4THE HUMANITARIAN THEORY OF PUNISHMENTIN ENGLAND WE HAVE LATELY HAD ACONTROVERSY ABOUT Capital Punishment. Ido not know
4
THE HUMANITARIAN
THEORY OF PUNISHMENT
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 on 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 questions about principle but about matter of fact; and for such cuiquam in sua arte credendurn.1
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 terroreni,-
began, perhaps, 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 one 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'.3
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.'{
Be war or ye be wo; Knoweth your frend from your foo.5
ON PUNISHMENT: A REPLY TO CRITICISM
by
C. S. Lewis
I HAVE TO THANK THE EDITOR FOR THIS OPPORTUNITY OF replying to two most interesting critiques of my article on the Humanitarian Theory of Punishment, one by Professor J. J. C. Smart"
and the other by Drs N. Morris and D. Buckle.
Those rules are to be accepted which are useful to the community, utility being (I think) what will make that community 'happier'.*
Does this mean that the happiness of the community is to be pursued at all costs, or only to be pursued in so far as this pursuit is compatible with certain degrees of mercy, human dignity, and veracity? (I must not add `of justice' because, in Professor Smart's view, the rules themselves cannot be either just or unjust). If we take the second alternative, if we admit that there are some things, or even any one thing, which a community ought not to do however much it will increase its happiness, then we have really given up the position. We are now judging the useful by some other standard (whether we call it Conscience, or Practical Reason, or Law of Nature or Personal Preference). Suppose then, we take the first alternative: the happiness of the community is to be pursued at all costs. In certain circumstances the costs may be very heavy. In war, in some not improbable future when the world's food runs short, during some threat of revolution, very shocking things may be likely to make the community happier or to preserve its existence. We cannot be sure that frame-ups, witch-hunts, even cannibalism, would never be in this sense `useful'. Let us suppose (what, I am very sure, is false) that Professor Smart is prepared to go the whole hog. It then remains to ask him why he does so or why he thinks we should agree with him. He of all men cannot reply that salus populi suprema lexs
preserved' is not the Law of Nature but only one clause in that Law. What then could a pursuit of the community's happiness at all costs be based on if not on Professor Smart's `personal preference'? The real difference between him and me would then be simply that we have different desires. Or, rather, that I have one more desire than he. For, like him, I desire the continuance and happiness of my country (and species),*
(2) I agree about criminal children (see Morris and Buckle, p. 234). There has been progress in this matter. Very primitive societies will `try' and `punish' an axe or a spear in cases of unintentional homicide. Somewhere (I think, in the Empire) during the later Middle Ages a pig was solemnly tried for murder. Till quite recently, we may (I don't know) have tried children as if they had adult responsibility. These things have rightly been abolished. But the whole question is whether you want the process to be carried further: whether you want us all to be simultaneously deprived of the protection and released from the responsibilities of adult citizenship and reduced to the level of the child, the pig, and the axe. I don't want this because I don't think there are in fact any people who stand to the rest of us as adult to child, man to beast, or animate to inanimate.*
(p. 233). Yes; if the whole tradition of natural justice which the law has for so long incorporated, will survive the completion of that change in our attitude to punishment which we are now discussing. But that for me is precisely the question. Our Courts, I agree, `have traditionally represented the common man and the common man's view of morality' (p. 233). It is true that we must extend the term `common man' to cover Locke, Grotius, Hooker, Poynet, Aquinas, Justinian, the Stoics, and Aristotle, but I have no objection to that; in one most important, and to me glorious, sense they were all common men.*
I write as the son of one lawyer and the lifelong friend of another,°
ceived, we are all at this moment helping to decide whether humanity shall retain all that has hitherto made humanity worth preserving, or whether we must slide down into the subhumanity imagined by Mr Aldous Huxley and George Orwell and partially realised in Hitler's Germany. For the extermination of the Jews really would have been `useful' if the racial theories had been correct; there is no foretelling what may come to seem, or even to be, `useful', and `necessity' was always `the tyrant's plea'.10