15 The Penal Question from the Moral Point of View
© Springer International Publishing Switzerland 2015Thomas Nemeth (ed.)Vladimir Solov’ëv’s Justification of the Moral Good10.1007/978-3-319-12775-0_16
Chapter 15 The Penal Question from the Moral Point of View
Old Bridge, New Jersey, USA
E] This chapter originally appeared in 1895 under the title “The Principle of Punishment from the Moral Point of View.” A footnote to the title there reads: “A chapter from my ‘Moral Philosophy.’ Legal questions are examined here only insofar as they are connected to the moral principle.” In B, this, the 13th chapter, spans pp. 390–428. Many passages in this chapter were also included in a separately published work, Solov’ëv 1899a, that itself went through two editions in Solov’ëv’s lifetime, the first in 1897 and the second in 1899. Clearly, then, Solov’ëv held this topic to be of great importance. For an English translation of Solov’ëv (1899a, see 2000b, pp. 131–212).
In accepting the unconditional moral principle as the norm of all of our relations, we encounter no intrinsic, essential obstacle to applying the principle to international morality, i.e., to resolving the issue of how we should relate to foreigners, as such. Neither in the traits of this or that nationality nor in that of being a foreigner in general is there any moral limitation, owing to which we would have to think in advance that a given foreigner is a worse person than any of our fellow countrymen. Thus, there is no moral basis for national inequality. The general demand of altruism retains its full force here: Love another as you do yourself and another nation as you do your own. International hostility as a fact must be unconditionally condemned as simply contrary to the unconditional norm, as, in essence, anti-Christian.1 Our proper or normal relation to other countries is only that which is simply demanded by the unconditional moral principle. If great difficulties, both psychological and historical, are encountered in carrying out this principle, then there are, on the other hand, no inner moral difficulties, complications or problems here. Difficulties appear, however, when instead of the morally indifferent fact of simply being a foreigner  we are concerned with a fact that undoubtedly belongs to the moral sphere, namely criminality.
The intension and the extension of the concept of criminality varies in its particulars over time and from one place to another. Although much that was earlier regarded as criminal no longer is so, the very trait of criminality, which once embraced the criminal’s family and gens, came to be understood at a certain stage of spiritual development as exclusively a personal trait. These historical changes, however, do not alter the essence of the matter. Regardless of the alleged criminality of various kinds in all human societies, there always have been, always are and always will be to the end of time real criminals, i.e., people with an evil will strong and resolute enough to realize it in practice whatever the price to the detriment of their neighbors and the security of the entire community. How should we treat such indubitably evil people? It is clear from the viewpoint of the unconditional moral principle that we should extend to them the demands of altruism definitively expressed in the Gospel commandments of love. However, the first question is how do we combine love for someone evil with love for the victim and, second, in what way can we in fact show our love for this evil person, this criminal, given his indubitably abnormal moral state? It is impossible for any of us to avoid these moral questions. Even if someone never personally happens to come across crimes and criminals, he surely knows from living in society that there exist very complex enforcement, judicial and penal organizations devoted to combating crime. In any case, he must determine his moral relation to these institutions, a relation that ultimately depends on how he regards crime and criminals. How should we view this matter from the purely moral viewpoint? In discussing this important question, we will begin with the simplest case, which is the foundation of all further complications.2
When one person injures another, for example when a stronger person beats someone weaker, a witness to this offense—if he  takes the moral point of view—experiences a double feeling and is motivated to act in two ways. First, he feels a need to protect the injured party and, second, to reason with the offender. Both of these needs spring from the same moral source: a recognition of the other’s life and a respect for the other’s dignity that rests psychologically on a sense of pity or compassion. We immediately pity this individual, who suffers both physically and mentally. The mental suffering, of which he is more or less aware, consists in the fact that his personal human dignity has been impugned. However, this external violation of the victim’s human dignity is certainly connected with the inner degradation of the offender’s dignity. Both require restoration. Psychologically, our feeling for the offended is very different from that aroused in us by the offender. The former is pure pity; whereas in the latter case outrage and moral indignation predominate. However, in order for this indignation to be moral it must not become an injustice toward the offender, a denial of his rights, even though his rights are (materially) of a different sort than those of his victim. The latter is entitled to be defended by us, whereas the offender is entitled to our guidance. The moral basis of these two relations (insofar as we are dealing with rational beings), though, is the same, namely, the unconditional value or dignity of the human individual, which we have recognized in others as in ourselves. What occurs in a criminal offense is a double violation of this dignity, passive in the case of the victim and active in that of the offender. A moral reaction is aroused in us, a reaction,3 the essence of which in both respects is the same despite the difference and even contradiction in their psychological manifestation. Certainly in those cases in which the offense directly or indirectly results in physical suffering to the offended, it immediately evokes a stronger sense of pity, but, generally speaking, the offender, inwardly losing moral dignity, should be pitied to the highest degree. Whatever the case, the moral principle requires that we recognize the right of both to our help in order to restore the violated right in both cases.4
However, this very conclusion from the moral5 principle, which requires  (in the case of a crime, i.e., of an offense by a person against a person) a moral relation to both parties is still by no means universally recognized, and we have to defend it from two sorts of opponents. Some (and their opinion still predominates) recognize a right of the hurt or injured party (or society) only to defend or avenge, and the offender or criminal (after his guilt is proven) as (at least in practice) without rights, a passive object of retribution , i.e., to be completely suppressed or destroyed. “Hanging is too good for him,” and “Live like a dog, die like a dog,” are popular and sincere expressions of this viewpoint. Its direct contradiction of the moral principle and its incompatibility with even the slightest modicum of developed human sensibility (which, by the way, is expressed in the fact that the same people, or at least the Russian people, call criminals the unfortunate ones) explains and psychologically excuses the opposite extreme view, which is beginning to be disseminated in our time. The right of the offender to verbal persuasions alone is recognized, and no compulsory action towards him is acceptable. In practice, this amounts to eliminating the right of the injured party or society to a defense. Their safety depends upon the success of the persuasion, i.e., on something problematic over which no one has control and no responsibility. Let us examine closely these two contradictory doctrines, which for the sake of brevity we will call one the doctrine of retribution and the other the doctrine of verbal persuasion .6
In its support, the doctrine of retribution has a real explanation and alleged evidence. It is very important when analyzing it not to confuse one with the other. A beast under attack by another that seeks to devour it will, out of a sense of self-preservation, defend itself with its teeth and claws, if they are strong enough, or it will flee. No one will look here for a moral motive just as in the case of the physical self-defense no one would of a person whose natural means of defense are supplemented by or replaced with artificial weapons. However, a person, even a savage, does not usually live alone but belongs to some  social group—a gens, a clan, a gang. This is why when he meets an enemy the encounter does not end with a single instance of combat. A murder or some other offense incurred by one member of the group is felt by the entire group and arouses in that group a desire7 for vengeance . Since we have here a sense of pity for the victim, we must recognize the presence of a moral element. Undoubtedly, however, of predominant importance in this instance is the instinct of collective self-preservation, as it is in bees and other social animals. In defending the member, the gens or the clan defends itself. Avenging the member, it avenges itself. However, the offender’s gens or clan is similarly motivated to defend him. Isolated clashes pass in this way into wars between entire societies. Homeric poetry has preserved for our eternal recollection this stage of social relations by immortalizing the Trojan War, which sprang from the personal injuries on Menelaus by Paris. The history of the Arabs before Mohammad is full of such wars. The concepts of crime and punishment, properly speaking, do not exist at this stage: The offender is here the enemy, who is to be avenged, not a criminal who is to be punished. The place of the future criminal justice system is occupied at this time by the universally recognized and unconditionally obligatory custom of blood feud . This, of course, applies to the offenses between members of different gentes and tribes. However, offenses of another kind, generally speaking, do not happen at this stage of social life. The bonds within close gentile groups are too strong, and the authority of patriarchal power is too imposing for a single individual to dare to rise up against them. It is almost as unbelievable as a conflict of a single bee with its entire hive. Certainly, people in the gentile way of life maintained their faculty of personal choice, which manifested itself in a few rare cases, but these exceptional instances were suppressed by the exceptional actions of the patriarchal power without provoking general measures. The situation changed with the transition to life in a state, i.e., when many gentes and tribes in one way or another for one reason or another or under duress united in a permanent way around a single common leader with more or less organized power and eliminated the autonomy of individual gentes and tribes, ending the custom of blood feud.
It is rather curious that philosophers and jurists from antiquity  down almost to the present have devised a priori theories about the origin of the state as if all actual states arose in some antediluvian period. This certainly can be explained by the extremely imperfect status of the historical discipline. However, what was still permissible for Hobbes and even Rousseau is unacceptable in contemporary thinkers. The gentile way of life, which all nations experienced in one way or another, presents nothing mysterious: The gens is a direct manifestation of a natural, blood bond.8 The problem, then, amounts to the transition from the gentile way of life to that of the state, and this can be the object of historical observation. It is enough to mention9 the transition of the disparate gentes and tribes of northern Arabia into a powerful Muslim state that was effected in the full view of history. Its theocratic character is no exception. Such was more or less also the case with all the other major states of antiquity. Let us recall how a state usually comes to be.10 A leader who is preeminent owing to his personal strengths—be it military or religious, but most often both together—led by an awareness of his historical calling and also by personal motives,11 gathers around himself people from various gentes, or clans, forming with them a certain inter-gens nucleus.12 Around this nucleus, entire tribes and gentes then assemble either voluntarily or through force, receiving laws and offices from the newly formed sovereign power and losing their independence to a greater or lesser degree. When we find in any social group a hierarchically organized central government with a supreme power at the top, a standing army, a financial system based on taxes and duties and finally laws enforced by penal sanctions, we recognize this group as having the genuine character of a state. All of these characteristic signs were evident in the Muslim community in the last years of Mohammad’s life. It is remarkable that the history of the original formation of this state confirms social contract theory to a certain extent. All of the chief steps taken by the Arab prophet13 in this matter are marked by formal treaties beginning with the so-called “Oath of Women” and ending with the later conditions that he ordered at Mecca after his final victory over the Qureshite gens and their allied tribes.14 We should note  also that in all of these treaties the fundamental point is the abolition of the blood feud between tribes and gentes entering the new political union.
From this arises a distinction that did not exist earlier15 between public and private law: Concerning the laws of blood vengeance, as in other important respects, the collective interests of the group directly agreed with those of separate individuals. This was all the more so in that in a small social unit such as a gens or a clan all, or at least most, of the fellow members could personally know each other. In this way, all for one and one for all represented, generally speaking, something of real value. However, with the formation of the state the social group embraces hundreds of thousands or even millions of people, and a real personal relation between the parts and the whole becomes impossible. There is a clear distinction between public and private interests and between the corresponding areas of the law. Usually at this stage of development and in spite of our current legal concepts, such things as murder, robbery, and grievous physical injury are treated within private law .16 Earlier, in gentile life, all such crimes were considered as directly affecting the common interest and the entire gens sought vengeance against the perpetrator and his relatives. With the formation of a wider political union, this right and the obligation of blood vengeance was taken away from the gens but did not pass (in the old sense and scope) to the state. The new common authority, from which laws and government emanate, could not immediately enter into the interests of all its many subjects to such an extent as to protect them as if they were its own. The head of state cannot feel and act like a gentile elder. Here we see that in protecting individuals and property the state’s authority is limited at first to the least oversight. Not only in cases of injury or other violence to a free person but even in those of murder the murderer or his family pays the family of the victim a monetary penalty, which is generally quite moderate, determined by mutual agreement (compositio).17 A listing of such fees (which differ depending on the individual’s sex and other circumstances) fill all the old statute books or law manuals (e.g., the laws of the Salian Franks or our own Russkaya Pravda), which are monuments to a just established  life in a state (in a given nation). The direct and rapid transition from ruthless blood vengeance, often accompanied by many years of destructive wars between entire tribes, to simple monetary compensation is remarkable. However, from the mentioned point of view such a leap is quite understandable.
At this stage of the development of the state system only political crimes have, properly speaking, a criminal character.18 All the others, including even murder, are seen not as crimes, but as private quarrels.19
However, such an elementary bifurcation between public and private law cannot be sustained. A monetary fine for any offense committed by an individual does not satisfy the injured party (e.g., the family of the murdered victim) and does not deter the offender, particularly if he is rich, from further criminal activity. Under such circumstances, blood vengeance for private offenses, repealed by the state as contrary to its essence, actually resumes and threatens to eliminate the very reason for the existence of the state system. If everyone has to avenge offenses done to him, why should he bear the burdens imposed by a new political way of life? To justify its demands on private individuals, the state must actually accept to defend their interests. In order to abolish permanently the private right of blood vengeance, the state must transform it into a public right, i.e., take its execution upon itself. In this new, higher stage, the solidarity of state authority with the individuals under it is expressed more clearly. The distinction between crimes committed directly against its authority (political crimes), and those simple ones, which affect only private interests, is still preserved, but only in terms of their importance and not in their essence.20 Every free person becomes a citizen, i.e., a member of the state itself, which accepts the task of protecting the safety of every such person. Any breach of a citizen’s safety is seen by the state authority as  an attack on its own right, i.e., as a hostile act against the social whole. All violence whatsoever directed towards an individual or property is seen not as a private offense, but as a violation of state law and therefore on a par with political crimes subject to the state’s retribution.
The doctrine of retribution in criminal law, thus, has a historical foundation in the sense that criminal penalties, still in widespread use today, are a historical transformation of the primitive principle of vendetta. At first, a closer social unit, called the gens, avenged the wronged party; then the broader and more complex unit, called the state, did the avenging. At first, the offender lost all human rights in the eyes of the offended gens; then he became an object of punishment devoid of rights in the eyes of the state, exposed to retribution for violating its laws. The difference lies chiefly in the fact that in the gentile way of life the very act of revenge is executed simply. The offender in this case is killed like a dog. The consequences, however, can turn out to be very complex in the form of endless wars between tribes. In life within a state, on the other hand, the very act of retribution that the public authorities have taken on themselves, proceeds slowly and through various procedures, though without any further complications. The particular criminal now has no one sufficiently powerful to avenge him; he is defenseless against the power of the state.
However, from the indisputable fact that punishing criminals is an historical alteration of the vendetta, does it follow that we should support these punishments, support retribution? On the basis of history must the concept of revenge, i.e., repaying evil with evil and suffering with more suffering, ultimately define our relation to the criminal? In general, logic does not permit us to draw such conclusions from a genetic connection between two phenomena. As far as I know, not a single Darwinist in accepting the origin of the human being from lower animals deduces that we must be beasts. From the fact that the urban community of Rome was originally  created by a gang of robbers, no historian has yet concluded that the true principle of the Holy Roman Empire should have been21 to rob. With regard to our topic, once it is a matter of the transformation of the vendetta , what reason is there to consider this transformation completed? We know that the attitude of society and the law towards criminals has undergone very sharp changes. Ruthless gentile revenge was replaced by monetary fines, and they gave way to “civil punishments,” which, while at first were extremely brutal, from the eighteenth century became more and more relaxed. There is not even a shadow of reason to claim that the limits of this relaxation have been reached and that the gallows and the guillotine, a life-sentence to hard labor and solitary confinement should remain forever in the criminal statutes of educated countries.22
However, while historical progress obviously tends to restrict ever more the application of the principle of retribution or exact recompense leading finally to its elimination23 from our legal attitude towards criminals, many philosophers and jurists24 who support this principle have continued and still continue to present abstract arguments. Owing to their extremely inadequate nature, these arguments will certainly be the object of amazement and derision for posterity just as we are astonished by Aristotle’s arguments in support of slavery and by certain ecclesiastic writers in support of a flat Earth. In themselves, the pseudo-arguments employed by proponents of the doctrine of retribution do not deserve analysis, but since they are still repeated by authors who are, in general, worthy of respect25 and the topic is of vital importance, they and their refutation should be repeated.
“A crime is a violation of a right; that right must be restored. Punishment, i.e., an equal violation of a right of the individual criminal, is carried out by a public authority (as opposed to private revenge) citing a specific law and which redresses the first violation, thus restoring the violated right.” This pseudo-argument revolves around the term “right.” However, the actual right is always someone’s. (There must be a subject of the right.) But “Whose right?” is the question here. Above all, it is apparently the right of the victim. Let us put an actual case in place of the abstract term. The peaceful shepherd Abel undoubtedly has a right to exist and enjoy all the pleasures  of life, but the evil-natured Cain comes along and effectively deprives him of that right by killing him. The violated right must be restored. To do this, the public authority appears and contrary to the direct warning of the Holy Scriptures (Genesis 4: 15) hangs the murderer. Is Abel’s right to life thereby restored or not? Since no one except the inmates of Bedlam would argue that the execution of a murderer revives the dead person, we must understand the word “right” here to mean not the right of the victim, but someone else’s. Another whose right is violated by a crime may be society itself, or the state.26 All individual rights (e.g., that to life, to property, etc.) are guaranteed by the state. It vouches for their inviolability, placing them under the protection of its laws. A law prohibiting individuals from killing at their own discretion their fellow countrymen is rightfully enacted by the state. Consequently, a violation of it (through a murder) is a violation of a right of the state, and in executing the murderer restores the right not of the dead person, but of the state and the significance of law.27 What in this argument that is correct is of no concern to this issue. There is no doubt that once laws exist, consequences must follow from their violation, and upholding laws belongs to the state. However, the problem is not the general principle behind whether crimes, taken as violations of the law, can be punished. For in this respect all crimes are equal. If  the law in itself is sacred, as coming from the state, then all laws have this property to an equal extent. All laws equally express a right of the state, and all violations of the laws without exception are violations of this supreme right. The material difference between various crimes concerns only the interests28 that are violated. On the formal side, with respect to what is general, i.e., the state as such, its authority and the law, each crime (of course, each sane crime) presupposes a will that disagrees with the law and rejects it, i.e., the criminal will. From this point of view, all crimes logically would require the same punishment. However, the variety of punishments for different crimes that actually exists in all jurisdictions obviously presupposes besides a general principle of punishability some other, specific principle that determines the special connection between this violation and this punishment. The doctrine of retribution sees this connection in the fact that the right violated by certain criminal acts is restored by a corresponding or equal counteraction. For example, the killer must be killed. Where, however, is the correspondence or equality? The most famous proponents of this doctrine present the matter as follows: A right is something positive. Let us call it + (a “plus”). A violation is something negative−(a “minus”). If a negative in the form of a crime takes place (e.g., the taking of a human life), then it should cause an equal negation in the form of punishment (the taking of the life of the murderer). Such a double negation, a negation of the negation, produces again a positive state, i.e., a restoration of the right: A minus times a minus makes a plus. It is difficult to be serious in view of such a “mind game.” Let us note, however, that the concept of a negation of a negation logically expresses a direct intrinsic relation between two opposing acts. For example, if the impulse of an evil will in a person is a “negation,” namely the negation of a moral norm,29 then the opposing act of the will, which inhibits this impulse will actually be a “negation of the negation,” and the result will be positive—an affirmation of this person in a normal state.30 Likewise, if a crime, as the active expression of an evil will, is a negation, then the expression of the criminal’s active repentance will be a negation of the negation (i.e., certainly not of the fact, but of the inner  cause that produces it). Again, the result will be positive—its moral rebirth. However, the execution of a criminal is, obviously, devoid of such significance. The negation here is directed (as in a crime) to something positive, namely a human life. In fact, we cannot possibly recognize that in executing the criminal the object of the negation was his very crime. For it is an irrevocably accomplished fact, and according to the remark made by the holy fathers God Himself cannot make what was accomplished, unaccomplished.31 However, what is negated here is not the evil will of the criminal. It is one of two things: Either he repented for his evil deed, and then there is no longer an evil will, or he is adamant to the end, which means that his will is incapable of being influenced. In any case, the external, violent action cannot exclude or alter the internal state of the will. If, therefore, the execution of the criminal actually negates not the evil will but the positive good things of life, then this again will only be a simple negation and not32 a “negation of the negation.” A single sequence of two simple negations cannot yield anything positive. The abuse of an algebraic formula gives the entire argument a frankly comic character. After all, in order that two minuses, i.e., two negative values, produce a plus it is not enough to put them one after another; they must be multiplied. However, what does it mean to multiply a crime by a punishment?33
The intrinsic absurdity34 of the doctrine of retribution, of “avenging justice,” 35 is clearly seen in the fact that with a few exceptions, it does not have any relation to penal laws that now exist. Strictly speaking, there is only one case in which it seems applicable: the death penalty for murder. This is why the pseudo-arguments used to support this doctrine—the essence of which was given earlier—refer precisely only to this single case. Such is a bad reference36 for a principle that claims to have universal significance. For those of us in Russia, where capital  punishment remains enforced only for certain political crimes, there is apparently no conformity even in this one matter. Where do we find the equal retribution—even if only the appearance of such—in a life sentence to hard labor for the crime of patricide or 12 years of hard labor for a simple murder out of some selfish motive? The best refutation of this doctrine is the fact that its use is found most in the criminal laws of several semi-savage peoples or in the laws in force during barbaric times, when, for example, a party guilty of a certain injury to another was subject to the same injury, or where a guilty party’s tongue was cut out, for impudent speech, etc. Any principle whose application turns out to be incompatible with a certain level of educational37 development is a principle to be condemned.
In the modern era, if I am not mistaken, abstract philosophers more than jurists have come out in defense of the doctrine of restoring a right by means of equal retribution. Jurists accept the equation of punishment with the crime only in a relative quantitative sense (the measure of punishment). That is, they demand that the more serious the crime the heavier the punishment, so that in general there should be a scale of punishments corresponding to the scale of crimes. However, the basis (and consequently the top) of the punitive scale remains open, and this is why the character of the punishments themselves can be whatever, ranging from inhuman cruelty to, on the contrary, extreme leniency. Thus, a scale of penalties existed in the jurisdictions where all or almost all simple crimes received only a monetary fine, whereas a more serious crime was meted a large fine and the murder of a man a harsher penalty than that of a woman, etc. On the other hand, in another place the crime of larceny resulted in hanging, and those who perpetrated more serious crimes received a qualified death penalty, i.e., death combined with various degrees of torture. What is immoral here, of course, is the very cruelty of the punishments and not their gradually increasing nature.
The important point for us in penal law is that although it can be seen as growing weaker, there is still38 a tendency, that has not quite been eliminated, to preserve cruel punishments as much as possible. Not finding a sufficiently firm foundation in the pseudo-rational principle of a “restored right,” this tendency seeks empirical support in the principle of deterrence . In essence, this motive is always combined with that of retribution. The popular aphorism, “Who lives by the sword, dies by the sword,” has always been accompanied and is accompanied by the supplement, “as a warning to others.” It is impossible to say that this principle is unconditionally true even on a utilitarian and empirical basis. Certainly, fear is one of the important motives of human nature. However, it does not have a decisive significance.39 The ever increasing number of suicides proves that death is not feared by many. Long periods of solitary confinement or hard labor, in themselves, can arouse more fear, but such means have no clear deterring effect. I will not dwell on these and other such well-known objections to the theory of deterrence (as, for example, the claim that the criminal always hopes to hide from justice or avoid punishment or that the enormous majority of crimes are committed under the influence of some passion, which smothers the voice of discretion). We can dispute the relative strength of all of these considerations. The theory of deterrence can indisputably be refuted only on moral grounds: (1) fundamentally by its direct contradiction with the fundamental moral principle, and (2) by the fact that this contradiction forces the supporters of deterrence to be inconsistent and to reject, little by little,40 the most effective and clear demands of theory out of moral considerations. Of course, here it is a matter of deterrence in the sense of a fundamental principle of criminal justice and not in the sense of only a psychological phenomenon,41 which naturally accompanies any means of resisting crime. Thus, even if we have in mind only the reform of criminals by means of educational suggestions, then on people of willful and self-absorbed perspective such tutelage, though brief and rational could avert criminal action and restrain them from crime. However, this obviously does not concern the theory that sees in deterrence not an indirect consequence, but the very essence and direct job of punishment.42