Vindicatory Justice: Beyond Law and Revenge

Preface
Contents
Contributors
Part I: Vindicatory Justice: Conceptual Analyses and Forerunners
Introduction
1 Introduction
2 The Unity and Consistency of the Vindicatory System
3 Vengeance in the Vindicatory Order
4 Why ``Vindicatory´´?
5 The Prototypic Action: Homicide
6 Imprecations, Ordeals and Oaths
7 The Vindicatory Background in Criminal Law
Appendix: Synoptic Table of Vindicatory Justice
References
Hans Kelsen´s Philosophy of Revenge
1 Primitive Law As a Completely Decentralized Legal Order Based on Blood Revenge
1.1 Blood Revenge Systems As the Earliest Form of Law
1.2 Law As a Social Technique of Indirect Motivation Based on Coercive Sanctions
2 Kelsen´s Account of Blood Revenge from a Sociological and Anthropological Perspective: Blood Revenge As a Social Phenomenon
2.1 The Subjective Aspect of the Social Character of Revenge
2.2 The Objective Aspect of the Social Character of Revenge
3 Kelsen´s Account of Revenge in the Pure Theory of Law: Blood Revenge As a Normative Phenomenon
3.1 Blood Revenge and the Principle of Imputation
3.2 The Avenger As an Organ of the Community and the Monopoly of the Employment of Force
4 Blood Revenge in the Evolution of Law As a Specific Social Technique
4.1 Blood Revenge As a Decentralized Legal Order
4.2 From Blood Revenge to the Law of Modern States
4.3 The Gradual Differentiation of the Three Stages of the Application of Law
4.4 The Relevance of the Procedural Dimension in Kelsen´s Theory of Blood Revenge
References
Revenge, Violence and the Civilizing Narrative
1 Introduction
2 The Civilizing Narrative
3 The Rationalizing Process
4 Theories of Revenge and Restitution
5 Lex Talionis from Hammurabi to Rome
6 Icelandic Excursus
7 Conclusions
References
On Revenge and Punishment
1 Introduction
2 Distinguishing Between Punishment and Revenge
3 A Few Issues from the Standpoint of the Distinction Proposed Here
3.1 On the Non-incompatibility of Revenge and Punishment
3.2 Revenge, Composition, and Punishment
3.3 From Composition-by-Submission to Sense of Guilt
3.4 On ``Authorized Revenge´´
3.4.1 Violence Between Subordinates of the Same Authority-Holder
3.4.2 Violence Between Members in Communities Without Authority-Holders
3.4.3 Violence Between Authority-Holder1´s Subordinate1 and a Freeperson or Authority-Holder2´s Subordinate2 Which Is Exerted ...
3.4.4 Violence Between Authority-Holder1´s Subordinate1 and a Freeperson or Authority-Holder2´s Subordinate2 Which Is Exerted ...
4 Conclusions
References
``To Restore´´ Versus ``To Vindicate´´
1 Introduction
2 ``To Restore´´ as ``To Vindicate´´: Analogies
2.1 Definitions
2.1.1 Restorative Justice
2.1.2 Vindicatory Justice
2.2 Four Common Features
3 ``To Restore´´ and ``To Vindicate´´: Individuals and Groups
3.1 Revenge and Violence: An Obvious Distinction?
3.2 Offender and Victim: The Solidarity Group
3.3 ``Collective´´ Versus ``Individual´´ Justice: Answering Two Objections
4 Concluding Remarks
References
Antonio Pigliaru
1 Antonio Pigliaru: Legal Philosopher and Anthropologist
2 Vendetta as Instinct vs Vendetta as Institution
3 The Rules of the Barbagian Vendetta
4 The Barbagian Vendetta as an Instrument of Legal Protection
5 The Barbagian Vendetta System as a Legal System
6 Two Hermeneutic Hypotheses on the Barbagian Vendetta
6.1 The Barbagian Vendetta as a Social Act
6.2 Barbagian Vendetta as a Diapraxic Act
7 The Paradox of the Barbagian Vendetta
References
`Une Question De Droit´
1 Introduction
1.1 A Brief Note on Legal Pluralism Since Busquet
1.2 Vendetta, Pace? Or Pace, Vendetta? The Ambiguity of the Sources
2 Vendetta
3 The Laws of the Occupying States and Vendetta: Scenarios of Legal Pluralism
3.1 Genoese Law and Vendetta
3.2 Corsican Governments and the Law
3.3 French Positive Law and Vendetta
4 Pace: State Appropriation as an Acknowledgement of Its Effectiveness
References
Part II: Mapping Vindicatory Justice
Vindicatory Justice in Madagascar
1 Introduction
2 Fihavanana: Ideology and Law
2.1 The Fihavanana
2.2 Considerations About Composition According to the Type of Conflict Being Judged
3 Composition in a Betsileo Context
3.1 Rules for Conflict Resolution
3.2 Composition for Conflicts Caused by Petty Theft and Minor Disputes Between Members of a Fokontany
4 Stages of the Procedure
4.1 Initial Stages
4.2 Central Stages
4.3 Final Stages
5 Conclusions
References
Vindicatory Persistence in Barbagia
1 Persistence and Involution: The Paradox of ``Progress´´
2 Barbagian Vendetta in the Longue Durée
3 Agnatic (Un)solidarity and Capitalism: The Drift of Bloody Revenge
References
Vindicatory Justice and the Colonial Encounter
1 Introduction
2 The ``Peaceful Penetration´´ in Tivland
3 A Legal System to ``Repair the Tar´´
4 Marriage by Exchange and the Figure of the Igba
5 The Prohibition of Marriage by Exchange and the Spoiling of the Tar as a Result
References
Law, Ethics and Religion
1 Introduction
2 Generalities of the Diya
3 Forgiveness in the Diya
4 The Diya in the Mauritanian Interwoven Legal System
5 When the Diya Enters the Scene in Mauritania
6 By Way of a Conclusion
References
The Vindicatory Roots of Civil Sanctions
1 Introduction
2 Private Criminal Law: Origin and Decline
3 Private Criminal Remedies in Contemporary Legislation: Punitive Damages
4 Private Criminal Remedy in Contemporary Italian Case Law: Punitive Damages?
5 Figures in the Italian Law Echoing a ``Vindicatory Justice´´ Dimension
5.1 The Third Paragraph of Article 96 of the Italian Code of Civil Procedure
5.2 Article 12 of Italian Press Law
5.3 The Third Paragraph of Article 125 of the Italian Patent Code
List of Cases
References
From the Duty to Redeem the Spilled Blood to the Duty to Redeem Themselves (Repentance)
1 The Jewish Experience of Duty: The Passing into Law of a Practice (Blood Revenge) or the Codification of a Metaphysical Idea...
2 The Handling of Blood Shedding: Between Custom and Law
2.1 Custom: The Blood Avenger
2.2 The Shift from Custom to Law: God and the Judges as Institutional Framework
2.3 Law: Blood Avenging as Institutional Practice
3 Blood Avenging and the Cities of Refuge
4 From the Duty to Redeem Blood to the Duty to Repent
4.1 One Word, Two Meanings
4.2 The Ban on Vendettas and Grudges: The Norm as an Ethopoetic Device
4.3 Decrees, Exhortations, Ideals: The Duty of Forgiveness and the Ideal of Magnanimity
References
History and Memory Before the Court
1 Introduction
2 The ``Battle of Crete´´ and ``Operation Mercury´´
3 The Outrageous Contentions: Victims into Abusers
4 Savage Primitives Against Idealist Knights
5 The `Moderate´ Response to the Local´s `Dirty´ War
6 The Time of the `Richter Case´
7 Social and Political Context of the Trial
8 The Legacy of the Resistance and the Left in Greece
9 The Trial: The Facts of History and the Masks of Ideology
10 Which Community?
11 Richter in Crete: Legal Norms and Ethical Values
References
English References
Defenselessness, Offense and Counter-Offense in Legal Disputes Between Employers and Female Domestic Workers
1 Introduction
2 Cases Brought to Court
3 Elements of Objective Defenselessness
4 The Employer´s Sense of Offense and Disproportion
5 The Feeling of Offense Among Female Domestic Workers and Their Imprecation of Justice
6 Concluding Remarks
References
A Vindication of the Rights of Women. Equal Participation in Rituals in a Festival Context
1 Introduction
2 Gender Roles in Rituals in the Festival Context
3 Laws Against Customs and the Symbolic Efficacy of Demands
4 Discrimination Against Women as Legal Exceptionalism
5 Conclusions
References
Index