By Thomas L. Wayburn, PhD
This is but an outline of an essay with almost none of the essential elements present, however it may be of some use to someone. Starting with Crime and Punishment by Dostoevski, I intend to make the case that punishment is an inappropriate response to social pathology. Someday I will get around to this.
Freedom is the exemption from external control, interference, regulation, etc. It is the power of determining one's own actions or making one's own decisions. These are dictionary definitions, but, for political purposes, there must be a temporal component to the definition. The exemption from external control, for instance, must be in perpetuity. Political freedom must include freedom from fear that the freedom can ever be abridged. The fundamental premise of this essay is that adult human beings must be free provided they do not commit acts that abrogate (or threaten to abrogate at some future time) the freedom of other human social links. Their freedom is nontransferable; they may not give it up even voluntarily. This is an underived principle accepted on the basis of reasonableness, aesthetics, and utility. It has been expressed in various ways down through the ages. One such expression is "Live and let live."
Violations of immoral laws might be considered a moral duty. We shall not pursue this category of crimes here. When Hitler ordered all Jews to report for transportation, the right thing to do was to disobey the law. If someone had assassinated Hitler, many of us would have considered that a praiseworthy deed. I am not ready to consider it at this point in my argument.
Should people obey laws they don't accept morally? Since we do not have a concensus as to what is moral, this question might revert to the previous one. Let us imagine though that the violator is alone or in a distinct minority in his (or her) rejection of the moral basis of the law. A case in point is that of a drug devotee living in a society that has laws against his favorite drugs. In this case, however, it's easy to prove that the laws are immoral. We need a more difficult case. Let's take the case of a man who thinks it's his right to murder his own children if they do not satisfy him in the course of their development. I maintain that, if we do not grant him his perceived right, we must treat him like a sovereign head of state who has been captured in a war. If we do not, we open up the possibility of every form of tyranny by the sovereign state. We shall dispose of the sovereign state philosophically in the sequel (the remainder of this essay).
Violations of laws congruent with morals accepted by the transgressor will be termed true crimes to distinguish them from acts concerning which we may have philosophical doubts. We shall deal with this category of crimes first because, if we are successful, we shall not have to concern ourselves with the other (doubtful) categories. We shall deal with crimes that satisfy everyone's definition of a crime.
An adult human being is a mentally self-sufficient person. A child is the offspring of a human being still dependent on and, normally, living in the abode of a natural or surrogate parent or parents. A human social link is an adult human being and any dependent children. (We have omitted the case of people who are neither children nor adults, i.e., diminished "adults", people who are neither mentally self-sufficient nor living with parents or guardians. At the risk of being too blunt, let me admit at once that we intend to treat diminished people who are not children somewhat like we treat children and somewhat like we treat animals. But the reader should recognize that we intend to treat children and animals with more respect than they have been treated under any moral system that we know of. This class of persons, which includes the feeble minded and the senile, most certainly has rights, but we shall not derive these rights in detail here. It is not the thrust of this essay.) A child may belong to more than one human social link.
Actions by the child that have no effect outside the child's social links will not be classified as crimes. The reader may be concerned about matricide and patricide, for example. These are rare events and will not be considered. The abuse of a child by a member of one of the child's social links may be prevented by the child's other social links, but, in the case where all of the adults in the child's social links agree to punish the child, only the rules that prohibit cruelty to animals may be invoked. Normally, we do not consider punishment of a child for misbehavior a crime. As we develop the theory of crime and punishment further we shall see that this is consistent.
We intend to forgive crimes by children against members of social links other than the child's. They should be handled within the child's social link as an ordinary case of misbehavior - as a part of the child's natural development. Of course, parents are responsible for the behavior of their children, so this forgiveness applies to the adult members of the transgressing human social link.
Jesus is supposed to have said, "He who is without sin cast the first stone." Jesus was against capital punishment in the case of prostitution - if I am not mistaken. George Bernard Shaw in the Preface to Androcles and the Lion construes the position of Jesus to be against the punishment of crimes. "Get rid of judges and punishment and revenge. Love your neighbor as yourself, he being a part of yourself. And love your enemies: they are your neighbors." (This is the third of Shaw's four parts of the philosophy of Jesus.) I am in concurrence with Jesus and Shaw and the thrust of this essay is that it is improper and impractical to punish crime, but until differences in wealth have been erased all bets are off: i.e., I cannot answer for the consequences of abandoning the punishment of crime in a society with gross differences in wealth. One would expect all out civil war with numerous factions as in Lebabon, except that such a war in American would be hundreds of times bloodier and more destructive,. On the other hand it is difficult to see how such a war can be avoided if we continue the course that we have been pursuing or any of its variations as proposed from time to time by our "leaders" and "intellectuals".
From Jesus we turn paradoxically to the Marquis DeSade, who ended his life under extreme persecution - not for what he did but - for what he wrote. (Please, don't try to argue that he would have received the same punishment even if he had written nothing.) In Juliette [%] DeSade relates how Olympia has recruited Juliette into a scheme to accept one hundred thousand crowns from the Chief of Police, Prince Ghigi, to burn down all the hospitals and alms-houses in Rome. Prince Ghigi stands to profit financially from this event. The hired arsonist will be Count Bracciani, the foremost physician in Europe. Olympia and Prince Ghigi discuss the proposed crime and the philosophy of crime in general. DeSade taxes our powers of forgiveness to the limit in this example.
"Verily, madame," said the master of the police, "you here qualify as crime an altogether unpretenious and certainly very comprehensible act. I consider charitable institutions the most baneful things a large city can contain; they drain the people's energy, they soften its fibre, they promote sloth; they are in every sense pernicious; the needy individual is to the State as the parasite branch is to the peach-tree; it causes it to wither, drinks its sap and bears no fruit."
"But," Olympia interrupted, "should we do away with all laws in an empire?"
"Restored to a state of Nature, mankind, I affirm would be happier than it can possibly be under the absurd yoke of law. I am opposed to man's renunciation of a single ounce of his capacities. He has no need of laws for his self-protection; in him Nature put the necessary instincts and energy for that; taking the law into his own hands he will always obtain a speedier, purer, more incisive, stronger-brewed justice than anything to be in a courtroom, for his act of personal justice will be determined by his personal interest and the hurt he has personally sustained, whereas the laws of a people are never other than the mass and the result of the interests of all the lawmakers who cooperate in erecting those laws."
"But without the laws you will be oppressed."
"Pish, that matters not to me if I have the right to repay oppression in kind: I prefer to be oppressed by a neighbor whom I can oppress in my turn, than to be oppressed by the law before which I am helpless."
"But not everyone will wield it appropriately, and iniquity will become general."
"Impossible. I go farther, I grant you that, without laws, the sum of crime increases, that without laws, the world has turned into one great volcano belching forth an uninterrupted spew of execrable crimes; and I tell you this situation is preferable, far preferable to what we have at present. I envisage a perpetual outpouring of conflict, injury and aggression; it is nothing beside what takes place under the rule of law, for the law often smites the innocent and to the total of victims produced by the criminal must be added the mass of those produced by legal miscarriage and iniquity: to be sure, we will have those crime sacrifices; but the ravages of the law will be a thing of the past. Invested with the right to do his own revenging, the oppressed man will proceed with speed, diligence, economy and certitude to punish his oppressor and none other."
"But crime is a plague to the world, the more laws there are, the fewer cirmes shall there be."
"'Tis a pretty jest. But seriousness commands us to recognize that it's the multitude of laws that is responsible for this multitude of crimes.
"Cease to believe such-and-such a deed is criminal; make no laws to repress it; the crime disappears.
"Well, great deeds are frequently very necessary; virtues never are. Brutus, the kindly head of his family, would have been but a dull and melancholy fellow; Brutus, the murderer of Caesar simultaneously performs a crime and a great deed: the former personage would have remained unknown to history, the latter became one of its heroes."
"And so, according to you, one may feel at complete ease amidst the blackest crimes?"
"'Tis in virtuous surroundings comfort is impossible since it is clear that you then exist in an unnatural situation, in a state contrary to the Nature which cannot exist, renew herself, preserve her energy and vitality save through the immensity of human crimes, and so the best course for us is to endeavor to make virtures out of all human vices, and vices out of all human virtures."
And in Eugenie de Franvil [%] DeSade gives the following words to the clergyman Clervil:
"Crime is such a distresssing thing, Madame," this honest man was sometimes wont to say, "it is so highly unlikely that a decent person should voluntarily exceed all the bounds of modesty and virtue, that it is never with anything but the most extreme repugnance that I make up my mind to ascribe such wrongs to someone. Be wary in suspecting the presence of vice. Our suspicions are often the handiwork of our pride and vanity, and almost always the fruit of a secret comparison that takes place in the depths of our soul: we hasten to assign evil, for this gives us the right to feel superior. If we reflect seriously upon the matter, would it not be better to leave a secret sin forever hidden rather than to dream up imaginary ones because of our unforgivable haste, and thus, for no reason, to sully in our eyes people who have never committed any wrongs save those which our pride has ascribed to them? And would our world not be a better place if this principle were always followed? Is it not infinitely less necessary to punish a crime than it is essential to prevent it from spreading? By leaving it in the darkness it seeks, have we not as it were annihilated it? Scandal noised abroad is certain scandal, and the recital of it awakens the passions of those who are inclined toward the same kind of crime. Crime being inevitably blind, the guilty party of the as yet undiscovered crime flatters himself that he will be luckier than the criminal whose crime has been found out. 'Tis not a lesson he has been given, but a counsel, and he gives himself over to excesses that he might never have dared to indulge in without the rash revelations...falsely mistaken for justice, but which, in reality, are nothing more than ill-conceived severity, or vanity in disguise."