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THE HUMANITARIAN THEORY OF PUNISHMENT 1
A REPLY TO C. S. LEWIS
By NORVAL MORRIS and DONALD BUCKLE THE University of Melbourne has recently established a Department of Criminology. Our Chairman is a Judge of the Supreme Court, and our Board includes specialists in Medicine, Psychology, Socio- logy, Psychiatry, and Criminology. Already it is clear that we all adhere, to a greater or less degree, to what C. S. Lewis in his entirely delightful article called a "Humanitarian Theory of Punishment". His thesis is so profoundly opposed to our work as participants in this new Department that it is incumbent upon us to state our position; though 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. Lewis' vital contention is that the Humanitarian Theory gives to the supposed expert an unwarranted and unjustified power over other men's lives. It is, of course, undeniable that to put a man in a white coat, or to give him a degree in psychology or sociology, does not diminish his sadistic potentialities or the disrupting effects of power on him. Such specialists must be regarded with that healthy scepticism of which Lewis is a fine champion; but scepticism should not lead us to deny their usefulness entirely, and insist-as does Lewis-on purely condign punishment, linked, as he phrases it, to the criminal's "desert". As we shall show, the use of the expert does not involve any abandonment of control over him. He can be kept on tap and yet not on top. Let us attempt a reply to Lewis' article by advancing two proposi- tions contrary t6 his thesis. First, the possibility of linking with the Humanitarian Theory of Punishment a just consideration of the interest of society and of the criminal. Secondly, the impossibility of his suggested return to the Retributive Theory 6f Punishment. If these propositions be demonstrated, there is little left of Lewis' argument; though its great worth as a warning against the uncon- trolled allocation of powers remains. Lewis rests his case on a suggested dichotomy in which a contrast is drawn. between the "deserved" or "just" punishment on the one hand. and therapy or treatment on the other-the latter being the
IThis article, a reply to the previous one, is reprinted from Twentieth Century with the kind permission of the editor. 231
23 2 Res Judicatae.
significant purpose of those upholding the Humanitarian Theory of Punishment. To us, this seems an unreal distinction. Whatever the punishment inflicted as a "just" punishment, whatever theory of punishment one may espouse, it cannot be denied that reformation procured in association with it is a desirable thing. To an extent, therefore, some concept of therapy is involved in every desirable theory of punishment. What Lewis opposes is that therapy should be procured through punishment (not in association with it but by means of it), arguing that if treatment be elevated to a purpose as distinct from a mere subsidiary part of a punishment we shall have been delivered over to omnipotent moral busybodies who will work cruelty without end. Herein then lies the kernel of the discussion - Lewis regards reformation and deterrence as subsidiary and never as a justification of punishment and suggests that the Humanitarian Theory of Pun- ishment has erected them into its vital aims. This, we believe, is a perversion of the Humanitarian theory. To us, the vital purpose of the criminal law is the protection of the community, always limiting and conditioning its punishments in the light of two other factors, namely, a determination by its actions never to deny the fundamen- tal humanity of even the most depraved criminal, and secondly, a critical appraisal of the limits of our understanding of the springs of human conduct and our ability to predict its course. There is a third limitation imposed by the community's expectations of penal sanctions which we shall later consider. Lewis' article omits any reference to the protection of the community as a valid aim of penal sanctions. He stresses the human personality of each individual criminal, and with this we agree. One human personality he overlooks, however, is the individual human- ity of the potential victim of the criminal. It is this humanity we defend; the humanity of those whose only likely connection with the criminal law is the law's failure to protect them from clearly dangerous people. There is, sUJ:ely, a parallel in the medical sphere. None of us shrinks from imposing considerable limitations on the freedom of action of those suffering from an infectious disease, and it is perfectly clear that over a wide area we have a Humanitarian Theory of Social Medicine. By suggesting this, we do not mean to take up the com- pletely determinist position, and do not argue that criminal actions are as inaccessible to the actor's control as are the germs that may infect him. Crime is not a personal disease; it cannot be equated to personal disease; it is, however, a social disease. Looked at from the point of view of society, crime is a disease of an integral part of that
Res Judiclltae A test case is given by one of the- basic demands of those adhering to the Humanitarian theory: {or certain types of criminals the Humanitarians wish to substitute for definite sentences some degree of indeterminacy as to the period those criminals will spend in prison. As Lewis points out. herein lies a real risk of tyranny. The answer is again to be found in the existing courts. These should require the expert to give evidence publicly and. subject to cross- examination. to substantiate the reasons for his decision concerning the release of the criminal. The prisoner should have the power to initiate this type of enquiry at regular intervals. and the onus of proof should never shift from the expert. An example of wise techniques of judicial control of the indeter- minate sentence is to be found in the recent Tasmanian Sexual Offences Act 1951. which allows the courts to impose several forms of indeterminate sentence accompanied by re-educative measures on certain sexual offenders. One of these sentences is called a Treatment Order. and section 13 (2) of the Act protects the convicted criminal against the tyranny of the expert by providing that: HA person against whom a treatment order has been made may petition the court to discharge the order upon the ground- (a) that the treatment is unreasonable; (b) that the treatment is ineffective: (c) that the treatment is not being given or is unduly protracted; or (d) that the ... petitioner is cured of the indisposition which the order was made to cure." The use of "indisposition" is infelicitous. and there 'may well be other grounds on which the criminal should be allowed to petition the court; but the need to avoid the abuse of power and the estab- lishment of means of achieving this is clearly recognized in this Act as it is throughout Anglo-American jurisprudence. This recognition constitutes a complete rebuttal of Lewis' worst fears. We .therefore submit that we have demonstrated the practical possibility of a Humanitarian theory carrying with it a due regard for the interests both of society and of the individual criminal. Now let us suggest the impossibility of a return, as Lewis recommends. to the Retributive Theory of Punishment. For certain types of criminals. given, our present moral conscience. a return to a pure Retributive Theory is unthinkable. At both ends of .the scale of punishment practically every civilized society has abandoned the Retributive Theory. With child criminals· we have abandoned it quite explicitly, holding that the welfare of the child
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must frequently be regarded as a major consideration motivating courts charged with sentencing juvenile delinquents. Th~, cost to the community of rewarding the larceny of a few sweets by a ,child with a punishment exactly equated to that social harm, has proved too expensive to be tolerated. It has been calculated that an incurable schizophrenic costs the community some £20,000 throughout his life, and it is clear that the adult criminal costs the community a great deal more. Therefore, both for the child's sake and for the community's, it is frequently necessary to reward the delinquent child with a punishment not "justly related", in the sense in which Lewis uses the phrase, to the offence he has committed. The em- phasis must be on therapy. We suggest that there would be no responsible opinion reversing this development. And at the other end of the scale of punishment the community has likewise abandoned any hint of a Retributive Theory. With habitual criminals every civilized society has abandoned any attempt to equate the punishment to the latest crime that that criminal com- mitted. There are various techniques adopted all over the world. By some the habitual criminal is first punished for the crime he has committed and then held in prison for a protracted period on account of his being an habitual criminal. Others add together the man's dangerousness to the community and his latest offence, and impose a sentence on him as an habitual criminal which is clearly unrelated to that offence only. Here again nobody could tolerate the thought of abandoning this Humanitarian approach to punish- ment and reverting to a purely Retributive one. It is, we agree, possible ,to gather some support for a return to the Retributive Theory of Punishment for the graver and more profes- sional type of criminal who has not yet developed into the habitual criminal. It is possible to do this simply because we do not know very much about the causes of crime. It is not possible, however, to find support for such a retrograde step in regard to those people who are at present put on probation. These are asked to atone for their crimes by being good citizens. And the Courts, advised by those who have studied problems of punishment and by those proba- tion officers who are working in society, have decided that the people they put on probation are good risks, that is to say, they are not likely to offend again. A Retributive Theory could not tolerate such an approach to the punishment of these more minor offenders. Agreed, there is room for mercy in a Retributive Theory, but it could not be a universally applied mercy for certain types of crimes or criminals-if so, it would no longer be Retributive. Thus for child delinquents, for habitual criminals, and for those
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their actions in relation to criminals, punishment may be kept linked to the social conscience of the community. This, we submit, is a more truly comprehended "just" or "deserved" punishment than is the entirely emotional, atavistic approach which .Lewis advocates. It must not be assumed that Lewis' version of the Retributive Theory is itself completely satisfactory. Indeed, arguing from no less an authority than St. Thomas Aquinas, we may describe "retri- bution" as a deprivation or limitation of the individual's powers to continue to exercise his choice between good and evil acts in the area where his delinquency has occurred. (See Dr. Hawkins' article "Punishment and Moral Responsibility" at page 92 of The King's Good Servant-Papers read to the Thomas More Society of London, 1948.) In most cases, therefore, the punishment which will take the form of removal from society is itself the retribution, and should logically continue until the prisoner reaches a sufficient state of grace that he no longer intends to transgress. To us, there is no lack of conformity between theories derived from the Scholastic and Humanitarian philosophies. Lewis may have been led to his conclusion by what appears to us an over-simplified view of the aetiology of crime. He appears to regard any crime solely as the result of a wrong choice between doing good or doing ill. We do not propose to wander into the morass of the free will-determinism argument, for we agree with Lewis that this is a cause of crime. We do not, however, regard it as the only cause of crime which is to us an extremely complicated moral, physi- cal, psychological, and sociological phenomenon in which the totality of the criminal's inheritance and environment, together with his area of free will, will have causal connection with the crime he com- mits. To relate punishment to but one aetiological factor is to minimize the difficulty of fixing a rational sentence. Our argument thus leads to a rejection of the Retributive Theory, not only on philosophical but also on purely practical political grounds, and to an acceptance of a morally just Humanitarian approach to punishment. 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 expia- tion of sin or completely just retribution for evil-doing.
