Vengeance, justice and Volokh

Over at The Volokh Conspiracy, there's been a great debate. Should we punish a monster like a serial killer or a Hitler in a way that really hurts the monster and causes pain, i.e. by torture? Perhaps give the family of the victim a chance to punish the monster?

Listen, if you advocate this understandable notion, you're confusing two separate categories: personal vengeance and social justice.

In justice, there is no room for vengeance. Justice proceeds from communal law, and vengeance--and its positive corollary, forgiveness--from individual people.

There are five kinds of justice: protective, retributive, restorative, progressive and redemptive. Protective justice means locking the monster away to protect the community against him. Retributive justice means punishing the monster by locking him away and depriving him of his communal privileges and joys.

There is also restorative justice, a characteristic of African jurisprudence, used by South Africa’s Truth and Reconciliation Commission. The Truth and Reconciliation Commission absolved criminals who had committed terrible acts, as long as they fully confessed and could prove they did it because they believe these acts were political. If someone exploded a bomb that killed innocent people, as many did, all he had to do was show he believed this to be a political act, and he could walk free. In other words, the Truth and Reconciliation Commission allowed terrorists to go free.

In the case of restorative justice, the concern is to restore relationships between people, to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he has injured.

Now: in the case of a monster, a great hole is torn in our notion of what’s right and moral. There’s been a transgression in our understanding of what is humanly appropriate, of what being human actually stands for. We wish to affirm that this act was not human, although of course it is, because humans did it. It is the duty of justice to redress the inhumanity of the monster with our humanity. Justice then becomes more than retribution or some great bath of communal therapy. The reason we shore up our feelings against the monstrous with justice, not vengeance, is because vengeance does not redress inhumanity with humanity, but answers it with inhumanity.

There have been great injustices in history, such as slavery, racism and religious persecution. Much of it continues into our time. We still have slavery in the Sudan. And half the human race has always experienced oppression: the slavery of women. Well may one ask: what retribution can we demand of men, when this price is too big to be paid? Women have been willing to heal the breach, to rehabilitate men, to restore them to humanity.

By recognizing past injustices we become more human. We improve ourselves from century to century. Our justice becomes progressive. When we wreak vengeance for monstrous acts, we re-enact barbarism: we return from social justice to personal vengeance, and cast ourselves against the notion that the human race can improve, that the arc of history and morality bends towards justice. Outlawing capital punishment is a hallmark of progressive justice. It's a sign of a civilized society, which the U.S. is not yet, since it countenances capital punishment and still engages in the kind of debate we are engaging in now.

Finally there is redemptive justice. In redemptive justice, the notion of forgiveness becomes important. In the end, if a monster confesses, and genuinely says he’s sorry, we have to be able to forgive. Contrition is a big part of Chinese justice. But not in Western justice. It's important to note that the people who confessed their terrible acts in front of South Africa’s Truth and Reconciliation Commission, did not have to show contrition to be let free. The terrorist did not have to say he or she was sorry, merely that he or she acted out of political belief. Our law does not recognize forgiveness or contrition in any big way (although contrition sometimes leads to a lighter sentence in Western jurisprudence). When our law does recognize contrition and forgiveness, it will come closer to true justice.