Fiat Justitia
By It. H. CECIL
AMONG all the criminological experts who now contend before us, deploring each other's public speeches and rending each other in the correspondence columns of The Times. there is none so lonely as the psycho-analyst, though, if he is right, there is none nearly so important. He can hardly get a hearing.
This is because he lumps them all together, criminals, police, magistrates, judges, lawyers and even criminologists, usually as awful examples of how people turn out if they are allowed to go In for certain kinds of noisome behaviour in early infancy. The criminal himself has an unconscious need for punishment, commit- ting his crimes under the tutelage of a super-ego. (If the police only knew this they would look harder for their clues.) The police and the judiciary, as infants, may even have identified themselves with a harsh father, and as for defending Counsel, a guilt-complex left over from infancy makes him feel guiltier than his client, in which respect he merely fulfils the emotional demands of society. The criminologist himself is the victim of an emotion that betrays a peculiarly disgusting babyhood.
In his latest book* Mr. Paul Reiwald discusses all these theories with a careful objectivity which (since he himself teaches crimi- nology in the University of Geneva) must have been difficult to achieve. The criminal law, he says in effect, is a vast and tortuous rationalisation of the emotions of mankind. The criminal is neces- sary to man for psychological reasons. Consequently, man organises the fight against crime so that at the same time it serves the purpose of maintaining crime. Mr. Reiwald quotes Sir Robert Anderson, Commissioner of the Metropolitan Police in 1908 (a great year in our criminal law), as having said in a letter to Robert Heindl that " the real professional criminals, who constantly take up the time of the greater part of my staff, could be comfortably seated in this room. But a number of them are always left at liberty so that the business may continue a going concern." (One is reminded of the legend that, when rat-catchers were the creatures of private enterprise, they insured against unemployment by releasing a buck and a doe before leaving a warehouse after a night's work.) If it were not for these elite criminals, said Anderson, the majority of his staff could be dismissed.
But because he holds that society must control its emotions before it can begin to cope with its criminals, Mr. Reiwald is at his most interesting when he discusses the death penalty. His contribution could be important at this moment, when the emotional view is being placed before a Royal Commission by prison officers, police- men, chaplains and others who feel that we must at all costs maintain our distinguished position among the very few civilised nations that go on killing their criminals. He is not himself an abolitionist. He inclines to the view of Auguste Forel that really dangerous criminals (multiple murderers, serious sexual offenders) should be "painlessly put to death by the court doctor," whoever that is. , The death penalty is all right, in other words, so long as it is used for the right reasons, so long as the psychiatrist has given the word go, and so long as those by whom it is done, those to whom it is done, and those in whose name It is done, are under no emotional self-deception about it. He discusses Freud's conception of judicial killing as an expiatory human sacrifice, a vestigial " totem feast " that still retains the last few trappings of a popular festival ; and, having shown that the " tarring and feathering " custom of the American lynchers springs from their unconscious, inherited need to make the victim look like an animal, he concludes that " the criminal represents the totem animal and the execution is a renewal of the totem feast."
This is always a disturbing thought. Readers of Sir James Frazer will remember how, in Psyche's Task, he shows that criminal justice was based on a crude form of superstition long before the subtle brains of philosophers and jurists had " deduced it logically from *Society and Its Criminals. Translated by T. E. James, Barrister-at- Jaw. (William Heinemann Medical Books Ltd. 21s.) *Crime and Abnormality. (Home University Library. 5s.) a theory of righteous retribution, a far-sighted policy of making the law a terror to evil-doers, or a benevolent desire to reform the criminal's character and save his soul in another world by hanging or burning his body in this." The anthropologist can make the criminal law look as silly as the psycho-analyst can make it look disgusting.
But what are we to do ? Hate and fear go on winning. They governed the hanging debates in Parliament last year, to which Mr. Reiwald devotes a long and interesting chapter, concluding with the prophecy that the British will get rid of the death penalty by the method of abrogation inherent in the Royal prerogative. But the war has indefinitely postponed the likelihood of this, says Mr. Cecil Binney in a book that discusses mental abnormality as an " excuse " for crime.* Rightly or wrongly, declares Mr. Binney, the majority of people in England did not, at the end of the Second World War, hold the optimistic opinions prevalent at the end of the First as to the possibility of establishing universal peace. And the more one is disposed to regard violence as an inevitable and perma- nent factor in human affairs, the less will one be disposed to regard violence by an individual as an indication of mental abnormality. Mr. Binney's purpose is to examine the efficacy of the "Macnaughton Rules," which were drawn up by the Judges (reluc- tantly
answering a set of hypothetical questions put to them by the House of Lords) more than a century ago. They have become the standard test of an accused person's sanity for the purposes of the criminal law ; many doctors, some lawyers and all psychiatrists think they are faulty, and a 1922 Committee under Lord Atkin said so in vain. Their essence is that, to establish a defence on the ground of insanity, it must be proved (by the defence) that at the moment of the crime the accused was " labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong."
The equivocal nature of that last word, " wrong " is necessarily the keynote of any such discussion. It raises those questions of ethics, politics and morality that trouble the individual in the modern State, and the problem of subjectivity in the personal judge- ment of acts which (like murder) are mala in se and those which (like spitting in a tramcar) are mala quirt prohibita. Mr. Binney is the first lawyer in my experience to acknowledge publicly (it is the final sentence of his significant book) that in this country we operate two criminal codes, " one for murder cases and one for all other criminal cases." The fact is too often ignored that, as you descend the scale from murder to spitting, court procedure becomes more and more slipshod. The Macnaughton Rules themselves apply, not only to murder, but to any offence for which the law provides the slightest punishment ; and if they came to be considered in relation to petty offences their inadequacy would be made manifest. They do not protect a prisoner who knows what he is doing and is never- theless mad, and they might not protect a certified lunatic. Every prisoner has the option whether or not to plead that he was insane at the time of his offence ; and the fact that he alone can raise the matter (as distinct from insanity at the time of his trial) is an answer to the perennial fallacy which even Mr. Binney repeats (page 181 that " every man is presumed to be innocent until the contrary is proved." (He isn't. In a number of exceptions sufficiently large to make nonsense of the rule, he will be presumed guilty unless he can prove " lawful excuse.") It is the view of the majority of modern jurists that we know enough about crime and psychology to get on with the business of punishment. The minority view, ably put by Mr. George Benson, M.P., in a recent debate on the Criminal Justice (Scotland) Bill. is that the sentences-of our Courts are still based on pure
guesswork. The plea for more research infuriates the " realists " as they grope instinctively for the birch that Parliament took away from them last year, and dull their ears to the fact that thirty-four civilised countries have abolished the death penalty without any increase in murder. Presumably the present Royal Commission will be hear- ing new facts about this shortly.
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