NOTICE: The following
article is written by the author itself and not by me, I am not trying to
violate their copyright. I will give some information on them. One of my
favourite writers, C.S. Lewis passed away on this date, 22 November 1963. I
will post one of his articles to remember the 50th anniversary of his
death.
ARTICLE
TITLE:
The Humanitarian Theory of Punishment
DATE: 1949
AUTHOR: C.S. Lewis
AUTHOR
INFORMATION: Clive
Staples Lewis (29 November 1898 – 22 November 1963), commonly called
C. S. Lewis and known to his friends and family as "Jack", was a
novelist, poet, academic, medievalist, literary critic, essayist, lay
theologian, and Christian apologist. Born in Belfast, Ireland, he held academic
positions at both Oxford University (Magdalen College), 1925–1954, and
Cambridge University (Magdalene College), 1954–1963. He is best known both for
his fictional work, especially The Screwtape Letters, The Chronicles of Narnia,
and The Space Trilogy, and for his non-fiction Christian apologetics, such as
Mere Christianity, Miracles, and The Problem of Pain.
Lewis and fellow novelist J. R. R. Tolkien
were close friends. Both authors served on the English faculty at Oxford
University, and both were active in the informal Oxford literary group known as
the "Inklings". According to his memoir Surprised by Joy, Lewis had
been baptized in the Church of Ireland (part of the Anglican Communion) at
birth, but fell away from his faith during his adolescence. Owing to the
influence of Tolkien and other friends, at the age of 32 Lewis returned to the
Anglican Communion, becoming "a very ordinary layman of the Church of
England". His faith had a profound effect on his work, and his wartime
radio broadcasts on the subject of Christianity brought him wide acclaim.
In 1956, he married the American writer Joy
Davidman, 17 years his junior, who died four years later of cancer at the age
of 45. Lewis died three years after his wife, from renal failure, one week
before his 65th birthday. Media coverage of his death was minimal; he died on
22 November 1963—the same day that U.S. President John F. Kennedy was
assassinated, and the same day another famous author, Aldous Huxley, died. In
2013, on the 50th anniversary of his death, Lewis will be honoured with a
memorial in Poets' Corner, Westminster Abbey.
Lewis's works have been translated into more
than 30 languages and have sold millions of copies. The books that make up The
Chronicles of Narnia have sold the most and have been popularized on stage, TV,
radio, and cinema.
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C. S. Lewis
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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 terror em, 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 war or ye be wo; Knoweth your frend from your
foo.’
“Courage is not simply one of the virtues, but the form of every virtue at the testing point.”-C. S. Lewis
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