LECTURES ON THE
PRINCIPLES OF POLITICAL OBLIGATION
L. The Right of the
State to Punish
183. It is true that when a crime
of certain sort, e.g. a cold blooded murder, has been committed, a popular
sympathy with the sufferer is excited, which expresses itself in the wish to
‘serve out’ the murderer. This has some resemblance to the desire for personal
revenge, but it is really quite different, because not egoistic. Indignation
against wrong done to another has nothing in common with desire to revenge a
wrong done to oneself. It borrows the language of private revenge, just as the
love of God borrows the language of sensuous affection. Such indignation is
inseparable from the interest in social well-being, and along with it, is the
chief agent in the establishment and maintenance of legal punishment. Law
indeed is necessary general, while indignation is particular in its reference;
and accordingly, the treatment of any particular crime, so far as determined by
law, cannot correspond with the indignation which crime excites, but the law
merely determines the general category under which the crime falls, and fixes
certain limits to the punishment that may be inflicted under that category. Within
those limits, discretion is left to the judge as to the sentence that he
passes, and his sentence is in part influenced by the sort of indignation
which, in the given state of public sentiment, the crime is calculated to
excite; though generally much more by his opinion as to the amount of terror
required for the prevention of prevalent crime. Now what is it in punishment
that this indignation demands? If not the sole foundation of public punishment,
it is yet inseparable from the public interest on which the system of rights,
with the corresponding system of punishments protective of rights, depends. In
whatever sense then, this indignation demands retribution in punishment, in
that sense retribution would seem to be a necessary element in punishment. It
demands retribution in the sense of demanding that the criminal should have his
due, should be dealt with, according to his deserts, should be punished justly.
184. This is quite a different
thing from an equivalence between the amount of suffering inflicted by the
criminal and that which he sustains in punishment. The amount of suffering
which is caused by any crime is really as incalculable as that which the
criminal endures in punishment, whatever the punishment. It is only in a case
of death for murder that there is any appearance of equivalence between the two
sufferings, and in this case the appearance is quite superficial. The suffering
involved in death depends almost entirely on the circumstances, which is
absolutely different in the case of the murdered man and in that of the man
execute for murder. When a man is imprisoned with hard labor for robbery there
is not even an appearance of equivalence of suffering between the crime and the
punishment. In what then the justice of a punishment, or its correspondence
with the criminal’s deserts consist? It will not do to say that these terms
merely represent the result of an association of ideas between the crime and
the penalty which are accustomed to see inflicted on it; that society has come
to attach certain penalties to certain actions as a result of an experience (1)
of suffering and loss cause by these acts, and (2) of the kind of suffering of
which the expectation will deter men from doing them; and that these penalties
having become customary, the onlookers and the criminal himself, when one of
them is inflicted, feel that he has got what was to be expected, and call it
his due or desert or a just punishment. If this were the true account of
matter, there would be nothing to explain the difference between the emotion
excited by the spectacle of a just punishment inflicted, or the demand that it
should be inflicted, on the one side, and on the other, that excited by the
sight of physical suffering, following according to the usual course of things
upon a physical combination of circumstances, or the expectation that such
suffering will follow. If it is said that the difference is explained by the
fact that in one case both the antecedent (the criminal act) and the
consequent, represent voluntary human agency, while in the other – they do not,
we reply. Just so, but for that reason, the conception of a punishment, as just
differs wholly from any conception of it, that could result either from its
being customary, or from the infliction of such punishment having been commonly
found a means for protecting us against hurt.
185. The idea of punishment
implies, on the side of the person punished, at once a capacity for
determination by conception of a common or a public good, or in other words, a
practical understanding of the nature of rights, as founded on relation to such
public good, and an actual violation of right or omission to fulfill an
obligation, the right or obligation being one of which the agent might been
aware, and the violation or omission one which he might have prevented. On the
side of the authority punishing, it implies equally a conception of right
founded on relation on public good, and one which, unlike that on the part of
the criminal, is realized in act; a conception of which the punitive act, as
founded on a consideration of what is necessary for the maintenance of rights,
is the logical expression. A punishment is unjust if either element is absent;
if either the act punished is not a violation of known rights or omission to
fulfill known obligations of a kind which the agent might have prevented, or
the punishment is one that is not required for the maintenance of rights, or
(which comes to the same thing) if the ostensible rights for the maintenance of
which the punishment is required, are not real rights – not liberties of
action, or acquisition which there is any real public interest in maintaining.
186. When the specified
conditions of just punishment is fulfilled, the person punished himself
recognizes it as just, as he due or desert, and it is so recognized by the
onlooker who thinks himself into the situation. The criminal, being susceptible
to the idea of public good, and through it of rights, though this idea has not
been strong enough to regulate his actions, sees in the punishment its natural
expression. He sees that the punishment is his own act, returning on himself,
in the sense that it is necessary outcome of his act in a society governed by
the conception of rights – a conception which he appreciates, and to which he
does involuntary reverence.
It is the outcome of his act, or
his act returning upon himself in a different way from that in which a man’s
act return on himself when, having misused his body, he is visited according to
physical necessity by painful consequences. The cause of the suffering which
the act entails, in the one case, is the relation of the act to a society
governed by the conception of rights, in the other is not. For that reason, the
painful consequence of the act to the doer in one case is, in the other is not,
properly a punishment. We do indeed commonly speak of the painful consequences
of imprudent or immoral acts (immoral as distinct of illegal) as a punishment
of them, but this is either metaphorically, or because we think of the course
of the world, as regulated by a divine sovereign, whom we conceive as a
maintainer of rights, like the sovereign of the state. We may think of it as
divinely regulated, and so regulated with a view to the realization of moral
good, but we shall still not be warranted in speaking of the sufferings which
follow in the course of nature, upon certain kinds of conduct as punishments,
according to the distinctive sense in which crime is punished, unless we
suppose the maintenance of rights to be the object of the moral government of
the world – which is to put the cart before the horse, for as we have seen,
rights are relative to morality, not morality to rights (the ground on which
certain liberties of action and acquisition should be guaranteed as rights
being that they are conditions of the moral perfection of society).
While there would be reason,
then, as against those who say that the punishment of crime is merely
preventive, in saying that it is also retributive, if the needed correction of
the ‘merely preventive’ doctrine could not be more accurately stated, it would
seem that the truth can be more accurately stated by the proposition that
punishment is not justified unless it is just, and that is just unless the act
punished is an intentional violation of real right, or neglect of real obligation,
which the agent could have avoided, i.e. unless the agent knowingly and by
intentional act interferes with some freedom of action or acquisition, which
there is a public interest in maintaining, and unless the future maintenance of
rights requires that the criminal be dealt with, as he is in the punishment.
187. It is clear, however, that
this requirement that punishment of crime should be just may be covered by the
statement that in its proper nature it is preventive, if the nature of that
which is to be prevented by it, is sufficiently defined. Its proper function is
in the interest of rights that are genuine (in the sense explained), to prevent
actions of the kind described by associating in the mind of every possible doer
of them, a certain terror as is necessary on the whole to protect the rights
threatened by such action. The whipping of an ill-behaved dog is preventive,
but not preventive in the sense in which the punishment of crime is so, because
(1) the dog’s ill conduct is not an intentional violation of right, or neglect
of a known obligation, the dog having no conception of right or obligation, and
(2) for the same reason, the whipping does not lead to the association of
terror in minds of other dogs with the violation of rights or other obligations.
To shot men down who resist a successful coup d’tat may be effectually
preventive of further resistance to the government established by the coup
d’tat, but it does not satisfy the true idea of punishment because the terror
produced by the massacre is not necessary for the protection of genuine rights
– rights founded on public interest. To hang men for sheep-stealing, again,
does not satisfy the idea; because, it is a genuine right that the
sheep-stealing violates, in a society where there was any decent reconciliation
of rights, no such terror as it caused by the punishment of death would be
required for protection of the right. It is because the theory that punishment
is ‘merely preventive’ favors the notion that the repetition of any action which
any sufficient body of men find inconvenient, may justifiably be prevented by
any sort of terror that may be convenient for the purpose, that it requires to
be guarded by substituting for the qualifying ‘merely’ a statement of what it
is which the justifiable punishment prevents, and why it prevents it.
188. But, does our theory after
all has been said about the wrongness of punishment that is not just, afford
any standard for the apportionment of just punishment, any criterion of the
amount of interference with a criminal’s personal right that is appropriate to
his crime, except such as is afforded by a prevalent impression among men, as
to what is necessary for their security?
…
(изд. Т.Х. Грин: „Лекции
за принципите на политичката облигација“; Batoche books – Kitchener 1999)
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