Глава VIII
ПРИРОДАТА НА ЦЕЛТА НА
ДРЖАВАТА И КОНСЕКВЕНТНИОТ ЛИМИТ НА ДРЖАВНАТА АКЦИЈА
…In short, then, compulsion
through punishment and the fear of it, though primarily acting on the lower
self, does tend, when the conditions of true punishment exist, (i.e. the
reaction of a system of rights violated by one who shares it), to a recognition
of the end by the person punished, and may so far be regarded as his own will,
implied in the maintenance of a system to which he is a party, returning upon
himself in the form of pain. And this is the theory of punishment as
retributive. The test of doctrine of the theory may be found in Kant’s saying
that, even though a society were about to be dissolved by agreement, the last
murderer in prison must be executed before it breaks up. The punishment is, so
to speak, his right, of which he must not be defrauded.
There are two natural perversions
of this theory.
The first is to confuse the
necessary retribution or reaction of the general self, through the State, with
personal vengeance. Even in the vulgar form, when a brutal murder evokes a
general desire to have the offender served out, the general or social
indignation is not the same as the selfish desire to revenge. It is the
offspring of a rough notion of law and humanity, and of a feeling that a
striking aggression upon them demands to be strikingly put down. Such a
sentiment is a part of the consciousness which maintains the system of rights,
and can hardly be absent where that consciousness is strong.
The second perversion consists in
the superstition that punishment should be “equivalent” to offence. In a sense,
we have seen, it is identical; i.e.,
it is a return of the offender’s act upon himself by a connection inevitable in
a moral organism. But as for equivalence of pain inflicted, either with the
pain caused by the offence or with its guilt, the State knows nothing of it and
has no means of securing it. It cannot estimate either pain or moral guilt.
Punishment cannot be adapted by to factors which cannot be known. And further,
the attempt to punish for immorality has evils of its own. The graduation of
punishments must depend on wholly different principles, which we will consider
in speaking of punishment as preventive or deterrent.
iii. The graduation of
punishments must be almost entirely determined by experience of their operation
as deterrents. It is to be born in mind, indeed, (i.) that the “reversionary
rights” of humanity in the offender are not to be needlessly sacrificed, and
(ii.) that the true essence of punishment, as punishment, the negation of the
offender’s anti-social will, is not in some way to be secured. But these
conditions are included in the preventive and deterrent theory of punishment,
if completely understood; if, that is to say, it is made clear precisely what
is that is to be prevented.
If we speak of punishment, than,
as having for its aim to be deterrent or preventive, we must not understand
this to mean that majority, or any person in power, may rightly prevent, by the
treat of penalties, any acts that seem to them to be inconvenient.
That which is to be prevented by
punishment is a violation of the State-maintained system of rights by a person
who is a party of that system, and therefore the above-mentioned conditions,
implied in a true understanding of the reformatory and retributive aspects of
punishment, are also involved in it as deterrent. But, this being admitted, we
may add to them the distinctive principle on which a deterrent theory insists.
If a lighter punishment deter as effectively as heavier, it is wrong to impose
the heavier. For the precise aim of State action is the maintenance of rights;
and if rights are effectively maintained without heavier punishment, the aim of
the State does not justify its imposition. It is well known that success in the
maintenance of rights depends not only on the severity of punishments, but also
on true adjustment of the rights themselves to human ends, and on the certainty
of detecting crime which is a result of efficient government. And it must
always be considered, in dealing with a relative failure of the deterrent power
of punishment in regard to certain offences, whether a better adjustment of
rights or a greater certainty of detection will not meet the end more
effectively than increase severity of punishment. We have seen that the
equivalence of punishment and offence is really a meaningless superstition. And
there is no principle on which punishment can be rationally graduated, except
its deterrent power as learned by experience. This view corresponds to the true
limits of State action as determined by the means at its disposal compared with
the end which is its justification, and is therefore, when grasped in its full
meaning as not denying to the nature of punishment, the true theory of it.
We saw, in speaking of punishment
as retributive, in what sense it can and cannot rest upon a judgment imputing
moral guilt. Of degrees of moral guilt as manifested in particular acts of
individuals, the State, like all of us, is necessarily ignorant. But this is
not to say that punishment is wholly divorced from a just moral sentiment.
Undoubtedly it implies and rests upon a disapproval of that hostile attitude to
the system of rights which is implied in the realised intention constituting
the violation of right. Though in practice the distinction between civil and
criminal law in England carries out no thoroughly logical demarcation, yet it
is true on the whole to say with Hegel that, in the matter of a civil action,
there is no violation of right as such, but only a question in whom a certain
right resides; while in a matter of criminal law there is involved an
infraction of rights as such, which by implication is a denial of the whole
sphere of law and order. This infraction the general conscience disapproves, and
its disapproval is embodied in a forcible dealing with the offender, however
that dealing may be graduated by other considerations.
I may touch here on an
interesting point of detail, following Green. If punishment is essentially
graduated according to its deterrent power, and not according to moral guilt,
how does it come to pass that “extenuating circumstances” are allowed to
influence sentences? That they do so really, if not nominally, even in England , there
can be no doubt. Is it not that they indicate a less degree of wickedness in
the offender that the offence in question would normally presuppose? It would
seem that judges themselves are sometimes under this impression. But it may
well be that they act under a right instinct and assign a wrong reason. For it
is impossible to get over the fact that moral iniquity is something which
cannot be really estimated. The true reason for allowing circumstances which
change the character of the act to influence the sentence is that, in changing
its character, they may take it out of case of class of offences to which it prima facie belongs, and from which men
need to be deterred by a recognised amount of severity. If man is starving and
steals a turnip, his offence, being so exceptionally conditioned, does not
threaten the general right of property, and does not need to be associated with
any degree of terror in order to protect that right. A man who steals under no
extraordinary pressure of need does what might become a common practice if not
associated with as much terror as is found by experience to deter men from
theft.
It may be said, in some
exceptional emergency, “but many men are now starving; ought not the theft of
food, on the principle of prevention, to be now punished with extreme severity,
as otherwise it is likely to become a common?” Or in general, ought not
severity to increase with temptation or
provocation, as a greater deterrent is needed to counterbalance this? The case
in which temptation or provocation is exceptional has just being dealt with.
But if abnormal temptation or provocation becomes common, as in famine, or in
some exited condition of public feeling, then it must be remembered that not
one right only, but the system of rights as such, is what State has to
maintain. If starvation is common, some readjustments of rights, or at least
some temporary protection of right to live, is the remedy indicated, and not,
or not solely, increased severity in dealing with theft. If provocation becomes
common, then the rights of those provoked must be remembered, and the
provocation itself perhaps made punishable, like the singing of faction songs
in Ireland .
Punishment is to protect rights, not to encourages wrongs.
Thus, we have seen the true
nature and aims of punishment as following from the aim of the State in
maintaining the system of rights instrumental to the fullest life. The three
main aspects of punishment which we have considered are really inseparable, and
each, if properly explained, expands so as to include the others. We may, in
conclusion, sum up the whole theory of State action in the formula which we
inherit from Rousseau – that Sovereignty is the exercise of the General Will.
First. All State action is
General in its bearing and justification, even if particular, or rather
concrete, in its details. It is embodied in a system of rights, and there is no
element of it which is not determined by a bearing upon a public interest. The
verification of this truth, through-out, form example, our English system of
public and private Acts of Parliament, would run a parallel to the logical
theory of the Universal Judgment as it passes into Judgments whose subjects are
proper names. But the immediate point is that no rights are absolute, or
detached from the whole, but all have their warrant in the aim of a whole,
which in same time implies their adjustment and regulation according to general
principles. This generality of law is practically an immense protection to
individuals against arbitrary interference. It makes every regulation strike a
class and not a single person.
And, secondly. All State action
is at bottom the exercise of Will; the real Will, or the Will as logically implied
in a intelligences as such, and more or less recognised as imperative upon
them. And, therefore, though in the form of force it acts through automatism,
that is, not directly as conscious Will, but through a system which gives rise
to acts by influences apparently alien, yet the root and source of the whole structure
is of the nature of Will, and its end, like the organic automatism, is to clear
the road for true volition; it is “forcing men to be free”. And in so far as by
misdirection of the automatic process it encroaches on the region of living
Will – the region where the good realises itself directly by its own force as a
motive – it is “sawing off the branch on which it seats, and superseding the
aim by the instrument.”
Chapter IX
Russeau’s Theory as Aplied to the Modern State: Kant, Fichte, Hegel
…
(првично издадена во 1899 год.)
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