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4 Christian Law. (C.L.S.) 4 (1971-1973)
C. S. Lewis and the Humanitarian Theory of Punishment

handle is hein.journals/chrislwyr4 and id is 90 raw text is: C. S. Lewis and the Humanitarian Theory of Punishment *Stuart Barton Babbage STUART BARTON BABBAGE Is Dean of Gordon- Conwell Theological Seminary, Massachusetts. This paper was published in the Christian Scholar's review and is reprinted. To T. S. Eliot, who had written to him in his serious illness, Lewis wrote: We must have a talk-I wish you'd write an essay on it-about Punishment. The modern view, by excluding the retributive element and concen- trating solely on deterrence and cure, is hideously immoral. It is vile tyranny to submit a man to compulsory 'cure' or sacrifice him to the deter- rence of others, unless he deserves it. On the other view what is there to prevent any of us being handed over to Butler's 'Straighteners' at any moment?' It was a subject about which Lewis felt deeply. He was frustrated by the fact that he could get little hearing for his point of view. At the end of his paper on 'The Human- itarian Theory of Punishment'2 there is a re- vealing postscript: 'One last word. You may ask why I send this to an Australian periodi- cal. The reason is simple and perhaps worth recording: I can get no hearing for it in England.'3 The nature of the debate and its subsequent ramifications are worth recording. The 'issue was prompted by widespread public controversy about Capital Punishment. What interested Lewis was the larger and more fundamental question of the nature of punish- ment itself.4 'My subject,' he wrote, is not Capital Punishment in particular, but that theory of punishment in general which the con- troversy showed to be almost universal among my fellow-countrymen. It may be called the Hu- manitarian Theory. Those who hold it think that it is mild and merciful. In this I believe that they are seriously mistaken. I believe that the 'Human- ity' which it claims is a dangerous illusion and disguises the possibility of cruelty and injustice without end. I urge a return to the traditional or Retributive theory not solely, not even primarily, in the interests of society but in the interests of the criminal.' The advocates of the humanitarian theory of punishment, Lewis pointed out, argue that the traditional concept of punishment based upon desert is barbarous and immoral and that the only legitimate basis for punishment is the desire to deter others by example and to mend the criminal. This belief implies that all crime is morally pathological and that what is re- quired is not punishment but psychiatry. At first sight this sounds eminently sensible: what we are doing is abandoning the harsh and self- righteous notion of giving the wicked their deserts for the charitable and enlightened one of tending the psychologically sick. Lewis pointed out, however, that 'the things done to the criminal, even if they are called cures, will be just as compulsory as they were in the old when we called them punishments'. It was this aspect of the matter that filled Lewis with dark foreboding. 'My contention,' he repeated, 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.'7 The traditional concept of punishment is tied to that of justice. The basic question is: Is the sentence just or unjust? 'When we cease to consider what the criminal deserves and consider only what will cure him or deter others,' Lewis warned, 'we have tacitly re- moved him from the sphere of justice alto- gether; instead of a person, a subject of rights, we now have a mere object, a patient, a case.'8 The humanitarian theory of punishment changes the whole character of the judicial process. Traditionally, the determination of what constitutes a just sentence is regarded as a moral problem: that is why we appoint as judges persons trained in jurisprudence, trained, that is, in a science which deals with rights and duties and which, in origin at least, consciously accepts guidance from the Law 4 The Christian Lawyer / Vol. IV, No. 4 / Winter 1973

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