Fordham Law


Justice, vengeance, and the exculpation of Anders Breivik

Thane Rosenbaum in MACLEANS.CA, July 29, 2011

Media Source

by Andrew Potter

Norway does not have capital punishment. In fact, the longest sentence you can receive there for murder is 21 years. According to an op-ed by published in yesterday’s New York Times by law professor Thane Rosenbaum, these facts render Norway “legally and morally” unprepared to deal with Anders Bleivik’s atrocity.

How so? He compares the situation in Norway to the public reaction to the acquittal of Casey Anthony, and notes how she is in hiding because of the risk of vigilante justice. He follows this with another American example: the case of Michael Woodmansee, who murdered a 5-year old in 1975 and is due to be released next month. Rosenbaum quotes the boy’s father, who apparently said “If this man [Woodmansee] is released anywhere in my vicinity, or if I can find him after the fact, I do intend to kill this man.”

This is where the piece takes a strange turn. Instead of denouncing these expressions or threats of vigilantism as utterly unacceptable in a civilized society, Rosenbaum writes:

    Are these vengeful feelings morally appropriate? The answer is yes — because the actual difference between vengeance and justice is not as great as people think.

Or again:

     Such statements of unvarnished revenge make many uncomfortable. But how different is revenge from justice, really?

Rosenbaum’s piece perfectly captures the mood, as well as the style of reasoning, that has taken hold amongst the American right. Take a general truth, add a glaring non-sequitur, mix in some pidgin sociobiology, and – presto – you get the wonderfully reactionary conclusion that justice is just fancy vengeance, so what does it matter if the state does it or the victim?

Here’s the key passage:

    Every legal system, however dispassionate and procedural, must still pass the gut test of seeming morally just; and revenge must always be just and proportionate. That is what the biblical phrase “eye for an eye” means. Justice requires that no less than an eye can be taken in retaliation for a lost eye, but no more than an eye either.

The general truth in this is that any social institution, to be stable, has to be compatible with fundamental and widely distributed human responses.  But the next clause, “and revenge must always be just and proportionate” simply begs the question, by assuming what Rosenbaum is trying to prove, viz., that “proportionate revenge” is properly a part of justice. (The tacked-on reference to the bible plays no argumentative role here; its sole function is to set the pious a-nodding. It’s the right-wing law-prof equivalent of bringing a hypeman onstage).

So why does Rosenbaum think he can simply assert the equivalence of justice and revenge? Bring on the sociobiology:

    Despite the stigma of vengeance, it’s as natural to the human species as love and sex. In art and culture, everyone roots for the avenger, and audiences will settle for nothing less than a proper payback — whether it comes from Hamlet, or from the emotionally wounded avengers in “Gladiator,” “Braveheart” or “Unforgiven.” Recent studies in neuroscience and evolutionary psychology have claimed that human beings are hard-wired for vengeance.

This bit is exactly why people freak out about sociobiology and evolutionary psychology. The “it’s as natural to the human species” is clearly intended as approbation; that is, as carrying normative weight.  But here’s an exercise: substitute “rape” for “vengeance”, and “men” for “humans,” in that paragraph and see how it scans. The problem with it, I trust, becomes apparent.

As he heads for home, Rosenbaum stops even trying to soft-pedal his agenda: “Legal systems should punish the guilty commensurate with their crimes and recognize a moral duty to satisfy the needs of victims to feel avenged.” And then: “Neither justice nor revenge is negotiable.”

These are remarkable things for a professor of law to write. Far from being aspects of the same instinct, the difference between revenge and justice is as fundamental as the difference between a tort and a crime, and the move from revenge to justice marks the step from tribalism to the state or – if you prefer – from barbarism to civilization. Despite what Rosenbaum seems to think, the desire for vengeance is a bug, not a feature, of human motivation.

The central difficulty with it is buried in Rosenbaum’s own argument – the need for the victim to feel avenged. The problem is that if I wrong you and you seek revenge, it is very unlikely that I will think that your retaliation is proportionate and “just”. More than likely, I’ll see your retaliation as a further wrong that needs a response from me, and so on. This is a very common cycle in human interactions; it’s called  a feud, and they can last for generations and encompass entire families and tribes. The crucial step into civilization was taking the right to retaliation out of private hands and putting an end to the cycle of feuds.

Rosenbaum seems to think that the public system of criminal justice is nothing more than the state serving as a referee between private (and negotiable) desires for revenge. It isn’t. It is aimed at upholding the public system of non-negotiable rights. There is a great deal of confusion on this score, partly because of how television drama treats criminal cases (with all the talk about victims “pressing charges”, which they don’t do IRL), partly because the growing fetish for victim impact statements is obscuring the tort/crime distinction. But that should be seen for what it is – a decline into barbarism, not a fulfillment of the demands of justice.

The upshot is this: Despite what Rosenbaum seems to be arguing, victims of crimes do not have the right to feel avenged. To have it so would be to privilege private interests and reasons over those of the public, and is quite literally a counsel of barbarism.

If you don’t agree, think of it this way: Claiming that the public standard of reasonableness is unsatisfactory to the demands of justice is exactly what what Anders Breivik used to justify his actions. Whatever else he is, Breivik saw himself as a vigilante upholding a private theory of justice in the face of a failure of the state to provide satisfaction. Whether he realizes or not, Thane Rosenbaum has written a piece that doesn’t just excuse Breivik’s actions, but actually endorses them.