Montreal, February 15, 2005 • No 151




Christian Michel owns the Website Liberalia.




by Christian Michel


          Crime and punishment. They are two of these inseparable love birds of philosophy, like life and death, being and nothingness, liberty and equality, … They sound like these old couples; when you see one of the pair, you know the other is in the room.

          Where there is a society, there are laws, whether a pirate ship, a robber gang, a terrorist cell, and these societies of "outlaws" are the ones which enforce their laws the most ruthlessly. There has never been an innocent, noble and lawless savage. A society without law is as unthinkable as commerce without exchange.


          The remarkable fact however is that in every society you find a core body of identical laws. All human societies, from the most primitive to our modern democracies, prohibit exactly the same actions: murder, rape, assault, theft, breaking promises… For a good reason: the society that would have said it's ok to kill, to rape, to rob, would have disappeared; it would have been torn apart and taken over by better disciplined rivals. These prohibitions have been the rights of free men throughout history, because they are enforceable rights whatever the circumstances and level of development of the people.

          It is possible for every human being to refrain from assaulting, murdering, robbing, raping, and deceiving. The process of civilization since the Enlightenment has been to make universal what was common to each society. Not only rights applicable to people who share your genes, language, beliefs and culture, but to all human beings, including women, slaves and foreigners.

          Around this nucleus of prohibitions present in all societies, there was of course a body of laws specific to each one, laws about land use, trade, marriage, transport, taxes… these were enforced by various bodies and they are incidental – for the most important laws in any society, whether a football club, a church or a state, are the ones that differentiate between members and outsiders, between citizens and foreigners. And what defined a society and maintained its cohesiveness was 1) its relationship with its gods, and 2) its relationship with other peoples, friends or foes.

          Now, where there are laws, there is transgression. But up until fairly recently, say the early Middle Ages, the only transgressions that really mattered were the ones that endangered these relationships with fearsome external powers: irritable gods and warmongering neighbours. They were the only crimes dealt with by the authorities: 1) blasphemy and immorality, which could bring the wrath of the Gods unto the City, irrespective of who is guilty and innocent; 2) treason and cowardice in the face of the enemy, which could lead to invasion, slaughter and collective enslavement.

          Paradoxically, these behaviours are the ones we would hardly qualify as crimes today. We shrug off blasphemy, we easily pardon deserters, we sympathize with coward soldiers, and there is little left to betray in our societies. Modern life is centred on the private sphere. Human rights are individuals' rights.

          So what we do definitely call crimes today and call on the authorities to punish are crimes against individuals, assault, murder, rape, robbery … In all early societies, the Assyrians, Greeks, Romans, Slavs, Jews, Muslims, the handling of these crimes was left entirely to what we'd call the "private sector."

          The procedure was everywhere the same. When a crime had been committed and the author identified, representatives of the victim's family or clan would sit down with representatives of the aggressor's and sort things out. The basis of a settlement was the Lex Talionis. In our Judaeo-Christian culture, we know the Lex Talionis from the Bible, but it was the norm pretty much everywhere. Now the Lex Talionis was never ever "You've gouged out my eye, I'll gouge out yours." Not in Judaism, not anywhere else. What the equation meant was "the value of an eye for the value of an eye," knowing that the hunter's eye is more valuable than the musician's, a young individual's teeth are more valuable than an old man's (who's losing them anyway). That was the norm. And it worked for centuries. The aggressor would compensate by paying the victim – or the victim's heirs in case of murder – money, cattle, land or slaves, according to his means.

          There was a strong incentive for the aggressor's party to reach a settlement. As long as the victim did not declare himself or herself satisfied, the aggressor was ostracized, he would have to live in the wilderness, or among foreigners who barked like dogs, "bar-bar-ians," and without proper accreditation as a diplomat or trader, it was too obvious he was a fugitive, and could be robbed or enslaved with impunity.

          Crime demands a reaction. It is probably an evolutionary process. The living beings that had this drive to strike back after an aggression were probably more likely than the meek and mild to be left in peace to reproduce. What my brief overview of history shows, though, is that the reaction to an aggression may not necessarily be punishment.

Salic Law

          Throughout history, many societies did not see the necessity to add more suffering to the suffering already caused. Not entirely out of mercy, but of practicality. Violent aggressors are mostly young males, and young males are precious resources to societies based on hunting, war and manual labour. Killing or incapacitating them is counterproductive.

          Many of these societies were semi-nomadic and prisons are not very portable. Ancient and medieval cities numbered a few thousand citizens. Victims and aggressors simply couldn't go on feuding or even ignoring each other. The administration of justice therefore was not about punishment; it was about healing the resentment of the victim and victim's clan against the aggressor, it was about restoring peace and allowing the parties to move on. That's why symbolic gestures, such as a public apology, were always demanded. We may deride a public apology, but in a tightly knit community, shaming is a terrible sanction, essential though to restore the victim's honour, especially in the case of rape.

          A major change in the handling of crimes came after the settlement of Germanic invaders in Western Europe. We know their whole concept of law was different from the Romans'. Theirs became the source of Common Law, the Romans', Continental Law. What is of interest for our purpose is how Germanic legislators sought to impose fixed compensation for each aggression, rather than leave the parties determine the amount by negotiation.

          In England, the emblematic example of this new approach to dealing with crime is the Laws of Alfred, King of Wessex, the oldest written English law code. But the inspiration came from a much earlier text, the Franks' Lex Salica, promulgated around 480, which became the norm on much of the Continent for the following 600 years. Every possible misdemeanour and crime from the theft of beehives to cold-blood murder is catalogued with the amount of compensation money to be paid to the victim or the heirs.

          Salic Law offers a fascinating insight into Frankish life. For the theft of a piglet, the thief will return the animal, or another, plus a compensation of 3 gold schillings. Groping a woman's breast, by comparison, costs 30 gold schillings, which is as much as mutilating a man's finger, whilst castrating a man cost 200 gold shillings. And so on.

          These amounts were "wehrgeld," a compensation paid to the victim, not a fine. And that's all there was. No punishment, as we understand it, for free men and women. Even the death penalty for treason could be redeemed in gold.

          However setting in law this compensation amount, rather than negotiating it, creates a problem. What if it's so low the rich man can buy his way out of a murder every year? What if it's too high for the poor man? How does the poor actually prove that he does not have the means to pay a wehrgeld? If he succeeded in being declared insolvent, he would have had to call on his relatives to bail him out. But family solidarity was not automatic. If a relative became restless, his family might disown him.

          This should have acted as a warning. For if the cast-off individual offended, whilst he could no longer count on his relatives to cough up compensation, he would be handed over to his victim's family to do with him as they pleased.

          Conversely, of course, relatives who had washed their hands of an individual would not share in the wehrgeld should he be killed, often the fate of turbulent young men.

          That's the rather unpleasant moral side of Salic Law. Grégoire de Tours, the Bishop whose chronicles are our best source on the period, is indignant at families who rub their hands with glee on the announcement of a relative's murder.

A monopoly business of the state

          I can't mention Salic Law without quoting from Book I, Art. 6, paragraph 42. It deals with allodial lands (i.e. family lands not held in benefice) and it specifies: "concerning salic lands, no inheritance is for a woman but all the land belongs to members of the male sex who are brothers."

          These few words, which sound so limited in their scope, are the clause used by French jurists to deny King Edward III of England the Kingdom of France, which he claimed should go to his mother, sole surviving child of Philippe IV of France, and then to him. I can understand Edward felt cheated. The ensuing war lasted 100 years.

"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."

          But 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.

          Retribution looks 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 ordains."

          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, however beneficial.

          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 orderly society?

The paradox is this

          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.

          Conservatives see 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'.

          Beccaria's immense 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 trustworthy adults?

          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, right?

          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.

A was A and not non-A

          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 Talionis

          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 potential criminals.

          Second, governments' 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.


* Transcript from a talk given at Kant's Cave, Philosophy For All, London, 6 October 2004.