Retributive Justice and Natural Law Peter Karl Koritansky IN 1949 C. S. Lewis published an essay entitled "The Humanitarian Theory of Punishment,"1 in which he argued for what he called a more "traditional" retributive theory over one that is solely directed to the rehabilitation of criminals and/or the deterrence of potential criminals. As Lewis argued, whereas many have dismissed the concept of retribution as nothing more than a veil for vengeance and barbarism, it turns out upon analysis that it is the removal of retribution from our notion of criminal justice that truly has a dehumanizing effect. Especially striking about Lewis's argument is his claim that retribution is of great value, not just from the point of view of the law, but from that of the criminal. Once the concept of retribution is removed and we are left only with the "humanitarian" goals of deterrence and rehabilitation, Lewis says, "each one of us, from the moment he breaks the law, is deprived of the rights of a human being."2 How is this so? According to Lewis, the problem with the humanitarian theory is that it "removes from Punishment the concept of Desert," a concept that is "the only connecting link between punishment and justice."3 He continues, [End Page 407] It is only as deserved or undeserved that a sentence can be just or unjust. . . . 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."4 A criminal, argues Lewis, at the mercy of a humanitarian system of punishment will have his fate decided by experts in psychotherapy or sociology rather than by judges trained in jurisprudence. Instead of a definite sentence imposed by such a judge, the criminal will receive an indefinite sentence that is only lifted when the so-called expert considers him cured. Followed consistently, the humanitarian theory might impose a much more severe penalty upon a harmless but difficult-to-cure criminal than upon a murderer who is cured relatively quickly. The fact that such disparity of punishments strikes decent human beings as alarmingly unfair is beside the point. To the experts, fairness is another word for justice, a notion inseparable from the belief that criminals should be punished no less and no more than they deserve, and it is precisely this understanding of desert that the apologists for the humanitarian theory consider meaningless and aim to replace.5 Lewis goes on to argue that the problems with eliminating retribution are even worse if we consider deterrence, because, here, the eclipse of justice is even more evident. As Lewis puts it, when deterrence becomes the sole or even the primary goal of punishment, it is not absolutely necessary that the man we punish should even have committed the crime. . . . 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.6 [End Page 408] To be sure, supporters of the humanitarian theory of punishment have argued7 that punishing an innocent person to achieve a deterrent effect would never be worth the risk of the general public finding out the truth.8 Lewis, for his part, insists that "every modern State has powers which make it easy to fake a trial" and that "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 . . . of an innocent victim."9 In the end, it may not matter so much to Lewis how likely the above scenario is to occur in the real world. The mere fact that something as startlingly wrong as the...
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