Imagine you are a young adult, say, sixteen or seventeen years old. Driving down the highway, you and your friends are laughing and joking. Without warning, you see a police cruiser, circus lights blazing, in your rearview mirror, and quickly pull to the side of the road. You are gripped with terror in the knowledge that you have been breaking the law in a very serious way. When the police officer approaches, you reluctantly roll down your window. He immediately recognizes the smell emanating from your vehicle – he orders you to step out of the vehicle and calls for backup. You are cuffed, your car is searched and a bag of cannabis is found. You are going to jail – it will be the first step in a very long journey that is going to have lifelong consequences. We could have told the same story of a young adult walking down the road with friends, laughing and carousing while drinking, circa 1920’s. During Prohibition, the consumption of alcohol under most circumstances was illegal and punishment could be very severe.
Of course, most people subjected to alcohol prohibition or drug prohibition feel that the measures taken against them are simply unfair. But this doesn’t matter in the eyes of the exponents of prohibition because, as they see it, any criminal feels that the legitimate exercise of power in curtailing or correcting his crimes is unfair.
Alone in your jail cell the first night, you might begin wondering how you ended up in this mess. Did you make a wrong choice somewhere along the way? Had you fallen into the wrong crowd? Perhaps you really are as anti-social as the system is treating you and you’re just not wise or mature enough to realize it. This could be the wake-up call you needed to grow up and straighten your life out.
But as the weeks and months and years drag on, as the legal fees, the court’s fines, the community service, closed-off education and work opportunities – perhaps even some serious jail time – begin to pile on, you will probably lose all thoughts of where you might have gone wrong and your need to reform yourself. The haranguing of your parents will gradually begin to sound like the intolerable screeching of Harpies and will lose its grip on your conscience entirely. You will know, deep inside, that the punishment which you are being forced to endure is out of all proportion to whatever you did wrong – if you did anything wrong at all. Your thoughts may begin to turn to the law itself, and wondering how it is that such an innocuous act as being in the presence of friends smoking a joint could be punished with such medieval abandon.
Continuing on this line of reasoning, you might consider that the government itself is impersonal and has no care for anyone who passes through the meat-grinder known as the courts and the prisons. In turn, you may reason further to the primary sources of government revenues: taxes, debt and inflation. But since no one likes to pay taxes, why do people do it?
Careful deliberation will show that people pay taxes because they perceive government to be legitimate. This perception may be as ambivalent as believing that government is a “necessary evil” to believing that government is a primary, active force for good in society. But however weakly or strongly public opinion holds the government to be legitimate, it is legitimacy that is the engine of government power.
But what has happened to legitimacy in punishment? How is it that a victim of prohibition laws can be so roughly mistreated, while literate, supposedly modern people – who know about things like the history of abuses in the Inquisitions of Europe or the proven dangers of autocratic power – walk the streets? To the victim of such unjust punishments, it must feel like being tortured in the open public square, while the crowds callously pass by without so much as casting a glance in the direction of the victim.
It is as if the government has divested itself of any concern about legitimacy. If this is the case, it is more terrifying than the nowadays much-maligned Divine Right of Kings. At least in the case of the Divine Right of Kings, the royal who relied on this doctrine had to pay lip service to legitimacy, however transparent his excuse for autocracy really was. At least he had to give an excuse.
Legitimacy is not the sole source of government power. It is legitimacy combined with fear that is the real witch’s brew. In particular, it is fear of your eventual fate should you challenge what you perceive to be illegitimate policy, whether in word or in deed, that forms the granite foundation upon which the power-structure of government impunity is erected. Inscribed over Leviathan’s cave must be these words: “LEGITIMACY AND TERROR.”
But legitimacy is a choke-leash around Leviathan’s neck, whose stake-end is driven into the ever-shifting sands of popular opinion. Leviathan can move the stake, if he is determined, by dragging public opinion along in his direction. But he can drag it only so far and no further. The exponents of democracy seem to think this inability of Leviathan to generate legitimacy on command – in any quantity and in any direction he pleases – is the pinnacle of accountability to society, that we are utopians to expect any more stringent limits on the power of Leviathan. Power, by its very nature, resents all limitations. Leviathan chafes against its collar and wishes for nothing more than to be free of this glozed show of respect to the masses.
The power to punish – in most of the developed world, this is synonymous with fines or prison – is the positively motivating factor impinging on the individual. His belief in the legitimacy of the government – however weak – is what limits him from resisting its policies, from extending sympathy and aid to those who have been judged to have run afoul of the government’s laws. It is a negative force. But punishment is the positive force; it is what drives him off the sofa and into the cubicle, the phone desk or the production-line where he will be subjected to the nit-picking management of the lesser powers.
Terror is no constraint on power. It is an inevitable byproduct of what power is. Legitimacy, however, is a constraint on power and power will seek to remove this constraint to whatever extent is possible. We can see hints of this struggle to transcend the limitations of legitimacy on power in the revolt against human nature and the revolt against reason. I would like to look instead at the revolt against justice – in particular, C.S. Lewis’s article The Humanitarian Theory of Punishment.
Lewis sets forth a very simple critique of the modern theory of punishment. The old theory of punishment was that punishment is simply retaliation for wrong done. The modern theory, (which is to be understood as more compassionate and sophisticated – less barbaric), is that punishment is to either deter crime, rehabilitate the criminal, or both.
Retaliation is only justified if it is deserved, says Lewis. That is, the justifiability of retaliation is a moral problem. Deterrence and rehabilitation, on the other hand, have nothing to do with desert – they are technical problems.
But since each man, as a man, may have a valid moral opinion while none but experts are qualified to have an opinion on the effectiveness of a punishment as deterrence or in rehabilitation, Lewis concludes, the ordinary man can have no say in punishment justified on the basis of deterrence, rehabilitation or both. Lewis states:
My contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being.
… I do not here contend that the question “Is it deserved?” is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a “just deterrent” or a “just cure.” We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds. Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a “case.”
But Lewis contends that the supposedly humanitarian virtues of punishment-as-rehabilitation are an illusion:
It may be said that by the continued use of the word Punishment and the use of the verb “inflict” I am misrepresenting the Humanitarians. They are not punishing, not inflicting, only healing. But do not let us be deceived by a name. To be taken without consent from my home and friends; to lose my liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver; to be remade after some pattern of “normality” hatched in a Viennese laboratory to which I never professed allegiance; to know that this process will never end until either my captors have succeeded or I have grown wise enough to cheat them with apparent success who cares whether this is called Punishment or not? That it includes most of the elements for which any punishment is feared-shame, exile, bondage, and years eaten by the locust-is obvious. Only enormous ill-desert could justify it; but ill-desert is the very conception which the Humanitarian theory has thrown overboard.
If we turn from the curative to the deterrent justification of punishment we shall find the new theory even more alarming. When you punish a man in terrorem, make of him an “example” to others, you are admittedly using him as a means to an end; someone else’s end. This, in itself, would be a very wicked thing to do. On the classical theory of Punishment it was of course justified on the ground that the man deserved it. That was assumed to be established before any question of “making him an example” arose. You then, as the saying is, killed two birds with one stone; in the process of giving him what he deserved you set an example to others. But take away desert and the whole morality of the punishment disappears. Why, in Heaven’s name, am I to be sacrificed to the good of society in this way?-unless, of course, I deserve it.
And we should update Lewis’s observations by noting that the supposedly humanitarian conditions of the modern prison are also a myth – the dungeon-keeps have learned how to let the prisoners torment one another for the most part.
Lewis drives the point home:
If the justification of exemplary punishment is not to be based on desert but solely on its efficacy as a deterrent, it is not absolutely necessary that the man we punish should even have committed the crime. The deterrent effect demands that the public should draw the moral, “If we do such an act we shall suffer like that man.” The punishment of a man actually guilty whom the public think innocent will not have the desired effect; the punishment of a man actually innocent will, provided the public think him guilty. But every modern State has powers which make it easy to fake a trial. When a victim is urgently needed for exemplary purposes and a guilty victim cannot be found, all the purposes of deterrence will be equally served by the punishment (call it “cure” if you prefer) of an innocent victim, provided that the public can be cheated into thinking him guilty. It is no use to ask me why I assume that our rulers will be so wicked. The punishment of an innocent, that is, an undeserving, man is wicked only if we grant the traditional view that righteous punishment means deserved punishment. Once we have abandoned that criterion, all punishments have to be justified, if at all, on other grounds that have nothing to do with desert. Where the punishment of the innocent can be justified on those grounds (and it could in some cases be justified as a deterrent) it will be no less moral than any other punishment. Any distaste for it on the part of a Humanitarian will be merely a hang-over from the Retributive theory.
The connection to the transcendence of legitimacy should be immediately apparent – legitimacy is a question of justice, of morals, of right and wrong. Yet, punishment itself has slipped the noose of legitimacy by means of punishment-as-deterrence and punishment-as-rehabilitation. If a person need not even be guilty of the crime they are accused of in order for the punishment itself to be justifiable, then power – punishment, at least – has truly transcended legitimacy.
The consequences to human dignity are eloquently captured by Lewis:
My argument so far supposes no evil intentions on the part of the Humanitarian and considers only what is involved in the logic of his position. My contention is that good men (not bad men) consistently acting upon that position would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. Their very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we have deserved it, because we “ought to have known better,” is to be treated as a human person made in God’s image.
I think it essential to oppose the Humanitarian theory of Punishment, root and branch, wherever we encounter it. It carries on its front a semblance of Mercy which is wholly false. That is how it can deceive men of good will. … The essential act of Mercy was to pardon; and pardon in its very essence involves the recognition of guilt and ill-desert in the recipient. If crime is only a disease which needs cure, not sin which deserved punishment, it cannot be pardoned. How can you pardon a man for having a gum-boil or a club foot?
Many young adults in the US and other countries that implement a radical anti-drug policy (or other radical policies) have experienced the jackboot of punishment for minor offenses or things that are arguably not offenses at all. Our concept of punishment – having been unshackled from the restraint of justice, desert, legitimacy – is superficially merciful while, in point of fact, it is capricious and degrading. But the greatest impact lies not in the lives destroyed by lobotomized enforcement of prohibition policies – it lies in the general transcendence of legitimacy which such enforcement represents.
If the government can punish you without proportion for trivial offenses or even non-offenses, in broad daylight, without eliciting the slightest quiver in public opinion at your mistreatment, then it possesses power unrestrained by legitimacy. Leviathan has slipped the choke-collar against which it has always chafed and is now free to roam about. The individual is now faced with the prospect of the positive power of Leviathan’s terror unrestrained by the choke-collar of legitimacy which had previously circumscribed the extents of Leviathan’s power.
I have already mentioned that the positive power of terror – constrained, at least in part, by the limits of the perception of legitimacy – is what goads the individual off his couch and into the circus of production – taxed production. If the fear of Leviathan’s punishments while yet constrained by legitimacy possesses such transformative power over society, how much more the fear of its punishments wholly unconstrained by the limits of legitimacy? If the man who works four months of the year to avoid prison for cheating the government of its just deserts (tax revenues) can be called a serf, what shall we call the man who works these four months to avoid being rehabilitated or made an example of?
 AMCAP JOURNAL / VOL. 13, NO. 1-1987