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Punishment and Human Rights
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11071 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
11 / 1993 |
5,862 Words |
| Author
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George P. Fletcher
George P. Fletcher is Beekman Professor of Law at Columbia
University. |
Since its ancient beginnings, punishing criminals has been a practice of obvious value to common people and dubious to philosophers. The ways of punishment, from the four biblical methods of execution (stoning, burning, beheading, or strangulation)1 to the medieval innovations of drawing and quartering, have always taxed human beings' imagination for cruelty. Even the modern prison, with its antiseptic practice of sealing off prisoners from the public consciousness, represents our own way of displaying inhumanity.
For philosophers, the problem has always been: Why do we display so much passion for labeling people criminals and making them suffer?2 It would be fair to say that for most of history, people have not thought much about why they punish criminals. Socrates presses Euthyphro about why he wishes to prosecute his father for indirectly killing a servant, and it is clear that Socrates is skeptical about the punishment as an act of piety toward the gods.3 The Bible is curiously silent about the purpose of punishment. We are told that those who desecrate the Sabbath "shall surely be put to death."4 But we are not told why. There seems to be a clear biblical difference, however, between punishing those who do wrong and terminating the lives of those--like witches5--who are thought unfit for human society. Some commentators ascribe to the biblical jurisprudence of homicide a complicated mechanics of capturing and releasing blood. Those who slay others supposedly acquire control over their blood; only by being executed themselves is the blood of the victim released and returned to God.6
The biblical approach to punishment is best known for the lex talionis, which establishes the principle of equivalence in punishment: "If men strive, and hurt a woman with child, so that her fruit depart from her, and . . . if any harm ensue, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, bruise for bruise." The graphic detail of this exposition suggests it should be taken literally and that the wrong of knocking out a tooth or cutting off a limb should be reenacted on the body of the criminal. Yet, as Jewish law evolved, the opposite interpretation prevailed. The rabbis of the Talmud understood the lex talionis to require the monetary equivalent of the wrong inflicted.7 The passage from Exodus was not originally taken to require the literal taking of an eye for an eye.
Yet in the Middle Ages there seems to be some counterindication to this talmudic reading. As Maimonides argues in the Guide to the Perplexed:
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