4. Tocqueville’s Moderation and Lieber’s Idealism in Penal Reform

See Pierson 1938, p. 377, 439; Perry 1882, p. 91. For some of their letters, see: Perry 1882, p. 140, 191–193; Tocqueville 2009, pp. 60–62, 65, 67–82, 84, 87, 99, 132, 145, 154, 161, 183, 231, 260.

According to Perry, Lieber witnessed the French invasion of Germany in his hometown of Jena and “conceived a bitter hatred of the French and their emperor…” (1882, p. 2).

Perry 1882, p. 104, 295. Lieber later accepted the position of Professor of Modern History, Political Science and International, Civil, and Common Law at Columbia College in New York, in 1857 (Hartigan 1983, p. 6).

See Letter from Lieber to Tocqueville, May 30, 1957, in Tocqueville 2009, p. 232. See also Freidel 1947, p. 237.

This chapter focuses on detailing and analyzing Lieber’s penal thought in order to establish a basis for comparison between Tocqueville and Lieber. Since Tocqueville’s penal thought has been elucidated in the previous two chapters, only a few focused discussions of Tocqueville’s thought will be given here.

There is a tradition of scholarly comparison between Lieber’s and Tocqueville’s political thought; the earliest comparison occurred in 1858, when both authors were still living. See, for example, Tyler 1858, pp. 621–645; Clinton 2003; Dzur 2010.

The appendices Lieber explicitly notes that he altered are: No. 5 On Public Instruction; No. 6 Pauperism in America; No. 7 Imprisonment for Debt; No. 8 Imprisonment of Witnesses; No. 9 Temperance Societies.

For example, Lieber consistently glosses the medical analogies used in the text, translates “state” as “United States,” “le pays” as “state,” “l’instruction” as “knowledge,” “l’administration” as “government,” and avoids translating “l’âme.”

It is important to distinguish between Lieber’s translation and the original text because Lieber’s translation has been the primary text used by American scholars and penal reformers to access Tocqueville’s first published book. Lieber’s translation was partially reprinted in the “Eighth Annual Report of the Board of Managers of the Prison Discipline Society of Boston,” a large and influential organization founded by Louis Dwight to promote the Auburn prison system (1833, p. 219). Lieber’s first edition was re-published in America in 1868 without any revisions. Two additional reprints of Lieber’s translation were published by Augustus Kelley (1970) and Patterson Smith (1981). An abridged edition of Lieber’s translation was also published by Southern Illinois University Press, edited by Thorsten Sellin (1979). In terms of American scholarship, Avramenko and Gingerich (2014), Drescher (1968), and Boesche (1980) cite Sellin’s reprinted and abridged edition of Lieber’s translation; Schwartz (1985) cites the first French edition published by H. Fournier Jeune in 1833, while Wolin (2001) cites the French text reprinted in J. P. Mayer’s definitive edition of Tocqueville’s Oeuvres Complétes, Écrits sur le système pénitentiaire en France et a l’étranger, Tome IV, Vol. 1 (1984).

Mancini 2005, pp. 35–36. For instances where Lieber argues in favor of the Philadelphia Penitentiary System, see Beaumont and Tocqueville 1833, pp. xi, 9, 11, 13, 18, 25, 52–53, 55, 68, 85, 93, 153, 252, 287, 298.

Notably, Lieber published his translation of On the Penitentiary System in 1833, at least five years before the publication of the first of his systematic political works, A Manual of Political Ethics (1838). Regarding penitentiary reform, Lieber also later published A Popular Essay on Subjects of Penal Law, and on Uninterrupted Solitary Confinement at Labor, as Contradistinguished to Solitary Confinement at Night and Joint Labor by Day, in a Letter to John Bacon, Esquire (Boston: E.G. Dorsey, 1838) and Remarks on the Relation Between Education and Crime: In a Letter to the Right Rev. William White, D.D., President of the Philadelphia Society for Alleviating the Miseries of Public Prisons (Philadelphia: 1835).

Beaumont and Tocqueville 1833, p. vi. Lieber’s intention seems to have come to full fruition in the publication of On Civil Liberty and Self-Government in 1853, a work that contrasts the “constitution” of England with the national character of France.

See Beaumont and Tocqueville 1833, pp. vii, xxxiv–xxxv, 20, 104, 144, 165, 167, 169, 249, 287.

Quoted in Pierson 1938, p. 708. Tocqueville and Beaumont defend, in part, the merits of administrative centralization in On the Penitentiary System (Tocqueville 1984, pp. 178–189), which should be compared to Tocqueville’s remarks regarding administrative centralization in Democracy in America I.1.5 (Tocqueville 2000, pp. 56–92).

As will be argued later, Lieber suggests that we progressively came to understand the importance of local government through enlightenment. Importantly, Tocqueville also emphasizes the need for townships, or local communities, to have as much administrative power as possible because participation in local government educates citizens in their duties and liberties. Yet Tocqueville presents this education as a preservation, rather than progression, of freedom. Moreover, Tocqueville describes the most local government in America, townships, as natural to man and therefore antithetical to enlightenment. See Tocqueville 2000, pp. 57–58, 63–65, 76.

In emphasizing the importance of political activity in local communities to create liberty, Lieber expands on Tocqueville’s and Beaumont’s argument that theory must be moderated by practical action, and vice-versa. In this issue, Lieber argues similarly to Tocqueville and Beaumont: “In political economy we know nothing in the abstract. That which is not true in practice is not true at all. The theory is necessarily false that is not verified in practice, or derived from reality and actuality. In one word, nothing can be true in theory without being true in practice” (Lieber 1881b, p. 408). See also: Brown 1951, pp. 26–27. Lieber expresses the relationship between theory, action, and human progress concisely in Political Ethics when he says: “Think and act, and you will influence” (1911, p. 98).

See: Perry 1882, p. 121; Lieber 2001, p. 56.

Beaumont and Tocqueville 1833, p. 12. See also Lieber’s addition to a footnote on p. 14, where he claims that the worst American prisons are better than many prisons in Europe, and Lieber’s footnote on p. 33, where he recommends Mr. Vidocq’s Memoirs as a source of descriptions of the French bagnes and the “most revolting abuses in French prisons.”

See, for example, Tocqueville 1984, p. 1, 11, 12, 30.

See: Curti 1941; Robson 1942, 1946.

For a more developed explanation of the historical development and interaction of these two branches of historicism, see Adcock 2014, pp. 49–53.

Perry 1882, p. 132. Of course, this project sounds remarkably similar to Hegel’s own desire to make philosophy the bedrock on which historicism rested.

Letter to Mittermaier, September 13, 1834; quoted in Freidel 1947, p. 112.

Brown 1951, p. 48. See also Lieber’s letter to Bluntschill, where he says: “I consider Hegel’s ‘spirit of history,’ as an independent, separate entity, to be nonsense…” (Perry 1882, p. 412).

Beaumont and Tocqueville 1833, p. xlv. Later, On Civil Liberty opens by defining the restlessness: “Our age, marked by restless activity in almost all departments of knowledge, and by struggles and aspirations before unknown, is stamped by no characteristic more deeply than by a desire to establish or extend freedom in the political societies of mankind” (Lieber 2001, p. 2).

For a deeper analysis of Tocqueville’s and Beaumont’s opening lines, see Chap. 2 above, where the authors are shown to have critiqued French reformers for an immoderate love of theory.

According to Lieber, “Inalienable rights are very excellent things if rightly understood, but great bugbears if handled by superficial minds, who feel rather than reason, and whose feeling again is the result of early, sometimes accidental impressions rather than the effect of a well-schooled heart; but the human heart requires as much schooling as the head” (Lieber 1838, p. 73; see also p. 15, 21). Brown argues that “Lieber objected to the contract theory, because it overlooks the fact that society exists beyond the forms of government, and that society has always existed, together with the controls and authority which later become institutionalized in the government” (1951, p. 42). Lieber seems to reject the social contract notion of inalienable rights on the basis of his understanding of human nature as simultaneously individual and social (Brown 1951, pp. 58–59). Individual rights can be protected from government, which is the tool of the state, but not from society itself. For example, while property rights are natural because they stem directly from the basic assumption of natural right, which is the right to obtain the material things necessary to exist, property rights can be abridged if the needs of society demand it.

Notably, Lieber does not specify any countries that are more or less civilized, although he consistently points out that Prussia or Britain have previously made reforms which Americans later claim to have been the first to enact.

Man’s “original” state has little bearing on how “social” Lieber believes man will ultimately be. Lieber thinks that human beings are naturally social creatures. Still, unlike Hegel’s understanding that there are groups of human beings who continue to exist in an undeveloped condition and who are therefore radically individualistic, Lieber emphasizes the importance of individualism to the social human being even after he enters society. See also Lieber 1911, p. 116.

See: Lieber 1838, p. 20; 1911, p. 37. The conscience, according to Lieber, gives human beings an original idea that there is a difference between right and wrong, but does not naturally have the capacity to apply the principle of a distinction between right and wrong to specific circumstances and decisions. The conscience must therefore be exercised with reason.

In Education and Crime Lieber says that it would be bold “to assert that man’s nature is so thoroughly bad, that in whatever way it be cultivated, if cultivated at all, it shoots forth the germs of its seeds of corruption—a view which would be repugnant to our most sacred conceptions of the goodness as well as the wisdom of our creator” (1835, p. 7).

Beaumont and Tocqueville 1833, pp. 300–301. Those offenses are theft, bankruptcy, and robbing.

Beaumont and Tocqueville 1833, p. viii. See also Lieber 1911, pp. 127–128.

While Lieber never identifies a time when individuals did not live in society, such as the existence of a “savage man” who relies wholly on his senses rather than his reason, he does argue that the individual is moved to civilization through the acquisition of private property and the formation of the family. The individual attains both property and family “not because of any rational realization of possible advantages,” but because each individual must carry “out the dictates of his physical make-up…” (Brown 1951, p. 41). According to Lieber, “civilization, for which man is destined […] begins with private property” because “civilization creates wants” (Beaumont and Tocqueville 1833, p. 65). Man has desires that lead him to acquire property, ease, leisure, and the pursuit of knowledge, all of which culminates in civilization. Both property and the family also best express each person’s individuality. Lieber says later in his life, “Man yearns to see his individuality represented and reflected in the effects of his exertions—in property” yet property gained and disposed of “for the benefit of his individual family” (Perry 1882, pp. 120–121). Both the family and property rights originate from the physical and psychological nature of human beings and thus exist prior to the formation of any government. It is the movement beyond the acquisition of property and the formation of the family that represents the general movement from relying on material causes to becoming a moral being.

According to Freidel, Lieber “envisaged man’s life as revolving around the twin poles of individuality and sociality” (1947, p. 159). See also Brown 1951, p. 39.

Lieber’s consistent appeal that punishment “calm” rather than “agitate” the individual mirrors his understanding of social unrest.

See: Beaumont and Tocqueville 1833, p. 40, 45, 293.

Here Lieber disagrees with Tocqueville’s and Beaumont’s solution to the problem of shame, which was to turn the criminal toward religion. See the discussion above in Chap. 2.

Beaumont and Tocqueville 1833, p. x. In Political Ethics, Lieber teaches that man’s individuality is indispensably connected to his morality: yet, at the same time, man links to man in a society and society moves from stage to stage in progress (1911, pp. 58–59, 111–112). Compare: Beaumont and Tocqueville 1833, p. v; Lieber 1839, pp. 16–17; 1911, pp. 106–107.

Brown argues on the contrary: “Lieber’s theory of method is illuminated by his approach to the study of history. He dismissed the suggestion that history might reveal to us the operation of social laws or patterns of change. The real value of history is rather to remind us of the depth of our social and national traditions, and thus to help us appreciate the context in which ethical claims develop. A wise study of the past (i.e., history) will be social analysis, so that men will be made aware of their ties to past generations and of the stability of their institutions” (1951, p. 29).

Lively 1962, p. 33. According to Lively, Tocqueville thought that history “should be used to give some guidance as to the future trends of society and government, but it should not be erected into a Leviathan before which petty human wishes and ideals stood impotent” (1962, p. 41). Ceasar argues that Tocqueville rejected rationalism’s paradox of asserting boundless human choice and the limitations of such choice in history (1985, p. 660). See also Rahe 2012. Pitts argues that “although Tocqueville occasionally used the notion of social stages to account for indigenous practice or to justify European conquest, neither here nor in his later works did Tocqueville develop a thoroughgoing theory of progress, and he remained critical of such theories and justifications of empire when he encountered them among his English acquaintances” (Tocqueville 2001, p. xvii). For scholars who see a similarity between Tocqueville’s and Hegel’s arguments, see Beem 1999; Villa 2005; West 1991. Mitchell calls Tocqueville a “moral historian” who sees history as “less than an objective record of the past than a profound disclosure of the very trajectory of the human spirit” (1995, p. ix). Salomon argues that Tocqueville had a “historical consciousness” or “knowledge of the definitive character of a constellation of political and social forces, conditioned by the past and directed toward the future” (1935, p. 406). Finally, Ossewaarde argues that Tocqueville sees that “the relationship between civilization and barbarism is always a power relationship” (2004, p. 164).

See Mitchell 2008, pp. 543–564. Adcock suggests that Lieber shares the “conception of a grand social transformation from aristocracy (which they equated with feudalism) to democracy” (2014, p. 70).

Zetterbaum 1964, p. 612. Zetterbaum concludes by arguing that “Tocqueville’s understanding of history is inseparable from his neutrality concerning aristocracy and democracy” (1964, p. 613). Sara Henary suggests, on the other hand, that Tocqueville’s “historical narrative” of the shift from aristocracy to democracy is intended to highlight the incompleteness of both inequality and equality as principles that guide human life (2014).

Compare to Gargan 1963.

Gillespie 2009, p. 284; Gargan 1963, p. 342.

Beaumont and Tocqueville 1833, p. vi. See also Thayer 1881, p. 32; Farr 2005.

Benson perhaps overstates the significance of Lieber’s penitentiary thought to his political philosophy broadly speaking in her idea that Lieber “developed political science as a science of punishment” and “put the prison at the center of his theory of the state” (2015, p. 382).

Beaumont and Tocqueville 1833, p. 64. The disagreement on education carries over into the appendices, where Lieber explicitly declines to translate “the general remarks of the authors on public instruction in the United States” (Beaumont and Tocqueville 1833, p. 169).

See, for example, Part 1 Chap. 3 of On the Penitentiary System.

However, it could be argued that Tocqueville and Beaumont make this inversion knowingly: they see the fundamental principle in Lieber’s argument as reason developing, and draw out a critique of both reasoners (philosophers and philanthropists) and the reasoning behind a historicist framework. In other words, it is possible that Tocqueville and Beaumont are not confusing education and civilization, but are criticizing Lieber’s view of civilization in their use of the term “education,” since it clarifies the root assumption that enlightenment always promotes human progress.

See: Lieber 1835, p. 5; 1911, pp. 127–128.

See: Lieber 1835, p. 7. Notably, Lieber says in On the Penitentiary System that knowledge as a skill, rather than a light, “is, in itself, in most cases, neither good nor bad” (Beaumont and Tocqueville 1833, p. 63). Thus, his thought developed between the translation of On the Penitentiary System and Education and Crime, by adding the distinction between knowledge and instruction. Lieber begins Education and Crime by stating that while instruction designates the imparting of knowledge, the more comprehensive meaning of education “designates the cultivation of the moral, mental, and physical faculties of the young; it includes, therefore, instruction” (1835, p. 4).

One question that might clarify Tocqueville’s understanding of human progress is whether Tocqueville draws any connection between human religiosity, which is supposedly inherent in man and has the ability to elevate human activity, and human perfectibility. Is the inherent longing for immortal things which religion provides the same, confused with, or a contributor to the human desire for perfectibility? While a discussion of the answer to this question lies outside the scope of this book, it is important to keep in mind.

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). Mitchell provides an excellent analysis of why democracy in particular acutely needs an orientation toward the eternal, according to Tocqueville (1995, pp. 183–187). For similar arguments on Tocqueville’s understanding of the natural inclination to belief in human immortality, see Mansfield 2010, p. 53; Yenor 2004, pp. 10–17.

In Political Ethics, Lieber describes religion thus: “Nothing can bridle man’s passions, and the undue action of the necessary primary agents of the human soul, but civilization, society, and that which can be cultivated in it alone in any high degree, knowledge and religion. Religion belongs to civilization” (1911, p. 134).