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Private Revenge and its Relation to Punishment

Published online by Cambridge University Press:  01 March 2009

BRIAN ROSEBURY
BRIAN ROSEBURY*
Affiliation:
University of Central Lancashirebjrosebury@uclan.ac.uk
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Abstract

In contrast to the vast literature on retributive theories of punishment, discussions of private revenge are rare in moral philosophy. This article reviews some examples, from both classical and recent writers, finding uncertainty and equivocation over the ethical significance of acts of revenge, and in particular over their possible resemblances, in motive, purpose or justification, to acts of lawful punishment. A key problem for the coherence of our ethical conception of revenge is the consideration that certain acts of revenge may be just (at least in the minimal sense that the victim of revenge has no grounds for complaint against the revenger) and yet be generally agreed to be morally wrong. The challenge of explaining adequately why private revenge is morally wrong poses particular difficulty for purely retributive theories of punishment, since without invoking consequentialist reasons it does not seem possible adequately to motivate an objection to just and proportionate acts of revenge.

Type
Research Article
Information
Utilitas , Volume 21 , Issue 1 , March 2009 , pp. 1 - 21
Copyright
Copyright © Cambridge University Press 2009

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References

1 By ‘private’ I mean simply ‘without legal authority’. I do not mean to limit the expression to acts performed without public knowledge or outside the public arena.

2 See Uniacke, S., ‘Why is Revenge Wrong?’, Journal of Value Inquiry 34 (2000), pp. 61–9CrossRefGoogle Scholar; Elster, J., ‘Norms of Revenge’, Ethics 101 (1990), pp. 862–85CrossRefGoogle Scholar; Wallace, G., ‘Wild Justice’, Philosophy 70 (1995), pp. 363–75CrossRefGoogle Scholar. For Wallace, cf. n. 46.

3 Barton, Charles F. B., Getting Even: Revenge as a Form of Justice (Chicago and La Salle, 1999), pp. 25–6Google Scholar, 78–82; cf. Kleinig, J., Punishment and Desert (The Hague, 1973), p. 39CrossRefGoogle Scholar.

4 Uniacke, ‘Why is Revenge Wrong?’, pp. 61–9.

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6 The definition thus excludes various marginal uses of ‘revenge’ in ordinary discourse. The most common is these is to denote harm inflicted on unoffending but associated third parties. For example, ‘area bombing’ of German civilian targets by the British during the Second World War has sometimes been attributed partly to ‘revenge’ for the bombing of British cities by the Luftwaffe, yet the inhabitants of Hamburg, Dresden, etc. did not (with rare exceptions) participate in the Luftwaffe's strikes, or in any true sense authorize them. On the definition in the text, such examples would lie outside revenge; or to the extent that they may have been motivated by a confused identification of their victims with those who did authorize the bombing of Britain, they could be described as ‘misdirected revenge’. It does not really matter for present purposes, since this article will focus on appropriately directed acts of revenge.

7 Green, T. H., ‘Principles of Political Obligation’, Works of Thomas Hill Green, vol. 2, ed. Nettleship, R. L. (London, 1893), p. 490Google Scholar.

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10 Aristotle, Nicomachean Ethics, II, iii (1104b), p. 95; III, v (1113b), p. 123; X, ix (1180a), p. 337.

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13 Kant, I., ‘Vengeance’, Lectures on Ethics, trans. Infield, L. (London, 1930), p. 214Google Scholar.

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20 Green, ‘Principles of Political Obligation’, pp. 486–511, esp. 487–9.

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23 Butler, ‘Upon Resentment’, p. 131.

24 Butler, ‘Upon Resentment’, p. 132.

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27 Bentham, Principles of Morals and Legislation, X, pp. 26, 111–12.

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33 Durkheim, E., The Division of Labour in Society, trans. Halls, W. D. (London, 1984), pp. 44–52CrossRefGoogle Scholar. D. Garland, Punishment and Modern Society (Oxford 1980) gives an excellent critique of Durkheim and analysis of debates about the emotional motivation of punishment.

34 Hershenov, D. B., ‘Restitution and Revenge’, The Journal of Philosophy 96 (1999), pp. 79–94CrossRefGoogle Scholar.

35 Examples are Honderich, T., Punishment (Harmondsworth, 1971), pp. 15, 42–3Google Scholar; and Lacey, N., State Punishment (London, 1988), pp. 26Google Scholar, 57, 184 (but cf. pp. 34–5, where punishment to satisfy victim grievances and forestall private acts of vengeance is justified, though mainly in the context of sustaining public confidence in the law).

36 For a defence of the use of victim impact statements (VIS), see E. Erez, ‘Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice’, Criminal Law Review (1999), pp. 545–56. My suggestion that their use may countenance vengeance is controversial: VIS can be defended as merely providing evidence to enhance the factual basis of sentencing, much as medical evidence of injury would do, though A. Ashworth, ‘Victim Impact Statements and Sentencing’, Criminal Law Review (1993), pp. 498–509, objects that their use may encourage sentencing in the light of actual rather than foreseeable harm. Ashworth and Erez agree that VIS imply a move to ‘a restitutive model of criminal justice’ (Ashworth, p. 505; cf. Erez, p. 547) as contrasted with one in which sentencing is determined primarily by considerations of the public interest rather than the interests or wishes of the victim. Erez notes a report on a pilot VIS project in which victim respondents cited as their reasons for providing input ‘expressive’ reasons (e.g. to let the judge or defendant know what they had suffered) in 60% of cases, and ‘instrumental’ reasons (e.g. to affect the sentence) in 55% of cases (Erez, p. 551, citing C. Hoyle, E. Cape, R. Morgan and A. Saunders, ‘Evaluation of the One Stop Shop and Victim Statement Pilot Projects: A Report for the Home Office Research and Development Directorate’, 1998).

37 See, for example, in addition to citations in n. 39, V. Nourse, ‘Passion's Progress: Modern Law Reform and the Provocation Defense’, Yale Law Journal 106 (1997), pp. 1331–1448; Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) (www.lawreform.vic.gov.au).

38 The Court of Appeal in a ‘battered woman’ case ruled that instances of ‘delayed reaction’ to provocation were not excluded from the defence provided that sudden loss of control precipitated the killing itself (R. v. Ahluwahlia [1992] 4 All ER 889).

39 The judicial texts, by contrast, are conspicuously alert to it. For example, the direction to the jury by Devlin J in R. v. Duffy ([1949] 1 All ER 932, CCA), best known for its canonical statement of the doctrine of sudden loss of self-control, is at least as concerned to guard the jury against confusing the acceptance of a provocation defence with the countenancing of justified revenge. See also the remarks of Lord Taylor CJ in R. v. Ahluwalia: ‘There are important considerations of public policy which would be involved should provocation be redefined so as possibly to blur the distinction between sudden loss of self-control and deliberate retribution’ (R. v. Ahluwahlia [1992] 4 All ER 896). Finally, the 2004 Law Commission report Partial Defences to Murder (http://www.lawcom.gov.uk/docs/lc290(2).pdf), while proposing the abandonment of the sudden loss of self-control requirement, recommends an express exclusion of cases of ‘considered revenge’ from a reformed provocation defence.

40 Horder, J., Provocation and Responsibility (Oxford, 1992), pp. 190–1CrossRefGoogle Scholar.

41 Horder, Provocation and Responsibility, p. 65.

42 Horder, Provocation and Responsibility, pp. 66–7. The case is R. v. Devlin [1988].

43 13 April 1993, as quoted in The Observer, London, 8 December 1996 (J. Sweeney, review of J. W. Honig and N. Both, Srebrenica: Record of a War Crime (Harmondsworth, 1996)).

44 Moore, M. S., ‘The Moral Worth of Retribution’, Responsibility, Character and the Emotions, ed. Schoeman, F. (Cambridge, 1987), p. 184Google Scholar.

45 Moore, ‘The Moral Worth of Retribution’, p. 184. The phrase is, of course, borrowed from F. H. Bradley (Preface to Appearance and Reality, 1893).

46 Wallace concedes that in certain cases it may be asked: ‘On what ground can the revengee complain? . . . Revenge . . . need not always involve injustice to the revengee’ (Wallace, ‘Wild Justice’, p. 374).

47 Green, ‘Principles of Political Obligation’, p. 487.

48 Hegel, Philosophy of Right, s. 102, addition 65: pp. 73, 247.

49 Hegel, Philosophy of Right, s. 102, addition 65: p. 247.

50 See Strawson, P. F., ‘Freedom and Resentment’, Free Will, ed. Watson, G. (Oxford, 1982)Google Scholar.

51 I am grateful to Terry Hopton, and to a number of anonymous referees, for invaluable advice, criticism and encouragement.