Abstract
What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca’s De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca.
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Notes
See Montaigne’s essay “On Cruelty,” in Book II of his Essais, which had various modified editions until his death in 1592 (Montaigne 1991).
See Cesare Beccaria’s (1985) manifesto—originally published in 1764. See, in this regard, the following articles of the Universal Declaration of the Rights of Man of 1789: 8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense. 9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner’s person shall be severely repressed by law.
William Blackstone, Commentaries on the Laws of England: 1765–1769, (http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm), “Book IV,” 370.
Lucius Seneca (2003).
See Carol S. Steiker and Jordan M. Steiker’s (1995). See also Hugo Bedau’s (2004). Bedau’s edited volume (1997) is a helpful source for the different views on capital punishment in the United States. As far as the history of death penalty adjudication is concerned, the two momentous decisions are the Supreme Court’s constitutional invalidation of Georgia’s death penalty statute in Furman v. Georgia 408 U.S. 238 (1972) and the re-constitutionalization of capital punishment by the court in Gregg v. Georgia 428 U.S. 153 (1976). It is in the Furman case that, in Justice Brennan’s opinion, is found the most extensive and deepest effort to date to reflect on the nature of cruel punishment in the context of American constitutionalism. In his opinion Justice Brennan sought to articulate the four principles under which violations of the Eighth Amendment prohibition of “cruel and unusual” punishments were to be determined. The principles, of which the first was the governing one, were the following: (i) “a punishment must not be so severe as to be degrading to the dignity of human beings;” (ii) “that the State most not arbitrarily inflict a severe punishment;” (iii) that the “severe punishment must not be unacceptable to contemporary society;” and, finally, (iv) “that a punishment must not be excessive. A punishment [being] excessive under this principle if it is unnecessary.” The conceptual shortcoming of this effort is clear: how can the degradation of human dignity serve to elucidate what cruel punishment is when what is cruel is to be defined as that which degrades human dignity? However it may be, in this article the reader will be able to see the seminal formulation of the philosophical views on cruelty appearing decanted here in Justice Brennan’s four principles.
See the statistics presented in support of the claim of racial discrimination in death-sentencing in Georgia in McCleskey v. Kemp, 481 U.S. 279 (1987).
Harold Bloom (1994).
See, for manifestation of this, Jeremy Waldron’s (2005) claim that the prohibition of torture is a legal archetype in his “Torture and Positive Law: Jurisprudence for the White House.”
See Thomas Aquinas’ Summa Theologiae published from 1265–1272, in particular Questions 2a2ae 157 and 159, dedicated to De Clementia et Mansuetudine and De Crudelitate, respectively, as part of his writings on the virtue of temperance (Aquinas 1972).
Seneca, op. cit., 435–437.
Ibid., 369.
Ibid., 371.
Ibid., 369.
Ibid., 363.
Ibid., 423.
Ibid., 399.
Ibid., 374.
See the basic clause of Rousseau’s social contract: “These clauses, rightly understood, all come down to just one, namely the total alienation of each associate with all his rights to the whole community: For, in the first place, since each gives himself entirely, the condition is equal for all, and since the condition is equal for all, no one has any interest in making it burdensome to the rest.” (Jean-Jacques Rousseau 1977a).
Seneca, 371.
Ibid.
This is the sort of move that Nietzsche sees as the slave morality’s transmutation of values (Nietzsche 2000).
Ibid., 371–373.
Ibid., 393–395.
Ibid., 391–393.
Ibid., 391.
Ibid., 359.
Plato (2001).
See Seneca, 363–395.
Which it failed for Nero, as Tacitus (1996) confirms with bleeding examples in his Annals on Imperial Rome, while largely succeeding for us.
Ibid., 409.
Ibid., 411.
Ibid.
Were it not lost, it is difficult not to speculate, Seneca’s and Aquinas’ conceptions of cruelty might be even less dissimilar.
Ibid., 365.
“Deterrence,” in contemporary jargon.
Compensation can, depending on the circumstances, be understood either as a retributive device or as a maximized utility. I cannot address this distinction and its subtleness here. But for the sake of the interpretation of Seneca in De Clementia, it shall suffice to say that compensation is better understood as a question of retribution.
Ibid., 419. Compare this with Blackstone’s theory of punishment. After rejecting the idea that the rationale of punishment would be the “atonement or expiation for the crime committed,” he indicates “precaution againft future offences of the fame kind” as the sole motivation for punishment. Blackstone then proceeds to list the three “types” of punishment consistent with this motivation, namely: (i) “the amendment of the offender himfelf,” (ii) “deterring others by the dread of his example from offending in the like way,” and (iii) “depriving the party injuring of the power to do future mifchief.” But Blackstone not only expounds a typology of just punishment similar to Seneca’s. He further adds some of the objective parameters that Seneca so passionately defended: “The method however of inflicting punifhment ought always to be proportioned to the particular purpofe it is means to ferve, and by no means to exceed it : therefore the pains of death, and perpetual difability by exile, ftavery, or imprifonment, ought never to be inflicted, but when the offender appears incorrigible.” Blackstone’s latter caveat fails, however, to be faithful to Seneca’s strictures with the excuse that “in fuch cafes it would be cruelty to the public, to defer the punifhment of fuch criminal, till had an opportunity of repeating perhaps the worft of villanies.” Ibid., “Book IV,” 11–12.
Or as Feinberg has articulated it: “Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, either on the part of the punishing authority or those in ‘whose name’ the punishment is inflicted. Punishment, in short has a symbolic significance.” (Feinberg 1970). A locus that has become a classic of the articulation of a defense for the enforcement of social morality through criminal law is Patrick Devlin’s (1965). For an analysis about the more general expressive function of law see Cass Sunstein’s (1997).
He thus preaches to Nero: “You will more easily reform the culprits themselves by the lighter form of punishment; for he will live more guardedly who has something left to lose. No one is sparing of a ruined reputation; it brings a sort of exemption from punishment to have no room left for punishment. The morals of the state, moreover, are better mended by the sparing use of punitive measures; for sin becomes familiar from the multitude of those who sin, and the official stigma is less weighty if its force is weakened by the very number that it condemns, and severity, which provides the best corrective, loses its potency by repeated application. Good morals are established in the state and vice is wiped out if a prince is patient with chastisement. The very mercifulness of the ruler makes men shrink from doing wrong; the punishment which a kindly man decrees seems all the more severe.” Seneca, 419–421.
Ibid., 421.
Ibid., 423–425.
Ibid., 423.
Ibid., 423–425.
Ibid., 365.
Ibid., 435.
Ibid., 437.
Ibid., 449.
“At this point it is pertinent to ask what pity is. For many commend it as a virtue, and call pitiful man good. But this too is a mental defect. We ought to avoid both, closely related as they are to strictness and to mercy.” Ibid., 437.
Seneca, op. cit., 443.
As understood by each punitive community, as the requirements of honesty and consistency would suffice to thoroughly change whatever the current state of their respective punitive practices is. We would then start from there.
Seneca, op. cit., 397.
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Acknowledgment
I am grateful to students in my law and cruelty seminar at Harvard and to Renata Barrozo, Vlad Perju, Aziz Rana, Marie-Eve Sylvestre and Roberto Unger for helpful conversations about themes discussed in this essay.
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Barrozo, P.D. Punishing Cruelly: Punishment, Cruelty, and Mercy. Criminal Law, Philosophy 2, 67–84 (2008). https://doi.org/10.1007/s11572-007-9038-x
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DOI: https://doi.org/10.1007/s11572-007-9038-x