Peter Escalante briefly mentioned C. S. Lewis’s theory of punishment in his recent post. Prof. Lewis’s thoughts on that matter can be found in his essay, “The Humanitarian Theory of Punishment,” published in God in the Dock and available online here. In it, he gives a compelling defense of the old concept of punishment as just desert over and against the progressive notion of punishment as rehabilitation. The former he believes to be the truly humane and just approach. The latter, while couched in the language of liberalism and sympathy, actually very quickly devolves into social manipulation, cruelty, and even tyranny.
The old theory of retribution was fairly straightforward. A certain crime deserved a certain punishment. It was right and just. While figurative language of “paying one’s debt to society” was used, such was always understood in forensic terms. Upon completion of one’s sentence, the criminal’s debt was paid. No more was to be exacted from him.
The new theory is quite different. Prof. Lewis explains:
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. It is maintained that the only legitimate motives for punishing are the desire to deter others by example or to mend the criminal. When this theory is combined, as frequently happens, with the belief that all crime is more or less pathological, the idea of mending tails off into that of healing or curing and punishment becomes therapeutic. Thus it appears at first sight that we have 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. What could be more amiable? One little point which is taken for granted in this theory needs, however, to be made explicit. 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. Otherwise, society cannot continue.
This theory is advertised as more merciful and even, sometimes, as more charitable and Christian. Retribution and the old lex talionis seems so very barbaric, so very Mosaic. Haven’t we moved beyond that? But in actuality, these emotional appeals are but masks hiding the true situation. The new theory, Prof. Lewis writes, “really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being.”
Why is this the case? Precisely because “the Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice.”
Essentially what this means is that, in the absence of justice, the sentencing will be based on something else, something severed from the concept of equity and rectitude and connected instead with psychology and sociology. The criminal will be “rehabilitated,” which is to say he will be “fixed.” Or, more plainly, he will be turned into the kind of person that the society, or those in charge of it, want him to be.
[In the] remedial view of punishment the offender should, of course, be detained until he was cured. And or course the official straighteners are the only people who can say when that is. The first result of the Humanitarian theory is, therefore, to substitute for a definite sentence (reflecting to some extent the community’s moral judgment on the degree of ill-desert involved) an indefinite sentence terminable only by the word of those experts – and they are not experts in moral theology nor even in the Law of Nature – who inflict it. Which of us, if he stood in the dock, would not prefer to be tried by the old system?
The standard of social judgment is relevant to our recent discussions of natural law. Under the old theory of retributive justice, the measure of equity was publicly accessible. Under the new theory, it is limited to the findings of the experts, findings which are, while perhaps not always open to question, always open to change.
Prof. Lewis points out that this makes the criminal a means to an end. The punishment is not merely for the criminal’s sake, but for society’s sake. But again, it must be remembered, it is not for society’s sake in the sense of preserving justice, but rather in the sense of societal control: in creating and preserving a certain sort of political community. And since this is the case, the theory need not limit itself to punishment at all. Indeed, it will prove even more effective and efficient under the mode of prevention.
This is a theme which Prof. Lewis works into That Hideous Strength. The N.I.C.E. combine police work with the social sciences as a means of control, and the rehabilitative theory of punishment is central to the coercion. Fairy Hardcastle, in her exchange with Mark Studdock, makes this all quite clear:
“You’ve got to get the ordinary man into the state in which he says ‘Sadism’ automatically when he hears the word Punishment.” And then one would have carte blanche. Mark did not immediately follow this. But the Fairy pointed out that what had hampered every English Police force up to date was precisely the idea of deserved punishment. For desert was always finite: you could do so much to the criminal and no more. Remedial treatment, on the other hand, need have no fixed limit; it could go on till it had effected a cure, and those who were carrying it out would decide when that was. And if cure were humane and desirable, how much more prevention? Soon anyone who had ever been in the hands of the police at all would come under the control of the N.I.C.E.; in the end, every citizen. “And that’s where you and I come in, Sonny,” added the Fairy, tapping Mark’s chest with her forefinger. “There’s no distinction in the the long run between police work and sociology. You and I’ve got to work hand in hand.” (That Hideous Strength (Scribner, 1996), 69–70)
The marriage of police work and psychology is also relevant here, and there can be no more memorable portrayal than Anthony Burgess’s A Clockwork Orange. Mr. Burgess wrote a commentary of his work which makes his intention quite plain, but the main thrust was never in need of explanation. Alex’s “rehabilitation” was itself dependent on violence and dehumanization; “the treatment” was morally equivalent to the “ailment.” And in the end, Alex is only rehabilitated when he no longer desires to exercise his own will but rather follows that of his informed-yet-coercive civil guides. While much less subtle than Mr. Huxley’s dystopian novel, we should not make the mistake of thinking A Clockwork Orange too exaggerated to be relevant for our reality. As we have seen in the controversy over “enhanced interrogation” in our day, our own leaders are not free from such temptation. They prefer to persuade, but they will also coerce if necessary.
Whether knowingly or not, Prof. Lewis’s theory of punishment is fully consistent with, and even necessitates, the Protestant doctrine of the two kingdoms. This might come as a surprise to some (perhaps even Lewis himself), since Prof. Lewis elsewhere seems critical of religious politics in general. Doesn’t he critique distinctively “Christian society” and “Christian politics” towards the end of his essay? Wouldn’t Protestant politics (and worst of all Calvinist politics!) be precisely what is in view when Prof. Lewis chides “omnipotent moral busybodies … who torment us for our own good”? The actual answer is no, although thanks to widespread contemporary confusion within the Church on this matter, as well as few glaring moments of inconsistency in Reformation history, this answer requires some explanation.
The problem of intrusive and coercive discipline entered Christendom through the twin doctrines of sacramental penance and the temporal power of the clergy. The very name “penitentiary” makes the connection between so-called rehabilitative punishment and spiritual renewal clear, and (as has been shown recently) the Inquisition laid the foundation for our modern “secular” methods of surveillance, control, and “remedial treatment.” This union of temporal and spiritual power was hardly limited to occasional political excesses. It lay at the heart of the hierocratic system of papalism.
And while Martin Luther’s theology of politics came into more and more consistency as it developed, the original 95 Theses themselves recognized that external penance is a very different thing from true internal renewal. In fact, the doctrine of purgatory itself reveals one’s logic of punishment. If penance continues after death, then the soul is still being renewed and perfected through a sort of punishment. For Luther, this was impossible, since “Death puts an end to all the claims of the Church; even the dying are already dead to the canon laws, and are no longer bound by them” (Thesis 13). This is because all temporal – that is external and human – punishment is finite.
For most of Luther’s work, his concern was on protecting the spiritual kingdom from being confused with the temporal, from keeping law out of grace. Occasionally, however, the challenge would come from the other direction, from those attempting to undermine temporal law and order by appeals to Christ’s spiritual kingdom of grace and total equality, the more typically Anabaptist threat. The two challenges amount to the same conclusion, of course, a singular kingdom and the loss of justification by faith alone.
The other great Protestant thinker whom Prof. Lewis resembles on this point of punishment is Hegel. This too may come as something of a surprise, as Hegel is often cast as a sort of proto-totalitarian, laying the groundwork for Marx and the overarching state. Such descriptions are, of course, anachronisms, the work of cartoon historiography, retroactively imposing contemporary generalizations onto earlier thinkers quite apart from those thinkers’ own fundamental categories and philosophical frameworks. Hegel is actually quite opposed to such totalitarianism, namely because of his commitment to natural law and the two kingdoms. For Hegel, just as for Prof. Lewis, humanitarian notions of remedial treatment are unjust, because punishment must be grounded on desert or justice. Hegel writes:
Punishment is regarded as containing the criminal’s right and hence by being punished he is honored as a rational being. He does not receive this due of honor unless the concept and measure of his punishment are derived from his own act. Still less does he receive it if he is treated either as a harmful animal who has to be made harmless, or with a view to deterring and reforming him. (Philosophy of Right, 100)
Notice that the punishment is the criminal’s right. He deserves it. And, we might add, he deserves it and no more. He cannot merely be a means to someone else’s end, as Lewis put it, nor can he be the test-case for societal progress. Punishment must be just.
It is also interesting that Prof. Lewis chooses to conclude his essay with quotes by two religious dissenters, Bunyan, the non-conformist Independent, and John Ball, the Lollard. Both men knew the value of Christian Freedom, and Lewis’ invocation of them here is no doubt an intentional way to pair his own opponents, self-styled progressives, with the clericalists of England’s past. Just as the N.I.C.E. represented both the “fierce Left” and the “fierce Right,” so too the real “progressives” often mirror the most tyrannical of traditionalists, and thus it is all the more important that we be able to know “frend from foo.”