In a strongly religious society which lives in the idea of immediate
community with the deity, every transgression of the law is felt to be a
sin against the gods, and the punishment becomes an expiation offered to
them so as to avert their dangerous anger from the commonwealth. In the
administration of justice dim religious ideas are mingled, punishment is
tinged with a veneer of civilization, the culprit is, so to speak,
offered as a sacrifice to the gods. This supernatural view was prolonged
by the Inquisition, at least for a certain class of offences, until
almost modern times.
When society awakens to the consciousness that its bond of union is
Morality, and that its most important task is to educate its members in
Morality, it introduces the concept of betterment into its penal system.
It wants not only to punish the wrongdoer sharply but also to transform
him inwardly and purify him. He is to feel that the punishment is not
only a requital but a mental benefit. In the Austrian army, until
corporal punishment was abolished, it was a rule that the soldier, after
being flogged, should approach the officer on duty and say, as he
saluted, "I thank you for the kind punishment." That is the attitude
that society, when it gives a moralizing tendency to its penal laws,
wishes the person who has been punished to attain. In this there is much
pleasing self-deception not unmixed with a good deal of hypocrisy. Penal
law offers the wrongdoer but little scope for improvement.
All misdemeanours and crimes flow from three sources: ignorance, passion
and innate, anti-social self-seeking. Ignorance is the main, almost the
exclusive cause of wrongdoing among young criminals who have been badly
brought up or neglected, who have never had anything but bad examples
before them, and who cannot distinguish between good and evil. Society
may hope to improve these by right treatment; it must not punish, it
must educate them. Men who commit crimes from passion are those who
possess a consciousness of Morality and a conscience, who know quite
well what is right and what wrong, but have not sufficient strength of
character, that is, not an adequately developed power of inhibition, to
resist an opportunity, a temptation, a turmoil of their instincts. To
want to improve them is senseless, for they are not bad; they are weak,
or at any rate not strong enough. What they need is a strengthening of
their character, of their faculty of inhibition, and to achieve this is
beyond the power of society. All it can do is to humiliate the guilty
party by publicly exposing his lapse and by condemning him, and then
grant a delay of the execution of the sentence. In so doing it says to
him: "You have acted basely and ought to be ashamed of yourself, now go
and do not do it again." If the warning is unavailing and he relapses,
then the earlier sentence, as well as the new one, is executed. Fear of
this is added to his motives for acting honestly, and may possibly
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