Crime and Punishment

Where natural law meets the psychological worldview

Raskolnikov in the Attic (from Crime and Punishment) by Fritz Eichenberg.

Here it is, my 100th post since I started this Substack in April 2022. That’s one post every 4 days or so, not counting the occasional cross-post. Thank you to everyone who has subscribed, read, and commented in that time!

In my previous two posts on John Lawrence Hill’s book After the Natural Law, I summarized some of the basics (see here and here). As shown there, natural law affirms the reality of free will: when it comes to our actions, we always could have chosen otherwise. So if we violate the moral law in an egregious way, say, by cheating our best friend in a shady business deal, or murdering our family, we can be held accountable. It’s called crime, and crime is punished, where possible. This understanding underlies our entire legal and political tradition. We treat people as if they make choices—because they do. And we then choose to punish them, or not, as we deem appropriate.

However, in Ponerology, Lobaczewski often refers to something he calls “psychological causation.” That is, there are psychological processes that underlie human behaviors, and by which we can better understand them. For example, unconscious associative processes triggered by subliminal sensory stimuli can incline us toward certain choices. Abuse can cause trauma, which can affect the brain, emotions, cognition, and behavior. Without the abuse, the problem behaviors and emotional and cognitive difficulties wouldn’t have occurred. Group dynamics cause people to act in ways they otherwise wouldn’t, and biological factors can predispose one to think, feel, and act in atypical ways—again, which they wouldn’t do if the biological factor hadn’t been present (e.g. a brain lesion or a heritable personality disorder).

Hill seems to equate psychological causation with determinism, at least in the examples he cites. This is the idea that these processes fully determine all of our choices. We could not have chosen otherwise. (The mind, if it could even be said to exist, is always a mere passive observer.) To have done so would have required different conditions, i.e. different causal factors. But such different conditions themselves could not have existed—because things couldn’t have been otherwise. This is pretty much the philosophical consensus today—at least, no one has been able to argue themself out of it in the current paradigm. There is no self and choice of any sort is an illusion.

By contrast, for Aquinas, “We are moved by the desires and loves before us, not pushed from behind by a plethora of deterministic causes” (Hill, p. 101). In other words, our “desires and loves” act as future attractors pulling in their respective directions, and we have the power of choice over which we follow. We aren’t “caused” to do anything; we are our own cause. As such, “our character, emotions, and moral state influence, and are influenced by, our choices” (p. 103). Essentially, “we become good or bad by choosing good or bad actions” (p. 107) and “Human personality is integrated by making a consistent pattern of choices over time” (p. 109).

The psychological worldview

Lobaczewski holds Thomas Aquinas and the natural law tradition in high regard, but he has one criticism: it is psychologically naive and unrealistic. This comes through in Hill’s presentation. Aquinas had a complex and nuanced understanding of choice (a five-phase process involving the interplay of intention/volition of an end, the decision whether or not to achieve, deliberation on the appropriate means, selection of means, and execution of action); some corrupting factors on moral reasoning (like a bad culture, bad arguments, or a perverted character); and the fact that, like any capacity, “moral reasoning must be honed by education in order to serve its function” (p. 135). So Hill, and Aquinas, admit to certain obstacles. Moral understanding and good character can be corrupted from without, misled, obviated by our own choices, and simply left undeveloped. However, Aquinas lacked a deeper understanding of both natural human variation and the instinctive-emotional processes affecting choice.

So, when it comes to responding to modern psychologists, Hill simply rejects their extreme positions (rightly so), but doesn’t attempt to reconcile the above nuances with their more reasonable insights. It’s not exactly a straw man, because he’s responding to real positions. But at the same time, I can’t help but feel there is a lot left unsaid. By only rejecting the extremes, Hill often gives the impression that the natural law grossly underestimates the obstacles to human freedom. That is, it seems to dismiss the power of the past (the so-called deterministic causes).

For instance, he summarizes Freud’s worldview like this: “The human psyche was, in his view, hopelessly fragmented, causally determined, irrational, largely unconscious, and deeply antisocial at its core” (p. 170, my emphasis). Fair enough. Naturally, this is inconsistent with the natural law; it’s also a schizoidal misrepresentation of human nature. But it’s not entirely without merit. Let me rephrase it in a more reasonable form: “The human psyche is fragmented, but not hopelessly; causally influenced to a large degree, but not totally; often irrational, but not wholly so; and has the potential for extreme antisociality, and prosociality.” I think all of this is demonstrably true, but Hill doesn’t give much hint as to how it would apply.

Another example is Clarence Darrow of Scopes Monkey Trial fame, who

… believed that human behavior must be understood in purely naturalistic, cause-and-effect terms and insisted that what traditionalists regard as free choices are really nothing but the inevitable consequence of heredity, environment, and the panoply of background conditions that operate on each of us throughout our lives with unerring efficacy from moment to moment. … Darrow recognized that if determinism were true, it would encompass and excuse all behavior … (p. 181, my emphasis)

Again, this is to say nothing of the unerring influence of heredity, environment, and background conditions (like subliminal processing) which shape and limit our range of options. (Also note the left-hemisphere tell: “nothing but.”)

Aquinas argued that there were “two necessary conditions for moral and legal responsibility”: an act must be performed “knowingly” and “freely.” That is, we must have the capacity to reason about our situation, and we must choose our action. Responsibility is absent where we are either coerced or experience a failure of rationality, “as with infancy, insanity, or other defects of reason,” or when we are mistaken about essential facts. Heated emotion is also a mitigating factor for Aquinas—an act of passion is less blameworthy than one of premeditation.

We still largely hold to these standards today, and few would argue with them, but this is another spot where Aquinas’s lack of psychological subtlety shines through—a flaw shared by liberal thinkers for whom “all men are rational.” There may be many human universals, but we are not created equal, and when it comes to character, rationality is one of the worst standards by which to judge it. This is Lobaczewski’s point. Here’s how he put it in Logocracy:

In humans, instinct is somewhat less dynamic and more plastic [than in animals], which opens the possibility of rational control over its manifestations. … Good upbringing should aim at working out a harmonized cooperation between the instinct and the intellect, so that the human being will benefit both from the wisdom of nature coded in his instinct and also from the ability to control his involuntary reactions.

This instinctive endowment of man shows discernible inter-individual differences. People differ especially in its dynamism or its ability to give way to rational control. There are also differences in its richness of content and its sensitivity. Nevertheless, in the vast majority of people, this apparatus is normally rich and typically human.

Does this count as another “failure of rationality”? It sure sounds like it to me.

Nor is rationality, in the sense of a highly developed intellect, necessarily a sign of character. It is possible to be both highly rational and highly immoral and detached from reality (see McGilchrist on “hyperrationality”). As Dabrowski put it, a “brain like a computer”:

COGNITION Level I [out of 5 levels] Cognitive activities and intelligence are in the service of basic needs (self-preservation, feeding, aggression, sex, etc.). Intelligence is directed exclusively toward the external world in order to find means and methods necessary to satisfy the primitive needs of the individual and the group he belongs to. Cognition may operate in complete isolation from other forms of behavior, which most often are quite primitive. For instance, scientific and scholarly specialization (usually, though not always, narrow) can reach high level of achievement without concurrent development of essential emotional and instinctive functions, i.e. there may be no consideration for others, no sense of relationship with others, but primitive sexuality, self-enhancement, or need for power. (Multilevelness of Emotional and Instinctive Functions)

It is precisely the emotional-instinctive functions that are transformed in one with “good character.” But you won’t find this in Aquinas.

So what is the solution? To affirm free will is not to affirm that all choices are free to the same degree, or all people, for that matter. Yes, moral reasoning must be developed, but this comes much easier for some, and is impossible for others. The key point is acknowledged by Hill but not developed in any great detail: certain conditions can make it “difficult to choose a morally responsible lifestyle” (p. 188). That is, the top-down, future-oriented aspect of choice butts heads with the bottom-up, past-oriented aspect of physical reality.

Whitehead’s philosophy acknowledges this bi-directionality more explicitly. Here’s David Ray Griffin in Unsnarling the World-Knot: Consciousness, Freedom, and the Mind-Body Problem:

Surely, however, our psychological life is constrained by efficient causation—much of it from our bodies, in the form of hungers, thirsts, desires, pains, pleasures, and bodily limitations—as well as by ideal norms. Many of our decisions, in fact, notoriously involve a tension between these two constraints, as in the conflict between desire and duty. The panexperientialist version of physicalism does justice to this fact by portraying the mind in each moment … as having both a physical pole, which is constituted by the causal influences from the physical environment, and a mental pole, which entertains ideal possibilities, including logical, ethical, and aesthetic norms. … In any case, from this point of view, psychology is not to be excluded from the “sciences” because it cannot provide laws as predictive as those of physics, chemistry, and cell biology. Rather, the test is whether it provides true, testable knowledge about its domain, the human psyche. Part and parcel of such knowledge would be knowledge of the degree to which the mind can transcend efficient causation on the basis of normative ideals. (Griffin, pp. 240-241)

On that last sentence, here’s Lobaczewski:

The more progress we make in our art of understanding human causation, the better we are able to liberate the person who trusts us from the excessive effects of conditioning, which has unnecessarily constricted his freedom of proper comprehension and decision making. (PP, p. 18)

There are some individuals for whom bottom-up causation is much stronger than others. Dabrowski might say they don’t even have the capacity for any meaningful top-down influence. Character development isn’t merely the establishment of good habits. It is the progressive transfer of control from lower instinctive-emotional functions to the autonomous self, through the process of positive disintegration. This is Dabrowski’s psychological way of framing it, but it is also fundamentally Christian (or, put another way, Christian psychology is fundamentally reality-based). One must “die” in order to be born. The old structure must break apart in order for a new one to be established. This is the kind of depth missing in Aquinas’s picture of the human psyche, but present in a work like Dabrowski’s Personality-Shaping Through Positive Disingegration.

The influence of the past can be implacable. And it’s not just a matter of being poorly informed, living in a vicious culture, making a string of poor choices, or being lazy. It can be all those things, but more. External factors (biology, upbringing, social conditioning) may not completely determine our choices, but they definitely restrict them, sometimes to a quite limited range of options.

Blunt-force trauma to the brain is a good example of “efficient causation,” and it can radically change your personality. One of the turning points for Lobaczewski was the discovery that crime and bio-psychopathology are intimately linked, whatever the cause: brain trauma, developmental disorders, heritable personality traits, pathological social influences. (Adrian Raine makes a similar case in The Anatomy of Violence.) It’s not simply a matter of “people making bad choices.” Yes, they do make bad choices. But they make them because their bodies are broken in some way, sometimes fundamentally and permanently. Their range of options is severely limited in a way that a normal person’s is not.

Out bodies, by analogy, define a strict range of physical motion and ability. There’s an upper limit to the heights we can jump, the speed we can run, and the reach of our kicks. Some are more limited than others—weak calves, lost limbs, debilitating illness, or other forms of physical weakness or degeneration. A quadriplegic will never be able to deadlift. And a psychopath will never be able to feel empathy or develop an authentic character. That’s just a fact. This is why for Lobaczewski moralizing is simply not appropriate when it comes to personality disorders. Moralizing only works on people capable of moral development. Aquinas recognized the mitigating effect of insanity. Lobaczewski thinks we should add moral insanity (the original name for psychopathy).

Punishment

But as Hill observes, this opens up some uncomfortable questions and perhaps dubious conclusions. One of the tricky questions when it comes to criminality, psychopathy, and psychopathology more generally, is that of legal and moral responsibility. On the one hand, the growth of psychology as a discipline and the progressive liberalization of laws have led to the extreme of some arguing that all crime is psychologically (or socially) determined, and therefore criminals cannot be held morally or legally responsible for their acts. On the other, there are those who still believe in an iron law of moral punishment. Dura lex sed lex. The law is harsh, but it is the law.

In the traditional view, punishment is strictly retributive and serves to repay moral debt. This is rejected by modern conceptions “in favor of a forward-looking or utilitarian conception of punishment that places more emphasis on punishment as a tool of social engineering than on its primary retributive function” (p. 189).

Such a therapeutic, utilitarian view can lead to absurdities: “horrible acts will be underpunished in cases where some lesser punishment achieves all that can be achieved in a particular case,” minor crimes may be overpunished (e.g. cutting off the hand of a petty thief),¹ and “factual guilt is not even required in cases where punishing the blameless will avert some greater social calamity,” e.g. scapegoating (p. 206).

This forward-looking utilitarianism takes various forms today. While there is still a retributive aspect to incarceration, it is generally thought to deter others from committing crimes (general deterrence), deter the offender himself from committing future crimes after release (specific deterrence), reform him (rehabilitation), and/or keep him from committing more crimes while in prison (prevention).

But these views aren’t necessarily inconsistent. As mentioned in a previous post, consequences aren’t irrelevant in a natural law perspective. And ignoring them can also lead to absurdity. What if some punishments lead the offender to commit even more crime? Was it worth it? What is better—a reformed criminal who cleans up his act and becomes useful to society, or a thoroughly punished criminal who continues to be a thug for the rest of his life?

This seems to be the case with deterrence, at least in the U.S. As I noted in the footnotes to Logocracy, prison actually creates more crime, both within prison and after release. The only conditions where it actually has a deterrent effect is when punishment is swift and certain (i.e. you know you will get caught). As for rehabilitation, by contrast, it does work, if prisons are run right.

On the rehabilitative model, Hill cites Karl Menninger and Barbara Wootton, both of whom “dismissed the individual moral dimension of crime in favor of a view of criminal behavior as driven by heredity and environment.” Wootton thought that most crime should be treated as a “social-psychological illness” and that “preventive detention was the last resort for habitual offenders who could not be cured” (p. 198). This is actually pretty close to Lobaczewski’s ideas, but again, he was not a strict determinist.

A strict determinist legal system “would tend to treat all offending behavior as unalterable personal conditions that should be treated rather than punished” (p. 197). But what about a more reasonable model, which sees the personal conditions not as unalterable, but as contributing factors?

For Hill, cushy rehabilitative facilities would undermine “the deterrent value of punishment” (p. 198). But what about a system that limits punishment to those levels where it is effective, and also stresses rehabilitation, as seems to be pretty effective in Norway?

Additionally, if the goal is to rehabilitate, “periods of detention could be potentially much longer” than otherwise. I don’t see why that’s an issue in practice, when rehabilitation is combined with maximum sentences for minor crimes. Plus, we already have life imprisonment. If a serial killer can’t be reformed, either execute him or keep him locked up.

Lastly, instilling a determinist worldview “would undermine the very wellsprings of self-control” (p. 199). This is not a problem when determinism is rejected in favor of a model that emphasizes freedom as the transcendence of efficient causation (Griffin) or the liberation from excessive conditioning (Lobaczewski). To learn how little control one has over one’s passions is the first step toward developing self-control.

When it comes to punishment, our ideas and practices have to come into alignment with the truth about human variation and psychological causation. Like it or not, just as our understanding of insanity led to a rethinking of punishment, so will our understanding of the biological and psychological factors behind crime. (For more on what Lobaczewski thought this would look like, see here.) We do not need to give up the best aspects of the classical worldview in order to do so. And we do not need to abolish the police.

1. It seems to me that this is more of a theoretical danger, but in practice is more likely when retribution is the prime motivation.