Sunday, January 29, 2006

Victim's rights and Aristotle's catharsis

I would like to suggest that the victim's rights movement is playing with fire. Dubber notes in "The Victim in American Penal Law", 3 Buff Crim L Rev 3, that the victim's rights theory of punishment depends on the identification of the community with the particular victim. The victim becomes an icon; empathy then generates a "phenomenology of reflex punishment." Suffering is re-experienced by everyone through narrative, and the victim is entitled through her pain and confusion to demand punishment through the power of the community. The perpetrator is thus excluded from the community, and the community "purges itself of deviant elements and thereby heals itself as it salves the victim's pain."

There are a couple of easily spotted problems. First, this would not obviously give any recourse to victims who are not sympathetic to the community. In a homogeneous society, outsiders that make the community uncomfortable are placed outside the law, and those that the community likes are made into, and protected as, mascots. Not a good choice. What if the perpetrator is in fact closer to the heart of the community than the victim?

Another problem is the psychology of the model. It is closely modeled on Aristotle's theory of catharsis, in which recognizable elements of our lives are exploded in incomprehensible ways that create a sense of astonishment, and a sense of the depth of life. The most powerful example is the ceremony of the death penalty, with its humdrum emphasis on ordinary elements (food, clothing, walking, body position--all elevated by the knowledge of context), and culminating in an act of great destruction. In the victim's rights model, the community asks the question, "how could this have happened to someone just like me?" and answers it with a ritual sentence that channels the victim's vengeance into the communitizing apparatus of the state.

What's so wrong with this? Well, there's a distinction in theology often drawn between two different types of authority, exousia and onomati, and I think this should be useful in political theory as well. Onomati is power derived from a name or an office, from robes or a staff or title. Exousia is power that comes from the very essense of the actor, power that is wielded by definition, or because of internal coherence.

In the construction of a tragedy or other vehicle for catharsis, the author wields exousia. He forms the characters, acting as a God, and the characters' ends are imposed on them by the logic of the situation, and their internal essences.

In executing a sentence, the state acts with onomati. Each actor--prosecutor, bailiff, judge--has a title and a role that is created or conferred, and the state cannot look into the heart of the perpetrator, or understand the forces that have brought everyone to this pass. It is not the author of those forces; the community is not the creator of human nature or itself. Communities are bound to be humble in their application of violence. Punishment is not a show to generate a feeling of ekstasis in an audience. The victim's rights model of penology is more like schadenfreude.

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