Criminal Law, in the light of the principle of compensation

From The Righteous State
by Severin Christensen

12.—Criminal Law, in the Light of the Principle of Compensation

The first task which a state power has to solve is its guarding of the domestic legal system. It concerns the demarcation of the rightful areas of property and the securing of each to his own (suum cuique). To follow this principle into its specific modes of use, it is not enough to explore the structure of the legal institutions, its working methods and its responsibilities; one also has to systematically go through all of the existing legislation. But especially the last part of that task would become too complicated; furthermore there are parts of the legislation, of which such an investigation is less important, because the demands of the practical life in itself has a tendency to pull the conditions in order and to balance the interests so that the legislative rules, which are fastened by tradition, inadvertently become expressions of what life together demands and therefore only with difficulty can slink too far away from the ethical justice. This could for instance be said to be the case with a large part of the provisions of the law of contracts and torts, about provisions of promises and contracts, about creditor and debtor, about damage compensations and counter-claims, about buying and selling, about vouching for and surety etc.; that these topics have a natural tendency to make their own rules, immediately apparent from the basic demands of life itself, can also be glimpsed by the conspicuous international concord between the laws of contracts and torts in the various countries. This of course comes from the fact that the interested parties are facing each other and mainly are called upon to take matters in their own hands; under these conditions the traditional prescript could only be such that it secured each to his own by and large.

We find a completely different scenario in criminal law; here the state power has long ago moved itself in between the two parties with its special interests and objectives; this leads to a shift in the relationship between the victim and the perpetrator; the provisions of the criminal court might therefore easier wander astray than for instance the law of contracts and torts; and if, as in our times absurd ideas about the role and the responsibilities of the state power had been formed, one could be certain that they would meticulously be reflected in the criminal law.

It can be acknowledged historically[1] that punishment in its modern sense is a rather late phenomenon. In older times there was no use for it; the legal disputes led to private compensation, which were often settled by private agreements. So that these not often should lead to nothing, in became apparent that it was worthwhile to place a mediator between the two parties, who could be of help by the assessment. But from the outset his role was purely as an advisor, without any authority to govern; by every crime the offended part reserved his right to full compensation for the damage done and to take part in the assessment of how big the damage was. There was no state power yet to pull the decision out of the hands of the directly involved parties on the pretext that in reality it was itself, which has the offended part, and that the case should be settled by it. The state also was a late product; on the level mentioned it is still rather impotent, works only provisionally at times of war, and is only just tolerated. But from the moment when the state gains footing and power, the whole judicial system and the jurisprudence begin to change their character; the representative of the state has hardly got a foot into the judicial decision, before the attention towards the fighting parties gets second priority and the own interests of the state power gets the first.[2] Instead of mediating we get language of power, instead of attempts to agreements – as the legal proceedings in Ancient Times was nothing more – we get judicial decisions, convictions. An instead of compensations for the offended, settled by agreements, we get punishment.

And with this the whole line of development was entered, of which we have hardly seen the last yet, and which principal view is that in most crimes it is actually the state, which is the offended part; the criminal is first and foremost a troublemaker, disobedient and obstinate against the state power. Therefore the considerations concentrate first on how with all means to force him to obedience and if possible prevent reiterations. It is not questioned, whether the means are fair – only whether they are expedient. And through the modern buzzword the ‘human’ the punishing authorities adopt the perspective of a ward towards the criminal, which completely deprives him of any legal protection and exposes him to an arbitrary treatment based on loose assumptions about his total character and his previous way of conduct. Absolutely in the background come the considerations towards the offended part, which one is not compelled to admit any interest in the case.[3] For him the punishment seldom carries a message; whether the offense toward him is softened by it, whether he can consider himself satisfied or having received reparation, no one asks – he has completely become excluded from the game. And even more peculiar: nor can the criminal get justice; his claim to receive a fair punishment is just as little taken into account. Also the criminal should have the right during the sentence to get inkling about, which objective standard his misdemeanour has been weighted against[4]; but is denied him. The severity of the punishment is to a large extent based on the more or less subjective view of the judge or the prison governor.

In front of this principle, which we point to here, between an old and a new view on crime, the differences pale between the many different theories about punishment, which current times have used it ingenuity on. The theories of deterrence, the theories of prevention, the theories of self-defence, theories of the threat of punishment, theories about correction etc. etc. all meet in their aim to put aside the consideration for the offended part and turn the state power into the only part, which has a relevant interest to exercise. They are all manifestations of the modern infatuation with the omnipotence of state power.

Yet against these views another derived from more natural ideas of older times can be presented, which turn the consideration of an equal atonement or reparation into the centre of the reaction, a crime naturally must invoke; a principle, which demands that when help from the state in the matter of a crime is asked for, then the state power cannot on its own behalf go further than to maintain that full compensation is offered, and that this goes to the rightful person. Then and only then the rightful interests of all parties will be served, and the state power keeps itself within its proper limits. As we shall see beneath this view does not necessarily imply that the interests of the not directly harmed, the general interests of society, are ignored; on the contrary its objective is to recognize any apparent call for compensation.

These thoughts have been met with great resistance among the followers of the newer criminalistics school, which in numerous publications have revealed that they only know of one kind of moral, that is the welfare moral[5].

If one has learnt from our meditations about this subject to understand which unlimited uses of power this moral system has been organized to defend, one may well understand how these indeed must make the criminologists indignant to the bottom of their souls, when someone would want to limit the punishing authorities only to establish justice, instead of distributing welfare towards the criminals such as a pedagogical governing treatment, which as it is means the wildest arbitrariness.

Our demand that the punishment should first take into account the deed and aim at repairing this, and not of defining the special personality of the offender, his former life etc. has led to accusations that we should want to dig up the old theories of reciprocation (such as theories about revenge). They can or will not understand the difference between demanding compensation of a man and of inflicting injuries on him. Can it also be called revenge in private life to demand compensation from the man, who ruins your window pane?

What we have wanted to establish about the criminal law is yet just this: when a man has broken the law, he must try to make amends for what has happened; if he does not want to do this voluntarily, or if it is not trusted that he will do it voluntarily, he shall be forced to do it, if necessary by personal productive labour. And this disbursement should be assessed as a certain proportion to both what he has done and towards whom he has done it. One must trust that if this was carried out in reality it would also be the best education to social behaviour, as an understanding of the social laws are communicated to him, which he until now lacked.

How far in the details this actually can be fulfilled cannot be determined without experience; this is a task for the criminologists. From the side of the moral of justice it must be maintained that this principle of justice is the one which first needs to be lived by, as far as possible. If a breach of law based on its objective character is seen as a material loss of value, and if the reaction is assessed after its positive worth of substitution, a common denominator is added. And even though the balance in each case may meet many difficulties, it remains after all mostly a matter of quantities.

A completely different matter is it that crimes exist of such a nature that economic compensation to concrete individuals loses all of its meanings whatsoever. But the moral of justice is not built on material compensation alone either; it goes deeper and is fully aware that any injury in the end attacks the soul, and much harm is such that it only is possible to compensate for it through very specific disbursements. An offence towards a friend cannot be obliterated by sending him a cheque. A violent robbery in a village leaves behind so much of a spiritual uneasiness, that economic compensation alone would be meaningless; so the fear and unsafety raised by the criminal demand and justify this measure, which solely might stop it, the immediate compulsory guarding of the criminal.

What we say is simply that the economic fine must be the normal method. That the monetary fine is an excellent means of punishing in cases suitable for it is acknowledged by most criminologists.

Since the fine in many cases is uncollectable, an idea, which presents itself is to obtain it through forced labour, if possible under free conditions, and then to seize a part of the salary. If the one, who was unable to pay the fine, and who also not voluntarily would pay instalments out of his salary to it, would have to pay it through forced labour, any call to preserve prison would cease, since even a bad and lazy worker easily in freedom would earn more to pay the fine than through the work, which the punishing institution would be able to find, and which always would be very badly salaried.

It is another matter that an offence cannot always be considered atoned for, by the mere re-establishing of the exclusively material balance; that for instance in case of a theft let the thief only re-install the stolen amount. A full atonement would demand that the victim also received reparation for what he has mentally suffered by the offence (fear, insecurity, humiliation, loss), and so far that this to some degree can be helped through material compensation, the fine could be differentiated between two elements, the purely material compensation and an atonement for the mental injuries caused by the offence.[6] And while it still would be correct to let the size of the fine reflect the gravity of the crime, the personal conditions of the offender might be taken into consideration when it comes to the second element.

All reparation is, in reality, mental. But just as loss and abuse, at their kernels also mental, also can be caused by the most diverse means, so are also the measures leading to a mental healing or reparation varied.

There is a line of crimes which must be considered from this point of view, which is all the violent actions and crimes, which stir the minds in wide circles; which so to say frightens the whole society. Apart from the immediately offended, who certainly do have a right to compensation according to the now mentioned principles, in this case there are all those, whose mental rest has been disturbed. To compensate this common fear materially is an impossible thought. But even if it was attempted to find material means in sufficient numbers, it would not be sufficient, since unruliness and fear are mental sufferings, which demand counterbalance of a special kind. So we are forced to admit that cases exist, in which the material compensation of values is not enough, and where it could be just, if the state uses means of a special character towards the troublemaker, means, which have the intentional effect on the particular mental sufferings, which have been the result – since all the means of the legal system leads back to the reparation of the mental balance. Fear usually demands an immediate guarding against the danger, and the hurt feeling of security may demand qualitatively changed measures so that safety can become reinstalled.

The question to which extend forced labour outside of prison can be used is exclusively practical.

A lot of experience in this field is already available:

From 1899 convicts have worked outside of the institutions in plantations and beds of marly. The conditions for the prisoners have been good and the output of the labour likewise. Albert Dam writes in Gads danske Magasin 1913, that approx. 1000 Danish convicts may be considered fit for punitive work. “Possibly a correction system which was self-sufficient could be created.” Furthermore he remarks that it seems as if the correctional institutions understand how to groom ‘good prisoners’ just as much as they take away the ability to live a life in freedom.

As of 1914 a piece rate has been introduced for the prisoners for what they do apart from their duty call. But why is the labour put at a lower rate than elsewhere? In the Sing-Sing prison a full salary is paid, and the prisoners must out of that pay for their residence.

Goll, who has studied the conditions at a closer range writes that the labour was of great interest to the prisoners, not the least because they realised that they benefited the country and “in this way in the most beautiful way restored some of the damage they had accomplished through their crime.” Individuals, to whom all previous punishments and ways or correction had proved to be useless, have become honest.

The pleasant thing about these experiences is the perspective they point to, of opening the prison door. It is acknowledged that the imprisonment really only is of minor importance as a means to enforce the taking up their duty – “if this can be accomplished without imprisonment, so much the better, the experiment should rather be tried too often than too seldom” (Goll). There would probably always be a few to be found who cannot work on their own, but need surveillance. Possibly it also might be done by having reliable people vouch for the person[7].

If a theoretician all of a sudden stood up and declared: I think that enough prisons have been built in this country, we do not need more; on the contrary we can close down most of those, we have. We should just, when someone had committed an offence, instead of incarcerating them in pointless loneliness or in demoralizing company, let them work, as far as possible under free conditions, out in life with other people, so that they instead of becoming more and more estranged to the conditions of life can preserve their social abilities and have them strengthened – then people probably would duly shrug and consider it to be fancies. Now, since it is practical prison governors, who have themselves gained the experiences, we have mentioned, it cannot be denied as fantasy, when one considers the compulsory production of value made the cornerstone of the treatment of criminals in the future.

It is, however not done by that. The legal conscience demands one step more to be taken. It is not enough to have realised that the criminal is capable of producing value; if justice should be fulfilled in the sense of criminal law, it must be arranged in such a way that these values becomes the profit of the right party, which is the offended[8]. And the criminal must expressly be made aware that his output will benefit the one, who was harmed by his offence, and that it will balance the size of the loss.

In the connection of these two ideas – the demand that the criminal should be asked to deliver a compensation of equal value to his offence, and that he should pay it to the right person – the seeds for future rightful general treatment of criminals lie, of which the main principles undoubtedly shall be these: if any compensation is not offered voluntarily through an agreement between the parties, – either in actual material articles or in the result of acts of labour under the freest conditions possible, – compulsory compensation should take place as fines, which can be collected or as forced labour under differing conditions, from the mildest control to the strongest (perhaps in punitive institutions), as necessity has it. The details in this system can of course only be developed through practice.

It must be carefully noted that this modus operandi not as a first is aimed at the character development of the criminal; its main element is to shift justice between the two parties. But therefore it would be outright unfair to close one’s eyes to the probable side-effects of these preventive measures; and soon it will become obvious that it is difficult to find a means which could possibly better affect the character in a more social behaviour. Since what is happening is that the criminal is confronted with the social consequences in their naked reality; if he has until now known how to escape them, so the punitive administration now helps him to feel them in their totality. It is impressed on him – as little through sermons or preachings, as through barbaric measures – but through life’s own urgent language, what the conditions for living in a socity are; and what it cost, exactly what it cost, to break the perpetual laws of society. He is not as through passive idleness in prison becoming more and more antisocial in character and abilities, and made insufficient to live under free condition, but he is kept in perpetual contact with the great, breathing social organism and can have his character corrected through the life together with righteous and hardworking fellow citizens. Anyone is susceptible to acclimatization; much depend of the conditions in which a human being is placed, and there is no danger that society generally should not possess health enough to overcome criminal tendencies without getting harmed itself.

And what other guarantee is there in the for a social conscience than the willingness to fulfil the social obligations? Is it not a far more reliable proof of a change in character than the contrition, the signs of conversion etc. which the prisons are so busy establishing?

The advantage of this way of acting is not as it has been thought that it is a more felt punishment – even though the duty to work by many probably would be felt as the bloodiest injustice; the advantage is simply that the criminal comes to experience the natural resistance of society in an unmerciful way.

Furthermore it must be considered a great advantage that appeals to his wish to participate can still be voiced so that he can be to a certain extend his own master as to how quick he wants to work himself free and that every reminds him that dawdling punishes itself.

When the treatment of the criminals outlined above was to be considered the general method, it already implies that there are cases[9], which more or less have to divert in practice, but not in principle. Hence, that recidivist crimes have to be punished harder is not a breach of the principle; the material substitution of lost values would be rather the same, even though a similar theft had been committed several times before, but the compromising of the feeling of safety expands in geometrical progression by every repeat, and this is sufficient to justify seriously increased sentences by recidivism. Still it is what has happened which must dictate the measure for the rightful punishment, not what can be feared in the future.

The same goes for the generally dangerous criminals and their treatment. In accordance with our complete line of thinking it is recommended to speak of the crimes instead of expressing common thoughts about generally dangerous criminals, or dangerous or even incorrigible recidivists; about the actions, not the persons. It is a question, whether a court of law ever is authorised to judge: an incorrigible recidivist; after all, it is just dealing with one or more relapses. No one loses their legal protection, even though he may be guilty in quite a lot of crimes; whether he is incorrigible or not experience cannot say; experience can only move backwards; but from what has happened one can never conclude with absolute certainty what will happen, when a person’s mental life is concerned; and even if it could, it is not the mentality which is the target of the ruling.

It same goes for the caption dangerous criminal; this is a psychological definition, which concerns the interval between crimes, but actually is of no concern to the judge; it will never allow him to measure the punishment arbitrarily. It is not because of the intervals he shall be punished. According to the theory of compensation one will therefore never receive long imprisonments based on deep-rooted small offences.

What we are dealing with are certain crimes, which are of such a kind that the general feeling of safety becomes violated. This demands undoubtedly special mentioning. There are violent actions and similar offences of such a frightening nature – even though it is the first time, they are committed – that it has be asked whether the general population may feel satisfied by the means which have been mentioned above. Since as mentioned above all harm basically is mental, the unruliness and fear, which arise in the society as a consequence of a violent crime, demands means of healing of a special kind. The fear created by the criminal therefore demands and justifies the means, which is solely capable of stopping it, an immediate forced securing of the criminal. This is not a breach of the principle; the principle is based on mental restauration, and for that means must be used which are the only ones to lead to that.

The principle of justice does not at all rule out an individualizing of the action the reaction aimed at it, as long as the proportionality is not shifted. Just as material values not are the only ones, which can be attacked, so the reparation knows other qualities; the character of the crime leaves in this respect plenty of latitude. When it comes to carelessness the may be reason to use another kind of punishment than for acts which evidently reveal ill-will. The reparation must be as complete as possible on all levels; and when it mainly concerns a shaken feeling of safety, both security and other means effective to restore security (also to a certain degree pedagogical means) would be defendable – yet everything within the stated proportions relative to the type and importance of the offence and respecting the equality before the Law. If one also uses means which might be considered to bend the character of the generally dangerous, this is out of humanitarian reasons – for his sake – but a part of the security system.

So a certain class of criminals would be left, which it would be necessary to punish with imprisonment. Also these convicted would have to be activated with productive work, since they also have values to compensate for, among which are also what their provisioning and residence cost the administration. The security ought not to be arbitrary, but must be measured by the unruly character of the crime. Den main principle is still that the criminal himself works away his debt (we do only condone exclusively preventive and securing means in cases of abnormal offenders).[10]

The guilt of a criminal can grow to such proportions that he might apparently never be able to work himself out of it, in which otherwise life imprisonment would be the proper consequence. To allow for a shortening, a pardon would be necessary; to do so, however, the condoning of the directly offended should be the premise, but furthermore – if the crime upsets the public – the accept of the public, which possibly could be revealed by a jury elected by the people.

When it comes to the death penalty it has been uttered that the attempts to have this punishment abandoned would be against the principle of retribution. But that only goes to show how little we now about the centre of this principle.

Above we have demonstrated that reciprocation is neither to understand as vindication or the primitive logic, which demands an eye for an eye, a life for a life etc.

A murder often means an economic loss to the bereaved, who had a claim on help from the deceased; it is apparent that this loss has more prospect of being covered, if the criminal stays alive and is forced to compensate with output from labour than if a death-sentence is consummated.

But the question which interests us the most is: could it be said to be prohibited according to judicial ethics to use the death-penalty?

There is no doubt that judicial ethics has to allow self-defence within reasonable limits. The person, who is being attacked, has a right to value his own life as highly as the attacker’s, and if he really is threatened on his life, he has the full permission to shoot down his enemy. In earlier days, when attacks were the rule of the day, and the state power and judicial institutions were relatively impotent, the death-penalty had to be considered the self-defence of the weak. Currently there is no reason to sport this view; the enforcement of the law hits so inevitably and has acquired such an authority that it is capable of using provisions which at once satisfies the general feeling of safety and security to the same extend as the death-penalty and which gives the criminal a greater access to a positive expiation. It is likely that the offended part or his family hold vindictive feelings or a bitterness, which in their eyes is not fully satisfied by that, but such subjective considerations cannot be taken by the legal system. One cannot demand that the court of law shall play the private avenger. If the judicial decision in any way shall play a part within the state, it cannot be demanded that the judge should appropriate one’s subjective view about the mental damage which has been done. The judge can and must not refrain from trying to seek out the means of expiation, which are of recognized value and which must be thought to be generally resurrecting; he cannot let it be of any consequence what the offended might ask as the sole reparation, with which to satisfy his personal feelings in this specific case. The court cannot dig down into all personal conditions, but must largely rely on average values.

It cannot be denied that there are losses which cannot be repaired with money; there are losses, which cannot at all be repaired. But the consequence of this is not, however, that economic values stand completely powerless; it must be held that to anyone in any situation they would have some meaning, and that it would therefore be unreasonable if the state not on behalf of the offended collected from the criminal that coverage, which is after all possible to achieve.

Therefore it is in absolute accordance with the principle of reciprocation – correctly understood – that the death-penalty is substituted by a – until lifelong – forced labour, whose profit goes to the harmed family. Objectively, it cannot be proved, that this should be a less fulfilling atonement than the death-penalty

[1] Natural right, ch. 8.

[2] Modern theory about Criminal Law puts on an equal footing the individual, the common good and the state as entitled to the guarding by the state power through an enforcement of criminal law.

[3] In the Danish legal tradition the victim of an offender do have the right during a criminal case to ask for compensation against the damage, he has suffered from the crime, unless the court finds that this would be of inconvenience, just as it is always possible for him to bring an action against him, see the Administration of Justice Act, chapter 89. But the state does not place at the victim’s disposal means of staking a claim against a criminal, and therefore such claims are often worthless, especially if the culprit is subjected to imprisonment and thus is deprived his ability to work for a long time. Effects, which have been taken from someone through crime or the profit thereof must, however, always be returned to the rightful owner, Administration of Justice Act §754.

[4] The theory does not consider punishment to be something assessed as compensation, but as something purposive. The purpose is to secure the general authority of the law and through that guard the rule of law.

[5] Younger Danish thinkers of criminal law, however, are not blind to the value of the principle of compensation. Hence, Oluf Krabbe classifies the general deterrence of the liability for damages above the punishment, which according to his point of view takes precedence, since the liability for damage in some cases where individually inflicted damage has not happened (for instance violation of the Road Traffic Act) would not create any general deterrence.

[6] About economic compensation for mental damage caused by crime, see Carl Popp-Madsen: Bod (Gads forlag 1933), in which he, while referring to this publication, and to Sev. Christensen, Axel Dam, and C. Lambek: Retsmoral, calls for a reform of the Criminal Justice Administration Act.

[7] According to the regulation dated the 10. of May 1917, concerning the carrying out of a sentence, consummation of the punishment in solitude would be an exception, and the principle would be that the prisoners are activated doing productive labour. As far as possible a piece rate salary should be paid, of which some should go to pay for duties to support and to useful purposes in connection with the release of the prisoner. Out of this should also damages etc. done to the prison by the prisoner be covered, but the salary cannot be requested to cover the losses of the part offended by the crime.

[8] This is, as explained in the note above, not possible according to current Danish regulations.

[9] In 1947 the actual ’dangerous’ criminals (assaulters) made up just 5 percent of all of those charged for a crime. The property cases made up 77 per cent.

[10] Through the Law of Criminal Acts of the 15th of April 1930 safe-custody was introduced for certain business and recidivist criminals who could receive this sentence instead of punishment, when considerations on behalf of society spoke for it. The decision about the length of the custody would be made by the Prison Board, made up of a judge, the prison governor, a psychiatrist and representatives from work with young people and released prisoners. As a further addition to the criminal law furthermore a remand home for psychopaths has been established, and a home for alcoholics, see The Criminal Act §70, according to which also placing in mental institutions or hospitals for the deranged etc. can supplant punishment, if such is found unuseful. Finally, access has through law of the 11th of May 1935 become available to castration through a court order of certain sexual offenders.