This essay was the main part of my Observer column this week. (The column included also a shorter piece on public attitudes on immigration in the wake of the Brexit referendum.) It was published in the Observer, 28 January, under the headline ‘A desire for vengeance is human but checks the pursuit of proper justice’.
Two court cases last week, on either side of the Atlantic, helped illuminate the tensions in our thinking about justice. The first was the harrowing trial of Larry Nassar, the American doctor who, over decades, had abused dozens of gymnasts, mainly young girls, in his care. In the final week, 156 women gave personal statements, testimonies that were both distressing and inspiring.
In her summing-up, Judge Rosemarie Aquilina observed that ‘our constitution does not allow for cruel and unusual punishment’. If it did, she would have allowed ‘many people to do to him what he did to others’. She then sentenced Nassar for to up to 175 years in prison.
The second trial was that of Darren Osborne, accused of mowing down Muslim worshippers in Finsbury Park, north London, in a van last year. One man was killed, many others seriously injured. Osborne, who denies charges of murder and attempted murder, allegedly tried to flee the scene, but was set upon by the crowd. Mohammed Mahmoud, an imam, intervened. ‘I shouted, “No one touch him”’, he told the jury at Woolwich crown court. Osborne ‘should answer for his crime in a court such as this and not in a court in the street’.
Where Aquilina would have imposed an ‘eye for an eye’ punishment, if she could have, Mahmoud insisted that such retribution had no place in justice. There is no direct comparison between the two cases. They pose different moral questions and create different emotions. Had Aquilina been in Finsbury Park that night, she would probably have protected Osborne too. Nevertheless, expressed in Aquilina’s words and in Mahmoud’s actions are two very different conceptions of the relationship between justice and vengeance. For one, justice requires a measure of vengeance; for the other, the two are incompatible.
More than two millennia ago, the Greek playwright Aeschylus explored these very tensions in his magnificent Oresteia trilogy. Written in the fifth century BCE, it remains one of the most profound studies of the meaning of justice.
Aeschylus’s Oresteia begins where Homer’s Iliad ends. The Iliad tells the story of the Trojan War, in which Greek warriors, led by Agamemnon, avenge the kidnapping of Helen by the Trojan prince Paris. In Oresteia, the war is over and the warriors are returning home. In the opening play of the trilogy, Agamemnon’s wife, Clytemnestra, brutally murders her husband on his homecoming. It is an act of furious revenge for his having sacrificed their daughter, Iphigenia, 10 years previously on the eve of the war to placate the gods.
In The Choephori, the second of the plays, Orestes, son of Agamemnon and Clytemnestra, is faced with a terrible dilemma: murder his mother or leave his father unavenged. He kills Clytemnestra.
In the final play, The Eumenides, Orestes is pursued by the Furies, deities whose role is to exact vengeance for sins such as the shedding of kindred blood. He finds refuge in Athens where, in the Acropolis, the goddess Athena convenes a jury to try Orestes. The jury is split. Athena casts her vote in favour of acquittal.
The Oresteia is an immensely complex work in which Agamemnon, Clytemnestra and Orestes are all faced with impossible choices and make tragic decisions. The human condition, for Aeschylus, is tragic. But humans are able to live with the tragedy of their condition by civilising themselves. And part of the process of civilisation is the recognition of the distinction between vengeance and justice, between the primeval needs of the Furies and the hope planted by Athena.
In Aquilina’s words, we hear an echo of the Furies. In Mahmoud’s actions, we see the spirit of Athena.
One need feel no tinge of sympathy for Nassar, or be blind to the torment of his victims, to worry that Aquilina crossed a line. The desire for retribution is natural. Were I a father to one of the abused girls, I may well have wanted vengeance. But a judge cannot be swayed by the same emotions.
Vengeance as an ethical principle emerges from primitive attempts to impose order in a world in which it is constantly breaking down and can be maintained only through fear and retribution; a world such as that of Homer’s Iliad. As society becomes more civilised, so it sublimates vengeance to justice. That is the moral core of The Oresteia.
Mohammed Mahmoud’s actions are important because they gave form to that distinction. Equally, Judge Rosemarie Aquilina’s words are troubling, not because we don’t have sympathy for Nassar’s victims, but because, in eroding the line between vengeance and justice, they also erode part of what it is to be civilised.
The top image is of masks, now held at London’s V&A museum, from a 1981 production of Oresteia.
Pandaemonium 
“What it is to be civilised” is indeed the core.
Think of Jared Diamond’s Until Yesterday. Legal structures, as he reminds us, are recent in evolutionary terms, and it has been argued that, before they were in place, wrongdoers would have enjoyed an evolutionary advantage unless the rest of us felt an urge to punish (and also to punish those who won’t do their share of the difficult and dangerous task of punishing; hence the venom often heaped on those who advcate leniency).
From a article in the HuffPost that also thinks Aquila crossed a line:
Charles Gardner Geyh, a law professor at Indiana University’s Maurer School of Law whose work centers on judicial conduct and ethics, was sympathetic to Aquilina’s experience, but said he believes her conduct set a poor example.
“The overarching principle, which is embedded in the code of conduct of literally every state, is that a judge shall act at all times in a manner that promotes public confidence in the impartiality, integrity and independence of the judiciary,” he said.
Suggesting that it would be fitting for Nassar to be sexually victimized, if only the law allowed it, was “a step too far,” Geyh went on. “She is the representative of the government here,” he said. “From the law’s perspective, we ought to be saying no sexual assault at all.”
Speaking of Furies, consider the tweets of Emily Lindin:
“Here’s an unpopular opinion: I’m actually not at all concerned about innocent men losing their jobs over false sexual assault/harassment allegations.”
“Sorry. If some innocent men’s reputations have to take a hit in the process of undoing the patriarchy, that is a price I am absolutely willing to pay.”
Aquilina’s comments were a betrayal of law, but she was under massive pressure from the millions-strong lynch mob that always bays for vengeance when harrowing legal cases arise.
Her comment points to a more serious and constant betrayal of justice – the massive prisoner-on-prisoner violence that occurs within prison walls, with the acquiescence (indeed complicity) of both the penal authorities and the general public.
Apparently, crimes aren’t crimes when committed within jails, especially if the victims are unpopular !
Ironically, it is generally those most eager on behalf of Law and Order who are happiest that such crimes occur – even though they are destroying the “Justice” System and our “civilisation.”
Nowadays, those most avid for Justice are those who regard the word as a synonym for Punishment.
The more eagerly a person talks about Justice, the more certain it is that they detest any mention of social justice (let alone the thing itself !).
The wider and truer definition of Justice as Fair Play has been very carefully forgotten in the West, ever since it was taken over by the insidious right-wing revolution that began in the late-1970’s (though now, having hollowed-out the West, is inevitably in terminal difficulties).
vengeance
ˈvɛn(d)ʒ(ə)ns/
noun
punishment inflicted or retribution exacted for an injury or wrong.
revenge
rɪˈvɛn(d)ʒ/
noun
1.
the action of hurting or harming someone in return for an injury or wrong suffered at their hands.
verb
1.
inflict hurt or harm on someone for an injury or wrong done to oneself.
Vengeance is obviously a form of retributive justice otherwise crimes would go unpunished.
Revenge is not usually tolerated as a form of retributive justice since it hasn’t undergone impartial analysis.
In the first case, the judge was advocating revenge. In the second case, the Iman was not. However both cases were advocating vengeance.
Perhaps the underlying distinction between the two cases was a communitarian form of vengeance or retributive justice in which a community self-polices without the functions of a state and a cosmopolitan form of vengeance or retributive justice in which the state polices. Community law which mets vengeance with less mercy and state law which mets vengeance with more mercy.
The key is that justice, vengeance and mercy usually go together with the first case articulating less mercy than the second.
Regarding immigration, I’d tend to agree that the issue has submerged somewhat due to the Brexit result with the knowledge that something will be done about it via a sensible immigration policy.
It is interesting to note that there are plausible economic arguments that an open border policy is detrimental economically in that endless immigration does contribute towards problems of sufficient public service provision and sufficient private sector opportunities especially within a fiscal environment of high budget deficits and cutbacks.
https://www.project-syndicate.org/commentary/immigration-inconvenient-truths-by-robert-skidelsky-2017-11
https://blogs.spectator.co.uk/2017/11/how-much-is-immigration-to-blame-for-the-housing-crisis/?utm_source=Adestra&utm_medium=email&utm_campaign=Lunchtime_Espresso_24112017
This is highlighted by the following. When using the WTO baseline of 4.5 health professionals per 1000 population, 8.3million non-uk born people requires an additional 36,935 health professionals who themselves must be non-uk born in order to meet supply. This also translates into the housing sector and the transport sector. This isn’t xenophobia or racism, it is economics and the availability of governmental revenues to finance increased infrastructural capacity to accommodate immigration which is always beset by lags and catch-ups. Obviously liberals are not that concerned with rational economic analysis but more interested in their irrational beliefs.
However, it seems the European left are now considering a better balance between cosmopolitan values and communitarian values.
https://www.socialeurope.eu/spd-task-ahead-enacting-communitarian-cosmopolitan-values