Vengeance, Victims and the Identities of Law
| DOI | 10.1177/096466399700600201 |
| Date | 01 June 1997 |
| Published date | 01 June 1997 |
| Subject Matter | Articles |
VENGEANCE, VICTIMS AND THE
IDENTITIES OF LAW
AUSTIN SARAT
Amherst College, Massachusetts, USA
’°
’
&dquo;
Revenge is a kind of wild justice, which the more man’s nature runs to, the more
ought law to weed it out. (Francis Bacon, Essays, ’Of Revenge’)
No authority more useful and necessary can be granted to those appointed to
look after the liberties of a state than that of being able to indict before the
people ... such citizens as have committed any offense prejudicial to the
freedom of the state ... an outlet is provided for that ill feeling which is apt to
grow up in cities against some particular citizen ... and when for such ill feeling
there is no normal outlet, recourse is had to abnormal methods likely to bring
disaster on the republic as a whole. (Machiavelli, The Dzscourses)
The call to revenge forms the least discussed and most pervasive force in the
desire to punish. (William Connolly, The Ethos of Pluralazataon)
-
ECENTLY
LEGAL
SYSTEMS in the United States and Europe have
r~ been confronted by stern challenges in the name of victims’ rights
JL ~.(Forer, 1980; Fletcher, 1995). There and elsewhere a tide of resentment
is rising against a system of public justice which allegedly appropriates and
then silences the voice of the victims. The tendency of criminal justice systems
in western democracies is to displace the victim, to shut the door on those
with the greatest interest in seeing justice done (Roland, 1989; Gewirtz, 1996).
In response, victims are demanding that their voices be heard throughout the
criminal process. And in place after place their demands have been met (Car-
rington and Nicholson, 1984; Henderson, 1985; McLoed, 1986; Lamborn,
1987).
SOCIAL & LEGAL STUDIES ISSN 0964 6639 Copyright © 1997 SAGE Publications,
London, Thousand Oaks, CA and New Delhi, Vol. 6 (2), 163-189
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Yet the idea that victims need rights or that the victim has been superseded
in modern law is somewhat odd (see Schulhofer, 1995: 828). Victims are
always present.2 Almost every criminal trial centers on the discursive recon-
struction of the victim’s injury (Bumiller, 1991; Sarat, 1993). The suffering of
the victim measures, in substantial part, the guilt of the offender. Nonethe-
less the victims’ rights movement wants more. It seeks participation and
power by making the victim the symbolic heart of modern legality (Minow,
1993). In addition, the movement represents a not very veiled clamor for the
return of revenge and a challenge to the prevailing identity of law (Heller-
stein, 1989; Fletcher, 1995: 198).
The victims’ rights movement contests the hegemony of legal procedures
that are distant and unresponsive to crime victims’ grief and rage ( Harris,
1991; Kaminer, 1995).3 By transforming courts into sites for the rituals of
grieving (Taylor, 1983), that movement seeks to make private experiences part
of public discourse. Yet in so doing not only is a private colonization of
public processes encouraged; public scrutiny invades some of the most per-
sonal aspects of our lives - the ways we suffer and grieve. The victims’ rights
movement points to the difficulty of ’reconciling grief and rage and venge-
fulness with practicable moral enforcements of civil association [and] of rec-
onciling a cultural preoccupation with vengeance and ... forms of legal
punishment which deny it’ (Aladjem, 1992: 3). Legal norms no longer, if they
ever did, adequately express common moral commitments. Instead, we are
bound together by our shared recognition of, and aversion to, pain, suffer-
ing and grief.
While it is ’counterintuitive to think of a subjective experience like pain as
establishing a publicly valid authority’, this is precisely what the victims’
rights movement seeks to do (Culbert, 1995: 8). It scrambles categories by
allowing victims to use legal processes to express their grief and rage as they,
or their surrogates, seek to enlist the loyalty of judges and juries in a quest
for revenge. It turns the quest for justice into a quest of voice (Hall, 1991)
where the absence of voice is taken as an absence of justice (Constable, 1992).
In the United States the high tide of the victims’ rights movement occurred
in Payne v. Tennessee (1991). In Payne the Supreme Court reversed the direc-
tion of its own death penalty jurisprudence, and allowed the admission of so-
called victim-impact statements in capital trials (Gilmore, 1992).4 In such trials
the voice of the victim has been permanently silenced. Because the victim is
dead there is in one sense no victim impact beyond that fact. Yet those who
pushed for and secured the opportunity to use victim-impact statements in
capital trials did so in order to extend the idea of the victim to include sur-
vivors, those left behind to bear the burden of suffering and grief (Clarke and
Block, 1992). In those statements relatives of murder victims describe for the
jury, during the sentencing phase of the trial, the effect on the surviving family
of the death of a murder victim, and present first-person accounts of
emotional trauma and continuing personal distress (Gewirtz, 1996).
Earlier, in Booth v. Maryland (1987), the Supreme Court had drawn the line
against the victims’ rights movement by barring victim-impact statements in
165
capital cases. Payne’s reversal of Booth, however, was not only an unusual
departure from precedent; it provided, in addition, a particularly vivid indi-
cation of the status of vengeance in modern law. Payne ended the repression
of revenge and gave it constitutional legitimacy in a way that no other decision
of the court ever had. Constitutional scrupulousness would no longer be a
barrier to hearing the voice of the victim.
In Payne a central fact of contemporary legality came to light, namely its
inability to rid itself of vengeance. Vengeance is at once the ’threatening evil’
which provides the raison d’etre of law, and an unwelcome guest which is
nonetheless indispensable to legal justice itself (Aladjem, 1992:11). Moreover,
vengeance is the ultimate measure of loyalty to those who cannot avenge
themselves. It is the supreme test of social bonds, of blood ties called to let
blood.5 Played out in an address to a jury, the claims of blood are subject to
judgment in accordance with rules whose substance is not fully encompassed
by the imperatives of loyalty or kinship.
Payne’s legitimation of revenge is, in part, a response to, but also an expres-
sion of, the developments and possibilities of postmodernity which have frag-
mented identities, exposed contingencies and opened up new possibilities of
human connection (Lyotard, 1984; also Young, 1996: 51). Revenge demands
that we know who the criminals and the victims are and that we know the
difference between them. It refuses contingency and interdependence while
insisting that the conditions of failure which accompany brutality are irrele-
vant. Brutality, so the vengeful voice utters, must be met with brutality. The
return of revenge occurs in a circle of representations: as it hears the voice of
the victim ’the state receives a fund of generalized resentment from those
whose identity is jeopardized by the play of difference, contingency, and
danger; it constructs objects of resentment to protect the identities it repre-
sents ; and it then receives a refined supply of
resentments aimed at the
...
objects it has constituted’ (Connolly, 1991: 209).
Nonetheless, the legitimation of revenge foretells a crisis in the ideological
apparatus of modern legality. It reveals the unstable, fragile boundaries
separating private and public justice, passion and reason (S. Murphy, 1992;
Mulholland, 1995). Indeed, if revenge succeeds in making itself a force in legal
justice, it does so by moving things across these boundaries and rearranging
these categories. It effectively blurs the line between public and private
justice, between the justice of the state acting against those who defy its nor-
mative order and the justice of the victim calling for vengeance against those
who are responsible for private pain and suffering (Harris, 1991). Because
revenge now must enlist the very state apparatus of which it has been so sus-
picious, a symbiotic relationship of private motive and public processes is
produced.
Not surprisingly, vengeance has figured as an important theme in argu-
ments over the death penalty.6 When the repercussions of public justice are
most grave, as they are in capital trials, modern law has sought the most
thorough repression of vengeance. Consequently, from its decision in
Furman v. Georgia (1972) until its decision in Payne (1991), the Supreme
166
Court constructed a system of ’super due process’ through which capital
defendants could be assured an extra measure of protection from arbitrari-
ness, caprice or emotionalism (Radin, 1980). In the sentencing phase of capital
trials, attention was directed exclusively to the task of ascertaining the precise,
personal culpability of the defendant. Did this particular murderer, given the
full circumstances of his or her life, deserve to die at the hands of the state?
Here the most exacting calculus of retribution was carried out.
Precision in calculating and responding to particular motivations and cir-
cumstances is said, in the legitimating story of modern law, to have no place
in systems of vengeance. In such systems the focus is on damage done and
harm inflicted. Yet, as we will see, it is just such an exclusive focus on harm
that provided the key rationale in Payne (1991). So it might be said that Payne
...
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