After reading this article you will learn about the enforcement of law and the purpose of punishment.
Law is essentially and ultimately a conviction of the existence of rules or external standards of action, a conviction common to all, including the potential breakers of rules. But a rule about human actions, unlike a rule about the action of natural bodies, does not exist of itself, or continue to exist of itself. In order to exist at all, it must be thought into existence, and become a common conviction.
In order to continue to exist, it must be willed into continued existence: in other words, the common conviction that a rule exists must be backed by a common will that it shall continue to exist.
Bare conviction is not enough: there must also be volition of the object of conviction. Nor is this all. Besides conviction and volition, there is also a third thing needed. If you will that a rule shall go on existing, you must also will that infractions and obstructions shall not go on existing, and you must back that will by an effort for their negation and removal.
That effort is force, which enforces the law and fortifies justice. In the realm of human relations, as distinct from the realm of nature and the relations of natural bodies, a rule will not be a rule, and law will not be law, unless it is backed by effort as well as conviction and will.
It has been said that behind the fairest show of right dealing there stands the armed force of the community. The saying is true enough, if we remember that force does stand behind, and is not placed in the forefront. Force is not the origin, but the ultimate consequence of law: the consequence which follows on will, which in turn follows on conviction, which in turn, and in the last issue, is the origin of law, and indeed is law.
Generally, and on the whole, conviction, standing in the first rank, wins the victory of law by itself: we obey the law, 99 times out of 100 (but that is an under-estimate), in the simple strength of a conviction, wrought into our very fibre, that it expresses for us and others a right order of human relations. Force operates as a rearguard; it acts only in the hundredth case, when, as the Romans said, you fall back on the triarii, or the soldiers of the last rank.
Force and punishment enter when conviction has fallen as it were asleep, as with a careless driver or a negligent trustee, or when men consciously break a rule, though still convinced of its general advantage, because they think they can gain in that way their own particular advantage and are therefore somehow exempt from the rule.
Then, and then only, comes force: the memento to careless forgetting, and the corrector of vicious reasoning; the unsleeping ‘knocker up’ of the sleeping and the unerring critic of the erring. Force, in a word, is a servant of the conviction called law, a servant who keeps his master from either sleeping or straying.
If that is the relation of force to law we may now proceed to consider, in the light of this conception, the relation of force to the individual, or the nature and purpose of punishment. The problem is really the same: there is only a difference of approach.
The basis of punishment of the individual is the assumption of a society of rational agents, sharing a common conviction about a right order of their relations, and therefore responsible to one another and to the whole society for negligence or infraction of the declared rules of that order.
The assumption thus made, in the act of punishment, that each agent is individually responsible, and that all alike are responsible, is a tribute to the principles of liberty and equality, and thereby to the ultimate and intrinsic value of human personality from which those principles are derived.
Punishment is the black shadow of those principles and that value; but we respect them most if we recognize that they do, and must, cast a shadow. The danger of psychological and sociological theories of punishment, or at any rate of some of those theories, is that they attenuate the offender and make him, like the man in the fairy-tale, a person without a shadow. If we respect personality, we must respect responsibility. If we respect responsibility, we must respect the right of offenders to be punished for their offences.
There are, indeed, psychological aberrations and abnormalities, where the assumption made in the act of punishment ceases to be possible, and where all that can be done is to apply, if it be possible, some method of psychical therapeutics. Samuel Butler, in Erewhon, went to the length of thinking that all offenders alike were abnormalities.
In his Utopia crime is held to be the result of some prenatal or postnatal misfortune which has produced a mental lesion; and therefore, without being judicially punishable, it is remitted to ‘a class of men trained in soul-craft’, called by the name of ‘straighteners’, for the application of treatment and cure. This is an extreme view, which abolishes altogether both responsibility and punishment.
We must indeed admit that there is a sort of borderland in which the rational responsible agent shades off by various degrees into the irrational and irresponsible: we must allow that some wrongdoing belongs to this borderland; and we must confess that wrongdoing of this order is, or may be, a matter for ‘straightening’.
But the normal presumption is sanity, and therefore responsibility, and therefore the right of offenders to be treated as responsible agents and punished as such for their offences; nor can the normal presumption be waived except in the face of cogent proof of its invalidity.
Normal wrongdoing— if that phrase may be used (for in one sense wrongdoing is always abnormal)—is the action of normal responsible persons; and the law will normally treat it as such. There is, however, a qualification, or rather addition, which has to be made. Responsibility is not the same as intentionality.
A man may be a responsible person, and yet his act, in a given case, may be wholly or mainly unintentional. But some amount of intentionality, some degree of will and conscious volition, is necessary to constitute a living act, or, in other words, an act that rises above the level of mere automatism; and it is only for a living act, based on some amount and degree of intentionality, that a man is legally liable.
The difficult question is the simple question, ‘How much?’ This raises the problems of duress, ‘extenuating circumstances’, and the like. It would be irrelevant here to enter upon this question, or to discuss these problems.
It is sufficient for the present argument to note that the question of the degree of intentionality to be attached to some particular action of a responsible person is a different question from that of the degree of responsibility to be attached to the mind of a person alleged to be more or less irresponsible.
Just as there are psychological theories which attenuate the offender and extenuate the offence, so there are sociological doctrines which lead to a similar result. The gist of these doctrines is that a great amount of wrongdoing is not the conscious and deliberate action of persons responsible for themselves, but the automatic and inevitable action of persons for whom Society is responsible, in the sense that it has created the set of social conditions in which they have been born and bred, which have made them what they are, and which have produced their acts.
It is impossible to deny, and indeed it is a duty to admit, the evil results of overcrowded tenements, of the lack of facilities for healthy recreation, and of the abundance of the facilities for drink and dissipation. But the difficulty of a doctrine which transfers responsibility for wrongdoing from the wrongdoer to Society, and to the conditions created or tolerated by Society, is that persons living in the same set of social conditions differ greatly from one another in their behaviour and action.
If some are impelled to wrongdoing, a great many more are law-abiding; and it cannot therefore be said that a given set of social conditions inevitably and uniformly produces a corresponding type of action. The most we can say is that one set of social conditions, such as that of the slum, is accompanied by a greater amount of wrongdoing than another set, such as that of a new housing estate; though in either set of conditions by far the greater number will be law-abiding citizens.
It follows that the wrongdoer living in a set of bad social conditions may be regarded as less responsible for his action, though still (let us say) nine-tenths responsible; and it also follows that Society ought to alter those conditions, because it is (say) one-tenth responsible for the wrongdoer’s action by creating or tolerating the conditions by which his action is partly produced.
What does not follow is that persons born and bred in bad social conditions can be treated on a different basis from other persons; though in determining the particular degree or character of punishment the judge may well take into account the milieu of such persons.
The purpose of punishment is to affirm, against all negligence and infraction, a universal mental rule, which because it is mental must live in the mind, and because it is universal must live in all minds. Because all minds are in question, the essential purpose of punishment is a purpose of general prevention.
It exists to prevent all minds, including that of the offender (but not, for a moment, his only), from neglecting or rejecting the content of common conviction. From this point of view it may even be said that each single act of punishment is a universal act. All are concerned and intended in each particular act of punishment, and all may therefore say, ‘There, but for the grace of remembering and obeying the law, go I, and with this reminder before me I must continue to remember and obey’.
If we cling to this conception of the universal aspect of every particular act of punishment, we shall readily acknowledge that its primary and essential purpose is the purpose of prevention. When, however, we turn from the universal aspect of punishment to the particular, and when we consider it as immediately concerning and intending the one person punished, though ultimately it concerns and intends all alike, we may say that there is a sense in which the purpose of punishment is also reformatory.
But punishment is reformatory in the sense that it is intended to revive, in the mind of the person punished, the mental rule which he has neglected or rejected, and, along with it, the whole of the system of such rules. In other words, punishment is a reformation of the wrongdoer only in the sense of being intended to prevent him (as well as others, and along with others) from neglecting or rejecting the particular mental rule he has broken and, with it, the whole system of such rules.
It follows that the reformation intended is simply a consequence, or by-product, of prevention, and that it therefore affects, as such, others besides the wrongdoer, and others along with the wrongdoer. So far, therefore, as punishment is reformatory, it is reformatory of all, and not of the criminal only, though it may, and should, be particularly and especially reformatory in his case.
But the fact remains that punishment is never reformatory in the sense of being intended to re-form or re-shape the character of the particular wrongdoer. That is his own business, which he has to do for himself, as all men have to do their moral business for themselves. We should not only insult the moral autonomy of the wrongdoer, but we should also break against it, if we attempted to do his own business for him.
Finally, there is a sense in which punishment is retributive. But here we have to ask who it is who retributes, and what it is that ‘pays back’. It is not the injured person who retributes or pays back; it is not even the whole community of persons, considered simply as persons.
It is the mental rule of law which pays back a violation of itself by a violent return, much as the natural rules of health pay back a violation of themselves by a violent return. The lex talionis does not mean that the person or body of persons you hurt shall hurt you in return: it means that the order you disturb will disturb you in order to restore itself.
It is true that if you regard this order as existing in the thought of the community, and as issuing from that thought, you may say that the thought of the community returns, as it were, in retribution on any disturbance of itself; and in that sense you may even say that the community retaliates. But that is different from what is meant by the ordinary man when he uses the phrase, ‘vengeance belongs to society’.
In the sense in which he uses the phrase, vengeance does not belong to society, or to any person or body of persons. The only sense in which retribution, or retaliation, or vengeance, can be said to belong to society is that it belongs to, and proceeds from, the order or system of mental rules which lives in the thought of society.
Punishment is terribly personal, so far as concerns the person punished: it touches him to the quick. But it is also absolutely impersonal, so far as concerns the persons punishing: they are only the agents of the return of the order violated. It was this impersonality of punishment which Kant had in mind when he said that ‘even though a society were about to be dissolved by agreement, the last murderer in prison must be executed before it breaks up’.