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The idea "amelioration" presupposes a normal and strong creature whose action must in some way be balanced or cancelled if he is not to be lost and turned into an enemy of the community.

738.

The effect of prohibition. Every power which forbids and which knows how to excite fear in the person forbidden creates a guilty conscience. (That is to say, a person has a certain desire but is conscious of the danger of gratifying it, and is consequently forced to be secretive, underhand, and cautious.) Thus any prohibition deteriorates the character of those who do not willingly submit themselves to it, but are constrained thereto.

739.

"Punishment and reward."—These two things stand or fall together. Nowadays no one will accept a reward or acknowledge that any authority should have the power to punish. Warfare has been reformed. We have a desire: it meets with opposition: we then see that we shall most easily obtain it by coming to some agreement—by drawing up a contract. In modern society where every one has given his assent to a certain[Pg 197] contract, the criminal is a man who breaks that contract. This at least is a clear concept. But in that case, anarchists and enemies of social order could not be tolerated.

740.

Crimes belong to the category of revolt against the social system, A rebel is not punished, he is simply suppressed. He may be an utterly contemptible and pitiful creature; but there is nothing intrinsically despicable about rebellion in fact, in our particular society revolt is far from being disgraceful. There are cases in which a rebel deserves honour precisely because he is conscious of certain elements in society which cry aloud for hostility; for such a man rouses us from our slumbers. When a criminal commits but one crime against a particular person, it does not alter the fact that all his instincts urge him to make a stand against the whole social system. His isolated act is merely a symptom.

The idea of punishment ought to be reduced to the concept of the suppression of revolt, a weapon against the vanquished (by means of long or short terms of imprisonment). But punishment should not be associated in any way with contempt. A criminal is at all events a man who has set his life, his honour, his freedom at stake; he is therefore a man of courage. Neither should punishment be regarded as penance or retribution, as though there were some recognised rate of exchange between crime and punishment. Punishment[Pg 198] does not purify, simply because crime does not sully.

A criminal should not be prevented from making his peace with society, provided he does not belong to the race of criminals. In the latter case, however, he should be opposed even before he has committed an act of hostility. (As soon as he gets into the clutches of society the first operation to be performed upon him should be that of castration.) A criminal's bad manners and his low degree of intelligence should not be reckoned against him. Nothing is more common than that he should misunderstand himself (more particularly when his rebellious instinct—the rancour of the unclassed—has not reached consciousness simply because he has not read enough). It is natural that he should deny and dishonour his deed while under the influence of fear at its failure. All this is quite distinct from those cases in which, psychologically speaking, the criminal yields to an incomprehensible impulse, and attributes a motive to his deed by associating it with a merely incidental and insignificant action (for example, robbing a man, when his real desire was to take his blood).

The worth of a man should not be measured by any one isolated act. Napoleon warned us against this. Deeds which are only skin-deep are more particularly insignificant. If we have no crime—let us say no murder—on our conscience; why is it? It simply means that a few favourable circumstances have been wanting in our lives. And supposing we were induced to commit such a crime[Pg 199] would our worth be materially affected? As a matter of fact, we should only be despised, if we were not credited with possessing the power to kill a man under certain circumstances. In nearly every crime certain qualities come into play without which no one would be a true man. Dostoievsky was not far wrong when he said of the inmates of the penal colonies in Siberia, that they constituted the strongest and most valuable portion of the Russian people. The fact that in our society the criminal happens to be a badly nourished and stunted animal is simply a condemnation of our system. In the days of the Renaissance the criminal was a flourishing specimen of humanity, and acquired his own virtue for himself,—Virtue in the sense of the Renaissance—that is to say, virt; free from moralic acid.

It is only those whom we do not despise that we are able to elevate. Moral contempt is a far greater indignity and insult than any kind of crime.

741.

Shame was first introduced into punishment when certain penalties were inflicted on persons held in contempt, such as slaves. It was a despised class that was most frequently punished, and thus it came to pass that punishment and contempt were associated.

742.

In the ancient idea of punishment a religious concept was immanent, namely, the retributive power[Pg 200] of chastisement. Penalties purified; in modern society, however, penalties degrade. Punishment is a form of paying off a debt: once it has been paid, one is freed from the deed for which one was so ready to suffer. Provided belief in the power of punishment exist, once the penalty is paid a feeling of relief and lightheartedness results, which is not so very far removed from a state of convalescence and health. One has made one's peace with society, and one appears to one's self more dignified pure.... To-day, however, punishment isolates even more than the crime; the fate behind the sin has become so formidable that it is almost hopeless. One rises from punishment still an enemy of society. Henceforward it reckons yet another enemy against it. The jus talionis may spring from the spirit of retribution (that is to say, from a sort of modification of the instinct of revenge); but in the Book of Manu, for instance, it is the need of having some equivalent in order to do penance, or to become free in a religious sense.

743.

My pretty radical note of interrogation in the case of all more modern laws of punishment is this: should not the punishment fit the crime?—for in your heart of hearts thus would you have it. But then the susceptibility of the particular criminal to pain would have to be taken into account. In other words, there should be no such thing as a preconceived penalty for any crime—no fixed penal code. But as it would be no[Pg 201] easy matter to ascertain the degree of sensitiveness of each individual criminal, punishment would have to be abolished in practice? What a sacrifice! Is it not? Consequently ...

744.

Ah! and the philosophy of jurisprudence! That is a science which, like all moral sciences, has not even been wrapped in swaddling-clothes yet. Even among jurists who consider themselves liberal, the oldest and most valuable significance of punishment is still misunderstood—it is not even known. So long as jurisprudence does not build upon a new foundation—on history and comparative anthropology—it will never cease to quarrel over the fundamentally false abstractions which are fondly imagined to be the "philosophy of law," and which have nothing whatever to do with modern man. The man of to-day, however, is such a complicated woof even in regard to his legal valuation that he allows of the most varied interpretation.