Guilty or Sick: How Should We Treat Law Breakers?

According to the Humanitarian theory, to punish a man because he deserves it, and as much as he deserves, is mere revenge, and, therefore, barbarous and immoral.  It is maintained that the only legitimate motives for punishing are the desire to deter others by example or to mend the criminal.  When this theory is combined, as frequently happens, with the belief that all crime is more or less pathological, the idea of mending tails off into that of healing or curing and punishment becomes therapeutic.  Thus it appears at first sight that we have passed from the harsh and self-righteous notion of giving the wicked their deserts to the charitable and enlightened one of tending the psychologically sick.  What could be more amiable? One little point which is taken for granted in this theory needs, however, to be made explicit.  The things done to the criminal, even if they are called cures, will be just as compulsory as they were in the old days when we called them punishments.  if a tendency to steal can be cured by psychotherapy, the thief will no doubt be forced to undergo the treatment.  Otherwise, society cannot continue.

My contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being.

The reason is this.  The Humanitarian theory removes from Punishment the concept of Desert.  But the concept of Desert is the only connecting link between punishment and justice.  It is only  as deserved or undeserved that a sentence can be just or unjust.  I do not here contend that the question ‘Is it deserved?’ is the only one we can reasonably ask about a punishment.  We may very properly ask whether it is likely to deter others and to reform the criminal.  But neither of these two last questions is a question about justice.   There is not sense in talking about a ‘just deterrent’ or a ‘just cure’.  We demand of a deterrent not whether it is just but whether it will deter.  We demand of a cure not whether it is just but whether it succeeds.  Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case’….

This is why I think it essential to oppose the Humanitarian theory of punishment, root and branch, wherever we encounter it.  It carries on its front a semblence of mercy which is wholly false.  That is how it can deceive men of good will.  Then error began, perhaps, with Shelley’s statement that the distinction between mercy and justice was invented in the courts of tyrants.  It sounds noble, and was indeed the error of a noble mind.  But the distinction is essential.  The older view was that mercy ‘tempered’ justice, or (on the highest level of all) that mercy and justice had met and kissed.  The essential act of mercy was to pardon; and pardon in its very essence involves the recognition of guilt and ill-desert in the recipient.  If crime is only a disease which needs cure, not sin which deserves punishment, it cannot be pardoned.  How can you pardon a man for having a gumboil or club foot?  But the Humanitarian theory wants to simply abolish Justice and substitute Mercy for it.  This means that you start being ‘kind’ to people before you have considered their rights, and then force upon them supposed kindness which no one but you will recognize as kindness and which the recipient will feel as abominable cruelties.  You have overshot the mark.  Mercy, detached from Justice, grows unmerciful.  That is the important paradox.  As there are plants which will flourish only in the mountain soil, so it appears that Mercy will flower only when it grows in the crannies of the rock of Justice: transplanted to the marshlands of mere Humanitarianism, it becomes a man-eating weed, all the more dangerous because it is still called by the same name as the mountain variety.  But we ought long ago to have learned our lesson.  We should bee too old now to be deceived by those humane pretensions which have served to usher in every cruelty of the revolutionary period in which we live.  These are the ‘precious balms’ which will ‘break our heads’.

C. S. Lewis (1898-1963), “The Humanitarian Theory of Punishment” in God in the Dock.

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Filed under Anthropology, Applied Theology, Christian Thinking, Justice, Law, Sin, Theology, Worldview

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