When punishment becomes revenge we're on the road to barbarism

GEORGE ORWELL wrote once that the 'hanging judge' was one of the symbolic figures of England. 'That evil old man in scarlet robes and horse-hair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books . . .'

Those words, in The Lion and the Unicorn (1941), were meant to be a compliment. Orwell, in his irascible way, was arguing that the English attitude to the law was not an unhealthy one. 'It is not that anyone imagines the law to be just. Everyone knows that there is one law for the rich and another for the poor.' But the English did feel that the law was impartial in a different way. It was out of the reach of ordinary people and what they might want, but it was also out of the reach of politicians. It simply existed, up there, as something which had to be and always would be respected. 'Remarks like 'They can't run me in; I haven't done anything wrong', or 'They can't do that; it's against the law' are part of the atmosphere of England.'

Published as a short wartime book, The Lion and the Unicorn was England's most elegant and intuitive attempt to understand itself. But it is disturbing to read it now, half a century on.

Orwell's basic assumption about his compatriots was their decency. By that he meant patience in conditions which nobody should put up with, a steady faith in the benevolence of a system which was blatantly designed by toffs for their own benefit, a respect for institutions which deserved none. But Orwell thought this trustfulness might actually be a guarantee against totalitarianism. 'In England, such concepts as justice, liberty and objective truth are still believed in. They may be illusions, but they are very powerful illusions.' While they endured, things like elections or the law would never, in Orwell's words, 'become completely corrupt'.

The essay was to become the best known piece of polemic in modern English - leaving aside Orwell's own fiction. It helped to form the minds of two generations, including mine. Its phrases have passed into popular idiom, worn smooth by the borrowing of politicians: 'the crowds . . . with their mild, knobby faces, their bad teeth and gentle manners', or 'England is the most class-ridden nation under the sun', or (John Major's favourite) 'the old maids biking to Holy Communion through the mists of the autumn morning'.

As well as phrases, The Lion and the Unicorn also bequeathed an analysis of Englishness which seemed convincing at the time, but which hardened over the years into a cliche. Orwell said that English gentleness and decency were rooted, paradoxically, in deference. English reluctance to question or criticise their institutions, which were often highly authoritarian, was actually a protective cocoon. It was an illusion, inside which faith in the benevolence of the world and the niceness of other people could survive.

Perhaps this way of looking at Englishness was always a bit skewed. But even if it did describe the 1940s, it is not much help in the 1990s. The institutions have changed little. But English people have: they are restless, mistrustful, critical, disrespectful to a degree which shocks their grandparents. If Orwell was right, they should therefore also be less gentle, less essentially 'decent'. I am not so sure about that. The old stolidity has grown rare, but the kindness and solidarity - certainly harder to reach and release than they used to be - have not been lost. Anyway, it is not kindness that I want to discuss, but unkindness: those 'evil old men in scarlet robes' and what the new, restless English think about crime and punishment.

Last week, it came out that the two small boys who murdered James Bulger might be free in eight or ten years. The reaction of James's parents was fury and grief. There was nothing startling in that. The truly startling thing was the public response: the widespread agreement that the parents of the murdered boy had a right to a long sentence for his murderers. Michael Howard, as Home Secretary, promised on BBC radio that any decision on the length of imprisonment would take into account 'how the public would look at the release of the prisoners'.

This was only the latest event in a process reaching back some years. Especially in murder cases, reporters now lunge at the bereaved after some apparently mild sentence is imposed and record their sense of injury - their wail that their rights as proxy victims have been violated.

When some horrible girl-ripper is given a mere 10 years, or when a drunken idiot who slaughtered a schoolboy by driving on the pavement is not punished as a murderer, then counsellors from the social work department are fetched to help the relations of the victim cope with their anger.

The doctrine of retribution - the infliction of pain to ease pain - is shambling back, a tattered ghost which once seemed to have been laid for good. This old doctrine makes two demands. The first is that we should recognise a psychological truth: that punishment makes those close to a victim feel better, while judicial mercy towards the offender can make them feel like victims themselves. There is nothing new in that. An eye for an eye, the vendetta principle, often does work as a healer. (Significantly it's the clan who need vengeance, perhaps to assuage their own guilt for failing to save one of their members. Victims, if they survive, seem much less thirsty for revenge.) The point is that judges are not in the business of group therapy.

The second demand is a real departure from the deference of Orwell's Englishmen towards 'the law'. It asserts that the family of a victim (and even the wider public) have a right to be heard when punishments are decided.

But what matters is to understand what a leap backwards this is. As soon as it occurred to our ancestors that government might be about happiness rather than obedience, it was seen that punishment under the law must be designed to achieve something good, rather than to balance something evil. Thomas Hobbes wrote in Leviathan (1651) that 'in revenges, that is, retribution of evil for evil, men look not at the greatness of the evil, but the greatness of the good to follow. Whereby we are forbidden to inflict punishment with any other design, than for correction of the offender or direction of others'.

That is where good people still stand. A century ago, Elizabeth Fry said that 'punishment is not for revenge, but to lessen crime and reform the criminal'. Punishment is justifiable on three grounds alone: that it removes from an offender the opportunity to harm others, that it deters from crime, and that it can persuade a delinquent to become law-abiding.

The instant any other purpose is admitted, the penal system collapses into neo-barbarism. At that moment, the law allows itself to be plugged into private hatred and sadistic fantasy as a source of public energy. But cabinet ministers, desperate for popularity, are trying to make retribution respectable again. They must not succeed.