JUSTICE IN THE REVOLUTION AND IN THE CHURCH
TWELFTH STUDY
ON MORAL SANCTION
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FRAGMENTS
Monsignor,
I have come here to the end of this long labor.
Accused as it has been for seventy years, the Revolution finally becomes, through my mouth and in my person, the accuser. It proves to you today—to all of you, priests, mystics, worshipers of the ideal, apostles of natural religion, conservators and restorers of the principle of authority, privileged of capital and industry, partisans of divine right in property and the State, representatives of all the fictions of the exhausted age—that you do not know what Justice and order are; that the principles of that moral code, which you are so fond of claiming, are not within you; that you do not know yourselves, and that that certainty of right after which the world, demoralized by you, sighs, can be given by the Revolution alone.
One last question remains for me to address, the most serious of all and the most sublime. Sadly, I can only give it a small number of pages: I wish to speak of the moral sanction.
But I need to say one more word to you beforehand, Monsignor, regarding yourself and my biography: otherwise you might believe that I hold a grudge. Good accounts, says the proverb, make good friends.
What is it, finally, that inspires in you that holy terror of the Revolution? Ah! I willingly grant your account of it, and that is why, despite the abyss that separates us, I feel ready to hold out my hand: what animates you against us is the sacred interest of that moral law the conditions and principles of which you accuse us of misunderstanding, while I, on my side, reproach you for ignoring it, from alpha to omega. You say, and you have been known to repeat it to philosophers as well as to women and children, that where religious faith is lacking morals is without guarantee as it is without basis, and that, if the doubt is logical, that must inevitably a villainy.
Such was, I am sure of it, the thought that animated you, when you wrote to that correspondent whose name, by respect for your own, will not fall any more from my pen:
The heart of his character is irritation and bitterness against society, from which he believes himself banished by the distress of his family. Having been able, by the force of his spirit/mind, to make some studies, truncated on one side, profound on the other, he has raised for himself a pedestal, on which he would receive the homage of the universe to the detriment of God, who is for him a rival. Proudhon is not an atheist; he is an enemy of God.
Enemy of God, enemy of society, enemy of all order, all law, all morals, in your thought it is the same thing. And why? I have just told you: because, in the system of the revolution, according to you irreligious in essence, as there does not and cannot exist a moral sanction, there no longer exists, there cannot exist a system of morals.
It is that which made to say equally, six weeks ago, the honorable president of the legislative body, M. de Morny, with regard to the law of general security:
Those that the law aims to intimidate and disperse, they are the implacable enemies of society, who detest every regime, anything that resembles any authority whatsoever. For, even in the era when some torrents of public liberty have overflowed in France, when equality is created by the debasement of everything that had been raised up, when popular interests were, not best defended, but flattered in the most servile manner, who still stood up against that tearful society, against that semblance of organization? Them, always the same, the socialists.
I will not do them the honor of discussing their theories; I say only that no excess of liberty can satisfy them, that no pardon appeases them, that they have wrapped France in a secret web whose aim can only be criminal, and that to leave them to conspire in the shadows would be a weakness full of perils. — The hard-working and honest laborers loathe them more than anyone. They know well that the socialist theories, outside of right and of morals, are stupid and impracticable; that by taking the surplus from some, we will never furnish even the necessities to the others; that this would be the ruin of credit, the complete destruction of social capital, and ultimately abjection and misery for all. They know well that it is only free labor, protected by a strong and just government, which can develop property and spread well-being among a greater mass of individuals. — The government must put an end to this work of corruption; it is necessary, come what may that the red party know well that it will find us in its path, before it can strike French society to the heart.
Outside of all right and all morals, which defines itself theologically, according to monsignor Matthieu, [as] enemy of god: such is, it seems to us, the refrain of the frightened souls of the counter-revolution. Outside of law, consequently: that, concludes the head of the third power of the empire, and come what may, that is to say no matter what dynasty is named to govern France, that is how we must act with regard to the red party, to socialism.
There exists in our revolutionary language one name which sums up all these horrors, and it astonishes me that is has not been brought to your mind: it is the name of sans-culotte.
The sans-culotte, that strange creation of the Revolution, who has not been seen again since Robespierre led him to the guillotine was, like your servant, poor, dissatisfied with the social state, never satiated with liberty. He adored Reason with all his heart and soul, affirmed the morality proper to man, the immanence of Justice, and, to prove his claim, permitted himself, as you have so kindly, Monsignor, given me the certificate, to remain honest.
So I am a sans-culotte: it is long since that, seeking my tradition in history, I glimpsed it there; but, before our Jacobin democracy, I dared not boast of it. For some weeks, in 1848, circumstances made me the heir of Clootz, of Chaumette, of Marat, of Momoro (a native of Besançon, I note in passing), of Jacques Roux, of Varlet, of Hébert himself, for I must name them all, I have no right to pick my forebears, circumstances, I say, made me the Epimenides of sans-culottism; perhaps, in another era, I would have been its Spartacus. But to each day its work; to each individual their mission. Mine, all in the realm of ideas, is still not fulfilled; and as long as it is not completed, I can say, on the example of Napoléon III, that the plots and intrigues, from whatever quarter they come, can do nothing to me. Others will realize what I have defined: Exoriare aliquis! . ..
Well, Monseigneur, if the sans-culotte was such that in your senseless terrors you trace his image; if I myself, in this hour of political and social distress, had neither faith, nor law, nor guts, do you know what vengeance would dictate to me and what I would do?
I would have abstained from writing; I would above all have avoided making a book of principles, because principles bear within them the salvation of societies and governments; I would have let the emperor claim, in the universal silence, some principles abominated since 89, and I would have laughed, without fear of spies, in my ideologue’s beard.
Or else, if I could not resist the temptation to set my thoughts down in type [me faire coucher en lettre moulée], I would shut away my thoughts within the bounds of an implacable opposition; instead of a work of philosophy, I would make a work of vengeance. Do you believe, Monseigneur, that even with the law that regulates that press that would have impossible? No, no: there are always means, for an expert pen, to stir up discord; always means, for a sophisticated and spiteful genius, to drive consciences to despair, to aggravate hatred, to excite the people against the bourgeois, even to applaud regicide and obtain the smiles of the du parquet. And listen, without departing from these Studies, I would only need, to satisfy my rage, to follow roughly this program: Delete the exposition of principles; dismiss above all the considerations regarding sanction [sanctionnelles] into which I am about to enter; return to my indignation and my claws; lock myself away in a cold and learned critique; to do for ethics in general what Doctor Strauss has done for the life of Jesus; to show, which is not difficult, that, Justice having foundations neither in religion, which places its subject apart from humanity, nor in philosophy, which reduces it to a notion; conscience being substantiated by no organism, right and duty are reduced to a pure convention, crime to a hazard of war, the social order to an insurance premium, as Mr. de Girardin has said; that done, to end with a disdainful irony [aimed] at liberty, equality, authority and virtue. The Church, and with it all the religious sects, from eclecticism to positivism, would remain crushed, convicted of contradiction and hypocrisy; and, what would put the icing on my misanthropic joy, that Revolution, which since 89, while separating definitively from you where it is a question of the temporal, has retained you to witness the spiritual, the Revolution, struck in the carotid, would shed its blood and give its death-rattle.
That is, Monseigneur, and my readers will say if I am boasting, what I could have done, but what I did not want to do. I have preferred, in my dreadful sans-culottism, to speak to the public as it had a right to be spoken to, according to the independence of my reason and the vigor of my moral sense; I said to myself that the moment had come either for the Revolution to fade away forever, or else to recreate Justice in it, to hold out to a failing society that saving branch [branche de salut] that it cannot expect you, Catholic clergy, to hold out yet; and, certain of the doctrine that I stand for, while I do not hold it because of my genius, I have obeyed my convictions as a philosopher and an honest man, at the risk of compromising my liberty once more: for you are capable, or I know you very little, of denouncing me, in the naïveté of your zeal, for outrage to morals.
Moreover, I am ready; I have long contemplated what I complete today, and, apart from the peccadilloes inseparables from every work of discussion, I dare to say, before heaven and earth, that I have done my duty.
1. General critique of the idea of SANCTION; the character that a sanction of Justice must possess.
I. — Let us begin by agreeing on the words, and if this is not the way to convert each other—has a philosopher every converted a theologian, or a theologian got the better of a philosopher?—certainly we will not detest each other more.
The word sanction derives from the Latin sancire, which means properly to seal, to shelter from any attack, and by extension to consolidate, confirm, ratify, cement: Sancire jura, to seal or to consecrate rights; sancire disciplinam, to strengthen discipline; Hœc mundo pacem victoria sanct (Claudian), this victory seals the peace of the world. Hence Marcian’s definition: Sanctum est quod ab injuria hominum defensum atque munitum est, That is holy, or clothed with a sanction, which is safe from the injury of men.
Thus the expression sancire legem, synonymous with ferre legem, to bear a law, comes from the fact that, among all peoples and in all times, the law, to be enforceable, had to be established by a solemn act, to be published in trumpet sound, written, signed or sealed; just as the obligation of the citizen, his promise, his will, must, on pain of invalidity, bear his signature. The sanction of the law is thus literally the hand, the seal or the signature of the legislative power: it is according to this etymology that we also say the keeper of the seals, person in charge of the signatures or ratifications of the public authority, Justice Ministry.
In the beginning, when the two powers, religious and political, were one, the sanctioning act was a sacred ceremony, by which the members of the city unanimously undertook to surround certain people and certain things with a inviolable respect. Let us cite for example the coronation of kings, from which was born the crime of lèse-majesté; the secret of the mysteries, the disclosure of which was deemed sacrilege, and, like the crime of lèse-majesté, punished by death; the lands consecrated to the gods, which for this reason were refrained from sowing, etc. The affixing of the seals, the formalities of which are described in the Code of Procedure, is a remnant of this ancient ceremonial.
To violate the law was therefore to go beyond the prohibition of the legislator, to force the barrier, to break the fence which he had erected, to break its seal. Even today, the breaking of the fence or the breaking of seals is considered an aggravating circumstance of the crime or offence. This will lead us to a new meaning of the word sanction .
Every violation of the law calling upon it public vindictiveness, people became accustomed to calling penal sanction, sancire pœnâ, sancire capite, or simply sanction, by synecdoche, the penalty brought against the offenders of the sanction, that is to say, say of the law itself, authenticated by the sanction or the seal which covered it. It is in this new sense that the word sanction is used to designate one of the great divisions of law, sanctioning law ( Oudot). Moralists in turn have seized upon it to designate, certainly not the seal or the signature of the invisible author of the moral law, but the happy or unhappy consequences which, in this world or in another, are supposed to reward observance of the law or to avenge its outrages, and thus appear as its necessary sanction. Penalty pointto Justice, no Justice; it is with morality considered in itself like the contracts that citizens make between themselves: no penalty attached to the obligation, no obligation (art. 1142 of the Civil Code). Philosopher, says Jean-Jacques Rousseau, your moral laws are very beautiful; but show me, please, the sanction .
This then, in the double meaning of the word, is the problem raised by the idea of a moral sanction:
It is certain that Justice would not be a law for man, if, on the one hand, its precepts were not covered with a sign which guarantees their absolute authenticity, and if, on the other hand, the practice could be regarded as indifferent. Unfortunately, it is just as certain that until now the moral law has seemed completely devoid of sanction, either because in its statement it does not offer that character of authenticity and certainty which conscience requires, and which one was able for this reason to attribute it to the arbitrariness of men; or that the penalties and rewards attached thereto have been found insufficient or doubtful. In short, just as right and duty have hitherto lacked determination, they have lacked sanction: there is no greater cause for sadness in modern society.
I have tried, in the course of these Studies, to determine the conditions and categories of Justice in the person, the family, the city, the public economy, the State, etc. It is not for me to say how far I have succeeded. But, admitting these determinations as exact, you would still say to me, with the citizen of Geneva: Philosopher, your moral laws are very beautiful; but show me the penalty? Where do you find, first of all, the signature of the sovereign Legislator? Where is that eternal, sacrosanct seal, which sovereign Wisdom must have affixed thereto, and which we Christians believe we possess in ourscriptures and in the perpetuity of our institution? What guarantees us the accuracy of your revolutionary interpretation? And then, where are the rewards? where the sorrows?…
If I am not mistaken, that is indeed your last argument, Monsignor, an argument which must seem all the stronger to you since I will no doubt go, after having rejected your revelation, to avail myself of letters patent ratified by the Assizes of the Supreme Sanctioner. It is, however, to this seemingly insurmountable difficulty that I propose to respond, and that to the complete satisfaction of my readers.
[…]
II. — We have just seen what is meant, in the practices of each State, by the word sanction. It is a question now of knowing the nature of the higher sanction, the final, humanitary sanction of Justice.
In the system of our old governmental legislation, founded at once on the reason of the Church and the reason of the State, proceeding by imperial decrees, sénatus-consultes, parliamentary adoptions, bulls, mandates, plebiscites, one thing to note is the distinction which has been made between the different powers which take part in the formation of the law. The legislative authority is A; the text of the law, B;the ratification or seal, C; the guarantee or penal sanction, D. If, besides the penal sanction, there is a remunerative sanction, that is yet another thing, E. There, all are separate; all assume a body, face, and will; all are personified. In the same way that the law is desired by one personage, who is the sovereign or prince, it is drawn up by another, which is the parliament; signed and posted by a third, who is the minister; avenged by a fourth, who is the judge; finally, if there is occasion, encouraged by a fifth, which will be the public treasury. These functions of the law are still subdivided; the prince has the nation behind him; parliament is divided into two houses; the judge is accompanied by the executioner. Such was, in the ancient world, the dramaturgy of the law, which the Church reproduced in its own way: God, the Revelation, the Priesthood, Hell and Paradise.
The principle of that realization, or, if you prefer, of that legislative poetry, is easy to discover. In the infancy of societies, the law is nothing but the will of the father, prince or patron god of the city; a subjective commandment, issuing from pure will, which has no value but that conferred on it by the power and respect of its author. Raised to the level of theological ideality, that legal empiricism has become the entire system of religion. It supposes that the morale law if prior and superior to humanity; the subject of Justice outside the human race, to which notification of the law is made by deliberate revelation; consequently that the sanction of right is not of this earth, or at least that it is only partially manifested here, etc.
I have refuted this system at length: in this regard, the discussion is exhausted. In the last analysis, man recognizes no law but that admitted by his reason and conscience; all obedience on his part, based on other considerations, is a beginning of immorality. There results from it, contrary to what the human multitude have believed, or appeared to believe, thus far, that religion, precisely because it places the principle of Justice outside of man, does not and cannot have morals, let alone moral sanction.
Modern philosophy makes us conceive of the law from an entirely different point of view. The law is the reason and the relations of things, in society as much as in nature; an essentially objective reason, and consequently impersonal, freed from all arbitrary will, which persists by itself, independent of the caprice and the aberrations of the so-called legislators. Here, the law and its subject appear identical; what’s more, the seal of the law, or the sign that guarantees its truth, is equally identical to the law; the penal or remunerative sanction is also identical. And that triple identity results from the objectivity and impersonal nature of the law.
I say that the law and the legislator are one: that means that the law itself is considered to be the subject of things, intelligent with its own reason, which is to say with relations that the law expresses. I add that the law bears with it the seal of its certainty, that is to say that it gives the explanation of all the facts that fall under its category, and that without it none are explained. Finally, I maintain that it possesses its penal sanction within itself, which also means that all that is done under its inspiration is good, that nothing that is done against it can last, so that it is to itself, considered as an intelligent subject, its own pleasure or torture.
A comparison will make me understood. By virtue of attraction, bodies reciprocally attract one another in a straight line. So for a building to remain standing, it is necessary, in conformity to the principle on which all statics rest, that it has been raised perpendicular to the horizon; if it deviates a little, it will fall. Its fall will be the sanction of the law. So it is with Justice: it bears its sanction in itself; neither man nor society will persist contrary to its rules. The Psalmist seems to have understood this when he said that the decrees of Jehovah bear their sanction in themselves, Judicia Domini recta, justificata in semetipsa. But while attraction is a law of destiny of which the subject, blind, mute, deaf, insensitive, can neither enjoy or suffer the violations that it experiences, it is otherwise with Justice, of which the subject is living, intelligent and free, capable of vouching for its dignity and devoting itself to defending it.
According to this new notion, the legislator, the law, and the legal sanction, in the double sense that we have recognized in the word sanction, being one single thing considered from various points of the, ethics or the science of morals in humanity, can cone down to a small number of headings:
1. What is the subject-object of the moral law, or, to speak like the jurists, what is the legislator? — The human conscience, the man: we have demonstrated it, in right and in fact, first by the impossibility of relating Justice to an external subject, so holy and venerable as it may be; then by the manifestations of the conscience attesting for itself its legislative authority, manifestations of which theology is only the allegory and worship a symbolism.
2. What does the law desire? — We have already explained it: the respect of man in all of his faculties, the balance of social forces, the free development of the mind, indispensable coefficient of the harmony of the universe.
3. How is the authenticity of the moral law recognized? — By this infallible sign that everything, in the conscience of man and in his thought, and thus in the social order, in the march of the generations and even in nature, is explained by Justice, while without it everything becomes obscure and unintelligible. Moral skepticism has for corollary speculative skepticism; the depravity of the heart leads to the depravity of the understanding.
4. What is the penal sanction attached to the law? — EVERYTHING REJOICES IN MAN, IN SOCIETY AND IN NATURE, WHEN JUSTICE IS OBSERVED; EVERYTHING SUFFERS AND DIES, WHEN IT IS VIOLATED.
5. Is that sanction enough, in every case, for the recompense of virtue, the expiation of crime and the correction of error? — YES.
These last three propositions, of which I would make just one, have already in large part received their proof, since it is impossible to reason about the object of a law and its applications without making known its consequences at the same time. So I will limit myself to restate quickly, in the form of general conclusions, what the previous discussion has only indicated in passing.
So the moral sanction, in all spheres where the action of Justice extends, is posed, in general, in the form of a dilemma: certainty or doubt, knowledge or ignorance, liberty or servitude, civilization or barbarism, wealth or poverty, order or anarchy, virtue or crime, progress or decadence, life or death; compensation and punishment always adequate to the work produced, so that the sanction of the law being itself the law, it implies contradiction that it could be judged insufficient.
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II. — Does society have the right to punish?
The philosophers struggle, and the problem is still unresolved.
While the Church invokes divine right, the mandate received by it to cure souls, and, if necessary, to execute the bodies of those who disdain the law, the so-called rationalists allege, some legitimate defense, others the talion or vengeance, these the necessity of the example, those, who we could call semi-theologians, the mental hygiene and good of the culprits. Mr. Oudot, the latest of these semi-theologians, adopting the ideas of Plato, Grotius, Leibnitz, and Bossuet, who is accompanied by Cousin, Jules Simon and Jean Reynaud, expresses himself in these terms:
Every creature that deviates wounds itself. The author of an infraction against order has stepped backwards on the road to his perfection; he has diminished in himself the possibility participating in the common good. He must regain the lost time. There must be a counterweight to the first influences of the unfortunate habits that he tends to form. That counterweight is punishment…
That is what the author of Conscience and Science has found most probable about the right to punish. That said, he passes on to the application, as if it was only a question of erecting the gallows.
Let us not forget that for Mr. Oudot and his authors, Justice is a simple notion, the notion of a law without a corresponding faculty in the human soul, whose subject is God; that this the system of obligation which surrounds us begins for each of us with Duty, and that this duty becomes right with regard to our fellows only in the sense that they are subject on their side to the same duty towards the Divinity.
From this it follows that the right to punish that society arrogates to itself, a right which is converted for the guilty into a duty and even an active right, according to the expression of the learned professor, can only be legitimately exercised as long as 1) the delinquent will share a common religious faith with the society which punishes, which amounts to saying: as long as he adheres to the theory of Mr. Oudot; 2) that before inflicting punishment one would have established conclusively, and by supporting it with a positive revelation, that it was part of the divine right, and consequently of human duty: which M. Oudot has not done, which, despite his goodwill, he would not even dare to attempt.
In the state that we find the question today, there is not a murder who could not say to his judges: “I don’t believe in your God or your society, in which I have not received my portion. I reject your code, and I declare you incompetent, your police and your executioners. There is nothing in common between you and me; and even when I admit with you the existence of a legal link between men, you do not have the means to establish the authority that you attribute to yourself over my person. You do not have the right to strike me, the right to blame me, the right to charge me, and not even the right to interrogate me; my conscience, since you speak of conscience, eludes all your attacks. It is possible that I have killed a man; I was at war with him, as I am at this time at war with you, as you are all with one another. There you are, banded together against me, and you have the strength: use it, if that pleases you, as I have used it myself. But no hypocrisy, and above all no outrage: I scorn, along with your chastisements, your Justice and your blame.”
Isn’t it say to see professors of right and of morals, philosophers who speak in the name of Liberty and the Revolution, bring it back, on this question of penal right, to what…? Good God! To the theory of purgatory and indulgences. And that, because they will not acknowledge the immanence of Justice, because that Justice is always for them a commandment from outside, the order of an invisible Sovereign, rewards us, atones for us, or damns us, according to his pleasure, and in whose name the Church or society, like the famous Mr. Purgon, pretends to expiate us in its turn, for its god and for our own. Clysterium donare, ensuita purgare, postea seignare, et repurgare, rèseignàre, reclysterizare: that is the theory of our moralists. The conscience of the human race must be robust to resist so much incompetence. And how the wretches that we expurgate, for their good, by jailer and prison guards, must jeer at us!
III. — The theories proposed to explain the penal laws all, however, contain a bit of truth: everywhere we accept the legitimacy of defense, even against the malefactor in chains; everywhere we want the reparation to be proportionate to the crime, which has given rise to the talion; everywhere, finally, we have desired that the punishment serve as a remedy for the soul of the guilty, and we have awaited salutary effects for those whom the bad example could have diverted from the straight path. The defense of the threatened society, the proportionality of the reparation, the return of the guilty one to virtue, the protection of weak consciences, all of that is reasonable, all of that is legitimate; it is only the chastisement, the punishment, the pain, that is to say the abuses exercises in the form of prosecution or reprisal against the criminal, precisely what the criminalist caresses with the most love, we must rule out as injurious to the person, and by that very fact destructive of Justice.
Is it then so difficult to understand that the right to punish, borrowed from the symbolism of the primitive world, is a contradiction in terms, and no longer has any reality but the right to do evil?The moral sanction, that we have designated unfairly by the word pain, is a fact of conscience, nothing more, nothing less; a fact whose production is entirely spontaneous, and which consists, in the repentant culprit, of a real suffering, resulting from remorse; but which society is powerless to cause to be born in a conscience which refuses it, and which it would itself be guilty to compensate by insults and blows. Every abuse exercised on the person of the criminal can only produce indignation in him, and callousness as a repercussion: it is not by rendering evil for evil that we are reconciled with an enemy, let alone bring a villain to virtue.
The reparation of the crime or misdemeanor, in order to be rational, just, and effective, must have in itself a positive moral value. It must profit the social conscience as much and more than the crime or misdemeanor has caused it scandal; that furthermore the penitent himself obtains, by his works of satisfaction, as much respect as him mistake has caused him to lose, in other words, that his reparation is for him at the same time a rehabilitation. Apart from that, the reparation is illusory; it will only worsen the evil, accomplish the demoralization on an unhealthy conscience, and what is worse, to infect the social body with the illness.
Now, now what have we understood thus far by reparation? Have we occupied ourselves with rendering to the criminal, in acts of justice and devotion, the sum of the advantages of which he has deprived the community by his crime? No: we have proceeded in his regard by confiscation, prison, blows, torture, death, insults; we have beaten him, hidden him away, disturbed, starved, mutilated, branded with the fleur–de–lis, burned, pummeled, hung, and guillotined him. We have, in the end, been avenged; we have massacred the prisoner, we have taken this vendetta, a fact of war, for a satisfaction. That is what we have called payment and recovery of the crime, exolvere, repetere pænas, payment which naturally leaves the guilt to persist, and, instead of rehabilitating the patient, we inflict a stigmatization. In our penal system, admire this, we only rehabilitate the innocent! Or else, superstition taking the place of vengeance, we have used the lustrations; we have confessed the sinner, we have baptized him, purified, absolved, as Hercules asked the purifiers of Eleusis for the acquittal of his thefts; we have made him recite prayers, bear relics, to earn indulgences. Half of the offerings and sacrifices which were made in the temple at Jerusalem had no other aim but the redemption of sinners, pro peccato; and among the ancient Romans the month of February, februarius, of februare, to atone, was entirely dedicated to these expiations. It is from this that we get Candlemas. In short, we have struck out, physically and morally, against the person of the guilty; we have chastised the man like a vicious and uncontrollable animal; we have humiliated and despised him: that is what we call today the sanctioning right, and about which grave professors, the most respectable of mortals, sweat blood and water to find des philosophical reasons.
Another mistake, still more serious. The satisfaction, whatever it is, demanded of the author of a crime or misdemeanor, will not satisfy, and it will always be an injustice, if the society which complains and accuses does not also add its own: an indispensable condition, glimpsed in the past by the penal mythology, but entirely unknown to the criminalists.
By virtue of the moral solidarity that unites men, it is rare that an act of prevarication is entirely isolated, and that the prevaricator has not had as an accomplice, direct or indirect, society and its institutions. We are all, more or less, guilty towards one another, and what Job said was not true: Sinner before God, I am innocent before men. In that community of conscience, Justice being reciprocal, the sanction is also common; the reparation must be as well. What are the causes, the pretexts, is you wish, which have led the accused? What injustice, what privilege, what favor has provoked it? what bad example has been given? What omission, what contradiction of the legislator has troubled his soul? Of what grief, either on the part of society, or on the part of individuals, does he complain? What advantage, dependent on the public will, do they enjoy which he does not enjoy himself?… That is what the examining judge must seek with at much care as the very circumstances of the crime or offence; for it is necessary that the accused hear him say it: if society demands satisfaction of him, is it ready to do right by him itself, in the measure that it will be found just by the tribunal of the arbitrators, by the jury. Every criminal pursuit implies a recriminatory action, and, if Society will not lead the way, the accused can say to his accusers: “All of you who are assembled here to judge me, you are not better than me. Confess yourselves first, and I will confess in my turn; repent, and I am ready to satisfy.”
The theory of sanctional right can then be summarized in the following propositions:
1. Justice is immanent to humanity, a faculty of the human soul;
2. It is reciprocal;
3. By the multiplicity of persons who form its organism, the conscience, common between spouses, becomes common in the family, the tribe, the association, the city;
4. By virtue of that community of conscience, the members of the family become, with regard to the delight that Justice provides and the pain that results from committing evil, participants and consorts.
5. Just as the material damage caused by a delinquent must be compensated, the object carried off returned, so reparation must be made by him, not in abuse subjected to, but in acts of virtue and devotion, for the harm he has done to the common conscience. There is nothing mystical, irrational, or arbitrary in this, which could disqualify the most insolent malefactor; complete abolition of the so-called right to punish, which is nothing other than the formal violation of the dignity of an individual, in reprisal for a violation of the social dignity.
6. But, as the crime or misdemeanor is never isolated, as it has been more or less caused, provoked, encouraged, tolerated, or permitted by the system of relations, always more or less inexactly determined, which form society, there is always a place for society to seek in what way it can itself have been at fault with regards to the delinquent, the sanction, like Justice, being complete only insofar as it is reciprocal.
These principles posited, let us come to their application.
[… 26,000 words …]
[working translation by Shawn P. Wilbur]
