THE NATURE OF THE MORAL EMOTIONS (continued)
Project Gutenberg EPUB3 edition
Westermarck, Edward
The advocates of these various theories are unanimous in condemning retributive punishment as wrong. Without the grounds of social defence, says M. Guyau, “the punishment would be as blameworthy as the crime, and … the lawgivers and the judges, by deliberately condemning the guilty to punishment, would become their fellows.”66 For my own part I believe, on the contrary, that those who would venture to carry out all the consequences to which the theories of social defence or of reformation might lead, would be regarded even as more criminal than those they punished, not only by the opponents, but probably by the very supporters of the theories in question. A brief statement of some of those consequences will, I hope, suffice to prove that punishment can hardly be guided exclusively by utilitarian considerations, but requires the sanction of the retributive emotion of moral disapproval.
The principle of repressing crime by eliminating the criminal may at once be put aside, because it has no reference to the punishment of criminals, although it contains a suggestion—and a most excellent one indeed—as to the proper mode of treating them. Their exclusion from the company of their fellow-men—not to speak of their elimination by death—certainly entails suffering, but, according to the principle with which we are dealing, this suffering is not intended. On the other hand, punishment, in the ordinary sense of the word, always involves an express intention to inflict pain, whatever be the object for which pain is inflicted. We do not punish an ill-natured dog when we tie him up so as to prevent him from doing harm, nor do we punish a lunatic by confining him in a madhouse.
According to the principle of determent, the infliction of suffering in consequence of an offence is justified as a means of increasing public safety. The offender is sacrificed for the common weal. But why the offender only? It is quite probable that a more effective way of deterring from crime would be to punish his children as well; and if the notion of justice derived all its import from the result achieved by the punishment, there would be nothing unjust in doing so. The only objection which, from this point of view, might ever be raised against the practice of visiting the wrongs of the fathers upon the children, is that it is needlessly severe; the innocence of the children could count for nothing. Nor do I see why the law should not allow our own judges now and then to follow the example of their Egyptian colleague who in an intricate lawsuit caused a person avowedly innocent to be bastinadoed with the hope that whoever was the real culprit might be induced to confess out of compassion.67 Moreover, if the object of punishment is merely preventive, the heaviest punishment should be threatened where the strongest motive is needed to restrain. Consequently, an injury committed under great temptation, or in a passion, should be punished with particular severity; whereas a crime like parricide might be treated with more indulgence than other kinds of homicide, owing to the restraining influence of filial affection. Could the moral consciousness approve of this?
Again, if punishment were to be regulated by the principle of reforming the criminal, the result would in some cases be very astonishing. There is no more incorrigible set of offenders than habitual vagrants and drunkards, whereas experience has shown that the most easily reformed of all offenders is often some person who has committed a serious crime. According to the reformation theory, the latter should soon be set free, whilst the petty offender might have to be shut up for all his life. Nay more, if the criminal proves absolutely incorrigible, and not the slightest hope of his reformation is left, there would no longer be any reason for punishing him at all.68 The reformationist may also be asked why he does not try some more humane method of improving people’s characters than by the infliction of suffering.
It may seem strange that theories which are open to such objections should have been able to attract so many intelligent partisans. These theories must at least possess a certain plausibility. If punishment on the one hand springs from moral indignation, and on the other hand is frequently interpreted as a means either of deterring from crime or of reforming the criminal, there must obviously be some connection between these ends and the retributive aim of moral resentment. There must be certain facts which, to some extent, fill up the gap between the theory of retribution and the other theories of punishment.
The doctrine of determent regards punishment as a means of preventing crime. A crime always involves the infliction of pain; and the one thing which men try to prevent for its own sake is pain. The one thing which arouses resentment is likewise pain. There must consequently be a general coincidence between the acts which people resent and the acts which the law would punish if it were framed on the principle of determent. But the resemblance between the desire to deter and resentment is greater still. Resentment is not only aroused by pain, but is a hostile attitude towards its cause, and its intrinsic object is to remove this cause, that is, to prevent pain. An act of moral resentment is therefore apt to resemble a punishment inflicted with a view to deterring from crime, provided that the punishment is directed against the cause of crime—the criminal himself—and is not unduly severe.
The doctrine of reformation aims at the removal of a criminal disposition of mind by improving the offender. Moral resentment likewise aims at the removal of a volitional cause of pain, by bringing about repentance in the offender. That repentance ought to be followed by forgiveness, partial or total, is a widely recognised moral claim.
According to the Chinese Penal Code, whoever, having committed an injury which can be repaired by restitution or compensation, surrenders himself voluntarily, and acknowledges his guilt to a magistrate, before it is otherwise discovered, shall be freely pardoned, though all claims upon his property shall be duly liquidated.69 In Madagascar, according to a law made in 1828, “all the fines shall be reduced one-half, according to the nature of the fines, if the persons guilty accuse themselves.”70 According to Zoroastrianism, one element of atonement consists in repentance, as manifested by avowal of the guilt and by the recital of a formula, the Patet.71 It is said in the Laws of Manu:—“In proportion as a man who has done wrong, himself confesses it, even so far he is freed from guilt, as a snake from its slough…. He who has committed a sin and has repented, is freed from that sin, but he is purified only by the resolution of ceasing to sin and thinking ‘I will do so no more.’”72 According to the Rig-Veda, Varuna inflicts terrible punishments on the hardened criminal, but is merciful to him who repents; to Varuna the cry of anguish from remorse ascends, and before him the sinner comes to discharge himself of the burden of his guilt by confession.73 So, also, Zeus pardons the repentant.74 The main doctrine of Judaism on the subject of atonement is comprised in the single word Repentance. No teachers, says Mr. Montefiore, “exalted the place and power of repentance more than the Rabbis.
There was no sin for which in their eyes a true repentance could not obtain forgiveness from God.”75 According to the Talmud, a space of only two fingers’ breadth lies between Hell and Heaven: the sinner has only to repent sincerely, and the gates to everlasting bliss will spring open.76 Jesus commanded his disciples to forgive injuries if followed by repentance:—“If thy brother trespass against thee, rebuke him; and if he repent, forgive him. And if he trespass against thee seven times in a day, and seven times in a day turn again to thee, saying, I repent; thou shalt forgive him.”77
But repentance not only blunts the edge of moral indignation and recommends the offender to the mercy of men and gods: it is the sole ground on which pardon can be given by a scrupulous judge. When sufficiently guided by deliberation and left to itself, without being unduly checked by other emotions, the feeling of moral resentment is apt to last as long as its cause remains unaltered, that is until the will of the offender has ceased to be offensive; and it ceases to be offensive only when he acknowledges his guilt and repents. It is true that the mere performance of certain ceremonies is frequently supposed to relieve the performer of his sins,78 and that the same end is thought to be attained by pleasing God in some way or other, by sacrifice, or alms-giving, or the like. Men even lay claim to divine forgiveness as a right belonging to them in virtue of some meritorious deeds of theirs, according to the doctrine of opera supererogativa—a doctrine which, in substance, is not restricted to Roman Catholicism, but is found, in a more or less developed form, in Judaism,79 Muhammedanism,80 Brahmanism,81 and degenerated Buddhism.82 But all such ideas are objectionable to the moral consciousness of a higher type.
They are based on the crude notion that sin is a material substance which may be removed by material means; or on the belief that an offender may compound with the deity for sinning against him, in the same way as he pacifies his injured neighbour, by bribery or flattery; or on the assumptions that by a good or meritorious deed a man has done more than his duty, that a good deed stands in the same relation to a bad deed as a claim to a debt, that the claim is made on the same person to whom the debt is due, namely, God—even though it be only by his mercy—and that the debt consequently may be compensated by the claim in the same way as the payment of a certain sum may compensate for a loss inflicted. This doctrine attaches badness and goodness to external acts rather than to mental facts. Reparation implies compensation for a loss. The loss may be compensated by the bestowal of a corresponding advantage; but no reparation can be given for badness. Badness can only be forgiven, and moral forgiveness can be granted only on condition that the agent’s mind has undergone a radical alteration for the better, that the badness of the will has given way to repentance.83 Hence the Reformation proscribed offerings for the redemption of sins, together with the trade in indulgences; and we meet with an analogous movement in other comparatively advanced forms of religion.
In reformed Brahmanism, repentance is declared to be the only means of redeeming trespasses.84 The idea expressed in the Psalms, that God delights not in burnt offerings, but that the sacrifices of God are a broken and a contrite heart,85 became the prevailing opinion among the Rabbis, most of whom regarded repentance as the conditio sine quâ non of expiation and the forgiveness of sins.86 Let us also remember that he who commanded his followers to forgive a brother for his sin, at the same time pronounced the qualification: “if he repent.”87
That moral indignation is appeased by repentance, and that repentance is the only proper ground for forgiveness, is thus due, not to the specifically moral character of such indignation, but to its being a form of resentment. This is confirmed by the fact that an angry and revengeful man is apt to be in a similar way influenced by the sincere apologies of the offender. As Aristotle said, men are placable in regard to those who acknowledge and repent their guilt: “there is proof of this in the case of chastising servants; for we chastise more violently those who contradict us, and deny their guilt; but towards such as acknowledge themselves to be justly punished, we cease from our wrath.”88 To take an instance from the savage world. The Caroline Islander, according to Mr. Christian, “is inclined to be revengeful, and will bide his time patiently until his opportunity comes. Yet he is not implacable, and counts reconciliation a noble and a princely thing. There is a form of etiquette to be observed on these occasions—a present (katom) is made, an apology offered—a piece of sugar-cane accepted by the aggrieved party—honour is satisfied and the matter ends.”89 In the case of revenge, external satisfaction or material compensation is often allowed to take the place of genuine repentance, and the humiliation of the adversary may be sufficient to quiet the angry passion. But the revenge felt by a reflecting mind is not so readily satisfied. It wants to remove the cause which aroused it.
The object which resentment is chiefly intent upon, Adam Smith observes, “is not so much to make our enemy feel pain in his turn, as to make him conscious that he feels it upon account of his past conduct, to make him repent of that conduct, and to make him sensible, that the person whom he injured did not deserve to be treated in that manner.”90 The delight of revenge, says Bacon, “seemeth to be not so much in doing the hurt, as in making the party repent.”91
Source notes
62 Schopenhauer, Die Welt als Wille und Vorstellung, ii. 683 sqq.
63 Bentham, Principles of Morals and Legislation, p. 170 sq. n. 1: “… Example is the most important end of all.” Idem, Rationale of Punishment, p. 19 sqq.
64 See von Feuerbach-Mittermaier, op. cit. p. 40.
65 Garofalo, Criminologie, p. 251 sqq. Ferri, Criminal Sociology, p. 204 sqq.
66 Guyau, Esquisse d’une morale sans obligation ni sanction, p. 148.
67 Burckhardt, Arabic Proverbs, p. 103 sq.
68Cf. Morrison, Crime and its Causes, p. 203; Durkheim, Division du travail social, p. 94.
69Ta Tsing Leu Lee, sec. xxv. p. 27 sq.
70 Ellis, History of Madagascar, i. 386.
71 Darmesteter, in Sacred Books of the East, iv. p. lxxxvi.
72Laws of Manu, xi. 229, 231. Cf.ibid. xi. 228, 230.
73Rig-Veda, i. 25. 1 sq.; ii. 28. 5 sqq.; v. 85. 7 sq.; vii. 87. 7, 88. 6 sq., 89. 1 sqq. Barth, Religions of India, p. 17.
74Ilias, ix. 502 sqq.
75 Montefiore, op. cit. pp. 524, 335 n.
76 Deutsch, Literary Remains, p. 53. Cf. ibid. p. 56; Katz, Der wahre Talmudjude, p. 87 sq.; Kohler, ‘Atonement,’ in Jewish Encyclopedia, ii. 279; Moore, ‘Sacrifice’ in Cheyne and Black, Encyclopædia Biblica, iv. 4224 sq.
77St. Luke, xvii. 3 sq.
78Supra, p. 53 sqq. Heriot, Travels through the Canadas, p. 378 (ancient Mexicans). Adair, History of the American Indians, p. 150. Krasheninnikoff, History of Kamchatka, p. 178. Williams and Calvert, Fiji, p. 24.
79 Montefiore, op. cit. p. 525 sqq.
80Koran, xi. 116. Sell, Faith of Islám, p. 220 sq. According to Muhammadanism, however, it is only “little sins” that are forgiven if some good actions are done, whereas “great sins” can only be forgiven after due repentance (ibid. p. 214).
81 Wheeler, History of India, ii. 475.
82Indo-Chinese Gleaner, iii. 150, 161, 164. Davis, China, ii. 48.
83 This point was certainly not overlooked by the Catholic moralists, but even the most ardent apology cannot explain away the idea of reparation in the Catholic doctrine of the justification of man (cf. Manzoni, Osservazioni sulla Morale Cattolica, p. 100). Penance consists of contrition, confession, and satisfaction, and contrition itself is chiefly “a willingness to compensate” (Catechism of the Council of Trent, ii. 5. 22).
84 Goblet d’Alviella, Hibbert Lectures on the Origin and Growth of the Conception of God, p. 263.
85Psalms, li. 16 sq.
86 Moore, loc. cit. col. 4225.
87Cf. Martineau, Types of Ethical Theory, ii. 203.