good, but that must be for the general good of the people in it. Once society is generally seen as failing in this, individuals and families will begin to seek their own justice outside the law, with the possibility that society will fall apart. When they do not feel justice has been done, they might even seek to overthrow society as unjust and set up a new one.
Cesare Beccaria (On Crimes and Punishments, 1764) was an outstanding influence on post-Enlightenment revision of the draconian laws that had become typical of Christian Europe. The central practical principles to which Beccaria appealed were that society was a form of contract, the greatest happiness for the greatest number of people within society, and the application of reason. Beccaria had elaborated the original principle of utility, or of the greatest happiness for the greatest number. He developed in his treatise on crimes and punishment innovative and influential principles:
- punishment was to be deterrent or preventative, not a retributive
- punishment should be proportionate to the crime committed
- the certainty of punishment, not its severity, would achieve the preventive effect
- procedures of criminal convictions should be public
- to be effective, punishment should be prompt.
In societies with a belief in individual worth, good law upholds a wide variety of rights and liberties. We call them human rights. But punishment should not be trivial in relation to the crime. Beccaria thought all crimes of violence should be treated with corporal punishment—though not with torture. Nobles and commoners should be treated in exactly the same way by the law. The punishment should be measured not by the class of the guilty one but by the injury done to society. Indeed, it can be persuasively argued that an injury to society by one whom society had put in a position of trust was more serious than the same injury done by a commoner, and therefore deserved a more severe punishment. When punishment depends on who a person is and not purely on what they have done then it is not a fair and equitable law.
Legal penalties must always be based on what people have done in the past, not what someone thinks they might do in the future. It might seem fair for some criminals to be given mild punishments because someone thinks they are not likely to offend again, while someone else feels the full weight of the law because they are not viewed so favourably, but the future judgements are hypothetical whereas the crimes are real, having already been committed. Moreover, a system that invites leniency on hypothetical behaviour is open to abuse, especially class abuse. Those considered favourably by the courts are more likely to be middle and upper class than working class. And people are known to judge others on the basis of their appearance, so juries favour people who look good, whether they are physically beautiful, or simply well turned out—the reason why defence lawyers like their clients to turn up clean, groomed and wearing smart clothes, whatever their normal dress code may be.
Worse still is that criminals might be judged on their supposed potential for crime rather than on anything they have actually done. Already we have this with supposedly potential terrorists having their freedom removed or reverely restricted though they have not done anything at all, other than what their accusers claim, and that is kept secret. Such law is obviously unfair and oppressive, and shocking for having been introduced allegedly to defend freedom!
Retribution exists in law as a social necessity but nothing stops it from being termpered by mercy, by considering motive, mitigating circumstances, and level of responsibility. But religious forgiveness should not be a part of it. Many reforms in the penal codes of the principal European nations can be traced to Beccaria’s treatise. He thought too many people were led by their personal passions to oppose the general good. They needed to be given stable principles of conduct to counter their inclination to follow their raw emotions. This is why forgiveness should not be part of any law. It is contrary to the public good. The right to punish does not rest just with an individual, the one wronged, but with all the members of a society, or whoever has been elected or appointed to act on their behalf. If some are forgiven and others are not, the law will look unjust, and those who feel they will not be forgiven will feel outside of it.
The victim is, of course, personally free to forgive an oppressor, but that should have no effect on the right of everyone else in society to decide what is best for their society. Public retribution has to stand as a sure deterrent irrespective of any personal desire to forgive. The law must not be or seem capricious, subject to whim or arbitrary religious or philosophical abstraction. As the foundation of public security, its value is the certainty that it will be applied.
A Lack of Imagination
The issue is not a society’s right to punish, but that it must never punish in cruel, unusual or disproportionate ways. The law should not be excessive. The law must remove personal animus from the task of apportioning blame and exacting retribution. The death penalty for a petty theft does not create respect for the law—especially when people face the choice of starving to death or risking death by thieving—but merely fear of injustice, and then disrespect for the law. The Holy Inquisition remained a force of law in Spain long after it had lapsed elsewhere in Europe, but, even in its late stages in Spain, the only people exempt from interrogation, besides nobles, were children under 14 years of age and pregnant women, and the pregnant woman could be held in prison until she had given birth to her child then be immediately sent for torture.
In England, from the twelfth century to the seventeenth, traitors were drawn—their abdomen was cut open and their bowels dragged out while the victim still lived. Then they were hanged and cut into quarters. In the eighteenth century, the law was altered so that the victim was hanged first, then drawn and quartered.
It appears absurd that the laws… which detect and punish murder, should themselves commit a murder, and to deter citizens from killing, should ordain a killing in public.Cesare Beccaria
Can a society consider itself successful if it can only keep control of its members by killing some of them? Susan Jacoby adds:
It has always seemed to me that the ability to commit murder requires, among other qualities,a lack of imagination. Most of us can imagine all too vividly what it might feel like to have our bodies invaded by a bullet or a blade.Susan Jacoby, Wild Justice, 1983
If this is true of one bullet or blade delivered by one person, how much more true it is of a head of state taking a whole nation to war in which millions died in more horrific ways than we can indeed imagine. Bush and Blair thought it their Christian duty to do it, and Brown and Obama continue their crimes in Afghanistan. Do modern Christians actually read what Christ had to say in the book they call the Word of God?
