Thinking About Criminal Justice
The term criminal justice refers to state-imposed punishment for violation of its laws. It has a distant connection to lex talionis, the eye for eye framework of grievance-redress endorsed in the Torah. Lex talionis is a code of retaliation, however. Crim
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The discussion so far has touched only indirectly on questions about power. The reason for this is straightforward: to the extent people honor their obligations to one another, power is merely a background consideration. It has to be exercised to coordinate behavior in public life (to make sure drivers stay on the right side of the road, for example). On the other hand, if people are willing to live in accordance with the fair terms of cooperation, the exercise of power to enforce those terms is unnecessary. But of course, power is inescapably important here as well. This is because grievances about injuries are socially corrosive—and because the exercise of power is needed to contain this corrosion. The chain effect of felt grievance is a familiar one. It begins with the pain of being injured. In feeling resentment toward the person who inflicted injury, an injured party may want to strike back at the injurer. That person may also decide to strike back. The party initially injured may strike back again, thus establishing a cycle of retaliation with no clear end point of resolution. This cycle is particularly troubling given the question it raises about justice—i.e., whether an initially injured party acts unjustly in striking © The Author(s) 2019 W. C. Heffernan, Rights and Wrongs, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-030-12782-4_2
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back at his/her injurer. The answer is not necessarily. A claim that the other guy started it relies on a premise about justice, after all—a premise that someone should be held responsible for violating the terms of communal peace. Because it has this character, the injured party can make a minimally plausible case as to payback. Tit-for-tat has it negative as well as its positive side, someone might reasonably point out, so it’s a mistake to say that striking back at an aggressor is always wrong. But self-help tit-for-tat has a deeply destructive potential, and it’s because this is so that the socially corrosive costs of retaliatory payback are so steep. The person initially injured may exaggerate the amount of harm suffered. Alternatively, he/she may distort the circumstances in which the injury occurred. And, in any event, retaliatory payback can inaugurate the kind of socially corrosive cycle just described. Each of these factors is relevant to the claim that communal power—or, to be more precise, communal power that relies on a third-party perspective untainted by the original injury—is essential to the resolution of grievances. Must this power be exercised by the state? Must it be a component of criminal justice? The answer to each question is no. Impartiality is essential to the just resolution of grievances. It’s not essential to justice for state officials to resolve claims about wrongdoing, however. Indeed, only a moment’s thought is needed to establish that grievance-resolution is a routine feature of communal life outside the domain of state power. Parents resolve grievances among siblings. Umpires resolve baseball
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