March 18, 2005
I am going to gingerly attempt to be one of about three people to not simply condemn Eugene Volokh’s now-infamous “bloodlust” post.
You could defend Volokh a bit simply by confessing to an emotional connection to his post, by saying that it’s perfectly understandable that one should feel a brief moment of sympathy with the brutality of the Iranian victims towards their victimizer. But Volokh is very clear that he’s not just giving vent to an embarrassing impulse: he appears to be utterly serious about admiring the model of jurisprudence this case. So it would be condescending to just pat him on the head and say, “There, there, we’ve all felt that way from time to time.”
You could instead suggest that maybe Volokh is giving voice to a form of popular sentiment, to an everyday vision of of justice, criminality and punishment that burbles underneath our other ideas about jurisprudence. A decent proportion of American popular culture, for example, contains or endorses similarly retributive ideas about ultimate justice. I remember watching the first Robocop in a movie theater in Baltimore, and much of the audience simply ignored Paul Verhoeven’s ironic tone to cheer on the ultraviolent punishment dealt to criminals in the climax.
Retributive justice doesn’t just crop up in popular culture as a straightforwardly right-wing idea, either. There are plenty of both light and serious entertainments that feature protagonists who struggle with or are conflicted by the appeal of a retributive solution to criminality and evil. There are plenty of thoughtful writers and artists who pause to dwell on the desire for retributive justice without self-righteously condemning that desire as barbaric or shameful.
Certainly I have known many people on the left who have at times ambivalently accepted, justified, or at least looked away from the exercise of retributive justice in popular struggles: necklacing in apartheid South Africa, for example. Like some of Volokh’s critics, I wonder if Volokh understands fully that his endorsement of this particular case would make it difficult for him to condemn similar exercises of popular justice in other contexts, but that could be said also about anyone who has at any time accepted the possibility that justice can be achieved outside of strict forms of constitutional due process and the forbidding of cruel and unusual punishment.
I’m guessing that we all in some fashion situationally or circumstantially accept that “poetic justice” might legitimately exist in the real world as well as in our fictions and entertainments. I’m also guessing that in some fashion most of us recognize that there is a retributive strain woven into liberal democratic systems of crime and punishment. We also sometimes try to put a convicted criminal in direct contact with his victims: we may not let them beat or stab the person who did them harm, but we do allow the families of victims an opportunity to emotionally assault a criminal, to try and make the criminal feel the anguish and suffering of the people his actions have harmed. Yes, there’s a huge difference between that and the Iranian case, but there’s still a kind of conceptual kinship, a moment where we try to peel the intervening layer of state mechanisms away and create a direct human confrontation between victim and victimizer.
I think the most intricate reaction I have to Volokh’s piece involves the complex genesis of modern liberal-democratic jurisprudence, and some troubling doubts I have about its relationship to the long history of human consciousness and personhood. I’m not entirely certain that some of those who are attacking Volokh recognize the implicit commitments embedded within their attack. If they do, fine, but I want to be sure that what is implicit become explicit at some point.
A historian who studies European societies from the late medieval era to the present has to be uncomfortably aware of just how different the fundamental conception of justice, crime and punishment were in the not-too-distant past. Michel Foucault is far from the only one to have noticed this fact. Hangings in England and elsewhere appear to have been unselfconscious forms of popular spectacle and entertainment in the not too distant past. You can look and look for the haunted conscience of modern subjectivity in those crowds and never find it; instead what you see are many people gathered to watch hangings the way we might gather to watch a 4th of July parade. Many rural communities throughout Europe into the early modern period tried and punished domestic and wild animals for committing crimes against property or crimes of violence. Many people, both elites and commoners, appeared by our standards to be indifferent to certain kinds of pain and suffering on the part of others.
The cultural and social specifics on such issues were often very different in non-Western societies before 1750, but the relative alienness of those pasts to liberal-democratic sensibilities in the present day is often equally pronounced. We’re accustomed to shuddering in horror at the prevalence of human sacrifice in some of large-scale pre-Columbian societies, but it’s fairly clear that our moral understanding of such practices didn’t exist within those historical worlds. It’s fairly clear that it took the violence and destructiveness of the Atlantic slave trade to turn the practice of kinship slavery in West and Equatorial African societies into a moral issue instead of an ordinary part of social practice.
I’m not saying here that because modern ethical frameworks did not exist in the past that we cannot judge those past societies as immoral. But I am saying that to judge commits one to a narrative of progress, to an acceptance of the present as superior to the past. The crowds who gathered at hangings in England before 1750 were not barbaric or savage within their own context. They can only become so from within our own contemporary frame of mind, our own understanding of human progress. To successfully curl our lips in disgust at the past in this respect means not just that we accept that we are different than they, but better.
That has some tricky implications when it’s brought into the framework of the case that Volokh cited, because here we are dealing not with the past, but with two different framings of the present. I hasten to say that the Iranian case cited is not “backward”: in its own way, it’s as modern as we are. The world lives in simultaneous modernity now. But it is different, and it’s a form of difference that I think at least some of those condemning Volokh might otherwise show extraordinary wariness about judging or attacking. Nobody among those to attack Volokh is quite saying, “Those Muslim barbarians!”: they’re very carefully keeping their eyes on Volokh himself. But you almost can’t attack Volokh in this case without committing to a vision of human progress that suggests the Iranian judicial system and even the ordinary Iranians who participated are in some way barbaric.
The whole discussion has a strange ironic cast to it. Volokh almost sounds like a parody of the classic cultural relativist—make no judgments about the Other, in fact, romantically admire the Other for having a better, older, more elementally human way of living socially. Volokh's strongest critics sound like the classic arch-defenders of the Western tradition: the Other in this case is a barbarian, backward, savage; the sooner that the forces of progress and reason can bring this savagery to heel, the better.
Of course, as the really good discussion at Unfogged suggests, the idea of Volokh or anyone else choosing to just embrace a completely different paradigm about violence and justice, to change fundamental social and political norms like a fashion statement, is wrong-headed long before you get to the matter of whether it’s desirable. Volokh in this sense is just as silly as counterculturalist environmentalists who think everyone should live like hunter-gatherers: whether or not that's a good idea, the proposition fails because it's not possible to scribble over the fundamentals of the social order in order to live some other idealized way of life, not at that scale.
So ultimately I don’t disagree with the strong criticism of Volokh, but I do think that both the Iranian case that drew his attention and his uncharacteristically volatile admiration for that case are more complicated than they look at first sight.