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, especially if the state failed in its duty to enact an appropriate rebalancing. Machiavelli wrote that while the power to avenge ought properly to be vested in those with the requisite authority, that authority must lead to action: “if an individual is grievously offended either by the public or by a private person, and does not receive due satisfaction, he will, if he lives in a republic, seek to avenge himself, even if it lead to the ruin of that republic.”40 While Francis Bacon deplored revenge, writing in a much-quoted line “Revenge is a kind of wild justice, which the more man’s nature was to it, the more ought law weed it out,”41 he also tempered his harsh judgment of revenge by adding in a less quoted line “The most tolerable sort of revenge is for those wrongs which there is no law to remedy.”42 An influential Elizabethan writer maintained that private revenge was appropriate “when violence is offered, and the Magistrate is absent…. In this case, God puts the sword into the priuate mans hands.”43 These writers supported the view that the state was the appropriate enactor of punishment for a wrong, but if the state failed to act, an individual was justified in taking revenge. Despite the predominant cultural voice that condemned revenge, there existed another countervoice that insisted that the desire for revenge was not per se evil and even tolerated revenge under some circumstances. Such writers arguably attempted to restore the collapsed distinction between just feelings of resentment and barbarous emotions run amok.
Some, in fact, saw the desire for revenge as a noble and worthwhile emotion. Adam Smith, who, unlike Kant and Hegel, promoted the guidance of the emotions as being critical to good judgment,44 found resentment and hatred against someone who has wronged us to be a necessary part of human nature. He, nonetheless, qualified those instances in which the urge for revenge is appropriate: “if we yield to the dictates of revenge, it is with reluctance, from necessity, and in consequence of great and repeated provocations. When resentment is guarded and qualified in this manner, it may be admitted to be even generous and noble.”45 Smith sees anger and resentment, as long as they are legitimately provoked, as part of the underpinnings of a moral community, as safeguards against wrongdoing “to protect the weak, to curb the violent, and to chastise the guilty.”46 Smith’s position on revenge draws its imagery from Senecan revenge tragedies:
His blood [one slain], we think, calls aloud for vengeance. The very ashes of the dead seem to be disturbed at the thought that his injuries are to pass unrevenged. The horrors which are supposed to haunt the bed of the murderer, the ghosts which, superstition imagines, rise from their graves to demand vengeance on those who brought them to an untimely end, all take their origin from this natural sympathy with the imaginary resentment of the slain…. Nature … has in this manner stamped upon the human heart … an immediate and instinctive approbation of the sacred and necessary law of retaliation.47
For Smith, there is something natural in humankind that needs some kind of revenge, something “stamped upon the human heart” that requires a state with laws and procedures that can fulfill the “sacred and necessary law of retaliation.”48
Carlyle, who deplored reformers arguing for humane prisons, declined euphemistic language and openly defended the urge for revenge: “‘Revenge,’ my friends! revenge, and the natural hatred of scoundrels, and the ineradicable tendency to revancher oneself upon them and pay them what they have merited: this is forevermore intrinsically a correct, and even a divine feeling in the mind of every man. Only the excess of it is diabolical; the essence I say is manlike, and even godlike.”49 Similarly, the Victorian jurist James Fitzjames Stephen resisted the move into viewing punishment as for deterrence alone and insisted that the desire for revenge was natural to “healthily constituted minds.”50 A good criminal justice system recognizes this need and should be “an emphatic assertion of the principle that the feeling of hatred and the desire for vengeance … are important elements of human nature which ought … to be satisfied in a regular and legal manner.”51
Even these more nuanced positions, though, finally are exhortative rather than seriously prescriptive: that is, these writers, in their efforts to create a perfect society and ideal justice, speak to the state, not to its citizens, warning those in power to enact justice for the citizens, or else. They do not realistically confront what should occur if the state actually does nothing. They do not envisage a weak, impotent state that cannot judge and punish. They imagine an ideal strong state that has the capacity to be vigilant in exacting punishment. Because they seemingly cannot conceive of a state that cannot or will not act, they naturally do not provide any alternative to violence if the state does so fail.
Perhaps the best portrayal of this ambivalent feeling about revenge and the failure of the state can be seen in Shakespeare’s play, Hamlet, in which he dramatizes the complex nature of revenge and the conflicted, if underground, attitude toward it. Like other playwrights of his time, Shakespeare was obsessed by revenge, his representations evolving from the barbaric excesses of Titus Andronicus (1594) to Prospero’s abandonment of revenge in favor of reconciliation in The Tempest (1623). In Hamlet, his greatest and most complex play, Shakespeare depicts his intellectual prince as hesitant to take revenge yet obsessed with the need
