Mind the Economy/Justice 115

The shadow of retribution. On the fragile balance of justice without power

27 July 2025

8' min read

The transition from a system of social control based on informal punishment to one based on institutions founded on public legitimacy is one of the central junctures in the political and social history of humanity. The moment that Hobbes designates as the exit from the state of nature, anarchic and in perpetual conflict towards the orderly and peaceful reign of the monarch, the Leviathan. But in concrete terms, outside of metaphor, what did this transition mean in archaic societies that knew no formalised institutions? This is the issue discussed in an important essay by Francesco Guala ('Reciprocity: Weak or strong? What punishment experiments do (and do not) demonstrate', Behavioral and Brain Sciences 35, pp. 1-59, 2012). His idea is that in early small-scale societies a kind of 'tacit social contract' developed based on 'weak reciprocity': a partial and modular trust pact that guarantees cooperation and shared punishment in the absence of a centralised coercive authority. This tacit contract rests on a number of assumptions: firstly, on the perception that norms are just and that punishment is not arbitrary, but based on shared values, and secondly, on a reciprocity that, while not immediate, is active in the long term. Within this framework, therefore, peer punishment is not just a threat to be imposed, but a form of moral communication that mediates between individual and collective interests.

In the absence of centralised coercive apparatuses, it is social recognition that legitimises punitive power. This implies that punishments must be perceived as fair in order to avoid the establishment of anti-social and counter-punishment dynamics. In this sense, the idea of 'weak reciprocity' is crucial to understand how cooperation can be maintained in the absence of formal institutions. Weak reciprocity does not imply unlimited trust, but a critical suspension of suspicion. It is a delicate balance that allows cooperation even when punishment is not guaranteed by a higher authority. This type of reciprocity allows the escalation of violence, feuds and vendettas to be contained, making coexistence possible even in the absence of a strong state.

The pitfalls of anti-social punishment and counter-punishment

Yet, not all punishments are functional in maintaining order within the early archaic societies. There is, for example, a form of punishment known as 'anti-social' punishment when, that is, an over-zealous or over-cooperative individual is punished. Where those who do not cooperate are punished, those who cooperate 'too much' risk making everyone else appear less cooperative than they actually are. Raising the bar too high increases the possibility that even cooperative and willing individuals will instead appear opportunistic and thus be punished. Therefore, not infrequently, especially in some cultures, even those who cooperate 'too much' are punished. Such behaviour is naturally a serious problem and a challenge to group cohesion because it discourages cooperation and respect for shared norms. A vicious cycle of punishment and opportunism is generated. Anti-social punishment, in fact, undermines group unity more than it protects it, creating an environment of distrust and hostility that can lead to disintegration.

A second degeneration related to the use of decentralised punishments was highlighted by the studies of Nikos Nikiforakis ('Punishment and counter-punishment in public good games: Can we really govern ourselves?', Journal of Public Economics 92, pp. 91-112, 2008). Replicating a classic experiment based on voluntary contributions to public goods (public good games), Nikiforakis introduced a condition in which, in addition to being able to punish free riders, participants could counter-punish those who had sanctioned them in the previous round. If the possibility of punishing opportunists tends to support high levels of cooperation, what will the possibility of punishing those who punished generate? Nikiforakis clearly shows that about a quarter of every punishment is avenged by a counter-punishment because it is deemed illegitimate. The net effect is a significant reduction in levels of cooperation and a generalised cost for all group members. Most strikingly, counter-punishment does not only occur when the punishment is perceived as unjust or disproportionate. On the contrary, even fair and proportionate sanctions are frequently vindicated. This indicates that it is not only the substance of the punishment that is in question, but the very principle by which a peer can claim the right to punish. In the absence of recognised authority, any act of punishment may be experienced as a personal attack, a challenge to status, and not as a legitimate instrument of social regulation. The dynamic becomes even more fragile when one considers the cultural 'climate' of the group. In contexts marked by low interpersonal trust or the absence of shared norms, the risk of counter-punishment increases exponentially. And so, the very mechanism that should discourage deviant behaviour ends up discouraging those who defend the common good, fuelling a spiral of retaliation that destroys cooperation instead of strengthening it.

Counter-punishment, therefore, represents a real short-circuit of informal justice. It disincentivises punishers, neutralises the corrective role of sanctions and delegitimises any form of social control that is not implemented by a recognised authority. In systemic terms, what emerges from Nikiforakis' experiments is a stark picture: without an institutional framework that guarantees impartiality and protects punishers, large-scale cooperation is not sustainable in the long run.

This empirical evidence has profound implications not only for the analysis of the institutional evolution of archaic societies, but also for our present: in digital, community or associative contexts in which behavioural norms are increasingly informal in nature - think of interactions on social media - the possibility of a punitive reaction may discourage the reporting of misconduct and the defence of common rules. The threat of retaliation, even if only symbolic or reputational, can inhibit collective action, thereby fostering social omertà.

This paradox, so counter-intuitive, opens up a new field of reflection on the conditions necessary to make social cooperation sustainable: it is not enough to have rules, it is also necessary to protect those who enforce them. Without this protection, the system breaks down precisely where it should be most solid: the collective will to defend what is right.

This phenomenon highlights the limits of spontaneous dynamics of social control and may help explain why at a certain point in their cultural and demographic evolution many societies have had to develop formalised institutions to govern conflict.

Justice, power and social control

The theme of social control, punishment and the legitimacy of the exercise of power, central to the anthropological study of social evolution, intersects with a long tradition of philosophical reflection spanning centuries, from Thomas Hobbes to René Girard, via Rousseau, Nietzsche, Foucault and many others. These thinkers have tried to decipher the crux of our communal living: how can we stay together, enjoy the benefits of cooperation despite the ever-looming risk of disruptive conflict? How is moral and legal normativity justified and founded?

Hobbes' is probably the clearest and most radical reflection on the human condition in the absence of strong institutions. According to Hobbes, in the 'state of nature', man is immersed in a 'war of all against all', in which life is 'solitary, poor, brutish, bestial and short'. Without a sovereign authority holding a monopoly on the legitimate use of force, each individual is inclined to punish transgressions according to his own will. For Hobbes, therefore, private punishment must give way to an institutionalised and legitimised power that reduces anarchy and guarantees peace and compliance. The figure of Leviathan, with his absolute power, is the mediator who, by imposing respect for the law, gives meaning and stability to society. The Hobbesian paradigm emphasises fear as the engine of cooperation, metus et spes, fear and hope. Fearing state punishment, individuals refrain from acting according to their own will in the hope that others will do the same.

A century later, Rousseau reformulates the problem from a communitarian perspective. In his Social Contract he argues, in fact, that true political legitimacy arises from the 'general will', that is, from a form of collective agreement that overcomes individual interests and induces individuals to embrace the perspective of the common good. Punishment and law are not, therefore, for Rousseau, merely external impositions, but expressions of a community that recognises itself in a founding pact. An important tension emerges here: coexistence does not rest on fear alone, but on a consensus, sometimes implicit, sometimes ritualised, capable of defining the boundaries of the just and the unjust in a subtle balance that requires trust and mutual recognition.

Nietzsche adds a radical perspective, deconstructing the very notion of morality and focusing on the 'will to power' as the fundamental driving force of human life. In Genealogy of Morals, he shows how moral norms are historically constructed to repress and control vital impulses, and how punishment often reflects the will to dominate rather than a genuine quest for justice. This view challenges the very idea that punishment is merely an instrument of order or fairness. Rather, it suggests that behind every system of punishment lie power dynamics, conflicts of wills and strategies of social control.

Michel Foucault many years, in his beautiful Sorvegliare e punire, analysing the evolution of the devices of power, shifted the focus from state sovereignty to the 'microphysics of power', i.e. to those networks of social relations in which power is exercised in a diffuse, capillary, often invisible manner. According to Foucault, punishment is not just a response to transgression, but a social technology that produces subjects and identities, and shapes behaviour through mechanisms of surveillance and discipline.

And we come to the 'mimetic' theory of René Girard who, on the other hand, interprets punishment as a symbolic and ritual mechanism fundamental to social cohesion. In his The Violence and the Sacred, Girard argues that human societies channel internal violent tensions through the mechanism of the scapegoat: an individual or group onto which to project widespread guilt and hostility, sacrificing the few to restore order to the many. This reading helps us to interpret certain punishment dynamics observed in archaic societies as rituals of mediation and purification, in which punishment takes on a sacred and symbolic dimension that goes beyond the mere act of repression. The sacrificial victim, in Girard's reading, is the condition of possibility of social peace: through it, violence within the group is externalised and, therefore, controlled. Sacrifice becomes a mechanism to contain violence and re-establish the compromised social order. This explains why punishment can be both destructive and bond-creating, because while it affects a member of the community, it also renews and stabilises the social pact.

Beyond Punishment

This philosophical itinerary leads to a central issue: the tension between individual freedom and social necessity. How to live together while preserving freedom without falling into chaos, and how to build order without oppressing human vitality and diversity? Social control and punishment stand at this very crossroads. They are ambivalent instruments, capable of ensuring coexistence but also of restricting freedom. Literature and philosophy offer us many images of this dialectic: from Goethe's Faust, torn between the thirst for knowledge and the constraints of the infernal pact, to Dostoevsky, who in his novels investigates the profound contradictions of the human soul in the face of the fragility of moral institutions.

The evolution that led the first archaic societies towards more formal institutional arrangements not only shows us the concrete traits of an imaginary transition from the 'state of nature' to the rule of law, but also makes us understand how social order is constructed in a dialogic, fragile, never definitive manner. Punishment, from a simple means of repression, thus emerges as a multifaceted phenomenon with social and moral, symbolic and political values.

Punishment, after all, cannot be the ultimate foundation of large-scale cooperation. It is, instead, its shadow. When rules are missing or fragile, punishing becomes as risky as transgressing. Counter-punishment proves this: those who punish to defend the common good risk becoming targets, not guarantors. The social experiment then becomes paradoxical: informal justice, if not supported by a shared sense of legitimacy, can degenerate into vendettas and even feuds. It is not enough to punish misbehaviour: the punishment must be perceived as just. And this requires a common horizon, recognised norms and widespread trust. After all, cooperation is not born of fear, but of a more subtle gesture: that of weak reciprocity, which entrusts the other with a non-contractual, but possible trust. It is in that border zone between law and morality that the destinies of our communities are at stake.