We have largely forgotten the art of public disputation, the ability to discuss divergent points of view with due regard to the accepted proprieties of debate. We should welcome the free and frank interchange of opinion, for it is only by such discussion and debate that we can hope to arrive at an informed judgment. For this reason a recent debate (conducted in the best academic tradition) between Professor C. S. Lewis and Professor Norval Morris is to be welcomed. The debate gains an added interest from the fact that it took place in an Australian setting. It began over an article in the Australian legal journal, Res Judicate, by C. S. Lewis on “The Humanitarian Theory of Punishment.” (At the end of the article C. S. Lewis writes: “You may ask why I send this to an Australian periodical. The reason is simple and perhaps worth recording: I can get no hearing for it in England.”)
The subject at issue was the nature of crime and punishment. Is crime to be regarded as sickness or as sin? This basic question determines our concept of punishment. If crime is the result of disease the remedy is psychiatry; if crime is the result of deliberate lawlessness the remedy is punishment. Lewis is concerned lest we surrender ourselves to the “conditioners” and “straighteners” on the specious ground that those who transgress are only sick.
It is obvious that this raises questions of the most far-reaching consequence. Whether crime is judged to be the result of mental sickness or the manifestation of an evil heart will determine to a great degree the treatment of the criminal. People are not always aware of the implications of each position to the criminal and to society. Therefore it will be useful to summarize the arguments at this point.
C. S. Lewis points out that if we believe crime is pathological we shall be concerned to “mend” the criminal. It would appear, at first sight, as if we had 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.” The consequences, however, are not always clearly understood. “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 psycho-therapy, the thief will be forced to undergo treatment.” And this is precisely the danger. Lewis says: “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 implications are not always grasped. Lewis warns us of the consequences:
“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 no 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’.”
The humanitarian is not concerned with punishing, but with healing. Lewis writes:
“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 Viennese laboratory to which I never professed allegiance; to know that this process will never end until either my captors have succeeded or I have 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.”
Ultimately two different conceptions of man lie behind the traditional and the so called humanitarian approach:
“To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we have deserved it, because we ‘ought to have known better’ is to be treated as a human person made in God’s image.”
It is the supreme limitation of the humanitarian approach that it ignores the doctrine of original sin. It does not reckon seriously with the fact that human nature is fallen. Lewis comments:
“The practical problem of Christian politics is not that of drawing up schemes for a Christian society, but that of living as innocently as we can with unbelieving fellow-subjects under unbelieving rulers who will never be perfectly wise and good and who will sometimes be very wicked and very foolish. And when they are wicked the Humanitarian theory of Punishment will put in their hands a finer instrument of tyranny than wickedness ever had before. For if crime and disease are to be regarded as the same thing, it follows that any state of mind which our masters choose to call ‘disease’ can be treated as crime; and compulsorily cured. It will be vain to plead that states of mind which displease government need not always involve moral turpitude and do not therefore always deserve forfeiture of liberty. For our masters will not be using the concepts of Desert and Punishment but those of disease and cure. We know that one school of psychology already regards religion as a neurosis. When this particular neurosis becomes inconvenient to government what is to hinder government from proceeding to ‘cure’ it? Such ‘cure’ will, of course, be compulsory; but under the Humanitarian theory it will not be called by the shocking name of Persecution. No one will blame us for being Christians, no one will hate us, no one will revile us. The new Nero will approach us with the silky manners of a doctor, and though all will be in fact as compulsory as the tunica molesta of Smithfield or Tyburn, all will go on within the unemotional therapeutic sphere where words like ‘right’ and ‘wrong’ or ‘freedom’ and ‘slavery’ are never heard. And thus when the command is given every prominent Christian in the land may vanish overnight into Institutions for the Treatment of the Ideologically Unsound and it will rest with the expert gaolers to say when (if ever) they are to re-emerge. But it will not be persecution. Even if the treatment is painful, even if it is life-long, even if it is fatal, that will be only a regrettable accident; the intention was purely therapeutic.”
Lewis is under no illusions concerning the peril which confronts us. He says it is essential to oppose the humanitarian theory of punishment, “root and branch.” He clinches his argument with these final reflections on the therapeutic theory of punishment.
“It carries on its front a semblance of Mercy which is wholly false. That is how it can deceive men of good will. The 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 of 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 gum-boil or a club foot? But the Humanitarian theory wants simply to 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 kindnesses which they in fact had a right to refuse, and finally kindnesses which no one but you will recognize as kindnesses 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.”
Norval Morris, then Professor of Criminology at the University of Melbourne, endeavored to reply to these incisive criticisms.
“We face this task with trepidation, seeing ourselves as Davids with literary slings incapable of delivering a series of blows as incisive as even one phrase from the armoury of Goliath Lewis.”
Norval Morris asserts that it is possible to use psychiatry without surrendering to its totalitarian claims. The psychiatrist, he says, “can be kept on tap and yet not on top.”
Morris discounts the dangers to which Lewis refers: “The Courts have to hand excellent techniques for controlling the exuberance of the expert in criminology or penology. Let the ultimate control always reside in the Courts, let the expert always be accountable to them, let the criminal always have access to the Court, let the controls of natural justice which the law has built up be applicable, and, it is suggested, the tyranny which Lewis foreshadows will not eventuate. This type of protection of the individual citizen is surely not beyond the wit of a Nation that has built up the concept of a Parliament and the idea of a Jury.”
More positively, Norval Morris points out that the retributive conception of punishment is inapplicable in all circumstances:
“Thus for child delinquents, for habitual criminals, and for those on Probation—to take only a few—the punishments accepted by all civilized societies as suitable are not ‘deserved’ punishments in any expiatory talionic sense. This concept of ‘desert’ is really the lynch-pin of Lewis’ article. As he sees it, the idea of the ‘deserved’ or ‘just’ punishment is an acceptance that for each offense, calculated in the light both of the crime committed and the history of crimes perpetrated by that individual, there is a price of punishment known fairly widely throughout the community—that there is, in other words, a price-list of deserved punishments. This may well be a true picture of what is in many men’s minds; but it is only true for those people who consider a static situation in crime, who consider only two parties to any crime—the criminal and his victim. Now the contrast with this is the Humanitarian Theory which sees crime as a dynamic situation, not involving two parties, but involving many parties: not only a criminal and his victim, but a whole list of future potential victims who, unless they are protected with the best means at our disposal, are likely to suffer hardship.”
He claims that law has a limited efficacy: “It may be that a vital cause of our different view of punishment from that accepted by Lewis lies in our lower estimation of the efficacy of law as a means of social control. Law stands below Custom and well below Religion as a means of guiding men to the Good Life. It is a relatively blunt instrument of moral control, and should not be thought of as a means of achieving expiation of sin or completely just retribution for evil-doing.”
No one can fail to be grateful to C. S. Lewis for raising these points in such trenchant form.
