By Robert Gulack © 2005
The world we live in, David Hume tells us, is “the first rude essay of some infant deity who afterwards abandoned it, ashamed of his lame performance”; or the work “of some . . . inferior deity, . . . the object of derision to his superiors”; or, perhaps, “the production of old age and dotage in some superannuated deity.” In any case, Hume says, it is scarcely what we would have expected “from a very powerful, wise, and benevolent Deity.” Or, as Woody Allen sums it up, considering God’s advantages, He must be regarded as an underachiever.
Mark Twain says that, once you understand musical theory, you come to see that Wagner’s music is not as bad as it sounds. In much the same way, condemned to live in such an amateurish cosmos, full of needless suffering and the deaths of loved ones, humanity has pretended for thousands of years that the universe is not as bad as it looks. We have become experts in inventing factual claims about the universe, which we then teach ourselves to believe. The claims always fall into the same pattern. Whether you are listening to Christians, Muslims, Communists, or followers of Gandhi, they all tell you the same story. Only the names are changed.
The story is that, at a deeper level beyond what we can see around us, the universe is governed, fundamentally, by an all-powerful force that will, someday, make everything all right. The force may go under the name of Jehovah, Allah, or dialectical materialism, or it may be that principle of goodness in the universe that assured Gandhi that satyagraha would triumph – but we are always promised an inevitable victory. Not one of these movements has ever had the guts to say to its adherents what every honest general must admit to his officers – “Jeez, I have no idea how this will turn out, but we’re fighting on the right side, so let’s go do our best.”
There are two fundamental problems with making up these stories about guaranteed victory. First, forcing yourself to believe in factual claims for which there is no evidence turns your brain to mush, equipping you only for further acts of self-deception. Practice this habit of mental self-abuse long enough, and you will be left in the desperately enfeebled mental condition of the President of the United States, unable to perform the most modest act of factual analysis. Second, the purpose of these narratives is to make the universe look better, not to make people act better.
What if we chose, instead, to begin in exactly the opposite way? Instead of making up a myth to provide window-dressing for the universe, let us make up a myth to provide ourselves with moral backbone. As long as we are careful to bear in mind that it is a myth, the overall effect should be positive.
As you have no doubt guessed by now, I have such a myth to propose. Let us suppose that the theory of reincarnation is correct – that, after each lifetime is over, each soul wakes up in a new human body, beginning life over again as a baby. Now, nothing, of course, is beyond the power of God, so let us make one further assumption: that the soul may be reincarnated centuries after the death of the previous body, or – listen carefully, now – centuries before the death of the last owner. I could die today and be reincarnated, say, as the infant Lincoln. Or the infant Booth. Granting these two assumptions, reincarnation and reincarnation that occurs backwards in time, we are now ready to present the myth in its final and complete form: THERE IS, IN FACT, ONLY ONE HUMAN SOUL. IT HAS BEEN AND WILL BE REINCARNATED BILLIONS OF TIMES. For as long as there have been or will be people, they have all shared and will share only this one soul.
I have one day been, or will someday be, each and every person in this room. Each of you has already given the talk I am giving at this moment, or will someday give it. So pay close attention. It may make it a little easier for you to write this talk when it’s your turn to prepare it.
It may be helpful to call to mind the process of sewing – how the thread passes down through layers of material and then back up through layers of material, again and again and again. So this one human soul passes forward through life and then back in time for a fresh start, over and over again.
Every blessing you have visited upon yourself
Speaking to each of you, I can now say: Every blessing you have visited upon another, you have visited upon yourself. Every harm you have done another, you have visited upon yourself. You are the author of Shakespeare’s Julius Caesar. Under the name of Richard Rodgers, you composed The Sound of Music. You were Cleopatra (this is probably not news to some of you). You were also Anne Frank. That is why the great poems and novels you have read appeared to speak to you out of your own heart. They were speaking to you out of your own heart. You can only read what you yourself have written. Whether you know it or not, you are the sole author of daytime television. Whether you know it or not, you have watched it. In this life, you have fantasized many extreme behaviors. If those fantasies have ever been acted out, you were the one who acted them out. In this life, you may find Chinese difficult to learn. But, believe me, you have often found it very easy.
Our one-soul theory also helps to explain the phenomenon of déjà vu. In every conversation between two people, one of you has heard it all before.
Each of you has begged for your life, thousands if not millions of times. And each of you has, thousands if not millions of times, refused to listen to your own voice begging for your life, and pulled the trigger. Whatever bombs are dropped, I will drop them. Whatever bombs are dropped, will land on me.
We see immediately the radical difference between the myth I am proposing at this moment and all previous myth-making. On detailed consideration, this myth makes you feel really awful. Sure, it offers a very good chance at a large measure of immortality. You may have billions of lives yet to live, before you live through the last life each of us will live. But the plain fact is that all of us in this room are extremely fortunate compared with most people who have ever lived, and, probably, more fortunate than most people who ever will live. Lucky people, such as ourselves, have little to gain, emotionally, by adopting the sum total of human sorrow and considering it our own. Furthermore, I have every confidence that none of us in this room is an exceptionally evil person. At least, you don’t look it, and you did all choose to get involved with something called the Ethical Culture Society. Why should people such as ourselves, whose sins are comparatively modest, embrace the idea we were once Hitler, Stalin, or Idi Amin?
But, as we said from the beginning, this myth was not intended to make you feel good. If you want comforting lies, there are a million houses of worship around the planet begging for your attendance. What I wish to investigate are the ethical implications of this myth (always bearing in mind that there is no reason to actually believe that this one-soul stuff is true).
First, the myth teaches you to consider each and every other person in the world as if he or she were yourself. Hog the shares of ten other people and you simply condemn yourself to go without ten times. The more people you steal from, the more times you will be stolen from. “In the end,” Gandhi says, “deceivers deceive only themselves.” In the end, we could tell Tony Soprano, button men whack only themselves.
Second, the myth teaches you to consider the future of the planet to be as important as its present. You will be there when the plankton have been poisoned and there is no oxygen left to breathe. You will be there when the few remaining people wonder desperately why, in the 1990s, everyone in the United States suddenly decided to drive a truck. Peering out from the flesh of a human body, you saw the last Ice Age end. Peering out from the flesh of a human body, you will see the icecaps melt.
Trying to find a myth that would make us behave better
The awful burden you and I feel in landing on our shoulders as we contemplate this myth is the burden of moral responsibility for every person in this world and for every person who will live in this world. Yes, it is a horrifying weight. But it is the weight we were looking for. We were trying to find a myth that would make us behave better, remember, not one that would make us personally feel better.
So, now that we have defined our myth, and created a rough outline of its consequences, let us explore the two great questions at the heart of all political theory. First, in general, what would a truly just society look like? Second, in particular, how would a truly just society protect itself from criminal conduct?
All we need to do to found a just society – instead of the horrifying travesty around us – is to live on the basis of our myth. In terms of democratic ideals, to persecute anyone is to persecute yourself. To be intolerant of anyone’s sexual identity, for example, and to seek to demonize that sexual identity via a constitutional amendment, or via state statutes on marriage, is to persecute not only your own relatives and friends, but yourself. To pollute the public debate with vicious and unfounded innuendo is to deny yourself the power to think clearly about public issues.
Our new myth explains the importance of political equality and First Amendment freedom. It speaks to the moral necessity of democracy. Lincoln once said that, whenever he heard someone speak in favor of slavery, he felt the urge to make them try it out for themselves. In the context of our one-soul myth, we can see that, if slavery is tried out on anyone, it will be tried out on us. It is beyond our power to exploit anyone but ourselves. When corporations pollute our air and water, collecting huge profits while forcing the rest of us either to inhale the contamination or pay for cleaning it up, the phrase public policy analysts use to describe this is “externalizing costs.” The one-soul myth tells us that it impossible to externalize costs. You can only take the burden off your own back . . . and put it back on your own back.
When we turn to the issue of the distribution of material goods, the myth is even more helpful. As a first approximation, if we believed in the myth, we would insist that everyone share equally in the good things of life. This much is obvious. If we allow the few to be rich, while others are deprived, we would be setting ourselves up for many lifetimes of deprivation. The interesting question is: Are there conditions under which we would agree to compromise on this ideal of perfect economic equality? Well, in general, it’s important that people work hard and also that people come up with new ideas on how to do things. In order to get people to work hard and to innovate, it may be necessary to pay them incentives, even if this results in inequality. It is at least possible that offering such incentives in a limited and specified manner would prove to be of benefit to everyone, and that we would therefore be in favor of implementing such an incentive program. But we would be constantly trying to arrange society so as to wean society away from reliance on economic inequality, so as to share wealth as evenly as possible.
And we would always be on the lookout for the possibility that allowing Bill Gates, say, to be loaded up with incentives had left someone else in dire circumstances. We would be only too aware of the price we would be paying when it was our turn to be the exploited person. The rest of us could benefit, for example, by trying out new medications on, say, Donald Rumsfeld – but we wouldn’t be willing to do it.
The one-soul myth offers us a middle ground
Nevertheless, if the sacrifices were mild and limited, we might be willing to impose them. We would be willing to accept a considerable degree of economic inequality in order to receive more substantial benefits in other lifetimes. The one-soul myth thus offers us a middle ground between the greatest good of the greatest number, on the one hand, and absolute theories of human rights, on the other. The problem with utilitarianism – the greatest good of the greatest number – is that it can leave the individual a slave to the majority. The problem with absolute theories of individual rights is that they can leave the majority a slave to the individual. Our one-soul myth gives us a way to balance these ideals.
To follow this aspect of our argument to any kind of ultimate conclusion would require many volumes of closely reasoned argument and analysis. It would, in fact, require more knowledge as to the possibilities of human nature and social engineering than we actually have at the present time. Suffice it to say that the just society would probably turn out to be radically more egalitarian than the United States, but would probably contain, at least in the short term, some measure of capitalism to keep things moving along. We may, however, be able to decrease the necessary amount of capitalism over time.
After all, we know that it is possible to train substantial numbers of people to give their lives for various abstractions. In its heyday, the Soviet Union girdled half the globe, from Lvov to Kamchatka, yet never found it hard to find people willing to die for an abstraction called Mother Russia. At this moment, the far end of Hawaii lies 5,500 miles from this room. Portugese territory is 3,000 miles closer to Teaneck. But would not the nerve fibers of every good American here this morning bristle to learn of an attack on Hawaiian soil? Given our constant willingness to memorize such abstractions, to re-memorize them as they change over time, and then to die for them, it should be possible to train very large numbers of people to live their lives for the general good (as opposed to insisting on economic incentives). As people grow used to the idea of living in a just society, they may no longer require substantial economic incentives in order to create beneficial innovations. Eventually, the planet may tend toward becoming a loose confederation of kibbutzim, featuring almost perfect equality.
In fact, given how beneficial the consequences of the one-soul myth are, it seems a shame that we can’t teach people to believe that this myth is actually true. But, as we noted before, we can’t, because there’s no evidence for it.
Continuing then, to utilize our myth merely as a thought-provoking piece of nonsense, let us move on to take a brand-new look at the criminal law.
In general, assuming our one-soul myth is true, it is obvious that we must do our best to minimize the occurrence of violent crime. Even if we arrange matters so that violent crime is restricted to other people’s neighborhoods, each of us would dread the future life in which it would be our turn to be the victim of the crime.
The impact of crimes against property
The same kind of argument can be made with regard to the impact of crimes against property. First, no one enjoys being swindled or looted. Second, we are assuming we have created a just society, one in which wealth has been distributed under the one-soul myth. Once the wealth of society has been distributed on a just basis, any unauthorized redistribution, whether by muggers or by the perpetrators of stock fraud, will, by definition, result in the unjust distribution of wealth. There is little point to doing all this painstaking one-soul analysis if we allow the outcome to be altered at random by stick-up artists and predatory brokerages. Even when we’re talking about passing out incentives to high-technology innovators, it can only increase the effectiveness of those incentives if those receiving the incentives are not afraid they will be mugged on their way back to the parking lot.
We have persuaded ourselves, then, to minimize violent crime and crimes against property. We have a moral duty to do this, under our one-soul myth.
We should realize that we have already taken a giant step toward minimizing crime by endorsing the one-soul myth in the first place. The very establishment of a just society, in which the good things of life are basically distributed on an even basis, should go a long way toward minimizing crime. No one will be suffering. No one will be an obvious target. Such a regime of economic justice would make it a lot easier to raise all children with the maximum possible social, cultural, and economic opportunities and ethical training. Such a regime would also make it easier to offer all available forms of voluntary therapy and rehabilitation to anyone who appears to need such help. Once we have established a thorough program of social justice, we may find we have solved the crime problem.
As Clarence Darrow told the prisoners in Cook County Jail one hundred and two years ago, “The only way in the world to abolish crime and criminals is to . . . [m]ake fair the conditions of life. Give men a chance to live. Abolish the right of private ownership of land, abolish monopoly, make the world partners in production, partners in the good things of life. Nobody would steal if he could get something of his own some easier way.” We can’t be certain Darrow was right, but it’s certainly worth trying.
To be on the safe side, however, let’s assume we have instituted social justice and that serious crime is not utterly wiped out. It may be then be necessary to isolate people who continue to be dangerous, so they can’t hurt others.
In instituting such a policy, however, we will only be too conscious that someday, it will be our turn to be the one who is isolated. We will therefore decide to isolate people only under the most benevolent possible conditions, not in the hellholes that now pass for prisons. The only moral way to design a prison cell is to design it for yourself.
Not all dangerous people are dangerous under all conditions
In order to minimize the suffering we will endure by isolation measures, we will be driven to consider that not all dangerous people are dangerous under all conditions, and not all dangerous people are dangerous to all other people. Some people, for example, are only dangerous to one particular person, and might be benevolently isolated on another continent. Some people are dangerous only when driving, and technology may provide a way to keep them out of any driver’s seat. Some people are only dangerous to children, and might safely be permitted a perfectly normal life in a community to which children are never admitted. Isolation, in short, should be an invitation to innovation and creative approaches, not a mere euphemism for the penitentiary.
The combination of social justice and benevolent isolation might prove to be enough to deal with the issue of crime. If it is not, we would then be forced to move on to compulsory forms of rehabilitation. If the combination of social justice, isolation, and compulsory rehab still leaves us with significant crime, we would then be forced to move on to imposing punitive sanctions for the sake of deterrence. Deterrence is the process by which we punish A in order to put the fear of God into B, C, and D. Note that our one-soul myth forced us to do our homework, and do our unselfish best to avoid the need for punishment, before moving on to this level of intervention. Given that we know for a fact that we will be the ones receiving any punishment that is handed out, we would only agree to suffer such a punishment if it were the only way to prevent even worse suffering from occurring to other people. Today, the imposition of such punishment is all too often a thoughtless reflex, or even an occasion for sadistic enjoyment. That would never be the case in the context of our one-soul myth. It would be clear that moving on to the use of deterrence, even as a last resort, is a grave and desperate measure, the intrasocial equivalent of going to war. I, for one, would gladly suffer a number of crimes if it would save me from having to go to prison for a single year.
Adoption of punishment, even as a last resort, would gum up our program of crime control in other ways that would have to be considered before we endorsed it. The imposition of suffering tends to brutalize people, not to rehabilitate them. In the end, punishing someone may make it impossible to rehabilitate him or her. We all know that many people become far more dangerous in prison. It is difficult enough to reclaim a human being in the most benevolent possible environment. Who here would claim to have the power to reach someone when that person was locked in a brutal cell with rapists and murderers? In order to buy deterrence, we have to be willing to sacrifice much of the effectiveness of our efforts at rehabilitation. This will, in turn, lead to even greater reliance on deterrence, and thus increase the number of lifetimes in which you and I will be experiencing exemplary punishment.
A hierarchy of pre-announced punishments
Then, too, in order to make deterrence work, you have to announce a series of graduated sanctions that will be imposed on those found guilty of lesser and greater crimes. The penalty for murder must be substantially higher than the penalty for failing to return library books, or we’re going to see delinquent book borrowers start to bump off witnesses. Effective deterrence requires a hierarchy of pre-announced punishments.
We are so used to relying on deterrence that this state of affairs strikes us as unquestioned and normal. But it flies in the face of our earlier commitments to rehabilitation and isolation. We don’t know, in advance, how long it will take to rehabilitate anyone, or when he or she will cease to be a danger to society. Announcing prison terms in advance, while necessary for graduated deterrence, makes as much sense as announcing the duration of hospital admissions in advance. “Anyone with tuberculosis will be admitted for thirty days. They will then be released – cured or uncured, contagious or noncontagious — they will then be released.” You can only make deterrence work by adopting such an ineffective approach to rehab and isolation – by agreeing to release people who are not safe to release. Once again, crippling rehab and isolation can only increase our dependence on deterrence, and thus, once again, increase the number of lives you and I will have to spend getting punished.
For these two reasons, we should be especially loath to resort to punishment, as it could easily lead us into a downward spiral that would wipe out all we had achieved by our social justice and rehabilitation efforts.
All the foregoing discussion has no doubt sounded a little strange, for I have avoided any mention of what many Americans consider to be the primary purpose of criminal punishment – making certain that society has its revenge on evil-doers, that bad people are forced to suffer as we are taught that bad people deserve to suffer. There is no doubt that accepting revenge as an independent goal would dramatically change the face of criminal punishment from what we have been discussing. If we have an independent duty to punish, a duty that cannot be shirked under any circumstances, then we have to accept that our efforts at rehabilitation will be crippled by the imposition of brutalizing suffering. If we have such an independent and unshirkable duty to enact revenge, then we have to accept that we are going to have pre-announced sentences, with all that implies, for the varying degrees of retributive sentences, by their very nature, are known in advance. After you have served the time you deserve, you will be released, whether or not it is safe to release you.
Above all, we have to accept that you and I will be living through many lives in which you and I will be made to suffer solely because society believes that suffering is what you and I deserve. Once accepted for its own sake, retribution can carry us far beyond when the social sciences show to be necessary for the sake of deterrence. I will use the term “retributivism” to refer to this general commitment to retribution and revenge for its own sake.
Death penalty is worse than murder
The clearest example of how far retribution can take us is, of course, the death penalty. While capital punishment is not the only example of a purely retributive punishment, it provides us with a particularly clear and extreme example of such a retributive punishment that is now being imposed on an everyday basis. Furthermore, it’s of special interest under a one-soul analysis because waiting to be executed on Death Row appears to be a worse fate than that suffered by most victims of homicide. As Albert Camus has remarked, the death penalty is the equivalent of a “criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onwards, had confined him at his mercy for months.” Even if an execution were the only way to prevent a homicide, would we choose to die as a Death Row victim dies, rather than as a homicide victim dies?
It was in the U.S. Supreme Court case, Gregg v. Georgia, that the U.S. Supreme Court brought the death penalty back to the United States. This was a 5-4 decision, in which Justice Potter Stewart cast the deciding vote. What was the basis of that vote, which changed the course of American history? Justice Stewart explicitly points to retributivism as his sole justification for capital punishment. Stewart holds that imposition of the death penalty is independently justifiable on retributivist grounds, regardless of whether the death penalty is effective as a deterrent. By the very nature of his position, Stewart cannot cite science, fact, and logic to support what he’s saying. But he doesn’t need science, fact, and logic. He has a British lord to quote, Lord Justice Denning, and we all know that, if a British lord says it, it must be so. The unfounded postulations of a British lord are sufficient to allow Stewart to provide the decisive vote that brought back the death penalty to the United States. Here is the actual quote in which, in spite of our victory at Yorktown, a British lord was allowed to decide America’s policy on the death penalty:
“It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else . . . The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.”
Beyond the fact that Stewart is asking us to accept Denning as an authority, it is interesting to note that the substance of what Denning is offering to Stewart is absolute gibberish – the sort of maundering one might expect from a decayed aristocracy. Basically, all Denning is saying is that, because society, as Denning alleges, “insists” on capital punishment, society has a moral right to impose capital punishment. But this is nonsense. The Confederate rebels insisted on their right to enslave blacks. The Nazis insisted on their right to annihilate Jews. Did such “insistence” settle the ethical issue? Of course not. Ethical issues can only be settled by ethical arguments, and ethical arguments are what both Denning and Stewart are conspicuously failing to provide. Instead, the attempt is made to seduce us, by pure rhetoric, into kowtowing to the social status quo. This puerile sophistry would be laughable if we did not know it represented the best efforts of a highly prestigious Supreme Court justice, and if we did not know that this particular decision has already resulted in the execution of nearly one thousand Americans.
So let us revisit this entire issue and, instead of pinning our consciences to a dead British lord, let us try, you and I, to do some ethical analysis. If there is only one human soul, if you and I will be each person we execute, would you and I be willing to be executed purely and simply because that is what we are said to deserve? In other words, would you acknowledge an ethical duty to execute you simply because of what you have done? Would you go along with this ethical duty to execute you, even if life in prison was just as effective a deterrent as capital punishment?
It was Justice Oliver Wendell Holmes, Jr. who noted that, while we at times find it hard to forgive others, each of us nearly always finds it possible to forgive ourselves, if only because the extenuating circumstances are so clear when it is our own sin that is in question. Furthermore, we have just discussed the various ways in which agreeing to impose punishments, whether for the sake of revenge or in hope of deterrence, may actually increase the number of crime victims. Once we begin imposing suffering, we limit the effectiveness of our therapy and we force ourselves to release people who are not safe to release. In order to agree with Denning and Stewart, we not only have to agree to execute ourselves, but we have to agree to suffer all the crimes that occur because of the imposition of brutalizing and pre-announced sanctions. This is probably a poor choice.
It is interesting to note how close our ethical argument has taken us, not to Lord Denning, but Gilbert and Sullivan. An executioner, The Mikado tells us, “cannot cut off another’s head until he’s cut his own off.”
Why revenge is wrong
Revenge for its own sake is not a moral goal, because none of us would gladly suffer solely for the sake of revenge. But there is a second reason why revenge is wrong. Beyond the ethical problems posed by revenge, there is a factual problem. Loath as any of us would be to suffer revenge for what we’ve done, each of us would be even less willing to suffer revenge for, say, our race or our blood type. To the extent we are at all comfortable with the idea of revenge, we are comfortable with it solely in the context of behaviors that are said to be the result of free will. As I hope I demonstrated in my last platform talk, “Free Will: The Last Great Lie,” there is no scientific reason to believe in free will. (For those of you who are interested, my talk remains available on this organization’s website.) Because there is no reason to believe that any of us has free will, it is illogical to postulate the reality of free will in order to attempt to persuade us to volunteer to be the objects of revenge. At least, I see it that way, and therefore all of you either have or will see it that way. We can therefore rule out revenge on two separate and independent grounds: first, because it violates our one-soul analysis, and second, because it depends on dubious supernatural assertions concerning the roots of human conduct. What does it tell you that retributivism is morally wrong and scientifically crazy, and yet it is taught in every law school and practiced by every judge? Our doctors no longer apply leeches. Our astronomers no longer insist that Mars orbits the Earth. Doctors and astronomers have done some work for a living, and made some progress. But our legal system is still wallowing in the Middle Ages.
To summarize, then, we began by seeking a myth that would encourage each of us to behave ethically, and settled on the idea that there is only one human soul. On that basis, we decided to refrain from economic exploitation, and to seek to control crime only through the mildest practicable interventions. On that basis, we also rejected the idea of revenge for its own sake.
Certainly the one-soul myth gives each of us a reason to take care of everyone else. It may be appropriate, in closing, to note that we should not be too zealous in responding to this ethical duty. After all, while each of us enjoys being treated with respect and care, there is a limit to how much each of us wants to be fussed with. As we transform our society from being radically selfish to being radically loving, it will be good to remember that.
In retrospect, looking back on the last 5,000 years of human cruelty, it is unfortunate that we did not begin living under the one-soul rule a long time ago. Many of us may still have many lives left to live in the centuries that preceded our meeting here today. But the future is still in our hands. “It is not too late to seek a newer world.” This morning, in this room, let us begin to create a world that will welcome us back, again and again and again.
And now let me throw the floor open to your questions, pausing solely to remind you that someday you’ll be the one who will have to respond to whatever questions you choose to ask me.
POTENTIAL PURPOSES OF
CRIMINAL JUSTICE
1. Incapacitation (isolating dangerous people)
2. Rehabilitation (making people less dangerous)
3. Deterrence (scaring people away from crime)
4. Retribution (punishing people “as they deserve”)
