Václav Chytil and his conception of guilt and punishment
Daniel Krošlák
Abstract: This paper tries to highlight and briefly analyze most important aspects from the work "Guilt and Punishment - Legal and Philosophical Treatise" written by Czechoslovak legal philosopher Vaclav Chytil. The treatise is interesting because of its origin (it was written during Chytil's imprisonment in the work camps around Pribram and Jachymov after the communist revolution in Czechoslovakia) as well as because of author's unique interpretation of relevant issues. Chytil's considerations are focused mainly on two basic problems in the field of philosophy of criminal law - the question of free will and theories of punishment.
Václav Chytil was an academic follower of professors František Weyr and Karel Engliš,1 since 1945 a professor of economy at the Masaryk University in Brno. In the same time he was an active supporter of Czechoslovak big tent party and in 1946 became a deputy and a vice-chairman of the Constitutional national assembly. After the communist revolution in 1948 Chytil was offered to become a finance secretary in the communist government what he rejected and resigned also his seat in the assembly. The consequences of this decision were painful. Shortly thereafter in November 1949 he was arrested and accused of „espionage and preparations to overthrow people’s democratic republic and to establish bourgeois capitalistic order“. Most relevant evidence the prosecutor had about such an activity was Chytil’s confession that he had lent books of his 1
František Weyr was a pioneer of the influential movement in legal philosophy formed in the Central European jurisprudence in the first half of the 20th century which became generally known as the „Pure theory of law“, a designation promoted by its most famous protagonist Hans Kelsen (Weyr´s primacy and credit considering some thoughts were appreciated by Kelsen in the preface to the second edition of his basic piece. See H. Kelsen, Hauptprobleme der Staatrechtslehre entwickelt aus der Lehre vom Rechtssatze. Tübingen 1923.). The name “Pure theory of law” is stricto sensu the name of Kelsen´s conception. Weyr was using for his conception the term “Normative theory”. Karel Engliš was an influential Czechoslovak politician, professor of economy, logician and besides Weyr the second peer of the Czech platform of the “Normative theory”. For more details V. Kubeš, Dějiny o státu a právu ve 20. století se zřetelem k Moravě a zvláště Brnu, Díl první, Brno 1995.
Electronic copy available at: http://ssrn.com/abstract=1159450
teacher Karel Engliš and his own paper on liberalism and communism to dr. Kopecký who was according to communist investigators an agent of a subversive group. Even though the accusation was absurd, the State court in Prague found Václav Chytil guilty as a complice of treason and sentenced him for 12 years imprisonment and money penalty in the amount of 20.000 Kčs (Czechoslovak crowns). The judgement was issued on July 29 1950.2 Soon thereafter on August 8 1950 Chytil was transported to Ostrov u Karlových Varů and spent next five years in work camps established for mining of uranium. In July 1955 he was transferred to corrective labour colony in Příbram and because of his health classification was working only on the surface. Next three years he was trying to achieve conditional discharge from imprisonment and was lucky to succeed on November 9 1958 (it was a year of weakening communist pressure on the Czechoslovak society). During the imprisonment as many other well educated prisoners Václav Chytil did not gave up his inner emancipation and continued in his intellectual activities. While not observed by warders he was writing texts and giving lectures to other prisoners. His potential was used even by representatives of the work camp and Chytil was teaching gypsies to read and write.3 From the “uranium mines” period were saved two works which were recently published by the Charles University in Prague: theoretical considerations on logic and reasoning Pojmosloví and reflection on fundamental questions in criminal law Vina a trest – právněfilosofické pojednání (Guilt and punishment – legal and philosophical treatise). In this paper I will try to concern with some fragments from the second writing and provide a profile of Professor Václav Chytil as a philosopher of criminal law.
The problem of free will and human action The text of the treatise before Chytil’s considerations about the question of culpability is typically following the method of treatment within the Normative theory.4 At the beginning of the treatise he summarizes basic principles on difference between action and omission, imperatives and restrictions etc. Culpability is derived from the will of legislator stated in the law: the source of our conclusion that a person is guilty is a norm matching such an action as 2
For more details see Z. Pousta, Úvodem, [in:] Profesor Václav Chytil a uranové doly, red. Z. Pousta, Praha 2003, pp. 21-25. Generally about political processes in Czechoslovakia see K. Kaplan, P. Paleček, Komunistický režim a politické procesy v Československu, Brno 2001. 3 See Pousta, Úvodem, p. 43. And also see H. Baňouch, Přibáňova recenze vězeňského spisu Václava Chytila: Vina a trest, http://opravu.blogspot.com/2007/11/pibova-recenzce-vzeskho-spisu-vclava.html (9. 3. 2008) 4 Compare to F. Weyr, Teorie práva, Brno-Praha 1936, pp. 37-38.
Electronic copy available at: http://ssrn.com/abstract=1159450
criminal.5 Interesting about Chytil’s introductory reflection is an assignment of positive rewards which he considers as of equal value within normative judgement of each action.6 One of fundamental questions treated by philosophy of criminal law is the problem of free will. As a first point we can assert that legislative practice of criminal law, positive law reasoning and application of criminal law (except sporadic incident statements for the defence) do not ask this question: they simply presume the freedom of will. The dispute between supporters of indeterminism and determinism may be regarded according to Chytil also as a difference of opinion between strict (lex dura sed lex) and merciful attitude.7 Arguments for indeterminism are well known: absences of free will would lead to absurdity of punishment or reward etc. This postulate is repeated by all supporters of indeterminism and nobody chances to question its rationality or validity. A contrario from the factual existence of punishment indeterminists infer that human beings act willingly. As Professor Chytil notices such an argument is completely wrong – they should have proved that human beings act willingly to infer the existence of punishment.8 On the other hand determinists challenge in principle freedom of will. The problem is nobody chances the last implication to proclaim punishment and reward as absurd (while advocating the position that human beings are not causative agents of their acting).9 Stated conflict between indeterminism and determinism may have originated – as many thinkers observed – in using introspection leading to indeterminism or in thinking about problems from “outside” establishing determinist opinion. Concerning introspection we do not doubt that we are “masters of our will”, that we have free will and therefore are responsible for our actions. On the other hand rethinking of free will as a philosophical problem indicates different conclusion.10 With analyzing of human action it is possible to identify three types: instinctive action, mechanical action and action itself. Instinctive action does not concern memory and thinking which would form the will to act. On the contrary mechanical action and action itself are connected with the past experience. Mechanical action involves hundreds of certain human acts performed without any mental preparation that is ex definitione significant for action
5
V. Chytil, Vina a trest – právněfilosofické pojednání, [in:] Profesor Václav Chytil a uranové doly, red. Z. Pousta, Praha 2003, p. 118. 6 J. Přibáň, Několik poznámek k Chytilově spisu Vina a trest, [in:] Profesor Václav Chytil a uranové doly, red. Z. Pousta, Praha 2003, p. 113. 7 Chytil, Vina a trest, p. 123. 8 Chytil, Vina a trest, p. 124. 9 Chytil, Vina a trest, p. 124. 10 Chytil, Vina a trest, p. 125.
itself (By repeating some actions daily they become mechanized, e.g. we open the door without thinking how to do it).11 Decisive factor of human action is connected with actual state of mind. Humans choose between several eventualities, every time between the possibilities to act or not to act, consequently depending on actual state of mind, independently of the prospective knowledge, speaking nothing of possibilities really provided (as seen from other’s point of view).12 After the detailed analysis of aforesaid types of human action Chytil presents his interpretation of deterministic position: determinism does not mean that human actions are independent of human mental state, independent of human conscience. More important is the piece of knowledge referring to the fact that human actions are subject to the law of causality, i.e. humans are determined in their actions as well as a stone in its caused falling, or water in its caused evaporation etc.13 It is perceivable that this interpretation represents apparently Professor Chytil’s own opinion on the problem of free will.
Theories of punishment and principle of proportionality Another part of the treatise is devoted to the research of particular theories of punishment, especially retribution, deterrence and rehabilitation. Theories of deterrence as well as rehabilitation are connected because of their protective function concerning besides the offender (for his future life) all other people. On the other hand a retributive act represents desirability of a punitive response to the criminal and provides saturation to psychological demand for retribution.14 Punishment administration follows for a very long time the principle of proportionality, i.e. the punishment should be appropriate to the maleficence caused by the crime. One can contest it, whether it is not just a vague formula without any meaning: „Let us imagine that the aggrieved party works … to cause the offender the same degree of harm as was caused to him. Soon he will find out that it is absurd and onward insoluble. How could he know that subjective maleficence which he causes is as big as subjective maleficence caused to him? It can not be recognized. Even if according to the principle „an eye for an eye, a tooth for a tooth” he could cause in all of the cases the same external harm which was caused to him 11
Chytil, Vina a trest, p. 130. Chytil, Vina a trest, pp. 130-131. 13 Chytil, Vina a trest, p. 144. 14 Chytil, Vina a trest, pp. 157-158. 12
– that is practicable only in a very limited number of situations: you can not fire a barn of the fire raiser if he does not have any –, he could not infer that he caused the same subjective maleficence. And if there is somebody else to counsel the aggrieved person, he does not know anything about the degree of his subjective harm.“15 By accepting this strict interpretation of proportionality it is possible to make a conclusion that despite the “theory” criminal law practice works completely different, based on the non-proportionality. This could be partially “healed” if: 1) we stop talking about proportionality as a principle relevant for punishment administration, or 2) we will interpret it less strictly, maybe as a reflection of “social consensus”,16 e.g. proportional punishment for a murderer is from fifteen up to twenty years of imprisonment according to § 145 section 1 of Slovak Criminal code. Even if we accept the solution sub 2), Chytil’s claim is in principle correct. The content of the notion of proportionality is namely derived from the primary subjective justice,17 though maybe „objectively“ stated (social consensus). Therefore his summary sounds: „it is not possible to look for proportionality in comparison of the maleficence performed and maleficence based on protection or retribution act while concerning the same subjective harm to aggrieved party and the offender.”18 On the other side we should not mismatch protection or retribution acts with reparation acts. „The purpose of protection is to prevent somebody’s unwanted actions in the future or to protect from effects of actions accomplished; the purpose of retribution is to satisfy subjective desire for retaliation, while reparation is a compensation for caused damage. The aggrieved subject wants – if possible – that the damage will be supplied by the act of reparation (work, payment) and that is really just an objective „technical-account“ problem: damage meets reparation.“19
15
„Představme si tudíž, že by poškozený subjekt si položil prostě úkol, ... že chce způsobit škůdci stejnou míru subjektivního zla, jaká byla způsobená jemu. Seznal by záhy, že to je nemožný úkol, že je zepředu neřešitelný. Podle čeho by poznal, že subjektivní zlo, které působí, je stejně veliké jako subjektívne zlo jemu způsobené? Toho poznat nelze. I kdyby tudíž podle zásady „oko za oko, zub za zub“ mohl ve všech případech způsobit škůdci tutéž vnější změnu, kterou způsobil škůdce jemu – a to je možné uskutečnit jen v řídkých případech: nelze zapálit stodolu žháři, nemá-li ji – , nemohl by z toho usuzovat, jak víme, že mu způsobil stejné subjektivní zlo. A jestliže by byl postaven před úkol někdo jiný, aby zastoupil poškozeného, nevěděl by nic ani o míře jeho subjektivní škody.“ Chytil, Vina a trest, p. 164. 16 In this case it would be a fiction arising from the social contract theory. 17 What else is the proportionality than a justice formula? 18 „je vyloučeno hledat přiměřenost mezi zlem spáchaným a zlom z protekčního nebo retribučního aktu ve stejně veliké subjektivní újmě poškozeného a pachatele.“ Chytil, Vina a trest, p. 164. 19 „Účelem protekce je zamezit do budoucna vzniku nechtěných cizích jednání nebo obrana před účinky jednání uskutečňovaných, účelem retribuce je uspokojení subjektivní touhy po odplatě, kdežto reparace nahrazuje či odčiňuje škodu způsobenou. Dotčený subjekt chce, – je-li to možné – aby účelová újma byla smazána
The influence of Karel Engliš is notable in Chytil’s further considerations analyzing human behavior from the teleological point of view. Neither the punishment enacted by any norm is not sufficient for a motivation to follow it: „[the subject] decides whether to follow the norm establishing a speculation on a benefit from forbidden act or not acting (while it was ordered to act), and on the other side the damage connected with acting or not acting, ergo the damage resulting from not following the norm.“20
Conclusion Even though prof. Chytil was writing his treatise in hard conditions (warder controls, no access to literature), it represents deep analytic view and records his personal look on the listed topic. Recent publishing of the volume „Profesor Václav Chytil a uranové doly“ filled an empty place in the history of Czech (and also Slovak) legal thought in the 20th century. Though we can discuss on many issues contained in the book, we must fully respect Chytil’s integrity and be aware of his moral and critical genius.
Daniel Krošlák Assistant Professor Faculty of Law University of Trnava Slovak Republic
reparačním jednáním (prací, zaplacením) a zde ovšem jde o objektivní „technicko-účetní“ problém: kolik škody, tolik reparace.“ Chytil, Vina a trest, p. 165. 20 „k neposlušnosti vůči normě se [subjekt] rozhodne na základě své účelové úvahy, vo ktoré je na jedné straně úžitek z jednání zakázaného nebo z nejednání (bylo přikázáno jednat), na druhé straně škoda, navazující se na jednání nebo nejednání, tedy též škoda z následků neposlušnosti vůči normě.“ Chytil, Vina a trest, p. 188.
