The What and Why of Punishment

by Joseph Przudzik

Lively discussions of crime, criminals and their punishment are carried on everywhere today. Various theories endeavoring to excuse or explain the criminal mind, and consequently to cancel or mitigate the penalty, are proposed. Occasionally, even, it is asked whether society has the right to punish. This raises the, questions: "What is the nature of punishment, and what is its purpose?" It may be interesting to inquire what reply the Church gives to these two questions. It seems timely to the present writer that the following discussion considers the what and the why of punishment from a Catholic juridico-philosophic and social standpoint.

Definition Of Punishment

According to the Code of Canon Law, a punishment is defined as "the privation of some good, inflicted by the legitimate authority on the delinquent for his correction and for the penalizing of the offense."¹ Explicitly, the Code talks of ecclesiastical penalties, it is true, but it does not exclude corporal punishment.² The definition indicates further that punishment for public crime is to be inflicted by the legitimate authority, and must not emanate from a private source. For to inflict punishment pertains to one who has coercive power, which in turn belongs to the legitimate public authority alone. According to the mind of the Code, the why of punishment is to correct the delinquent and to punish the offense. This idea of punishment has frequently been misconceived, giving rise to many controversies.

In analyzing a penal system, one must consider the reason why a person may be punished, and the purpose for which he is punished. The reason why a wrongdoer can be punished is the imputability of the crime (i.e., the demerit contracted by the delinquent because of his action). Here enter the legal and the moral aspects of the matter. Moral treats chiefly of the inner act. Law contemplates the external manifestation of the act, in so far as it perturbs the social order. The reason, therefore, why crime may be punished is the necessity of safeguarding the social order. This is true only under the presupposition of the imputability of the crime to the delinquent. Under this supposition, the infliction of punishment is an act of just prosecution and not of unjust persecution.

We said above that the purpose of punishment is the necessity of safeguarding society. The restoring of public order, broken through crime, is the necessary, intrinsic, essential and ultimate end, which must be intended by public authority in inflicting punishment. But it is precisely around this point that the greatest controversy rages. Here we can give only a brief account of the different opinions.

Various Penal Systems

The multitude of opinions on what constitutes a penal system can be reduced to three general headings. They differ according to what is determined as the purpose of punishment. Thus, according as the purpose is conceived to be absolute only, or relative only, or both, so there are absolute, relative and mixed theories of punishment. In the present paper, it will be sufficient to discuss briefly the basic ideas and the chief proponents of the absolute and the relative systems. A discussion of the mixed theory we leave for a future paper.

In general, the absolute theories consider punishment as an absolutely necessary consequence of crime. They deny, therefore, that a penalty can in any way influence towards a good end or any end. It is an end in itself. For those who hold this theory, there is no question of anything but a necessary satisfaction of justice. Justice demands that everyone, according to his works, receive in return a reward or punishment. Therefore, crime must absolutely and necessarily be followed by punishment.³

Ethical Necessity Of Punishment

Let us consider briefly a few exponents of the absolute theory. We give them space here, because their thinking has influenced the thinking of modern generations and is still powerful in the world of thought today. Outstanding in the philosophical field of the eighteenth century was Immanuel Kant (1724-1804). His theory of the ethical necessity of punishment is one of the species of the absolute theory. According to Kant's theory of ethical necessity, punishment has no purpose; it is merely a necessary consequence of crime. The evildoer must be punished because he has done evil. A penalty can never be imposed for the attainment of some good purpose, whether of the delinquent or of society. For one man cannot be the medium for the emendation of another. Woe to him who uses the pharisaical principle that it is expedient for one man to die lest the whole race perish! Kant says: "A juridical penalty is not to be inflicted for the attainment of some good, but always must be imposed because (a crime) exists… Penal law is a categorical imperative."⁴ It works thus: he has sinned; therefore, he must be punished. Hence, the ethical necessity of punishment.

That punishment follows crime as an absolutely necessary postulate of reason, we believe to be absolutely false. Evil cannot be desired in itself. Human experience attests to this truth. At most, evil may be desired for a greater good, real or imaginary, to follow. A penalty, a punishment, a pain, is a physical or a spiritual evil. It cannot, therefore, be an end in itself, but at most may be tolerated or intended as a medium for a desired good. God Himself, the absolute Lord of man, cannot intend punishment for its own sake, for pain in itself is an evil. He intends it in relation to an end, He wishes His extrinsic glory, which, in relation to the matter under consideration, consists in the safeguarding of good order and justice. There is no blind necessity, therefore, no categorical imperative, purposelessly commanding: "You have done evil, therefore, suffer."

Dialectic Necessity Of Punishment

Hegel's theory of punishment, urging a dialectic necessity, is in conformity with his total philosophy. For Hegel, everything is in a perpetual flux, being is involved in three main steps, the thesis, antithesis, and synthesis. This theory he applies also to penalty. A crime is a negation placed by the delinquent (thesis). The punishment declared against this crime is a negation against the negation of the criminal (antithesis). In order to eliminate this contradiction, the State intervenes and justly applies the penalty for the crime (synthesis). The function of the penalty is a logical penalty, it must negate the negation of the crime; otherwise, the crime would persevere. Such is the resplendent philosophy of dialectic necessity.⁵

To disprove this theory of punishment, it would be necessary to combat the whole Hegelian system. Such a task is beyond the scope of this paper. It is sufficient to state here that "this system denies the crime and the penalty, because both occur in the same plane in which is placed the 'absolute spirit' confused in its evolution (Idealistic Pantheism). Abstract universal being is confounded with the Transcendental Supreme Being… Thus, every norm of morality is destroyed. There is no right except that granted by the State. The very notion of crime (as something 'in se' evil) vanishes."⁶ Perhaps this reply to and analysis of the Hegelian system is not altogether clear. But that is because the system itself has the obscurity of a Utopian pipedream. This much is evident: the acceptance of such a theory of punishment certainly would be welcomed by those of our enemies who see certain doom staring them in the face. It might even be acceptable to those of our allies, who, like our enemies, believe in the prime, transcendent and absolute supremacy of the State. It is certainly unacceptable to those of us who still believe in freedom of the will, the force of common sense, and the value of the individual.

Juridical Necessity

A more recent theory is that of juridical necessity evolved by the jurist Pessina (1916). He states that the true basis of punishment may be found in the very concept of justice, which is concerned with juridical retribution. Naturally, a violated norm demands that it be reaffirmed. The law is reaffirmed when the culprit is punished, is made to feel the weight of justice. According to Pessina, the correction of the delinquent is not the basic reason for punishment; it is rather the means by which the broken law is put together again. The correction of the criminal, as also the prevention of crime and the restitution to society, are at most the relative, secondary ends of punishment.⁷

For a jurist, Pessina does not state his principle very clearly. Of course, all punishment is some kind of expiation and reparation. If the penalty under consideration be that inflicted by God, then Pessina's principle is quite true. God does inflict punishment in expiation and reparation of crime. For He observes strict justice, which is demanded by the exigencies of His extrinsic glory. God, through His omniscience, knows very well just how far justice has been violated by a crime, and just how great a punishment the crime has merited. He can, therefore, apply Pessina's principle and make the punishment fit the crime. But if a mere human is to make the application, the principle will be found too indefinite. For it is not the business of mere human authority to repair the broken relation of man towards God. If it were, then human authority would have to inflict capital punishment for each mortal sin committed. For if sin merits eternal death, a fortiori, it merits temporal death. It would seem, therefore, that Pessina's principle can be applied only in a very limited sphere and under a very limited interpretation.⁸

Pact Theory Of Punishment

The last of the absolute theories to be considered is the pact theory. It has been proposed with varying amounts of agreement and disagreement by many modern philosophers. Among these the most important are Rousseau, Montesquieu, and Fichte. According to this theory, when society or the State was first being constituted, men made a concession to it. Once for all, society received the power to punish. It would seem that men got together and made the following pact: hereafter, if any one of us does such or such an act, which we hereby call a crime, it is agreed that the perpetrator shall be punished. That, according to the pact theorists, is the sole reason for punishment.

In replying to the theory, we must insist that it is truly very unfortunate that no minutes were kept of that meeting. Possibly, mankind had not yet advanced to the parliamentary stage. And so we have no record of the historical meeting wherein mankind met and decided that society or a State was to be formed. But, on second thought, perhaps that is just as well. For some idealistic principles may have been announced at that meeting, which later it might have been inconvenient to keep—as has happened at other international conferences.

Seriously, however, the whole doctrine is founded on the false Rousseaunian conception of society. Rousseau takes it for granted that society was founded by the agreement of men. As Catholics, we cannot grant that society came into being merely by the consent of men. Reason shows that it is from God, that it is the natural evolution of human nature as God made it. Thus, when in the course of time society came into being, civil authority arose concomitantly. And it has its own independent and proper rights and obligations. The fundamental reason for punishment, therefore, cannot lie in that men agreed to be penalized for certain acts. Such a concept of the basis of punishment strikes at the very root of morality. It destroys the concept of the absolute difference between right and wrong. For if we are to be punished for murder (for example), only because it was agreed that murder was to be punished and not because it is in itself wrong, then certainly morality is destroyed.

Relative Theories

In general, the relative theories are the contraries of the absolute. These latter excluded a purpose in punishment. On the contrary, the relative theories claim that the right to punish is derived from the necessity of a penalty to attain some end. In the absolute theories it was the crime that was punished, not the criminal. In the relative, it is not the crime but the criminal who is punished.

The relative theories are upheld mainly by the positive-determinist and the criminological schools, denying as they do liberty and imputability. They may be divided into the anthropological, sociological, correctionist and defense theories. As a penitentiary chaplain and prison worker for many years, the present writer knows that the principles of these theories of penalty are still very much alive in the thinking and actions of prison officials, of public legislators, and of the general public.

Anthropological Theory

Lombroso evolves his theory of penalty as follows. Man is regarded as a mere animal, in a higher stage of evolution than the animals we still call irrational. Crime is a species of sickness, which proceeds from man's abnormal physiological or biological organization. Crime is rooted in the somatic bodies of man. Therefore, many are born criminals. Criminals are either men insufficiently evolved or men relapsed into a previous stage of evolution. Moreover, criminals represent a special type of man, and can be recognized as such by various external characteristics. Lombroso drew up a catalogue of these. According to the theory, when a man commits a criminal act, he does so either in accordance with a law of inheritance or of atavism. It is a reversion to the habit of some distant ancestor. There is never any question of free will or imputability. The purpose of punishing such people is preventive and emendative. Strictly speaking, it should not be called a punishment but a cure.

This theory is rooted in the depths of materialistic determinism. For that reason, it needs only to be brought to light to be exploded. For, to paraphrase Dryden,

Truth has such a face and such a mien As to be known needs only to be seen.

When first proposed this theory won favor among quite a few. On further examination, however, the laws cited by Lombroso were found insufficient to explain crime. And so, as a scientific explanation, the theory was rejected, even by the followers of the determinist school—but not before it had made a dangerous impression on the public mind. In Sunday supplements, in magazines, in novels, in movies, on the radio, one still sees mention of the theory and an application of the principles on which it was founded. It was upon such deterministic principles that the defense of the famous Leopold and Loeb murder trial, and others of its kind, was based. It can be appreciated therefore, that, although the theory has been disproved, its effects are still spreading their poison.

Sociological Theory

Quite closely allied to Lombroso's theory (in fact, on some points coinciding with it) is the sociological theory proposed by Von Liszt. It considers crime as necessarily arising from two causes: (1) from the subjective psychological and physiological character of the individual; (2) from the social environment of the criminal. These conditions are thought to exert, directly or indirectly, a triple influence on the delinquent: first, on his parents, who create a certain atmosphere for him, secondly, on the delinquent himself from birth, thirdly, on the delinquent in the act of perpetrating the crime. Through the cooperation of the foregoing causes, it is believed that man is impelled to crime: (1) by some inherited disposition or by atavistic reversion; (2) by an impulse to passion; (3) by an occasion offering itself; (4) by inborn instincts; (5) by mental disorganization. As in the preceding theory, there is no question of free will, no consideration of imputability. Punishment, therefore, is to be inflicted so that it makes an impression on the delinquent and thus effects his correction.

The reasons for rejecting this theory are much the same as those for rejecting the Lombrosian doctrine: its gross materialism, and its disagreement with facts, historical and current. Investigations have proved that but a small percentage of delinquents have been influenced, or claim to have been influenced, by the above-enumerated causes. Many years of dealing with delinquents, in prison and out of prison, the admission of free choice and the lack of the above-enumerated causes by the criminals themselves, have convinced the present writer that mere sociological conditions do not explain crime, nor do they form a basis of a system of penalty.

The Correctionists

The Correctionist school, another development of the positive-determinist persuasion, has adherents the world over. Two things are outstanding in this theory. First, it is held that no penalty is legitimate unless directed towards the good of the delinquent, that is, towards his emendation. No other end or purpose of punishment is to be considered. Secondly, it is absolutely necessary to regard the criminal as a sick man. Hence, there should not be death penalties, and no prisons, but clinics, hospitals, reformatories, where those who have done wrong could have their point of view corrected.

This theory is another example of the inconsistencies into which reformers lacking the proper background may fall. In the first place, the adherents of this theory, being positivists, hold that criminals are born such; and being determinists, they hold the born criminals are incorrigible. If they be born such and cannot help themselves, why punish them at all? And if they be incorrigible, what good will a corrective penalty do? Moreover, if the adequate end of punishment is the private good of the criminal himself, and of no other persons, then the delinquent has the right to refuse his own good. Carrying out such a theory to its logical conclusion would, I am afraid, be slightly embarrassing to the Correctionists. For ordinarily the general public would not agree that they had any such right.

The Social Defense Theory

The last and perhaps the newest of the relativist theories of punishment is the theory of social defense. With Von Liszt, the Social Defenders agree that crime is caused or at least influenced by environment. Since environment is the poison that causes the disease crime, society must inject the antitoxin of an environment against crime; it must create a contrary environment, must create an impulse against crime. It must make laws, which will be an obstacle to crime. By punishment, it must imbue criminals with a spirit of intimidation and fear, and thus defend society.

In replying to these ideas, we must note the use of the idea of defense. In meting out punishment, society penalizes, not crime which is to be committed in the future, but one that has already been committed. Properly speaking, therefore, this is not a defense, because the crime has already been committed. But, in a wider sense, a penalty can be taken as a defense, as an act of preparedness against the criminal's repeating the crime. Understood thus, the theory has some truth. But in so far as it claims that environment alone determines the act absolutely, it must be rejected. For, then, how can one explain the fact that two people from the same environment, with the same physical and psychological background, frequently develop in directly opposite ways?

The present writer believes this discussion of basic ideas on crime and the punishment prevalent today, important and timely for all in organizing our thoughts on world events today. In a future article, he hopes to discuss in a more positive way the elements of the mixed theory of penalty, which forms the basis of Catholic thinking on this important subject.

Endnotes

1 Canon 2215.

2 Canon 2214, § 1; Vidal, "Jus Penale Ecclesiae Catholicea," p. 101.

3 Roberti, "De Delictis et Penis," p. 34.

4 Kant, "Metaphysische Anfangsgrunde des Rechts," § 42.

5 Hegel "Grundlinien der Philosophie des Rechts."

6 Roberti, op. cit., p. 38.

7 Pessina, "Elementi di Diritto Penale" (1871 ed.).

8 Vidal, op. cit., p. 108.

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