THE PENAL QUESTION FROM THE MORAL POINT OF VIEW
Having accepted the unconditional principle of morality as the standard
of all human relations we shall find no real inner difficulty in
applying it to international morality, _i.e._ to the question as to
how we ought to regard foreigners as such; neither the characteristics
of this or that people nor the general fact of belonging to a
foreign nation contain any moral limitation in virtue of which we
might _a priori_ regard a given foreigner as a worse man than any
of our compatriots. There is therefore no moral ground for national
inequality. The general demand of altruism--to love one’s neighbour
as oneself and another nation as one’s own--remains here in full
force. The fact of _international hostility_ must be unconditionally
condemned as directly opposed to the absolute norm and as essentially
anti-Christian.[141] The normal or the right attitude to foreign
nations is directly demanded by the unconditional principle of
morality. Its application involves great practical difficulties, both
historical and psychological, but it does not give rise to any inner
moral difficulties, complications, or questions. Such difficulties
arise when instead of the morally indifferent fact of nationality we
have to deal with a fact which undoubtedly belongs to the moral sphere,
namely, that of criminality.
The connotation and the denotation of this idea vary with regard to
detail according to time and place. Much that was formerly regarded as
criminal is no longer recognised as such. The very fact of criminality
which had once extended to the criminal’s family and relatives is, at
a certain stage of spiritual development, recognised as exclusively a
personal characteristic. But these historical changes do not affect the
nature of the case. Apart from the _supposed_ criminals of different
kinds, in all human societies there have always been and to the end of
the world there will be real criminals, _i.e._ men with an evil will
sufficiently strong and decided to be directly realised in practice
to the detriment of their neighbours and the danger of the community
as a whole. How then are we to regard these avowedly _bad_ people? It
is clear that from the point of view of the absolute moral principle
the demands of altruism which received their final expression in the
Christian commandments of love must extend to these men too. But the
question, in the first place, is how we are to combine love for the
evil-doer with love for his victim, and secondly, what should be the
_practical_ expression of our love for the evil-doer or criminal so
long as he is in this obviously abnormal moral condition. No one can
avoid this moral question. Even if a person never came into personal
contact with unquestionable crimes and criminals, as a member of
society he must know that there exists a very complex administrative,
legal and penal organisation intended for dealing with crime. He
must, therefore, in any case, determine his moral relation to these
institutions--and this in the last resort depends on his attitude to
crime and the criminal. What _ought_ this attitude to be from the
purely moral point of view? In dealing with this important question,
I will begin with the simplest case, which lies at the basis of all
further complications.
I
When one man is doing injury to another, _e.g._ when the stronger
man is beating the weaker, a person witnessing the injury--if he
takes the moral point of view--experiences a _double_ feeling and an
impulse to a twofold course of action. In the first place, he wants to
_defend the victim_, and in the second, _to bring the injurer to his
senses_. Both impulses have the same moral source--the recognition of
another person’s life and the respect for another person’s dignity,
psychologically based upon the feeling of pity or compassion. We
experience direct pity for the being who undergoes physical and
mental suffering; the mental suffering, of which he is more or less
clearly conscious, consists in the fact that human dignity has been
violated in his person. Such external violation of human dignity in the
injured is inevitably connected with the inward degradation of that
dignity in the injurer; in both cases it demands to be re-established.
Psychologically, our feeling for the victim is very different from
our feeling for the aggressor--the first is pure pity, and in the
second anger and moral indignation predominate. But to be moral, that
indignation must not pass into injustice towards the wrong-doer, into
denying his human right, although that right materially differs from
the right of the victim. The latter has a right to our defence, the
former has a right to be brought to reason by us. The moral basis of
the two relations is, however, in the case of rational beings, one and
the same--the absolute worth or dignity of human personality, which we
recognise in others as well as in ourselves. The twofold violation of
that dignity taking place in criminal assault--violation passive in the
injured and active in the injurer--calls forth a moral reaction in us,
which is essentially the same in both cases, in spite of the fact that
its psychological expression is different and even opposed. Of course,
when the injury directly or indirectly causes physical pain to the
victim, the latter excites a more strong and immediate feeling of pity;
but speaking generally, the injurer ought to rouse even greater pity,
for he inwardly loses his moral dignity. However this may be, the moral
principle demands that we should recognise the right of both to our
help in re-establishing the violated norm both in the one and in the
other.
This deduction from the moral principle, demanding that in the
case of crime, _i.e._ of injury to man by man, we should take up
a moral attitude to both parties, is far from being universally
recognised. It must be defended against two kinds of adversaries.
Some--and they are in the majority--recognise only the right of the
victim or of the injured person (or community) to be defended and
avenged. The wrong-doer or the criminal, once his guilt has been
proved, they regard, at any rate in practice, as a rightless, passive
object of retribution, _i.e._ of more or less complete crushing or
extermination--‘hanging is too good for him,’ ‘to the dog a dog’s
death,’ is the popular sincere expression of this point of view. Its
direct opposition to the moral principle and its incompatibility with
any degree of developed human feeling[142] explains and psychologically
excuses the extreme opposite view, which is beginning to gain ground
in our time. This view recognises the right of the injurer to be
brought to reason by means of verbal persuasion only, and admits of no
compulsion with regard to him--which practically amounts to depriving
the injured person or society of their right to defence. Their safety
is made to depend upon the _success_ of persuasion, _i.e._ on something
quite problematical, which no one can control or be held responsible
for. Let us carefully consider the two opposed doctrines, which, for
the sake of brevity, I will describe respectively as the doctrine of
_retribution_ and the doctrine of _verbal persuasion_.
II
The doctrine of retribution admits of a very real explanation and of
fictitious proof, and when dealing with it, it is very important not to
mix the one with the other. When an animal is attacked by another about
to devour it, the instinct of self-preservation urges it to defend
itself with its claws and teeth, or, if these are not strong enough, to
seek safety in flight. No one would look for moral motives in this case
any more than in the physical self-defence of man, whose natural means
of defence are replaced or supplemented by artificial weapons. Even
the savage, however, does not as a rule live by himself, but belongs
to some social group--a family, a clan, a band. Therefore when he
encounters an enemy the affair does not end with their single combat.
Murder or any other injury inflicted upon a member of a group is felt
by the group as a whole and rouses in it a feeling of resentment. In so
far as that feeling includes pity for the victim, we must recognise the
presence of a moral element in it. But no doubt the predominant part
is played by the instinct of collective self-preservation, like among
bees and other social animals. In defending one of its members, the
clan or the family is defending itself; in avenging one of its members,
it is avenging itself. But for the same reasons the aggressor too is
defended by his clan or family. Single combats thus develop into wars
between entire communities. The Homeric poems have preserved for us
this stage of social relations by immortalising the Trojan war, which
arose out of a private injury inflicted by Paris upon Menelaus. The
history of the Arabs before Mohammed is full of such wars. The ideas
of crime and punishment do not really exist at this stage at all; the
injurer is an enemy to be revenged upon, not a criminal to be punished.
The place which later on is occupied by legal justice is here entirely
taken up by the universally recognised and absolutely binding custom of
blood-vengeance. This custom applies, of course, to injuries between
members of different clans or tribes. But, speaking generally, other
kind of injuries are not found at this stage of the communal life. The
cohesion of the social group bound together by kinship is too strong,
and the prestige of the patriarchal power too great, for the individual
to rebel against it. It is almost as impossible as the conflict of
an individual bee with the rest of the hive. No doubt even at the
primitive stage man retained his power of arbitrary choice and did in
some few instances manifest it. But these exceptional cases were dealt
with by exceptional measures on the part of the patriarchal authority,
and did not call forth any general regulations. Things were changed
with the transition to the order of the state. When many clans and
tribes for any reason chose or were compelled to unite in one way or
another under one common leader with a more or less definite power they
lost their independence and forfeited the right of blood-vengeance.
It is curious that philosophers and jurists, from ancient times and
almost down to our own day, made _a priori_ theories with regard to the
origin of the state, as though all actual states had arisen in some
remote prehistoric times. This is due, of course, to the extremely
imperfect state of historical science. But what may be permissible to
Hobbes and even to Rousseau cannot be allowed on the part of modern
thinkers. The kinship-group stage through which all nations have passed
in one way or another is not anything enigmatic: the clan is a direct
consequence of the natural blood-tie. The question is, then, as to the
transition from the stage of kinship to that of the state--and this can
be an object of _historical observation_. It is sufficient to mention
the transformation which took place in quite historical times of
the disconnected tribes and clans of Northern Arabia into a powerful
Mohammedan state. Its theocratic character is not an exception:
such were to a greater or lesser extent all the important states of
antiquity. Consider the way in which a state comes to be formed. A
leader, military or religious, or most frequently both, impelled
by the consciousness of his historic calling and also by personal
motives, gathers round himself men from different clans and tribes,
thus forming an _inter-tribal_ nucleus. Around this nucleus entire
clans and tribes come to be grouped voluntarily or by compulsion,
receiving from the newly formed supreme power laws and government, and
to a greater or lesser extent losing their independence. When a social
group has a government organised on the principle of hierarchy with
a supreme central authority at the head, a regular army, a financial
system based upon taxation, and laws accompanied by penal sanctions,
such a group has the essential characteristics of a state. All the
characteristics enumerated were present in the Mohammedan community
during the later years of Mohammed’s life. It is remarkable that the
history of the original formation of this state confirms to a certain
extent the ‘social contract’ theory. All the chief actions of the Arab
prophet in this connection have been signalised by formal treaties,
beginning with the so-called ‘oath of women,’ and ending with the
conditions he dictated at Mecca after his final victory over the
tribe of the Koreishites and their allies. It should be noted, too,
that the fundamental point of all these treaties is the abolition of
blood-vengeance between the tribes and clans which are to enter the new
political union.
Hence arises the distinction, which did not exist before, between
private and public right. With regard to blood-vengeance and other
important matters, the interests of the collective group were identical
with the interests of the individual. This was all the more natural as
in a small social group such as the clan or the tribe all, or at any
rate most, of its members could know each other personally, and thus
each was for all, and all for each--a concrete unit. In the state,
however, the social group embraces hundreds of thousands or even
millions of men, and the concrete personal relation between the parts
and the whole becomes impossible. A clear distinction is drawn between
private and public interests and between the corresponding rights. In
opposition to our modern legal notions, at that stage murder, robbery,
bodily injuries, etc., are treated as the violations of private rights.
Formerly, at the kinship-group stage, all such crimes were regarded as
directly affecting the interests of the community, and the whole clan
retaliated upon the culprit and his kinsmen. When a wider political
union was formed, this right and duty of blood-vengeance was taken
away from the clan, but did not pass, unchanged, to the state. The new
common authority, the source of government and of law, could not at
once enter into the interests of all its numerous subjects to such an
extent as to defend them like its own. The head of the state cannot act
and feel like the elder of a clan. And we find that with regard to the
defence of private persons and property the state is at first content
with very little. For bodily injury or other violence to a free man,
and even for the murder of one, the culprit or his relatives pay to
the family of the victim compensation in money, the amount of which
is settled by mutual agreement (_compositio_), and is generally very
moderate. Ancient law-codes, _e.g._ the laws of the Salic Francs, or
our own _Russkaya Pravda_, which are relics of a primitive political
order, are full of the enumerations of fines differing according to
the sex of the person and to other circumstances. The direct and
rapid transition from merciless blood-vengeance, often accompanied
by long and devastating wars between entire tribes, to simple money
compensation is remarkable; but from the point of view indicated it is
perfectly natural.
At this stage of social development the only capital offences are,
strictly speaking, political crimes;[143] all other, murder included,
are regarded as private quarrels rather than crimes.
Such elementary opposition between public and private rights could not
be stable. Money-fine for every kind of injury to a private person
does not satisfy the injured party (_e.g._ the family of the murdered
man), nor does it deter the wrong-doer, especially if he be rich,
from committing further crimes. Under such conditions blood-vengeance
for private offences, abolished by the state as opposed to its very
conception, is renewed _de facto_ and threatens to destroy the _raison
d’être_ of the state: if each has to avenge his own wrongs, why should
he bear the hardships imposed by the new political order? To justify
the demands that private persons make upon it, the state must really
take upon itself to protect their interests; in order to abolish the
private right of blood-vengeance, the state must make it a public
right, _i.e._ must itself exercise it. At this new and higher stage
the solidarity of the central power with its individual subjects
becomes more clear. The distinction between crimes directed against
the government (political crimes) and those infringing upon private
interests only is still retained, but it is now merely a distinction
of degree. Each free man becomes a citizen, _i.e._ a member of the
state which undertakes to protect his safety; every violation of it is
regarded by the state authority as an attack upon its own rights, as
a hostile action against the social whole. All attacks against person
and property are regarded as violations of the law of the state, and no
longer as private offences, and are therefore, like political crimes,
for the _state_ itself _to avenge_.
III
The legal doctrine of retribution has then a historical foundation
in the sense that legal punishments still in use in our day
are a historical transformation of the primitive principle of
blood-vengeance. Originally, the injured person was avenged by a more
narrow social union called the clan, then by a wider and more complex
union called the state. Originally, the criminal lost all human rights
in the eyes of the clan he injured; now he became the rightless subject
of punishment in the eyes of the state, which revenges itself on him
for the violation of its laws. The difference consists chiefly in the
fact that at the patriarchal stage the act of vengeance itself was
accomplished very simply--the aggressor was, at the first opportunity,
killed like a dog--but the consequences were very complex, and took the
form of endless inter-tribal wars. In the state, on the contrary, the
act of vengeance, which the public authorities took upon themselves,
was performed slowly and with all sorts of ceremonies, but no further
complications ensued, for the criminal had no one sufficiently strong
to avenge him--he was defenceless before the power of the state.
But can the unquestionable fact that legal executions are a historical
transformation of blood-vengeance be used as an argument in favour
of the executions themselves, or in favour of the principle of
retaliation? Does this historical basis justify us in determining our
attitude towards the criminal by the idea of vengeance, the idea,
_i.e._, of paying evil for evil, pain for pain? Speaking generally,
logic does not allow us to make such deductions from the genetic
connection between two events. Not a single Darwinian, so far as I
am aware, drew the conclusion that because man is descended from the
lower animals he ought to be a brute. From the fact that the urban
community of Rome had been originally established by a band of robbers,
no historian has yet concluded that the true principle of the Holy
Roman Empire ought to have been brigandage. With regard to the question
before us, it is clear that since we are dealing with the _evolution_
of blood-vengeance there is no reason to regard this evolution as
completed. We know that the relation of society and of law to the
criminal has undergone great changes. Pitiless blood-vengeance was
replaced by money-fines, and these were replaced by ‘civil executions,’
extremely cruel at first, but, beginning with the eighteenth century,
getting more and more mild. There is not the slightest rational ground
to suppose that the limit of mercy has already been reached and that
the gallows and the guillotine, penal servitude for life, and solitary
confinement must for ever remain in the penal code of civilised
countries.
But while historical progress clearly tends to eliminate the principle
of vengeance or of exact retaliation from our treatment of criminals,
and finally to abolish it altogether, many philosophers and jurists
still continue to urge abstract arguments in defence of it. These
arguments are so feeble that no doubt they will be an object of
astonishment and ridicule to posterity, just as Aristotle’s arguments
in favour of slavery, or the ecclesiastical proofs of the flatness of
the earth, are a source of wonder to us now. The pseudo-arguments used
by the champions of the doctrine of retribution are not in themselves
worth considering. But since they are still repeated by authors
worthy of respect, and since the subject is of vital importance, the
refutation of them ought also to be repeated.
“Crime is a violation of right; right must be re-established;
punishment, _i.e._ equal violation of the criminal’s right,
performed in accordance with a definite law by public authority (in
contradistinction to private vengeance), balances the first violation,
and thus right is re-established.” This pseudo-argument turns on the
term ‘right.’ But concrete right is always _somebody’s_ right (there
must be a _subject of rights_). Whose right is then here referred
to? In the first place, apparently, it is the right of the injured
person. Let us put this concrete content in the place of the abstract
term. Peaceful shepherd Abel has no doubt a right to exist and to
enjoy all the good things of life; but a wicked man, Cain, comes and
deprives him of this right by murdering him. The violated right must
be re-established; to do so public authority comes on the scene and,
against the direct warning of Holy Writ (Genesis iv. 15), hangs the
murderer. Well, does this re-establish Abel’s right to live? Since no
one but an inmate of Bedlam would affirm that the execution of the
murderer raises the victim from the dead, we must take the word ‘right’
in this connection to mean, not the right of the injured person, but of
somebody else. The society or the state[144] may be the subject of the
right violated by the crime. All private rights (of life, of property,
etc.) are guaranteed by the state; it answers for their inviolability
in placing them under the defence of its laws. The law forbidding
private persons to take the life of their fellow-citizens at their own
discretion is proclaimed by the state in its own right, and therefore
the violation of the law (a murder) means violation of the right of
the state. The execution of the murderer re-establishes the right of
the state and the dignity of the law--not the right of the murdered
man.[145]
What justice this argument contains has nothing to do with the case.
There is no doubt that once laws exist, their violation must not be
overlooked, and that it is the business of the state to see to it. But
we are not dealing here with the general question of the punishability
of crime, for in this respect all crimes are identical. If a law is
sacred in itself as proceeding from the state, this is true of all
laws in an equal degree. They all equally express the right of the
state; and the violation of any law whatever is the violation of this
supreme right. Material differences between crimes have to do with the
particular interests which are infringed; but on its formal side, in
relation to what is _universal_, that is to the state _as such_, and
to its law and power, every crime, if, of course, it is committed by a
responsible agent, presupposes a will opposed to the law, a will that
sets it at nought and is therefore criminal--and from this point of
view all crimes ought logically to require the same punishment. But
the difference in punishments for the different crimes exists in all
legal codes, and it obviously presupposes, in addition to the general
principle of punishability, a certain other specific principle which
determines the particular connection between _this_ crime and _this_
punishment. The doctrine of retribution discovers this connection in
the fact that the right violated by a particular criminal action is
re-established by a corresponding or _equal_ action--for instance, a
murderer must be killed. There can, however, be no real correspondence
or equality. The most famous champions of the doctrine conceive of the
matter as follows: Right is something positive, say a + (plus); the
violation of it is something negative, - (a minus). If the negation
in the form of crime has taken place (_e.g._ a man has been deprived
of life), it must call forth equal negation in the form of punishment
(taking the murderer’s life). Then such double negation, or the
negation of the negative, will once more bring about a positive state,
_i.e._ re-establish the right: _minus multiplied by minus makes plus_.
It is difficult to take this ‘play of mind’ seriously; it should be
noted, however, that the idea of the _negation of the negative_
logically expresses a direct inner relation between two opposed acts.
Thus, for instance, if an impulse of ill-will in man is ‘negative,’
is, namely, a negation of the moral norm, the opposite act of will,
suppressing that impulse, will indeed be a ‘negation of the negative,’
and the result will be a positive one--man’s affirmation of himself
as normal. Similarly, if crime as an active expression of ill-will is
negative, the criminal’s active repentance will be a negation of the
negative (that is, not of the fact, of course, but of the inner cause
that produced it), and the result will again be positive--his moral
regeneration. But the execution of the criminal has obviously no such
significance; in this case the negation is directed, as in the crime
itself, upon something positive--upon human life. It cannot indeed
be maintained that the execution of the criminal negates his crime,
for that crime is an irrevocably accomplished fact, and, according to
the remark of the Fathers of the Church, God Himself cannot undo what
has been done. Nor does it negate the criminal’s evil will, for the
criminal has either repented of his crime--and in that case there is
no longer any evil will--or he remains obdurate to the end, and then
his will is inaccessible to the treatment he is receiving; and in any
case an external enforced action can neither cancel nor change the
inner state of will. What, then, is negated by the execution of the
criminal is not his evil will, but the positive good of life,--and
this is once more a simple negation, and not a ‘negation of the
negative.’ But a simple succession of two negatives cannot lead to
anything positive. The misuse of the algebraic formula makes the
argument simply ridiculous. In order that two minuses, that is, two
negative quantities, should make a plus, it is not sufficient to place
them one after another, but it is necessary to _multiply_ one by the
other. But there is no intelligible meaning in _multiplying crime by
punishment_.[146]
IV
The inherent absurdity of the doctrine of retribution or ‘avenging
justice’ is emphasised by the fact that, with a few exceptions, it has
no relation whatever to the existing penal laws. Strictly speaking,
there is only one case in which it appears to be applicable--that
of the death penalty for murder. Therefore the pseudo-philosophical
arguments in favour of this doctrine, the gist of which has been
considered above, refer to this single instance only--a bad omen for
a principle which lays claim to universal significance. In Russia,
where capital punishment is the penalty for certain political crimes
only, there is not even this one case of apparent correspondence. No
trace of equality between crime and punishment can be detected in the
case of parricide and penal servitude for life, or simple murder with
a view to robbery and twelve years’ penal servitude. The best argument
against the doctrine is the circumstance that it finds its fullest
application in the penal codes of some half-savage peoples, or in the
laws prevalent at the epoch of barbarism, when, _e.g._, for inflicting
a certain injury the culprit underwent a similar injury, for speaking
insolent words a person had his tongue cut out, etc. A principle the
application of which proves to be incompatible with a certain degree of
culture and refinement is condemned by the verdict of history.
In modern times the doctrine of re-establishing right by means of
equal retribution was, if I am not mistaken, defended by abstract
philosophers more than by jurists. The latter understand the
equalisation of crime with punishment in the relative and quantitative
sense only (the _measure_ of punishment). They demand, _i.e._, that
a crime more grave than another should be punished more severely,
so that there should be a scale of punishments corresponding to the
scale of crimes. But the basis and, consequently, the apex of the
penal ladder remains indefinite, and therefore the punishments may be
either inhumanly cruel or extremely mild. Such a scale of penalties has
existed in the penal codes in which all, or almost all, simple crimes
were punished by a fine: a larger fine was paid for the murder of a man
than for the murder of a woman, for a serious bodily injury than for
a slight one, etc. On the other hand, codes in which the penalty for
theft was hanging punished more heinous crimes by capital punishment
accompanied by various degrees of torture. What is in this case immoral
is the cruelty of the punishments, and not, of course, their graduated
character.
From the moral point of view it is of interest that the penal laws show
a tendency to preserve the cruel punishments as far as possible. This
tendency has no doubt become weaker, but it has not yet disappeared
altogether. Not finding a sufficiently secure foundation in the
pseudo-rational principle of ‘re-established right,’ it seeks empirical
support in the principle of _intimidation_. In truth, the latter
has always formed part of the doctrine of retribution. The popular
aphorism, ‘To a dog a dog’s death,’ has always been accompanied by the
addition, ‘as a warning to others.’
This principle can hardly be said to be wholly valid even from the
utilitarian and empirical point of view. No doubt fear is an important
human instinct, but it has no decisive significance for man. The
perpetually increasing number of suicides proves that, in many, death
itself inspires no fear. Prolonged solitary confinement or penal
servitude may in themselves be more terrible but they do not produce an
immediate intimidating effect. I will not dwell upon these and other
well-known arguments against the theory of intimidation, such as the
contention that the criminal always hopes to avoid detection and escape
punishment, or that the enormous majority of crimes are committed under
the influence of some passion which stifles the voice of sagacity.
The relative force of all these arguments is open to dispute. In-
disputable refutation of the deterrent theory is only possible from the
moral point of view. It is refuted, first, on the ground of principle,
as directly opposed to the fundamental law of morality, and, secondly,
by the fact that this opposition compels the champions of intimidation
to be inconsistent and gradually to relinquish, on the strength of
moral motives, the most clear and effective demands of their own
theory. It is understood, of course, that I am referring here to
intimidation as a fundamental principle of legal justice and not merely
as a psychological fact, which naturally accompanies any method of
dealing with crime. Even supposing it were intended to reform criminals
by means of moral exhortation alone, the prospect of such tutelage,
however mild and rational, might intimidate vain and self-willed men
and deter them from criminal actions. Obviously, however, this is not
what is meant by the theory which regards intimidation as the essence
and the direct object of punishment, and not as an indirect consequence
of it.
The moral principle asserts that human dignity must be respected in
every person, and that therefore no one may be made merely a _means_
of or an _instrument_ for the advantage of others. According to the
deterrent theory, however, the criminal who is being punished is
regarded as merely a means for intimidating others and safeguarding
public safety. The penal law may, of course, intend to benefit the
criminal himself, by deterring him, through fear of punishment, from
committing the crime. But once the crime has been committed, this
motive obviously disappears, and the criminal in being punished
becomes solely a means of intimidating others, _i.e._ a means to
an end external to him; and this is in direct contradiction to
the unconditional law of morality. From the moral point of view a
punishment inspiring fear would only be permissible as a threat; but a
threat which is never fulfilled loses its meaning. Thus, the principle
of penal intimidation can be moral only on condition of being useless,
and can be materially useful only on condition of being applied
immorally.
In point of fact the theory of intimidation finally lost its sting from
the time when all civilised and half-civilised countries abolished
cruel corporal punishments and capital punishment accompanied by
torture. It is clear that if the object of punishment is to intimidate
both the criminal and others, these means are certainly the most
effective and rational. Why then do the champions of intimidation
renounce the true and the only reliable means of intimidation? Probably
because they consider these means immoral and opposed to the demands of
pity and humanity. In that case, however, intimidation ceases to be the
_determining_ factor in punishment. It must be one or the other: either
the meaning of punishment is intimidation--and in that case execution
accompanied by torture must be admitted as pre-eminently intimidating;
or the nature of punishment is determined by the moral principle--and
in that case intimidation must be given up altogether, as a motive
essentially _immoral_.[147]
V
The circumstance that the most consistent forms of retribution and
intimidation have disappeared from modern penal codes, in spite of the
fact that from the first point of view such forms must be recognised as
the most just, and from the second as the most effective, is sufficient
to prove that a different, a moral point of view has penetrated into
this sphere and made considerable progress in it. This undoubted and
fairly rapid progress has failed to affect the penal codes of savage
or barbarian peoples alone--such as the Abyssinians or the Chinese;
and even they, indeed, are about to enter into the general life of
civilised humanity. Nevertheless, our own penal systems--I mean those
of Europe and America--still retain much unnecessary violence and
cruelty, which can only be explained as a dead legacy of the defunct
principles of retribution and intimidation. Among these vestiges of
the past are capital punishment, which is still being obstinately
defended though it has lost its grounds; indefinite deprivation of
liberty; penal servitude; exile into distant countries with unbearable
conditions of life, etc.
All this systematic cruelty is revolting to the moral feeling and
brings about a change in our original attitude towards the criminal.
Pity to the injured person and the impulse to defend him set us against
the injurer (the criminal). But when society, which is incomparably
stronger than the individual criminal, turns upon him its insatiable
hostility after he has been disarmed, and makes him undergo prolonged
suffering, it is _he_ who becomes the injured party and excites in us
pity and a desire to protect him. Although the legal theory and the
legal practice have decidedly renounced _consistent application_ of
the principles of retribution and intimidation, they have not given
up the principles themselves. The system of punishments that exists
in civilised countries is a meaningless and lifeless compromise
between these worthless principles on the one hand and certain demands
of humanity and justice on the other. In truth, what we find are
simply the more or less softened vestiges of the old brutality, with
no uniting thought, no guiding principle involved. The compromise
cannot help us to solve the question that is essential for the moral
consciousness: does the fact of crime deprive the criminal of his
human rights, or does it not? If it does _not_, how can we rob him
of the first condition of any right--of existence, as is done in the
case of capital punishment? And if the fact of crime does deprive
the criminal of his natural rights, what need is there of legal
ceremony with rightless beings? Empirically this dilemma is solved by
a distinction being drawn between crimes, some of which are taken to
deprive the criminal of human rights, and others merely to _limit_ them
to a greater or lesser extent. Both the principle and the degree of
such limitation are, however, changeable and indefinite, and the very
distinction between the two kinds of crime proves to be arbitrary and
to differ according to time and place. Thus, for instance, in Western
Europe political crimes do not involve the loss of human rights, while
in Russia the old view is still in full force, and these crimes are
regarded as the most heinous of all. One would have thought that so
important a fact as the transformation of man from an independent being
fully possessed of rights into passive material for punitary exercises
must depend upon some objective reason or determining principle, the
same for all times and at all places. In fact, however, it appears
that in order to change from a person into a thing, man must in one
country commit a simple murder; in another, a murder with aggravating
circumstances; in the third, some political crime, etc.
The extremely unsatisfactory condition of this important question,
the frivolous attitude to the life and destiny of men are revolting
to the intellect and conscience, and produce a reaction of the moral
feeling. Unfortunately, however, this reaction leads many moralists to
the opposite extreme, and induces them to reject the idea of punishment
in general, _i.e._ in the sense of real opposition to crime. According
to this modern doctrine, violence or compulsion towards any one is
never permissible, and therefore the criminal may only be dealt with
by rational persuasion. The merit of this doctrine is the moral purity
of its purpose; its defect is that the purpose cannot be realised
in the way advocated. The principle of taking up a passive attitude
towards criminals not only rejects retribution and intimidation (which
is the right thing to do), but also excludes measures intended to
_prevent_ crimes and to improve criminals. From this point of view the
state has not the right to lock up, even only for a time, a vicious
murderer, though the circumstances of the case make it clear that he
will continue his crimes; nor has it a right to place the criminal in a
more normal environment, even if it were exclusively for his own good.
Similarly, it is contended that a private person has no right forcibly
to detain a would-be murderer from rushing at his victim, but may only
address him with words of exhortation. In criticising the theory I will
consider this instance of individual opposition to crime, as it is more
simple and fundamental.
It is only in extremely rare, exceptional cases that men who are
depraved and capable of deliberate crime are affected by words of
rational persuasion. To ascribe beforehand such _exceptional_ power
to one’s own words would be morbid self-conceit; to be content with
words without being certain of their success when a man’s life is at
stake would be inhuman. The victim has a right to all the help we can
render him, and not to verbal intercession only, which, in the vast
majority of cases, can be nothing but comical. In the same way, the
aggressor has a right to all the help we can give to restrain him from
a deed which is for him even a greater disaster than for his victim.
Only after having _stopped his action_ can we with calm conscience
address _words of exhortation_ to him. If I see the criminal’s arm
raised to murder his victim and I seize hold of it, will this be a
case of immoral violence? It will no doubt be violence, but so far
from being immoral, it will be _conscientiously binding_, and will
directly follow from the demands of the moral principle. In restraining
a man from murder I _actively_ respect and support his human dignity,
which is seriously menaced by his carrying out his intention. It would
be strange to believe that the very fact of such violence--_i.e._
a certain contact of the muscles of my arm with the muscles of the
murderer’s arm, and the necessary consequences of the contact--contains
an element of immorality. Why, in that case it would be immoral to pull
a drowning man out of water, for it too cannot be done without much
physical exertion and some physical pain to the person who is being
saved. If it is permissible and a moral duty to pull a drowning man
out of the water, even if he resists, it is all the more permissible
to pull a criminal away from his victim, even if it means bruises,
scratches, and dislocations.[148]
It must be one or the other. Either the criminal whom we restrain
has not yet lost all human feeling, and then he will, of course, be
grateful for having been saved in time from sin--no less than the
drowning man is grateful for having been taken out of the water;
in that case, the violence which he suffered was done with his own
tacit consent, and his right has not been violated, so that, strictly
speaking, there has been no violence at all, since _volenti non fit
injuria_.[149] Or the criminal has lost human feeling to such an extent
that he is annoyed at having been prevented from cutting his victim’s
throat. But to address a man in such a condition with words of rational
persuasion would be the height of absurdity; it would be the same
as preaching to one who is dead-drunk the advantages of abstinence,
instead of pouring cold water over him.
Were the fact of physical violence, _i.e._ of the application of
muscular force, in itself bad or immoral, it would, of course, be wrong
to use this bad means even with the best of intentions--it would be
admitting the immoral rule that the purpose justifies the means. To
resist evil by evil is wrong and useless; to hate the evil-doer for
his crime and therefore to _revenge_ oneself on him is childish. But
there is no evil in restraining the evil-doer from crime for the sake
of his own good and _without any hatred_ of him. Since there is nothing
bad in muscular force as such, the moral or the immoral character of
its application depends in each case upon the intention of the person
and the circumstances of the case. Physical force rationally used for
the real good of others, both moral and material, is a _good_ and not
a bad means, and such application of it, so far from being forbidden,
is directly prescribed by the moral principle. The dividing line
between the moral and immoral use of physical compulsion may be a fine
one, but it is perfectly clear and definite. The whole point is the
attitude we take towards the evil-doer in resisting evil. If we retain
a human, moral relation to him and are thinking of his own good, there
will obviously be nothing immoral in our enforced violence--no trace
of cruelty or revenge. The violence will, in that case, be simply an
inevitable condition of our helping the man, just like a surgical
operation or the locking up of a dangerous lunatic.
The moral principle forbids to make a human being merely a means to
extraneous purposes, _i.e._ to ends which do not include his own good.
If, therefore, in resisting crime we regard the criminal simply as
a means for the defence or the satisfaction of the injured person
or society, our action is immoral, even though its motive might be
unselfish pity for the victim and genuine anxiety for public safety.
From the moral point of view this is not sufficient. We ought _to pity
both_ the victim and the criminal; and if we do so, if we really have
the good of them both in view, reason and conscience will tell us what
measure and what form of physical compulsion is necessary.
Moral questions are finally decided by conscience, and I confidently
ask every one to turn to his own inner experience (imaginary, if
there has not been any other) and say in which of the two cases does
conscience reproach us more: in the case when, being able to prevent
a crime we had callously passed by, saying a few useless words, or
when we had actually prevented it even at the expense of inflicting
_certain_ physical injuries. Every one understands that in a _perfect
society_ there must be no compulsion at all. But the perfection has
yet to be _attained_; and it is quite obvious that to let evil and
irrational men exterminate, unhindered, the normal people is not the
right method of creating the perfect society. What is desirable is
the organisation of the good, and not the freedom of evil. “But,” the
modern sophists will urge, “society has often taken for evil what
afterwards proved to be a good, and has persecuted innocent men as
criminals; therefore legal justice is worth nothing, and all compulsion
must be given up.” This argument is not my invention--I have read and
heard it many times. Reasoning in this way we should have to say that
the mistakes in the astronomical theories of Ptolemy are a sufficient
ground for giving up astronomy, and that the errors of the alchemists
prove chemistry to be worthless.
It is difficult to understand how men of a different stamp from
obvious sophists can defend so poor a doctrine. The truth is, I
think, that its real foundation is mystical and not ethical. The
idea underlying the doctrine seems to be this: “That which seems to
us to be evil, may not be evil at all; the Deity or Providence knows
better than we do the true connection of things and the way to produce
real good out of apparent evil. We can only know and judge our own
inner states and not the objective significance and consequences of
our own and other people’s actions.” It must be confessed that to a
religious mind this view is extremely attractive; nevertheless, it is a
mistaken view. The truth of a theory is tested by the fact whether it
can be consistently carried out without landing us in contradictions
and absurdities. The view in question cannot bear this test. If our
ignorance of all the objective consequences of our own and other
people’s actions were a sufficient ground for remaining inactive, we
ought not to resist our own passions and evil impulses. For aught we
know, the all-merciful Providence might derive wonderful results from a
person’s profligacy, drunkenness, ill-feeling to his neighbours, etc.
Suppose, for instance, that for motives of abstinence a man stayed
away from a public-house. But had he not resisted his inclination and
gone, he would on his way back have found a half-frozen puppy. Being
in a condition when one is inclined to be sentimental, he would have
picked up the puppy and warmed it back to life. The puppy, upon growing
up into a big dog, would have saved a little girl from drowning in
the pond; and the little girl would eventually become the mother of
a great man. Now, however, the misplaced abstinence has interfered
with the plans of Providence. The puppy was frozen, the little girl
drowned, and the great man is doomed to remain for ever unborn. Another
person, given to anger, felt inclined to slap in the face the man he
was arguing with, but thought that this would be wrong, and restrained
himself. And yet, had he not controlled his anger, the injured person
would have taken the opportunity to turn him the other cheek, and would
have thus softened the heart of the aggressor. Virtue would have doubly
triumphed, while, as it was, their meeting ended in nothing.
The doctrine which absolutely rejects all forcible resistance to evil,
or all defence of one’s neighbours by means of physical force, is
really based upon an argument of this nature. A man has saved another’s
life by using force and disarming the brigand who attacked him. But,
later on, the person saved became a terrible malefactor, far worse than
the brigand; therefore it would have been better not to have saved him.
Exactly the same disappointment, however, might ensue if the man were
threatened by a rabid wolf instead of by a brigand. Does it follow,
then, that we are not to defend any one even from wild beasts? Besides,
when I save people in a fire or in an inundation, it may very well
happen that the saved may subsequently be extremely unhappy or prove to
be terrible scoundrels, so that it would have been better for them to
have been burnt or drowned. Does it follow that one ought not to help
any one in any calamity whatsoever? Actively helping one’s neighbours
is a direct and positive demand of morality. If we renounce the duty
of kindness on the ground that actions inspired by that feeling _may_
have bad consequences _unknown_ to us, we can just as well for the same
reason renounce the duty of abstinence and all others, because these,
too, may prompt us to actions which may lead to evil consequences, as
in the examples cited above. If, however, that which appears to us to
be good leads to evil, then, _vice versa_, that which appears to us to
be evil may lead to good. Perhaps, then, the best plan would be to do
evil straight away in order that good might ensue. Fortunately, this
whole line of thought is self-destructive, for the series of unknown
events may go further than we think. Take the first instance, in which
Mr. X., by resisting his inclination for strong drink, indirectly
prevented the birth of a great man. We cannot tell whether this great
man would not have caused great disasters to humanity; and if he would,
it is just as well that he has not been born; therefore Mr. X. did
very well in making himself stay at home. In the same way, we do not
know what further consequences might ensue from the triumph of virtue
due to a slap in the face magnanimously endured. It is highly probable
that this extreme magnanimity would eventually lead to spiritual pride,
which is the worst of all sins, and thus ruin the man’s soul. Therefore
Mr. Y. did well in controlling his anger and preventing the magnanimity
of his opponent from showing itself. Altogether, since we know nothing
for certain, we have equal right to make all sorts of suppositions
with regard to possibilities. But it by no means follows that because
we do not know what consequences our actions may lead to, we ought to
refrain from all action. This conclusion would only be correct if we
knew for certain that the consequences would be bad. Since, however,
they may equally be good or bad, we have equal ground (or, rather,
equal absence of ground) for action or inaction. All these reflections
on the indirect results of our actions can then have no practical
significance. They could be a real determining force in our life
only if we could know more than the immediate links in the series of
consequences. The immediate links may be always supposed to be followed
by further links of an opposite character and destructive of our
conclusion. It would therefore be necessary to know the _whole series
of consequences_ down to the end of the world, which is impossible for
us.
Our actions or refusal to act must then be determined, not by the
consideration of their possible indirect consequences unknown to
us, but by impulses _directly_ following from the positive demands
of the moral principle. This is true not only from the ethical but
also from the mystical point of view. If everything be referred back
to Providence, it is certainly not without Its knowledge that man
possesses reason and conscience, which tell him in each concrete case
what direct good he can do, independently of all indirect consequences.
And if we believe in Providence, we certainly believe also that It
cannot allow that actions conformable to reason and conscience should
ultimately lead to evil. If we know that it is immoral or opposed to
human dignity to stupefy oneself with strong drink, our conscience
will not permit us to consider whether in the state of intoxication we
might not do something which would subsequently lead to good results.
Similarly, if from a purely moral motive, apart from any malice or
revenge, we prevented a brigand from killing a man, it will never occur
to us to argue that this may perhaps lead to some evil, and that it
might have been better to let the murder take place.
Through our reason and conscience we know for certain that carnal
passions--drunkenness or profligacy--are bad in themselves and ought
to be restrained. The same reason and conscience tell us with equal
certainty that active love is good in itself and that one must act in
the spirit of it--to help our neighbours, to defend them from the
elements, from wild beasts, and also from men who are evil or insane.
Therefore the man who from a pure impulse of pity snatches away the
knife from a would-be murderer’s hand and thus saves him from an
extra sin and his victim from a violent death, or the man who uses
physical violence to prevent a patient ill with delirium tremens from
freely running about the streets, will always be justified by his own
conscience and by the universal verdict of humanity as one who carried
out in practice the moral demand: Help all as much as in thee lies.
Providence certainly extracts good from our evil, but from our good it
derives a still greater good. And what is of especial importance is
that this second kind of good comes about with our direct and active
participation, while the first, that derived from our evil, does not
concern us nor belong to us. It is better to be a helper than a dead
instrument of the all-merciful Providence.
VI
Punishment as _intimidating revenge_ (the typical instance of which is
capital punishment) cannot from the moral point of view be justified,
for it denies the criminal his human character, deprives him of the
right of existence which belongs to every person, and makes him a
passive instrument of other people’s safety. No more, however, can we
justify from the moral point of view an indifferent attitude to crime,
the attitude of not resisting it. It does not take into account the
right of the injured party to be protected nor the right of the whole
society to a secure existence, and makes everything depend upon the
arbitrary will of the worst people. The moral principle demands real
resistance to crimes, and determines this resistance (or punishment in
the wide sense of the term, as distinct from the idea of retribution)
as _a rightful means of active pity, legally and forcibly limiting
the external expressions of evil will, not merely for the sake of the
safety of the peaceful members of society, but also in the interests
of the criminal himself_. Thus the true conception of punishment is
many-sided, but each aspect is equally conditioned by the universal
moral principle of pity, which includes both the injured and the
injurer. The victim of a crime _has a right_ to protection and, as
far as possible, to compensation; society _has a right_ to safety; the
criminal _has a right_ to correction and reformation. Resistance to
crimes that is to be consistent with the moral principle must realise
or, at any rate, aim at an equal realisation of those three rights.
Protection of individuals, public safety, and the subsequent good of
the criminal, demand in the first place that the person guilty of a
crime should be for a time deprived of liberty. In the interests of his
relatives and his own, a spendthrift is rightly deprived of freedom
in the administration of his property. It is all the more just and
necessary that a murderer or a seducer should be deprived of freedom in
his line of activity. For the criminal himself deprivation of freedom
is especially important as a _pause_ in the development of the evil
will, as an opportunity to bethink himself and repent.
At the present time, the criminal’s fate is finally decided by the
court, which both determines his guilt and decrees his punishment.
If, however, the motives of revenge and intimidation are consistently
banished from penal law, the conception of punishment as of a measure
_determined beforehand_ and, in truth, _arbitrarily_, must disappear
also. The consequences of the crime for the criminal must stand in a
natural and inner relation with his real condition. The law court,
having established the fact of guilt, must then determine its nature,
the degree of the criminal’s responsibility and of his further danger
to society, that is, it must make a diagnosis and a prognosis of the
moral disease. But it is opposed to reason to prescribe unconditionally
the means and the length of the period of treatment. The course and
the methods of treatment must differ according to the changes in the
course of the illness, and the court must leave this to penitentiary
institutions, into the hands of which the criminal should pass. A
short time ago this idea would have been thought an unheard-of heresy,
but of late attempts have been made to realise it in a few countries
(_e.g._ in Belgium and Ireland), in which _conditional sentences_ may
be passed. In certain cases the criminal is sentenced to a definite
punishment, but undergoes it only if he repeats his crime. If he does
not, he remains free, and his first crime is regarded as accidental.
In other cases, the sentence is conditional with regard to the length
of imprisonment, which may be shortened according to the subsequent
behaviour of the criminal. From the point of view of principle these
conditional sentences are an advance of enormous importance.
VII
There had been a time when men suffering from mental disease were
treated like wild beasts, chained, beaten, etc. Less than a hundred
years ago it was considered to be the right thing; but now we remember
it with horror. Since the rate of progress is continually increasing,
I hope to live to a time when prisons and penal servitude of the
present day will be looked upon in the same way as we now look upon the
old-fashioned asylums with iron cages for the patients. Although the
penal system has undoubtedly progressed of late, it is still largely
determined by the old idea of punishment as _torment_ deliberately
inflicted on the criminal, in accordance with the principle, ‘The thief
deserves all he gets.’
In the true conception of punishment its positive end, so far as the
criminal is concerned, is not to cause him physical pain, but to heal
or reform him morally. This idea has been accepted long ago (chiefly
by theologians, partly by philosophers, and by a very few jurists),
but it calls forth strong opposition on the part of jurists and of a
certain school of anthropologists. From the legal side it is urged that
to correct the criminal means to intrude upon his inner life, which the
state and society have no right to do. There are two misconceptions
involved here. In the first place, the task of reforming criminals
is, in the respect we are here considering, merely an instance of the
positive influence which the society (or the state) ought to exert upon
such members of it as are in some respects deficient, and therefore not
fully possessed of rights. If such influence is rejected on principle
as intrusion into the individual’s inner life, it will be necessary
to reject also public education of children, treatment of lunatics in
public asylums, etc.
And in what sense can it be said to be an intrusion into the inner
world? In truth, by the fact of his crime the criminal has _bared_ or
_exposed_ his inner world, and is in need of influence in the opposite
direction which would enable him once more to withdraw into the normal
boundaries. It is particularly surprising that although the argument
recognises the right of society to put a man into _demoralising_
conditions (such as our present prisons and penal servitude, which the
jurists do not reject), it denies the right and the duty of society to
put him into conditions that might render him _moral_.
The second misunderstanding consists in imagining that reformation
of the criminal means forcing upon him ready-made principles of
morality. But why regard incompetence as a principle? When a criminal
is capable of reformation at all, it consists, of course, chiefly in
_self-reformation_. External influences must simply put the man into
conditions most favourable for it, help him and support him in this
inner work.
The anthropological argument is that criminal tendencies are innate and
therefore incorrigible. That there exist born criminals and hereditary
criminals, there is no doubt. That some of them are incorrigible it is
difficult to deny. But the statement that all criminals or even the
majority of them are incorrigible is absolutely arbitrary and does not
deserve to be dwelt upon. If, however, all we may admit is that some
criminals are incorrigible, no one can or has a right to be certain
beforehand that this particular criminal belongs to that group. _All_
therefore ought to be put into conditions most favourable for possible
reformation. The first and the most important condition is, of course,
that at the head of penal institutions should stand men capable of so
high and difficult a task--the best of jurists, alienists, and men with
a religious calling.
Public guardianship over the criminal, entrusted to competent persons
with a view to his possible reformation,--this is the only conception
of ‘punishment’ or positive resistance to crime compatible with the
moral principle. A penal system based upon it will be more just and
humane than the present one, and will, at the same time, be certainly
more efficient.
FOOTNOTES:
[141] The question of _war_ is historically connected with the fact
of international hostility but is not exhausted thereby. Apart from
international wars there have been, and may be in the future, intestine
wars--social and religious. The problem of war must be considered
separately, and one of the subsequent chapters will be devoted to it.
[142] This is shown, among other things, by the fact that among the
people, at any rate among the Russian people, criminals are called _the
unfortunate_.
[143] The denotation of this idea differed in accordance with
the historical circumstances. In the Middle Ages, when the
capital character of simple murder was not yet clear to the legal
consciousness, coining false money was punished by painful death, as a
crime detrimental to society as a whole, infringing upon the privileges
of the central authority and, in this sense, political.
[144] In this connection either term may be used indifferently.
[145] In the opinion of one of my critics, I am wrong in supposing
that a crime must necessarily be the violation of _somebody’s_ right.
Apart from any subject of rights--individual or collective, private
or public--and also apart from the moral norm or the absolute good,
there exists, it is urged, right as such,--an independent objective
essence, and the proper object of punishment is the satisfaction of
this self-existent right. The critic is mistaken in thinking that I am
ignorant of this metaphysical impersonation of the ancient Moloch. But
there is no need for me to go into it, since no serious criminologist
has for a long time past upheld it. It is obvious that ‘right’ is by
its very meaning a relation between subjects, conditioned by certain
moral and practical norms, and that therefore a subjectless and
unrelated right is an _Unding_--a thought that has no content.
[146] It is obvious that we cannot in this case go further than
_addition_ (of the material results). The corpse of the murdered victim
may be added to the corpse of the hanged murderer and then there will
be two corpses--_i.e._ two negative quantities.
[147] In the eighteenth century, when the movement against the cruelty
of penal laws was at its height, several writers sought to prove that
torturing prisoners is both inhuman and useless as a deterrent, for it
does not prevent any one from committing crimes. If this contention
could be substantiated it would deprive the theory of intimidation of
all meaning whatever. It is obvious that if even painful executions are
insufficient to intimidate criminals, punishments more mild are still
less likely to do so.
[148] What, however, if in restraining the murderer we may in the
struggle unintentionally cause him grave injuries and even death?
It will be a great misfortune for us, and we will grieve over it as
over an _involuntary_ sin; but, in any case, unintentionally to kill
a criminal is a lesser sin than deliberately to allow an intentional
murder of an innocent person.
[149] ‘There is no injury to the willing,’ _i.e._ an action which is
in accordance with the will of the person who suffers it cannot be a
violation of his right.