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In the Shadow of the Gallows
| Article
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17885 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
3 / 1990 |
6,314 Words |
| Author
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Ernest L. Fortin
Ernest l. Fortin teaches theology and political theory at
Boston College, where he is co director of the Institute for
the Study of Politics and Religion. |
Aficionados of Gilbert and Sullivan operettas are not likely to forget the sonorous proclamation by means of which the Mikado of Japan informs the citizens of Titipu that his "object most sublime" is to "let the punishment fit the crime." His imperial Majesty was not always in the same equitable frame of mind, for he had previously threatened to strip the local Lord High Executioner of all power unless he put someone to death within a month.
Both dispositions, one more "humane" than the other, point in different ways to the problematic character of human justice and its corollary, punishment. Assessing guilt and fixing the appropriate penalty is not an easy task, and we know from long experience that a craving for retribution can lead to crimes that greatly exceed the ones for which the guilty party is being made to pay. As far back as the early chapters of Genesis, Lamech, whose lust for vengeance knew no bounds could sing to his wives: "I have slain a man for wounding me, a young man for striking me. If Cain is avenged seven-fold, truly Lamech seventy-seven-fold."
Much as we may regret it, there is no completely satisfactory solution to the problem. Good government is government by laws rather than by the will of the ruler, which leaves too much to chance and lends itself to too many abuses. But laws are affective to the extent to which they are backed up by force. Persuasion alone, though referable and certainly more noble, has never sufficed s an instrument of just rule. It is no accident that dike, the Greek word designating the goddess of Justice, also means punishment, trial, or atonement. Laws differ from general rules of conduct, recommendations, admonitions, sound advice, or plain old good ideas precisely in that their observance is enjoined under pain of sanction. A law that has no teeth is not a law in the strict sense. It may be that every so often laws are allowed to be broken with impunity, but this implies only that, though still on the books, they have fallen into desuetude and thus effectively ceased to be laws.
Part of the trouble is that strict obedience to the law does not guarantee that justice will prevail in each instance. Lawgivers, who must legislate not only for whole societies but for the future as well as for the present, cannot take into account all of the circumstances that surround human actions. There will always be moments when, for some unforeseen and perhaps unforeseeable reason, even the best law must be set aside in the interest of justice itself. Aristotle and the long line of legal theorists who followed him tried to circumvent the difficulty by appealing to a special virtue
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