Morals and the Evolution of Man

by Max Simon Nordau

But the community cannot wait until this stage of moral development has been generally attained. It refuses to entrust its existence to the spiritual purity of all its members. On principle it disregards processes in the consciousness of the individual—I have cited in an earlier chapter the few exceptions to this rule: investigation as to premeditation, accountability, freedom from undue influence—and keeps to actions which alone it judges. It declares itself incompetent to pronounce sentence upon a "storm inside a skull," to quote Victor Hugo. Its sphere is that of obvious facts. Not until subjective impulses and decisions are manifested in outward form does it intervene with methods of the same order, with outward coercion. The sanctions of its law are material, are punishments and fines. It hits the wrongdoer over the head and on his hands and forcibly empties his pockets. To look into his soul and set matters to rights there is a task undertaken much later by law-givers. It was only after they had remembered that the source of law is Morality and that its ultimate aim is not the bare attainment of a state of mutual respect for one another's rights, but the education of the community to a universal condition of self-discipline, consideration and neighbourly love, that the law-givers made a point not only of requiting the bad man's misdeeds, but also of trying to elevate him morally.

At different times, at different stages of civilization, and according to the current views of the universe, society has interpreted in different ways the punishment it inflicts and which it carries out by forcible means, so as to ensure respect for its laws. Its original character is that of revenge for an offence. The wrongdoer has offended the community, it attacks him furiously and breaks every bone in his body just as an angry individual would do in his first access of indignation. That is Draco's penal code. That is the law of literal requital. The special characteristic of this sanction is its violence and lack of moderation. It does not trouble to find the right proportion between punishment and crime. It does not carefully and fairly weigh the force of its blows. The club falls with a frightful crash, but its dynamical effect is not calculated beforehand in kilogrammetres. "The stab of a knife is not measured," as an Italian proverb says. Thus conceived, punishment has something primitive about it, something intolerably barbarous. The community does the very things it was created, by Morality and Law, to prevent; it exercises the right of the stronger against the challenger; it promotes war, not that of all against all, but of all against one, and its punishment is an act of war.

In a strongly religious society which lives in the idea of immediate community with the deity, every transgression of the law is felt to be a sin against the gods, and the punishment becomes an expiation offered to them so as to avert their dangerous anger from the commonwealth. In the administration of justice dim religious ideas are mingled, punishment is tinged with a veneer of civilization, the culprit is, so to speak, offered as a sacrifice to the gods. This supernatural view was prolonged by the Inquisition, at least for a certain class of offences, until almost modern times.

When society awakens to the consciousness that its bond of union is Morality, and that its most important task is to educate its members in Morality, it introduces the concept of betterment into its penal system. It wants not only to punish the wrongdoer sharply but also to transform him inwardly and purify him. He is to feel that the punishment is not only a requital but a mental benefit. In the Austrian army, until corporal punishment was abolished, it was a rule that the soldier, after being flogged, should approach the officer on duty and say, as he saluted, "I thank you for the kind punishment." That is the attitude that society, when it gives a moralizing tendency to its penal laws, wishes the person who has been punished to attain. In this there is much pleasing self-deception not unmixed with a good deal of hypocrisy. Penal law offers the wrongdoer but little scope for improvement.

All misdemeanours and crimes flow from three sources: ignorance, passion and innate, anti-social self-seeking. Ignorance is the main, almost the exclusive cause of wrongdoing among young criminals who have been badly brought up or neglected, who have never had anything but bad examples before them, and who cannot distinguish between good and evil. Society may hope to improve these by right treatment; it must not punish, it must educate them. Men who commit crimes from passion are those who possess a consciousness of Morality and a conscience, who know quite well what is right and what wrong, but have not sufficient strength of character, that is, not an adequately developed power of inhibition, to resist an opportunity, a temptation, a turmoil of their instincts. To want to improve them is senseless, for they are not bad; they are weak, or at any rate not strong enough. What they need is a strengthening of their character, of their faculty of inhibition, and to achieve this is beyond the power of society. All it can do is to humiliate the guilty party by publicly exposing his lapse and by condemning him, and then grant a delay of the execution of the sentence. In so doing it says to him: "You have acted basely and ought to be ashamed of yourself, now go and do not do it again." If the warning is unavailing and he relapses, then the earlier sentence, as well as the new one, is executed. Fear of this is added to his motives for acting honestly, and may possibly strengthen his resistance to the onslaught of his evil instincts. But his good conduct will always be at stake in the struggle between his power of inhibition and his instincts, and the stronger of the two will always carry the day. And finally, upon the man whose organic disposition makes him anti-social, upon Lombroso's born criminal, society can have no educative effect whatever. It is a hopeless case. Society can render him harmless, it cannot alter him. Consideration for his neighbour will never find a place in his consciousness. He will never learn to resist his impulses and desires. His spiritual insensibility makes him indifferent to the sufferings of others. Incapable of continuous and equable effort, he will always want to prey on society by begging, deceiving, stealing and robbing. He has no conscience and does not hear the voice of society in his mind. He knows nothing of good and evil, which are both empty phrases for him, words without any meaning, and he is convinced that he acts rightly every time he seeks to satisfy his appetites. In his case it is love's labour lost to try and give a moral meaning to the sanctions of the law. Punishment is not directed against the soul of the born criminal, only against his body. It overwhelms him, fetters him and makes him either for the time being, or permanently, harmless; but his organic tendency continues to sway him, and whenever he recovers his liberty he is the same as before he was punished.

The Mystics give to punishment the character of fatherly and chastening discipline by which the sinner expiates his crime and is purged of the sin; thus it purifies him and leads him back to the state of innocence; a kind of anticipatory hell fire which enables him to enter paradise. In "Gorgias" Plato says explicitly: "He who is punished is liberated from the evil of his soul." And the Apostle Paul teaches us: "Punishment is ordained for the betterment of man." Criminal anthropology recognizes that it is useless to expect this moralizing and redeeming effect from punishment. Lombroso altogether rejects punishment as a means of discipline and expiation, and before him Bentham and J. S. Mill, and simultaneously with him and after him Fouillée, Guyau and Maudsley adopted the same view. According to them the sanction of criminal law, which extends and completes it and ensures its efficacy, can have no other aim than the law itself, and this aim is to defend society against its active enemies, if possible by converting them, if necessary by forcible subjugation.

In a book which is full of interest, but whose value is considerably diminished by a strong admixture of mysticism, "Esquisse d'une morale sans obligation ni sanction," M. Guyau goes much farther than the criminal anthropologists and sociological opponents of punishment, and expresses the somewhat paradoxical view that "the real sanction seems to imply complete freedom from punishment for the crime committed, as punishment for any action that has been accomplished is useless." It is quite correct that no punishment under the sun can undo what has been done. But it is not feasible for that reason to dispense with all punishment for misdeeds and to call this systematic freedom from punishment a sanction. Guyau overlooks the fact that the punishment is directed not to the crime but the perpetrator. It certainly alters nothing in a past transgression of the law, and that is not its object, but it may possibly have the effect of preventing fresh misdeeds on the part of the same wrongdoer or of others, and that would justify it.

If society must renounce the idea of improving the misdemeanant, especially the man whose organic tendencies make him a criminal and who is the most dangerous and commits the most numerous and worst crimes, it nevertheless assumes that it makes an impression on morally doubtful characters by punishing misdemeanours and crimes, that it warns them and prevents them from erring. That is the theory of intimidation, which also has many opponents. It will hardly be denied that psychologically it is well founded. The conception of the evil consequences for himself that his action may entail strengthens the impulsive man's power of inhibition when he is about to do wrong, and perhaps enables him to overcome his immoral instinct. Only it is difficult to measure the force which the thought of punishment adds to the effort of inhibition. This force does not come into question at all with the man who sins occasionally from passion. The flood of his impulses sweeps away all barriers which reason may oppose, and their power of resistance is not materially increased by the fear of consequences, because the mental horizon is completely darkened at the time of the storm and no prevision is possible. The criminal from organic causes exercises no inhibition. He knows that society condemns his actions, but he is convinced of his personal right to carry them out, and fears no punishment, because he hopes to escape it, and tries his utmost by means of planning, prudence and self-control to outwit society. The theory of intimidation is not applicable to these two classes of criminals, and they constitute a large proportion of the army of wrongdoers against which society has to defend itself by force.

But there remains the great number of mediocre natures whose sympathy with their fellow men, the emotional foundation of the subjective impulse to Morality, is only slightly developed, who have a superficial veneer of Morality, who act honourably out of prudence, but who would feel no repugnance towards perpetrating profitable misdeeds, if they were certain that they would incur no risk. These insipid characters whose emotional temperature oscillates round about freezing point and who are incapable of great excitement, of passion, would see no reason to resist any temptation, to disregard any favourable opportunity, if the penal code, the judge and the policeman did not warn them to be careful. For this kind of man the penal sanction is really a useful and perhaps an indispensable means of prevention, and it has been thought out and developed by the community with a view to such people.

Not content with theoretical considerations, people have also appealed to practical experience to test the theory of intimidation. In some countries capital punishment was either legally abolished or tacitly suppressed, the judges either refraining from pronouncing the sentence on the prisoner or the head of the state, when appealed to, commuting it by an act of pardon to loss of liberty. Statistics seemed to show that serious crimes meriting the death penalty increased, and capital punishment was reintroduced or the practice of systematic pardons was abandoned, with the alleged result that the worst crimes grew less numerous. I express myself doubtfully, because I do not think that the statistics were sufficiently conclusive. They embraced too small a number of cases and too short a period of time. It cannot be conclusively proved that the abolition of the death penalty resulted in an increase of capital crimes; but it is certain that crimes were never more frequent or more horrible than in the times when criminal justice was most cruel and made use of the most terrible sanctions. Up to the dawn of modern times legal torture was administered, at every street corner there were gallows, the poor wretch under sentence of death was pinched with red-hot pincers, the executioner tore the flesh from his bones, poured boiling pitch over him, cut out his tongue, hacked off his hands, broke him on the wheel or burnt him alive; executions were a sort of public entertainment or popular holiday, and efforts were made to attract as many spectators as possible; every inhabitant of one of the larger towns was familiar from childhood with the horrid spectacle of mutilated human bodies writhing in torture, and there rang in his ears the echo of the screams of pain and of the shrill death rattle of the victims. But these impressions were so far from intimidating the gaping crowd that many hurried from the place of execution to commit the most execrable crimes, the punishment of which they had just witnessed; consequently punishments have gradually been made less cruel, and the public is excluded from executions, which clearly indicates a decisive rejection of the theory of intimidation.