3. Functionalist as Radical Critic: Karl Menninger
A functionalist is someone who explains a practice or institution by giving an account of the function or purpose the practice or institution serves. While functionalists are often justifiers, arguing that an institution that has a useful function is therefore justified by virtue of its function, the functionalist we shall focus on in this section, Karl Menninger, is a radical critic.[83] He suggests that the need legal punishment fulfills is one we would be better off renouncing.[84]
Menninger argues that punishment has its origin in the primitive urge for vengeance and that it functions as an outlet for this urge. Legal punishment is a modern institutional cloak for an instinct Menninger thinks we ought to silence. Though the conclusion he draws differs, Menninger, in linking legal punishment with instinctual drives for vengeance, offers an account of legal punishment similar to several other functionalist accounts of the practice. We will be better able to
[82] Nietzsche suggests that at least some of his claims are "conjecture" (Genealogy , essay 2, section 6). For an excellent discussion of Nietzsche's perspectivism that explains how for Nietzsche everything is interpretation and also how this perspectivism is not the same as relativism, see Alexander Nehemas, Nietzsche: Life as Literature (Cambridge, Mass.: Harvard University Press, 1985).
[83] Karl Menninger was one of the most important figures in American psychiatry. The teaching clinic he established in the 1950s trained nearly 15 percent of all psychiatrists schooled in the United States. See Lawrence Friedman, Menninger (New York: Alfred A. Knopf,1990).
[84] Karl Menninger, The Crime of Punishment (New York: Viking Press,1966).
focus on what is distinct, and perhaps troubling, about Menninger's account if we first turn to a few of the others.
Some see in revenge the origin of punishment, but an origin whose meaning has been lost and replaced. Hans von Hentig argues that revenge "is the origin of all legal policy and administration of justice."[85] He traces the origin of punishment also to human sacrifice, citing a Brothers Grimm fairy tale, the story of Afzelius, in which two beggar children are buried alive as a sacrifice to end a pestilence.[86] Hentig traces various methods of inflicting punishment to ancient rituals: for example, breaking the criminal on the wheel has its origin in sacrifices to the sun god; punishing the criminal by drowning him is linked to ancient rituals of cleansing.[87] But Hentig argues that the old purposes of punishment are lost. We have only relics.[88] The practice we now have has taken on new purpose.
For Hentig the real function of punishment now is selection and security. Criminal law, in his view, is a "negative selection," a sort of domesticating or breeding of man.[89] Hentig suggests that through capital punishment the criminal type can be weeded out of the gene pool:
If the untamed, unproductive, the "wild" variety of man gradually disappears, with incessant selection, there will come about a race of men having a socially constructive kind of psychical reactivity.[90]
Hentig, making the assumption that antisocial tendencies can be inherited,[91] also says that sterilization is a means of selection
[85] Hans von Hentig, Punishment: Its Origin, Purpose and Psychology (1937; reprinted Montclair, N.J.: Patterson Smith, 1973), p. 21.
[86] Ibid., p. 39.
[87] Ibid., pp. 49–50.
[88] Ibid., p. 163.
[89] Ibid., pp. 130–31.
[90] Ibid., p. 132; cf. pp. 154ff.
[91] Ibid., p. 180. For a compelling attack on this assumption and on other tenets of sociobiology, see Stephen Jay Gould, The Mismeasure of Man (New York: W. W. Norton, 1981).
and that its power to preserve life and happiness outweighs its harm.[92] Hentig concludes:
[T]he actual and essential task of penal law is to suppress variants of a worked out social type which are inimical to society.[93]
Hentig's notion that the original purpose of punishment has been lost and that the practice handed down to us has taken on new meaning should remind us of Nietzsche's argument. But not all functionalists accept that the origin of punishment is separate from its function. Emile Durkheim, in his The Division of Labor in Society , writes:
The nature of a practice does not necessarily change because the conscious intentions of those who apply it are modified. It might, in truth, still play the same role as before, but without being perceived.… It adapts itself to new conditions of existence without any essential changes. It is so with punishment.[94]
Durkheim, like Hentig and Menninger, thinks that the origin and "essential" character of punishment lie in the seeking of vengeance.[95] But for Durkheim, the original purpose of punishment has not been lost. Durkheim opposes those such as Hentig who claim that punishment has changed its character and that "it is no longer to avenge itself that society punishes,
[92] Ibid., pp. 146–47.
[93] Ibid., p. 158.
[94] Emile Durkheim, The Division of Labor in Society , trans. George Simpson (1893; reprinted Glencoe, Ill.: Free Press, 1933), p. 87.
[95] The idea that there is an "essential" character to punishment should trouble us. Much of my argument is premised on the fact that there are no essential criteria that make a thing punishment; punishment is a concept with "blurred edges." However, in thinking about the practical problems arising in legal punishment I employ an interpretation of the practice that claims to capture best what punishment essentially is. But as a nonfoundationalist and a critic of essentialism, I must qualify this claim by acknowledging that it is but an interpretation. See my discussion in chapter 5.
it is to defend itself."[96] Durkheim's response is subtle: those who claim punishment has changed think of vengeance as useless cruelty and see in our own punishment a useful practice. But
it is an error to believe that vengeance is but useless cruelty. It is very possible that, in itself, it consists of a mechanical and aimless reaction, in an emotional and irrational movement, in an unintelligent need to destroy; but, in fact, what it tends to destroy was a menace to us. It consists, then, in a veritable act of defense, although an instinctive and unreflective one…. Today, since we better understand the end to be attained, we better know how to utilize the means at our disposal; we protect ourselves with better means and, accordingly, more efficiently. But, in the beginning, this result was obtained in a rather imperfect manner.[97]
The essential elements of punishment are the same as of old.[98] Punishment is an act of vengeance, but we now know that in this act of vengeance society protects itself: "What we avenge, what the criminal expiates, is the outrage to morality."[99] Where Nietzsche and Hentig sever the ties of genealogy and functionalism, of origin and purpose, then, Durkheim combines the two in justifying the practice of legal punishment.
Another thinker who connects genealogy with functionalism for, it seems to me, the sake of justifying the practice of legal punishment is René Girard. Girard recounts the story of Cain and Abel to illustrate his own story about why we punish. Abel regularly sacrifices the firstborn of his herds. His brother Cain "does not have the violence-outlet of animal sacrifice at his disposal."[100] Lacking this outlet, Cain channels his violence
[96] Durkheim, The Division of Labor in Society , pp. 86–87.
[97] Ibid., p. 87.
[98] Ibid., p. 88; cf. p. 90.
[99] Ibid., p. 89. it is important to note that Durkheim does not mean that the origin of punishment is the private vendetta: "It is far from true that private vengeance is the prototype of punishment; it is, on the contrary, only an imperfect punishment" (p. 94).
[100] René Girard, Violence and the Sacred , trans. Patrick Gregory (1972; Baltimore: Johns Hopkins University Press, 1977), p. 4.
into the murder of his brother. Girard's point is that we punish as an outlet for our instinctual, violent urges. In many primitive societies lacking legal punishment, sacrifice, provides this outlet. The sacrificial victim is on the margin.[101] Her death puts an end to the acts of vengeance that disrupt society. The death of the victim does not entail an act of vengeance precisely because the victim—a scapegoat—is not integrated, has no social links, no one to avenge her sacrifice.[102] Sacrifice saves society, which would otherwise self-destruct, by curbing the otherwise endless chain of acts of vengeance.
Girard argues that in our society the judicial system limits vengeance to a single act, which becomes the final word; we have "public vengeance."[103] "Our penal system operates according to principles of justice that are in no real conflict with the concept of revenge." It is a system of "violent retribution."[104] Legal punishment, in this view, differs from revenge because it puts an end to vengeance, as did sacrifice in primitive society.[105] Modern legal punishment is a functional equivalent to primitive sacrifices and religion.[106] The legal system conceals its resemblance to acts of vengeance by forging its retribution into "a principle of abstract justice that all men are obliged to uphold and respect."[107] What is concealed is that "the penal system owes its origins to generative violence" and not to some "rational agreement on a sort of social contract."[108]
Girard says that his purpose is "to expose to the light, of reason the role played by violence in human society."[109] In this respect he resembles the genealogists we have already considered. But although Girard is in a way unmasking, I do not think he is giving us a radical criticism, as the genealogists
[101] Ibid., p. 12.
[102] Ibid., p. 13.
[103] Ibid., p. 15.
[104] Ibid., p. 16.
[105] Ibid., p. 17.
[106] Ibid., p. 18.
[107] Ibid., pp. 21–22.
[108] Ibid., p. 298.
[109] Ibid., p. 318.
appear to do, and as we shall see that Menninger does. Rather, Girard tends, like Durkheim, to show us what is positive in our practices, as Hentig also thinks himself to be doing. Girard notes that sacrifice is a real purification, because it curbs real violence. Sacrifice and its functional equivalent, legal punishment, serve a terribly important function, a function essential for the preservation of society: "The slightest outbreak of violence can bring about a catastrophic escalation."[110] It is because of its destructive capacity that violence is sacred in many primitive societies, just like other things that spread—fire, plague, storms.[111]
Girard, like Durkheim, focuses our attention on what is positive in a practice we might otherwise think cruel. He is not engaged in justifying actions within the practice; if he is engaged in any justificatory activity, it is the justification of the practice as a whole, the question all the thinkers we are considering in this chapter seem to take up. Like the radical critics, Girard tries to get us to see our practice in a new way; he gives an interpretation. His interpretation differs from that of another justifier of punishment, Hentig, and it differs from that of the genealogists we considered. Now we shall see how it differs from that of Karl Menninger.[112]
Menninger, like the other functionalists, links punishment and revenge, but he draws conclusions different from theirs. Menninger is critical—we sense this already from the title of his book: The Crime of Punishment .
Menninger says that legal punishment is motivated by zeal for inflicting pain.[113] To him the justifications we give for the practice only mask our desire to punish: "We disown violence but we really love it."[114] Though we may say we punish to
[110] Ibid., p. 30.
[111] Ibid., p. 31.
[112] It should be troubling not only that there are such conflicting views about punishment's origin and function, but that even those who do agree arrive at such different conclusions about the practice. I shall consider this point in section 5, below.
[113] Menninger, The Crime of Punishment , p. 113.
[114] Ibid., p. 162.
deter or incapacitate, in punishing we actually seek revenge. Menninger follows Freud in seeing violence as innate. It is something to which we are attracted and which we romanticize.[115] We have an instinct for destructiveness; we save our own lives "by destroying something external."[116] Those who commit crimes of violence are not alone: Menninger says we all have this instinct for destructiveness. Most of us find ways to sublimate it; for example, some of us play chess:
The picture of two individuals sitting, peacefully regarding a piece-studded board, is misleading. Silently their men are plotting and attempting to execute murderous campaigns of patricide, matricide, fratricide, regicide, and mayhem.[117]
Menninger's point about violence being innate is twofold: he says we are all subject to the temptations of crime, and therefore our worst crime is "damning some of our fellow citizens with the label of criminal";[118] and he also contends that our urge to punish reflects the same instincts that motivate the criminal.
Instead of drawing what seems to be Girard's conclusion—that legal punishment is justified because it puts an end to the cycle of revenge—Menninger sees punishment as part of the "endless cycle of evil for evil" and counsels us to end this cycle by no longer punishing. We should "shed our thirst for vengeance, grow ashamed of our cry for retaliation, and repudiate vengeance as a human motive."[119] Menninger's exemplar is the father who, though his daughter was killed, yet was strong enough to silence his natural instinct and, in a letter to the editor, write: "Let no feelings of cave-man vengeance
[115] Ibid., pp. 190, 157–62.
[116] Ibid., p. 163.
[117] Ibid., p. 169. Menninger cites an article by Ernest Jones on the psychoanalysis of chess, in International Journal of Psychoanalysis , vol. 12 (1931), pp. 1–23.
[118] Menninger, The Crime of Punishment , p. 9.
[119] Ibid., p. 280.
influence us. Let us, rather help him who did so human a thing."[120]
When Menninger says we should not punish, he sounds like a radical critic calling for the abolition of the practice. He challenges the ideal underlying the criminal justice system, calling this justice "hypocritical" or "beside the point."[121] But sometimes Menninger implies that he does not want to abolish the practice. He argues that it is unfair to treat all as equal, as justice dictates:
Freud showed that men are extremely unequal in respect to endowment, discretion, equilibrium, self-control, aspiration and intelligence … differences depending not only on inherited genes and brain-cell configurations but also on childhood conditioning.[122]
After Freud, nothing could be more unfair than treating all as equal.[123] The law is premised on the "reasonable man." Menninger asks, "[W]hat of the irrational?"[124] And so he proposes specific reforms of our practice: for example, individualized sentencing[125] and an increase in the number of parole and probation officers.[126] Menninger's ideal is treatment, not punishment; more mental hospitals, fewer prisons.[127]
Menninger's position is unclear. Sometimes he stands outside the practice, attacking the very idea of legal punishment, as when he calls criminal justice a "scapegoat system" and a "morality play";[128] but sometimes he stands inside the practice, calling for reforms that would change the way we inflict punishment. This confusion stems in part from a conceptual
[120] Ibid., p. 199.
[121] Ibid., pp. 153–54.
[122] Ibid., p. 92.
[123] Ibid.
[124] Ibid., p. 94.
[125] Ibid., pp. 63, 70.
[126] Ibid., p. 87.
[127] Ibid., p. 93.
[128] Ibid., pp. 153–54.
confusion in Menninger's views about punishment. When Menninger attacks punishment, he means by "punishment" the vengeful infliction of pain or "long-continued torture."[129] In his view punishment is opposed to treatment; punishment is something hateful; and so when Menninger counsels "love against hate," he, by his own stipulation, excludes punishment.[130] Menninger forgets that it is possible to punish those we love—parents do this all the time. Menninger slaps ordinary language in the face when he insists that punishment means "pain inflicted over years for the sake of inflicting pain."[131]
By his own definition, Menninger would not call "punishment" his own proposal for dealing with criminals: commitment to a mental hospital for treatment. Menninger is not the only one sharply to separate "punishment" and "treatment."[132] We ought to find the distinction troublesome. ("Of course someone committed to a mental hospital is being punished." "But we're helping him, not punishing him." "But the state has coerced him, as it coerces convicts.") We can select a method of inflicting punishment that is not painful but which we still call punishment by virtue of its being part of the practice of punishment as a whole. Later, when we take an internal approach to punishment—something I think Menninger at least sometimes implicitly does—we will say that perhaps Menninger is not challenging from the outside the whole practice of legal punishment (though unfortunately his rhetoric suggests this) but that he is on the inside, challenging certain subpractices, namely, how we sentence, and how we inflict punishment. Had he explicitly taken this approach, Menninger
[129] Ibid., pp. 218, 202.
[130] Ibid., ch. 10.
[131] Ibid., p. 202.
[132] Cf. Sutherland and Cressey: "The confinement of a psychotic person may involve suffering for him, but it is not punishment. Many of the modern methods of dealing with criminals, especially juvenile court procedures, are not punitive" (Edwin Sutherland and Donald Cressey, Criminology , 8th ed. [Philadelphia: J. B. Lippincott, 1970], p. 298).
could have denounced certain methods of inflicting punishment while affirming the practice of legal punishment on the whole.
If we emphasize the passages in which Menninger says the real reason we punish is to express our instinct for vengeance and suggests that all other justifications for punishment are ideological smokescreens hiding this instinctual motive, then Menninger does appear to be a radical critic. He explains our practice as an outlet for primitive emotions we should now all have outgrown. If we take him as a radical critic—though this might be to take too seriously what is either his rhetoric, or his confusion over a word—we are left asking how persuasive his account is. It seems troublesome that this functionalist comes to such a very different conclusion from that of his fellow functionalists, who affirm the practice. How are we to decide which account is best? How can there be so many "explanations" of the same practice? As before, I defer answering until we have given all of our radical critics a hearing.