In this article “The Humanitarian Theory of Punishment,” as found in God in the dock, chapter 4, Lewis is not directly taking aim at capital punishment. Rather he is taking aim at the idea of punishment, and specifically how we can know whether the punishment fits the crime. In fact he says that the “Humanitarian” [atheist?] view, as he labels it, says that punishment should be either a cure or a deterrent. Lewis believes that jurisprudence should be committed to a justice view of crime and punishment. The punishment should fit the crime, but we cannot know whether punishment fits the crime, if we do not have an absolute, moral standard of justice. We do not merely want anyone or someone punished. We want the person who committed the crime to be punished. We can’t even begin to know what punishment (or as he puts it the “dessert”, what you earned) fits the crime, if we do not know what is wrong and what is right. Scripture or moral code can tell us what is wrong and what is right, but if the wrong and right are not part of the penal code, punishment becomes either a cure or a deterrent.
Some “Humanitarians” see crime as illness or sickness, which must be cured. If the person committing the crime is considered “sick”, punishment is a “cure”. The difficulty with punishment as a cure is that only specialists can know whether and how a person is sick, and the “punishment” is a cure, which again only a specialist can affirm has occurred. Some people don’t consider a crime something wrong in a moral sense, but something aberrant or defective. A criminal must be cured of this defect or disease. There is no way for anyone other than a specialist to know when and if a cure has occurred.
The second way some “Humanitarians” see crime is as something to be deterred. Many concepts like capital punishment are seen not only as a just dessert for murder, but as a warning, a deterrent to others not to murder anyone. The difficulty is that anyone can be hung for any murder as long as the “court” assures the person is guilty. In the worst case scenario a stacked jury would convict someone, and that person would be executed. It wouldn’t matter who was executed, as long as the execution deterred other crimes. When the Nazis controlled various areas, they would regularly round up ten people, it didn’t matter if any of them was guilty of the offense the Nazis wanted to stop, and they would execute these ten. This was precisely using execution as a deterrent where those executed were not guilty. It didn’t matter who they executed, as long as the execution stopped the actions the Nazis wanted to stop.
The problem with the “Humanitarian” view is not just that the punishment doesn’t fit the crime, but there is no way to know what behavior is a crime or not. Instead of Scripture or moral code determining what is a crime, specialists determine who is ill or judges declare someone guilty for the purpose of scaring others.
Lewis’ point about tyranny and robber barons is meant to say that self-appointed “Humanitarians” develop legal concepts without a moral basis. The cures and punishments could go on forever as long as long as the “Humanitarians” choose or think there is a need to continue treatment or punishment. The robber barons in his scenario could be compared to the Turkish empire, which was known as “cruelty tempered by incompetence”. The point is that a group of oligarchs could just grow tired of punishing people or “keeping the law” and allow people respite from their “tyranny”, i.e. deciding whether they were guilty and of what.
Lewis’ comment is meant to say that he wants neither tyranny nor robber barons. He wants to make a case for crime and punishment to be grounded in a permanent, moral code or law. He believes anything else is incoherent and subject to abuse by specialists.
In his response to criticism of the article he mentions JJC Smart, brother of Ninian Smart. JJC Smart was a proponent of act utilitariaism “because there is no adequate criterion on what can count as a ‘rule’“. Wikipedia JJC Smart - Focus on rules leads to "superstitious rule worship". Again Wikipedia. Smart inspired such thinkers as Peter Singer. JJC Smart was an atheist. See the book Atheism and Theism, Blackwell, 1996 (2003) https://books.google.com/books?id=8F7jD-x07LYC&pg=PR3&source=kp_read_button&hl=en&newbks=1&newbks_redir=0&gboemv=1
