Jurisdynamics Network
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| Crime & Punishment: A Gandhian Perspective Posted: 30 Aug 2011 07:10 PM PDT  I've be re-thinking my views on punishment of late, although the tentative and inchoate nature of these thoughts prompt me (for now at least) to refrain from sharing them, even in a blog post.[1] However, having recently posted on the Gandhian take (by way of Bhikhu Parekh) on classical Liberal—and capitalist—ownership and private property, I thought to share his ideas on crime and punishment as well. Once more we'll rely on Parekh's well-crafted summary.[2]
Three areas in particular in which Gandhi highlighted the indissoluble connection between violence and the modern State: war, the exploitative economic system, and the punishment of crime.[3] The violence in these three cases is also conspicuous for being tolerated by elites and masses alike. We'll concern ourselves with the last. As you'll see in the bracketed comments, I'm not too fond of the use Gandhi makes of an analogy between disease and crime (owing to his indiscriminately moralistic approach to the former), however much something might be learned from the comparison. Nevertheless, we should not permit problems with that analogy detract us from a fair consideration of his views on crime and punishment. "Gandhi was disturbed by the 'silent' and largely invisible but extensive violence daily committed by the state without a murmur of protest, namely the prisons. His views on the subject were derived not only from his theory of non-violence but also from his reflections on what imprisonment had done to him, to his political colleagues and the ordinary criminals who sometimes shared prisons with him during his nearly six years of incarceration in India and seven months in South Africa. For Gandhi, there were only crimes, not criminals. To describe a man as a criminal was to imply that criminality was inherent in his nature and that he was nothing more than a criminal. A man committing a crime did not necessarily have a criminal disposition, both because an isolated act did not signify a pattern, and also because a crime was often the result of a number of factors only marginally related to the agent's character. Even if he was in the habit of committing crimes, he did not cease to be a human being endowed with a moral and spiritual nature. He was always more than and must be separated from his actions and tendencies. While his crimes should be condemned and punished, he deserved to be treated with the respect and love due to a fellow human being. Rather than brutalise and degrade him, punishment should help him reclaim his humanity. Men were responsible for one another, and if one of them turned delinquent, the rest could not disown their equal responsibility for his behavior. Even as he must search his conscience, they must probe theirs. Gandhi detected a deep contradiction between modern society's attitudes to disease and crime. It viewed disease with a solicitous concern bordering on indulgence and devoted vast resources to inventing new drugs, instruments, more effective forms of treating and acquiring greater knowledge of the human body. Diseases owed their origins to such causes as overeating, unbalanced diet, bad habits, consumption of alcohol, excessive stress and strain and an undisciplined life, all of which were moral lapses showing weak will-power and bad judgment. [Needless to say, Gandhi's views here are quite radical and probably unacceptable to most of us insofar as we recognize that at least some diseases have a not insignificant genetic component or may arise, as it were, unbidden (as when, in the jargon of pop psychology, 'bad things' happen to 'good people'). Furthermore, his view cannot accommodate the cases of infants and young children afflicted by diseases through no fault or lapse—moral or otherwise—of their own. That said, there's a fair amount of truth to this picture, as seen in the case of at least some health problems: cancer, heart disease, stroke, and Type 2 diabetes, for example. Yet even this truth takes insufficient cognizance of the role of socio-economic environmental factors in affecting behavioral problems ostensibly caused by bad habits, poor judgment, or weakness of will.] Society, however, attached no opprobrium to and imposed no punishment on them, and took no steps to strengthen the intellectual and moral fibre of those involved. [Again, in the time elapsed since Gandhi composed his thoughts on this topic, things have in fact changed, at least in this country, as opprobrium and informal sanctions are in place with regard, for example, to morbid obesity, the eating of "junk food," smoking, and excessive drinking, although the social messages in toto are undoubtedly "mixed" and contradictory in the face, for instance, of mass media entertainment and advertising. This serves to weaken the strength of Gandhi's analogical comparison between disease and crime.] By contrast, it treated crime with the greatest of severity. Even when petty and inadvertent, it condemned it in the strongest terms and punished it in a demeaning and degrading manner. Society devoted little attention to exploring effective ways of eradicating it, and continued with the same old method of imprisonment which not only did not reduce but even increased the incidence of crime. For Gandhi there was no real difference between crime and disease. Both, alike, displayed poor self-discipline and a lack of social responsibility and concern for others, both were avoidable and both cost society a great deal of money. There was no reason to tolerate one and condemn the other or to treat one with indulgence and the other with severity. [….] Even as modern medical science pampered the body, encouraged self-indulgence, weakened self-control and allowed disease to continue unabated, the modern prison brutalised its inmates, weakened their self-respect and encouraged the recurrence of crime. [….] For Gandhi crime was a moral lapse, a 'disease' [in a metaphorical sense], not the normal condition of a human soul. Most men never committed crimes, and those who did generally refrained from doing so when treated with love and understanding. In his view, man committed crimes for one of three reasons: first, to secure the basic needs of life; second, a weak will and the inability to resist temptation; and third, in rare cases ill-will or malevolence. In the first case, crime was a product of poverty, and in the other two bad social and economic conditions and poor upbringing. For Gandhi will-power and self-discipline were not natural endowments but products of upbringing and the dominant social ethos. As for malevolence it too was not natural to man, for even the most hardened and vicious criminals loved someone, at least their parents, wives, husbands, children or animals, and the question was one of widening the range of their capacity for love and goodwill. [I suspect Gandhi ignored or wildly underestimated the occurrence of psychopathic behavior.] Since crime was basically a 'product of social organisation,' it could be very considerably minimised by appropriately changing the latter. [Imprisonment, Gandhi believed], was generally inspired by the spirit of retribution which was morally unworthy of and reduced the state to the level of its temporarily deviant member. It provoked the spirit of vengeance in the prisoner and perpetuated the vicious cycle of violence. Above all, it never solved the basic problem of reducing the incidence of crime in the long term. Once behind bars a man was generally 'lost to society for ever.' He rarely came out reformed but often worse. In locking him up the state did violence to and even killed the human being in him, a crime often worse than the one committed by him. Gandhi pleaded that a state calling itself civilised must put an end to the system of daily dehumanising and brutalising its members and find less violent and inhuman ways of coping with crime, even if that involved taking calculated risks and making bold experiments. He observed: Quite a few people say and believe that many children have been reformed through beating. It is this belief which is responsible for the increasing burden of sin in the world at present. The use of force is soul-destroying and it affects not only the person who uses it but also his descendants and the environment as a whole. We should examine the total effect of the use of force, and that over a long period of time. The use of force has continued over a long period of time, but we do not find that those things against which force has been employed have been destroyed. Formerly there used to be heavy punishments for theft. It is the opinion of all expert observers that heavy punishments have not stopped thefts. As the punishments began to be tempered with mercy, the number of thefts declined. Until such time as an alternative to prisons was found—and Gandhi confessed that he had not yet been able to come up with one—much could be done to improve them. The most important change should be at the level of attitude. We should see them as places for reforming, not punishing people. Since they could not be reformed unless kept under constant supervision, their movements had to be restricted. Even as keeping patients in hospitals or quarantining those suffering from infectious diseases was not imprisonment, keeping those guilty of crime in reformative institutions for the required period of time was not so either. [….] In his view much could be achieved if 'prisons' were to become workshops-cum-educational institutions encouraging their inmates in constructive and socially useful activities, providing for their moral education and building up their self-respect, sense of social responsibility and character. He thought they were more likely to be reformed if trusted and provided with privacy, a decent environment, healthy diet, proper rest and civilised relations with each other and their wardens. Every social order successfully moulded the character of its members along the desired lines. There was no reason why the 'prisons' could not learn from its methods and achieve the same results." Notes: [1] I've been inspired most recently and in part, by Ted Honderich's book, Punishment: The Supposed Justifications Revisited (London: Pluto Press, 5th edition, 2006). See too this earlier post on "Crime and Unusual Punishments." I've since updated (and divided into two parts: 1. criminal law, and 2. punishment and prisons) my bibliography for "criminal law, punishment and prisons" and will send it along upon request. [2] Bhikhu Parekh, Gandhi's Political Philosophy: A Critical Examination (Notre Dame, IN: University of Notre Dame Press, 1989). [3] Far and away the most analytically satisfying and thorough treatment of Gandhi's understanding of violence and nonviolence remains Raghavan Iyer's formidable study, The Moral and Political Thought of Mahatma Gandhi (Santa Barbara, CA: Concord Grove Press, 2nd ed., 1983, 1st ed., Oxford University Press, 1973). [cross-posted at ReligiousLeftLaw.com]  |
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