More on Murphy

Thanks to Michael for linking to Professor Jeff Murphy's review of William Ian Miller's "An Eye for An Eye."  As I have mentioned before, I am a big fan of Murphy's work.  (Check out, for example, his essay, "Law Like Love", or his recent short book, "Getting Even.").  Here is an interesting bit:

Most (but not all, see note 1) philosophers who defend retributive theories of punishment -- philosophers from Kant to Michael Moore -- insist that what they call retribution -- giving wrongdoers what they deserve -- must be sharply distinguished from such unsavory or even evil practices as revenge or vengeance. They also want to insist, as a point in moral psychology, that the motivation that prompts one toward retribution is a sense of justice, something admirable, whereas the motivation that prompts one toward revenge or vengeance is vindictiveness, something quite vile -- some primitive and savage emotion that civilized people have outgrown.

Miller believes that this sharp distinction between retributive justice and revenge cannot be maintained and that those who seek to maintain it have a grossly uninformed view about the nature of revenge -- a view they would not have if they actually knew something about revenge cultures instead of starting with a variety of ignorant assumptions about such cultures:

The whole distinction [philosophical literature] mobilizes between retribution and revenge is untenable given any serious account of revenge as actually instituted in revenge cultures. Invariably, revenge is caricatured as a crazy, imbalanced response to injury. No real revenge culture would put up with this kind of revenge for a second. (p. 206)

Murphy closes his review with some thoughts on an issue that supplies (I hope!) one of the organizing (!) themes of my first-year criminal law course, i.e., the role of "harm" in punishment theory:

Why does actual harm caused play such a large role in determining the severity of punishment that a criminal receives? 

The role of harm may pose an interesting challenge to those who think that civilized criminal law has moved beyond vengeance. Consider this: We punish attempted murder that fails through a fortuity (the gun jams, for example) far less severely than actual murder. Why is this? Why should they not be treated with equal severity? Is our attempted murderer less evil (less malicious in heart) than the successful killer? Surely not, since one does not become a better person simply in virtue of having a faulty gun. Is he less dangerous, less likely to pose a future threat? Probably not since he has now learned to use a better weapon. So why then do we punish him less? The best explanation may simply be that, since no harm occurred, there is no payback due -- nothing to get even for. So unless one wants a radical redesign of the criminal law so that actual harm caused plays no important role, one might want to be a bit cautious before confidently asserting that payback or getting even has no legitimate role to play here. If we had a very different and sophisticated concept of harm -- viewing harm simply as having our right not to be put at unjustified risk violated -- we could then perhaps justify treating our attempted murderer the same as our murderer, since both acted to impose the same unjustified risk. This is not our actual concept of harm, however, and I do not think that it is likely to be so in the future. I never will hate the negligent driver who (out of pure good luck) just misses killing my child nearly as much as I will hate and want to hurt the equally negligent driver who (out of pure bad luck) does kill my child. I do not think I am at all atypical in this regard, and I know that I (and many others) would want the state, through its criminal law, to ignore all pious sermons against vindictiveness and revenge and to treat the child killer much more harshly than the one who misses the child. Wanting to hurt the person who wrongfully killed my child probably should not always be my last word, but it surely has every right to be my first word. Those to whom this seems correct will thus be forced to admit that Miller has been correct in seeing some virtues for revenge even in our contemporary world. (A query: Can honor explain the desire for revenge in cases such as the death of one's child at the hands of a wrongdoer? Might not love or wounds to love sometimes provoke the desire for revenge?)

Miller does not strike me as a victim of nostalgic fantasies about the past (he always notes problems in the cultures and practices in which he also sees merit) nor does he strike me as someone who would like totally to abandon all aspects of the modern world and make a return to the past. He is fascinated by revenge and ancient revenge cultures, not because he wants us to live in one, but because he sees that they did contain some real virtues -- a kind of nobility -- that it might benefit us to recognize and recapture to some substantial degree. At the very least, he has warned us not to shrink in horror when we find remnants of these cultures in our present practices and assume that these remnants could contain nothing but evil and must immediately be discarded. In this regard, I will let the final paragraph of his book be the last word here:

Though we have progressed in some domains . . . it is not obvious to me that we are better psychologists and social scientists than humans were in centuries past. Indeed it is obvious to me that we are not. Nor are we better educators and scholars. And with no irony I can attest to my belief that when it comes to understanding human motivation -- no less than to understanding justice and what it means to get even -- we are not as smart now as we were when people worried more about their honor than about their pleasure. (p. 202)

It is my view that punishment is justifiable only for restributive reasons.  That is, punishment is not justifiable -- I'm not sure it is even "punishment" -- if it is not deserved.  But, since we know that part of what it means to be a "person", made in the image and likeness of God, is to be something toward which the correct attitude is "love", it seems crucial that a plausible and meaningful distinction be maintained "retribution" and revenge.  For me, Murphy is very helpful in this regard.