The Law of Just Revenge
 Acting PM Jack Warner and Opposition Leader Dr Keith Rowley
[caption id="" align="alignnone" width="400" caption="Hanging"] [/caption]By Dr. Selwyn R. Cudjoe
July 15, 2010
Anand Ralogan is one of the leading lawyers of public law in T&T. There is no doubt that the prime minister selected him to be her attorney general because of his familiarity with the courts and how government agencies function. The attention he has paid to breaches in citizens' rights and his advocacy for those against whom the state has discriminated have been admirable. All things considered, he is a good choice for the office.
But there is a down side to all of this. Anand is a relatively young man holding an office of public trust for the first time. He is impetuous, exuberant and, as my mother used to say, he "is just beginning to feel his oats." In his brief stint in office he has taken on the Integrity Commission, clashed with the Police Commissioner and appears intolerant of those who express opinions that are different from his. His attitude suggests that his opinions should prevail at all times.
In spite of his effectiveness in public law I disagree with his advocacy of retribution as a principle of justice and the use of the death penalty as a superior way to achieve social justice. He is reported to have said: "Rest assured the death penalty is coming! If you do the crime you wouldn't just pay the time, we will pop your necks! The time for retribution has come and the fight against crime has to be taken at a higher level" (Express, July 10).
Although jurisdictions such as the United States and T&T see retribution as a legitimate aspect of criminal punishment (it is included it their constitutions) one must still ask whether the state should exact revenge against its citizens (an Old Testament concept) and whether the death penalty takes the fight against crime to a higher level, a practice whose efficacy is still being challenged?
The principle of retribution as an integral part of administering justice is not new to T&T. As early as 1854, Michel Maxwell Philip, one of our most eminent legal minds, examined the lex talionis or the law of just revenge in his novel, Emmanuel Appadocca, and arrived at a definite conclusion. Society has an obligation to take the law into its own hand and punish the evil doer while he lives on earth rather than postpone such a judgment until he arrives in the other world.
Philip was born in 1829 and died in 1888. Schooled in Scotland and trained at Middle Temple, England, Philip returned to Trinidad in 1854 after he was called to the bar. From 1871 to 1888 he was the solicitor general of the island and acted as attorney general six times between 1873 and 1888. It was a major achievement for a black man who was born during slavery and practiced his craft during colonialism. As the acting attorney general the death penalty was the rule of the day.
Some scholars have interpreted the lex talionis as the law of just revenge or the law of compensation and retaliation. It has its foundation in the following Hebraic principle: "When one man injures and disfigures his fellow country-man, it shall be done to him as he has done: facture for fracture, eye for eye, tooth for tooth; the injury and disfigurement that he has inflicted upon another shall in turn be inflicted upon him" (Leviticus 25: 17-22). Philip argued that the lex talionis was stolen from the Egyptians and agreed with the concept of just revenge.
However, one is forced to ask whether the state has a right to act in a revengeful manner upon its citizens and inflict the ultimate penalty of taking their lives. In 1976 when the United States reinstated the death penalty after a ten-year suspension, Justice Potter of the US Supreme Court, reasoned that "capital punishment is an expression of society's moral outrage at particularly offensive conduct" and that "the instinct for retribution is part of the nature of man," a necessary condition for the promotion of stability in a society governed by laws.
The reinstatement of capital punishment did not make America any more law-abiding than European countries which, for the most part, banned the death penalty. Nor, are Europeans as violent as Americans. Interestingly enough, it has been shown that in the U.S. the desire for capital punishment has been driven by "nationalism, religiousness and racial tolerance." In the US there are more black men on death row than white men although African Americans consist of only eleven percent of the population.
No one knows whether the death penalty decreases or increases the murder rate or helps to restore social balance. However, I am sure that the state should not be in the business of committing legal murder and inflicting extreme pain and suffering on its citizens. Gandhi reminded us that an eye for an eye eventually leaves the whole society blind and creates a society where the laws of the Old Testament take precedence over the message of love that the New Testament embodies.
Needless to say, such a policy only takes us back to the savage days of slavery and indentureship when the lives of enslaved Africans and indentured Indians did not mean much. This makes it astonishing to hear Subhas Panday, Minister in the Ministry of National Security, say that "the time has come when society must demand its pound of flesh" and the state must reintroduce the cat-o-nine tale, the most barbarous form of punishment that was inflected upon enslaved Africans during and after the slave period.
While the attorney general, the minister in National Security and a majority of our citizens may favor popping the criminal's necks and beating dem with de cat, I take my stand with Supreme Justice Thurgood Marshall, a towering figures in the fight for the human rights of oppressed peoples, who argued in 1972 that an important decision such as hanging "must not originate in a desire for vengeance because revenge, which he equated with retribution, is an outdated principle of justice" (J. Finckenauer, "Public Support for the Death Penalty").
It is difficult to see how the death penalty raises the fight against crime to a higher level. The People's Partnership certainly has a chance to do things better and take our society to higher heights. It all depends on the choice that it makes.
Professor Cudjoe's email address is scudjoe@wellesley.edu
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