THE NEW REVENGE AND THE OLD RETRIBUTION: INSIGHTS FROM MONTE CRISTO

• Date: 10 December 2003
• Pages: 119-142
• DOI: https://doi.org/10.1016/S1059-4337(03)31005-1
• Published date: 10 December 2003
• Author: Linda Ross Meyer

THE NEW REVENGE AND THE OLD

RETRIBUTION: INSIGHTS FROM

MONTE CRISTO

Linda Ross Meyer

ABSTRACT

What do crime victims want? The answer suggested by Alexandre Dumas’

iconic character Edmund Dant´es in The Count of Monte Cristo suggests

that victims may want retribution, not revenge. Victims may seek more than

restored honor or personalrestitution. They may long for justice to prevail as

an affirmation that the world still makes sense. Yet, Dumas also reminds us

through the novel that human justice is only human and cannot provide this

kind of cosmic guarantee. From this perspective, it is revenge, not retribution

that looks more measured and more humane.

INTRODUCTION

For many years, the philosophy of punishment, though oscillating between

utilitarian theory and retributive theory, has declared one principle self-evident:

punishment is not revenge. The utilitarian account has it that one of the central

purposes of public punishment is to provide an alternativeto the evils of blood feud

and vigilantism.1The retributivist argues that retributionis antithetical to revenge,

for punishment is about righting the wrong in the offender,without hatred or anger,

and victims do not have standing to punish.2As Austin Sarat put it, “[i]n their

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 31, 119–142

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ISSN: 1059-4337/doi:10.1016/S1059-4337(03)31005-1

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120 LINDA ROSS MEYER

unceasing efforts to overcome id with superego and to construct a legitimating

ideology,modern legal orders seek to substitute the calm calculation of deterrence,

the empathetic understanding of rehabilitation, and the stern, but controlled,

discipline of retribution for the emotionalism of revenge” (Sarat, 2002, p. 307).

Yet, recent scholarship has, from many angles, begun to legitimate the

would-have-been-heresy that punishment should be victim-centered, not

offender-centered; that it should acknowledge and even perhaps dignify emotions

of righteous anger and even hatred; that it should recognize the right of victims to

have a say in the accusation and sentencing of those who have wronged them. In

the philosophical literature, Jean Hampton and Jeffrie Murphy first suggested that

anger and hate could be righteous, and that retributivism should be reformulated

to recognize that the wrong to be righted was not a defect in the soul or character

of the offender, but the “affront to a victim’s value or dignity” (Hampton, 1992,

p. 1666; Hampton & Murphy, 1988). Robert Solomon rehabilitates vengeance

as “a socially constructed emotion that can be cultivated to contain not only

its own limits but a full appreciation of the general good and the law as well”

(Solomon, 1999, p. 144).

In legal academic circles, George Fletcher suggests that the purpose of the

criminal trial “is neither to change society nor to rectify a metaphysical imbalance

in the moral order,”but to “stand by the victim” (Fletcher, 1996, p. 256), and he of-

fers up procedural reforms to allow victims standing in the criminal process. Alon

Harel and Gideon Parchamovsky argue that the purpose of criminal punishment

should be fairly providing protection against crime to victims, not calculating the

wrongfulness or culpability of the offender (Harel & Parchamovsky, 1999).

Offices of Victim’s Rights have become a commonplace feature of the law

enforcement institution; victims are allowed to participate in sentencing offenders

through victim impact statements, victims are allowed to watch executions3

and victims are consulted with regard to plea bargains (Dubber, 1999). A

“victim’s rights” amendment to the Constitution was proposed (Cassell, 1999).

Victim-prosecuted claims for civil penalties and punitive damages have gained

new support (Galanter & Luban, 1993).

The law and economics and game theory literature has been most explicit

in arguing that revenge is a necessary part of maintaining norms,4and the

reinterpretation of criminal wrongs as wrongs to the victim (rather than as wrongs

against the community) has led many to question the punishment of vigilantes

(Ayyildiz, 1995; Hine, 1998).

“Therapeutic” jurisprudence writings have argued that punishment should

be, at least in part, a way for victims to achieve closure and peace (Bandes,

2000; Coates et al., 2000). This notion has had especially broad resonance in the