Anasuya Goswami talks about the idea of Lex Talionis i.e. the concept of an eye for an eye.
“The point which drew all eyes…was that Scarlet Letter.”
-Nathaniel Hawthorne, The Scarlet Letter[1]
When Hester Prynne in Nathaniel Hawthorne’s renowned novel was convicted of adultery, her punishment included wearing a scarlet ‘A’ upon her breast to signify to her community her delinquent status. ‘But that was the seventeenth century!’, you say. ‘And in a fictionalized Puritan America’. We, as twenty-first century citizens of modern states, have moved beyond such archaic methods of establishing ‘justice’.’ But have we, really? Modern judicial systems are rife with examples of public shaming and humiliation being used as instruments of the State to mete out punishments.
In an attempt to explore the legality and legitimacy of such State action, the researcher has reviewed the article Punitive Pain and Humiliation by Marquis Eaton.[2] The article having been written in 1916, stands mid-way between the penal systems of the seventeenth and eighteenth centuries it analyses and the present day, and thus provides for an ideal vantage point from which to understand where it all began, how it developed and what its status in present judicial systems is.
The focal point of Eaton’s work being the United States of America, the researcher has chosen primarily to examine related American literature and instances, but has also broadened the scope of this paper by inquiring into Indian examples. Having found significant similarities between the ideas of Eaton and Braithwaite, she has attempted to study them in conjunction while probing into the issue at hand and the interests of the various stake-holders involved- the victim, the offender, the State and the community at large.
In 1989, John Braithwaite in his work Crime, Shame and Reintegration,[3]propounded the theory of re-integrative shaming. It claims that stigmatizing and humiliating an offender, without making for any way for him or her to make amends towards his or her victim not only harms the offender in the sense that it paves the way for his or her disintegration from the community, but also increases his or her chances of recidivism. Thus Braithwaite emphasizes on the need to dissociate the deed from the doer such that by mutual communication between the offender and his or her victim, the doer may be forgiven and the unacceptable and immoral nature of the deed may be realized by the offender.[4]
Lex Talionis
Time appears to be on backtrack when one realizes that the idea put forth by Eaton, that loss caused to a victim by an accused cannot be objectively measured and more importantly, not be made right by causing an “equivalent loss” to the accused, made back in 1916 is being gradually pushed aside to return to notions prevalent in the fifteenth and sixteenth centuries, of creating an ‘equilibrium’ of sorts by answering a lost eye by damaging another’s eye, or a lost tooth by taking away another’s tooth: that ancient idea of lex talionis.
A recent case where a burglar was ordered to allow a man he had stolen from, to enter into his property and take away something worth proportionate to the item he had stolen comes to mind. So does the instance of an individual who had blinded another in one eye being ordered by court to wear an eye-patch, as punishment.[5]
Such a design of making sure that wrong done is wrong paid for blunders in the view that seeing the offender suffer is compensation for the victim and punishment for the accused at the same time. Moreover, ideas of rehabilitating the accused are completely done away with, and the intervention of the State seems to stop with the act of shaming itself. Authors like Garvey, however, claim that shaming is not the intended result of such punishments, as shaming requires an audience, yet there may be cases (as for instance that of the burglar being burgled) where they may be no audience involved. The purpose in this case, according to x, is to “educate” the offender, such that seeing his own offence “mirrored” on himself, he may be led to repent.[6]
Punishment thus is a moralizing opportunity for the State, when it can “speak to an offender without seeking a response from him in turn.”[7] A man convicted of a particular crime being ordered by court to attend Church is a relevant example.[8] The curtailment of a healthy dialogue between the State and the accused that a rehabilitative system calls for places the State on a God-like pedestal which allows the court to not only mete out arbitrary but also questionable punishments.
Shaming to Economize?
Whereas Eaton rejects outright the idea of shaming to punish, scholars like Dan Kahan[9] have upheld it on an economic rationale- prisons being expensive and overpopulated, shaming can “speak with a clear and commanding voice” without straining the State’s resources. However, whether one ought to opt for a method for the sole reason of its being cheaper to implement rather than one which is more correct (let us assume) but more expensive, is a relevant question that needs to be pondered upon. Garvey too relies upon the notion that shaming as punishments will not be effective on socially alienated individuals, whereas research has shown otherwise.[10]
A shamed offender associates with the act of shaming an “unpleasant emotion” that they would not want to relive: Ought this feeling not ideally be connected to the act of crime? Is then the purported objective of shaming-that of moral education- then really met?
To conclude, once an individual has been sufficiently humiliated- and thus, disintegrated from his community- he begins to believe he has nothing left to lose, and ultimately becomes involved in larger crimes. This is the point made by Eaton and Braithwaite, and agreed with by the researcher. To end by invoking Hawthorne,
“The scarlet letter was her passport into regions where other women dared not tread. Shame, Despair, Solitude!”[11]
[1]Nathaniel Hawthorne, The Scarlet Letter (Ticknor and Fields, 1850)
[2] Marquis Eaton, Punitive Pain and Humiliation, 6, Journal of the American Institute of Criminal Law and Criminology, 894-907 (1916)
[3]John Braithwaite, Crime, Shame and Reintegration, (Cambridge University Press, 1989)
[4] Joel Best, Review of Crime, Shame and Reintegration, 69, Social Forces, 318, 319 (1990)
[5] Stephen P. Garvey, Can Shaming Punishments Educate?, 65, The University of Chicago Law Review, 733, 736 (1998)
[6]Id.
[7]Id.
[8] Id.
[9] Dan Kahan, What Do Alternative Sanctions Mean?, 63 University of Chicago Law Review 591, 630-53 (1996). Kahan has appeared in support of shame on “The Today Show,” on National Public Radio, and in the pages of The Wall Street Journal.
[10]Supra Note 6
[11]Supra Note 1
