ARTICLE FOR THE ROCK JUNE 2003
Object All Sublime
W.S. Gilbert’s Mikado’s all-sublime objective was "To let the punishment fit the crime". Gilbert’s intention, I believe, was to lampoon the writings of the eminent 19th Century judge James FitzJames Stephen.
Stephen, who was directly responsible for much of the long-overdue reform of the English legal system in the Victorian era, attached great importance to the punishment for particular offences being proportionate to their gravity. In the haphazard way in which English law had, like Topsy, "just growed" over the centuries, it was a commonplace, for example, for comparatively trivial crimes and petty criminals to be subjected to the death penalty, or tranportation for life to the Penal Colonies, whereas really big-time fraudsters when apprehended, were allowed to escape scot-free for no better reason that nobody had ever envisaged or experienced crimes of that enormity.
Inevitably, Stephen’s opinions, both then and since, have mistakenly earned him the reputation of being an excessively harsh and inhumane judge – a 19th Century George Jeffreys of Bloody Assize-fame. The truth is that many of the reforms he advocated were intended to restore the reputation of English justice from the brutal level to which it had fallen by neglect into something which people could both understand and sympathise with – a system both just and humane.
At the same time FitzJames Stephen found himself contesting the view expressed by John Mill in his essay On Liberty that it was intrinsically wrong to curb people’s liberty to do anything they wish, other than for reasons of self-protection. In this view, people (with certain exceptions such as children, imbeciles and those too primitive to know better) ought to be allowed to harm themselves in any way they please without the state taking it upon itself to restrain them. Punishment, if it is to be inflicted at all, must be directed towards preventing such people harming others. We should lock up thieves, not because they have stolen, but in order to protect the property of their potential future victims.
Anyone who has studied the social history of England during the past forty years will be aware that Mill’s ideas have been very much in the forefront of the social reformers’ agenda. The so-called Humanitarian Theory of Punishment which has informed much of the legislation enacted during the period in question is deeply indebted to people like John Mill, Jeremy Bentham and the Utilitarians for its inspiration.
Such notions as those which holds that crime is a form of illness which ought to be cured rather than punished; that criminals are not really responsible for their actions but are the result of their upbringing and the society which they keep; and that punishment and revenge are one and the same thing: all these concepts are traceable back to the particular idea of Liberty which Mill so eloquently advocated, and which in turn FitzJames Stephen in his essay Liberty, Equality, Fraternity so devastatingly refuted.
However much we regret it, we have to accept that the Liberty-principle by and large has reigned supreme at the helm of power in the West over this period. Hence the rise, and success, in worldly terms, of the soi-disant "liberal" agenda. In every department of life people have been conditioned to accept the belief that if someone wants to do something, he should be free to do it providing only that it doesn’t "harm others" and that to attempt to restrain him is an infringement of his liberty. Thus attitudes towards drug-taking, abortion, euthanasia, divorce and suicide, and the legislation associated with them have all become "liberalised". Correspondingly, any attempt to resist this tendency has been portrayed as depriving people of their right to freedom. As for punishment and revenge: in the popular mind they have become not just confused but identified with each other.
But recently, as you may have been aware, a subtle, but distinct sea-change has been taking place. Faced with the obvious failure of the Humanitarian theory to deliver the goods in practice, a number of events, world-wide, have very subtly suggested that the tide, not only of popular but political opinion also has begun to turn. At present we can say no more than that the tide is "on the turn", so imperceptible is its change. The signs are, however, that the pace of change is accelerating all the time.
If this is so we should be extremely foolish not to take account of and be prepared for it. By "We" I mean those who, over the past forty years have been aware of the falsehoods upon which the Liberal Agenda is based and have been struggling together in an effort at damage-limitation until the whole Liberal card-house comes tumbling down, as assuredly one day it will. Much of the extent of the damage is due precisely to the fact that those who were in our position sixty years ago were simply not prepared for the deluge which overtook them.
From the comparative comfort and security of the post-WW2 years when it seemed that things – and people – were just going to get better and better it was natural, if foolish, of those who at the time were in the position to evaluate what was taking place right under their noses to do nothing about it. Those, like C.S. Lewis, Harry Blamires, and Bishop de Catanzaro who could see quite plainly what was happening, did their best to stem the tide; but their efforts went largely unheeded and they themselves were branded as scare-mongers.
What makes me so sure that a change is under way? Well, to begin with, the demise of Communism as a serious political philosophy is something which has had enormous consequences throughout the political world. As a knock-on effect it has demonstrated that Socialism, which is the child of the "Liberal" mind is both right and wrong in particular respects. Paradoxically it has demonstrated both that a free-for-all is not conducive to good society, whilst at the same time showing that an excessive intervention into the lives of individuals by the State can be just as harmful as no intervention at all.
I say "paradoxically" because a free-for-all is precisely what the Liberal agenda is avowedly all about; yet it is precisely those Liberals most keen upon intervening who are least liberal towards anyone who tries to restrain their excesses. There is none so intolerant as a frustrated liberal!
Even more significant are the cracks appearing in the flawed Humanitarian Theory of Punishment. Recent legislation in the United Kingdom has increased the number of offences punishable by fines or imprisonment several-fold. The fact that prisons are already drastically overcrowded has not made matters any easier, but the Home Secretary, David Blunkett, has eloquently admitted by his words and actions that people are sent to prison primarily as punishment for what they have done rather than as a deterrent to others, or as a means to reforming the criminal himself.
What the Liberal/Humanists failed to see was that unless there was some moral grounds, based on what he had done, for depriving a wrongdoer of his liberty or possessions – in other words his punishment was deserved – he would become himself the victim of a flagrant injustice. If the justification for imprisoning or fining someone were solely that of his hoped-for reform, or the deterrence of those who might be tempted to copy his example, then there was no compelling reason why the malefactor should be the one to receive the treatment. It would be just as effective, perhaps even more so, to imprison or fine his parents, his spouse, his children or his neighbours. Just imagine the effect if an entire neighbourhood were to be fined to pay for the loss occasioned by one bank-robber who happened to live in it. The prospect of such a possibility, and its consequences upon him for the remainder of his life, would be a far more effective deterrent than the thought of doing a few years’ more "porridge" in the (unlikely) event of his being caught.
As for curing him, the length of his sentence meted out to one criminal would in some cases be negligible – if the judge were satisfied that "he would never do anything so silly again"; and in other cases, for an identical crime, because its perpetrator was thought to be incurable, this principle would demand that he be locked up "for life".
Proportionate Retribution can, and must be, the ultimate justification for any punishment. Of course retribution can easily turn into the desire for revenge, in which case it should be as severely discouraged as the commission of crime itself. That is why Justice, though portrayed as blind, is not wilfully blindfold. The selfsame principle that that miscreants should be treated equally, that those in authority should "truly and indifferently minister justice to the punishment of wickedness and vice" and that the punishment they mete out ought to be in proportion to their culpability, additionally demands that consideration should be given not only to the time spent in prison awaiting trial, but also to any factors which might explain and to some extent mitigate the culpability of the wrongdoer: was he provoked? was he unaware of the nature or the wrongness of what he did? Was he duped by others into being their fall-guy or scapegoat?
All these considerations, and many others should be taken into account in determining the proportion of blame attaching to the accused for what he has done or failed to do.
FitzJames Stephen saw all this quite clearly and anticipated in his writings some of the reforms which are now, at long last taking place. Anyone who is interested in investigating the flaws now so evident in the Humanitarian Theory of Punishment would do well to read C.S. Lewis’s essay of that name (and its sequel On Punishment: a Reply to Criticism which may be found in God in the Dock published by William B. Eerdmans of Grand Rapids, Michigan ISBN 0-8028-1456-5 pages 287–300.
Meanwhile, although it is too early to say how quickly or how extensively the tide will change, it is vitally important that those of us who see ourselves as Guardians of traditional morality should take the trouble to make ourselves considerably better informed about the grounds for our belief. It was the failure or our forebears in the ’60s to give the matter sufficient, or indeed (with a few exceptions like those noted earlier in this article) any serious attention, which allowed the Liberal agenda to sweep up the beach, carrying everything before it, not least our beautiful, painstakingly constructed sandcastles.