Revenge, Justice, and the Law

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30 THE WAYNE LAW REVIEW [Vol. 50:4 Yet, even the New Testament, I would submit, does not condemn revenge, per se, for after all, its admonition is only that mortals should not exact revenge. God, it is clear, will continue to avenge, and thus “repay” the wrong doer. Thus the idea of repayment and deserts is not forbidden, it is only reserved for God, alone. 113 I would further submit that in this way, Romans 12:19 merely echoes the concerns of those civilizations which predated Christianity; that victims, unregulated in their quest for revenge, were ill suited to be dispensers of justice. 114 It was not until the Post-Enlightenment Period, 115 that the legitimacy of state imposed punishment required more than simply a claim to be acting as God’s agent. Instead, the secular concepts of proportionality of punishment, and individual, rather than collective responsibility for criminal acts, arose as the basic concepts of criminal law. 116 Underlying these changes was a shift away from viewing the criminal justice system as a vehicle for enforcing religion- based morality, replacing it with the belief that the criminal law should operate to further the good of a more secular society. These beliefs were exemplified by the writings of the 18th century philosopher, Cesare Beccaria, particularly his work entitled Essay on Crimes and Punishment. 117 Beccaria, a member of the Enlightenment, believed in the social contract theory of society, under which citizens agreed to forego certain individual liberties and rights, in exchange for the government’s promise to act on their behalf to safeguard their lives and well being. 118 Becarria also challenged the notion that the criminal law was an 113. See MURPHY, supra note 79, at 88. 114. However, if by equating revenge with sin, the goal was to eradicate revenge, one can only conclude that the attempt was not very successful. Indeed, as Jacoby notes, what may in fact be the longest revenge cycle in history, the persecution of the Jews for the crucifixion of Jesus, remained a fixed and countenanced policy of the Church for almost 2000 years. JACOBY, supra note 11, at 68. Furthermore, having religion as the justification for imposing criminal punishment, led to a system of proportionality that based punishment upon the level of deviance from the teachings of the Church, rather than upon the level of harm. McDonald, supra note 20, at 655. 115. The Enlightenment was an 18th century philosophical movement characterized by rationalism, skepticism, and empiricism in social and political thought. WEBSTER’S, supra note 29, at 482. 116. JACOBY, supra note 11, at 139. 117. CESARE BECCARRIA, ESSAY ON CRIMES AND PUNISHMENTS (Edward D. Ingraham trans., 1819) (1764). 118. Id. at 20.
2005] VICTIM’S DESIRE FOR VENGEANCE 31 extension of God’s laws on earth, administered by those serving as God’s agents. 119 Instead, he posited that the purpose of law was to serve as a means to ensure the safety and harmony of society. 120 As a corollary to that position, he rebuked the notion that the level of punishment should be based upon the level which the wrong constituted an offense to God. Rather, he argued that the extent of criminal punishment should be determined in reference to the level of the harm which the wrongful act posed to society. 121 Becarria’s theories, as well as those of other Enlightenment philosophers, ultimately supplanted the religious underpinnings of the criminal justice system in Western Europe and the United States. 122 However Enlightenment theories retained its predecessors’ prohibition against revenge. As Beccarria noted: “The right of punishing belongs not to any individual in particular, but to society in general, or the sovereign.” 123 While the philosophical basis for that conclusion differed between the religious and secular theories, 124 both were driven by the same practical concerns; that being to establish a system of laws which would “counterbalance the effects of the passions of the individual which oppose the general good. 125 Indeed, I would argue, the practical reasons for rejecting revenge have remained constant since Jacob rebuked his sons for exacting revenge upon the inhabitants of Hamor’s city. These reasons have not concerned the morality of the desire to exact revenge, nor even with the morality of the act itself. 126 Rather, our fears have always been with the consequences which 119. Id. at 19. 120. Id. 121. Id. at 28. 122. JACOBY, supra note 11, at 116. 123. BECCARRIA, supra note 117, at 159. 124. For the religious based theory, allowing only state sanctioned punishment rested upon the sinfulness of acting in contravention of God’s prohibition against mortal revenge. See supra note 111 and accompanying text. For the secularized enlightenment theory, it rested upon the belief that the individual, through his social contract with his sovereign, relinquished his right to revenge. See supra note 118 and accompanying text. 125. BECCARRIA, supra note 117, at 16. 126. This is not to suggest that the desire for revenge is always justified, and thus moral. People are motivated to exact revenge upon others for countless reasons. While it is true that the desire is almost always motivated by hate, often there is no justified basis for the hatred, and thus in those cases, I would argue, even the desire to revenge is immoral.
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