THE ASTONISHING INSTITUTION CALLED CRIMINAL LAW.
Maslova might be sent off with the first gang of prisoners, therefore Nekhludoff got ready for his departure. But there was so much to be done that he felt that he could not finish it, however much time he might have. It was quite different now from what it had been. Formerly he used to be obliged to look for an occupation, the interest of which always centred in one person, i.e., Dmitri Ivanovitch Nekhludoff, and yet, though every interest of his life was thus centred, all these occupations were very wearisome. Now all his occupations related to other people and not to Dmitri Ivanovitch, and they were all interesting and attractive, and there was no end to them. Nor was this all. Formerly Dmitri Ivanovitch Nekhludoff's occupations always made him feel vexed and irritable; now they produced a joyful state of mind. The business at present occupying Nekhludoff could be divided under three headings. He himself, with his usual pedantry, divided it in that way, and accordingly kept the papers referring to it in three different portfolios. The first referred to Maslova, and was chiefly that of taking steps to get her petition to the Emperor attended to, and preparing for her probable journey to Siberia.
The second was about his estates. In Panovo he had given the land to the peasants on condition of their paying rent to be put to their own communal use. But he had to confirm this transaction by a legal deed, and to make his will, in accordance with it. In Kousminski the state of things was still as he had first arranged it, i.e., he was to receive the rent; but the terms had to be fixed, and also how much of the money he would use to live on, and how much he would leave for the peasants' use. As he did not know what his journey to Siberia would cost him, he could not decide to lose this revenue altogether, though he reduced the income from it by half.
The third part of his business was to help the convicts, who applied more and more often to him. At first when he came in contact with the prisoners, and they appealed to him for help, he at once began interceding for them, hoping to lighten their fate, but he soon had so many applications that he felt the impossibility of attending to all of them, and that naturally led him to take up another piece of work, which at last roused his interest even more than the three first. This new part of his business was finding an answer to the following questions: What was this astonishing institution called criminal law, of which the results were that in the prison, with some of the inmates of which he had lately become acquainted, and in all those other places of confinement, from the Peter and Paul Fortress in Petersburg to the island of Sakhalin, hundreds and thousands of victims were pining? What did this strange criminal law exist for? How had it originated?
From his personal relations with the prisoners, from notes by some of those in confinement, and by questioning the advocate and the prison priest, Nekhludoff came to the conclusion that the convicts, the so-called criminals, could be divided into five classes. The first were quite innocent people, condemned by judicial blunder. Such were the Menshoffs, supposed to be incendiaries, Maslova, and others. There were not many of these; according to the priest's words, only seven per cent., but their condition excited particular interest.
To the second class belong persons condemned for actions done under peculiar circumstances, i.e., in a fit of passion, jealousy, or drunkenness, circumstances under which those who judged them would surely have committed the same actions.
The third class consisted of people punished for having committed actions which, according to their understanding, were quite natural, and even good, but which those other people, the men who made the laws, considered to be crimes. Such were the persons who sold spirits without a license, smugglers, those who gathered grass and wood on large estates and in the forests belonging to the Crown; the thieving miners; and those unbelieving people who robbed churches.
To the fourth class belonged those who were imprisoned only because they stood morally higher than the average level of society. Such were the Sectarians, the Poles, the Circassians rebelling in order to regain their independence, the political prisoners, the Socialists, the strikers condemned for withstanding the authorities. There was, according to Nekhludoff's observations, a very large percentage belonging to this class; among them some of the best of men.
The fifth class consisted of persons who had been far more sinned against by society than they had sinned against it. These were castaways, stupefied by continual oppression and temptation, such as the boy who had stolen the rugs, and hundreds of others whom Nekhludoff had seen in the prison and out of it. The conditions under which they lived seemed to lead on systematically to those actions which are termed crimes. A great many thieves and murderers with whom he had lately come in contact, according to Nekhludoff's estimate, belonged to this class. To this class Nekhludoff also reckoned those depraved, demoralised creatures whom the new school of criminology classify as the criminal type, and the existence of which is considered to be the chief proof of the necessity of criminal law and punishment. This demoralised, depraved, abnormal type was, according to Nekhludoff, exactly the same as that against whom society had sinned, only here society had sinned not directly against them, but against their parents and forefathers.
Among this latter class Nekhludoff was specially struck by one Okhotin, an inveterate thief, the illegitimate son of a prostitute, brought up in a doss-house, who, up to the age of 30, had apparently never met with any one whose morality was above that of a policeman, and who had got into a band of thieves when quite young. He was gifted with an extraordinary sense of humour, by means of which he made himself very attractive. He asked Nekhludoff for protection, at the same time making fun of himself, the lawyers, the prison, and laws human and divine.
Another was the handsome Fedoroff, who, with a band of robbers, of whom he was the chief, had robbed and murdered an old man, an official. Fedoroff was a peasant, whose father had been unlawfully deprived of his house, and who, later on, when serving as a soldier, had suffered much because he had fallen in love with an officer's mistress. He had a fascinating, passionate nature, that longed for enjoyment at any cost. He had never met anybody who restrained himself for any cause whatever, and had never heard a word about any aim in life other than enjoyment.
Nekhludoff distinctly saw that both these men were richly endowed by nature, but had been neglected and crippled like uncared-for plants.
He had also met a tramp and a woman who had repelled him by their dulness and seeming cruelty, but even in them he could find no trace of the criminal type written about by the Italian school, but only saw in them people who were repulsive to him personally, just in the same way as some he had met outside the prison, in swallow-tail coats wearing epaulettes, or bedecked with lace. And so the investigation of the reasons why all these very different persons were put in prison, while others just like them were going about free and even judging them, formed a fourth task for Nekhludoff.
He hoped to find an answer to this question in books, and bought all that referred to it. He got the works of Lombroso, Garofalo, Ferry, List, Maudsley, Tard, and read them carefully. But as he read he became more and more disappointed. It happened to him as it always happens to those who turn to science not in order to play a part in it, nor to write, nor to dispute, nor to teach, but simply for an answer to an every-day question of life. Science answered thousands of different very subtle and ingenious questions touching criminal law, but not the one he was trying to solve. He asked a very simple question: "Why, and with what right, do some people lock up, torment, exile, flog, and kill others, while they are themselves just like those whom they torment, flog, and kill?" And in answer he got deliberations as to whether human beings had free will or not. Whether signs of criminality could be detected by measuring the skulls or not. What part heredity played in crime. Whether immorality could be inherited. What madness is, what degeneration is, and what temperament is. How climate, food, ignorance, imitativeness, hypnotism, or passion act. What society is. What are its duties, etc., etc.
These disquisitions reminded him of the answer he once got from a little boy whom he met coming home from school. Nekhludoff asked him if he had learned his spelling.
"I have," answered the boy.
"Well, then, tell me, how do you spell 'leg'?"
"A dog's leg, or what kind of leg?" the boy answered, with a sly look.
Answers in the form of new questions, like the boy's, was all Nekhludoff got in reply to his one primary question. He found much that was clever, learned much that was interesting, but what he did not find was an answer to the principal question: By what right some people punish others?
Not only did he not find any answer, but all the arguments were brought forward in order to explain and vindicate punishment, the necessity of which was taken as an axiom.
Nekhludoff read much, but only in snatches, and putting down his failure to this superficial way of reading, hoped to find the answer later on. He would not allow himself to believe in the truth of the answer which began, more and more often, to present itself to him.
玛丝洛娃可能随第一批犯人遣送出去，因此聂赫留朵夫积极做着动身前的准备工作。但要做的事太多，他觉得无论有多少时间总归来不及。他现在的情况同以前正好相反。以前他要想出些事来做，而且永远只是为了一个人，为了德米特里·伊凡内奇·聂赫留朵夫。不过，尽管生活里的一切活动都是为了他聂赫留朵夫一个人，那些事情本身却都很乏味。现在的事情都是为了别人，不是为了他聂赫留朵夫，但这些事情却是有意义的，很吸引人，而且多得数不清。
不仅如此，以前别人为聂赫留朵夫办事总使他感到烦恼和不满；如今为别人做事却使他心情愉快。
聂赫留朵夫现在要做的事可分三类。他凭他的古板作风把事情这样分了类，并且据此把有关文件分别放在三个文件夹里。
第一类事是为了玛丝洛娃和对她的帮助。这方面主要就是为告御状奔走，争取支持，以及为西伯利亚之行做好准备。
第二类事是处理地产。在巴诺沃，土地已一交一给农民，由他们缴付地租，作为农民的公益金。但为了使这件事在法律上生效，必须立下契约和遗嘱，并且在上面签字。在库兹明斯科耶，事情仍象他原先安排的那样，就是他得收地租，得规定一交一租期限，并且确定从这笔钱中提取多少作为生活费，留下多少给农民做福利。他还不知道西伯利亚之行需要花多少钱，因此这笔收入他还不敢全部放弃，只是把它减去了一半。
第三类事是帮助囚犯们，而来求他的人也越来越多了。
起初，他遇到向他求助的犯人，总是立刻为他们奔走，竭力减轻他们的痛苦；但后来求助的人实在太多，他无法一一帮助他们，这样他就情不自禁地承担起第四类事来。这一类事他近来最感兴趣。
第四类事就是要解答这样一个问题：所谓刑事法庭这种奇怪的机关究竟是什么东西？有什么必要存在？是怎么产生的？有了这种机关，也就产生了他同一部分囚徒在其中相识的监狱，以及从彼得保罗要塞起到萨哈林岛止的种种监狱，而成千上万的人由于有了这么一部莫名其妙的刑法正在那里受尽苦难。
聂赫留朵夫通过他同囚徒的私人关系，通过他同律师、监狱牧师和典狱长的谈话，以及了解被监禁人的经历，他把囚徒，也就是所谓罪犯，归纳为五种人。
第一种是完全无罪的，是法庭错判的受害者。例如被诬告的纵火犯明肖夫，又如玛丝洛娃和其他人。这种人不很多，据神父估计，大约占百分之七，但他们的遭遇特别引人同情。
第二种人是在狂怒、嫉妒、酗酒等特殊情况下做了什么事而被判刑的。那些审判他们的人，要是处在同样情况下，多半也会做出这样的事来。这种人，据聂赫留朵夫估计，大概超过全体罪犯的半数。
第三种人受惩罚是由于他们做了自认为极其平常甚至良好的事，但他们的行为，按照那些和他们持有不同观点的制定法律的人看来，就是犯罪。属于这一种的有贩卖私酒的，有走私的，有在地主和公家大树林里割草打柴的。还有盗窃成一性一的山民、不信教的和打劫教堂的也属于这一种。
第四种人成为罪犯，只因为他们的品德高于社会上的一般人。这种人包括教派信徒，为争取独立而造反的波兰人和契尔克斯人，也包括为反抗政一府而被判刑的各种政治犯——社会主义者和罢工工人。这种人是社会上的优秀分子，据聂赫留朵夫估计，他们所占的百分比很大。
最后，第五种是这样一些人，社会对他们所犯的罪要比他们对社会所犯的罪重得多。他们被社会所抛弃，经常受到压迫和诱一惑，以致头脑愚钝，就象那个偷旧地毯的小伙子和聂赫留朵夫在监狱内外看到的几百名罪犯那样。他们不断受到生活的压力，以致做出那些所谓犯罪的行为来。据聂赫留朵夫观察，有好多盗贼和凶手就属于这一种。近来他同其中一部分人有过接触。至于那些道德败坏、腐化堕一落的，聂赫留朵夫通过深入了解，认为也可归到这一种。然而犯罪学新派却把他们称为“犯罪型”，认为社会上存在这种人，就是刑法和惩罚必不可少的主要证据。照聂赫留朵夫看来，社会对这些人所犯的罪，其实超过他们对社会所犯的罪，不过，社会不是对他们本人犯了罪，而是以前对他们的父母和祖先犯了罪。
在这些人中间，惯窃奥霍京特别吸引聂赫留朵夫的注意。奥霍京是一妓一女的私生子，从小在夜店里长大，活到三十岁也没有见过一个道德比警察更高尚的人。他从少年时代起就在盗贼群中厮混，却又天赋滑稽的才能，招人喜一爱一。他要求聂赫留朵夫帮忙，同时却又嘲笑自己，嘲笑法官，嘲笑监狱，嘲笑一切法律——不但嘲笑刑法，而且嘲笑神的律法。另一个是相貌英俊的费多罗夫，他带领一伙匪徒劫掠一个年老的官吏，并把他打死。费多罗夫出身农民，他父亲的房屋被人家非法霸占，他自己后来当了兵，在军队里因为一爱一上军官的情一妇而吃尽了苦。这人天生活泼热情，到处寻一欢作乐。在他的心目中，天下没有一个人会克制欲一望，放弃享乐。他也从来不知道，人生在世除了享乐还有其他目的。聂赫留朵夫看得很清楚，这两个人都禀赋优异，只是缺少教养，以致畸形发展，犹如植物无人照管就会疯长，变成畸形一样。他还看见过一个流一浪一汉和一个女人，他们的麻木迟钝和表面残酷使人望而生畏，但他怎么也看不出他们就是意大利犯罪学派所谓的“犯罪型”。他只觉得他个人讨厌他们，就象他讨厌监狱外面那些穿礼服、佩肩章的男人和全身饰满花边的女人一样。
这样，为什么上述形形色一色的人都在坐牢，而另一些同他们一样的人却自一由自在，还可以对他们进行审判？这就是聂赫留朵夫所关心的第四类事。
聂赫留朵夫起初想从书本上找到这问题的答案，他就把凡是同这问题有关的书都买来。他买了龙勃罗梭、嘉罗法洛、费利、李斯特、摩德斯莱、塔尔德①的著作，用心阅读，但越读越感到失望。有些人研究学问，目的不是在学术方面做点什么事，例如写作、辩论、教书等等，而是在寻找一些简单的生活问题的答案，但结果往往失望。聂赫留朵夫现在碰到的就是这样的情况：学术给他解答了成千个同刑法有关的深奥问题，可就是没有解答他的问题。他提出的问题很简单。他问：为什么有些人可以把另一些人关押起来，加以虐一待、鞭挞、流放、杀害，而他们自己其实跟被他们虐一待、鞭挞、杀害的人毫无区别？他们凭什么可以这样一胡一作非为？回答他的却是各种各样的议论：人有没有表达自己意志的自一由？能不能用头盖骨测定法来判断一个人是不是属于“犯罪型”？遗传在犯罪中起什么作用？有没有天生道德败坏的人？究竟什么是道德？什么是疯狂？什么是退化？什么是气质？气候、食物、愚昧、摹仿、催眠、情一欲对犯罪有什么影响？什么是社会？社会有哪些责任？等等，等等。
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①关于龙勃罗梭和塔尔德，请参看本书第一部第二十一章脚注。嘉罗法洛（生于1852年）和费利都是意大利犯罪学家，龙勃罗梭的信徒。李斯特（1789—1846）是德国经济学家。摩德斯莱（1835—1918）是英国心理学家。
这些议论使聂赫留朵夫想起一个放学回家的男孩曾怎样回答他的问题。聂赫留朵夫问他有没有学会拼法。男孩回答说：“学会了。”“好，那么你拼一下‘爪子’这个词。”“什么‘爪子’？是狗爪子吗？”那个男孩就这样狡猾地回答他。在那些学术著作里，聂赫留朵夫为他的主要问题所找到的，也就是这种反问式答案。
那些书里有许多聪明、深奥、有趣的见解，但就是没有回答他的主要问题：凭什么有些人可以惩罚另一些人？不仅没有回答这个问题，而且所有的议论都归结为一点，那就是替惩罚作辩解，认为惩罚必不可少，这是天经地义。聂赫留朵夫看了很多书，但断断续续，这样他就把找不到答案归咎于钻研不足，希望以后能找到答案。就因为这个缘故，他还不能肯定近来越来越频繁地盘旋在头脑里的那个答案①。
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①指前面第二十七章结尾提出的那个答案：“所有这些人被捕、被关或者被流放，绝对不是因为他们有什么不义行为，或者有犯法行为，而只是因为他们妨碍官僚和富人据有他们从人民头上搜刮来的财富。”