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.
 |
| C.S. Lewis |
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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