this is hilarious: every foucauldian discussion should be preceded by a slide whistle.
This great excerpt we had to read in criminal law (well, except when he went all Christian at the end of it): The Humanitarian Theory of Punishment (1953) by C.S. Lewis. (Yes, him.)
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.
Lewis talks about how humanitarian theory removes from Punishment the concept of Desert. But desert is the only connecting link between punishment and justice.
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.’
If you remove the element of what the criminal deserves, then Lewis argues that the only other elements of punishment are the Cure and the Deterrent:
1 – If we are looking to cure, we put the criminal at the hands of technical experts. This could substitute for a definite sentence an indefinite sentence that only ends when these experts say he is Cured.
2 – If we are looking to ‘make an example’ with this Punishment, without the element of what the criminal Deserves it doesn’t even matter that the man we punish be the one who committed the crime. The punishment of an innocent man can serve the same function as a deterrent provided the public thinks he’s guilty.
This is why 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 error began, perhaps, with Shelley’s statement that the distinction between mercy and justice was invented in the courts of tyrants. It sounds noble, and was indeed the error of a noble mind. But the distinction is essential. The older view was that mercy “tempered” justice, or (on the highest level of all) that mercy and justice had met and kissed. 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 deserves punishment, it cannot be pardoned. How can you pardon a man for having a gumboil or a club foot? But the Humanitarian theory wants simply to abolish Justice and substitute Mercy for it. This means that you start being “kind” to people before you have considered their rights, and then force upon them supposed kindnesses which they in fact had a right to refuse, and finally kindnesses which no one but you will recognize as kindnesses…