[Here is another section from the study on moral sanction, the concluding section of Justice in the Revolution and in the Church.]
II. — Does society have the right to punish?
The philosophers struggle, and the problem is still unresolved.
While the Church invokes divine right, the mandate received by it to cure souls, and, if necessary, to execute the bodies of those who disdain the law, the so-called rationalists allege, some legitimate defense, others the talion or vengeance, these the necessity of the example, those, who we could call semi-theologians, the mental hygiene and good of the culprits. Mr. Oudot, the latest of these semi-theologians, adopting the ideas of Plato, Grotius, Leibnitz, and Bossuet, who is accompanied by Cousin, Jules Simon and Jean Reynaud, expresses himself in these terms:
Every creature that deviates wounds itself. The author of an infraction against order has stepped backwards on the road to his perfection; he has diminished in himself the possibility participating in the common good. He must regain the lost time. There must be a counterweight to the first influences of the unfortunate habits that he tends to form. That counterweight is punishment...
That is what the author of Conscience and Science has found most probable about the right to punish. That said, he passes on to the application, as if it was only a question of erecting the gallows.
Let us not forget that for Mr. Oudot and his authors, Justice is a simple notion, the notion of a law without a corresponding faculty in the human soul, whose subject is God; that this the system of obligation which surrounds us begins for each of us with Duty, and that this duty becomes right with regard to our fellows only in the sense that they are subject on their side to the same duty towards the Divinity.
From this it follows that the right to punish that society arrogates to itself, a right which is converted for the guilty into a duty and even an active right, according to the expression of the learned professor, can only be legitimately exercised as long as 1) the delinquent will share a common religious faith with the society which punishes, which amounts to saying: as long as he adheres to the theory of Mr. Oudot; 2) that before inflicting punishment one would have established conclusively, and by supporting it with a positive revelation, that it was part of the divine right, and consequently of human duty: which M. Oudot has not done, which, despite his goodwill, he would not even dare to attempt.
In the state that we find the question today, there is not a murder who could not say to his judges: “I don’t believe in your God or your society, in which I have not received my portion. I reject your code, and I declare you incompetent, your police and your executioners. There is nothing in common between you and me; and even when I admit with you the existence of a legal link between men, you do not have the means to establish the authority that you attribute to yourself over my person. You do not have the right to strike me, the right to blame me, the right to charge me, and not even the right to interrogate me; my conscience, since you speak of conscience, eludes all your attacks. It is possible that I have killed a man; I was at war with him, as I am at this time at war with you, as you are all with one another. There you are, banded together against me, and you have the strength: use it, if that pleases you, as I have used it myself. But no hypocrisy, and above all no outrage: I scorn, along with your chastisements, your Justice and your blame.”
Isn’t it say to see professors of right and of morals, philosophers who speak in the name of Liberty and the Revolution, bring it back, on this question of penal right, to what…? Good God! To the theory of purgatory and indulgences. And that, because they will not acknowledge the immanence of Justice, because that Justice is always for them a commandment from outside, the order of an invisible Sovereign, rewards us, atones for us, or damns us, according to his pleasure, and in whose name the Church or society, like the famous Mr. Purgon, pretends to expiate us in its turn, for its god and for our own. Clysterium donare, ensuita purgare, postea seignare, et repurgare, rèseignàre, reclysterizare: that is the theory of our moralists. The conscience of the human race must be robust to resist so much incompetence. And how the wretches that we expurgate, for their good, by jailer and prison guards, must jeer at us!
III. — The theories proposed to explain the penal laws all, however, contain a bit of truth: everywhere we accept the legitimacy of defense, even against the malefactor in chains; everywhere we want the reparation to be proportionate to the crime, which has given rise to the talion; everywhere, finally, we have desired that the punishment serve as a remedy for the soul of the guilty, and we have awaited salutary effects for those whom the bad example could have diverted from the straight path. The defense of the threatened society, the proportionality of the reparation, the return of the guilty one to virtue, the protection of weak consciences, all of that is reasonable, all of that is legitimate; it is only the chastisement, the punishment, the pain, that is to say the abuses exercises in the form of prosecution or reprisal against the criminal, precisely what the criminalist caresses with the most love, we must rule out as injurious to the person, and by that very fact destructive of Justice.
Is it then so difficult to understand that the right to punish, borrowed from the symbolism of the primitive world, is a contradiction in terms, and no longer has any reality but the right to do evil? The moral sanction, that we have designated unfairly by the word pain, is a fact of conscience, nothing more, nothing less; a fact whose production is entirely spontaneous, and which consists, in the repentant culprit, of a real suffering, resulting from remorse; but which society is powerless to cause to be born in a conscience which refuses it, and which it would itself be guilty to compensate by insults and blows. Every abuse exercised on the person of the criminal can only produce indignation in him, and callousness as a repercussion: it is not by rendering evil for evil that we are reconciled with an enemy, let alone bring a villain to virtue.
The reparation of the crime or misdemeanor, in order to be rational, just, and effective, must have in itself a positive moral value. It must profit the social conscience as much and more than the crime or misdemeanor has caused it scandal; that furthermore the penitent himself obtains, by his works of satisfaction, as much respect as him mistake has caused him to lose, in other words, that his reparation is for him at the same time a rehabilitation. Apart from that, the reparation is illusory; it will only worsen the evil, accomplish the demoralization on an unhealthy conscience, and what is worse, to infect the social body with the illness.
Now, now what have we understood thus far by reparation? Have we occupied ourselves with rendering to the criminal, in acts of justice and devotion, the sum of the advantages of which he has deprived the community by his crime? No: we have proceeded in his regard by confiscation, prison, blows, torture, death, insults; we have beaten him, hidden him away, disturbed, starved, mutilated, branded with the fleur-de-lis, burned, pummeled, hung, and guillotined him. We have, in the end, been avenged; we have massacred the prisoner, we have taken this vendetta, a fact of war, for a satisfaction. That is what we have called payment and recovery of the crime, exolvere, repetere pænas, payment which naturally leaves the guilt to persist, and, instead of rehabilitating the patient, we inflict a stigmatization. In our penal system, admire this, we only rehabilitate the innocent! Or else, superstition taking the place of vengeance, we have used the lustrations; we have confessed the sinner, we have baptized him, purified, absolved, as Hercules asked the purifiers of Eleusis for the acquittal of his thefts; we have made him recite prayers, bear relics, to earn indulgences. Half of the offerings and sacrifices which were made in the temple at Jerusalem had no other aim but the redemption of sinners, pro peccato; and among the ancient Romans the month of February, februarius, of februare, to atone, was entirely dedicated to these expiations. It is from this that we get Candlemas. In short, we have struck out, physically and morally, against the person of the guilty; we have chastised the man like a vicious and uncontrollable animal; we have humiliated and despised him: that is what we call today the sanctioning right, and about which grave professors, the most respectable of mortals, sweat blood and water to find des philosophical reasons.
Another mistake, still more serious. The satisfaction, whatever it is, demanded of the author of a crime or misdemeanor, will not satisfy, and it will always be an injustice, if the society which complains and accuses does not also add its own: an indispensable condition, glimpsed in the past by the penal mythology, but entirely unknown to the criminalists.
By virtue of the moral solidarity that unites men, it is rare that an act of prevarication is entirely isolated, and that the prevaricator has not had as an accomplice, direct or indirect, society and its institutions. We are all, more or less, guilty towards one another, and what Job said was not true: Sinner before God, I am innocent before men. In that community of conscience, Justice being reciprocal, the sanction is also common; the reparation must be as well. What are the causes, the pretexts, is you wish, which have led the accused? What injustice, what privilege, what favor has provoked it? what bad example has been given? What omission, what contradiction of the legislator has troubled his soul? Of what grief, either on the part of society, or on the part of individuals, does he complain? What advantage, dependent on the public will, do they enjoy which he does not enjoy himself?... That is what the examining judge must seek with at much care as the very circumstances of the crime or offence; for it is necessary that the accused hear him say it: if society demands satisfaction of him, is it ready to do right by him itself, in the measure that it will be found just by the tribunal of the arbitrators, by the jury. Every criminal pursuit implies a recriminatory action, and, if Society will not lead the way, the accused can say to his accusers: “All of you who are assembled here to judge me, you are not better than me. Confess yourselves first, and I will confess in my turn; repent, and I am ready to satisfy.”
The theory of sanctional right can then be summarized in the following propositions:
1. Justice is immanent to humanity, a faculty of the human soul;
2. It is reciprocal;
3. By the multiplicity of persons who form its organism, the conscience, common between spouses, becomes common in the family, the tribe, the association, the city;
4. By virtue of that community of conscience, the members of the family become, with regard to the delight that Justice provides and the pain that results from committing evil, participants and consorts.
5. Just as the material damage caused by a delinquent must be compensated, the object carried off returned, so reparation must be made by him, not in abuse subjected to, but in acts of virtue and devotion, for the harm he has done to the common conscience. There is nothing mystical, irrational, or arbitrary in this, which could disqualify the most insolent malefactor; complete abolition of the so-called right to punish, which is nothing other than the formal violation of the dignity of an individual, in reprisal for a violation of the social dignity.
6. But, as the crime or misdemeanor is never isolated, as it has been more or less caused, provoked, encouraged, tolerated, or permitted by the system of relations, always more or less inexactly determined, which form society, there is always a place for society to seek in what way it can itself have been at fault with regards to the delinquent, the sanction, like Justice, being complete only insofar as it is reciprocal.
These principles posited, let us come to their application.
[working translation by Shawn P. Wilbur]