A civilised country respects the individual freedom of its citizens providing that it does not clash with the welfare of the community. As long as a person outwardly behaves himself in his dealings with his fellow men, the Government should not interfere with his private life. His way of thinking, his religion and ethical views are his own responsibilities. Morality affects man's conscience; if a person commits a sin, Ethic Justice imposes a punishment which lies in remorse.

Nevertheless the supporters of capital punishment believe that the Government should act as an instrument of Ethic Justice. The death penalty is the absolute demand resulting from a positive moral attitude. Because a life has been taken, it is decided that another life be taken in revenge after the principle "a life for a life". The nature of capital punishment is considered to be retribution for an ethic guilt.

However, such moralization does not come within the jurisdiction of Social Justice: the Criminal Law has a function to fulfil of a protective nature only.

The community can be effectively protected by lifelong imprisonment of the murderer, if necessary.

Not Supreme Guardian

After all the Legislator does not reward the moral good; therefore there is no sound reason why he should take interest in moral evil as such when a murder has been committed. He should confine himself to the social repercussions of the crime alone: its moral aspects are a matter of conscience, a private affair between God and the sinner only.

Condemns Retribution

From the spirit of the Gospel it does not appear, either, that the Crown has the right to act as an avenging moralizing Justice. We read in the Bible about the absolute command of love of one's neighbours and that God maketh His sun to rise upon the good and the bad. We must remember the Sermon on the Mount with its rejection of an eye for an eye and a tooth for a tooth. We come across the assurance that there shall be joy in Heaven over one sinner that doth pennance more than over ninety-nine just who need not pennace. We should not forget that the woman taken in adultery was not reviled but sent away with the command not to sin any more. The bystanders were admonished that only he who was without sin was allowed to cast a stone at her. He, who has understood all this, would be quite justified in saying that the Gospel does not teach a blow for a blow, or to repay evil with evil. On the contrary the Bible teaches us to consider smallness and weakness, to guide the man who has gone astray, to practise mercy.

Moral Guilt

There are some arguments of a more practical nature against the idea of retribution in the Criminal Law. If punishment be founded on moral guilt, the deserved affliction will be light or cannot be applied in cases where the negligence is considerable, but the immorality often small. The criterion would equally fail with respect to a psychopath whose moral guilt decreases in the same rate as his abnormality increases. A problem would arise in connection with conscientious objectors and those who fight the existing legal order for the sake of what—in their opinion—is a better cause. Such a foundation would be catastrophic indeed: for action should only be taken against any individual because he harms the welfare of the community or endangers its security. The psychiatrists in particular are opposed to the doctrine of retribution. The believers in it endeavour to draw the line between those who get what they deserve and those whose cases must be dismissed because they are psychopaths who require medical attention. Psychiatry, however, cannot draw a line, but only knows graduation.

Never Assessed

There would be another insurmountable difficulty: before inflicting a just punishment the Court should have to assess the degree of the offender's moral guilt. Yet a righteous person would have a greater sense of guilt than a corrupt one with regard to the same crime. It might even be greater than objectively should be expected.

From the foregoing it may be seen that there is no place for an Ethic Justice in human society. Consequently the death penalty should be abolished and replaced by imprisonment.

Reformative Sentence

It may be quite rightly contended, that the convict will always be judged from a moral angle when it comes to a decision on the kind of punishment: Should he repent his crime, he may be leniently dealt with; if he does not show any signs of contrition, the punishment will be severe. However a rather psychological judgment on the inner motives of the criminal is possible without moralizing. Punishment of a social nature that follows, is not the same as retribution.

For its function is not expiation of a moral sin, but primarily protection of the community against a member who has proved to be lacking in social virtues.

The more dangerous and incorrigible the delinquent, the stronger the protection, the heavier the penalty. The imprisonment term would be longer, should it take longer to instill into him the social virtues.

Thus social punishment is a means of reformation also, since it prepares the convict for re-entry into the community as a good and respectable citizen. He may, of course, take the hardship of imprisonment as a pennance for moral aberration into the bargain. But that is his own private business.

A good prisoner, who makes the best of his penalty, may cease to be dangerous before he has served his sentence. Discharging him would be a logical thing to do, but this seems undesirable. Further detention does not necessarily turn the punishment into a form of retribution: its justification lies in the deterrent effect it has on the community.

So Final

Lastly, imprisonment has a distinct advantage over capital punishment. Revision of the sentence will always be possible in case the convict appears to be innocent afterwards.

The death penalty is so final. For one must never forget the admonition of the wise Laotse: "He who handles the hatchet for the Master-Carpenter, seldom escapes injury to his hands."

—John C. Hendrikse, LL.M. (Amsterdam).