This is the sequel to 'The Humanitarian Theory of Punishment' doodle, an essay where Lewis described the supposedly 'merciful' modern crime & punishment theory as a man-eating weed. C.S. Lewis replies to the 2 different criticisms of his essay: (a) that 'usefulness', not proportionality or conscience, should determine laws; & (b) that proportionality/justice & conscience should take 2nd place behind 'the protection of the community'. Lewis knocks them down delightfully, one shot to a pigeon.
(2:09) 'Nomoi' – by law or custom, 'haplôs' – simply, & 'physei' – by nature. For ancient usages see Aristotle's: Athenian Cons. Ch. 16 [10]; Ethics 1094b; & Politics 1254a.
(2:18) For more simple explanations of Natural/Moral Law, see Chapter 1 & 2 of 'Mere Christianity' doodled here: http://y2u.be/QmHXYhpEDfM & http://y2u.be/l_VYCqCexow
(2:23) During the 1700's, highwaymen (ex-King Charles I supporters), pirates & thieves were glamourised by poets, in song, in the press & by fiction writers, which led to a contempt for the law & something of a crime wave. This then led to an over-correction by the State. In 18th Century England, deterrence soon became the be-all-and-end-all of 'modern' crime theory - thieves were now to be executed. Juries did not like this & would often reduce the value of the goods stolen to prevent capital punishment for this crime. By the early 1700's, the law soon allowed judges to commute the death sentence for theft to transportation to the criminal colonies in Australia.
(4:52) By choosing 'happiness/survival of the community' at all costs, Prof. Smart is making a personal preference, & by asking others to do so also, he is establishing a petitio – an assumed ethical standard of 'happiness' or 'survival' that all people should accept. The inconveniences he declared solved are still there. All Prof. Smart has done is offer us fanatically narrow/truncated ethical code, instead of a healthy & full one.
(4:58) This saying is often taken to mean "the welfare of an individual yields to that of the community", which indeed happens in war (e.g. WW2), when the able-bodied are lawfully & temporarily drafted for the crisis. Nevertheless, 'the welfare of the people' law may not (& can not) be secured by acting outside of law.
(5:40) See Lewis' footnotes to his article.
(7:11) 'Eye-for-an-eye' or 'ox-for-an-ox' in the Bible meant 'proportional restitution for victims'. If you look at every single biblical example, it did not ever mean rape-for-rape, evil-for-evil, punch-for-punch or even 1-for-1 (Rom. 12.18-21, Deut. 32.35). Depending on the crime & the motive, it sometimes meant cash-for-injury, execution-for-murder, 5-to-1, 4-to-1, 2-to-1, 1?-to-1. For instance, if you stole goods to resell, the victim compensation required was 4x the value of the goods stolen. If you stole to use the items it was 2x the value of the stolen goods, as the goods could be returned to the owner. If you falsely testified in court & were discovered, 'eye-for-an-eye' meant whatever sentence you intended the court to give your victim by your false testimony, it was given to you. See https://bit.ly/2wGrUKX
(8:00) Note that God's definition of marriage & the State's idea may differ remarkably. In ancient Israel, due to isolation, couples were married by their small village, & the marriage contracts were not written down until months later when an itinerant Levite or priest finally arrived. Children conceived during this period were not considered illegitimate. Unions & childbirth were not delayed for lack of a priest. In Nazi Germany, marriages that God ordained were forbidden by the State on the basis of evolutionary theories. In the Bible, divorce for legitimate grounds such as adultery, abuse or neglect could be almost instantaneous (Deut. 24:1, Exd. 21.10), but in many States there were very long waiting periods before remarriage was allowed, which made God-ordained remarriages unrecognised by the legal system. In these cases of inconvenience or delay, righteous couples often ignored the legal system, & swapped tokens & verbal vows before God until the State's law did allow marriage, rather than wasting child-bearing years.
(8:52) The age of responsibility has varied certainly – in old codes it was around puberty - but there always seems to have been the distinction in British Law between adult & child. Note that as monarchs became stronger & took over the English law codes, the codes became more gruesome, & less based on financial compensation, & much less like the system of the Old Testament. In a big change from earlier English & biblical law, fines now were payable to the Crown or State, rather than the victim of the offence. The final change in English Law occurred in the 1800's - prisons did not simply hold you until your trial & punishment, it became THE punishment itself. The emphasis now was cure by a kind of secular monasticism or extreme isolation
(12:33) "Larn" = dialect form of learn ("school him")
This next doodle may be a bit of a rough ride. This discussion about crime and punishment was published in a law journal, which is only read by law professionals and law students. It is an argument among people with four different areas of study: a Professor and Chair of Medieval and Renaissance Literature (C.S. Lewis); a Professor of Philosophy (J.J.C. Smart); a Criminal Lawyer & Criminologist (Norval Morris - the founder of the 'National Institute of Corrections - USA'); and a Criminal Psychiatrist (D. Buckle). So it may be hard to keep up with! But if you persevere you might find it illuminating. You will need to watch Lewis’ first essay in doodle form to get up to speed with Lewis' original argument ( https://www.youtube.com/watch?v=vJYU0RPVbVc ), so that you can understand the critiques of Lewis’ essay and appreciate how neatly C.S. Lewis knocks the props out from under his critics ‘unerringly - one shot to a pigeon’.
@vaclavjebavy5118 Says:
I don't mind this second voice over, but I do find it funny how every quotation eh goes 🤓
@jsteele07189 Says:
Lewis's response to Dr. Smart's critique turns on the idea that the "happiness of the community" will lead to bad treatment of those outside the community. What if "the community" is defined more broadly, to include *all* humans, including criminals and children, across the whole face of the earth? What if it included animals, or all life-forms, or even "the biosphere" as a sort of general entity?
@jsteele07189 Says:
Constructive criticism: no need for the voice affect on the quotes from the critics. C.K. wouldn't have done that. (except for "larn 'em," that's funny)
@hellie_el Says:
wow, the depth of the notes in the description and the comments is remarkable!
@lloydgush Says:
Interesting how this sort of mentality was refuted in it's inception, yet they still argue it.
@sennest Says:
😎👍👍 Beautifully read and perfectly illustrated. Interesting idea right now given court cases around the world with different challenges from many things that have transpired. 🙏🙏 thank you very much and blessings on you and your household!!!🎉
@youbetyourwrasse Says:
It took me 47 minutes to watch and absorb, but I am glad I did and grateful for the opportunity. I love the use of the accent changes to highlight who is speaking. Clever and very helpful. Without God, there would be no Morality. I sleep well knowing it is safe in His hands, out of the reach of mens dirty fingers. *Glory be to God* ((((( PS. I would love to see "Man or Rabbit" portrayed by this artistic genius. <3 )))))
@CSLewisDoodle Says:
QUICK SUMMARY OF PROFESSOR SMART'S ARGUMENT IN HIS OWN WORDS (bolded comments are those that Lewis quoted in his reply):
PROF. SMART: “From the point of view of the legislator, we ask: "Is this the best punishment to assign for this type of offence?" It seems to me that the only way in which this question can be rationally discussed is the utilitarian way: that is by considering the consequences for society of adopting or not adopting the penal law in question. What other type of argument is relevant? Admittedly one could appeal to Scripture, but the New Testament was not intended as a text-book of penology, and some of the penal ideas of the Old Testament are barbarous [Note 1]. Certainly if we knew that God had said that such-and-such was the law we should adopt we should be foolish not to adopt it. But how does God know that it is the best law? God is rational and must have argued rationally to His decision. How else, then, than by arguing in the way we should, if we were rational, that is, in the Utilitarian way?
[Note 1: Here are the punishments for three of the most common crimes under the Old Testament’s ‘eye-for-an-eye’ or ‘proportional restitution’ system:
A thief was required to return the goods stolen and pay a financial penalty to his victim in accordance to the value of the goods taken or on-sold ( https://biblehub.com/exodus/22-1.htm );
A man found guilty of common assault had to pay financially for the man’s medical costs and his lost wages until completely healed ( https://biblehub.com/exodus/21-19.htm );
The public murderer was given the death penalty ( https://biblehub.com/exodus/21-14.htm ) CSLD. ]
PROF. SMART: “There is something else that Lewis might put in the place of Utilitarian argument: an appeal to the Law of Nature [Note 2]. *I do not know what the Law of Nature is.* But I think I know what the use of the expression "Law of Nature" is. It is this: "this is the Law of Nature" = *"this is the rule that ought to be adopted"* , said by someone who wishes to disguise his *own dogmatism* and to conceal the fact that he is either unable or too lazy to search for a rational (i.e. a Utilitarian) justification of the proposed measure. (See Lewis’ reply here: 2:44).
[Note 2: The Conscience or ‘Law of Nature’ or ‘Practical Reason’ or the ‘Moral Standard known to all men’ includes:
I. The Law of Goodwill towards Humanity Generally.
2. The Law of Special Goodwill towards Specific Persons (Friends, Relatives and Citizens).
3. Duties to Parents, Elders, and Ancestors.
4. Duties to Children and Posterity.
5. The Law of Justice.
6. The Law of Good Faith and Veracity.
7. The Law of Mercy.
8. The Law of Magnanimity and Courage.
CSLD.]
PROF. SMART: “From a Utilitarian point of view, then, we discuss a measure by asking "Will this measure or will some alternative one tend most to promote the well-being of society?" If the proposed measure is a penal law there seem to be only three ways in which it can be of value:
(I) To deter people;
(2) To protect society by eliminating or removing criminals;
(3) To reform the criminal.
The first two of these are by far the most important. It is not always possible to reform the criminal. And I should say that (I) [deterrence] is of greater importance than (2) [protection of society]...
It might be argued that punishment satisfies the desire of certain members of the society for revenge. However, the desire for revenge is something which is perhaps better left unsatisfied. It is difficult to believe that society would not be happier if it thought less about revenge. Moreover I do not see how the principle of revenge itself could possibly be justified. "If we adopt the principle 'An eye for an eye and a tooth for a tooth' we will make society *happier.* " How? Ordinarily we know what is meant by "the deserved punishment". It is that laid down by law. But how can "desert" have a meaning when we discuss what punishment the law ought to lay down? If we try to apply the idea of desert here we are either driven back on to *Lewis's personal preferences* ("I should like to see murderers hanged", say) or we have to fall back on some crude equation of punishment with amount of damage done: an eye for an eye. Why the damage-retribution equation should be thought a sound principle of legislation I do not know. I do not see how it could possibly be justified. Why should society be happier if we adopt this principle? Indeed it is quite easy to see that society will be happier if we do not adopt this principle.” (See Lewis’ reply here: 4:29).
@CSLewisDoodle Says:
QUICK SUMMARY OF DR MORRIS AND DR BUCKLE’S ARGUMENT IN THEIR OWN WORDS.
MORRIS & BUCKLE: “Herein then lies the kernel of the discussion - Lewis regards reformation [/cure] and deterrence as subsidiary and never as a justification of punishment, and suggests that the Humanitarian Theory of Punishment has erected them into its vital aims. This, we believe, is a perversion of the Humanitarian theory. To us, the vital purpose of the criminal law is *the protection of the community* ... the prime function of punishment must clearly be the protection of that society. (See Lewis’ reply here: 7:21).
And the disadvantage Lewis sees, and which is undoubtedly a threat, is the possibility of the abuse of power necessarily given to those aiming to fulfil this purpose. Can the expert be kept on tap and not on top? This risk of administrative abuse of power runs throughout the whole social pattern as we increasingly come to rely on the expert in economics, in town planning, in many aspects of social organization, indeed in every sphere of our corporate life, including that of the detection and punishment of crime. One of the basic problems of our age is to erect effective controls by which we can make use of the services of experts and yet guard ourselves from their potential authoritarian danger. In the field of penal sanctions, because of our traditional awareness of this danger, this protection can fairly easily be guaranteed. *The Criminal Courts have traditionally represented the common man and the common man's view of morality.* The Judges have earned the confidence of the people as unbiased and incorruptible men. The Courts have to hand excellent techniques for controlling the exuberance of the expert in criminology or penology. Let the ultimate control always reside in the Courts, let the expert always be accountable to them, let the criminal always have access to the Court, let *the controls of natural justice which the law has built up* be applicable, and, it is suggested, the tyranny which Lewis foreshadows will not eventuate. (See Lewis’ reply here: 10:01).
A test case is given by one of the basic demands of those adhering to the Humanitarian theory: for certain types of criminals the Humanitarians wish to substitute for definite sentences some degree of indeterminacy as to the period those criminals will spend in prison. As Lewis points out, herein lies a real risk of tyranny. The answer is again to be found in the existing courts. These should require the expert to give evidence publicly and subject to cross-examination to substantiate the reasons for his decision concerning the release of the criminal. The prisoner should have the power to initiate this type of enquiry at regular intervals and the onus of proof should never shift from the expert.
With child criminals we have abandoned the Retributive Theory quite explicitly, holding that the welfare of the child must frequently be regarded as a major consideration motivating courts charged with sentencing juvenile delinquents. The cost to the community of rewarding the larceny of a few sweets by a child with a punishment exactly equated to that social harm, has proved too expensive to be tolerated...therefore, both for the child's sake and for the community's, it is frequently necessary to reward the delinquent child with a punishment not "justly related", in the sense in which Lewis uses the phrase, to the offence he has committed. (See Lewis’ reply here: 9:00).
This concept of "desert" is really the lynchpin of Lewis' article. As he sees it, the idea of the “deserved" or "just" punishment is an acceptance that for each offence, calculated in the light both of the crime committed and the history of crimes perpetuated by that individual, there is a price of punishment known fairly widely throughout the community - that there is, in other words, a price-list of deserved punishments. This may well be a true picture of what is in many men's minds; but it is only true for those people who consider a static situation in crime, who consider only two parties to any crime - the criminal and his victim. Now the contrast with this is the Humanitarian Theory which sees crime as a dynamic situation, not involving two parties, but involving many parties: not only a criminal and his victim, but a whole list of future potential victims who, unless they are protected with the best means at our disposal, are likely to suffer hardship. In arranging this protection, however, the Humanitarian must always remember that it should be related to the extent of current knowledge, and to the fact that the community must be expected to bear some risk for its dangerous and pathological elements. (See Lewis’ reply here: 12:23).
We do not go to the extreme of denying importance to the community's conception of a "deserved" punishment. The punishments imposed on criminals serve purposes other than those we have canvassed - they constitute society's official pronouncement of the gravity with which any criminal action is viewed, and therefore assist in reinforcing that community's sense of right. This sense of right, this group super-ego [Freud], must never be exacerbated either by the too great leniency or the extreme severity of any punishment imposed. In other words, the community's sense of a just punishment will create the polarities of leniency and severity between which the criminal law may work out its other purposes. Lewis appears to regard any crime solely as the result of a wrong choice between doing good or doing ill. We do not propose to wander into the morass of the free will-determinism argument, for we agree with Lewis that this is a cause of crime. We do not, however, regard it as the only cause of crime which is to us an extremely complicated moral, physical, psychological, and sociological phenomenon in which the totality of the criminal's inheritance and environment, together with his area of free will, will have causal connection with the crime he commits. To relate punishment to but one aetiological [causal] factor is to minimize the difficulty of fixing a rational sentence.” (See Lewis’ reply here: 12:56).
@CSLewisDoodle Says:
(4:51) Later publications of this essay always cut out a sentence (shown below in caps) from the original journal due to a transcription error:
“Let us suppose (what, I am very sure, is false) that Professor Smart is prepared to go the whole hog. It then remains to ask him [1] why he does so or [2] why he thinks we should agree with him. He of all men cannot reply that ‘salus populi suprema lex’ ['the welfare/preservation of the people is the highest law'] is the Law of Nature; firstly, BECAUSE HE "DOES NOT KNOW WHAT THE LAW OF NATURE IS", AND SECONDLY, because we others know that "the people should be preserved" is not the Law of Nature but only one clause in that Law.”
Lewis’ original reply, including footnotes, is found here: https://drive.google.com/open?id=0B9MmcPqIiEnKMjZSRTY0X3otUW8
More explanatory notes are found in the video description above.
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