Читать книгу The Origin and Development of the Moral Ideas - Edward Westermarck - Страница 62

16 Dînâ-î-Maînôg-î Khirad, ii. 16; xli. 11; xxxix. 26.

In Leviticus hatred is condemned:—“Thou shalt not hate thy brother in thine heart. … Thou shalt not avenge, nor bear any grudge against the children of thy people.”17 Sirach, whom I have already quoted, says in another passage, “Forgive thy neighbour the hurt that he has done unto thee, so shall thy sins also be forgiven when thou prayest.”18 According to the Talmud, “whosoever does not persecute them that persecute him, whosoever takes an offence in silence, he who does good because of love, he who is cheerful under his sufferings they are the friends of God, and of them the Scripture says, And they shall shine forth as does the sun at noon-day.”19 The Koran, whilst repeating the old rule, “an eye for an eye and a tooth for a tooth,”20 at the same time teaches that Paradise is “for those who repress their rage, and those who pardon men; God loves the kind.”21 Muhammedan tradition puts the following words in the mouth of the Prophet:—“Say not, if people do good to us, we will do good to them, and if people oppress us, we will oppress them: but resolve that if people do good to you, you will do good to them, and if they oppress you, oppress them not again.”22 Professor Goldziher emphasises Muhammed’s opposition to the traditional rule of the Arabs that an enemy is a proper object of hatred;23 and Syed Ameer Ali has collected various passages from the writings of Muhammedan scholars, which prove that, in spite of what has often been said to the contrary, forgiveness of injuries is by no means foreign to the spirit of Islam.24 Thus the author of the Kashshâf prescribes, “Seek again him who drives you away; give to him who takes away from you; pardon him who injures you: for God loveth that you should cast into the depth of your souls the roots of His perfections.”25 That “the sandal-tree perfumes the axe that fells it,” is a saying in everyday use among the Muhammedans of India.26 And Lane often heard Egyptians forgivingly say, on receiving a blow from an equal, “God bless thee,” “God requite thee good,” “Beat me again.”27

17 Leviticus, xix. 17 sq. Cf. Exodus, xxiii. 4.

18 Ecclesiasticus, xxviii. 2. Cf. ibid. x, 6; Proverbs, xxv. 21.

19 Deutsch, Literary Remains, p. 58. Cf. Katz, Der wahre Talmudjude, p. 11, sq.

20 Koran, ii. 190: “Whoso transgresses against you, transgress against him like as he transgressed against you.”

21 Ibid. iii. 125. Cf. ibid. xxiii. 98; xxiv. 22; xli. 34.

22 Lane-Poole, Speeches and Table-Talk of Mohammad, p. 147.

23 Goldziher, Mohammedanische Studien, i. 15 sq.

24 Ameer Ali, Ethics of Islam, p. 26 sqq.

25 Ibid. p. 7. Idem, Life and Teachings of Mohammed, p. 280.

26 Poole, Studies in Mohammedanism, p. 226.

27 Lane, Modern Egyptians, p. 314 sq.

The principles of forgiveness had also advocates in Greece and Rome. In one of the Platonic dialogues, Socrates says, “We ought not to retaliate or render evil for evil to any one, whatever evil we may have suffered from him”; though he wisely adds that “this opinion has never been held, and never will be held, by any considerable number of persons.”28 The Stoics strongly condemned anger as unnatural and unreasonable. “Mankind is born for mutual assistance, anger for mutual ruin.”29 “Anger is a crime of the mind; … it often is even more criminal than the faults with which it is angry.”30 He is the best and purest “who pardons others as if he sinned himself daily, but avoids sinning as if he never pardoned.”31 “If any one is angry with you, meet his anger by returning benefits for it.”32 “The cynic loves those who beat him.”33

28 Plato, Crito, p. 49.

29 Seneca, De ira, i. 5.

30 Ibid. i. 16; ii. 6.

31 Pliny, Epistolæ, ix. 22 (viii. 22).

32 Seneca, op. cit. ii. 34.

33 Epictetus, Dissertationes, iii. 22, 54.

Forgiveness of enemies is thus by no means an exclusively Christian tenet, although it has never before or after been inculcated with the same emphasis as it was by Jesus. “Love your enemies; bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.”34 When St. Peter asked, “Lord, how oft shall my brother sin against me, and I forgive him? till seven times?” Jesus replied, “I say not unto thee, Until seven times: but, Until seventy times seven,”35—that is, as often as he repeats the offence. It would seem that Jesus by these sentences expressly forbade men to avenge themselves, or even to feel resentment on their own behalf; and so also he was understood by St. Paul.36

34 St. Matthew, v. 44. Cf. ibid. v. 39 sq.; vi. 14 sq.; St. Luke, vi. 27 sqq.; xvii. 3 sq.; St. Mark, xi. 25 sq.

35 St. Matthew, xviii. 21 sq.

36 Romans, xii. 19 sqq.; 1 Thessalonians, v. 14 sq.; Colossians, iii. 12 sq.

The rule of retaliation and the rule of forgiveness, however, are not so radically opposed to each other as they appear to be. What the latter condemns is, in reality, not every kind of resentment, but non-moral resentment; not impartial indignation, but personal hatred. It prohibits revenge, but not punishment. According to the Laws of Manu, crime was so indispensably to be followed by punishment, that if the king pardoned a thief or a perpetrator of violence, instead of slaying or striking him, the guilt fell on the king;37 and if Lao-tsze was an enemy to the infliction of any kind of suffering, it was because he held that in a well-governed State the necessity for punishment could not arise, as crime would cease to exist.38 The Chinese book, Merits and Errors Scrutinised, which regards it as a merit to refrain from avenging an injury, adds that, “if a man should omit to avenge the injuries of his parents, it would become an error.”39 Jesus was certainly not free from righteous indignation. It does not appear that he ever forgave the legalists who sinned against the kingdom of God, and he told his disciples that, if a brother who had trespassed against his brother neglected to hear the church, he should be looked upon as a heathen and a publican.40 Christian writers have laid much stress upon the circumstance that Jesus enjoined men to forgive their own enemies, but not to abstain from resenting injuries done to others. According to Thomas Aquinas, “the good bear with the wicked to this extent, that, so far as it is proper to do so, they patiently endure at their hands the injuries done to themselves; but they do not bear with them to the extent of enduring the injuries done to God and their neighbours. For Chrysostom says, ‘For it is praiseworthy to be patient under one’s own wrongs, but the height of impiety to dissemble injuries done to God.’ ”41 Practically, at least, Christianity has not altered the validity of the Aristotelian rule that anger admits not only of an excess, but of a defect, and that we ought to feel angry at certain things.42 As Plutarch says, we even think those worthy of hatred who are not vexed at hateful individuals; and we can sympathise with the man who, hearing somebody praise Charillus, king of Sparta, for his gentleness, replied, “How can Charillus be good, who is not harsh even to the bad?”43 Moreover, the belief in a transcendental retributive justice, in an ultimate punishment of badness, which we meet with in Taouism,44 Brahmanism, Buddhism,45 Christianity,46 side by side with the doctrine of forgiveness, is based upon the demand that wrong should be resented.

37 Laws of Manu, viii. 316, 346 sq. Cf. Gautama, xii. 45; Âpastamba, i. 9. 25. 5.

38 Douglas, Confucianism and Taouism, p. 204.

39 ‘Merits and Errors scrutinised,’ in Indo-Chinese Gleaner, iii. 153.

40 St. Matthew, xviii. 15 sqq.

41 Thomas Aquinas, Summa Theologia, ii.-ii. 108. 1. 2. Cf. Lactantius, De ira Dei, 17.

42 Aristotle, Ethica Nicomachea, ii. 7. 10; iii. 1. 24; iv. 5. 3 sqq.

43 Plutarch, De invidia et odio, 5.

44 Douglas, op. cit. p. 257.

45 Dhammapada, i. 15, 17; x. 137 sqq.

46 Cf. Romans, xii. 19: “Vengeance is mine; I will repay, saith the Lord.”

It is easy to see why enlightened and sympathetic minds disapprove of resentment and retaliation springing from personal motives. Such resentment is apt to be partial. It is too often directed against persons whom impartial reflection finds to be no proper objects of indignation, and still more frequently it is unduly excessive. As Butler ays, “we are in such a peculiar situation, with respect to injuries done to ourselves, that we can scarce any more see them as they really are, than our eye can see itself.”47 “As bodies seem greater in a mist, so do little matters in a rage”; hence the old rule that we ought not to punish whilst angry.48 The more the moral consciousness is influenced by sympathy, the more severely it condemns any retributive infliction of pain which it regards as undeserved; and it seems to be in the first place with a view to preventing such injustice that teachers of morality have enjoined upon men to love their enemies. It would, indeed, be absurd to blame a person for expressing moral indignation at an act simply because he himself happens to be the offended party; practically we allow him to be even more indignant than the impartial spectator would be, whereas excessive placability often meets with censure. Like Aristotle, we maintain that “to submit to insult, or to overlook an insult offered to our friends, shows a slavish spirit”49; and we agree with the Confucian maxims, that injuries should be recompensed, not with kindness, but with justice, and that nobody but he who deserves it should be an object of hatred.50

47 Butler, ‘Sermon IX.—Upon Forgiveness of Injuries,’ in Analogy of Religion, &c., p. 469.

48 Plutarch, De cohibenda ira, 11. Montaigne, Essais, ii. 31 (Oeuvres, p. 396).

49 Aristotle, Ethica Nicomachea, 5. 6.

50 Lun Yü xiv. 36. 3; xvii. 9. 1, 5; xvii. 24. 1. Douglas, Confucianism and Taouism, p. 9. Cf. Chung Yung, x. 3; xxxi. 1; xxxiii. 4.

At the same time, the injunctions of moralists that unjust resentment should be suppressed, are far from introducing any absolutely new element into the estimation of conduct. They only represent a higher stage of a process of moral development the early phases of which are found already in primitive societies. Even the savage who enjoins revenge as a duty, regards revenge under certain circumstances as wrong.51 The restraining rule of like for like, as we shall see, is an instance of this.

51 Concerning the Dacotahs, Prescott observes, “There are cases where the Indians say retaliation is wrong, and they try to prevent it” (Schoolcraft, Indian Tribes, ii. 197).

The aggressive character of moral disapproval has become more disguised, not only by the more scrutinising attitude towards the resentment and retaliation which distinguishes the moral consciousness of a higher type, but by the different way in which the aggressiveness displays itself. The infliction of suffering merely for the sake of retribution is condemned, and the rule is laid down that we should hate, not the sinner, but only the sin.

Punishment, which expresses more or less faithfully the moral indignation of the society which inflicts it, is externally similar to an act of revenge; it causes, or is intended to cause, pain in return for inflicted pain. For ages it was looked upon as a matter of course that if a person had committed an offence he should have to suffer for it. This is still the notion of the multitude, as also of a host of theorisers, who, by calling punishment an expiation, or a reparation, or a restoration of the disturbed equilibrium of justice, only endeavour to give a philosophical sanction to a very simple fact, the true nature of which they too often have failed to grasp. The infliction of pain, however, is not an act which the moral consciousness regards with indifference, even in the case of a criminal; and to many enlightened minds with keen sympathy for human suffering, it has appeared both unreasonable and cruel that the State should wilfully torment him to no purpose. But whilst retributive punishment has been condemned, punishment itself has been defended; it is only looked upon in a different light, not as an end by itself, but as a means of attaining an end. It is to be inflicted, not because wrong has been done, but in order that wrong be not done. Its object is held to be, either to deter from crime, or to reform the criminal, or by means of elimination or seclusion, to make it physically impossible for him to commit fresh crimes.

These views were expressed already in Greek and Roman antiquity.52 According to Plato, a reasonable man punishes for the sake of deterring from wickedness, or with a view to correcting the offender.53 Aristotle looks upon punishment as a moral medicine.54 Seneca maintains that the law, in punishing wrong, aims at three ends: “either that it may correct him whom it punishes, or that his punishment may render other men better, or that, by bad men being put out of the way, the rest may live without fear.”55 In modern times all these theories have had, and still have, their numerous adherents. According to Hugo Grotius, “men are so bound together by their common nature, that they ought not to do each other harm, except for the sake of some good to be attained”; hence “man is not rightly punished by man merely for the sake of punishing”; advantage alone makes punishment right—“either the advantage of the offender, or of him who suffers by the offence, or of persons in general.”56 For a long time the view taken by Hobbes, that “the aym of Punishment is not a revenge, but terrour,”57 remained the leading doctrine on the subject, among philosophers, as well as legislators. It was shared by Montesquieu,58 Beccaria,59 and Filangieri,60 by Anselm von Feuerbach61 and Schopenhauer,62 and, in the main, by Bentham.63 During the nineteenth century the principle of determent was largely superseded by the principle of reformation; whilst certain contemporary criminologists—like some previous ones64—are of opinion that punishment should aim to repress crime by an “absolute” or “relative elimination” of the criminal, that is, in extreme cases by killing him, but generally by incarcerating him in a criminal lunatic asylum, or by banishing him for ever or for a certain period, or by interdicting him from a particular neighbourhood.65

52 Cf. Laistner, Das Recht in der Strafe, p. 9 sqq.; Thonissen, Le droit pénal de la république Athénienne, p. 418 sqq.

53 Plato, Protagoras, p. 324. Idem, Politicus, p. 293. Idem, Gorgias, p. 479. Idem, Leges, ix. 854; xi. 934; xii. 944.

54 Aristotle, Ethica Nicomachea, ii. 3. 4.

55 Seneca, De clementia, i. 22. Cf. Idem, De ira, i. 19.

56 Grotius, De iure belli et pacis, ii. 20. 4 sqq.

57 Hobbes, Leviathan, ii. 28, p. 243.

58 Montesquieu, Lettres Persanes, 81.

59 Beccaria, Dei delitti e delle pene, passim.

60 Filangieri, La scienza della legislazione, iii. 2. 27, vol. iv. 13 sq.

61 von Feuerbach-Mittermaier, Lehrbuch des gemeinen in Deutschland gültigen Peinlichen Rechts, p. 38 sqq.

62 Schopenhauer, Die Welt als Wille und Vorstellung, ii. 683 sqq.

63 Bentham, Principles of Morals and Legislation, p. 170 sq. n. 1: “… Example is the most important end of all.” Idem, Rationale of Punishment, p. 19 sqq.

64 See von Feuerbach-Mittermaier, op. cit. p. 40.

65 Garofalo, Criminologie, p. 251 sqq. Ferri, Criminal Sociology, p. 204 sqq.

The advocates of these various theories are unanimous in condemning retributive punishment as wrong. Without the grounds of social defence, says M. Guyau, “the punishment would be as blameworthy as the crime, and … the lawgivers and the judges, by deliberately condemning the guilty to punishment, would become their fellows.”66 For my own part I believe, on the contrary, that those who would venture to carry out all the consequences to which the theories of social defence or of reformation might lead, would be regarded even as more criminal than those they punished, not only by the opponents, but probably by the very supporters of the theories in question. A brief statement of some of those consequences will, I hope, suffice to prove that punishment can hardly be guided exclusively by utilitarian considerations, but requires the sanction of the retributive emotion of moral disapproval.

66 Guyau, Esquisse d’une morale sans obligation ni sanction, p. 148.

The principle of repressing crime by eliminating the criminal may at once be put aside, because it has no reference to the punishment of criminals, although it contains a suggestion—and a most excellent one indeed—as to the proper mode of treating them. Their exclusion from the company of their fellow-men—not to speak of their elimination by death—certainly entails suffering, but, according to the principle with which we are dealing, this suffering is not intended. On the other hand, punishment, in the ordinary sense of the word, always involves an express intention to inflict pain, whatever be the object for which pain is inflicted. We do not punish an ill-natured dog when we tie him up so as to prevent him from doing harm, nor do we punish a lunatic by confining him in a madhouse.

According to the principle of determent, the infliction of suffering in consequence of an offence is justified as a means of increasing public safety. The offender is sacrificed for the common weal. But why the offender only? It is quite probable that a more effective way of deterring from crime would be to punish his children as well; and if the notion of justice derived all its import from the result achieved by the punishment, there would be nothing unjust in doing so. The only objection which, from this point of view, might ever be raised against the practice of visiting the wrongs of the fathers upon the children, is that it is needlessly severe; the innocence of the children could count for nothing. Nor do I see why the law should not allow our own judges now and then to follow the example of their Egyptian colleague who in an intricate lawsuit caused a person avowedly innocent to be bastinadoed with the hope that whoever was the real culprit might be induced to confess out of compassion.67 Moreover, if the object of punishment is merely preventive, the heaviest punishment should be threatened where the strongest motive is needed to restrain. Consequently, an injury committed under great temptation, or in a passion, should be punished with particular severity; whereas a crime like parricide might be treated with more indulgence than other kinds of homicide, owing to the restraining influence of filial affection. Could the moral consciousness approve of this?

67 Burckhardt, Arabic Proverbs, p. 103 sq.

Again, if punishment were to be regulated by the principle of reforming the criminal, the result would in some cases be very astonishing. There is no more incorrigible set of offenders than habitual vagrants and drunkards, whereas experience has shown that the most easily reformed of all offenders is often some person who has committed a serious crime. According to the reformation theory, the latter should soon be set free, whilst the petty offender might have to be shut up for all his life. Nay more, if the criminal proves absolutely incorrigible, and not the slightest hope of his reformation is left, there would no longer be any reason for punishing him at all.68 The reformationist may also be asked why he does not try some more humane method of improving people’s characters than by the infliction of suffering.

68 Cf. Morrison, Crime and its Causes, p. 203; Durkheim, Division du travail social, p. 94.

It may seem strange that theories which are open to such objections should have been able to attract so many intelligent partisans. These theories must at least possess a certain plausibility. If punishment on the one hand springs from moral indignation, and on the other hand is frequently interpreted as a means either of deterring from crime or of reforming the criminal, there must obviously be some connection between these ends and the retributive aim of moral resentment. There must be certain facts which, to some extent, fill up the gap between the theory of retribution and the other theories of punishment.

The doctrine of determent regards punishment as a means of preventing crime. A crime always involves the infliction of pain; and the one thing which men try to prevent for its own sake is pain. The one thing which arouses resentment is likewise pain. There must consequently be a general coincidence between the acts which people resent and the acts which the law would punish if it were framed on the principle of determent. But the resemblance between the desire to deter and resentment is greater still. Resentment is not only aroused by pain, but is a hostile attitude towards its cause, and its intrinsic object is to remove this cause, that is, to prevent pain. An act of moral resentment is therefore apt to resemble a punishment inflicted with a view to deterring from crime, provided that the punishment is directed against the cause of crime—the criminal himself—and is not unduly severe.

The doctrine of reformation aims at the removal of a criminal disposition of mind by improving the offender. Moral resentment likewise aims at the removal of a volitional cause of pain, by bringing about repentance in the offender. That repentance ought to be followed by forgiveness, partial or total, is a widely recognised moral claim.

According to the Chinese Penal Code, whoever, having committed an injury which can be repaired by restitution or compensation, surrenders himself voluntarily, and acknowledges his guilt to a magistrate, before it is otherwise discovered, shall be freely pardoned, though all claims upon his property shall be duly liquidated.69 In Madagascar, according to a law made in 1828, “all the fines shall be reduced one-half, according to the nature of the fines, if the persons guilty accuse themselves.”70 According to Zoroastrianism, one element of atonement consists in repentance, as manifested by avowal of the guilt and by the recital of a formula, the Patet.71 It is said in the Laws of Manu:—“In proportion as a man who has done wrong, himself confesses it, even so far he is freed from guilt, as a snake from its slough. … He who has committed a sin and has repented, is freed from that sin, but he is purified only by the resolution of ceasing to sin and thinking ‘I will do so no more.’ ”72 According to the Rig-Veda, Varuna inflicts terrible punishments on the hardened criminal, but is merciful to him who repents; to Varuna the cry of anguish from remorse ascends, and before him the sinner comes to discharge himself of the burden of his guilt by confession.73 So, also, Zeus pardons the repentant.74 The main doctrine of Judaism on the subject of atonement is comprised in the single word Repentance. No teachers, says Mr. Montefiore, “exalted the place and power of repentance more than the Rabbis. There was no sin for which in their eyes a true repentance could not obtain forgiveness from God.”75 According to the Talmud, a space of only two fingers’ breadth lies between Hell and Heaven: the sinner has only to repent sincerely, and the gates to everlasting bliss will spring open.76 Jesus commanded his disciples to forgive injuries if followed by repentance:—“If thy brother trespass against thee, rebuke him; and if he repent, forgive him. And if he trespass against thee seven times in a day, and seven times in a day turn again to thee, saying, I repent; thou shalt forgive him.”77