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Yeah But Still
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OK, great, I think I understand the idea now. And the "revenge insurance" theory has the virtue of being a plausible and psychologically realistic story about why the state's right to punish the guilty should exist. As you note, theories that try to ground this right in general utility or in the guilt of the perpetrator fail on both accounts. The question, then, is this: is it rational for the average person to give up their right to punish in exchange for the assurance that any attacker will be persecuted with all the state's resources? Note that your "revenge insurance" case contains one disanalogy, here: the insurance company does not prohibit you from exacting your own revenge, should you survive. The modern state, on the other hand, does precisely this: as I understand American law, we are only allowed to injure attackers in order to prevent the attacks from taking place. In short, in order to make the analogy work, The Agency will also prohibit you from exacting your own revenge, and will punish you if you try. At this point, it starts to look less and less rational for an ordinary person to agree to all of this, though it is still, as you say, permissible for her to do so. But if the state's right to punish is meant to be rationally grounded in an individual's right to revenge, then it must be rational for an ordinary individual to give up their right. Here, I am concerned that we are interpreting brute force as rationality: powerful states may have seized the right to punish from individuals, and as such, there may be little in the way of a grounding-relation to speak of. However, that does not mean that we can't change things, that we might use your theory to amend the ways in which punishment occurs.
Toggle Commented Jul 16, 2012 on A Few Short Steps to the Gallows at
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Great stuff. A central question here concerns the nature of the story you're telling: are you providing a historical account of how justice arose (i.e. as a kind of revenge insurance?) Or are you grounding the authority of justice in the right to revenge? Or, perhaps, are you suggesting both of these things? Regardless, either way, the problem that jumps out at me is this: if revenge is, as you say, essentially personal, laden with sentiment, contextual, etc., then the transition from Sally's ordinary revenge to government-administered revenge loses that essential feature. Indeed, rather than see the justice system as extending the right to revenge or as somehow grounded in that right, we might think that the right itself has been appropriated in order to augment the power of the modern state. In other words, the modern state has power because it alone is granted the right to punish, and the desire of ordinary people for revenge is re-directed towards support for the state that can guarantee the punishment. But the ordinary person loses something critical in this transaction, she loses the right to inflict the revenge herself in the manner she sees fit. What is initially a particular, personal, sentiment-laden act becomes the passive observation of legal system going through the motions. Finally, as I'm sure you know, your thought echoes Nietzsche: "Let me pose the question once more: to what extent can suffering be a compensation for “debts”? To the extent that making someone suffer provides the highest degree of pleasure, to the extent that the person hurt by the debt, in exchange for the injury as well as for the distress caused by the injury, got an extraordinary offsetting pleasure: creating suffering—a real celebration..." (GM 2.6)
Toggle Commented Jul 16, 2012 on A Few Short Steps to the Gallows at
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Jul 15, 2012