Resurrection by Leo Tolstoy
Chapter XXXIII. The Aim of the Law.
"Well, and how are the children?" Nekhludoff asked his sister when he was calmer. The sister told him about the children. She said they were staying with their grandmother (their father's mother), and, pleased that his dispute with her husband had come to an end, she began telling him how her children played that they were travelling, just as he used to do with his three dolls, one of them a negro and another which he called the French lady.
"Can you really remember it all?" said Nekhludoff, smiling.
"Yes, and just fancy, they play in the very same way."
The unpleasant conversation had been brought to an end, and Nathalie was quieter, but she did not care to talk in her husband's presence of what could be comprehensible only to her brother, so, wishing to start a general conversation, she began talking about the sorrow of Kamenski's mother at losing her only son, who had fallen in a duel, for this Petersburg topic of the day had now reached Moscow. Rogozhinsky expressed disapproval at the state of things that excluded murder in a duel from the ordinary criminal offences. This remark evoked a rejoinder from Nekhludoff, and a new dispute arose on the subject. Nothing was fully explained, neither of the antagonists expressed all he had in his mind, each keeping to his conviction, which condemned the other. Rogozhinsky felt that Nekhludoff condemned him and despised his activity, and he wished to show him the injustice of his opinions.
Nekhludoff, on the other hand, felt provoked by his brother-in-law's interference in his affairs concerning the land. And knowing in his heart of hearts that his sister, her husband, and their children, as his heirs, had a right to do so, was indignant that this narrow-minded man persisted with calm assurance to regard as just and lawful what Nekhludoff no longer doubted was folly and crime.
This man's arrogance annoyed Nekhludoff.
"What could the law do?" he asked.
"It could sentence one of the two duellists to the mines like an ordinary murderer."
Nekhludoff's hands grew cold.
"Well, and what good would that be?" he asked, hotly.
"It would be just."
"As if justice were the aim of the law," said Nekhludoff.
"The upholding of class interests! I think the law is only an instrument for upholding the existing order of things beneficial to our class."
"This is a perfectly new view," said Rogozhinsky with a quiet smile; "the law is generally supposed to have a totally different aim."
"Yes, so it has in theory but not in practice, as I have found out. The law aims only at preserving the present state of things, and therefore it persecutes and executes those who stand above the ordinary level and wish to raise it--the so-called political prisoners, as well as those who are below the average--the so-called criminal types."
"I do not agree with you. In the first place, I cannot admit that the criminals classed as political are punished because they are above the average. In most cases they are the refuse of society, just as much perverted, though in a different way, as the criminal types whom you consider below the average."
"But I happen to know men who are morally far above their judges; all the sectarians are moral, from--"
But Rogozhinsky, a man not accustomed to be interrupted when he spoke, did not listen to Nekhludoff, but went on talking at the same time, thereby irritating him still more.
"Nor can I admit that the object of the law is the upholding of the present state of things. The law aims at reforming--"
"A nice kind of reform, in a prison!" Nekhludoff put in.
"Or removing," Rogozhinsky went on, persistently, "the perverted and brutalised persons that threaten society."
"That's just what it doesn't do. Society has not the means of doing either the one thing or the other."
"How is that? I don't understand," said Rogozhinsky with a forced smile.
"I mean that only two reasonable kinds of punishment exist. Those used in the old days: corporal and capital punishment, which, as human nature gradually softens, come more and more into disuse," said Nekhludoff.
"There, now, this is quite new and very strange to hear from your lips."
"Yes, it is reasonable to hurt a man so that he should not do in future what he is hurt for doing, and it is also quite reasonable to cut a man's head off when he is injurious or dangerous to society. These punishments have a reasonable meaning. But what sense is there in locking up in a prison a man perverted by want of occupation and bad example; to place him in a position where he is provided for, where laziness is imposed on him, and where he is in company with the most perverted of men? What reason is there to take a man at public cost (it comes to more than 500 roubles per head) from the Toula to the Irkoatsk government, or from Koursk--"
"Yes, but all the same, people are afraid of those journeys at public cost, and if it were not for such journeys and the prisons, you and I would not be sitting here as we are."
"The prisons cannot insure our safety, because these people do not stay there for ever, but are set free again. On the contrary, in those establishments men are brought to the greatest vice and degradation, so that the danger is increased."
"You mean to say that the penitentiary system should be improved."
"It cannot he improved. Improved prisons would cost more than all that is being now spent on the people's education, and would lay a still heavier burden on the people."
"The shortcomings of the penitentiary system in nowise invalidate the law itself," Rogozhinsky continued again, without heeding his brother-in-law.
"There is no remedy for these shortcomings," said Nekhludoff, raising his voice.
"What of that? Shall we therefore go and kill, or, as a certain statesman proposed, go putting out people's eyes?" Rogozhinsky remarked.
"Yes; that would be cruel, but it would be effective. What is done now is cruel, and not only ineffective, but so stupid that one cannot understand how people in their senses can take part in so absurd and cruel a business as criminal law."
"But I happen to take part in it," said Rogozhinsky, growing pale.
"That is your business. But to me it is incomprehensible."
"I think there are a good many things incomprehensible to you," said Rogozhinsky, with a trembling voice.
"I have seen how one public prosecutor did his very best to get an unfortunate boy condemned, who could have evoked nothing but sympathy in an unperverted mind. I know how another cross-examined a sectarian and put down the reading of the Gospels as a criminal offence; in fact, the whole business of the Law Courts consists in senseless and cruel actions of that sort."
"I should not serve if I thought so," said Rogozhinsky, rising.
Nekhludoff noticed a peculiar glitter under his brother-in-law's spectacles. "Can it be tears?" he thought. And they were really tears of injured pride. Rogozhinsky went up to the window, got out his handkerchief, coughed and rubbed his spectacles, took them off, and wiped his eyes.
When he returned to the sofa he lit a cigar, and did not speak any more.
Nekhludoff felt pained and ashamed of having offended his brother-in-law and his sister to such a degree, especially as he was going away the next day.
He parted with them in confusion, and drove home.
"All I have said may be true--anyhow he did not reply. But it was not said in the right way. How little I must have changed if I could be carried away by ill-feeling to such an extent as to hurt and wound poor Nathalie in such a way!" he thought.