Revenge, Justice, and the Law

8 THE WAYNE LAW REVIEW [Vol. 50:4
groups or legally constituted governmental bodies, as motivated by a desire
to seek retribution. 34
B. Legal
Black’s Law Dictionary defines the term “legal” as “conforming to the
law; according to law; required or permitted by law...” 35 My use of the term
will comport with that definition. Notably absent from that definition is any
judgement as to the morality or justice of the law. To answer whether a
particular act is legal, I will simply refer to the positive, 36 written law of the
34. See generally BARTON, supra note 30, at 52-69; NOZICK, supra note 30, at 366-68.
Barton, however, does view revenge as a form of retribution. See BARTON, supra note 30,
at 54 (“While it is true that historically revenge has been the most prevalent form of
retribution, it has not been the only one.”) (emphasis added). He refers to acts of revenge
taken by the victim or those in personal relationship to the victim as “personal retribution,”
and acts taken by others such as vigilante groups or legally constituted governmental bodies
as “non-personal retribution.” Id. at 79. In so doing, he attempts to illustrate the
commonalities between revenge and retribution, (most notably the concept of punishment
per se), and thus disabuse the notion that revenge is an inherently immoral motivation, while
retribution is not. Id. at 56-69. Yet while acknowledging that the two terms have such
commonalities, he also stresses the intrinsic difference between two; that is the sense of
personal involvement which is at the very essence of the revenge act. Id. at 52-56.
This distinction, however, is not universally accepted, as the two terms are often used
synonymously. See, e.g., Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J.,
concurring) (“Retaliation, vengeance, and retribution have been roundly condemned as
intolerable aspirations for a government in a free society.”); JACOBY, supra note 11, at 4
(“The very word ‘revenge’ has pejorative connotations. Advocates of draconian punishment
for crime invariably prefer ‘retribution’—a word that affords the comfort of euphemism
although it is virtually synonymous with ‘revenge.’”) (emphasis added).
I believe Barton’s definition to be more precise and useful, regardless of whether he
uses the term revenge or personal retribution, because it draws particular attention to the
personal nature which motivates the revenge act. After all, it is that very characteristic—that
it is the one who has been victimized who seeks to punish the wrong doer—which
constitutes the underlying and compelling justification for the act. Moreover, it is clear that
legal theory itself draws such a distinction, since it accepts retribution, that is public
retribution, as a recognized motivation and goal for punishment, while it rejects revenge, or
private retribution as a justification. See infra note 93 and accompanying text.
35. BLACK’S LAW DICTIONARY 803 (5th ed. 1979) [hereinafter BLACK’S].
36. Id. at 1046 (“Positive law: Law actually and specifically enacted or adopted by
proper authority for the government of an organized jural society.”).