Thursday, March 18, 2010

C. S. Lewis's famous essay on the humanitarian theory of punishment

A redated post. This seems to have gotten some discussion just today. Also, see this essay by a Brandeis University sophomore (!) which brings the discussion of Lewis on punishment up to date. 

This is the famous essay in which Lewis defends a retributive theory of criminal punishment. Should criminal punishment be retributive?

I am redating this post once again to show how, in present-day secular thinking, the idea of what a person deserves has a tendency to drop out. This is something that has to be sorted out when we talk about moral responsibility. Remember, Lewis wrote the essay because he thought the idea of punishment based on desert was in danger of being lost.

9 comments:

mattghg said...

I pretty much totally agree: deterrence and reform can be sound considerations in criminal justice, but they must be subordinate to the idea of punishment as an expression of the wrongness of the crime, a vindication of the law itself.

A relevant question here is, "Why should I obey the law at all?" If the sole justification for punishment is deterrence, then the sole reason to obey the law is because of the threat of force, and, as Lewis points out, this obliterates the question of whether the law is right in the first place.

Anonymous said...

CSL: 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.

"Humanitarian theory" and "determinism + compatibilism" are two different ideas aren't they? As you have stated, if determinism + compatibilism is the case, then "deserves" doesn't really apply because a person merely sits at the end of a cosmic causal chain of events.

The idea that "crime is more or less pathological" falls a little short of the idea that "all actions are determined, ultimately, by events that are outside of a person's control."

CSL: 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.

This is where I feel CSL starts going wrong. A few more quotes will be helpful.

CSL: It may be said that by the continued use of the word punishment and the use of the verb ‘inflict’ I am misrepresenting Humanitarians. They are not punishing, not inflicting, only healing. But do not let us be deceived by a name. To be taken without consent from my home and friends; to lose my liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver; to be re-made after some pattern of ‘normality’ hatched in a Vienese laboratory to which I never professed allegiance; to know that this process will never end until either my captors hav succeeded or I grown wise enough to cheat them with apparent success—who cares whether this is called Punishment or not? That it includes most of the elements for which any punishment is feared—shame, exile, bondage, and years eaten by the locust—is obvious. Only enormous ill-desert could justify it; but ill-desert is the very conception which the Humanitarian theory has thrown overboard.

1) CSL assumes that no criminal desires reformation. This is not the case. Many criminals want to be stopped, but have trouble stopping themselves.

2) So what if "cure" feels like "punishment" to someone. That doesn't make it punishment, does it? I'm sure a child getting a vaccination "feels punished"; that doesn't make it so.

CSL: The distinction will become clearer if we ask who will be qualified to determine sentences when sentences are no longer held to derive their propriety from the criminal’s deservings. On the old view the problem of fixing the right sentence was a moral problem. Accordingly, the judge who did it was a person trained in jurisprudence; trained, that is, in a science which deals with rights and duties, and which, in origin at least, was consciously accepting guidance from the Law of Nature, and from Scripture. We must admit that in the actual penal code of most countries at most times these high originals were so much modified by local custom, class interests, and utilitarian concessions, as to be very imperfectly recognizable. But the code was never in principle, and not always in fact, beyond the control of the conscience of the society. And when (say, in eighteenth-century England) actual punishments conflicted too violently with the moral sense of the community, juries refused to convict and reform was finally brought about. This was possible because, so long as we are thinking in terms of Desert, the propriety of the penal code, being a moral question, is a question n which every man has the right to an opinion, not because he follows this or that profession, but because he is simply a man, a rational animal enjoying the Natural Light. But all this is changed when we drop the concept of Desert. The only two questions we may now ask about a punishment are whether it deters and whether it cures. But these are not questions on which anyone is entitled to have an opinion simply because he is a man. He is not entitled to an opinion even if, in addition to being a man, he should happen also to be a jurist, a Christian, and a moral theologian. For they are not question about principle but about matter of fact; and for such cuiquam in sua arte credendum. Only the expert ‘penologist’ (let barbarous things have barbarous names), in the light of previous experiment, can tell us what is likely to deter: only the psychotherapist can tell us what is likely to cure.

I don't share CSL's conception of the purpose of a jury. I prefer to think of juries as having instrumental value for coming to the correct (not necessarily, morally correct, but correct according to the law) position (ala the jury theorem).

This is what I would ask CSL:

What is the motivation of those who seek to inflict harm for harm suffered?

What is the motivation of those who seek to redeem the criminal, or at least reduce suffering to others by restraining a criminal humanely?

It seems to me, that those of the former mindset are the ones not respecting a person's humanity.

Another way of saying this is that one group attempts to do good for one who harms or, at least, inflict the least amount of harm possible to stop future harmful behavior. The other group simply wants to inflict as much harm as the person who harmed inflicted on someone else. The former seems more just than the latter.

Edward T. Babinski said...

Retributive punishment is not necessarily the only "Christian" kind. Christians can argue in favor of "reformative" aspects of prison life as well as retributive ones.

And physicalist materialists can also argue in favor of either case, or a little bit of both, based on effects.

Tyler said...

Lewis does not assume that no criminals desire to be reformed; Lewis instead is asking "can you in-fact cure a criminal?". A criminal's desire to be cured is different than him actually being cured. Subsequently, Lewis points out that psychological manipulation , as in its origins of a Vienna lab, do not work. His point that this psychological treatment is more inhumane than the retributive punishment is not his main point, but rather, he is is hitting two birds with one stone; it is simply a point of observation.

To what you said about criminals having a hard time stopping, Lewis would probably point out that a criminal in God's eyes is a criminal first in his heart. As Dallas Willard says so skillfully, a thief is not somebody who steals, but somebody who would steal if given the opportunity; this parallels Jesus' words of an adulterer; an adulterer is someone that commits adultery in their heart. They are both saying the same thing, it starts in the heart of a person, or their soul, and is their choice to make. You're missing the fact that Lewis said criminals can't be cured in the particular way he mentioned because the way in which he mentioned was secular psychology, not Christian in it's ethics. You cannot force (or "cure") somebody to change.

As far as they child feeling like his "cure" is a punishment; it doesn't matter the feeling but the reality. The child will indeed feel like he is being punished; what child wouldn't? However, the reality is that cure that feels like a punishment to him is saving his life. That is a simple choice to make. If your child was deathly-ill and needed a vaccination and you had it, would you not give it to him (although it would save his life) because he would think it punishment at the time?

On the point of the Jury. Lewis properly points out that Juries are an extension of jurisprudence. Lewis' contention is that jurisprudence is based on Judeo-Christian morality. Simply put, at the end of the day the jury will base their verdict on words such as ought, should have, wrong, right, etc. These words are implicitly morally based in their definitions.

To your point of those motivated to seek inflicting harm on those who harm others. Lewis did not believe that they "seek" to harm others as a man who "seeks" to harm people for no good reason. That is Lewis thesis. He believed that it is our duty as human beings to treat everyone as a human being; that means to give people what they deserve. That is hard-to-impossible to argue against.

Tyler said...

On your next point of the motivation of those who seek to redeem the criminal. There is a key point to grasp here. Lewis believed that zeal (or wanting to help somebody) is not the same as helping a person in the right way. He doesn't contend that every single one of those who seek to cure the criminal are doing so for wrong reasons. Lewis simply believes you cannot cure somebody, only Jesus can in a personal relationship with Him as he completely alters your disposition.

On your closing point. You say that the former group seems to attempt to do good for the criminal, by curing him. Lewis point on this could be said this way: the road to hell is paved with good intentions. Just because you should help a person suffering cardiac arrest (if you can) does not mean you should grab a pair of scalpels if they are near you and start surgery if you do not know how. Their "attempt" to do good for the criminal is not based biblically. And like a person who is not a surgeon trying to perform surgery, their cure simply doesn't work. Paul's writings support government carrying a sword for a reason. Paul is stern enough for people who cause trouble and dissension in a church by petty arguments; he says they must be let out of the church for the benefit of the whole church. Imagine what he thinks about people who kill...



Another way of saying this is that one group attempts to do good for one who harms or, at least, inflict the least amount of harm possible to stop future harmful behavior. The other group simply wants to inflict as much harm as the person who harmed inflicted on someone else. The former seems more just than the latter.

Tyler said...

mattghg, Lewis did not at all say the reason or justification to obey the law was deterrence, not at all.

Lewis said that you should obey the law because it is morally right to obey the law which God himself has given to us, both by law of reason and in written law, the ten commandments.

He said that if deterrence works, then it is like "hitting two birds with one stone".

mattghg said...

Tyler,

I didn't say that he did, and I don't think that he did. Read my comment again and you'll see that I agree with you.

Tyler said...

Exactly my fault, glad we are in agreemant to reason! Thank you for pointing that out.

Steve said...

I've often thought that one good way to bring forward and backward looking justifications together would be as follows:

Forwards looking justifications of punishment (the deterent and reformative effects) serve to justify the institution of punishment and perhaps certain of it's general structures.

Backwards looking justifications of punishment (desert) serve to justify individual acts of punishment once the institution of pubishment has already been justified.

I haven't done much reading on the matter, but I'd be interested to hear people's views on this idea.

Steve Lovell