Punishment and Social Defense
Whether punishment is justifiable or not has been a controversial issue. Two different positions in this regard can be stated. The first says that the use of punishment is justified because of the free choice that every man has; the second says that punishment is useless because the criminal act was predetermined. That being the case, there is no place for punishment, but for the defense of the society, defence sociale -- that is, the measures undertaken by society to protect itself from the guiltless doer.
The dilemma of punishment – social defense – is as old as criminal law. Its discussion could give a new perspective to some questions that this book addresses.
As early as the Haummurabi Code, the oldest law book so far, we find the ideas of dolus and punishment. On the other hand, Van Der Made has demonstrated that the idea of social defense existed among the ancient Greeks.[1]
Individualists believe that man is responsible for his misdeeds. Positivists think that society and circumstances – that is, something out of man’s control, is responsible. According to the first school, man is an acting subject, a free and responsible person; the second says that man is a thing among things, a biological fact liable to the inevitable law of nature and unable to obtain his freedom from them. The one standpoint is based on the belief that man can choose to be either good or bad; the other implies that man is neither good nor bad, for circumstances determine his behavior. Positivists do not believe in the existence of a free person who can choose independently and who is responsible.
Practice proves that it is wrong to suppose that either of the two schools is more tolerant or more rigorous than the other. That depends on many other circumstances.
Starting from the principle of social defense, we can arrive at different conclusions. We can think that rigorous punishment is not justifiable because crime is a result of circumstances, and thus any kind of punishment would be senseless. Still, it is possible to consider the interests of society and the concern to prevent their encroachment as decisive, and so come to punishments, which are very severe and completely unjust. The history of criminal law has shown that the principle of personal guilt has not only sometimes resulted in extremely severe punishments – such as the Inquisition – but also in a very humane interpretation of the law. Even on an but also in a very humane interpretation of the law. Even on an emotional issue like capital punishment, adherents of both sides are represented.[2] Capital punishment can be both justified and condemned from both positions. According to individualists, it would be a sanction against a free man who have committed a grave crime. To advocates of social defense, it would mean the “dismounting” of a defective part of society. In the first case it would get a humane explanation, and in the second a mechanical, inhumane, one. In these explanations, we see a philosophical or metaphysical background, which in the first case reminds us of a “prologue in heaven,” and in the second case of Darwin and evolution. One thing is sure; individualism will always include the ideas of retaliation, never as punishment. The aim of these measures, according to Ancel, is to “neutralize”[3] the delinquent. The term “neutralize,” borrowed from physics, means rendering a criminal ineffective either by eliminating or putting him aside, or by medical treatment or reeducation.
Generally speaking, the difference between a punishment and a measure of defense is that the first aims at justice and personality, the other at interest and society. Punishment is in proportion to guilt, while the measure of defense depends on the degree of the social (that is, objective) danger of the perpetrator, on how dangerous the criminal is from the viewpoint of society.
It is therefore possible to presume, in the case of social defense, a large derogation from one’s rights without any guilt of the doer. The measures of social defense can take very severe and unjust forms in the case of protection or general prevention. Measures of this kinds have been used in some countries against political dissidents. A drastic example in Stalin’s “purges,” in which, according to some data, up to 10 million persons were “wiped out.” Let us pay attention as a purge is not a punishment but a “purgation’ of the society from unwanted elements. Both “neutralization” and “Purge” are mechanical procedures and mechanical terms. On the contrary, punishment is a moral idea appearing first in ancient religious books as God’s punishment, which proves the terminological and the historical connection between religion and the theory of punishment. Behind the legislation, implying punishment, lies idealistic philosophy, and behind those based on the principle of social defense, stands positivism.
Punishment goes along with the legal process, while the measure of social defense goes with treatment. A trial is a drama dealing with the exciting and exalted question of freedom, responsibility, and justice. The trial has always been tied to a fixed ceremony, which reminds us of drama or a rite.[4] On the contrary, the measure of social defense is a question of purpose and is decided by a doctor, psychologist, sociologist, or the administration, but never by a judge. Apart from exception, in practice the measure of protection is an integral part of the general manipulation with human beings in utopia. in utopia, there are no courts and no trials because there is no freedom and no responsibility, as there is neither ethics nor law.
Therefore we punish a free man, but we protect ourselves from a member of society. The member of society is neither guilty nor responsible; he can only be useful or harmful. This is not a question of choice but of fact, and the facts are senseless. Humanism in not necessarily mercy. Epictetus says; “You pity the lame and the blind, why not the evildoers too? They are evil against their will.”[5] This is an example of mercy but not of humanism or religion. Humanism is the affirmation of man as a free and responsible being. Nothing degrades man more than the proclamation of irresponsibility. Man is responsible, animals and things are not. Here lies the difference between Stoicism and religion. Stoicism puts mercy and forgiveness in the foreground, while religion puts responsibility.[6] The “defence sociale” is basically inhuman, even if it absolves the man. On the contrary, the theory of guilt is humane, even when it pronounces severe sentences. Punishment is the human right of the criminal, and any derogation from it is connected with a derogation from other human rights. Hegel consistently stated that only punishment, as retaliation, is in harmony with the human dignity of the criminal, and that it must not have another aim such as prevention or the like. Responsibility, as an aspect of human dignity, has its moral – that is other worldly meaning. The responsibility of man on earth toward other men exists only because it exists in its absolute sense is eternity, toward God. All legislations are a pale attempt to imitate God’s judgment of the earth.
The category of responsibility, and therefore of judgment and punishment, has no place in the inventory of materialism.
The purpose of punishment is not the prevention, protection, improvement, compensation, or even their re-education of the criminal. The purpose of punishment has nothing in common with this world. Its aim is to re-establish the moral balance which was put out of order by the committed crime. The punishment is a “negation’ (Hegel), a remedium peccati. Though this definition sounds somewhat lifeless, it will always preserve its original meaning and importance. Punishment will remain a retaliation or a moral answer to an immoral act, even if it is in practice useless. On the contrary, the measure of defense is always motivated by usefulness, by the protection of the greater interest, sacrificing the lesser one, or by the subordination of the individual’s interest to the interest of the society. Punishment aims at a moral effect, while the measure of defense aims at the social interest.
The ideas of retaliation and punishment have their origin in the religious view that crime provokes the anger of God. Regardless of all later limitations and corrections, this idea will always remain a consistent part of the conception of criminal justice. In some instances, instead of God’s anger, the violated moral order is referred to, which really is nothing but a terminological difference, because God is the creator and protector of the moral order.
The preceding considerations are only the theoretical aspects of the question. From the point of view of this book, two facts are important. First, that the theory of moral guilt has to be followed by the theory of social defense as its opposite equivalent. Second, in practice, all actual legislation, regardless of their philosophy, never make “pure” laws. In any of the actual laws, we find the presence of a principle disavowed in theory. So there is no penal law based completely on the principle of guilt, in the same way as there is no penal law based completely on the principle of social defense. In fact, we can only talk about a lesser or greater preponderance of one of these principles.[7]
Even the modern social defense movement, which in the nineteenth century started from extreme positions, passed through an unavoidable evolution. Marc Ancel, one of the protagonists of the movement, writes: “Between the two wars in the legislature, at last the middle way (media via) between the classical doctrine of guilt-revenge and the doctrine of social defense triumphed.”[8]
And further, ‘However, does it mean that the idea of social defense must necessarily include the rejection of all compulsory procedures and, in the end, the rejection of punishment as such? Do we now have to finally decide between criminal law and social defense? Many active social supporters of social defense, on the contrary, think that criminal law and social defense have to be united into a new perspective.”[9]
The L’Union International de droit penal, which was founded in 1889, and was in the beginning the great pleader for social defense, now speaks about the necessity of synthesizing these two doctrines. In 1914, the Union proclaimed that it “now represents both doctrines.” In the theory of law, revolution resulted in the so-called ‘relative theory of punishment,” and in practical legislation it appeared under a new formula of “protective punishment,” form of the “bipolar unity” in the field of law. In practice, the “third way’ triumphed in the end.
Islam, as religion, started from the principle of retaliation but, as the religion “Islamized,” it accepted some elements of social defense. Basically, this is the same development – based on the ‘liability to this world” – which created salah from prayer, zakah from alms, and an ummah (spiritual-political community) from a spiritual congregation. Islamic criminal law recognized a special system of education for minors, which is very similar to today’s conception – that is, the principle of the free proof trial, and some aspects of the sociological understanding of delinquency and delinquent.
Marc Ancel says: “Islamic law of the 14th century accepted the principle of the irresponsibility of a child under 7 years of age, [10] and ordered only the measure of re-education for minors from 7 years to the age of puberty. These proceedings did not have the character of punishment. To deal with delinquents who have come of age, a system was formed, in which some aspects can be regarded as social defense. With the exception of the five grave crimes defined in the Qur’an, the courts were given a free hand with some crimes, and they were obliged to take into consideration the crime as such, the conditions under which it was committed, and the character of the criminal.”[11]
[1] Van Der Made: “Contribution a l’ Etude de 1’ Historie de la defense sociale,” Revue de Criminologie et de Droit penal, 1949-50, p. 944.
[2] For example, M. Grave, a Swiss lawyer, an active protagonist the social defense movement, is advocating the reintroduction of capital punishment in Switzerland.
[3] In theory, howeve,r there is no exception to the said rule. The idealists, like Kant and Hegel, advocated almost literally “a tooth for a tooth….” and the materialistc Helback refused absolutely the principle of the retaliation in crimina law. See Holback’s System de la Nature.
[4] Ernest Bloch has shown that the drama has two origins: the court and the mystery, (E. Bloch, ibid., p. 238) Benjamin has demonstrated that the famous three unities of tragedy (place, time, action can also be traced back to the courts (Benjamin, ursprung des Deutschen Trauerspiels, 1928, p. 111).
[5] The Qur’an 23: 116, 23: 116 and so on.
[6] An example of the predomination of the principle of moral guilt is the present Italian Criminal Code. The opposite examples are the penal codes of the Scandinavian countries, especially iceland’s new penal code.
[7] An example of the predomination of the principle of moral guilt is the present Italian Criminal Code. The opposite examples are the penal codes of the Scandinavian countries, especially iceland’s new penal code.
[8] Ancel: La defense sociale nouvelle (Paris: n.p., 1954)
[9] Ancel: ibid.
[10] This nothing was inherent in Islam from the beginning and not a fourteenth century phenomenon.
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