2. Tocqueville’s Moderate Penal Theory

As the following argument will make clear, for Tocqueville, the “soul” (l’âme) is an element of the human being distinct from both mind (l’esprit) and body. Still, the mind is part of the soul and certain functions of the intellect (such as the imagination) are crucial to understanding the relationship between soul and body.

For an extended analysis of Tocqueville’s understanding of the human oscillation between rest and motion in connection to Augustine’s formulation of the tension, see Mitchell 1995, pp. 40–87.

Tocquevillian scholarship has generally asserted that Tocqueville does not present a universal view of human nature. See, for example, Levin 2008, p. 143; Maletz 2010, pp. 183–202; Manent 1998, pp. 79–84; Tocqueville 2000, p. xxvi; Zuckert 1993, p. 7. Zetterbaum points out that “Tocqueville’s approach to the study of political things appears as a departure from the method of those political writers of the seventeenth and eighteenth centuries who began their inquiries with the study of man simply, irrespective of his citizenship in a particular regime. For Tocqueville, the study of politics begins with an inquiry into social condition” (1987, p. 761). Alternatively, Jech argues that by considering the human being’s “generative conditions” Tocqueville does present a vision of man alone (2013, pp. 84–93). See also: Salomon 1935.

Tocqueville sees the relationship between body and soul as dependent; the soul does not exist independently of the body, and vice-versa. This is an anti-Cartesian position. Moreover, the soul cannot be reached solely through the body. There must be a spiritual means to reach the soul in addition to the material or corporal means. This view of the relationship between body and soul corresponds to Tocqueville’s understanding of the role of religion within a society, as discussed later in the chapter.

According to Lawler, Tocqueville thinks “there is a closer connection than is supposed between the soul’s improvement and the betterment of physical conditions” (1993, p. 63). I argue that On the Penitentiary System shows us the nature of that “closer connection.” Tocqueville and Beaumont reject the ontology of man as machine and the notion of a historical progression of human beings, yet those rejections do not exclude an alternative relationship between the soul and the material world.

I am using the term “spiritual” to represent the French word morale, which has two primary meanings: “That which concerns the mind, psyche, or which is of a spiritual nature,” and that which pertains “to the mores, customs, traditions and habits specific to a society during an epoch.” Throughout On the Penitentiary System, Tocqueville uses morale in the first sense, but also suggests that both senses are intimately connected to each other. In other words, the human mind is affected by the mores of the society in which the individual lives. For that reason, I use the term “spiritual cause” throughout the chapter to designate both senses of the term (that is, as a psychological cause which affects criminals’ minds in order to promote moral behavior as defined by the surrounding social order). See: “morale” in Trésor de la langue Française informatisé. Hereafter cited as TLFi (2012).

In the chapter, “causality” denotes the older meaning of “explanation.” To find the cause of civilization or crime, it is necessary to see what is responsible for its change or motion. According to TLFi (2012), “causalité” means “relation of cause to effect,” where “cause” is the primary term and means “the necessity of each part, because of what is outside it, to be other than if it were alone.” The Dictionnaire de l’Académie Française defines “causalité” as “manner in which a cause produces an effect.” The main causality that must be discovered is what motivates change from criminal to moral inclinations within a human being, and whether political or social institutions can utilize or effect that cause.

My argument will proceed by drawing out these three contrasting pairs posed within the text. These three pairs of contrasting elements are not simply dualisms, but have a specific relationship to each other. This interpretive method follows Nolla’s and Jaume’s understanding that Tocqueville’s philosophical method is to maintain contradictions (Nolla 1992, p. xxvi, xxiv; Jaume 2013, p. 174).

Imagination doesn’t fit nicely into the distinction between body and soul because it is a mental (or, spiritual) faculty that requires bodies (or, physical objects). The presence of imagination in human beings prompts the questions: How is imagination connected to our physical experiences? Do penitentiary systems in general require a certain use of the imagination, and can they manipulate imagination through physical circumstances in order to effect reform? Tocqueville’s and Beaumont’s arguments through the progression of the series of contrasts answer these questions.

Mitchell argues that Tocqueville has a circular notion of cause and effect, rather than a unilinear one (1995, p. 18). Mansfield and Winthrop point out that Tocqueville deliberately confused causality in terms of politics and society to avoid returning to either a “classical founding” or a liberal “state of nature” (Tocqueville 2000, p. xliii).

In contrast to the dearth of penal experimenting in France, the American penitentiary in Philadelphia was primarily the result of experiments by a Protestant religious group to prove theoretical social inquiry. Adamson argues that “Quaker experimentalism fueled rational inquiry into the causes of crime” (2001, p. 38). If Adamson is correct, Tocqueville’s and Beaumont’s emphasis on experiment might have been influenced by viewing a uniquely religious application of science to society.

The contradiction between material and spiritual causality can also be understood as that between nature and nurture. Tocqueville and Beaumont do not argue against philosophy as a whole; they draw a distinction between good philosophy and bad, where good philosophy acknowledges that human beings are contextualized throughout their lives by both material causes stemming from an environment (nurture) and spiritual causes that stem from the exercise of free will (nature).

Throughout On the Penitentiary System, Tocqueville and Beaumont identify three types of persons—the politician, the philosopher, and the philanthropist—who have the ability to direct society by influencing public opinion. The authors’ arguments effectively re-balance political power between all three types of persons. Nolla argues that Tocqueville rejects the work of philosophers, particularly political philosophers, because their work does not belong to reality and lacks contact with political practice (1992, pp. xviii–xix). The arguments in On the Penitentiary System suggest that, at the very least, Tocqueville calls political philosophers to take account of political practice and policy, without necessarily rejecting their role in society.

Perrot states that “Le Système Pénitentiaire marks, in a certain way, the end of the philanthropic prison era whose “illusions” Tocqueville and Beaumont vigorously denounced” (Perrot 1984, p. 25; my translation). Wolin argues that there is a “distinctively modern or liberal temptation” toward democratic despotism which arises from “enlarged conceptions of power characteristic of the modern imagination and assumed by it to be available in reality […] in imagination modern notions of experimentation were joined to modern forms of power—technological, military, and administrative—to support a claim that conditions (social and economic) could be effectively controlled so that “pure” solutions to carefully delineated problems were possible” (2001, p. 385).

Lawler asserts, “For Pascal and Tocqueville, imaginative deceit is as much a part of the human condition as the restless mind […] the existence of human life depends upon “perpetual illusion,” which is mostly self-flattery” (1993, p. 76). Maguire argues that for Tocqueville, the imagination was a medium for human freedom: an exalted imagination extends human pride toward great undertakings (2006, pp. 187–189).

Tocqueville 1984, p. 197. Tocqueville’s American notebooks clarify his belief that it is almost impossible to morally reform human beings who are habituated in crime. After a conversation with Mr. Maxwell, the founder of the New York House of Correction, Tocqueville notes: “This belief in the uselessness of the penitentiary system as far as moral reform is concerned seemed to us to be shared by a great number more of able men, among others those with practical experience” (1971, p. 6, 211). Human beings are therefore more capable of moral reform during their childhood than in adulthood. Tocqueville tends to agree with superintendents of the houses of refuge when they say that there is little hope of reform for boys after the age of 15, and for girls after the age of 14 (1971, p. 168). Yet he does not address the question of whether the moral lessons learned in childhood are kept through the duration of adulthood. Finally, Tocqueville’s emphasis on the limits of moral reformation via institutions recurs throughout his political career, and evidences itself practically in his limited application of penitentiary systems to petty or first-time offenders who are not habituated to a lifestyle of crime.

Lawler connects the problem of social unrest to extreme philanthropic ideals: “Extreme mental disorder or restlessness, the inability of the mind to perceive any order at all and hence to find any rest, leads the imagination to generate misanthropic ideals, ones which oppose human liberty or distinctiveness” (1993, pp. 64–65). Similarly, Maletz derives from his study of Tocqueville that “those who resort to abstract theory as an imaginative substitute for real political life may paint glorious pictures of utopia, but the literature they produce has become exceptionally harmful when carried over into programs of public action” (2010, pp. 196–197).

Notably, Tocqueville and Beaumont suggest that the focus on material improvement results from a lack of religious motivation in French penal reform.

For a more in-depth description of the corruption that occurs in French prisons as a consequence of focusing on material comforts for prisoners, see Tocqueville’s and Beaumont’s case study on the life of the criminal Lacenaire in their revised Introduction to the second edition of On the Penitentiary System (Tocqueville 1984, pp. 117–118). Lacenaire’s public reputation grew in inverse proportion to his repentance for his crime because of free communication and easy access to a cafeteria while in prison.

Tocqueville 1984, p. 214. See especially the discussion of the limits of statistics in I.3.2, beginning on pp. 207–218; and Statistical Notes No. 17, pp. 411–421.

Tocqueville 1984, p. 169. Francis Lieber, a contemporary of Tocqueville’s, also emphasizes the role of experience in human life (1911, pp. 63–65).

Plato’s Republic suggests how philosophy tends to uproot public opinion in the formulation of the contradiction inherent in the philosopher-king: philosophers are the most qualified to rule because they are freed from public opinion yet must be forced to rule because ruling does not contribute to the completion of the philosophic self. The philosopher pursues through dialectic what is true, whereas the city-state does not depend on what is true but on a unified understanding of the good life. The best way of life (philosophy) thus undermines the stability of the best city (1991, pp. 151–161). Notably, Tocqueville and Beaumont seem to suggest that philosophy uproots public opinion simply by force of its speed in enacting legislation, rather than through any contradiction between truth and necessary “noble lies.”

Tocqueville 1984, p. 234. Earlier, Tocqueville and Beaumont asserted that theoretical questions such as whether society has the right to do all that is necessary to punish recalcitrant criminals “are rarely discussed, to the interest of truth and human society” (Tocqueville 1984, p. 193). Both truth and human society, then, demand a measure of ignorance: human beings cannot know all things without harmful consequences to some good things. Experience, or common sense, filtered through public opinion indicates which things are necessary to question and which must be simply accepted. Additionally, here we see Tocqueville’s and Beaumont’s distinction between government and society which is vital to keep in mind. How can certain discussions be useful to the government, but problematic to society? The assertion assumes that both government and society are separate and independent realms whose goals can sometimes be opposed to each other. The government is a type of “political society” (la société politique), operating within the context of general society. Based on the context of the phrase, theoretical discussions are useful to the government if they contribute to governmental organization or control of political power, as opposed to policy recommendations.

Lieber translates this sentence: “Talent and capacity are directed towards one single object—politics” (Beaumont and Tocqueville 1833, p. 91).

Ceasar argues that Tocqueville’s political science as a whole acts as an alternative to both philosophic rationalism and traditionalism, which includes an emphasis on habit in order to limit the influence of intellectuals on political culture (1985, pp. 656–672).

Levin formulates the benefit of political activity more narrowly as countering particular modern ideas: “political activity is at the heart of the cure to simultaneously oppose excessive individualism and overpowering collectivism so the souls of free individuals may flourish. This is because inactivity is what threatens democratic societies” (2008, p. 144). More deeply, however, Tocqueville’s and Beaumont’s inquiry into practical politics ultimately deals with universal human motivation. The authors implicitly question what motivates humans. The account that is given expands beyond security or fear, including honor, shame, profit, rest, and a desire for God.

See: Tocqueville 1984, p. 443. The excerpt from the journal was included by Tocqueville and Beaumont in an appendix to their second edition of On the Penitentiary System.

After returning from America, Tocqueville visited the Hôtel de Bazancourt, which operated as a house of correction for 25–30 young children sent there by their parents. Following the publication of the first edition of On the Penitentiary System, France saw an increased use of houses of refuge for juvenile delinquents. Tocqueville and Beaumont note in their Introduction to the second edition that the success of such institutions occurred mostly in eastern France, which evidenced greater industrialization (Tocqueville 1984, pp. 82–83, 116).

See: Tocqueville 1984, p. 206. Boesche argues that Tocqueville “views mere change in the external behavior of the criminal as insufficient, and he seeks a reformed prison that can transform […] the ideas, habits, and even instincts” of human beings (1980, p. 555). In contrast, my argument takes into consideration the nuances in Tocqueville’s approximation of whether such reform is possible.

Tocqueville expands his criticism of a wholly materialistic worldview in Democracy in America (2000, p. 517–520). As Lawler points out, Tocqueville criticizes “not materialistic doctrine but the materialists themselves who are infected with vanity” (2001, p. 220).

Note that Tocqueville and Beaumont use “communication” to refer not only to verbal messages, but also to lifestyles and the characteristics which define them. This double usage indicates that there is a connection between language and the body. Bodies present problems for discipline not because it is the flesh which contains the seed of corruption, as in a biblical sense, but because bodies are a means of communication even when language is prohibited. Bodies communicate by two means. First, men can develop body language to externally and physically communicate with each other. This physical language by its nature prevents the development of moral ideas, since it cannot release itself from its particular mode of communication to deal wholly with content. In other words, body language greatly narrows the content of information communicated, notably excluding moral ideas which are intangible. Morality thus requires a kind of verbal deliberation. The second means by which bodies “communicate” is inwardly with the self. Physical actions can support or strengthen pre-existent motives, intentions, purposes, and sentiments within an individual.

See: Tocqueville 1984, p. 197. As will be shown, absolute solitude can be said to be “purely intellectual” in that it results from an extreme theory that solitude only affects the minds of prisoners (not their bodies), and that it allows for human beings to guide themselves to reform when left completely alone.

A more detailed description of the wooden gallery was given in a letter from Tocqueville to the Ministry of the Interior while on the American journey; see Tocqueville 1984, p. 22.

For further discussion on this idea, see: Tocqueville 1984, p. 176, 184, 190, 197–199.

See: Tocqueville 1984, p. 159, 287–288. The quote comes from alphabetical note (c), which attempts to provide a more detailed explanation for the medical link between absolute solitude and pulmonary diseases afflicting prisoners in such conditions.

Notably, the French penal system already included what are called “central houses of hard labor,” established since 1808. These were originally located in Poissy, Melun, Beaulieu, Gaillon, Fontevrault, Rion, Nimes, Thouars, Loos, Clairvaux, and three locations for women (Clairmont, Rennes, Montpelier). See: Roth 2006, p. 108.

Compare to Tocqueville’s description in Democracy in America of the American southerner: “… the American of the South is not preoccupied with the material needs of life; someone else takes charge of thinking of them for him. Free on this point, his imagination is directed toward other greater objects, less exactly defined. The American of the South loves greatness, luxury, glory, noise, pleasures, above all idleness; nothing constrains him to make efforts in order to live, and as he has no necessary work, he falls asleep and does not even undertake anything useful” (Tocqueville 2000, p. 360). On the other hand, the Northerner is absorbed by material cares and so “his imagination is extinguished, his ideas are less numerous and less general, but they become more practical, more clear, and more precise […] he understands marvelously the art of making society cooperate for the prosperity of each of its members and for extracting from individual selfishness the happiness of all” (Tocqueville 2000, pp. 360–361).

Not all political philosophers have acknowledged this “innate desire for honor” which Tocqueville and Beaumont assume. For example, Hegel argues that because all citizens are equal before the Emperor in China, no honor exists, and consequently “no one has an individual right in respect of others” (1956, p. 131). Hence, it is not the individual conscience or sense of honor “which keeps the offices of government up to their duty, but an external mandate and the severe sanctions by which it is supported” (Hegel 1956, p. 127). Additionally, punishments in China “are generally corporal chastisements. Among us, this would be an insult to honor; not so in China, where the feeling of honor has not yet developed itself. A dose of cudgeling is the most easily forgotten; yet it is the severest punishment for a man of honor […] the Chinese do not recognize a subjectivity in honor; they are the subjects rather of corrective than retributive punishment” (Hegel 1956, p. 128). Notably, Hegel argues that “despotism is necessarily the mode of government” in China due to the lack of an internal sense of honor and the total equality of the citizens (Hegel 1956, p. 124). Hegel’s depiction of China resembles the critiques of On the Penitentiary System made by Avramenko, Boesche, Gingerich, and Wolin, who each assert that Tocqueville and Beaumont recommended penitentiaries despite their despotic qualities, most particularly their use of corporal punishment and extreme equality. Indeed, Hegel’s description closely resembles the culture described in the Auburn prison system. Yet Tocqueville and Beaumont do not support such despotism as necessary to the “sub-culture” of the penitentiary. Instead, they stress the honor of the individual prisoner because it is the key to curbing the seeming despotism of penitentiaries.

Lieber notes in his Translator’s Introduction, “if the whip is mentioned as a disciplinary measure, we must also mention labor as such, and if I mistake not it contributes much more to maintain order than the whip. That labor has a powerful disciplinary effect with criminals (it is the same with all men) the reader will find asserted by a high authority in the course of this book […] it calms and assuages the mind of the irritated convict” (Beaumont and Tocqueville 1833, p. ix).

See: Tocqueville 1984, p. 236, 245, 237. Drolet argues that because “French sensibilities were at odds with a prison system that relied on physical coercion,” Tocqueville and Beaumont suggested that “France adopt prisons like Wethersfield as a model” (2003, p. 129). While Tocqueville and Beaumont certainly elevate Wethersfield as the best possible penitentiary in the text, I am arguing that the discussion of corporal punishment in the text has a broader import than simply determining which penitentiary model France ought to use.

See: Tocqueville 1984, p. 169, 193, 234, 237.

See also Democracy in America II.3.18, “On Honor in the United States and in Democratic Countries.” There, Tocqueville notes that there are two senses of the word “honor” in the French language. Honor signifies the esteem and glory attained from those like oneself, as well as “the sum of rules with the aid of which one obtains this glory, esteem, and consideration” (Tocqueville 2000, p. 589). Mitchell argues that Tocqueville saw honor “as the currency by which inequalities […] are delineated” (2008, p. 551). Honor thus cannot be easily supplanted by love of commerce and equality.

According to the Dictionnaire de l’Académie française, “honneur” signifies variously: “the esteem, reputation which a person enjoys in the world,” or “virtue, probity; quality that leads us to do noble, courageous, loyal deeds.” In the plural, honneur can mean: “the action, the exterior demonstration by which one makes known the veneration, respect, esteem that one has for the dignity or merit of someone.” The synonym of honneur is, notably, honnête.

Translation my own.

See: Tocqueville 1984, p. 206. Similarly, Lieber declares in his preface: “Let a former convict but acquire habits of honesty, and he will also gradually acquire honest views and feelings. Let him obey the just laws of our country, and he will soon love them” (Beaumont and Tocqueville 1833, p. xxiii).

Brogan criticizes Tocqueville and Beaumont for holding such an “extreme” view, rather than adhering more limitedly to the idea “that society’s only right and interest is to require not that a former prisoner shall have saved his soul, but that he obey the laws…” (2006, p. 227). Brogan also criticizes Tocqueville for immoderation in extending sympathy toward prisoners, yet does so through a Foucauldian lens (2006, pp. 228–229). My argument in this work suggests the opposite, that Tocqueville and Beaumont attempted to balance the rights of society with those of the individual prisoner. This balance can be seen in how Tocqueville and Beaumont bifurcate the types of possible individual reformation and moderately evaluate their potential success. The balance between the rights of individual and state in penal reform leads to a moderated view of the purposes of the prison, namely one that includes retribution, prevention, and both social and spiritual redemption.

Note that by using the word render, as opposed to donner, Tocqueville and Beaumont imply an originally pure state of the soul. Tocqueville 1984, pp. 203–204.

Notably, there is no discussion in On the Penitentiary System of what kind of religion performs the task of bringing individuals to accept moral pardon from God; however, given the context of penitentiary reform as stemming from Quakerism, it could be argued that Tocqueville and Beaumont assumed that the religion would be, at the very least, a form of Christianity, if not Protestantism more particularly.

See: Tocqueville 1984, p. 205. See also Tocqueville’s note in his interviews with prisoners No. 47 and No. 00 (Tocqueville 1984, pp. 336–341). Elam Lynds articulates the same opinion in his interview with the authors (Tocqueville 1984, pp. 342–345).

Out of 26 prisoners pardoned in the early stages of the American penitentiary reform, 14 returned to prison (Tocqueville 1984, p. 22). See also the statistics given in Appendices No. 16 §2 and No. 11 (Tocqueville 1984, p. 389, 413).

Catherine Zuckert suggests that religious belief in Tocqueville’s thought is reduced to “the sanctity of the human being or freedom of conscience” in order to be useful for democracy (1981, p. 279).

Appendix No. 13, concerning the Boston House of Refuge, includes the regulation that tattle-tales will only be allowed if it is evident that the child acts for the sake of their conscience (Tocqueville 1984, pp. 369–370).

The following argument contributes to the ongoing debate in Tocquevillian scholarship over whether Tocqueville considered religion in a purely utilitarian light, as opposed to considering the merits of the particular content of religious belief as fundamental to the good of individuals and societies. As will be presented, the argument in On the Penitentiary System seems to bridge both sides of the debate by not only presenting religion as socially useful in encouraging the moral reform of criminals, but also as necessary for the individual to regain self-esteem which is vital for successfully operating within a commercial democratic society. For those who argue that Tocqueville emphasized the social and political utility of religion, see Koritansky 1990; Lively 1962, p. 183; Zetterbaum 1967. Mansfield presents a convincing argument that, in terms of the structure of Democracy in America, Tocqueville “considered religion’s utility to democracy” in Volume 1 and “the truth of religion” in Volume 2 (2010, p. 61). Tessitore also attempts to argue a middle course when he says that Tocqueville saw Protestantism as moderating the extremes of religious sectarianism and godless secularism (2002). But compare with: Kessler 1992. For scholars who argue that Tocqueville respected the content of religion, see Deneen 2005; Goldstein 1975; Hancock 1991; Mitchell 1995, pp. 183–187; Sloat 2000, p. 775.

Lawler argues that “Tocqueville follows Pascal in showing that the need for faith is at the core of man’s true greatness” based on man’s hope for resolution to the contradictions of human existence (1993, p. 145). For others who argue that Tocqueville viewed religion as innate to human beings, see: Galston 1987; Mansfield 2010, p. 53; Mitchell 1995, pp. 183–187; Yenor 2004, pp. 10–17.

Tocqueville says later in Democracy in America: “The short space of sixty years will never confine the whole imagination of man; the incomplete joys of this world will never suffice for his heart […] religion is therefore only a particular form of hope, and it is as natural to the human heart as hope itself” (Tocqueville 2000, pp. 283–284).

Kahan argues that, “for Tocqueville, human nature has a natural tendency toward belief in God and spirituality, regardless of the social context” (2015, p. 105). In the context of my argument, although each individual is naturally aware of their relationship to God, religion supplies the particular knowledge of God necessary to confirm their human dignity.