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Coming clean on getting even: Murphy on hatred and criminal justice.

I Introduction

"I was born a natural hater" writes Jeffrie Murphy in the final pages of Forgiveness and Mercy (1988). (1) That is only the most unadorned of the many confessional statements in Murphy's body of written work on the topics of retribution, vengeance, forgiveness, mercy, and hatred--topics which Murphy has fortunately returned to the limelight of philosophical exploration. In addition to the analytically incisive and plainly erudite aspects of Murphy's philosophical work on these topics, there is also something of a cathartic quality in them. From Forgiveness and Mercy, through several of his essays and Getting Even (2003), right to his 2006 presidential address at the American Philosophical Association, one has the sense that this body of work expresses a desire for self-purification. This self-reflective attribute was made famous by Augustine, and it is found in certain thoughtful writers throughout philosophical history. As the good cop member in an interrogation team might say, it expresses a desire to "come clean."

What is it that Murphy wants to come clean on? (2) At the simplest level, as he suggests above, he sometimes feels passions like hatred and vindictiveness intensely and, more particularly, he knows what the passions to get even, to settle a score, to give a wrongdoer "what is coming to him" feel like because he sometimes has them. I am the kind of person who really desires revenge seems to be the secret he wants to let out. But it appears to be more than that, because accompanying these personal desires there seems to be a philosophical conviction as well.

In this essay I entertain the conjecture that what Murphy wants to come clean on is the belief that perhaps these passions of hatred, vindictiveness, and resentment toward wrongdoers are genuinely justice-seeking passions. Perhaps these are not just feelings to be embarrassed about having and then to get over. On the contrary, what liberal thinkers usually dismiss as regrettable barbaric sentiments are not in fact those at all. Perhaps such passions even offer a glimpse of the moral truth: wrongdoers really should be getting the response that the vengeful victim in some sense wants to inflict. Perhaps the redneck's belief that his vengeful passions are passions to see that justice is done really are passions to see that justice is done (Murphy discusses the idea of "redneck revenge" in Getting Even). Worse yet, Murphy seems to harbor the suspicion that perhaps a legal system that in some sense acts upon these vengeful passions is a legal system that does justice. In the 1960s and '70s world of liberal moral and legal thought, the idea that state-enforced enactment of vengeful passion could be both understandable and legitimate--maybe even commendable or in some sense right--was almost unspeakable. Perhaps the suspicion that such an idea is partly true is the dark secret that Murphy has gradually tried to come clean on over the past thirty years. Of course, it is not a personal coming clean to which he seems to be aspiring--it is coming clean on behalf of those who engage in the enterprise of trying to explain and justify what our vocabulary and institutions of punishment and responsibility are all about.

As we all know, there is often something at least partially illusory about the prospect of coming clean (as there is with getting even). The desirability of "having come clean" is frequently greater before than after the act. The criminal suspect, encouraged by the good cop to "come clean"--to confess it all--has a temporary feeling of relief, perhaps, but in the long term he may come to believe that it was not worth it. Coming clean in an interpersonal relationship is not necessarily all that it is cracked up to be, either. Of equal concern, one does not need to be an obsessive compulsive to feel the unattainability of true "cleanliness," an observation that of course runs very deep in both Christianity and Judaism. So the desire to come clean is magnetic but full of peril and, perhaps, persistently out of reach. On the other hand, coming clean is typically a noble aspiration. It frequently involves a recognition that the time for half-truths and dissembling is over. And it often achieves a measure of success, even if not the "clean-as-a-whistle" variety that we idealize.

The quest to understand the role of anger and responsive aggression in our normative life and our institutions marks Murphy not only as a Strawsonian but also as a powerful thinker in a Nietzschean vein, despite the 179-degree difference in their respective resting places on both resentment and Christianity. If Nietzsche called into question not only the self-abnegation of a too-forgiving Christian Ethic but also the displacement of anger in a too-metaphysical Kantian Ethic, Murphy's body of work offers a philosophical answer shorn of such denial and displacement, but free of Nietzsche's strange brew of nastiness, narcissism, and sociopathy. There is plenty of room in Murphy's conception of the virtuous person for the idea that forgivingness is a virtue and, conversely, that vindictiveness is a vice, but there is also a recognition that forgivingness can cross over into a lack of self-respect, and that anger and even hatred of another will sometimes display strength and healthy self-respect, not the vicious aspect of vindictiveness. On a legal level, too, Murphy has made room for the idea that punishment as the infliction of suffering on one who deserves suffering is sometimes legitimate. He has done this without denying that the exercise of the virtue of mercy is sometimes commendable, and without accepting the complete transformation of angry action toward the wrongdoer into the metaphysics of retribution.

And so we should be very glad for Murphy's passion to come clean on getting even. On the other hand, Murphy finds it hard to come clean. He has described himself as a "reluctant retributivist," and his ambivalence is evident at numerous junctures. Despite my identification with Murphy's ambivalence about getting even--or perhaps because of that identification--I will focus my remarks on what I regard as two important equivocations or uncertainties in Murphy's work on hatred, vindictiveness, and retribution. The first concerns a metaethical question about which he is unsure, and my comments here are more exploratory than critical. The second is more specifically legal and jurisprudential, and I am more critical. The criticism, however, is a friendly one: I think Murphy has given up too quickly on the project of making good on getting even.

II Murphy on Resentment, Hatred, and Fittingness

Murphy's wit displayed in his statement, "born a natural hater," is also found in two of his chapter titles: "Hatred: a qualified defense" (3) and "Two Cheers for Vindictiveness." (4) I shall argue, however, that the clever and amusing qualities of these chapter titles detract attention from three clues they offer to Murphy's thought. First, each contains--or even is--a hedge: each is not quite half-hearted but not quite whole-hearted either. The reluctant retributivist is clearly there already. Second, and more importantly, each names an emotion, not a policy, principle, way of acting, virtue, or vice. Third, and relatedly, each title effectively conveys something equivalent to "in praise of," thus accurately depicting the content of what follows in the respective chapter: Murphy's explanation of why it may be a good thing for someone to feel hatred or vindictiveness toward a person who has wronged her.

In Getting Even, for example, Murphy offers three "values defended by resentment and threatened by hasty and uncritical forgiveness": (1) self-respect, (2) self-defense, and (3) respect for the moral order. (5) As to the first point, Murphy writes that "resentment stand[s] as emotional testimony that we care about ourselves and our rights." (6) As to self-defense, says Murphy, "[t]hose who have vindictive dispositions toward those who wrong them give potential wrongdoers an incentive not to wrong them." And finally, resentment "stands as testimony to the allegiance to the moral order itself. We have a duty to support--both intellectually and emotionally--the moral order, an order represented by clear understandings of what constitutes unacceptable treatment of one human being by another." (7)

Here is my first concern about Murphy's argument: I am not sure that I know what he is claiming. The idea of writing a chapter in praise of an emotion is something philosophers fifty years ago might have scoffed at. However, I, like Murphy, Hume, Kant, and Aristotle, reject this narrow-minded methodology. Indeed, yet another great contribution Murphy has made to contemporary moral philosophy is his taking emotions seriously. And yet this acknowledgement does not answer my question. Praising an emotion could be many different things, and we need to know which one it is in order to assess his overall argument.

With regard to self-respect--which I think is Murphy's most fundamental point--his discussion in Forgiveness and Mercy is helpful. He writes, "In my view, resentment (in its range from righteous anger to righteous hatred) functions primarily in defense, not of all moral values and norms, but rather of certain values of the self.... I am, in short, suggesting that the primary value defended by the passion of resentment is self-respect, that proper self-respect is essentially tied to the passion of resentment, and that a person who does not resent moral injuries done to him [such as being assaulted or having been unfairly taken advantage of] is almost necessarily a person lacking in self-respect." (8)

The most obvious interpretation of these statements is that they caution against moral philosophical criticism of resentment as a response to being wronged, and they indicate a more balanced and accommodating approach toward our moral lives than a certain kind of detached utilitarian or a conventional Christian thinker might have. A second, and closely related point, is that they comprise a ground for at least a cautious attitude toward the benefits of forgiveness. But does Murphy say more? Do his statements suggest that we ought to get" out there and resent, hate, or feel resentful and vindictive? Does he say that the hater displays a virtue by hating or resenting? Does he say the non-hater displays a vice? The short answer is that his argument suggests that the non-hater probably has a moral shortcoming (of insufficient self-respect) or lacks a moral virtue (self-respect, self-love), unless appropriate conditions for forgiveness have been met. But I am troubled that this seems merely evidentiary.

Perhaps it is simpleminded to ask Murphy for a normative "take-home" (lesson) from his philosophical analysis of resentment. After all, moral philosophy that does not have direct implications about which actions ought to be performed under which circumstances is not for that reason unclear, shallow, half-hearted, or equivocal. We do not want philosophical understanding only so that we can set out a list of what to do or what to feel, as in a rule book or code of behavior. Nor do we want a list of which reactions ought to count as displays of virtue or vice. Moral philosophy is a larger enterprise than this for both philosophical and practical reasons. It is larger for philosophical reasons because understanding the human experience--and understanding our emotional experience of the world from a moral point of view--is a thing of value, indeed a central thing of value in moral philosophy. It is larger for practical reasons because there is a world of moral education, blaming practices, and legal practices that is influenced in myriad ways--many of which Murphy explores--by our philosophical verdict on the appropriateness of resentment as a response to having been wronged, and the strength and nature of the injunction that one ought to forgive. In all these respects, it is possible that I have overstated the demand for more philosophical exactitude on what he means to claim about the value of resentment and vindictive passions.

In another regard, however, I think I have been insufficiently insistent about the need for greater clarity about the intended philosophical force of his analysis of emotional responses to having been wronged. For there is a lurking worry here that Murphy means to say something very strong, philosophically, but is simply being cagey. There is a worry that Murphy means to say that resentment or hatred is .fitting. There is some evidence for this view in both Getting Even and Forgiveness and Mercy. In exploring the objection that vindictiveness is irrational, Murphy comments that "one normally argues for the irrationality of an emotion by attempting to show that it is notfitting to its object, is harmful to the person who experiences the emotion, is inherently self-defeating, necessarily leads to pathological and dangerous excess (also an argument for its immorality), or is pointless--lacking in any useful purpose." (9) In his reply (which separately analyzes each of these disjuncts), he rejects the "unfittingness" argument, remarking that "lilt certainly seems fitting that one strikes back when one has been injured" and that a person who feels vindictive toward his injurer seems quite unlike a "neurotic who does indeed have an emotion that is not fitting to its object." (10) In one of the most important discussions in Forgiveness and Mercy, Murphy describes the anger and hatred felt by the victims of brutal rapes in Phoenix, characterizing their reactions as "natural, fitting and proper." (11) Any serious attack on the justifiability of hatred, argues Murphy, must address this sort of case. These passages can be read as endorsements of the thesis that there is a fittingness relationship between certain actions that have been visited upon a person and certain emotional responses to such actions.

However, a closer look at both of these passages leaves me unsure that it would be correct to attribute even a rudimentary affirmative theory of fittingness to Murphy. First, when a philosopher of Murphy's quality uses the word "seems" rather than "is" that is a red flag. When he italicizes it and follows up in the same paragraph with another "seems," there is even further reason to refrain from attributing to him the belief that would normally go with the verb "is." Two further contextual features should be added. First, Murphy mentions that this may be an evolutionarily encoded response (and he does not mean to advance an is/ought argument, fallacious or otherwise). Second, he clearly is trying to undermine an argument that the emotional response of vindictiveness should be regarded as "unfitting." In other words, he seems to be imagining an adversary who is responsible for cranking up the moral/metaphysical apparatus of fittingness, and then commenting how implausible it seems that vindictiveness in this case would fail to qualify as fitting, given such an apparatus. This is different from saying that vindictiveness is fitting.

The passage quoted above from Forgiveness and Mercy, wherein Murphy uses the phrase "natural, fitting and proper," is in some respects similar. Murphy's statement about fittingness is made in a context in which he is pointing out how insensitive or presumptuous it would be to criticize these rape victims for having an angry and hateful response. And so perhaps Murphy is saying that the critic who would judge the "unfittingness" or "impropriety" of these women would be making a wholly untenable criticism, for once the framework of fittingness is used, their reaction clearly falls on the "fitting" and not the "unfitting side" of the line.

Yet there is no way to read both these books without being struck that Murphy really is thinking that resentment and anger sometimes are the right responses when one has been wronged--"right" in the sense of proper or fitting. Indeed, part of what is powerful in his account of forgiveness is that forgiveness is about why and when one ought to overcome responses that are, in the first instance, proper and fitting to what has been done. Murphy's embrace of the view that vindictive passions are fitting as a first response to having been wronged can fairly be said to be built into his account of forgiveness.

Rather than troubling ourselves over what Murphy means to say, let us ask what Murphy needs to say. Given his overall project on resentment, forgiveness, and retribution, is it sufficient for Murphy to deal with fittingness in the doubly negative sense that, once one is talking about fitting and unfitting responses at all, resentment of having been wronged is typically on the fitting side of the line? Or does Murphy need to develop an account of the fittingness of a hateful or vindictive response that is in some ways more extensive--epistemologically, metaphysically, or morally--than that which he provides?

This is too large a question for me to answer adequately here, particularly given that I want to examine other points. However, to offer a brief response, my initial belief is that--against a backdrop of both a moral tradition and at least one dominant religious tradition (Christianity) that is highly critical of the hatred of wrongdoers--a moral account is needed. This moral account rests, in part, on claims of the normative appropriateness of certain kinds of responses, and thus, in this sense, relies on notions of fittingness or appropriateness. It is possible to make such appropriateness or fittingness claims--without a theory of the foundations of moral knowledge--with respect to moral claims that are safely considered unproblematic within the shared domain of moral discourse of one's society or intellectual culture. To put it more simply, a reflective equilibrium or similarly modest moral epistemology is most plausible with regard to statements such as "slavery is unjust." But this is plainly not the situation of the apologist for retributive hatred, who claims such hatred is fitting when directed at certain wrongdoers. Murphy therefore seems to confront epistemic questions about how we can know about such qualities, what it means to say of a response that is fitting or appropriate, and what such qualities consist in. On the other hand, perhaps Murphy does not need a separate epistemological, semantic, or moral/metaphysical account of fittingness, though he may need a better account of why he does not need this. A great advantage of recent work on the susceptibility of emotion to rational evaluation--particularly when combined with virtue ethics--is that it holds out the promise of a rich moral epistemology that is part and parcel of substantive moral philosophy. I take it that this is the point of John McDowell's important work on virtues as capacities for moral knowledge, and his reading of Aristotle along those lines. (12) If this route is supportable--and I am not about to explore it now--then I think there is a real possibility that the sort of work Murphy and Hampton set out to do in their great book may simultaneously constitute moral philosophy and metaethics for the relevant topics. However, we would still need an argument for why this is so.

III Retributivism in the Theory of Punishment

The introduction to Getting Even is called "Responding to Evil." In it, Murphy writes: "I plan in this book to ... present a philosophical overview in terms of which discussion of the question 'How ought one to respond to evil?' might profitably be structured." (13) He adds that the issues of responding to evil will be discussed not only with regard to personal morality but also with regard to criminal punishment. Furthermore, in his chapter on "Vindictiveness and the Law," Murphy rightly criticizes as unseemly an attitude among educated, sheltered, and privileged persons that vindictiveness is an attribute "found mainly among those regarded as uneducated rednecks and other assorted trailer trash." (14) Recall that he believes that a man or woman who has been victimized will typically feel that the wrongdoer should be subjected to the infliction of negative consequences--in other words, that the wrongdoer should be punished, and that this feeling is fitting, appropriate, and a sign of self-respect. Indeed, Murphy praises the victims' rights movement as latching onto something of fundamental importance. Finally, Murphy has long been drawn to a Kantian approach to moral philosophy in general, a contractarian approach to political philosophy, and a retributive theory of punishment, yet he has concluded that a fairness/reciprocity remake of retributivism along Rawlsian lines will not work. Indeed, Murphy seems to have reached that conclusion in the mid-1980s, when he was presumably beginning to work on retributive hatred, forgiveness, and mercy.

At a distance, it would seem obvious how all this adds up. Murphy is offering a form of retributivism that sees the criminal law as fundamentally a set of institutional structures through which the state actualizes the appropriate desire that the wrongdoer be subjected to negative treatment in response to his having done wrong. A punishment is deserved, according to this view, because the state's act of punishing the wrongdoer is a fitting response to what the wrongdoer did. For contractarian reasons somewhat crudely expressed first by Locke, the state does not permit victims to exact revenge directly. The state protects individuals from the vindictive impulses of others by declining to recognize a privilege of individual aggression in response to wrongdoing; self-defense is the limit of a privilege of private violence. Our legal system channels the retributive impulse in two directions: toward a victim, who is empowered with an individual tort action for redress of a private wrong; and toward a state prosecutor who is surrounded by procedural, constitutional, and judicial checks, but nevertheless is empowered to have punishment imposed upon the wrongdoer. Writing a book on Getting Even, displaying the fittingness of retributive impulses, embracing social contract theory, parading his solidarity with the public sentiment that the state should be empowered to exact revenge from wrongdoers--all this seems to telegraph Murphy as a contractarian retributivist interested in utilizing the value of self-respect in a foundational role.

And yet, as Murphy's readers are well aware, this is not at all where Murphy arrives: not in Forgiveness and Mercy, not in Getting Even, and not in his presidential address. On the contrary, Murphy ends up treating victim satisfaction as very much a secondary benefit of criminal punishment, far from any sort of core. Indeed, though Murphy remains attached to some form of retributivism as a theory of punishment and as a theory of desert, these theories have very little to do with the theme of getting even and the legitimacy of vindictiveness. In his account of the publicly available justifications of punishment, he remains a retributivist in two respects. First, he insists that both the practice of punishment and the theory of punishment must take seriously the personhood and dignity of the object of punishment. The reason that the object of punishment must be guilty is that the concept of punishment as deserved is dependent on the idea that the criminal is being punished for an act that he chose and was responsible for as an agent. Second, the punishment must be deserved in the sense that it is commensurate with the degree of badness of the actor that was expressed by the act. (15)

But Murphy plainly regards the concept of desert as unconnected with the fittingness of a desire for revenge. This is clear in his discussion of the notorious moral luck problem of why our legal system punishes the perpetrator of completed homicide more severely than the perpetrator of an unsuccessful homicide attempt. "I suspect that the answer may lie in vengeance or revenge--the idea that when harm occurs it is necessary to pay back, to get even, for what was done quite independently of consideration of desert or social utility." (16)

What happened to Murphy's once full-blooded theory of retributivism? Many things, no doubt, including the effects of his important philosophical conversation with Jean Hampton, the draw of Christianity, and his increasing attraction to the virtue of forgivingness. One possibility is that I have now simply disproved my own hypothesis about the aim of Murphy's quest to come clean in the first place. Perhaps. But my point is not philosophical biography--such a task is not a role for which I am qualified. Rather, I have set up this question about the decline of Murphy's retributivism for three interrelated philosophical reasons.

First, whatever direction Murphy ultimately chooses to go, whether inadvertently or intentionally, his body of work on the retributive impulses, the legitimacy of the passion to get even, and the disarray in the theory of punishment obviously creates an aching question: is there a plausible retributive theory of punishment to be crafted along these lines? Jean Hampton's work is, in some ways, an effort to answer that question. I myself have begun to explore a social-contract based approach, focusing less on the retributive passions than on a self-respecting individual's capacity to blame one who has wronged him and to desire to have the wrongdoer held to account. The state is able, through punishment, to carry out this blaming and holding to account. Justice, according to this view, is not a form of getting even. It is what the state offers in place of getting even.

Like Murphy, I am attracted to retributivism in part because I think it has the capacity to lead to greater humanity, not less. In particular, I think it is a common mistake to view those who treat victim harm as a ground for extra blame and therefore extra punishment as inclined toward harshness in punishment. For the converse point is that inchoate crimes or victimless crimes--like possession of narcotics with intent to distribute--cannot possibly support the enormous punishments that our system now imposes.

In addition, there is a somewhat sharper and narrower philosophical point. Murphy admits to becoming a weak retributivist rather than a strong retributivist. He no longer holds the strong retributivist belief that it is mandatory (from the point of view of justice) that if someone has committed a criminal wrongdoing (without justification or excuse), he be punished for having committed this wrongdoing. Rather, according to the weak retributivist view adopted by Murphy, it is permissible that a person be punished only if he has committed a criminal wrongdoing. The shift was precipitated by recognition of the value of mercy by the state or forgiveness by the victim, which might warrant mitigation or elimination of a punishment notwithstanding the commission of a criminal wrongdoing.

It seems to me that the acceptance of mercy or forgiveness does not require the weakened retributivism that Murphy has claimed. One could believe that wrongdoers must be punished, absent grounds for mercy or forgiveness. One could even adopt Murphy's view that the state has the power to punish for retributive reasons that go beyond the "legal guilt" reasons that Murphy has contemplated, but that this power should not always be exercised. If one believes that the power to punish exists because the crime was a serious one that befitted a serious punishment, it does not follow that punishment is necessary. Yet this would be far stronger belief than merely believing that punishment is permissible. And it might well be a form of retributivism that treats the imposition of appropriate punishments because they are appropriate to what has been done by the criminal as the most important rationale of the system of punishment. It hardly follows that there cannot be grounds of mercy counseling the non-imposition of the punishment.

IV Conclusion

If victims of wrongs appropriately experience a feeling of vindictiveness--if this is something a person with self-respect should feel--does that have implications for how a legal system should be set up? Murphy writes eloquently about the capacity of hatred and vindictiveness to consume those who feel it. Does this not suggest that our systems--either tort or crime or both--should be better designed to afford outlets or actions to redress grievance? It is fine to talk about victim impact statements for homicides, but the larger questions concern whether citizens who are wronged--either civilly or criminally--will realistically have access to any means of redressing these wrongs; whether they will harbor grievances; and whether social conflict and violence will likely result. As Murphy's social commentary would suggest, the victims' rights movement tends to engender contempt and judgment among privileged and educated persons, including many moral and legal thinkers. But the issues raised by the movement are only the tip of an iceberg of a much larger set of questions: not simply how we are to deter misconduct, how we are to compensate injuries, and how we are to settle disputes, but also how we are to redress grievance and anger in a liberal democracy in which private force is disallowed? On this issue, I will come clean: I do not know the answer. It is an enormous accomplishment of Murphy's work to show that these remain pressing practical, political, and philosophical problems.

NOTES

(1) Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge, UK: Cambridge University Press, 1988), 184.

(2) I do not know or purport to know this answer as a personal matter; my acquaintance with Murphy is almost entirely as a reader and admirer of his work, and my psychological-sounding question is of course only a rhetorical device for these comments.

(3) Murphy and Hampton, Forgiveness and Mercy, 88.

(4) Jeffrie G. Murphy, Getting Even: Forgiveness and Its Limits (New York: Oxford University Press, 2003), 17.

(5) Id., 19.

(6) Id.

(7) Id., 20.

(8) Id., 16 (emphasis in original).

(9) Id., 22 (emphasis added).

(10) Id., 22-23 (emphasis in original).

(11) Murphy and Hampton, Forgiveness and Mercy, 92.

(12) John McDowell, "Virtue and Reason," Monist 62, no. 3 (1979): 331-50.

(13) Murphy, Getting Even, 5.

(14) Id., 31.

(15) In a chapter on "Christianity and Criminal Punishment," Murphy casts doubt on the appropriateness of the "personal badness" sense of desert, and, interestingly, displays sympathy with a conception of desert favored by Hampton and others. The chapter largely appears to embrace the spiritual education and social benefit rationales.

(16) Murphy, Getting Even, 30 (emphasis added).

Benjamin C. Zipursky holds the James H. Quinn '49 Chair in Legal Ethics at Fordham University School of Law.

[c] Benjamin C. Zipursky
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Title Annotation:SYMPOSIUM; Jeffrie Murphy
Author:Zipursky, Benjamin C.
Publication:Criminal Justice Ethics
Article Type:Brief article
Geographic Code:1USA
Date:Jun 22, 2008
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