The question of knowing whether an absolute predestination (fatalism, regulating the universe in advance in all its details) exists or not, is a question of pure metaphysics, the solution of which is quite beyond human comprehension, and need not occupy us here. We must simply depend on the scientific postulate of determinism, i.e., on the law of causality applied to the motives of our actions, a law which is very much like that of the conservation of energy, and which admits of divers possibilities for the future, for it does not assume a knowledge of the first cause of the universe nor the will of a divinity.
We shall then understand that the complication of our cerebral activities, mnemic and actual, combined with the fact that a great part of them (and consequently of the motives for our actions) remain subconscious, must produce in us the illusion of free-will.
On the other hand, we shall find the measure of what we are to understand by relative liberty, in the plastic faculties of the activity of the human brain, which allow it to adapt itself as adequately as possible to the numerous and diverse complications of existence, and especially to social relations between mankind.
The most adaptable man is the most free, especially in the sense of active and conscious adaptation. There are also men who adapt themselves passively and are easily molded. This passive plasticity at any rate renders them capable of submitting to everything and only provoking conflict as a last resource. These individuals are no doubt less free, since they obey the impulses of others; nevertheless, their elasticity gives them a certain relative liberty, because they do not feel constraint and easily adapt themselves to laws and other social requirements. But the highest form of liberty, the moral faculty of higher adaptation, is not that of the human fox who exploits others for his own profit, but that of true higher intellects, capable of adapting their activity to the social requirements of humanity. On the contrary, the man who is least free is the one who, dominated by his passions and baser appetites, or by insufficiency of intelligence or will power, is thereby incapable of conducting himself reasonably, gives way to all temptations and impulses, falls into all kinds of snares, cannot keep to any resolution, and is in perpetual conflict with society.
What is the use of the theoretical belief in free-will in this case? This man feels subjectively as free, or often more free, than one who is more reasonable and more master of himself, and yet he is a slave! When, dominated by his psychic bonds, he violates the law, he is punished, but he himself resents the punishment as an injustice. The judge who condemns him and imagines he holds the scales of justice in equilibrium, only carries out the principles of an unjust law, a kind of mild retaliation, exacting moderate expiation. Or again, by exercising a right derived from old traditions based on religious ideas, he plays the part of proxy for the Deity and judges in His place. We might even say that a mail is in reality all the more free the better he realizes that he is not so, i.e., that his actions depend on the activity of his brain! At any rate he will then be less often deceived and will react in a more plastic manner.
The True Task of Penal Law; Its Traditional Errors in the Sexual Question.—Penal law has only one thing to do, that is to cut itself free from its roots and transplant itself on a social and scientific soil. There would then be no longer a penal law, but a law protecting society against dangerous individuals, and a law of administration for persons incapable of conducting themselves. Its task would be the complement of that of civil law. Henceforth the judge would cease to pass judgment on his neighbor and his neighbor's motives, acting as a proxy for God. He would no longer punish, but would content himself with protecting, restraining and ameliorating.
The history of psychiatry and sorcery proves that we are not exaggerating. It is not very long since the insane were regarded, not as persons suffering from disease, but as criminals and sorcerers, and were treated by punishment and exorcism. The ancients, on the contrary, especially certain Greek and Roman physicians (notably Caelius Aurelianus) had already recognized that insanity was a disease of the brain, and had distinguished its different forms.
Even at the present day, we find among the Catholics and among certain Protestant sects, as among savages, a belief in sorcery, and if this belief got the upper hand, prosecution for sorcery—exorcism and other forms of cruelty—would soon become the fashion.
Before the sixteenth century prosecutions for sorcery were universal, and remained very common for a long time afterwards. It is only since the time of the French Revolution that insanity has been recognized as a mental disease. Even in the nineteenth century a German alienist, Heinroth, punished the insane like criminals. The atrocious prejudice of the people against the insane dates from the time of prosecution for sorcery.
Even now we are the slaves of a prejudice which holds a legal conviction sufficient to dishonor the prisoner and stain his character for the rest of his days. Hans Leuss' book, Aus dem Zuchthause (From the prison), 1904, is very instructive on this point. Condemned to prison himself, the author makes some wise and dispassionate observations which give food for reflection. I may also quote the words of Doctor Guillaume, who was for a long time superintendent of the penitentiary at Neuchatel, and who is now director of the Swiss federal bureau of statistics at Berne. The question we are dealing with had been treated in a discussion in which I took part, and to which Doctor Guillaume had listened silently. At the conclusion, he said to us: "Gentlemen, in the course of my life I have become acquainted with a large number of convicts, but I have never been able to discover among them more than two classes of individuals; the one class were diseased, and the others ... ah! the others; the more I study their cases and their personality, I ask myself if I should not have done as they did under the same circumstances!" It is unnecessary to say that Doctor Guillaume did not mean to establish two clearly marked classes, for most criminals represent a mixture of both; but his main idea gives a good idea of the question of penal law.