1.5.10.2 Crime and Punishment

Version 1.0 October 2022                             (Previous Version)

To fully appreciate our position on valuing Responsibility we need understand the historical context.

As we did in sections 1.5.8 and 1.5.9, on choosing Love and Equality, we emphasize that we provide this context only to the degree necessary to clarify the point that a punitive approach to crime has biological and social origins and is not an essential core component of an ethical system.  Science and History do not drive our philosophy but they do inform it, in this case, substantially.  The factual observations made here just summarize presentations in Parts 2 and 3 on Science and History.

Global history tells us that all societies have developed systems of crime and punishment that involve making moral judgements about certain behaviours, and often about the supposed moral depravity of certain individuals, and applying punishments to the transgressors partially to prevent others going down the same path, but often primarily to punish, to make people suffer because they did wrong or are depraved.  These systems have all evolved initially from the primitive understandings of early humans, small bands of nomadic hunter gatherers.

The primitive understandings are based on common sense, as applied by people with no understanding of modern science or scientific techniques.  They include primitive physics: the overarching assumption that things that move are motivated by spirits, just as our bodily movements are motivated by our conscious minds.  The scientific musings of Aristotle represent a sophisticated conglomeration of commonsensical ideas, which included four types of causes, one being teleological, a “final� cause as opposed to the “efficient� cause that modern science retains.  According to Aristotle, an acorn behaves in a certain way because it has a purpose, so it is more or less pulled to grow into an oak tree.  We now know the biochemistry of the acorn more or less pushes it to develop the way it does, moment by moment, with no relationship to a long term outcome.

Our primitive understandings related to ethics are driven by our visceral primary emotions, inherited from our hominid and primate ancestors, such as anger, fear, sadness, disgust, surprise, anticipation, trust and joy.  Basic emotions cause basic responses.  Fear and anger help us to survive by motivating us to either flee to safety or fight to defend ourselves.  Disgust caused by a bad smell can cause vomiting, and lead us to move away or push away the potentially contaminated source. Basic emotions evolved because their biological and social functions facilitated adaption and survival, and they may correspond to specific regions of the brain and be exhibited in more or less the same way across cultures and time.  The differences between anger and disgust and the differences between fear and surprise, may have developed later for social functions and not for survival.  The elements of basic emotions can be combined to form complex or compound emotions.

As humans acquired language we learned to apply narratives to our behaviour.  All humans have the tendency to rationalize their behaviour – to invent explanations of why we did what we did – in socially acceptable, rather than truthful, ways.  If someone did something gross, evoking the emotion of disgust, and we violently rebuke them, we may explain this by saying they have behaved badly, or they are depraved in some way, so we should punish them in some way.  These rationalizations become encoded in a set of rules, or supposedly moral guidelines. 

Our primitive physics also helped us to see spirits in everything that moves, from the wind and rain to trees and animals.  Gods are powerful spirits.  As small bands amalgamated into tribes under strong leaders, common religious beliefs helped to bind the expanded group together, to overcome the xenophobia typical of bands of hunter-gatherers.  Tribal leaders don't want tribal members fighting and killing each other, so they developed common rules for everyone to abide by.  These evolved.

There are complex codes of behaviour written down from about 1000 years ago, including those for Buddhist monks and the citizens of Hammurabi’s kingdom.  The earliest Hindu  texts, the Vedas, and the Jewish ‘bible’, the Tanakh, have hundreds of rules, including lists of crimes and their punishments. 

The Ten Commandments, in Deuteronomy 5 and Exodus 20, written about 500 years BCE provide a summary.  For example, you shouldn’t make a ‘graven image’, a sculpture, of anything, much less a God, and if you worship such an image God will be “visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me�.  Also, if you work on the Sabbath (Saturday or Sunday, depending on who you talk to) then the punishment is death (Exodus 31:15).   These punishments are totally out of proportion to the harm caused and are totally unacceptable, contravening core values such as Reality, Life, Love and Equality.

Some of the religious and political rules that were established were actually good for the societies.  Rules against lying, stealing and murder are good, and they are found in all religions. 

Rules to treat slaves more fairly may be better than no rules at all, if slavery is going to exist anyway.  Rules treating a daughter as worth half as much as a son for inheritance purposes may be better than rules in which women didn’t inherit anything.  Many rules were egregiously discriminatory.

In criminal law, punishments were often severe and extremely cruel.  Crucifixion, letting the victim die slowly, typically over a few days, while tied to a cross, probably originated with the Assyrians, was used systematically by the Persians in the 6th century BC. Alexander the Great brought it from there to the eastern Mediterranean countries in the 4th century BC, and the Phoenicians introduced it to Rome in the 3rd century BCE, where it was commonly used until it was abolished by Constantine I in the 300s CE.  In some places a thief’s hand could be cut off.  In others a woman could be gang raped for adultery. In Christian Europe people were burned alive for disagreeing with church doctrine.  Political prisoners could be hung, drawn and quartered.  All these punishments were designed not only to discourage law breaking, but to exact revenge, humiliate the victim, and cause immense pain.  They were not effective at reducing crime, which was often driven by poverty and other basic drives.

In Europe from about the 1600s there was a move away from such cruel punishments.  As populations became more educated more people were reviled by the practices and their use declined.  For example, the English Bill of Rights of 1689 includes a ban on cruel and unusual punishments, which the Eighth Amendment of the constitution of the USA in 1791 copied almost verbatim a century later. 

Since then around the world the role of punishment has decreased and the intention to reform, re-educate or rehabilitate has been more prominent.  Nevertheless, some countries following strict Sharia law still impose excessive and cruel punishments.  Communist countries have often presented their imprisonment and punishment as re-education, but severely punish those who oppose the Communist Party.  Even in supposedly advanced Western countries such as Australia the goal of rehabilitation is paid lip service, but it is underfunded and its success rate underwhelming.