The following is a splendid article by C.S. Lewis that has had a profound impact on my own thinking. I encourage everyone to read and ponder it. Our society has been rejecting the concept of retribution for a long time now, but the Bible is very clear about the importance of retribution in God's world. Lewis offers a much needed critique of society's ideas on the subject.
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In England we have lately had a controversy about Capital Punishment. I do not
know whether a murderer is more likely to repent and make good on the gallows a
few weeks after his trial or in the prison infirmary thirty years later. I do
not know whether the fear of death is an indispensable deterrent. I need not,
for the purpose of this article, decide whether it is a morally permissible
deterrent. Those are questions which I propose to leave untouched. My subject is
not Capital Punishment in particular, but that theory of punishment in general
which the controversy showed to be called the Humanitarian theory. Those who
hold it think that it is mild and merciful. In this I believe that they are
seriously mistaken. I believe that the “Humanity” which it claims is a dangerous
illusion and disguises the possibility of cruelty and injustice without end. I
urge a return to the traditional or Retributive theory not solely, not even
primarily, in the interests of society, but in the interests of the criminal.
According to the Humanitarian theory, to punish a man because he deserves it,
and as much as he deserves, is mere revenge, and, therefore, barbarous and
immoral. It is maintained that the only legitimate motives for punishing are the
desire to deter others by example or to mend the criminal. When this theory is
combined, as frequently happens, with the belief that all crime is more or less
pathological, the idea of mending tails off into that of healing or curing and
punishment becomes therapeutic. Thus it appears at first sight that we have
passed from the harsh and self-righteous notion of giving the wicked their
deserts to the charitable and enlightened one of tending the psychologically
sick. What could be more amiable? One little point which is taken for granted in
this theory needs, however, to be made explicit. The things done to the
criminal, even if they are called cures, will be just as compulsory as they were
in the old days when we called them punishments. If a tendency to steal can be
cured by psychotherapy, the thief will no doubt be forced to undergo the
treatment. Otherwise, society cannot continue.
My contention is that this doctrine, merciful though it appears, really means
that each one of us, from the moment he breaks the law, is deprived of the
rights of a human being.
The reason is this. The Humanitarian theory removes from Punishment the
concept of Desert. But the concept of Desert is the only connecting link between
punishment and justice. It is only as deserved or undeserved that a sentence can
be just or unjust. I do not here contend that the question ‘Is it deserved?’ is
the only one we can reasonably ask about a punishment. We may very properly ask
whether it is likely to deter others and to reform the criminal. But neither of
these two last questions is a question about justice. There is no sense in
talking about a ‘just deterrent’ or a ‘just cure’. We demand of a deterrent not
whether it is just but whether it will deter. We demand of a cure not whether it
is just but whether it succeeds. Thus when we cease to consider what the
criminal deserves and consider only what will cure him or deter others, we have
tacitly removed him from the sphere of justice altogether; instead of a person,
a subject of rights, we now have a mere object, a patient, a ‘case’.
The distinction will become clearer if we ask who will be qualified to
determine sentences when sentences are no longer held to derive their propriety
from the criminal’s deservings. On the old view the problem of fixing the right
sentence was a moral problem. Accordingly, the judge who did it was a person
trained in jurisprudence; trained, that is, in a science which deals with rights
and duties, and which, in origin at least, was consciously accepting guidance
from the Law of Nature, and from Scripture. We must admit that in the actual
penal code of most countries at most times these high originals were so much
modified by local custom, class interests, and utilitarian concessions, as to be
very imperfectly recognizable. But the code was never in principle, and not
always in fact, beyond the control of the conscience of the society. And when
(say, in eighteenth-century England) actual punishments conflicted too violently
with the moral sense of the community, juries refused to convict and reform was
finally brought about. This was possible because, so long as we are thinking in
terms of Desert, the propriety of the penal code, being a moral question, is a
question n which every man has the right to an opinion, not because he follows
this or that profession, but because he is simply a man, a rational animal
enjoying the Natural Light. But all this is changed when we drop the concept of
Desert. The only two questions we may now ask about a punishment are whether it
deters and whether it cures. But these are not questions on which anyone is
entitled to have an opinion simply because he is a man. He is not entitled to an
opinion even if, in addition to being a man, he should happen also to be a
jurist, a Christian, and a moral theologian. For they are not question about
principle but about matter of fact; and for such cuiquam in sua arte credendum.
Only the expert ‘penologist’ (let barbarous things have barbarous names), in the
light of previous experiment, can tell us what is likely to deter: only the
psychotherapist can tell us what is likely to cure. It will be in vain for the
rest of us, speaking simply as men, to say, ‘but this punishment is hideously
unjust, hideously disproportionate to the criminal’s deserts’. The experts with
perfect logic will reply, ‘but nobody was talking about deserts. No one was
talking about punishment in your archaic vindictive sense of the word. Here are
the statistics proving that this treatment deters. Here are the statistics
proving that this other treatment cures. What is your trouble?
The Humanitarian theory, then, removes sentences from the hands of jurists
whom the public conscience is entitled to criticize and places them in the hands
of technical experts whose special sciences do not even employ such categories
as rights or justice. It might be argued that since this transference results
from an abandonment of the old idea of punishment, and, therefore, of all
vindictive motives, it will be safe to leave our criminals in such hands. I will
not pause to comment on the simple-minded view of fallen human nature which such
a belief implies. Let us rather remember that the ‘cure’ of criminals is to be
compulsory; and let us then watch how the theory actually works in the mind or
the Humanitarian. The immediate starting point of this article was a letter I
read in one of our Leftist weeklies. The author was pleading that a certain sin,
now treated by our laws as a crime, should henceforward be treated as a disease.
And he complained that under the present system the offender, after a term in
gaol, was simply let out to return to his original environment where he would
probably relapse. What he complained of was not the shutting up but the letting
out. On his remedial view of punishment the offender should, of course, be
detained until he was cured. And or course the official straighteners are the
only people who can say when that is. The first result of the Humanitarian
theory is, therefore, to substitute for a definite sentence (reflecting to some
extent the community’s moral judgment on the degree of ill-desert involved) an
indefinite sentence terminable only by the word of those experts—and they are
not experts in moral theology nor even in the Law of Nature—who inflict it.
Which of us, if he stood in the dock, would not prefer to be tried by the old
system?
It may be said that by the continued use of the word punishment and the use
of the verb ‘inflict’ I am misrepresenting Humanitarians. They are not
punishing, not inflicting, only healing. But do not let us be deceived by a
name. To be taken without consent from my home and friends; to lose my liberty;
to undergo all those assaults on my personality which modern psychotherapy knows
how to deliver; to be re-made after some pattern of ‘normality’ hatched in a
Vienese laboratory to which I never professed allegiance; to know that this
process will never end until either my captors hav succeeded or I grown wise
enough to cheat them with apparent success—who cares whether this is called
Punishment or not? That it includes most of the elements for which any
punishment is feared—shame, exile, bondage, and years eaten by the locust—is
obvious. Only enormous ill-desert could justify it; but ill-desert is the very
conception which the Humanitarian theory has thrown overboard.
If we turn from the curative to the deterrent justification of punishment we
shall find the new theory even more alarming. When you punish a man in terrorem,
make of him an ‘example’ to others, you are admittedly using him as a means to
an end; someone else’s end. This, in itself, would be a very wicked thing to do.
On the classical theory of Punishment it was of course justified on the ground
that the man deserved it. That was assumed to be established before any question
of ‘making him an example arose’ arose. You then, as the saying is, killed two
birds with one stone; in the process of giving him what he deserved you set an
example to others. But take away desert and the whole morality of the punishment
disappears. Why, in Heaven’s name, am I to be sacrificed to the good of society
in this way?—unless, of course, I deserve it.
But that is not the worst. If the justification of exemplary punishment is
not to be based on dessert but solely on its efficacy as a deterrent, it is not
absolutely necessary that the man we punish should even have committed the
crime. The deterrent effect demands that the public should draw the moral, ‘If
we do such an act we shall suffer like that man.’ The punishment of a man
actually guilty whom the public think innocent will not have the desired effect;
the punishment of a man actually innocent will, provided the public think him
guilty. But every modern State has powers which make it easy to fake a trial.
When a victim is urgently needed for exemplary purposes and a guilty victim
cannot be found, all the purposes of deterrence will be equally served by the
punishment (call it ‘cure’ if you prefer0 of an innocent victim, provided that
the public can be cheated into thinking him will be so wicked. The punishment of
an innocent, that is , an undeserving, man is wicked only if we grant the
traditional view that righteous punishment means deserved punishment. Once we
have abandoned that criterion, all punishments have to be justified, if at all,
on other grounds that have nothing to do with desert. Where the punishment of
the innocent can be justified on those grounds (and it could in some cases be
justified as a deterrent) it will be no less moral than any other punishment.
Any distaste for it on the part of the Humanitarian will be merely a hang-over
from the Retributive theory.
It is, indeed, important to notice that my argument so far supposes no evil
intentions on the part of the Humanitarian and considers only what is involved
in the logic of his position. My contention is that good men (not bad men)
consistently acting upon that position would act as cruelly and unjustly as the
greatest tyrants. They might in some respects act even worse. Of all tyrannies a
tyranny sincerely exercised for the good of its victims may be the most
oppressive. It may be better to live under robber barons than under omnipotent
moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity
may at some point be satiated; but those who torment us for our own good will
torment us without end for they do so with the approval of their own conscience.
They may be more likely to go to Heaven yet at the same time likelier to make a
Hell of earth. Their very kindness stings with intolerable insult. To be ‘cured’
against one’s will and cured of states which we may not regard as disease is to
be put on a level with those who have not yet reached the age of reason or those
who never will; to be classed with infants, imbeciles, and domestic animals. But
to be punished, however severely, because we have deserved it, because we ‘ought
to have known better’, is to be treated as a human person made in God’s image.
In reality, however, we must face the possibility of bad rulers armed with a
Humanitarian theory of punishment. A great many popular blue prints for a
Christian society are merely what the Elizabethans called ‘eggs in moonshine’
because they assume that the whole society is Christian or that the Christians
are in control. This is not so in most contemporary States. Even if it were, our
rulers would still be fallen men, and, therefore neither ver wise nor very good.
As it is, they will usually be unbelievers. And since wisdom and virtue are not
the only or the commonest qualifications for a place in the government, they
will not often be even the best unbelievers.
The practical problem of Christian politics is not that of drawing up schemes
for a Christian society, but that of living as innocently as we can with
unbelieving fellow-subjects under unbelieving rulers who will never be perfectly
wise and good and who will sometimes be very wicked and very foolish. And when
they are wicked the Humanitarian theory of punishment will put in their hands a
finer instrument of tyranny than wickedness ever had before. For if crime and
disease are to be regarded as the same thing, it follows that any state of mind
which our masters choose to call ‘disease’ can be treated as a crime; and
compulsorily cured. It will be vain to plead that states of mind which displease
government need not always involve moral turpitude and do not therefore always
deserve forfeiture of liberty. For our masters will not be using the concepts of
Desert and Punishment but those of disease and cure. We know that one school of
psychology already regards religion as a neurosis. When this particular neurosis
becomes inconvenient to government, what is to hinder government from proceeding
to ‘cure’ it? Such ‘cure’ will, of course, be compulsory; but under the
Humanitarian theory it will not be called by the shocking name of Persecution.
No one will blame us for being Christians, no one will hate us, no one will
revile us. The new Nero will approach us with the silky manners of a doctor, and
though all will be in fact as compulsory as the tunica molesta or Smithfield or
Tyburn, all will go on within the unemotional therapeutic sphere where words
like ‘right’ and ‘wrong’ or ‘freedom’ and ‘slavery’ are never heard. And thus
when the command is given, every prominent Christian in the land may vanish
overnight into Institutions for the Treatment of the Ideologically Unsound, and
it will rest with the expert gaolers to say when (if ever) they are to
re-emerge. But it will not be persecution. Even if the treatment is painful,
even if it is life-long, even if it is fatal, that will be only a regrettable
accident; the intention was purely therapeutic. In ordinary medicine there were
painful operations and fatal operations; so in this. But because they are
‘treatment’, not punishment, they can be criticized only by fellow-experts and
on technical grounds, never by men as men and on grounds of justice.
This is why I think it essential to oppose the Humanitarian theory of
punishment, root and branch, wherever we encounter it. It carries on its front a
semblance of mercy which is wholly false. That is how it can deceive men of good
will. The error began, with Shelley’s statement that the distinction between
mercy and justice was invented in the courts of tyrants. It sounds noble, and
was indeed the error of a noble mind. But the distinction is essential. The
older view was that mercy ‘tempered’ justice, or (on the highest level of all)
that mercy and justice had met and kissed. The essential act of mercy was to
pardon; and pardon in its very essence involves the recognition of guilt and
ill-desert in the recipient. If crime is only a disease which needs cure, not
sin which deserves punishment, it cannot be pardoned. How can you pardon a man
for having a gumboil or a club foot? But the Humanitarian theory wants simply to
abolish Justice and substitute Mercy for it. This means that you start being
‘kind’ to people before you have considered their rights, and then force upon
them supposed kindnesses which no on but you will recognize as kindnesses and
which the recipient will feel as abominable cruelties. You have overshot the
mark. Mercy, detached from Justice, grows unmerciful. That is the important
paradox. As there are plants which will flourish only in mountain soil, so it
appears that Mercy will flower only when it grows in the crannies of the rock of
Justice; transplanted to the marshlands of mere Humanitarianism, it becomes a
man-eating weed, all the more dangerous because it is still called by the same
name as the mountain variety. But we ought long ago to have learned our lesson.
We should be too old now to be deceived by those humane pretensions which have
served to usher in every cruelty of the revolutionary period in which we live.
These are the ‘precious balms’ which will ‘break our heads’.
There is a fine sentence in Bunyan: ‘It came burning hot into my mind,
whatever he said, and however he flattered, when he got me home to his House, he
would sell me for a Slave.’ There is a fine couplet, too, in John Ball:
‘Be ware or ye be woe; Knoweth your frend from your foe.’
