Payback – The Case for Revenge - Hardcover

Rosenbaum, Thane

 
9780226726618: Payback – The Case for Revenge
Hardcover
ISBN 10: 0226726614 ISBN 13: 9780226726618
Publisher: University of Chicago Press, 2013

Synopsis

We call it justice - the assassination of Osama bin Laden, the incarceration of corrupt politicians or financiers like Rod Blagojevich and Bernard Madoff, and the climactic slaying of cinema-screen villains by superheroes. But could we not also call it revenge? We are told that revenge is uncivilized and immoral, an impulse that individuals and societies should actively repress and replace with the order and codes of courtroom justice. What, if anything, distinguishes punishment at the hands of the government from a victim's individual desire for retribution? Are vengeance and justice really so very different? No, answers legal scholar and novelist Thane Rosenbaum in Payback-revenge is, in fact, indistinguishable from justice. Revenge, Rosenbaum argues, is not the problem. It is, in fact, a perfectly healthy emotion. Instead, the problem is the inadequacy of lawful outlets through which to express it. He mounts a case for legal systems to punish the guilty commensurate with their crimes as part of a societal moral duty to satisfy the needs of victims to feel avenged. Indeed, the legal system would better serve the public if it gave victims the sense that vengeance was being done on their behalf. Drawing on a wide range of support, from recent studies in behavioral psychology and neuroeconomics, to stories of vengeance and justice denied, to revenge practices from around the world, to the way in which revenge tales have permeated popular culture - including "Hamlet", "The Godfather", and "Braveheart" - Rosenbaum demonstrates that vengeance needs to be more openly and honestly discussed and lawfully practiced. Fiercely argued and highly engaging, "Payback" is a provocative and eye-opening cultural tour of revenge and its rewards - from Shakespeare to "The Sopranos". Rosenbaum liberates revenge from its social stigma and proves that vengeance is indeed ours, a perfectly human and acceptable response to moral injury.

"synopsis" may belong to another edition of this title.

About the Author

Thane Rosenbaum is the author of The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right, as well as four novels. His articles, reviews, and essays appear frequently in the New York Times, Los Angeles Times, Wall Street Journal, Washington Post, and Huffington Post, among others. He is the John Whelan Distinguished Lecturer in Law at Fordham Law School, and he directs the Forum on Law, Culture, and Society.

Excerpt. © Reprinted by permission. All rights reserved.

PAYBACK

the case for revenge

By THANE ROSENBAUM

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2013 Thane Rosenbaum
All rights reserved.
ISBN: 978-0-226-72661-8

Contents

Introduction...............................................................1
1 Running Away from Revenge................................................5
2 Just Deserts.............................................................35
3 The Emotions of Revenge..................................................59
4 The Science of Mad.......................................................83
5 Why We Punish............................................................117
6 Other Cultures and Revenge...............................................153
7 When Self-Help Is Permissible............................................189
8 Release Revenge..........................................................257
Acknowledgments............................................................283
Notes......................................................................285
Index......................................................................303

Excerpt

CHAPTER 1

RUNNING AWAY FROM REVENGE


Let's take a tour through the head-spinning, backpedaling, morally ambiguousalleyways of revenge. Don't be afraid. I know vengeance conjures manymixed feelings and raw emotions. It's more acceptable to confess to havinga kinky taste for porn than to acknowledge harboring feelings of revenge.Vengeance occupies a dark and deeply buried shelf inside the closet of culturaltaboos. Rarely is it discussed openly where reputations can be ruinedand bad opinions formed. We tend to speak about revenge hypothetically,jokingly, as if we're not to be taken seriously:

"What I am about to say is just between you and me."

"Surely you know I would never do such a thing."

"I'm ashamed to even think it. But I wouldn't mind seeing — — receive whatis coming to her."


For Jews around the world who are members of the Conservative denomination,the High Holy Days of 2010 represented yet another death blowfor revenge. After nearly forty years (when it comes to the Old Testament,forty years does seem to possess certain magical, symbolic significance),the prayer book, known as the mahzor, which is used during the Days ofAwe—the period in the Jewish calendar extending from Rosh Hashanah toYom Kippur—was updated with a new edition. Aside from its more user-friendlyappearance there were some significant changes in substance, too.For instance, no longer would God be described as "awesome," since, inmodern times, awesome is the word of choice—for Chosen teenagers aswell as Gentiles—to describe just about anything. God shouldn't have tocompete with pizza or a pair of jeans, and that's why the mahzor now refersto God simply as "awe-inspiring."

As for other modernizing changes, the prayer book is now more genderneutral and even acknowledges the death of a gay partner. What's more,God himself was not spared a makeover. Apparently, a vengeful God no longerfavorably represents the Jewish faith well enough. In the solemn prayer,Avinu Malkeinu, a line that asked God to avenge the killing of Jews, wasdeleted.

Louis D. Levine, a congregant of Temple Israel in White Plains, NewYork, wondered about the wisdom, not to mention historical accuracy, ofthis drastic change in the liturgy. "I am not a warmongering, right-wingnut," he said, "but that line represented a real historical response to the horrorsvisited upon Israel."

But it also made God look unhinged, so it was removed. The God of theJews was almighty and, apparently, unavenging, as well. For several thousandyears, religions, and then governments, issued commandments, edicts,dire warnings, and, ultimately, mixed signals about vengeance. Now ConservativeJews were being asked to edit their own central texts lest they bereminded that the language of revenge had once been very much part of theprayers of the Jewish people.

Vengeance: expunged from ancient texts, ridiculed as a holdover from aprimitive past, and yet longingly stored in the memory bank of humankind.The advance of civilization marches on while the revenge impulse stubbornlyrefuses to civilize and subside, to simply give up its enduring influenceon the human psyche. Vengeance can be curtailed and suppressed,but it can never be truly undone, nor should it. Whether we admit it or not,whether we are permitted to act on it or not, revenge brings order to themoral universe, establishes the proper measurement of our loss, gives voiceto indignity, and serves as a necessary equalizer when victims have beenrendered low.

Despite all the warnings about revenge and the prohibitions against it,everyone practices it on some level, applauds it when properly exercised,and even dreams about it in their sleep. We see it daily in schoolyards, sportsarenas, and halls of Congress; we know that it lurks within the messy detailsof international affairs, domestic relations, business dealings, and, of course,legal battles. Revenge is life's ultimate dirty little secret and guilty pleasure.In so many dramatic and unavoidable ways it has defined our civilization,influenced our politics and culture, informed our literature, and dominatedour private fantasies.

And, yet, there is also a curious schizophrenia about revenge, loopholeswhere vengeance slips through even amid all the proclamations that revengeis wrong and that justice is a far more important human value thangetting even.

A few recent stories of revenge will reveal a culture in conflict with itselfwhen it comes to the proper role that revenge plays in society and in the livesof individuals. They also demonstrate a fundamental confusion about therelationship between vengeance and justice. Everyone makes distinctionsbetween them, with the search for justice widely accepted while the pursuitof vengeance roundly condemned. But are these two concepts so very different?When individuals are in desperate need for justice they qualify theirobsession by categorically denying that they are out for revenge. Yet in avery real and unacknowledged sense they believe that they are entitled toboth; they simply can't say so in polite company. And that's where the distinctionbetween justice and revenge becomes more of a linguistic exercisethan a hard truth. Every effort to mask the human impulse to feel avengedby hiding behind the robes of justice is like a bait and switch among themorally wounded. We know what we mean; we just can't express it openlyand honestly.

Several weeks after 9/11, with plans already underway to bomb Afghanistanin retaliation for the most devastating act of terrorism committedagainst the United States on its own soil, President George W. Bush addresseda large gathering of employees of the Federal Bureau of Investigation(FBI)—the very same body, along with the Central Intelligence Agency(CIA), that had failed to gather the necessary information and take the appropriatemeasures to foil al-Qaeda on 9/11.

In explaining the reasons behind the "shock and awe" that Americawould soon visit on the Taliban in Afghanistan, the president said, "Ours isa nation that does not seek revenge, but we do seek justice."

The audience erupted with applause, and millions of Americans watchedhighlights of the speech on their nightly news broadcasts or read about itin the morning newspapers. An auditorium packed with FBI agents whodespised Osama bin Laden for murdering nearly three thousand Americancitizens in less than two hours cheered the president for the actions ournation was about to assume and the purported reasons for doing so. Surelythe FBI had taken the murderous events of 9/11 personally—almost as personallyas the families of the firemen, office workers, and airline passengersand personnel who lost loved ones on 9/11. After all, the FBI had been madeto look like bumbling bureaucrats who allowed terrorists to learn how tofly commercial jets under their watch. Naturally they would have profoundfeelings of anger and hatred. The auditorium may have been filled with menand women of the law, but those badges and shields weren't going to tempertheir more immediate and impassioned cries for revenge.

Nevertheless, the president was careful to couch our retaliatory responseas an act of justice and not as a demonstration of American vengeance.Applause would naturally follow the words of someone who sought justicerather than revenge, even though the feelings that justice and vengeanceprovoke, in many cases, feel similar. The Taliban were not going to be takento trial. Conventional justice, as reflected in the powers of subpoena and theprocedures of due process, was being subordinated to the more immediatepowers of war. Indiscriminate bombing sure looks a lot more like vengeancethan like the more measured application of the rule of law.

Why all the misdirection and doublespeak? Why not simply say what wason everyone's mind anyway? The president pulled his punches and chose torecast the reasons why America now found itself duty-bound to unleashsuch a lethal spectacle. George W. Bush made a distinction between justiceand revenge as if everyone was in agreement that the former was sociallyacceptable while the latter was morally despicable.

The FBI may have grossly mismanaged its intelligence gathering prior to9/11, but the agents who cheered the president were not stupid. Surely theyknew that what was about to happen in Afghanistan wasn't being done inthe name of justice alone. Constitutional protections weren't on anyone'smind at that time—including the leadership of Human Rights Watch andthe ACLU. Neither the Taliban nor al-Qaeda were going to be given an opportunityto testify in a court of law, to explain why America was Satan andAmericans were infidels who all deserved to die.

Moreover, the massive monetary reward that would soon be placed onthe head of Osama bin Laden through the Rewards for Justice Programwould be claimable by any bounty hunter who could successfully infiltratethe caves of Tora Bora and make certain that bin Laden never made anothertrash-talking video again. This government-sponsored, nonjudicial programof targeted assassinations resembled vengeance more than justice. Itmight as well have been titled Rewards for Revenge.

Justice in Afghanistan would come in the form of lethal bombs, not legaltribunals. And ten years later, the war in Afghanistan, and America'sprogressive withdrawal, still didn't approximate anything that looked likeNuremberg, The Hague, or the International Criminal Court—the familiarfaces of "justice" in the global community. The war in Afghanistan, not unlikeall retaliatory wars, was to be fought as a legitimate expression of justdeserts, a term of art that is oft en synonymous with revenge—but revengethat is fully legalized and morally accepted.

And yet the president addressed an audience that had been conditionedto view revenge—no matter what form it took—as unbecoming of a greatnation. "Shock and awe," for better or worse, sounds like the language ofrevenge, with those declarative vowels that easily collapse into a closed fist.These words don't evoke the tranquil inner sanctum of courtrooms werejudgment is based on reason and deliberation and where punishment isneither random nor immediate. The president was forcing a distinctionbetween justice and revenge that sounded presidential and diplomatic butin the moral universe didn't actually exist. He was speaking in code, feedinghis constituents a familiar line, winking at the nation all the while. Theassembled FBI agents, and the rest of America, for that matter, acted as ifthey were in denial—mindlessly clapping in favor of justice, signaling to theworld that we were most assuredly not a vengeful nation. But in the chaos ofpost-9/11 hysteria, who could really tell the difference anyway?

When Osama bin Laden was finally assassinated by a team of Navy Sealsthat had infiltrated his Pakistani compound on May 1, 2011, many peoplein the United States pumped their fists in the air and even celebrated in thestreets. Were they cheering the delivery of justice, or merely releasing theemotions associated with vengeance? Some criticized the celebrations asundignified, as if America were a nation of brutes with a bin Laden bloodlust.But just because they felt jubilation didn't make them very differentfrom decent, fair-minded citizens who knew that justice was finally beingdone and bin Laden was receiving the payback he richly deserved.

Many, however, were left confused, not exactly sure how to feel. PresidentBush had promised that we would one day have our justice, and whenit finally arrived it would most definitely not be in the form of revenge. Wewould take pride that we had forsaken our vengeful impulses in favor of thejustice worthy of a great nation. Years later, however, a new president, BarackObama, a former professor of constitutional law, was able to announcetriumphantly that justice was, indeed, finally done—bin Laden had beenjudged and punished by a sharpshooting Navy Seal. Apparently a bullet tobin Laden's head was the justice we had all been waiting for. Nonetheless,most people experienced the assassination with all the emotion and exhilarationthat generally accompanies revenge.

Others wondered how President Obama could possibly frame the killingof bin Laden in the language of justice when the terrorist wasn't captured andbrought back to stand trial in the United States. Fifty American commandosovertook the compound, which was fortified only by bin Laden's wives anda teenage son, with little resistance. Surely he could have been abducted andtried in a civil courtroom as a criminal defendant (or as an enemy combatantbefore a military commission). Such a trial, any trial, would have displayedmore of the attributes of justice than did the summary judgment thattook place in Pakistan. And there still would have been cheers aft er a guiltyverdict was announced, and that, too, would have seemed a lot like revenge.

Now a detour from the roving battlefields of counterterrorism to thegridiron of America's favorite sport.

National Football League (NFL) quarterback Brett Favre already had aHall of Fame career with the Green Bay Packers when he retired from footballin 2007, only to change his mind several months later. The problem was,the Packers didn't want him back. They had committed themselves to AaronRogers, Favre's backup, who several years later would lead them to anotherSuper Bowl victory. It was Rogers's team now. Favre went on to sign with theNew York Jets for one year, and then, after that season was over, retired oncemore only to change his mind, yet again. This time, however, rather thansigning with a team from a different conference, Favre returned to the NationalFootball Conference—to the very same division in which the Packersplayed—and joined their most dreaded rival, the Minnesota Vikings. As thenewly installed Viking quarterback, Favre would have to play his old teamat least twice during the 2009 NFL season.

Wearing the purple uniform of the Vikings before his first game againstGreen Bay's green and gold, Favre said the following in response to whetherhe was motivated by revenge: "No. That has nothing to do with it," but hesoon added, "it's human nature to feel, I didn't use the word revenge, but toprove that you still could play. To prove someone wrong, ... So you can callit what you want."

Terry Bradshaw, himself a Hall of Fame quarterback, said on Fox's NFLSunday, "Oh, really Brett? It's not about revenge? I'm sorry but no one believesthat this time around." Another former NFL quarterback, Ron Jaworski,said on ESPN's coverage of the NFL, "Brett Favre is going to approachthis game and he's going to be angry, he's going to be vindictive and hewill come out smoking." And his partner on ESPN, former NFL coach JonGruden, said, "I can only imagine how Brett Favre is (feeling). He's going tobe so excited to compete against the team that let him go. There's going to bea lot of emotions that go into this. Is it revenge? Whatever you want to callit, this is really going to be appealing."

At the end of the game, with the Vikings having won and with Favrehaving delivered one of the finest performances of his career, Jaworski wasasked how he thought Favre was feeling at that moment: "I don't think hewould admit it," he replied, "but I'm sure Brett is feeling that he finally gothis revenge."

All this hemming and hawing and backpedaling from quarterbacks whoare usually more nimble in dropping back to pass, and yet here, with so littleon the line—unlike America's response to 9/11—they were so visibly clumsy,fearful to admit that there are scores to be settled that never show up on ascoreboard. There is pay dirt, which is part of the game, and there is payback,which can be just as important. What did these football TV analysts expect:

When it was time to finally face the team that cast him aside, Favre wouldhave no special feelings about it, no incentive to prove the Packers wrong,that he would treat the game as any other on the Vikings' schedule?

Obviously, it's not just NFLquarterbacks. We are all, seemingly, invested—ifnot culturally programmed—in the self-denial of revenge. It'sdifficult if not impossible to have honest conversations about revenge. Retaliationmust be reserved for more noble and lawful reasons than merevengeance. And so we memorize the disclaimers and rehearse the verbalgymnastics. We want revenge but know not to ask for it. Instead, we demandjustice, which we can safely say without appearing demented. Thedistinction between justice and revenge may actually be artificial, but it isundeniably everywhere.

Clara Schnorr's daughter was murdered outside of Chicago in 1985. Afterthe man who killed her was sent to prison, Ms. Schnorr said, "There is noway that he can be punished enough for taking our Donna away from us.Yet we want justice, not revenge." Another grieving mother shared a similarview. In 2008, Hudson Post, from Nevada, was killed by a drunk driverwho was sentenced to five years in prison but ended up released on housearrest after serving only three months. Post's mother, outraged by the lackof accountability for those who commit vehicular manslaughter, said, "It'sthe system that's the problem. It's not about revenge. It's about justice." In2009, Ellen Harrington's son was murdered in Oakland when he refused tohand over his wallet during an armed robbery. Her son's murderer was sentencedto life imprisonment without parole. Ms. Harrington said, "I don'tbelieve in vengeance.... But I'm glad that no other mother will have to gothrough this."

In these measured words spoken by anguished relatives lies a concessionthat justice is not to be taken privately through self-help—no matter howwounded or aggrieved the victims might be. The rule of law must prevail,and citizens will accept the verdicts that emanate from courts of law. But thevery foundation of justice that is being invoked in these statements sharesthe same qualities of vindication that is found with revenge. In proclaimingthat they seek justice and not revenge, these victims are speaking not to theformalism of legal trials but to the human longing for justified payback, inwhichever way it is delivered, so long that it is delivered. For them, justicemust produce the same levels of emotional satisfaction as revenge. It is forthis reason that, for most people, justice is just revenge by another name.


(Continues...)
Excerpted from PAYBACK by THANE ROSENBAUM. Copyright © 2013 by Thane Rosenbaum. Excerpted by permission of The University of Chicago Press.
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Publisher
University of Chicago Press
Publication date
2013
Language
English
ISBN 10 
0226726614
ISBN 13 
9780226726618
Binding
Hardcover
Number of pages
320