A Reply to Professor Whitley Kaufman’s review of THE CULTURE OF VENGEANCE AND THE FATE OF AMERICAN JUSTICE

by Terry Kenneth Aladjem. New York: Cambridge University Press, 266pp. Cloth $85.00/ £45.00. 9780521886246. Paper $26.99/£16.99. ISBN: 9780521713863.

Author’s Reply: Terry Kenneth Aladjem, Harvard University. Email: aladjem [at] fas.harvard.edu.


(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

Ordinarily it is wise to let reviews stand, to take one’s lumps and hope that one’s work will endure on its merits. But when a reviewer miscasts the argument, says things are missing from the book that are in fact central to its argument, and calls for the inclusion of arguments that are already there, it is important to set the record straight.

Whitley Kaufman, my reviewer for LPBR [Vol. 18 No. 4 (April 2008) pp.272-275], does credit the scope of my book as being “remarkable.’ He correctly identifies the project as one that traces a vengeful turn in the public understanding of American justice to a failure of the liberal tradition to resolve the matter of vengeance or to fully address its implications. I regard the return of the death penalty in the ’70s, debates over the question of what is “cruel and unusual punishment,” elements in the victims’ movement, the War on Drugs, mandatory sentencing, the fascination with crime and forensic detail in shows like COPS and CSI on TV, an oddly punitive Christian right, certain reactions to the attacks of 9/11 and the policies of the Bush administration thereafter, to be evidence of that phenomenon. I argue that the liberal tradition had set the stage for this by supposing that the impulse to vengeance can be set aside or be displaced by reason, or left behind in a state of nature (Locke and many others). I argue that the policies and procedures of law and justice that are built on these foundations cannot address the “rage in grief” (Rosaldo) that so grips our society. I suggest that those impulses have festered where they have been excluded and have reasserted themselves in calls for moral certainty and decisive punishment. On one register this helps to account for the return to religion of many Americans. On another, it explains the dangerous, pseudo-religious demands upon our system of justice and our military to address the problem of “evil.” I argue that these demands are intrinsically authoritarian. They tear at the fabric of our pluralist democracy and threaten to displace it with a vengeful, monolithic sort of justice.

The reviewer seems to accept much of this diagnosis, but he rejects my claim that it has roots in the liberal tradition or that the impulses in question are authoritarian in nature. He rejects these claims without examining them or addressing the evidence that I have marshaled to make the case. There is no mention in his review of the way in [*377] which I link classical mythology on the transformation of vengeance into justice to the liberal tradition, or the faulty attempts in liberal philosophy from Kant to Bentham, and Hegel to Mill (the latter of which I discuss at length in Chapter 1) to purge punitive thinking of that impulse. He brushes aside without addressing my carefully constructed argument that vengeance is an irrational attempt to reverse the effect of an injury on life and time, a self-assertion that is inclined to self-deception, which is in that sense “authoritarian.” Though he is himself a philosopher, he makes no attempt to address my central philosophical claim that this impulse cannot be eradicated from the many liberal attempts to justify the infliction of pain, or to apply pain in the right “measure” as punishment (p.15 and elsewhere).

Because I treat this as a problem that is endemic to liberal theories of punishment, and as a dilemma for democracy, I turn away from the former in the end, and look to the latter for answers. Here again, the reviewer misses my point. He suggests that I should supply a “deeper philosophical framework” with which to address this problem, when it is manifestly clear (in my argument at least) that it is not philosophy but the logic of democratic necessity that will best guide us. Here I have taken a neo-pragmatist turn that seems to elude the reviewer. In observing that there can be no such framework in a pluralist democracy, I feel compelled to return to examine the logic of our founding democratic thought instead. I return to the imperatives of that system in managing vengeance – to the origins of its anti-authoritarianism, to its need for cautious legal procedure and punitive restraint – to fashion a corrective vision. In parsing liberal democracy in this way, and turning to the later, I do not at all suggest that there is “moral agreement” as to what it might be (a view that the reviewer ascribes to me), but that it is a highly contested, “complex” tradition, and that it must be reexamined in that light to address the matter at hand (see my Author’s note xix and Chapter 4).

In the course of this discussion, following Minow, I expressly acknowledge the vengefulness of democracy itself in the initial stages of revolution, and the importance that this has in establishing the “‘self-respect’ of a sovereign people” (p.146). Yet I also notice the imperative for a democracy to move deliberately beyond that vengeance once it is established, to privilege an awareness of its own fallibility, and its interest in truth in the pursuit of democratic justice. Throughout there is a sense that vengeance is with us, but must be contained in the interest of democracy.

It seems odd in light of all this that the reviewer suggests that I do not sufficiently appreciate the claim “accepted among moral philosophers that retributive justice is but a euphemism for the sentiment of revenge.” I respectfully disagree. Not only do I appreciate that claim; but a substantial part of my second chapter is devoted to showing how it animates a great deal of American moral philosophy and thinking about punishment. Having addressed earlier, continental theories of retributivism and utilitarianism in my first chapter to show how they still harbor vengeful sentiment, I suggest that a number of American conservatives and [*378] progressives – from Brubaker to Murphy, Soloman, Tunick and Oseil – have abandoned all pretense to exclude it.

In this vein too, the reviewer accuses my book of failing to provide or appreciate a positive model of vengeance, or “personal vindication, so long as it is measured, proportionate and reflective (Susan Jacoby, Jeffrey Murphy, Peter French).” While I do not engage those three on this point (Jacoby and Murphy are mentioned in other connections) I give ample airtime to retributive and utilitarian claims to be “measured, proportionate and reflective” in ways that still bear the mark of vengeance, and to the related Aristotelian claim that animates Stanley Brubaker’s call for deserved punishment (p.23). While the reviewer suggests that I seem “unaware” of Aristotle’s Golden Mean in seeking proportionate punishment (and insofar as this is a matter of personal virtue), I prefer to entertain Kant’s “needle on a scale of justice” (THE METAPHYSICS OF MORALS, my p.109) in that connection, and to pair it with Kafka’s parody of the machinery of punishment (p.111). Indeed there are so many references to claims for “proportion,” “balance” and “equilibrium” in punishment in the book that I could not fit them in the index. There are also frequent references to honor and “systems of honor” throughout the book, which are marked by restraint and “driven by a dynamic of duty, pride and collective dignity” (p.33).

Most disturbingly in this connection, the reviewer accuses me of failing even to “mention” Dan Kahan or to entertain his argument about the importance of feeling “disgust” at behavior that is worthy of punishment. In fact, two works of Kahan’s are cited in my bibliography, and there are three page references to his name spanning pages 54-92 in my index. I would look foolish indeed if I had failed to address Kahan’s important argument, and “disgust” as he and others would indulge it is the central theme of my second chapter. It is on the basis of this mistaken reading, I might add, that the reviewer suggests that I give an “extreme and one-sided portrayal of revenge,” and a “straw-man version” of it. This, he adds, because in the case of Achilles addressing Hektor (pp.113-114) and at moments for Hamlet reflecting on Claudius (p.143) I point to the tendency toward excess in revenge. The reviewer then offers Hamlet’s “doubts” as evidence that there can be a more equivocal or thoughtful revenge. But is this not, rather, the equivocation of a thoughtful man struggling with those very excessive tendencies in revenge?

Beyond this, I provide numerous examples of vengeful expression with due respect for the thoughts and feeling behind them. In discussing an American idiom in the usage of the word vengeance – in which I perceive nostalgia for a past justice that is at once anachronistic – I offer the words of a father grieving the loss of his murdered daughter (p.68). I suggest that every American can understand their meaning. I open my third chapter with the example of “The Politician’s Wife,” the fictional story of a woman who exacts an extraordinary (and justifiable) revenge upon her husband. My reading of Oedipus in that chapter is hardly insensitive to the plight of the man who is ‘seeking after truth’ in the interest of a certain vengeance, thought I see his [*379] quest as one that is blinded by that very impulse in the end.

I submit, then, that where the reviewer suggests that I fail to give a hearing to a more positive idea of revenge, he has missed the point entirely – I do that throughout the book – it just does not win the day. It is precisely my caution on these matters that has moved Austin Sarat to remark: “THE CULTURE OF VENGEANCE gives vengeance a sympathetic and nuanced treatment. This makes Aladjem’s critique and rejection of it all the more powerful. From start to finish this is a masterful book, rich in insightful analysis, and filled with originality.”(Cambridge University Press website) The reviewer (and Sarat) have perceived correctly that I do ultimately ‘reject’ vengeance (though I do not think that we will ever be free of it), just as I disparage attempts to claim that it can be “measured, proportionate and reflective.” But I certainly do not ignore such arguments as the reviewer maintains.

Presuming again upon alleged absences in my book, the reviewer suggests that I ignore the question: “why has America taken this vindictive turn, unlike other democracies?” But that is the point of my entire second chapter. While the work is not comparative and I do not address the case of Canada or Australia, as the reviewer would like, I argue that a unique confluence of forces distinguishes the American experience. Our “justice of equity” in matters of race and gender has incurred resentment and provokes calls for a “justice of retribution.” A strong secularism arising from our particular constitutional history and emphasis on the separation of church and state has created an imperative within our culture to reassert morality. Religion no longer functions (in this secular context) to address such things as pain, cruelty and death in convincing ways, and there is a need, in Weber’s phrase, for a greater “theodicy of misfortune” (p.35). To meet that need, we have produced a secular notion of evil that casts our enemies abroad as “evil people,” and our villains at home as consciously malicious predators like the sociopath, who are deserving of vengeful punishment.

On the death penalty, which is emblematic of all this, the reviewer grants that I have made a reasonable claim that we, or our democratic state should ‘recognize its fallibility’ in weighing and assessing such punishment (Chapter 4). Yet he brushes aside the numerous instances and Supreme Court cases that I cite to show that it presently does not. He accuses the book of failing to address one ‘classic’ argument for the death penalty that he seems to favor: that a sentence of death is “equally irrevocable” to time in prison. Perhaps I have listened to too may incarcerated persons speak on this matter to find that argument very convincing. In any case, I do carefully treat J.S. Mill’s more challenging claim that prison, or “immuring in a living tomb” is worse than the “short pang of death” at an execution (p.17). I engage it as one instance in which parochial concerns and prejudice cloud the utilitarian calculus and invite vengeful sentiment back in. Despite this careful treatment, the reviewer considers my call for the end of the death penalty to be “surprisingly bland,” like my wish that prosecutors pursue the truth instead of more convictions, and that the accused be heard and understood beyond what is [*380] currently allowed in criminal proceedings – which would transform the criminal justice system. He does not think this has anything to do with the imperatives of democracy, or that returning to them to challenge our present system of criminal justice is very interesting. I suppose he is entitled to that opinion.

Beneath the invective and systematic misreading, the position that the reviewer seems to want to defend, is that vengeance has some fine qualities, that it is really OK if it guides our punitive and foreign policies, that these are not thereby made more authoritarian, that this is not a problem for our democracy or anybody else’s, and that the liberal tradition that produced that democracy has nothing much to do with it. From this vantage point he has dismissed but has not seriously engaged my argument. I can only hope that those who read and think about my book carefully will find that argument to be more persuasive.

For other reader’s remarks see the Cambridge University Press website: https://www.cambridge.org/us/catalogue/catalogue.asp?isbn=9780521713863

© Copyright 2008 by the author, Terry Kenneth Aladjem.