Without Guilt & Justice – The Birth of Guilt & Justice

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It is perfectly true that you hardly ever actually beat me. But the shouting, the way your face turned red and you hurriedly loosened your suspenders, their lying ready over the back of the chair, were almost worse for me. . . . When one has to live through all the preparations for one’s own hanging and learns of one’s pardon only when the noose hangs in front of one’s eyes, one may suffer from this experience for the rest of one’s life. Moreover, from these many times when, according to your clearly manifest opinion, I deserved a thrashing but, owing to your grace, barely escaped it, I accumulated a profound sense of guilt.

This passage from Franz Kafka’s “Letter to the Father” illuminates the origin not only of guilt but also of justice. My primary concern is not with origins. I want to criticize guilt and, insofar as a book can do that, liberate people from guilt feelings. But guilt feelings are being bred all around us, and if one wants’ to keep them from developing in the first place, one has to find out how they originate.

Moreover, I have argued that justice consists of giving each what he deserves, but that it is impossible to specify what a human being deserves. My critique of the concepts of desert and justice leaves open the question of how these fateful but objectionable notions originated. As a crime is not solved until a motive has been found, we cannot finally dispose of justice and desert until we understand how these ideas ever came to be accepted.

I shall therefore round out my account of justice with a theory about the origin of guilt and justice. Unfortunately, such a theory cannot be proved. Not only is it arguable that scientific theories in general can never be proved to be true, although many have been proved false, but the evidence for any theory about the origin of guilt and justice is bound to be particularly inconclusive. Instead of trying at great length to make the case as strong as possible, I shall be extremely brief. After all, my critique of justice and guilt does not stand or fall with this theory about their origins. It is quite sufficient for my purposes if I can provide a tenable theory, and better yet if it is very plausible.

Three major philosophers, David Hume, John Stuart Mill, and Nietzsche, have dealt with the origin of justice and developed rival theories. In an article in The Review of Metaphysics I have tried to prove that their theories of the origin of justice are untenable, and I shall not recapitulate my arguments here. Actually, Hume’s position, first presented by him under the title “Of the origin of justice and property,” has already been criticized in passing, above: he associated justice far too much with property and “the love of gain,” and he ignored retributive justice and desert. Nietzsche and Mill will be mentioned in passing, below. But it would delay us quite unnecessarily if I here tried to cope with the details of their theories. In any case, I believe that Kafka, in the short passage that I have cited, came much closer to the truth than any of them.

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What is the origin of the notion that we sometimes deserve punishments or rewards? What is the source of this idea of justice?

Such words as “source” and “origin” might be inappropriate. Although Amos wanted justice to flow like a mighty river, we could easily be misled by a metaphor. On the other hand, this metaphor does not imply that there has to be a single source. All rivers come from hills or mountains. Do the notions of justice and desert come from a height of feeling, an elevated vision, some peak from which one looks down on men’s miseries and feels compassion? Or is the idea of justice born of resentment, as Mill argued? Is the notion that people deserve punishment older than the concept of distributive justice? How is one to decide? The Kafka passage quoted above suggests a different approach. Is the idea of justice perhaps born of guilt feelings? Suppose some penalties had been proclaimed for certain deeds, not in the name of justice but for other reasons – say, simply because some persons in power (rulers, priests, or parents, for example) had not wanted somebody to do some things – and then the penalties were not inflicted, owing to an oversight, or to the death of those in power, or for some other reason. In such a case, as also when the penalty had merely been delayed, the reprieve need not prompt unequivocal delight, relief, or jubilation. One might well be waiting for the penalty, feeling that it must still come, and in this expectation it might prove impossible to draw a line between “must come” and “ought to come.” Even as some shapes are seen as incomplete triangles or circles that require one more pencil stroke, it is felt in cases of this sort that some painful event is still required – or deserved. As the English idiom puts it: “You’ve got it coming to you.”

Or suppose that you had been punished more than once for doing something forbidden, but now somebody else has done the same thing without being punished. The same expectation appears with a different emotional tone. It could be accompanied by fear for a person you love; it could also be, and more often is, imbued with the desire that the other person should be punished no less than you – if not in this life, at least in the next. Nor need it be a case of either fear or unequivocal desire; it might be a subtle mixture of the two.

Everything here said about guilt, whether one’s own or that of others, may be transposed. Imagine that it is not a penalty that is delayed or not inflicted but a promised reward that is postponed or not granted. This prompts the same sort of expectation that something is still “coming to” someone – that it is deserved.

Here is the origin of justice, and it is, surprisingly, a single source. The source of the idea that a reward or punishment is deserved is – a promise. And what is felt to be deserved, is what was promised. The emotional response to the promise or to the failure to fulfil it promptly is wholly secondary. If the reward or punishment should be – deferred, or if they never come, in our own case or in that of others, this nonevent may be met with envy or compassion, with self-pity or guilt feelings, indignation or concern, hope or anxiety. It is a mistake to suppose – as Mill did, for example – that some emotion or other is the source of justice. (He picked resentment.)

The required promise, of course, need not involve the words “I promise.” What matters is that one is given to understand that one can count on some reward or punishment, and that one has some respect for those who arouse this expectation. This feeling of respect does not involve any intellectual or moral judgment and does not depend on a prior sense of justice. It is an emotional orientation that does not preclude an admixture of resentment. What is essential is merely that one looks up to those who make the crucial promise. In that sense one endows them with authority, even if objectively they lack it.

There is ample evidence that criticism and reproaches from those whom a child – and not only a child – does not respect tend to be shrugged off even when they are quite harsh and deliberate, while a casual rebuke from a person one respects greatly is felt to be crushing and never forgotten, even if the critic himself fails to remember the incident.

The notion that rewards or punishments can be deserved, and often are deserved, is not born in the minds of sophisticated adults, nor is it the result of careful, critical reflection or painstaking inferences. We acquire this notion as children, long before we have learned to think critically about moral questions. Similarly, our ancestors acquired this notion long before there were philosophers or students of psychology, sociology, or comparative religion. Most of us take moral skepticism for granted and find it difficult to imagine the first stage of the development of justice or her birth.

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Originally, both in the history of humanity and in infancy, what is held to be deserved is what one is told is deserved or to be expected. If a command to do something is followed by a promise, then it is assumed that those who fulfil the command deserve what was promised (have it coming to them), and that justice is done when they receive it and injustice when they do not.

Similarly, if a prohibition is accompanied by the promise of a penalty, it is assumed that those who transgress it deserve the penalty; that justice is done when they receive it, even if the punishment should be quite brutal; and that it would be unjust for the transgressor to go free or to receive some other penalty instead. At this stage justice does not necessarily presuppose a law. All it presupposes is a promise that accompanies either a command or a prohibition.

Here I disagree with Nietzsche. Arguing against a theory that had sought the origin of justice in resentment, he claimed that justice comes into being only after “a stronger power” imposes a law to put an “end to the senseless raging of ressentiment among the weaker powers that stand under it . . . ‘Just’ and ‘unjust’ exist, accordingly, only after the institution of the law. . .” The first sentence that I have quoted in part seems unduly influenced by Aeschylus’ Eumenides, a play that Nietzsche, as a classical philologist, knew well, although he does not mention it, and the conclusion that “just” and “unjust” make sense only after “the institution of law” is surely wrong. In childhood one acquires the notions of “just” and “unjust” without the benefit of laws; unsystematic prohibitions and commands, delivered ad hoc and coupled with spontaneous promises of rewards or punishments, suffice. There is no good reason to believe that in the early stages of a culture “the institution of law” is required before justice can be born.

The initial sense of what is deserved is usually exceedingly unsubtle and insensitive. It depends on some authority or other – a parent, teacher, priest, or ruler, for example – who tells people that this is the way things are, that if you do, or fail to do, this, then you must expect and you deserve that. (This is the birth of justice – the beginning of what I have earlier called the first stage in her development. The criticism of such promises, of custom and convention, rules, laws, and arrangements, comes much later in time, and I shall deal with it shortly.)

In this initial phase it does not follow at all that if somebody else does the same thing, he deserves or must expect the same reward or punishment. On the contrary, a child may not do what his parents and perhaps his older siblings may do, or even have to do. Rank, station, and sex are usually considered important at this point. Priests, noblemen, and servants are not expected to perform the same acts, and are not treated alike if they do the same things. The same goes for generals and ordinary soldiers. Zeus marries his sister and rapes the daughters of kings as well as some kings’ wives; but what is permitted to Jove is not permitted to an ox, as the ancient adage has it: quod licet Jovi, non licet bovi.

This goes against the liberal grain. Is not equality of the very essence of justice? If I do something and am punished for it, does not justice require plainly that if someone else does the same thing, he should be punished, too, in the same way? And if somebody else does something and reaps a reward, is it not a demand of simple justice that I deserve the same reward for doing the same thing? The answer is: three times no.

What cases are considered alike and what differences between human beings are taken to be relevant is originally a function of what we are told. If it was made clear from the start that girls, women, artisans, or novices would be punished for doing this or that, then most people, at least at this stage, would consider it unjust if they were not punished after doing it. As long as it is understood from the start that quod licet Jovi, non licet bovi, it accords with most men’s sense of justice, at least at this stage, that one person should be honored for performing the very act for which another is, or would be, punished.

We can easily think of examples in which this procedure would not offend our moral sense even today, while other instances might be considered models of injustice. The recent development of the concept of justice has been more and more in the direction of equality. Less and less is it taken for granted that those in positions of privilege are like Jove; reasons are demanded to justify privileges and inequalities. But it would be a grave error to project this contemporary trend back into the origins of justice.

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The origin of what one might call ideal justice poses no grave problem for the theory advanced here. In early childhood and in early history, orders, promises, and threats tend to be improvised, ad hoc, unsystematic. Later on, attempts are made to codify them, but it is extremely difficult to achieve consistency. Typically, one principle is invoked or implicit here and another there; one sentiment or intuition at this point and another at that; one precedent now and then another one. Such inconsistencies prompt reformers, prophets, critics, and revolutionaries to invoke one tradition or set of ideas against the rest. The critique of positive law begins as a protest against inconsistency. The demand for ideal justice is linked to the denunciation of hypocrisy and to an appeal to selected elements of an old tradition. None of this necessarily involves superior moral standards, although the standards invoked will, of course, be proclaimed as superior.

The ideal justice that is contrasted with what passes for justice can involve more rigorous respect for ancient inequalities, as in Plato’s attack on democracy, or a plea for equality, or even, as in the Hebrew Bible, special consideration for orphan, widow, and stranger. Which strands of a tradition set his heart afire proves what kind of a person a social critic is.

The contrast between ideal justice and positive justice is fruitful, but it would be a grave error to suppose that ideal justice is, or tends to be, the same everywhere. Any such claim is as false as it would be concerning positive justice. Amos’ ideal justice would have outraged Plato, and vice versa.

The origin of ideal justice is dissatisfaction with positive justice. But ideal justice is also born of an unfulfilled promise. One appeals to ancient promises that, one claims, have been betrayed. The critique of positive justice could be presented as a protest against brutality and inhumanity. Typically, however, the great critics of positive justice have denounced inconsistency, irrationality, and hypocrisy. Hypocrisy is a kind of inconsistency, and treating people differently on account of differences that on reflection can be seen to be irrelevant and to constitute no sufficient reason for the difference in treatment is a form of irrationality. Thus the demand for ideal justice is often a plea for rationality and honesty.

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What has happened to justice and desert in our time is similar to what has happened to God. A child’s idea of God is intelligible, but many adults consider it naïve. They are more sophisticated and disown such notions. They readily explain what they do not mean when they avow their faith that God exists, but the more they pride themselves on their lack of superstition, the less clear it becomes what they do mean. As Satan once said to a Christian: “I think you don’t know yourself what you mean. You are repeating words that once designated very understandable superstitions. Now you denounce these superstitions but cling to the same words and believe that you are still saying something.”

In the case of desert and justice, what was meant originally was clear enough: one deserved what one had been promised, and justice was done when one got it. As one became more sophisticated, it became plain that the promised reward or punishment itself might be unjust – that is, disproportionate. To be deserved and just, it had to be proportionate. But what was considered proportionate always depended on an appeal to authority.

Many legislators considered it self-evident that one had to take into account the caste of both the offender and the offended party. Hammurabi’s Code went further and provided, for example, that if a man should strike another man’s daughter, and she died, “they shall put his daughter to death.” Moses’ sense of proportion was different, and that in the Law of Manu different again. Few of those brought up under these laws ever doubted that the penalties provided in them were proportionate, deserved, and just. And those raised to believe in hell rarely had any qualms about that. Indeed, St. Thomas proved at length how eternal punishments for temporal offenses were not disproportionate.

The critics of positive justice also appealed to authority, citing different precedents, texts, or traditions. When moral skepticism and skepticism about law developed, people still clung to the notions of proportion, justice, and desert. But these notions depend on some authority, if only that of one’s own intuition, and when no authority is recognized in moral matters, these old notions collapse and die. The moral rationalist may still try to prop them up with appeals to reason, as if proportion in such matters could be mathematical, but no matter how subtle his efforts may be, they do not stand up under scrutiny.

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In the discussion of retributive justice, I stressed the crucial role of religion; but up to this point my theory of the origin of justice has underplayed the importance of religion. The last question about justice that needs to be answered here will permit me to make up for this omission.

Why have men so seldom tried to work out in detail visions of a just society? Because it is impossible to specify distributions and punishments that would be just. Although my thesis that this is impossible may be novel, something like it has been felt very widely, if vaguely, by legions of people for thousands of years. Instead of trying the impossible, they have simply postulated that after death everybody will receive what he deserves – whatever that may be. Dogmatic assurance about this supposed fact has been accompanied by an impressive lack of detail.

As far as punishments were concerned, a sort of pornography developed; at times, men’s imagination ran amuck, and under the flimsy pretext of justice one wallowed in cruel fantasies. The eternal punishments of Sisyphus and Tantalus in the eleventh canto of the Odyssey are not justified by any crime that bears a relation to them; only later ages furnished superabundant rationalizations. The penalty was dreamt up first; the reasons for it were invented later.

It is striking that in Homer’s afterlife there is no inkling of any reward. In Christianity heaven is usually nothing but words: bliss, being close to God, or angels with harps. It is hardly original to remark that listening to harps for thousands of years would be hell; but note the complete vacuity of the traditional insistence that after death virtue is rewarded, and each gets his just deserts. As children, we are led to assume that such phrases as “just deserts” are meaningful and have very specific contents; but on reflection it appears that there actually is no content. Or, if you prefer, what content there is does not bear thinking about. It is an embarrassment.

In the Thomistic Summa Theologiae we encounter one of the rare attempts to imagine a reward that is less vapid than harp music: “In order that the bliss of the saints may be more delightful for them and that they may render more copious thanks to God for it, it is given to them to see perfectly the punishment of the damned.”

This is a condensation of the much more elaborate development of the same theme by Tertullian, “the earliest and after Augustine the greatest of the ancient church writers of the West.” In the last chapter of his treatise On Spectacles, in which he warned his readers against attending such mundane affairs, he promised them rich rewards on “that last day of judgment, with its everlasting issues.” There will be ever so much to “admire,” to “enjoy,” and to “exult” over,

as I see so many illustrious monarchs, whose reception into the heavens was publicly announced, groaning now in the lowest darkness with great Jove himself. . . ; governors of provinces, too, who persecuted the Christian name, in fires more fierce than those with which in the days of their pride they raged against the followers of Christ.

The philosophers “who taught their followers that God had no concern in aught that is sublunary” and who denied either the existence of the soul or the bodily resurrection are “now covered with shame before the poor deluded, as one fire consumes them.” Actors will be lither of limb in the flames than they ever were on the stage, and behold “the charioteer, all glowing in his chariot of fire,” and “the wrestlers, not in their gymnasia, but tossing in the fiery billows.” But it is possible that “even then I shall not care to attend” to such trifles “in my eager wish rather to fix a gaze insatiable on those whose fury vented itself against the Lord.” There is no need to continue here; suffice it that Tertullian is not resigned to wait for the day when he will be “exulting in such things as these,” for “even now we in a measure have them by faith in the picturings of imagination.”

The Reverend S. Thelwall whose translation I have cited rejects the suggestion that this work might have been written after Tertullian’s “lapse” from orthodoxy into Montanism: “A work so colourless [!] that doctors can disagree about even its shading, must be regarded as practically orthodox. Exaggerated expressions are but the characteristic of the author’s genius.” We are invited to find in this chapter, “which Gibbon delights to censure” (and which Nietzsche cited as a prime example of Christian resentment), “a beautiful specimen of lively faith and Christian confidence.”

At such a loss is the confidence in distributive justice to imagine what rewards might be deserved! When hatred does not rush in to fill the void, there is nothing but the empty, dogmatic assurance that justice will be done. Given my theory that the sense of injustice has its source in an unfulfilled promise, nothing could be more natural than the expectation that the deferred promise will be kept eventually, even if only after death. Again and again, the paradigm of justice was found not in this life but in the next, or in the law that governed the transmigration of souls. While one was generally careful not to be precise about rewards and punishments, one did insist that each got what he deserved – and this created the untenable impression that it makes sense to speak of the rewards and punishments that a person deserves. This false notion would not be so difficult to dislodge if it did not have the support of thousands of years of religious indoctrination.

I began my account of justice with her death. Now that we have also explored her origins, we have truly found her out. My theory does not only complete the picture; it also has practical implications. We are not born with a sense of justice or with guilt feelings. Nor are guilt feelings inevitable.

Liberal parents inculcate guilt feelings in their children by telling them that they deserve to be punished, and by then suspending the punishment. It is no longer fashionable to be as crude as Kafka’s father was, to loosen suspenders or prepare to give one’s children a terrible beating. The usual pattern is to tell a child something like this: If I had done when I was your age what you have just done, I’d have been punished severely; and while that’s what you deserve, I’d never do that sort of thing to you. But how could you do such a dreadful thing?

If one wants to breed guilt feelings in one’s children, this is the surest way to do it. But if one wants to liberate oneself and the future from the tyranny of guilt, one has to know how guilt is bred and born. The question remains whether guilt feelings are a necessary evil, as traditional morality has taught. The time has come to attack guilt.

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