Posner on Stephen: Punishment, Hatred, Struggle, and Power

I’ve never read the work of the Victorian judge and legal scholar James Fitzjames Stephen, but I am familiar with his famous statement that “it is morally right to hate criminals.”  Richard Posner contextualizes this statement with some interesting commentary about Stephen in a new essay in the Ohio State Journal of Criminal Law.

As Posner reads Stephen’s work (principally, his three-volume history of English criminal law), Stephen was not really a moralist, but a utilitarian who saw practical value (for him, the same thing as moral rightness) in harnessing the public thirst for vengeance against wrongdoers.  Posner puts it this way:  


[Stephen] thought it useful to encourage, in the name of morality, the hatred of criminals because, as I have already noted, he feared that without popular hatred of criminals the criminal law wouldn’t “work.” It was important, for rather obvious reasons, that it work. This is still the case, because while our criminal law system (and England’s as well) is now dominated by professionals, who chase and prosecute and punish criminals not out of hatred but because they are paid to do those things, these professionals depend heavily on private citizens for aid in enforcement, including crime victims, the victims’ families, bystanders, jurors, and others who usually have no pecuniary stake in assisting in the apprehension and prosecution of criminals. The widespread popular support for capital punishment and other severe punishments, and the widespread popular opposition to legislators and judges perceived as “soft on crime,” are based to a great extent on hatred of murderers; and so if you fear crime and believe in deterrence, you think it morally right to hate criminals.  (268)

. . . Emotion, specifically vengefulness, is simply an alternative motivator to career incentives for bringing criminals to justice.  (268-69)

. . . It was not that [Stephen] thought hatred was the basis of criminal law, but that he thought the law would not be effective unless criminals were hated. Indeed, he famously said that criminal law was to the passion for revenge as marriage is to sexual passion: that is, designed to channel and regularize, not to magnify.  (269)

Posner recognizes, though, that a dry utilitarian account like this does not really capture the nature of Stephen’s emotional engagement with the subject of punishment.  Posner thus turns his attention more broadly to Stephen’s “obsessive” interest in force, which Stephen saw as “about the most interesting and important thing in the world.”  (269)

Posner offers numerous illustrations of Stephen’s “force talk,” including his defense of Pontius Pilate and his dismissal of the Sermon on the Mount as a “pathetic overstatement of duties.”  Here’s my favorite, though:

[I]t is impossible to lay down any principles of legislation at all unless you are prepared to say, I am right, and you are wrong, and your view shall give way to mine, quietly, gradually, and peaceably; but one of us two must rule and the other must obey, and I mean to rule.  (271)

Seems to me a perfect restatement of the attitudes we see expressed in Washington right now in the current debates over fiscal policy.

From whence came Stephen’s evident delight in social conflict and the naked exercise of power?  Here’s what Posner says:

[In Stephen’s view] human life, like the life of all other living things, is simply a struggle for survival and dominance; “civilization” is a veneer, or, at best, an instrument, a form, of force. This is an insight that long antedates Darwin . . . . The association of Stephen with it is only slightly obscured by his emphasis on religion and morality; he himself seems to have been an atheist, for whom religion, morality, and criminal law had the identical function, which is that of repression. They are instruments for enforcing the dominance of the ruling class. Stephen thought the rulers benign, and so his power worship could coexist comfortably with his utilitarianism.  (272-73)

It was natural for Stephen, as a member of the governing class of a great empire, to revel in dominance . . . . The celebration of dominance and the contempt for the average, the weak, and hence for equality, are two sides of the same coin . . . . (273)

Although Posner thus depicts Stephen as very much the product of a particular social class at a particular time and place in history, he also sees considerable truth in Stephen’s claims about law, morality, and power even as to our own time:

[Stephen was] right that law is force shaped and applied to conform to the interests of the dominant forces in a particular society. Morality is merely another force, with a similar origin in self-interest. Our judges are Pilates too, and the Sermon on the Mount continues to be observed exclusively in the breach. Brutally expressed as Stephen’s apothegms are, they contain more truth than falsehood. We have outlived James Fitzjames Stephen, and virtually forgotten him. We have not outgrown him. (275)

True that.  The psychology that Posner associates with Stephen–that gleeful, celebratory attitude toward social dominance, toward the use of force by the strong to control the weak–strikes me as a tad more pathological than Posner seems to think.  One way or another, it does seem to me an important, if inchoate, subtext to much of our criminal-justice politics.  Why is it that we have come to use criminal punishment as our standard response of first resort to social problems?  (See, e.g., Jonathan Simon’s insightful work on “governing through crime.”)  Why is it that America’s prison population continued to grow year-by-year to unprecedented heights long after our crime rates began a precipitous, remarkably sustained drop in the mid-1990’s?  The answer, in part, is that criminal punishment is the most overt and dramatic way in which the strong of our society exercise power over the weak, which is something that fascinates and excites many of us no less than it did James Fitzjames Stephen.

I am reminded of a post of mine from last year, reacting to Michael Cicchini’s effort to rally public support for stronger constitutional protections for criminal defendants.  My response was less than hopeful:

I close with a parable that has been much on my mind of late.  Athens and Sparta, the superpowers of ancient Greece, went to war in 431 B.C.  The struggle, known to history as the Peloponnesian War, dragged on for two decades, with relentless brutality on both sides.  Athens, with a dominant navy, controlled the seas, while the Spartan army was nearly invincible on land.  Taking advantage of their naval strength, the Athenians seized a number of island-nations that had been connected to Sparta.  They met resistance on the island of Melos, which had attempted to remain neutral in the war.  Eventually, the Athenians dispatched an overwhelming military force to overcome Melian resistance.

Before attacking, the Athenians sought to negotiate a surrender.  A delegation of Melians then met with the Athenians.  However, if the Melians hoped to convince the Athenians that they were in the wrong — after all, Athens was attempting to subjugate a neutral country; the Athenians were plainly the aggressors — these hopes were immediately dashed; the Athenians made clear that they had absolutely no interest in discussing right and wrong.  As recorded by Thucydides, the Athenians announced:

“For ourselves, we shall not trouble you with specious pretenses — either of how we have a right to our empire because we overthrew the Mede, or are now attacking you because of wrong that you have done us — and make a long speech which would not be believed . . . . [Y]ou know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”  (Book V, Richard Crawley trans.)

This expression, it seems to me, captures an important dimension of American attitudes toward those who bear the brunt of our nation’s law-enforcement efforts — right is only in question among equals, while the strong do what they can and the weak suffer what they must.

Posner’s essay was published as “The Romance of Force: James Fitzjames Stephen on Criminal Law,” 10 Ohio St. J. Crim. L. 263 (2012).

One Reply to “Posner on Stephen: Punishment, Hatred, Struggle, and Power”

  1. The “might makes right” not only underlies much of our law, criminals who thinks themselves “strong enough” do what they can, the rest of us must suffer the consequences. As long as “good” people employ this evil rationale, how can it be a surprise those who are “not good” do the same? Thus the cycle of violence, of crime and punishment is fueled.


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