Introduction
It is not necessarily ideal to begin a discussion paper with a direct challenge to the veracity of the statement under review, but that is exactly what is demanded here.
The first step in this analysis is easy to take:
Retribution:
noun recompense, usually for evil; vengeance.[1]
Revenge:
noun 1. (act of) retaliation 2. desire for this.
verb ((-ging) 1. Avenge 2. revenge oneself or in passive; often + on, upon) inflict retaliation.[2]
The statement for discussion concretes itself in absolute terms, but that, it is submitted, is no more than a façade. It is confidently submitted that retribution and revenge are far from “strictly distinguished one from the other” in 21st century Britain. The average man or woman on the street – on whose behalf the law is maintained and enforced – would struggle to put clear blue sky between the two concepts, even in the abstract.[3]
Once a factual scenario is added to the mix for context, once flesh and blood and sentiment are brought into the equation, the edges of these respective notions blur yet further. Indeed, the words retribution and revenge are so closely associated in the mind of the ordinary man that they are practically interchangeable. In the glossary to Oxford University Press’s Criminology textbook[4], retribution is defined as: the act of taking revenge upon a criminal perpetrator. Given the mutuality of this definition it would seem difficult to divide the two concepts quite as sharply as the statement under review suggests. From a cynical perspective, it could be argued that retribution is merely revenge with slightly better P.R.
In the auspicious words of Sir Francis Bacon in Of Revenge[5] the issues seem to be distinguished by the notion that, while revenge is essentially a private affair, retribution has more public, and perhaps publicly acceptable, application and connotations. Whereas retribution may be seen to exercise a positive social function, revenge is forbidden fruit – a sin perhaps – if not, a luxury dressed in vice.
‘Revenge is a kind of wild justice which, the more man’s nature runs to, the more ought law to weed it out. For as for the first wrong, it doth but offend the law; but the revenge of that wrong putteth the law out of office… Certainly, in taking revenge, a man is but even with his enemy; but in passing it over, he is superior; for it is a prince’s part to pardon. And Salomon, I am sure, saith, It is the glory of a man to pass by an offence. Some, when they take revenge, are desirous the party should know whence it cometh. This is more generous, for the delight seemeth to be not so much in doing the hurt as in making the party repent. But base and crafty cowards are like the arrow that flieth in the dark.’[6]
Contextual Analysis
It is submitted therefore, that retribution and revenge are in fact closely related concepts. Together they probably comprise the most basic, most deeply engrained and most pervasive elements of human social justice reactions and drivers. That said however, at least one mode of distinction should be clear in the mind. While academic comment on revenge and retribution has in the past tended to revolve around the issue of criminal justice,[7] it is a trite observation that retribution is of prime significance in steering the justification and rationale of other legal matters. For example, beyond the criminal arena, discrimination, medical negligence and malpractice, and a veritable constellation of other species of civil litigation can hinge around and be fostered by a base desire for retribution and retributive justice.[8] Retributive motivation can also burn at the heart of intractable personal, family or business disputes.
Retribution is a fascinating psychological and social phenomenon. It can be analysed from a variety of legal, philosophical and other social science perspectives. Discussion of the topic should address the full range of psychological, societal and sociological functions that punishment serves, embracing the cognitive, behavioural and emotional dynamics of retribution in context.[9]
Almost all of the world’s cultures operate an organised system of social regulation and conflict resolution. Among them, legal systems predominate as the most popular and widespread. Law is retribution and conflict resolution by public administration under the unchallengeable authority of the state. Retributive justice is that which is state sponsored.[10] It is possible to distinguish the concept from other forms of retribution and conflict resolution on several grounds. First, law can be said to be retribution or conflict resolution that is managed by a centralised authority or federal structure. Under this model, retribution for wrongdoing and conflict resolution should not be in jeopardy of escalation into a deleterious cycle of mutual and personal revenge.
There is of course always the danger of complimentary retribution: if I penalise you for hitting me, you’ll penalise me for punishing you – theoretically an unending cycle of reciprocal and ultimately destructive violence. A legal system, under the administration of a central body, removes responsibility for retribution from the hands of individuals and puts it at the discretion of the state.
Given that it is vast, impersonal and all-powerful, it is unlikely that those convicted and punished would attempt to revenge themselves in any direct or specific fashion against the state. The seductive revenge element of the law is manifest in notorious crimes – including for example the killing of Polly Klaas in California and the popular revulsion and controversy inspired as a consequence.[11] That case can be compared with the United Kingdom public reaction to the sentencing of the Jamie Bulger killers, themselves children.[12] One essential point of observation is that the respective families of the victims, no matter what punishment they aspired to visit on the killers, are not the ones who decide on the penalty and they are not the ones who administer the punishment.
Because most law is written and long established it can be argued that it assumes an independent and distinguished persona beyond the emanation of the state that is charged with its administration. This matrix conspires to derive a collective sociological fiction that it is the inalienable Law that governs those who implement the law, and that it is somehow the law that exacts retribution, not individual human beings or the servants of the state. This neat trick ensures that the law stands above and apart from the real world as something conceptually flawless in essence if not reality, something truly independent of human frailty, vicissitudes, fallibility and instability.[13]
There is a simple and thus cogent argument that Law is, at its beating heart, no more than a mechanism for revenge. This should not come as a surprise. It is submitted that the fundamental response, the base socio-cultural mechanism for addressing unacceptable activity and behaviour, is to exact revenge. Incompatible activities that fell outwith the sphere of revenge were not initially embraced within the world’s legal systems. Generally speaking it was only later – hundreds of years later in many cases – that retribution-neutral disputes were encompassed within legal regimes.[14]
The earliest-dated code of laws available for scrutiny is the Code of Hammurabi,[15] which sees it origins around 1780 BC. Significantly, the Babylonian King’s rules were obsessed with mechanisms for retribution. This early legal system assumes the form of a lex talionis – the law of retaliation – providing for exact retribution. The biblical mantra is:
“an eye for an eye, a tooth for a tooth, an arm for an arm, a life for a life.”[16]
Mankind’s very earliest systems of law were almost exclusively species of lex talionis. As can be seen from the aforementioned quote, in the tone of Hebrew Scripture the lex talionis is a law of equal and direct retribution. Revenge, in this context is arguably surplus to requirements. King Hammurabi’s legal code and the nascent Syro-Roman and Mahommedan systems that followed,[17] almost wholly founded on the explicit principle of equal and direct retribution. In so doing it reveals the origins of law and justice per se in the gore of retributive violence.
Concluding Comments
In light of the fact that something similar to the lex talionis is typically the foundation stone of every legal system, it is argued that we can deduce that the basic functions of law are those of revenge and retribution… and in no particular order. However, unlike systems of direct retribution (which are in one sense the fast food of societal sin), legal systems are implemented and enforced by the state and its human embodiment in dislocated fashion. The individuals responsible are normally insulated from the threat of reciprocal revenge in return. While revenge and retribution may jeopardise less well regulated societies as protagonists attempt to inflict reciprocal revenge on one another, retribution as it is embodied in established legal orders and controlled by the state entity in theory strives to prevent a deleterious circle of mutual revenge from undermining the fabrics and glues of society.
In a perfect world the concepts of revenge and retribution would indeed be distinguished uniquely and precisely, one from the other. Alas, this is far from a perfect world and the legal matrix in which these terms sit is an organic hotch-potch of socio-political compromise. Thus, both in respect of their common and legal meanings, it is likely these concepts will be employed interchangeably by journalists, judges and the world at large.
In closing, it is pertinent to note that, with a few notable exceptions, most countries, including the U.K., have abolished the death sentence. International war crime tribunals now award only life sentences for the most appalling crimes against humanity. It is submitted that this global shift in emphasis away from revenge-based sanctions has been driven by the emerging philosophy among criminologists that punishment in the form of revenge and retribution sits incongruously in a modern civilised society.[18]
The Bible has a great deal to say on the subject of revenge and retribution. Much of the sentiment expressed therein has coloured the legal systems of the Christian and Western worlds for hundreds of years, in the interpretation and application. It is a matter of regret and stifled consternation that even in that highest of resources contradiction, ambiguity and confusion is rife. Two quotes end this commentary, leaving objectivity in the eye, and at the disposal, of the reader.
“If the person strikes another and kills him, he must be put to death. Whoever strikes an animal and kills it is to make restitution, life for life. If anyone injures and disfigures a fellow countryman it must be done to him as he has done. Fracture for fracture, eye for eye, tooth for tooth.”
Book of Leviticus, Chapter 24:17-20
You have heard that it was said, `Eye for eye, and tooth for tooth.’ But I tell you, Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also. And if someone wants to sue you and take your tunic, let him have your cloak as well. If someone forces you to go one mile, go with him two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you.
Matthew, Chapter 5:38-41
END
WORD COUNT 2122 (exclusive of footnotes)
This is the sole intellectual and creative work of the author.
Bibliography
English Legal System, Elliot, C. and Quinn, F., 3rd edition, Longman (2000)
Criminology, Hale et al., Oxford University Press, (2005).
Smith and Keenan’s English Law, Keenan, D., 13th edition, Pitman Publishing, (2001)
Sir Francis Bacon: The Essayes or Counsels, Civill and Morall, Kiernan M, (editor), Oxford University Press, (2000).
Clint Eastwood and Equity: The virtues of revenge and the Shortcomings of Law in
Popular Culture, Miller, W. I., Law in the Domains of Culture, University of Michigan Press, (1998).
Perceptions of Neighborhood Safety and Support for the Reintroduction of Capital Punishment, Keil T.J., et al, International Journal of Offender Therapy and Comparative Criminology, Vol. 43, No. 4, 514-534 (1999)
The Practice of Punishment: Towards a Theory of Restorative Justice, Cragg W, Routledge, New York (1992).
Restorative Justice and Civil Society, Braithwaite J, and Strang H, (editors), Cambridge: Cambridge University Press, (2001).
You can kill a burglar if you have to, but not if you want to, Gibb F, The Times, February 2 2005.
Babylonian Law –The Code of Hammurabi, Johns CHW, Encyclopaedia Britannica, (11th ed).
Restorative Justice: An Overview. Home Office, United Kingdom. Available at: http://www.homeoffice.gov.uk/rds/pdfs/occ-resjus.pdf
Restorative Justice: When Justice and Healing Go Together, Zehr H, http://ccrweb.ccr.uct.ac.za/archive/two/6_34/p20_restorative.html
Empowerment and Retribution in Criminal and Restorative Justice, Barton C, Victim Offender Mediation Program. (1999): http://www.voma.org/docs/barton_emp&re.pdf