Expiation.—We also find in the old law another notion derived partly from the preceding, but chiefly from religious mysticism—the notion of expiation. After constructing in his own image a divinity blinded by human passions, man attributed to him, from fear of vengeance, sentiments of anger and indignation regarding his baseness and malice toward his neighbor. He then conciliated the divinity and appeased his wrath by making sacrifices, human or otherwise.
At first, sacrifices were not made of criminals or guilty persons, but of innocent lambs, men or beasts, sometimes with all kinds of torture, to appease the supposed wrath of the gods. Gradually, however, these customs became more humane and were changed to the notions of expiation which we still have. Whosoever has committed a crime should expiate it by some kind of pain, eventually by death. In our modern penal law, notions of expiation and retaliation are blended, and when we study its roots in ethnology we are not surprised to see the expiation and punishment of so-called crimes against God or religion. We find in this fact a singular mixture of religious and judicial notions. A curious way of appeasing the divinity is the sacrifice of animals and other offerings which ancient and savage peoples made and still make, in returning thanks for victory or some other good fortune, or to appease supposed wrath.
Themis.—In spite of all these errors, ancient civilization represented as the ideal of right a goddess of justice, Themis, with eyes blindfolded and holding scales in her hands. The scales signified that right and wrong should be carefully weighed against each other; the bandage, that the judge should pronounce his verdict without regard to persons, and be inaccessible to all outside influence. For the limited ideas of that period, little removed from retaliation and expiation, this blind woman with her scales was a sufficient representation of justice. She had no need to trouble about the psychology of human nature, mental disorders, diminished responsibility or ideal social improvement.
Themis Unblindfolded. Fallacy of Free-will.—Nowadays the task of our goddess is not so simple, for the progress of humanity and science, especially of psychology and psychiatry, oblige her whether she wishes or not, to completely remove her bandage, so as to see clearly into the human brain.
It is not simply a question of knowing whether an accused person has or has not committed the act which he is accused of, but also whether he knew what he was doing, what were the motives which urged him, and who is the real instigator of the misdeed. Alcohol, mental anomalies and diseases, suggestions, passions, etc., concur in influencing the human brain so that it is hardly responsible for its acts.
Again, on further examination, we find that the accepted and historical notion of free-will, that is to say the absolute liberty of man's will, which constitutes the very existence of our old penal law, becomes not only more problematical, but may even be considered as a purely human illusion, resting on the fact that the indirect and remote motives of our actions are mainly subconscious.
The great philosopher, Spinoza, has already demonstrated this truth in a masterly manner, and modern science confirms it in all respects. Every effect has its cause, and all our resolutions are the result of the activities of our brain, in their turn determined or influenced by hereditary engrams (instincts and dispositions) or acquired (memories), which are their internal causes, and combine with causes acting from without. Let us admit freely the fallacy of the old axiom of human free-will and endeavor to understand that what we consider as free will is nothing else than the very variable faculty of our brain, more or less developed in different individuals, of adapting its activity to that of its environment, and especially to that of other men. Also let us endeavor to take into account that our will and all our actions are, consciously or unconsciously, determined by a complex of energies or hereditary engrams (character), combined with those which have acted upon us from without during our life, as well as with emotional or intellectual sensory impressions.
Our whole conception of rights, and especially of penal law, should then change. We should entirely do away with retaliation, a barbarous relic of a more or less animal sentiment of our ancestors, and expiation, the relic of a superannuated and superstitious mysticism. Modern and truly scientific reformers of penal law have already taken account of this necessity. But, in spite of the complete inefficacy of the old penal system as regards the diminution of crime, they have so far only put into practice few of their ideas.
Justification of Rights and Laws.—After what we have just said, there only remain, two reasons to justify the existence of rights and laws:
(1). To protect human society against criminals, and in general to institute ideas and laws with a view to regulate the mutual interests of men, in such a way as to result in natural conditions of existence as advantageous as possible, both for the individual and for society: