The Future Of Guilt
From Ezekiel we learn:
The soul that sins shall die. The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son; the righteousness of the righteous shall be upon himself, and the wickedness of the wicked shall be upon himself [18:20].
These words mark a dramatic change in prior practices related to guilt; it was individualized. With Christianity another dramatic change slowly came about: the inner life of the moral agent assumed an importance it earlier did not have. Our own age may now be witness to a drama of equal significance. Through a confluence of factors—philosophical determinism, the development of the behavioral sciences, the ideology of sickness and therapy, and utilitarianism—the very foundations of the concept of legal guilt have been placed in question.
The assault on guilt has moved along a number of parallel fronts. There are those who claim that the presuppositions upon which guilt depends are not in fact valid. Here one encounters either metaphysical lines of argument, or more empirically grounded theories asserting the existence of causative factors in every case that should exempt the wrongdoer from blame. This line of argumentation is evident in the modern tendency to see antisocial conduct as a matter for therapy, not punishment. Moreover, even if one were to acknowledge the reality of the conditions required for the appropriate application of the concept of guilt, it is sometimes claimed that we cannot have reasonable grounds for believing that these conditions are ever present. Skepticism of this kind may incline its adherents to urge foregoing concern with culpability at the time of the offense charged. Attention should focus rather upon what was in fact done—something observable—and, once this is determined, one should then concentrate on what would be the best disposition of the responsible party, given that party's condition at the time of trial. The orientation is almost entirely toward the future and away from the past.
Finally, some are prepared to say that the conditions for guilt are valid, that we can know them, and yet that it is a mistake to continue the practice. Guilt and punishment are viewed by some as fundamentally irrational modes of viewing human conduct—relics from a superstitious past in which suffering is seen as magically erasing evil. From this perspective it is never a former evil that justifies infliction of present pain, only a future good to be realized.
These, then, are some of the strains of discontent with guilt. It is not always evident from a particular critique precisely what the implications are for customary ways of proceeding. For example, philosophical determinists do not customarily urge abandoning the criminal law. It remains unclear, too, whether the law, an institution intertwined so closely with our moral way of looking at things, could be fundamentally changed without a corresponding transformation in moral conceptions and in such moral feelings as guilt and indignation. Nonetheless, the above critiques may gradually modify morality as we have known it, and guilt may conceivably appear as strange to future generations as the world against which Ezekiel was rebelling appears to us.
Powerful assaults have been mounted upon guilt and punishment. They have not gone unanswered, and have in fact mobilized tenacious defenses of customary ways of thinking about human beings. Few ages in history have spoken to the issue of human responsibility with the power and force of our own. Some have insisted that humans are basically free, that they often choose their own enslavement, and that by taking their past wrongs seriously they can redeem themselves. For those of this persuasion the law, with all its imperfections, embodies recognition of the truth of human responsibility and daily reenacts the drama of human waywardness, of wrongdoing, and of its being righted.