Punishment without crime, crime and punishment or crime and resocialization

The definition of the rules inside the groups of individuals which led to creation of communities and states brought us the very interesting problem of how to handle the cases of breaking of these rules. Three different approaches have evolved during the time. Let’s analyse all of them.

First approach is most common in the eastern societies and it have its’ roots in the eastern ideologies. First there was Buddhism with Śīla which defined a good conduct and moral discipline. Then there was Chinese Confucius (孔子) which still emphasized self-cultivation and preferred personal examples over any set of rules, but made a mistake of adding governmental morality, Mandate of Heaven and respect to the elders to the pot. To make it worse during Confucius times there was also one more philosophic school which influenced eastern mindset – Mohism (墨家) and its’ impartial love. The mohism itself was OK – it basically was saying that all should be equally treated and all authority should be elected based on its’ merits and not on blood relations, so it emphasized on use of laws (definition of what’s right and what’s wrong) over Confucianism moral discipline. But what it also did – it saw society as an organism and strived for moral uniformity of this organism to avoid conflicts.

So what you do with such a mix of ideology if you are politician. Well, you take what you want from both and establish your own philosophy – legalism, while burning books of other philosophic schools. Basically it meant to take respect to hierarchy and to Mandate to the Heaven as opposed to elders from Confucianism and to take the love of clear law and moral uniformity from mohism. And this is how after few years you get a system in which you can force your kids to study (Confucian striving for perfection), get them an office anyway even if they result to be complete morons (respect to hierarchy) and punish everyone who protest (breaking of uniformity from mohism). Of course it’s just my wicked theory on how it was done. Actually confucianism survived book burning (but the accents have been changed from self-improvement to preserving status quo). The mohism died, but the ideas of uniformity evolved and got mixed with Taoism idea of harmony and struck back during the Cultural Revolution, when everyone got the same dress and the haircut.

In the end Chinese built a system in which the state is obligated to preserve harmony and uniformity to avoid conflicts as it has been for long time in China. In this system you don’t need to do any crime - the mere lack of uniformity is a reason to get punished for the sake of the greater good (preserving of society).
Now I’m going to say something which will be probably blasphemy to all people from the western hemisphere rose in the democratic systems with all those personal liberties and Amnesty International – Chinese system of punishment before any crime has been committed it’s not a pure evil – it does have some important bright points to consider. For once – it tries actively to avoid crime being committed. It helps to protect possible victims, so in this aspect it is much better from reactive systems in which actions are taken only AFTER the crime took place. Of course you risk the wrongdoing of innocent people in the process, but the only alternative is to wait while equally innocent victims are left to mercy of criminals, before we can act. Sometimes I fail to see why letting someone to be hurt by our passiveness is better than hurting someone else in preventing of mayor crime. Yes, the criminal in the end gets what he deserves, but wouldn’t it be great if we could also protect a to-be-victim in the process?

The second approach is the oldest one and one of its' first, full, written versions comes from Hammurabi. Most of the people remember just the most known rule of Hammurabi codex which is basically “Eye for an eye” and is a synonym of punishment adequate to crime. Of course it’s huge oversimplification of codex, because if you get a closer look at Hammurabi’s codex, you will see quite many minor crimes for which the proposed penalty is death and that some losses are paid threefold or fivefold. You will even see a law which was used to try accusation by checking if someone can swim 5 times through the river or not. Some later version of this law was used by trying of witches not so many centuries ago (check if a witch will float or sunk – if she floats it means that she is using a witchcraft, if she sinks…ups, sorry maybe she was not a witch after all). But what is really important is that this codex describes a judicial system in which there is a judge, an accuser and an accused and gave the right to both parties to present their cause and witnesses.

Even though crimes and punishments have changed over the years, most of the western judicial system is still based on these concepts of judging of a committed crime and giving the accused right to defend himself. “Eye for an eye” has been also repeated in Old Testament, which influenced further western civilization’s tendency to respond to crime with punishment. There are plenty of stories in Old Testament in which someone’s misfortune is related to breaking of God’s rules. After some time, crime and punishment became inseparable. Moreover, once people decided that punishment always follows a crime, pretty soon they have started to think that if there is a punishment, there must have been a crime somewhere. You can see this post-rationalization very clearly in the most famous punishment of innocent man in western culture – the crucifixion of Jesus. Since he was so clearly innocent, the post-rationalization of his punishment led to beliefs that he died for our crimes (sins). It’s more to this – God itself is like a judge which will try our good and bad actions on the… hello, hello – the Final Judgement Day and punish the sinners.

The good thing about this crime & punishment rule is the society building factor. Being hurt by criminals is difficult to accept, but it is easier if you know that the society is on your site and it will punish it accordingly. This is one clear advantage over the eastern system in which the gains are not so obvious (it is difficult to imagine itself as a potential victim) and you risk systematic wrongdoing of people by the society. In my humble opinion it is always better for society building if people feel bond with the rest of the society in their fight against criminals than if some individuals think that they are alone in fight against the whole society, which wants to punish them without any clear reason but just as a preventive action.

The third approach to the crime evolved from the second one. Redemption in Christianity was always present (redemption of the thief crucified with Jesus), but during long time it was believed to be possible only as a close-to-death experience. As such it was obvious that the mercy is something in God’s and not human's hands. This popular belief was expressed in such catchy phrases as “Kill them all and let God sort them out” or “May God have mercy on your soul” which used to precede eruptions of outright slaughters in the name of vengeance and punishment. Western societies needed really long time and few bloody experiences like inquisition, religious wars of XVII century and French revolution, before few smart guys started to realize that:

  1. The punishment is not always adequate to crime
  2. Sometimes it’s not even related to crime
  3. People can change

This last statement was directly related to the Age of Enlightenment in the western culture in which people started to defy God’s will by the science. If people were able to change the world by inventions and science, they were also able to change themselves. This was the first step of admitting that well…maybe some people deserved second chance.

The real breakthrough in people’s minds came a little bit later with the Victor Hugo’s book “Les Misérables”. The book describes the live of a long time convict (he stole bread for his sister, but spend more time in prison because of multiple escapes), which was changed by trust which one benevolent bishop put in him against all odds. It also describes how this convict had improved live of a small community and how this community have been put back into misery, once he got punished once again for crime he had committed before his change took place. There are also a lot of other plots, enough to fill at least one soap opera, but let’s stay focused on what influenced the changes in legal systems.
Namely the book shows us an example of someone who:

  1. Is forced to became criminal because of poor living conditions
  2. Changes himself with the help of good people
  3. Is more useful to community and society at all as a changed man than as a convict (his punishment has negative influence on society instead of a positive one)

Sum it up and you will get an example of the first successful resocialization. With this example people have started to believe that it is possible to influence someone to renounce previous behaviour and to accept the new set of rules of society. Initially, the punishment function had the upper hand over resocialization in penitential systems, because no one really knew what is required to achieve this positive change. However at the beginning of XX century a new set of tools came to life – psychology. Since this moment, even though it’s not always true, no modern country will admit that its’ penitential system is punishment-oriented, but will always put also a pressure on gaining criminals back for the society. The punishment itself is no longer so explicit – we don’t say to convicts e.g. “10 years of prison” anymore. We say them “up to 10”, depending on your behaviour.

The advantage of the resocialization over purely punishment based systems is that instead of excluding all convicts, it allows, for those who want it to adjust back to society requirements, to become good citizens again. The disadvantage – it’s a damn risky business for any state. If the state, in which you live, pardons once - it is merciful and you like being part of it. If the state, in which you live, gets duped into pardon someone twice – you feel slightly irritated. If it happens to many times – you think it is useless, because it does not defend good citizens anymore. As I already explained in other article, a state can only exist, if the majority of citizens believe that it’s necessary, so the stakes are really high. To make it worse, the legal systems focus on how to make this change of convict possible and ignore completely that the society can lose victims of the crime in the process. If you pardon a criminal just because you think that he deserves a second chance and without asking the victims first, it might be such a blow to the trust, which the victims put into the state, that odds are that they will stop to be supporters of this state at all.

So now that I explained all 3 systems in such a detail, you probably ask yourself, which one we should choose. Well…the answer is - “None”. This site is about subversion, remember?

The system I’m thinking of is a one in which criminals get second chance, but we protect victims and the state itself. Protection of victims means zero policy for law breaking. Every law breaking should be persecuted by the state. However instead of punishment, we should put the pressure on repairing of damage done by law breaking. Instead of pointless punishment, let convicts really pay its’ debt to the society and to the victims. Any resocialization should start with it and mercy should be allowed, only if the victim expressed its’ satisfaction with the reparation of the damage. The victim’s evaluation should be critical in any decision about future special treatment for convict. Only this way the state can gain the convicts back, without losing support of the victims.