back to our subject. If the criminal justice systems I
sketchily reviewed sound completely alien to our present
understanding of punishment, it's because they are. They are
grounded not on criminal law and repression as we understand
it, but on the principles of tort law and compensation.
As Michel Foucault showed
in his seminal book, Discipline And Punish, the big
change took place in the 12th Century. Punishment became a
monopoly business of the state. Kings realised that the
dispensation of justice was a way to consolidate their
power. They declared all subjects belonged to the king and
an offence to one of them was lese-majesty. Compensations
therefore were now owed to the Crown. But sovereigns are not
interested in collecting fines. They can tax all the money
they want anyway. Sovereigns are after power.
The Greek god Apollo had
sent Poine, one of the Furies, to devastate Argos where his
son had been killed. Poine the vengeful Fury gave her name
and spirit to the state penal system.
The very purpose of
justice changed. The restoration of peace and order was no
longer sought through satisfactory arrangements between the
parties, but through terrifying the people into obedience.
Justice was no longer rendered in the victim's name, but in
the name of the King. Men, women and children were routinely
called to witness the most horrific tortures as a reminder
of who was their master. By the end of the Middle Ages,
justice wholly belonged to the state.
If you ask, most
individuals will tell you they don't like being subjected to
someone else's power. Individuals who seek power over
others, therefore, have to hide their avidity. They cannot
simply announce "I want to be your ruler because I enjoy
bossing people about and I get a kick out of punishing
them." That won't do. Rulers have to find rationalisations
for their exercise of power. It is the function of ideology.
Retribution and deterrence
Present-day ideology puts forward two justifications for
punishment: Retribution and deterrence.
backward at an action and considering punishment, it answers
the question: "for what?"; for what crime? There must
be a cause for punishment, and the cause is contained in the
crime itself. Immanuel Kant is the foremost philosopher of
retribution. He was only concerned with the offender and the
just punishment of his crime, not with social consequences.
Retribution is typically an individualistic argument.
The other reason to
punish is deterrence. Rather than looking backwards at the
crime committed, deterrence looks forward. It answers the
question: "what for?"; what is the purpose of
punishment? There is nothing we can do about the past, but
maybe we can prevent a similar crime from being committed
again. Punishment, we hope, will deter the offender from
re-offending or would-be offenders from imitating him.
Deterrence is not concerned with the offender, but with
protecting society. It is typically a collectivist argument.
In judicial practice,
both reasons put forward to punish are conflated. When
inflicting punishment, we simultaneously sanction a crime
and seek to prevent its recurrence. But two flawed arguments
do not make a valid one. And both retribution and deterrence
simply don't stand the tests of morality and practicality.
How's that? What's wrong
with retribution, for instance? Kant argues a criminal
deserves his punishment. Isn't that obvious? Surely, there
is no need to look for any other reason. Punishment, in the
words of Kant, is a "categorical imperative."
One of my favourite
philosophers, Simone Weil, who died so young and tragically,
develops the Kantian argument. Surprisingly, she ranks
punishment among the "needs of the soul", alongside liberty,
property, truth, risk and honour. "By committing a crime,"
she writes, "a man places himself, of his own accord,
outside the chain of eternal obligations, which bind every
human being to every other one. Punishment alone can weld
him back again. Just as the only way of showing respect for
somebody suffering from hunger is to give him something to
eat, so the only way of showing respect for somebody who has
placed himself outside the law is to reinstate him inside
the law by subjecting him to the punishment the law
Pretty lofty stuff. Many
convicts, I'm sure, would settle for a lesser show of
respect. Simone Weil converted to Catholicism. I wonder how
she reconciled Kant's categorical imperative to punish with
Christ's teaching to pardon offences? Kant, of course,
believed forgiveness was immoral and strongly opposed any
law of amnesty.
I agree with Simone Weil
that our sense of justice demands a response to crime. But
what response? What do you do to a shoplifter? Reprimand
her? Cane her? Lock her up for two days, or two years?
Obviously, if one of the above is the just retribution, the
others cannot be; but which is it? As Godwin wrote "the
iniquity of punishment in general is that delinquency and
punishment are, in all cases, incommensurable". Well, if it
is impossible to find a punishment that fits the crime, does
it not follow that all punishments are unjust?
The other rationale given
for punishment is deterrence. Deterrence of course is
supposed to scare the offender into not re-offending. But it
is also meant to send the message to would-be imitators.
The purpose of deterrence
is encapsulated in this dialogue. To the horse thief who was
protesting a harsh condemnation to hang just for having
stolen a horse, the judge retorted: "I am not condemning you
for having stolen a horse. I am condemning you so that
nobody in this community ever steals a horse again."
What the judge was doing
was using the thief as a means of theft prevention. Kant, of
course, would object that human beings ought never to be
reduced to mere instruments used in furthering an objective,
But, wait, the argument
gets uglier. In the logic of deterrence, the chain between
the crime and the criminal is irrelevant. You can achieve
deterrence by sentencing an innocent. That would send the
message, wouldn't it? Of course, the public should ignore
that the authorities are picking individuals at random and
charging them with the crimes of the day, but governments
are apt at keeping foul plays covered up. And should we be concerned with the
suffering of a few innocents if it makes everyone believe
the police is über-efficient and if it leads to a secure and
Another means to security and order is simply to remove
offenders from society. The Bible commands: "You must purge
the evil from among you." The so enlightened Encyclopaedist
Diderot rather than purgatives prescribes surgery:
"Criminals should not be punished, but extirpated." The age
was witnessing the great colonial expansion of England and
France, and deportation was seen as the humane way of
implementing Diderot's final solution to the crime problem.
Today, we lock them up. The paradox is this. Many of the
prisoners on long sentences would not re-offend if they were
let out, whilst 80% of those on a short visit re-offend
within six months. For society's sake, we should let loose
the cheated wife who poisoned her husband, the parricide (by
definition), but we should keep shoplifters and burglars
behind bars for life. It's a choice.
Deterrence works with
risk-averse individuals. There would be many more of us
parking on the sidewalks if it were not for the fear of
fines. But there are still illegally parked vehicles on
every street. There are still people who believe they can
get away with murder. And of course there are those who are
so blinded by passion or fanaticism that they will happily
sacrifice their life to destroy that of a cheating lover or
of an infidel.
Another alleged reason to
punish is to negate the advantage his offence is giving the
offender. The idea here is that all laws are designed to
further the "common good." Transgressors are free riders.
They take advantage of the laws that suit them and break
those that don't. Punishment brings them back to the start
line for a fairer run. This procedure is defensible in
specialised activities, like sport, where every participant
is indeed pursuing the same limited and precise goal. Free
kicks and penalties annul the advantage of cheating. But not
in society. Is the child molester, the rapist of old women,
gaining an advantage over me? If we followed that line,
property crimes should be dealt with more severely than
violent crimes. For instance, the embezzler of millions from
a multinational company should be punished more severely
than the criminal who shot dead a shopkeeper for 50 pounds.
The embezzler could have looked forward to a life in the
sun, but the murderer obviously was not to gain any great
advantage over the rest of us with his 50 quid.
There is also this idea
that punishment is educational. It teaches people to reprove
certain behaviours. And, true enough, harsher penalties
inflicted to rapists, child molesters, polluters of the
environment, have changed our collective perception of these
crimes in the last decades. But that's because people
condemned these behaviours already, even if not enough. When
the reprobation is not there already, punishment has the
reverse effect, it creates martyrs.
Marquis Cesare Bonesana de Beccaria
A social reformer, who had the deepest influence on
criminology, is the Marquis Cesare Bonesana de Beccaria. A
perfect representative of the 18th century Enlightenment,
Beccaria changed the conversation: "Forget guilt, vengeance,
punishment, and other pre-scientific obscurantist notions,"
he preached. "Remember Socrates: No man commits evil
intentionally. Criminals are not evil, they are sick. They
don't require punishment, but medical treatment." This was
music to the ears of the enlightened brigade. For we have
witnessed since the Enlightenment a rift between left
liberals and conservatives, and their opposition hinges on
the issue of responsibility.
internal causation in how we fare in life. If you're
unemployed, blame your own laziness; if you're successful,
you're reaping the rewards of your good judgment and hard
work; criminals are unrestrained perverts.
Left liberals, on the
contrary, point to external causation determining our lives.
If you're unemployed, blame exploitative social structures;
personal success is the undeserved consequence of a
privileged upbringing, nepotism and luck; whilst criminality
is ascribed to squalor and unemployment.
Beccaria played to both
sides. Criminality as illness appealed to left liberal
nannies, always keen to exculpate offenders and embrace them
in their web of social services. Whilst the Beccarian
approach reassured conservatives that there was nothing
wrong with social structures; and they could happily go on
punishing people without appearing nasty if they called
repression 'psychiatric treatment'.
popularity in the 19th and early 20th Century has faded.
Criminality is definitely not a medical condition. Socialist
countries anyway gave psychiatric treatments of deviants a
bad reputation. So left liberals have only deprivation to
account for crime. What the argument fails to explain,
though, is why a vast majority of children brought up in
squalid conditions turn out to be peaceful, honest and
It is also a very
one-sided argument. If you can be excused for stealing a car
because it's so frustrating not having one when all your
mates are on wheels, is it not equally frustrating to be the
scion of a rich family, accustomed all your life to luxury,
and be faced with bankruptcy, when all your friends will
continue jet-setting? So is the rich man not to be cleared
of corrupting the minister who will bail him out, or of
cooking the company books?
Let me deal the
collectivist argument another blow. Imagine a spaceship with
a small contingent of Earth women and men on their way to
settle on a distant planet. There is this blond blue-eyed
Viking on board, Adolf, who discovers that a fellow
passenger, Moses, is Jewish. Adolf believes a Jewish element
will pollute the new colony, and he pushes Moses past the
airlock into galactic space.
A collectivist ideology
of punishment leaves us with the only option to mourn dear
old Moses. Granted, Adolf has strong views on the Jewish
question, but he is otherwise quite sociable, and there is
no other Jew on board, so he is not a threat to the rest of
the crew. His action has not given him any advantage. There
is no need to deter or to educate anyone in this small
community of gentle space travellers. So Adolf is scot-free,
If you're shaking your
head, it's probably that you are not buying the collectivist
argument. Fair enough. So let's put Kant's thinking cap back
on. We accept intuitively that crime cries out for
retribution. I contend we can construct an unimpeachable
philosophical case for retribution.
We know a thing cannot be itself and not itself. Since
before Aristotle, A was A and not non-A. In other words, we
cannot accept somebody's claim that she was in Rome and
London at the same moment, that she is a vegetarian and has
bacon for breakfast.
So let's take any
criminal, Moriarty. Holmes confounds him, arrests him,
manacles him. Can Moriarty complain of unjust treatment?
Either he maintains that violence against a human being is
illegitimate, but he has practiced violence himself. Or, he
does not condemn violence, and therefore cannot object to
Holmes exercising violence against him.
Moriarty could pretend
that he has the right to be violent, but not others.
He would then have to demonstrate why he is exempt
from the universality of the non-aggression principle, and
why the exemption does not apply to Holmes.
Could Moriarty plead that
at the moment of his crimes, he had no objection to
violence, but he has since seen the light and now upholds
non-violence? Holmes could still beat him up, and when
Moriarty recovers his senses and hollers for redress, Holmes
could profess to have now renounced the violence he was
practicing moments earlier.
I could develop and
refine the argument. We have enough already here, I think,
to justify retribution for an aggression committed against a
victim. What we have not legitimized is punishment for
victimless behaviour – that is punishments meted out by
states for imaginary crimes they keep inventing. If I employ
someone from Poland, I am an honest businessman; if the
employee comes from 10 kms further East, I am in deep
yoghurt with Immigration. There are many countries where you
get flogged for drinking a glass of wine, but you can
happily smoke hashish; and you have other countries where it
is medically recommended that you drink a glass of wine a
day and you get locked up if you smoke hashish. And so on.
Mere arbitrary and cruel demonstrations of political power.
Obey, if you risk getting caught. But fear is your only
excuse for submitting.
Now, if Moriarty, the
initiator of violence, cannot logically object to violence
being used against him, any retributive violence won't do.
Having slapped Peter, Paul cannot object being forced to
apologize to, or compensate Peter in some way, but if Peter
pulls out a gun, Paul can still maintain with coherence his
principled objection to the death penalty. Slapping and
killing are simply not of the same order.
Full circle back to the Lex
So we've come full circle back to the Lex Talionis: How to
find 200 gr. of punishment that will balance 200 gr. of
crime on the scales of justice?
First, it is the victim
who defines the crime. It is a matter of principle and
essential to our own juridical protection. When authorities
are allowed to invent victimless crimes, we all become
temptation has always been to force their own assessment of
values on people, and it includes victims and offenders.
We've examined Salic Law: 45 gold schillings for cutting a
woman's hair without her consent, 100 schillings for rape.
Why not 10 and 500? Or 50 each? Does it not remind us of
other ideological experimentations on human beings?
"Comrades, in the next five year plan, the price for
potatoes will be 3 roubles a kilo and the punishment for
burglary five years in labour camp." – "No comrade, 10
roubles a kilo and 1 year in prison."
Pick a number. The
economy melts down when it takes no heed of human and
material reality, when people are not allowed to set their
own transaction values. The administration of justice grinds
down human beings for exactly the same reason.
What is the value of my
car? Even at the time I owned one, a car was of no
sentimental value to me, and of little practical use. But
other people are distressed by the theft of their car. It
seriously disrupts their life and jobs. Likewise, of course,
an identical prison sentence affects differently two
individuals. Some find prison so hospitable they book a
visit every year. Others commit suicide in jail. Imprisoning
someone who has family responsibilities means that an
innocent spouse and children suffer. One size punishment
doesn't fit all.
Since the rise of the
central state, the justice administration has confiscated
the grief, the pain, the resentment, the fear, the anger and
the personal circumstances of both offenders and victims. It
is morally right, and therefore efficient, to give justice
back to the parties. Let them negotiate, with their
advisors' assistance, what value the offence is worth to
each of them, and what it is the offender can do in his
situation to satisfy the victim he has rendered her justice.
A movement is already at
work implementing a return to a parties-centred justice
process. It is known under different names, "restorative
justice," "victims and offenders reconciliation program,"
"community justice," etc., but the purpose is the same: to
hand the control of their conflicts back to victims and
offenders. Restorative justice advocates, unfortunately,
seek to work within the state judiciary, as if to add a
humane accessory to a crushing bureaucracy, whilst it is the
very concept of a state justice that needs challenging.
Crime protection does not
come from deterrence, but from a deep sense of community. "I
cannot do this to my mates." "What will my family, what will
my neighbours and colleagues, think of me." Modern
democracies have methodically destroyed communities that
supported individuals: ethnic groups, churches, trade
unions, associations, friendly societies, families… These
organizations competed with the state for the education,
welfare and moral guidance of their members, and the state,
of course, requires for its existence a monopoly over the
control of our individual behaviours.
But it's not the state's
function to give spiritual and moral guidance. The state
cannot inspire, all it can do is "discipline and punish."
This is the way to treat slaves and dogs. I trust you will
agree we can expect better.