Justice, vengeance, and the exculpation of Anders Breivik

A law professor hasn’t just excused Breivik’s actions, but actually endorsed them

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.




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Justice, vengeance, and the exculpation of Anders Breivik

  1. I agree with you wholeheartedly.  The rule of law is the absolute basis for both democracy and civilization.

    Rosenbaum would move us back to the Stone Age.

  2. Quick! Call Vic Toews! Get this man citizenship then run him in the next by-election! Man o man does he ever have a place on the Conservative front bench!

  3. Potter:  Busy with work at moment but this is interesting post!

    Critique of right wing is fine but it would be nice if we got critiqiue of left wing thought as well. Have to believe in something and left wing version of justice does not exactly represent common people’s view either. 

    Quotes from bible can have religious overtones or it could be example of how people have behaving for thousands of years but for the past 40-50 years we have left wing justice that doesn’t put people in jail because jail doesn’t work, apparently.

    How about a post on what happens when the justice system does not align with normal human feelings or reactions. 

    Congrats about new job in Ottawa. Hope it goes well for you. 

    Steve Pinker ~ Why do people believe that there are dangerous implications of the idea that the mind is a product of the brain, that the brain is organized in part by the genome, and that the genome was shaped by natural selection?

     http://www.edge.org/3rd_culture/pinker_blank/pinker_blank_p2.html

    PJ O’Rourke ~ The second item in the liberal creed, after self-righteousness, is unaccountability. Liberals have invented whole college majors–psychology, sociology, women’s studies–to prove that nothing is anybody’s fault. 

    No one is fond of taking responsibility for his actions, but consider how much you’d have to hate free will to come up with a political platform that advocates killing unborn babies but not convicted murderers. A callous pragmatist might favor abortion and capital punishment. A devout Christian would sanction neither.

    But it takes years of therapy to arrive at the liberal view.

    • So you’re quoting a comedian to support your argument?

    • Given that this article’s scope is clearly defined as a critique of a right-wing commentary on a right-wing criminal, I suspect none of us will go to hell if there’s no lefty-bashing involved.

      Since you and I seem differ so greatly on what accounts for “normal human feelings or reactions”, should the justice system reflect your normality or mine?  Or should we continue to base legal decisions on the constitutional rights of individuals, no matter how unpopular those individuals may be to the public.  I have a strong opinion on which option will undermine democracy.

      I also have a strong opinion in whether a democracy should be in the business of justice or revenge, or even if it is possible for a legal system to be involved in revenge and still belong to a democracy.  Should the murder of a victim with peaceful and forgiving relatives (good Christians, perhaps??) be punished less severely than a murder of a victim with psychotic, hell-bent-for-revenge relatives?  That’s what seems to follow to a justice system based on feelings of revenge.

      I think Canada has a pretty decent compromise towards situations where the normal constitutional rights of individuals isn’t the best situation.  The specific case I’m thinking of is dangerous offender legislation, which can increase prison sentences past the usual limits if the public good absolutely demands it, and the prisoner has periodic chances to revoke the status.  (There is a similar concept in the notwithstanding clause for political issues).

      Correct me if I’m wrong on this issue, but isn’t “An eye for an eye, a tooth for a tooth” adapted from the Hammurabian legal code, where it specifies that amount of compensation due to victims of assault or other wrongful injury should be appropriate for the level of injury?  Basically, your fine for punching someone is lower if you chip their tooth than if you take their eye out.

    • The O’Rourke quotation is cute but really, after the financial bailouts of the past few years the left has no monopoly on unaccountability.

  4. Why not replace all “criminal law” with torts? No more victimless crime.

    • Do you have any idea what it costs to run a typical civil trial?  There’s a serious access to justice issue with what you’re suggesting there.

      • No, I don’t know how much it costs. Why are civil trials more expensive than criminal ones?

        • Because most criminal trials get rammed through the system without adequate preparation by either the prosecution or the defence.

          Actually taking a civil case to court usually means you either have more resource$ than the average individual, or your lawyers are so sure of victory they’ll take payment after the fact.

  5. I understand why you disagree with his argument that justice must offer some degree of revenge for the injured, but I don’t understand how you link this with Rosenbaum endorsing Brevik’s actions – seems a bit of a stretch

    • Brevik feels he’s exacting vengeance for wrongs done to him and his people.

      That’s the problem with the argument, and one that Potter points out a bit earlier — vengeance, both the need for and the appropriate amounts, are not objective facts.

      • No, even in a society that incorporated vengeance into its legal system an individual would need to argue that they had indeed been injured – they would be judged on these arguments

        Having said that, Rosenbaum  muddles his argument by mentioning Casey Anthony, because she was found innocent.  – what legal system would provide vengeance against people judged innocent? Doesn’t make sense. He talks of procedural errors or the ambiguity of reasonable doubt, but that has nothing to do with vengeance – ensuring an individual found guilty of a crime is punished to a level that satisfies the public

  6. Wonderfully well thought out article. A pleasure to read.

  7. It would take a very strange mental process to read Rosenbaum’s op-ed as an endorsement of Breivik’s mass-murders. Potter seems more determined to make his point than to comprehend the meaning of what Rosenbaum wrote.

    Breivik murdered people who represented an ideology he opposed. The ‘vengance’ Rosenbaum wrote about was regarding revenge towards people for what they actual DID, not what they represented.

    • Except Rosenbaum doesn’t say that. He simply equates justice to vengeance. He doesn’t put any sort of demarcations over what’s acceptable to seek vengeance for — that’s simply your interpretation of what he was saying.

      And even then, to Brevik, those people didn’t just represent an ideology he opposed, they were part and parcel of keeping that ideology enacted. ie, it was what they actually did.

  8. “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.”

    What a silly exercise.

    I find it funny that some people are praising the article, and others think that it stinks. I guess that your political leanings will determine where you stand on this issue.

    If you think that a country’s justice system should be about how to help/heal the convicts, then Thane’s views would be repugnant.
    If you think that the justice system should help/heal the convicts, but that it also should punish people who break the law, Thane’s views might seem to make a bit more sense.
    I think we can all guess where Potter would sit between these two views.

    To say that Thane in anyway supports what Anders did, or his reason for doing so is beyond a stretch. Potter is just using that to muddy an opinion that he clearly doesn’t share.

  9. >substitute “rape” for “vengeance”, and “men” for “humans,”

    Why not substitute “flight” and “fish” – your counterargument would make just as much sense as it does now.

  10. By the way: deterrence (vengeance and punishment) exists to keep honest men honest.  Basic incarceration is what we have for the incorrigible.

    • Deterrence as to the severity of punishment has little to no effect. No criminal has ever thought, “Well, if I got caught and it could be the death penalty, I wouldn’t do this, but since it’s only life imprisonment, what the hell..”

      No, they simply think, “I’m not going to get caught.”

      • You evidently missed the part about “honest men”, or have never been exposed to the idea that honest men sometimes need help to stay honest.  I don’t dispute at all that the criminally-inclined mind adopts the “won’t get caught posture”, but it’s not the mind of the “honest” (average) person.

  11. Thanks for taking a crap on all families who are victims of crime. (Especially with your disdain of victim impact’s statements, maybe you would rather the Queen state how her laws must be upheld and therefore the state would be able to give a victim’s impact statement; finally some productive work for the gg) 
    You don’t believe that the system should be set in order to give vengeance to victims. But that doesn’t mean that the public can’t demand that it is. In the face of crime I would venture that the overwhelming majority of citizens wants to see punitive measures taken, not only to uphold the laws of the state but moreso to see that the criminal get what they deserve. Clearly Potter outlines the left’s view that the rights of the state and the community are to be upheld above those of the individual’s right to vengeance. But there could be a way to bind these disparate views and this is somewhat how I envision our justice system working; the victim is given the chance to seek vengeance by pressing charges but the state determines the lawful extent of said vengeance. Any vengeance sought outside of the state’s decreed parameters would be intolerable. 
    In some Aboriginal cultures criminals are delivered justice (vengeance by Potter’s state upholding, perspective) by sitting in a circle listening to the community share how their crime affected each individual, I think if we used more of this so called “barbarism” we’d improve our justice system. 

    • Is there really a history of healing circles in aboriginal culture for serious crimes? Just asking

      • Yes.  First nations tribes in Canada will expell an offender from the tribe – that is their most serious punishment.  In the old days of course that meant death because a person was not able to feed or protect themselves.  Now they must leave the reservation.

  12. No, even in a society that incorporated vengeance into its legal system a
    individual would need to argue that they had indeed been injured – they
    would be judged on these arguments

    Having said that, Rosenbaum
    muddles his argument by mentioning Casey Anthony, because she was found
    innocent.  – what legal system would provide vengeance against people
    judged innocent? Doesn’t make sense. He talks of procedural errors or the ambiguity of reasonable doubt but that has nothing to do with vengeance (ensuring an individual found guilty of a crime is punished to a level that satisfies the public)

  13. I can’t believe Potter is still peddling this pseudo-intellectual horsesh*t.

  14. I am absolutely stunned at this article. incredulous that Maclean’s actually employs someone so over-the-head with his assertions. There are so many holes in his refutation and criticism, almost downright defamation of a professional who merely expressed his desire, and desire of many other individuals in our civilized society the inadequacy of some Western justice systems and an urgent need for reform. I don’t even know where to start. But I will just point out a few noticeable fallacies.
    1. What the hell is this exercise of replacing “vengeance” and “human” with “rape” and men”? He’s trying to delegitimize the entire discipline of sociobiology with some crap like that. In what world is that even close to a reasonable and responsible opinion? This alone discredits the author’s perspective and any journalistic integrity.
    2. Now, Potter mentioned the possibility of feud building up from an accumulation of antagonism of injured parties if they are allowed to have vengeance and that the civilized world would deteriorate into barbarism when private interests are prioritized over public order.
    I agree. Rule of Law is essential to our democracy, a pillar to our civil society. But here in the case of Breivik, where Norwegian’s justice system of no capital punishment will fail regrettably to do justice to  those ruthlessly slaughtered by the lunatic, we see the deficiencies in the rule of law because of its unrelenting rigidity. What you do in these cases is NOT to abandon the principle, but to have the legislatures convene and enact new laws against terrorists that would serve the purpose of justice and vengeance. Like Rosenbaum said,  ”Legal systems should punish the guilty commensurate with their crimes and recognize a moral duty to satisfy the needs of victims to feel avenged. Neither justice nor revenge is negotiable”. 
    There is no reason why justice and vengeance cannot go side-by-side. They are not that different. The reason why we are even discussing this is because our legal system, our penal code is not perfect. Rosenbaum said that our vengeful feelings are morally appropriate. There is nothing wrong with that statement, or in fact a rhetorical question. We feel hatred and the strong desire for revenge on our own because the justice system failed to deliver. In the case of Breivik, Potter, you are not telling me that anyone of the parents to those youths who were murdered are unjustified in wanting to exact revenge, are you? You are not telling me that if they want to kill Breivik, that these parents would suddenly become barbarians? However, do note that I do not endow any actual action by these parents because I feel murdering a human being would leave them a deeper emotional trauma. Nonetheless, the Norwegian government needs to understand that in these extreme cases, punishment cannot be bound by flaws in the legal system
    Lastly the most irresponsible comment was the last sentence when he slandered Rosenbaum of “endorsing” Brevik’s actions. I don’t think i have to say any more after what i’ve already said. If you are a reasonable person, you’d agree that accusation is absolutely low and baseless.

  15. First, that Biblical saying (‘Eye for an eye’) was canceled by Jesus in the book of Matthew, where he said to replace that old law with ‘Turn the other cheek.’ Second, if punishment were about proportional vengeance, then I suppose the murderer should be killed, the thief should be robbed, the rapist raped, etc. That would give us exactly proportional penalties. But we don’t do that, for the point of our jails is to protect the public from a dangerous person and to try and reform the wrongdoer so that they are less harmful when released — that’s why it’s called a ‘correctional’ system. It’s got nothing to do with some cave-man notion of blood justice or vengeance. Third, for those who criticize the Norwegian system, it’s actually vastly superior to the American system; the recidivism rate in Norway is between 40 and 45%, while in the US it’s closer to 67%. Believe me, no one in Europe is looking towards the harsher systems of the US, China or Iran as worthwhile models to follow. For those who don’t get the point of Potter’s comparison with rape, there’s a French saying that when you point at the moon, the fool will stare at your finger. Potter uses a comparison to draw your attention to an abstract principle. It’s not that hard to figure out.

  16. As Potter implies, the last few decades have arguably seen more North Americans buy into the idea that the central (or at least a central) purpose of criminal justice is to fulfill victims’ desire for redress.  As he points out, there are some problems with this, but contrary to his post, in many cases victims’ desires do partly reflect their concern for justice (in the sense of a morally right state of affairs, not in the sense of institutionalized state practices in the administration of law).  But if there’s no longer a public belief in, or a public way of articulating a belief in, a moral realist framework, then it isn’t surprising that people would resort to construing justice in terms of satisfying individuals’ feelings.  If there’s no authoritative moral standard against which the state’s legal and penal administration can be judged, and to which we can demand that it conform—if there’s no moral touchstone by which we can assess, independently of our mere feelings, whether the state’s criminal penalties are too harsh or too lenient—then what is left but to claim that providing psychological satisfaction to individuals is the ultimate point, or alternatively, to claim that our feelings are wholly misleading, and that we should just suck it up and conduct criminal justice on the basis of some other abstract principle (hello, consequentialism) even if it isn’t psychologically gratifying?

    Or, amazing thought, perhaps we could buy into a moral realist outlook again.  We could recognize that our feelings provide at least a vague signal, if far from a wholly reliable one, about the real moral order of the cosmos that makes real demands on us.  And in recognizing that moral order, we would have a point of reference that supercedes our feelings, that matters more than them and gives us a basis to overrule and discipline them when they turn inconsistent or arbitrary.

  17. I fully agree with Thane Rosenbaum.  Vengeance has been a basis for humanity ever
    since humans became distinct from animals. Animals don’t seek vengeance.
    Without vengeance humans would not form into social grouping because harming
    those that harm the group and the individuals in this group provides protection
    for each and every individual in this group and acts as a deterrent.  Calling people that seek revenge barbarians
    does not detract from their humanity. Actually those that oppose revenge are
    inhuman they more resemble docile animals

  18. From Oliver Wendall Holmes’ “The Common Law”:
    The statement may be made stronger still, and it may be said, not only that the law does, but that it ought to, make the gratification of revenge an object. This is the opinion, at any rate, of two authorities so great, and so opposed in other views, as Bishop Butler and Jeremy Bentham. /1/ Sir James Stephen says, “The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.” /2/

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