Shattered Voices. Teresa Godwin Phelps

negating of the original negative (crime): “punishment is merely a manifestation of the crime, i.e. it is one half which is naturally presupposed by the other.”¹⁹ Hegel shifted the focus to the wrongdoer by arguing that offenders had the right to be punished, that punishing those who do wrong treats them as responsible moral agents making free choices: “In so far as the punishment … is seen as embodying the criminal’s own right, the criminal is honoured as a rational being” (original italics).²⁰ In addition, punishment should be derived from the criminal’s own act, so that he is not “regarded simply as a harmful animal which must be rendered harmless,” but as a rational being.²¹ Hegel emphasized the personal/impersonal distinction between revenge and retribution and also distinguished the two as immoral and moral respectively: “What is at first sight objectionable about retribution is that it looks like something immoral, like revenge, and may thus be interpreted as a personal matter.”²² For Hegel, state punishment was justified not because it satisfied the victim but because it treated the criminal with dignity.

      While Kant’s and Hegel’s theories remain the bedrock for contemporary retributive theories of punishment that argue for treating criminals as responsible moral agents,²³ it was Nietzsche’s introduction of the notion of ressentiment that thoroughly condemned the kinds of emotions that would desire revenge. Ressentiment is not merely the anger and resentment that would result from a personal injury. It includes a litany of negative emotions: hate, envy, ill will, suspicion, rancor, revenge, hostility, prejudice, and greed. Saying we want revenge, then, categorizes us as the kind of people who surrender to these primitive urges, and the “emotions that give rise to retributive judgments are always pathological.”²⁴ Wanting revenge, even in the form of state retribution, dooms us, in Nietzsche’s judgment, to be creatures of ressentiment. A good justice system for him does not incorporate such emotions in an Aeschylean vision but shuts them down and stops the “senseless raging of ressentiment.”²⁵ This shutting down is accomplished by disallowing a role for the victim, by providing other compensations for victims, and by using the law to define and restrict what penalties might be exacted. Above all, such a justice system “trains” the minds and perceptions of victims away from any personal feeling about an injury:

      But the most decisive thing the higher power does and forces through against the predominance of counter- and after-feelings … is the establishment of the law, the imperative declaration of what in general is to count in its eyes as permitted, as just, what as forbidden, as unjust: after it has established the law, it treats infringements and arbitrary actions of individuals or entire groups as wanton acts against the law, as rebellion against the highest power itself, thereby diverting the feeling of its subjects away from the most immediate injury caused by such wanton acts and thus achieving in the long run the opposite of what all revenge wants, which sees only the viewpoint of the injured one, allows only it to count—from now on the eye is trained for an ever more impersonal appraisal of deeds, even the eye of the injured one himself, (original italics)²⁶

      Nietzsche disparages any tendency “to hallow revenge under the name of justice” (original italics).²⁷ Distinctions, nuances, or subtleties between the just anger felt by an Aeschylean Orestes against a real wrong committed against oneself or one’s kin and the crazed anger and other negative emotions that lead to excessive, illegal acts of revenge have fallen under the weight of Enlightenment philosophy. In a series of maneuvers, the original relationship between revenge and justice and the victim’s emotional response to a harm have disappeared and been replaced by ressentiment. In the law of punishment, “reasonable emotion” and “just anger” are oxymorons.

      By the time the nineteenth century closed, in some of the most widely read literature of the age, Dickens portrayed the “corrosive powers”²⁸ of revenge and retribution, mirroring the trend in jurisprudence that had begun to abandon retribution as a justification for punishment. This trend gave retributivist theories of punishment the same moral taint that attached to revenge in Elizabethan times. While it is difficult, if not impossible, to generalize about the various theories of punishment that were vigorously debated, the debate was largely between deontology and consequentialism. Many strong retributivists gave in to Darwinian ideas that in some ways echoed the pollution doctrine and maintained that “the good of the social organism” was the morally superior justification for punishment rather than a personal, vindictive need for revenge.²⁹ Any state “responsibility” to victims had entirely disappeared and was, in fact, a disreputable notion.

      The twentieth century ushered in a reluctance to acknowledge revenge as a human need, and even the reformed Kantian-Hegelian retributivist position became suspect in intellectual circles.³⁰ The desire for revenge and for using the state as a mechanism for retribution met with increasing disapproval, being seen as a “wilful substitution of passion for reason as a guide of conduct, and a kind of passion which, in the form of private revenge, civilised society has agreed to condemn.”³¹ Retribution became a “polite name for revenge … vindictive, inhumane, barbarous, and immoral.”³² Backward-looking retributive theories of punishment were displaced by forward-looking utilitarian and consequentialist rationales that justified punishment largely as deterrence and rehabilitation, and perhaps to deter those who, in the absence of state retribution, would enact private revenge.³³ Those opposed to retributivism argued also that the incommensurability of harms made it impossible to inflict an appropriate punishment in the name of retribution, adhering, it seems, to the ancient lex talionis as an impossible necessity.³⁴ For a variety of reasons, retributivism was “destroyed by criticism,”³⁵ was “no longer the dominant objective of the criminal law,”³⁶ and, in the words of a leading hornbook, was “the least accepted [justification for punishment] today by theorists.”³⁷ The sacred personal right that was reluctantly transferred to the state has become the natural right of the state; the victim has disappeared. Jeffrie Murphy sums up the contemporary attitude toward retributive theories of punishment: “In the present age, most of us do not feel comfortable talking about the criminal law in such terms, for we are inclined to think that civilized people are not given to hatred and to an anger so intense that it generates the desire for revenge…. We prefer to talk highmindedly of our reluctantly advocating punishment of criminals perhaps because social utility or justice demands it and tend to think that it is only primitives who would actually hate criminals and want them to suffer to appease an anger or outrage that is felt toward them” (original italics).³⁸

      What the Athena of Aeschylus’ Oresteia recognizes and honors in the Furies is lost, and we see this plainly in the character of the lawyer Gerardo in Death and the Maiden. Fury and passion have no appropriate place in a legal system. Gerardo’s position is the rational voice of civilization that has held, at least since Elizabethan times, that vengeance is personally fruitless, socially destructive, and aligned with madness, if not symptomatic of it. To Gerardo, Paulina’s emotional need for something from the state is at best selfish and misguided, at worst deranged. “Imagine what would happen if everyone acted like you did. You satisfy your personal passion … the whole transition to democracy can go screw itself.” Miranda buttresses Gerardo’s rationality with “Isn’t it time we stopped?” Paulina’s newly recovered voice is that of passion, reason’s alleged opposite, that requires, indeed demands, some sort of balancing to recover the natural order destroyed by her torture. “What about my good?” The two “goods,” societal order and personal emotional need for redress, are deemed antithetical, with our contemporary notion “justice” squarely on the side of societal order and the repression of the emotions of resentment and hatred that lead to revenge. Additionally, any original sense of the meaning of retribution as giving something back to the victim has disappeared; retribution has come to mean punishment directed at the perpetrator. The state punishes because the perpetrator deserves it.³⁹

      This transfer to the state advocated by theologians, philosophers, and dramatists assumes a strong central state capable and willing to act on a victim’s behalf. Yet interwoven with these staunch positions against revenge, we find more layered and ambiguous positions about revenge. For some, the presence and possibility of private revenge remained an imminent possibility,