casual cases, we could read Louise’s reaction critically and uncharitably,
saying that her gratitude betrays unwise and inappropriate dependency
on two undependable people. But why not just allow her to enjoy the
surprise, uncriticized, and feel an emotion wishing them well? So long
as she doesn’t alter her basic strategy of prudent caution, why can’t she
simply enjoy the windfall? In short, if generosity to self is a good thing,
why not exercise it here?
These two cases are different from the casual cases because they con-
cern important goods to which Louise is rightly attached: her work in
the first case, the opening of her university’s Center in the second. Given
that her emotions are rightly attached to these important goods, someone
who unexpectedly promotes those goods elicits a more robust type of
gratitude than in my casual cases. It’s not just, “Finally there is a competent Comcast tech to deal with,” it’s “This person has seriously advanced
an important project.” Had the person proven unhelpful or even damag-
ing, Louise should have avoided anger (turning things over to the law if
the damage were serious enough). She can certainly get good comments
from others, and she did. But in this windfall case, why not feel a limited
sort of gratitude, and why not wish that person a limited sort of recipro-
cal benefit? If he were to send her something for comments, she might
even reciprocate, and given that her basic rule is that colleagues take first priority and everyone else is optional, this would be a gratuitous good
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deed. Once again, it’s not as if there’s too much pleasure and delight in
life. When gratitude comes as a windfall, too much censorious question-
ing betrays an ungenerous disposition.
There is a further argument in favor of limited gratitude in such
cases: the emotion enhances future cooperation. The workplace
involves relationships that are limited. They do not involve trust of the
deep sort involved in intimate relationships, only a more superficial
type of reliance. But they do concern intensely important matters, so
it’s useful to encourage moral sentiments that make everyone’s lives
go well.
VI. Well- Being Damage: Turning to the Law
The Middle Realm, as so far analyzed, is fundamentally a comic
domain. Comedy so often concerns vices of overinvestment in things
that actually have slender importance: vanity, miserliness, obsessive
attention to reputation. For the Stoic, the whole of the Middle Realm
is comic, because none of the things others do to us is serious. But
that is wrong. There is genuine tragedy in this realm, when things that
people rightly prize are damaged by non- intimates: life, health, bodily
integrity, work and employment, major aspects of one’s property, even
property that has emotional though not financial value. We should also
include here reputational damage serious enough to obstruct work,
employment, and friendship; and we should include dignitary damage
of a sort that constitutes discrimination violative of political equality.
Finally, we include such damages inflicted on people we love, not just
on ourselves.
Even here, my analysis does not collapse the Middle Realm into
the intimate realm. In the intimate realm, I hold, the relationship itself
is of intrinsic value, so the grief, loss, and anxiety that we rightly feel
when things go wrong take the other person, and the relationship itself,
as their object. In the Middle Realm, we rightly grieve, or feel anxiety,
about the well- being damage to self or loved ones, but the stranger who
inflicted that damage is, or should be, incidental to our focus. Still, it’s
right to do something about the damage, and that is where we need the
Eumenides.
It’s not an accident that these serious well- being damages are the
offenses that the law takes seriously. In some cases it took a while (sex-
ual harassment), in some cases the boundary is disputed and differently
drawn in different countries (hate speech), and in some it is very squishy
and hard to adjudicate (defamation). Still, a central question the law typi-
cally asks is about the seriousness of the well- being damage. A “hostile
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work environment,” for example, in the law of sexual harassment, has
to be one that rises above casual offense to some serious obstruction.
The conduct has to be “severe or pervasive,”21 “threatening or otherwise
deeply disturbing.”22
We’ll discuss the legal/ political aspects of some of these cases in
chapter 6. But we still have to think about the victim. Here we have many
cases of people who have been damaged, often severely, by other people,
often with wrongful intent, or at least with negligence. We’ll ask later
how the status of the victim is appropriately acknowledged by legal
institutions. But what is the victim’s appropriate emotional reaction?
Once again: these cases are unlike those discussed in chapter 4 because
no reciprocal relation of trust exists between the parties, and usually no
relationship at all— unless it be what Thomas Scanlon calls the “bare
moral relationship,”23 the set of expectations and norms that bind people
just because they are human and moral— added to which is often shared
membership in a political community. But this is a thin relationship, and
in most cases there need be no future connection between the parties,
except to the extent that they are joined in a legal proceeding.
Grief is an extremely important and legitimate part of such cases,
responding to the significance of the loss that has been inflicted (not the
relationship loss, as in intimate cases, but the well- being loss). That is
clear. And victims have to deal with that grief, which is often very dif-
ficult. But what about anger?
In such cases, anger at the perpetrator is understandable, and it
would be surprising if most victims did not have a period of real anger
with a desire for the perpetrator to suffer, or to do badly in some way. The
first thing we can say, however, is that victims should turn the business of
dealing with the perpetrator over to the law, rather than taking matters
into their own hands. That is the fundamental shift that Aeschylus shows
us, and our next chapter will discuss it further. There is often a residual
desire to punish the offender oneself, and law even understands this up
to a point. The defense of “reasonable provocation” in the common law
of homicide involves the idea that a person who has killed in the “heat
of passion” after a “sufficient” or “adequate” provocation— defined in
terms of the normative figure of the “reasonable man”— and without suf-
ficient “cooling time,” can win a reduction of the level of offense from
murder to manslaughter. A provocation defense is mitigation, however,
not excuse: the person is still judged severely for not turning things over
to the law. But it is interesting that the law shares our idea that anger
takes a while to rein
in, and may be judged less harshly right after a dam-
age than after a lapse of time.
In most cases, however, the victim does not become a perpetrator, but
turns matters over to the law. Even in these cases there is an emotional
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analogue of the provocation defense. That is, we should not judge people
severely if they are very angry at the perpetrator for a short period of
time, and if they focus, during that time, on wanting the particular per-
petrator who has harmed them to be punished. It’s very understandable
that the individual face and body of the perpetrator may dominate a vic-
tim’s thoughts and dreams for a while. If the fixation on the perpetrator
becomes an ongoing obsession, however, we would be correct in blam-
ing the person (and urging her to seek treatment for the problem). What
would be acceptable would be anger for a brief period, followed by move-
ment toward a Transition in which the victim’s focus now becomes social
welfare, and how the legal system can promote it. Rather than obsessing
about the individual traits of the murderer or rapist or thief, one focuses
on the crime in a more general way, and seeks the type of engagement
with law that will promote the well- being of other victims or potential
victims— just the Transition that Angela made in chapter 2. Often victims
focus on the type of crime from which they themselves have suffered, just
as people who have been ill seek social welfare through a focus on their
own (or their family’s) particular disease, and this seems all right if not
ideal, just so long as overall social welfare is sufficiently promoted by the collectivity of such efforts.
As we’ve insisted, victims do need to mourn and to deal with the
losses they have experienced. But that need not entail ongoing payback
fantasies about the perpetrator. By turning things over to the law, they
transform the injury, making it not just about them, but about what
makes society go better. Once again, we need to insist that a person’s
dignity does not require hounding an individual and obsessing angrily
about that individual. Letting impartial justice take its course is not
a pusillanimous response. How are things improved by adding one
excess to another? Obsessive focusing on the future suffering of the
perpetrator just implicates me in the perpetrator’s hostile and degrad-
ing conduct. Why should that conduct have the power to make me turn
into a dog? Whether the offender should be made to suffer becomes
a purely forward- looking question, which institutions will handle in
their way.
What about forgiveness? By the same token, focusing on forgiveness
for the particular offender is questionable, because of the way in which
it rivets thought to that individual and that past. It’s the same question
as in chapter 4: if an inner struggle with anger can be won no other way,
perhaps this focus on inner forgiveness is appropriate. But we should
be skeptical when therapists tell us so, since that is their trade. Perhaps
focusing on work, or on constructive political efforts, would be just as
good or better. Where grief is concerned, people usually think that pro-
longed therapy wrestling with sadness is unnecessary— it’s necessary
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only in cases of obsessive pathological mourning. Why should we think
differently about anger? In intimate cases the person is deeply entwined
in one’s life, so a broken relationship, like a death, takes time and effort to heal. But there’s no necessity that the interaction with a stranger would
have this feature, and one should discourage obsessive focusing by
whatever means seem to work.
But doesn’t the anger of victims deter? In this sphere we must care-
fully distinguish this claim from the claim that punishment deters. That
claim is plausible, and we shall investigate it in our next chapter. But
the first claim is not plausible. Of course if victims never noticed rape or
murder there would be no statutes dealing with them, and thus no deter-
rence. And both victims and others do need to be in a frame of mind to
support whatever policies are useful in deterring crime. Sometimes the
advocacy of victims is useful in galvanizing the public to take a certain
type of offense seriously, as has happened in the case of drunk driving
and sexual harassment. But in these cases it is overwhelmingly the mag-
nitude of the loss and suffering of victims (and their families) that has been socially useful, not their anger. And victim behavior has been overwhelmingly Transitional rather than retributive. So I see no reason why
victims and their families should nourish and indulge an otherwise use-
less and fantasy- ridden anger on the speculation that this emotion would
contribute to optimal deterrence.
VII. The Gentle Temper
Seneca’s advice is easy to state, difficult to follow— as he himself acknowl-
edges by depicting himself as repeatedly falling into anger, even after
years of self- attention. (I’ve followed his example in this chapter, both in my stories about myself and in my portrayal of my alter ego Louise.) But
he reminds us that there is much we can do to insulate ourselves from
temptations. He urges Novatus to surround himself with people who are
not irritating, and this can at least sometimes be achieved. More gener-
ally, one may try to avoid scenarios in which one will be provoked (for
example, by not searching one’s own name on the Internet all the time,
and by not reading reviews of one’s own books). Finally, to those of us
in the legal profession, he offers chastening advice: avoid lawyers and
lawsuits!
And he also offers what is good advice always: cultivate a sense of
humor about the vagaries of life. “Anger must be confined in many ways;
let many [possible occasions of anger] be converted into play and joking”
(III.11.2). (Although Seneca does not say so, teasing by a friend may be
the best way to achieve this “conversion.”) Conversion typically requires
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stepping out of one’s own immersion in one’s ego- injury: “Step a long
way back and laugh” (III.37). Aristotle’s insight about the “gentle temper”
here receives further support. But Seneca also recommends something
further, of great importance: an attitude of amused detachment toward
ourselves, so that we simply don’t take what happens to us as the most
world- shaking thing. It probably isn’t. To the extent that it is of serious
weight, we should turn things over to the Eumenides.
6
The Political Realm
Everyday Justice
The general object which all laws have, or ought to have, in com-
mon, is to augment the total happiness of the community; and
therefore, in the first place, to exclude, as far as may be, every
thing that tends to subtract from that happiness: in other words,
to exclude mischief.
But all punishment is mischief: all punishment in itself is evil. …
If it ought to be at all admitted, it ought only to be admitted in as
far a
s it promises to exclude some greater evil.
— Jeremy Bentham, The Principles of Morals and Legislation, ch. XIII
“At this festive season of the year, Mr. Scrooge,” said the gentle-
man, taking up a pen, “it is more than usually desirable that we
should make some slight provision for the Poor and destitute,
who suffer greatly at the present time. Many thousands are in
want of common necessaries; hundreds of thousands are in want
of common comforts, sir.”
“Are there no prisons?” asked Scrooge.
“Plenty of prisons,” said the gentleman, laying down the
pen again.
— Charles Dickens, A Christmas Carol
I. The Eumenides
Aeschylus depicted the creation of legal and political justice out of archaic attitudes of retributive anger. The Furies, existing only to track down
wrongdoers, inflicting pain and ill, become kindly and forward- looking,
blessing the land and seeking the well- being of its inhabitants. They also
become rational, listening to the voice of persuasion. As guardians of
law they continue to discourage lawbreaking by inspiring fear. But they
put their anger to sleep (832– 33). They focus on preventing wrongdoing
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rather than on payback. Their prevention strategy includes a capacious
plan for social prosperity and welfare, the amelioration of hunger and
illness, and the inclusion of all citizens. But it also includes the creation of a system of criminal justice.
My next two chapters investigate the political domain, asking about
the consequences of the critique of anger for some aspects of political
institutions. Aeschylus gives us suggestive images, not a theory. The
fifth-century BCE Athenians who watched his play were passionate
about democracy. But in the area that interests us they thought too little
about institutional design. There was no public prosecutor, an office that
at least promises impartial judgment about which offenses merit pros-
ecution. All prosecutions had to be initiated by a citizen.1 (There was also
no distinction between criminal and civil law.) This system gave rise to
many problems, including the likelihood of hostile prosecutions of con-
troversial individuals (such as the prosecution of Socrates, initiated by
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