“The Vengeful Logic of Modern Criminal Restitution”

Source: (2005) Law, Culture and the Humanities 1:359-375.

Restitution, a perpetual presence in the life of the law, dwells on the margins of
our modern legal landscape, and invokes a pre-legal moment in which injured
parties bore the responsibility – or the privilege of themselves remedying the
harms committed against them. This article explores the criminal sanction of
restitution, and particularly restitution’s surprising relationship with revenge.
Rather than regarding bloodlust and the desire to cause suffering in those who
first made us suffer as revenge’s sine qua non , I argue that just as essential to
revenge is a nostalgia for a prehistorical and prelegal time in which being
wronged was an occasion not for recourse to the law, but for action. The article
examines two distinct but related sites of restitutive justice within the
contemporary criminal justice system where this fantasy of agency plays out.
First turning to the victims’ rights movement, observing that the movement has
become ossified in a punitive logic that belies its pretensions toward a victimcentered
paradigm, the article then looks at the kinder, gentler restorative justice
movement, which values rehabilitation and reintegration but is motivated as
well by a vengeful impulse. The place of restitution in these movements emerges
as the instantiation of a doubled fantasy of return to a state of equilibrium: on a
leveled playing field occupied by wrongdoer and wronged, liberated from
law’s domination, a struggle between equals can result in the natural justice of a
wrong repaid. This fantasy is born of nostalgia for an economy of revenge that
exists only as an illusory ideal of agency vis-a`-vis those who wrong us, forever
(or at least for now) kept at arm’s distance by virtue of its institutionalization
within a state that seeks to preserve its monopoly on force. (author’s abstract)