The idea of spectacular public torture is as strange to us as the notion of
rehabilitation and psychological assessment would have been to the mediaeval
inquisitor. Here is a brief history showing how the philosophies behind punishment
have changed from retribution to the reform of a supposedly sick mind.
A Vicious methods of execution - such as hanging, drawing and quartering - were normal punishments in the West right up until the nineteenth century. But punishment was not limited to those guilty of secular crimes: the idea of a division between body and soul (or, later, mind) enabled the Church to torture and burn so-called heathens in South America - not to mention an estimated nine million peasant women* in Europe accused of being witches. The pretext of destroying bodies to save souls thinly masked the theft of the victims’ land or livelihoods.
*Source: New Woman, New Earth Ruether
Public execution was a grand and dramatic symbol – a theatrical confrontation between the law-breaker and the forces of justice controlled by the monarch. The condemned would make a final speech in which they could try to justify themselves. Occasionally the crowd would respond by storming the gallows to the rescue of the condemned person. Such insurrections were possible because the law was not seen as impartial but as an expression of the sovereign’s control.
This illustration shows a panoptican, a nineteenth-century plan of a model prison where the prisoners could be watched constantly, but could never know whether or not they were under scrutiny. From this point in history, it is the individual’s own conscience that is the target of the judicial system. Torture has been supersede by the power of guilt to induce obedience in the entire population. Because everybody has internalised the norms of criminal justice, even though they may break laws they do not question the law’s right to exist.
But elsewhere in the world, the authority to carry out punishment was not always vested in those who were distant from everyday life. In many areas of pre-colonial India, for instance, the local community assumed the right to judge its own offenders, collectively deciding which forms of restitution would be appropriate. Families would meet first, and if they were unable to reach an agreement with the aggrieved person'’ family, then a court of older respected members of the community would be called together. This ensured that legal power was not concentrated in the hands of a few people.
Modern psychiatry refuses to punish or put moral responsibility on the individual. Peter Sutcliffe, the ‘Yorkshire Ripper’ murderer of 13 women attacker of seven other, was able to plead diminished responsibility as a schizophrenic, and so was found guilty of manslaughter rather than murder. The modern legal system is caught between a diagnostic scheme which denies responsibility and the older legal one which asserts it. The resulting compromises create inconsistent judgements – sometimes harshly punitive and at others therapeutic – in which criminal law usually reflects the prejudices of society, punishing those who are already disadvantaged and offering psychological help to those who are more privileged.