retribution

As retaliation (also , Retaliation , retribution ') is called in the broadest sense, any response to a previously gone action on reciprocity ( reciprocity ). According to the sociologist Richard Thurnwald , reciprocity, which seeks to strike a balance between performance and consideration, is a basic aspect of ethical societies and the basis for any social conception of justice .

Originally was understood recompense in return or reward (paid) for services rendered. The term money is related to a medium of exchange that makes various services or goods comparable in terms of their common exchange value and thus makes them interchangeable.

The idea of reciprocity has a long history. It is the "balancing" (mutual) justice of Aristotle . “ Do ut des ” is the corresponding justice formula of Roman law. Retribution is also described by the saying "As you me, so I you". The same will be rewarded with the same. Therefore, retaliation is also part of the equality principle of the Western constitutions and human rights conventions. The Golden Rule , which is also steeped in tradition, pursues a different approach to reciprocity .

Today, retribution is mostly understood as a punishment with the character of atonement and negative in the sense of revenge . It plays a special role in various religions and ideologies as a cosmic, legal and / or political principle of action and prosperity or reward and punishment: in the relationship of a god to people as well as among people, in this or another life.

Retaliation as a principle of law

origin

The principle of retaliation is not only a root of Western law : on the one hand, one finds the so-called Ius talionis or Lex talionis in early ancient legal texts that aim to establish a proportionality between deed and atonement or to grant compensation . On the other hand, there has always been multiple retribution, the duplum and additional penalties, but not for manslaughter and bodily harm. So there was a double to tenfold fine for certain property offenses.

The retribution applies only to people among themselves. So it is not to be found in cultic offenses and is also broken where the punishment also pursues other punitive purposes , such as general prevention and special prevention. In addition, it only has a function where private punishment is part of the legal system. This is characterized by the fact that there is a criminal claim against a non-group member or a foreign group or the punishment is carried out by the injured party or benefits him. It is a matter of the fact that up to now non-legal disputes are subject to law: war becomes feud, feud becomes process. In the course of this development, the sanctions were changed from tolerating brutal actions to financial penalties. A major application of retaliation is blood vengeance in societies organized under gender law. Retribution is often not only a right of the injured person, but also an obligation, the violation of which renders those obliged to dishonor, or an obligation that deprives him of certain rights. For a long time, this also prevented the acceptance of a fine (wergeld) in retaliation because it was considered dishonorable. The principle of retribution ceased when criminal law became public law. This process began as early as the 12th century.

Franconian and Germanic law

In the old Franconian and Germanic laws, penalties that exceed the Talion many times over are regularly to be found.

In the Lex Salica (6th century), a distinction was made between reparation for the damage, the dilatura and the punishment, which probably also benefited the injured person, so that one can only speak of retribution when it comes to punishment. The penalty usually exceeded the talion:

"If a suitor steals something worth 2 pfennigs outside of the house, he will be sentenced to 600 pfennigs or 15 schillings in addition to compensation and dilatura."

The separation becomes particularly clear when the punishment and the duty of reparation affect different people:

“If [a servant] steals something worth 40 pfennigs, he will either be emasculated or he will give 240 pfennigs equal to 6 shillings. But the master of the servant who committed the theft would compensate for it. "

The killings and bodily harm only result in fines, which are likely due to the injured or relatives. The death penalty was only imposed if neither the perpetrator nor the relatives could afford the sentence.

In the royal law of 818/819 the death penalty was imposed for killing a person in the church. But if it was done in self-defense, he paid 600 shillings in addition to the ban fine for the desecration of the church and had to accept the penance that the clergy stipulated, "which corresponds to the deed he committed". The violation of a priest was atoned for three times: the priest received two parts, the third part as peace money went to the church and, in addition, the ban penalty for the king.

In the Lex ribuaria , crimes against followers of the king were ordered to be penalized three times. The same was true of crimes against the Church in the Lex Alamannorum . The Talion was also exceeded in the Lex Baiuvariorum . For a killed servant z. B. arranged to provide two servants. In the Capitulare Saxonicum of 797, too, triple penances were set for killing a royal messenger. The Lex Thuringorum and Lex Francorum Chamavorum also have multiple fines for theft of pets. In the Lex Frisionum , nine penalties are prescribed for killing a hostage. In the laws of Æthelberhts of Kent, nine times the fine is also given for theft of the royal estate.

In the Uplandslag of the Swedish King Birger , killing from an ambush was subject to a double penalty. According to this law, the theft of half a mark or more could be punished with death by hanging if the person stolen was not satisfied with a fine. In the Lex Gundobada of King Gundobad of Burgundy, cattle theft was punished with the death of the thief and the enslavement of the knowing wife and children for over 14 years.

Even serious insults can be retaliated with death: in Gulathingslov allegations of homosexuality are listed. "So he may kill him like a peaceable man for these words, which I have listed, if he establishes them through witnesses." As far as the king was entitled to a penance, the perpetrators and injured could not let the matter rest and thus thwart the king's claim. According to the Grágás there is a manslaughter right for men with regard to a certain group of women close to him if they have been sexually abused.

Greco-Roman antiquity

Similar developments to the codification and juridification of archaic vengeance thinking can also be seen elsewhere in antiquity , for example with Drakon in Athens (621 BC). Mere vigilantism has been recognized as a danger to the community: where revenge is sought at any price, there reigns an unlimited arbitrariness and violence (see. Bellum omnium contra omnes , which tends to make dimensional and Fristlosigkeit, surpassing the occasion and output damage far). Revenge should be suppressed by law: To do this, it required a judicial system based on a monopoly of force , i.e. a socially recognized general judicial authority that should determine the offense and the sentence and monitor its execution. But then other punitive purposes came into play: The sentence is traced back to Seneca :

“No sensible person punishes for the injustice committed; the reasonable punishes in order to prevent future danger. "

This fundamentally calls into question the idea of retaliation.

Retribution as a Religious Ethic

Judaism

In the Tanach the legal sentence appears life for life, eye for eye ... only in relation to cases of bodily harm or perjury and only as an address to perpetrators (relatives) and judges, not to injured parties. In the discussions of the rabbis collected in the Talmud , this legal principle has been discussed since the 1st century BC; The opinion prevailed that he was only demanding appropriate compensation for the act, not a similar infliction of damage.

Christianity

In the New Testament , Jesus of Nazareth contrasts the Jewish Torah commandment of love for one's neighbor , which he updates as love for one's enemies , with the right to retribution. So it says in Mt 5, 38ff .:

“You heard it said, 'An eye for an eye, a tooth for a tooth.' But I tell you that you should not oppose evil; but, if someone gives you a stroke on your right cheek, offer the other to him too. And if someone wants to right you and take your coat, let him have his coat too. [...] Love your enemies; bless those who curse you; do good to those who hate you, pray for those who insult and persecute you. "

Here, too, it is a question of a personal relationship, not of state law.

Where there is no earthly retribution, Christians refer to God - cf. the gratitude : " May God reward you ."

Islam

The revelatory character of the Koranic right of retribution and its specific penal provisions limit the possibilities of interpreting the Talion law in Islam . The Shari'a enforces revealed law for all areas of life , handed down through interpretations of Muhammad ( Sunna ) and later jurisprudence. It fundamentally differentiates between violations of God's law and human rights . The former are punished with border punishments ( ḥudūd ) laid down in the Koran - usually stoning or flagellation - in order to secure the divine order; The latter are either rewarded ( qiṣāṣ ) by family members of the victims or punished at the discretion of a judge.

In the case of offenses against life and limb of other people, retribution according to Sura 5:45 is applied. An Islamic court must first determine the culprit's guilt. The testimony of the victim and another witness is sufficient for a conviction. They do not have to be direct eyewitnesses; circumstantial evidence is also permitted in Qiṣāṣ cases.

In the event of a judicial determination of bodily harm, the victim or his family may inflict exactly the same injury on the perpetrator under the supervision of the judge that he inflicted on the victim. The perpetrator must also do a good deed for God, such as fasting or making a donation, or earlier release a slave. In homicides, the perpetrator is only killed if the victim's closest male relative requests it in court. In addition, according to sura 2 , 178 , the retribution may only be carried out if the perpetrator and victim are “the same”: only one other man may be killed for a man, another woman for a woman, and a slave for a slave. Only a few cases meet this condition, so that only a penalty determined by the judge is considered. Depending on the assessment of the individual case, this can range from acquittal to the death penalty. Proceedings are stopped immediately if the victim forgives the perpetrator or if the perpetrator credibly and persistently expresses remorse.

Anyone who breaks this right of retaliation can be prosecuted at the request of the victim or his family. In fact, victim families often practice vigilante justice, which is socially approved as a blood revenge for violating family honor and is often not prosecuted. Only the killing of the person who has violated honor is considered to be restoration.

If retaliation is not possible because of inequality between perpetrator and victim, or if the victim's family does not demand it, they can claim a blood price ( diyā ) for it. For a woman the blood money is only half as much. It is also usually lower for non-Muslims. In the event of bodily harm, the amount is graded according to the severity of the offense. Payment does not replace the good deed, which the perpetrator must then also commit.

In the Qur'an and Hadith , the principle of (divine) retribution often appears in connection with the Last Day in eschatological meaning, in that the righteous are given Paradise and the wicked are given Hell .

Asian religions

Hinduism , Buddhism and Taoism believe in the eternal wheel of karma : the self-generated, fateful universal law of retribution. In contrast, human repayment is not required, but should be overcome because it produces karmic effects.

The Taoist concept of letting it happen ( Wu wei ) advises an acceptance of the injustice suffered without resistance and without counter-violence. Buddhism emphasizes the negative repercussions of thoughts of retribution as well as the danger of suffering prolongation of hostility and violence:

“He cursed me, beat me, defeated me, robbed me - those who brood over it don't stop their hostility. Hostilities do not stop hostilities, no matter what. Hostilities come to a halt through non-hostility: this - a never ending truth. Not like those who do not realize that we are here on the verge of death - those who do: their arguments have come to a standstill. "

- Dhammapada 3-4

Mahatma Gandhi pointed out the inevitable consequences of all violent vengeance. The quote is ascribed to him: "An eye for an eye - and the whole world will go blind."

Retribution in the secular modern age

The principle of talion was gradually modified: An attempt was made, under the heading of “appropriateness”, to assert the point of view of the balance between crime and punishment in state criminal law. As a result, the sentence should no longer be based on the damage that the perpetrator caused, as was previously the case, but should be based on the criminal energy of the perpetrator. This was assessed as injustice insofar as it violated a generally applicable legal norm. Even in ancient times, there was an increasing distinction between accident, oversight, negligence and intent . The latter has recently moved to the center of legal philosophy: Because the human rights based on natural law was linked to the image of an ethically responsible perpetrator who possessed moral freedom of choice and was therefore guilty .

In his Metaphysics of Morals of 1797, Immanuel Kant derived the quality and quantity of punishment from the Ius talionis: For him, this was the basis of the state legal system that was superior to individuals. He was aware that a constitutional state could not literally fulfill the principle of 'like with like', but had to enforce it in order to uphold the legal order and to “atone” injustice. Therefore he had to look for a “surrogate for the satisfaction of justice”, that is, a state sanction that was to be kept “in proportion to the internal malice of the criminal”. He therefore insisted on the execution of a murderer even in the fictitious case that a society decides to dissolve itself:

“Even if civil society with all its members dissolved in unison (e.g. the people living on an island decided to part and disperse around the world), the last murderer in prison would have to be executed beforehand so that this could happen to everyone what his deeds are worth, and the blood guilt is not liable to the people who have not insisted on punishment: because they can be regarded as participants in this public violation of justice. "

Kant thus retained the biblical idea that the punishment not only fulfills a norm or a social purpose, but must atone for an act in the perpetrator and that the collective is responsible for it. But he was also aware that a balance between crime and property punishment did not also bring about a balance for the perpetrators, because a rich man, in contrast to the poor, can allow himself to do such an act. He had thereby transferred the principle of retaliation of private punishment to retaliation for legal interests in society.

The legal scholar Hans Welzel (1904–1977) took over this idea and argued that the guilt of the perpetrator should not only justify the sentence, but should also "measure" it. This idea has been incorporated into Section 46 of the Federal German Criminal Code :

"The guilt of the perpetrator is the basis for determining the punishment ."

The preventive purposes of punishment were ignored, as was the fact that the assessment must be kept within the framework of the penalty framework specified by law, which in turn cannot take into account the degree of personal guilt of the individual perpetrator in his generalized criminal claim. With this, the idea of retaliation in criminal law is completely resolved even under Kant's considerations. This can also be seen in the penal norms, which lie far ahead of any social damage caused by the perpetrator, however defined, so that a balance of whatever kind between damage and punishment cannot be measured at all, but only police preventive aspects play a role, such as private possession of drugs or certain pornographic products.

Retribution as a universal law

The idea of retribution or the principle of “ tit for tat ” is seen as an essential principle of cooperation among living beings. Because, as the political scientist Robert Axelrod writes, “unconditional cooperation tends to spoil the other player; it leaves the burden of correcting injurious players with the rest of the community, suggesting that reciprocity is a better basis for morality than unconditional cooperation ”. The swarm behavior also reflects the idea of mutual respect.

Retaliation as a political strategy

National Socialism

German retaliation in Warsaw (1944)

Merciless retribution was propagated in the " political religion " of National Socialism on the one hand as a Jewish characteristic, on the other hand as a kind of natural law and necessary self-assertion in the " racial struggle ".

Retaliation as a strategy of war

In the 20th century, air warfare gained a dominant role in warfare with bombing raids on enemy hinterland . Since then, retaliation has become a common propaganda catchphrase for active or reactive air strikes. For example, from January 20 to May 1944 the German Air Force flew attacks on British cities, especially London , in retaliation for previous British air raids on German cities. These - mocked by the British as "Baby Blitz" - had no military purpose. Since 1943, the Nazi regime announced “ weapons of retaliation ” that were to bring about a decisive turnaround in the war. These V1 and V2 rockets, which had been in use since June 1944, were not precisely steerable long-range weapons that only served or were intended to serve the terror of the enemy and the reassurance of the own population. Some historians today also rate the Allied air raids on Dresden and Hamburg as pointless .

During the Cold War , conventional and above all nuclear war scenarios and retaliatory strategies played a central role on both sides of the East-West conflict in order to deter the enemy. Since the atomic bombing of Hiroshima and Nagasaki from 1945 to 1954 that threatened US the Soviet Union " massive retaliation " ( Engl. : Massive retaliation ) "in places and means of their own choice" for each unspecified expansion experiment on. Only after the Soviet Union possessed not only atomic bombs, but also hydrogen bombs and long-range bombers in 1954 , did it achieve an atomic "balance of terror". This “atomic batt” was based on the ability to deliver a devastating second strike even in the event of a surprise attack by the enemy ( mutual assured destruction ). This forced the US, its strategy of "flexible response" ( Flexible Response to modify).

literature

Concept history

Jacob and Wilhelm Grimm: German Dictionary. dtv 1984.

European legal history

Reinhold Schmid (Hrsg.): The laws of the Anglo-Saxons. In the original language with translation, explanations and an antiquarian glossary. Leipzig 1858.
Karl August Eckhardt (Ed.): The laws of the Carolingian Empire 714–911. Weimar 1934. Vol. I. Salian and Ribuarian Franks , II. Alemanni and Bavaria . III. Saxony, Thuringia, Chamaven and Frisians .
Claudius Frh. V. Schwerin: Swedish rights. Older Westgötalag, Uplandslag. (Germanic Rights Vol. 7) Weimar 1935.
Franz Beyerle (Hrsg.): Laws of the Burgundy . (Germanic Rights Vol. 10) Weimar 1936.
Andreas Heusler: Icelandic law. The gray goose (here “Grágás”). Germanic Rights Vol. 9. Weimar 1937.
Hans Welzel: The German criminal law . Berlin 1954.
W. Prices: blood revenge . In: Concise Dictionary of German Legal History Berlin 1971. Vol. 1 Column 459–461.
H. Holzhauer: private penalty . In: Concise Dictionary of German Legal History Berlin 1984. Vol. 3 Column 1993–1998.

Non-European legal history

Richard J. Evans: Rituals of Retribution , Kindler Verlag GmbH 2001, ISBN 3-463-40400-1 .
Christine Schirrmacher, Ursula Spuler-Stegemann : Women and the Sharia . Munich 2004.

Legal philosophy

Immanuel Kant: Metaphysics of Morals . In: Kant, works . Insel Bd. IV. = Immanuel Kant: The Metaphysics of Morals, First Part: Metaphysical Foundations of Legal Doctrine. E. On the right to punish and pardon I. (1797)
W. Naucke: Penal theory, purpose of the penalty . In: Concise Dictionary of German Legal History Berlin 1984. Vol. 5 Columns 1-6.

Web links

Wiktionary: retaliation - explanations of meanings, word origins, synonyms, translations

Individual evidence

↑ http://www.retrobibliothek.de/retrobib/seite.html?id=113590

↑ Grimm, vol. 25, col. 411.

^ Axel Montenbruck : Philosophy of criminal law (1995-2010): retaliation, punishment, scapegoat, human rights penalty, natural law. 2nd, expanded edition. FU Berlin, Berlin 2010 ( online ), pp. 3–43.
↑ H. Holzhauer, Sp. 1994.
↑ Frostathingslov No. 22: "No one should say that to another that he was responsible for a shame [according to a gloss: accepted a violation of rights without satisfaction] [...]"; Gulathingslov No. 186: "Now no one has the right to penance for himself more than three times, neither man nor woman, if he does not take revenge in between."
↑ Preiser Sp. 459.
↑ Compensation for the damage caused by the time between the preliminary negotiation and the subsequent return or compensation. Mediae latinitatis ... Vol. I p. 437.
↑ Eckhardt, Lex Salica No. 12, 1.
↑ Eckhardt, Lex Salica No. 13, 2.
↑ Eckhardt, Lex Salica No. 61: "And if none of his own can release him by repentance, he should atone with his life."
↑ Eckhardt I p. 115.
↑ Eckhardt p. 143.
↑ Eckhardt II p. 9.
↑ Eckhardt II p. 81.
↑ Eckhardt III. P. 93.
↑ Aethelbirhts Laws Chap. 1 No. 4 = Schmid S. 3.
↑ v. Schwerin, Uplandslag No. 11, 38.
↑ Lex Gundobada No. 47.
↑ Gulathingslov No. 196.
↑ Gulathingslov No. 214.
↑ Grágás III, No. 90.
↑ Naucke Sp. 2.
↑ Schirrmacher p. 50.
↑ Kant A 200; B 230 (vol. 4 p. 455)
↑ Kant A 199; B 229 (vol. 4 p. 455)
↑ Kant A 198; B 228 (vol. 4 p. 454)
↑ Welzel, p. 103.
↑ Kraus p. 15.
↑ Robert Axelrod: The evolution of cooperation. (1984), et al. a, 2005, ISBN 3-486-53995-7 ., et al. 122.
^ Axel Montenbruck : civil religion. A legal philosophy I. Foundation: Western “democratic preamble humanism” and universal triad “nature, soul and reason”. 3rd considerably expanded edition. 2011, 115 ff, University Library of the Free University of Berlin ( open access )
^ Sönke Neitzel: The German air raids on enemy cities in the First and Second World War
↑ Ralf Blank: The "Battle of the Ruhr"
^ AC Grayling : Among the Dead Cities. Bloomsbury, London 2006, ISBN 0-7475-7671-8 ; The dead cities. Were the Allied bombing war crimes? Bertelsmann, Munich 2007, ISBN 978-3-570-00845-4 .

[1] ttp://www.retrobibliothek.de/retrobib/seite.html?id=113590

[2] Grimm, vol. 25, col. 411.