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The Theory of Punishment

Author(s): Hastings Rashdall


Source: International Journal of Ethics, Vol. 2, No. 1 (Oct., 1891), pp. 20-31
Published by: The University of Chicago Press
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20

International57ournalof Ethics.

THE THEORY OF PUNISHMENT.*


THERE was a time when the notion that blood demands
blood was held so firmlyand so crudelythat littledistinction
was made between intentionaland unintentionalacts of homicide. Ancient law abounds in tracesof this inveterateinstinct
of primitivehumanity. We see the legislatorof the Pentateuch endeavoring to limit its operation by the institutionof
Cities of Refuge,whose walls protectedtheunintentional
homifurther
the
cide against
pursuitby
avengerof blood. We see
the same inabilityto distinguishbetween voluntaryand involuntaryhomicide in the curious notions of the Canon Law
(still, perhaps,theoreticallyin force) about the " irregularity"
contracted by consecrated persons and consecrated places
throughthe most unwittingbloodshed, and not contractedby
the mostatrociousviolencewhich involvesno physical effusion
of blood. We see the same curious but once usefulsuperstition in the old law of Deodand, which,required the forfeiture
of the inanimateobject or the irrationalanimal which had, in
the most accidentalway, been the instrumentof man's death.
Thus even the horse fromwhicha fatalfallhad been sustained,
or the boat fromwhich a man had drownedhimself,weremade
the subjects of this peculiar application of retributivejustice.
At the present day the cruderformsof this old-worldcry of
blood for blood are no longer heard; but what is, perhaps,
afterall only a more refinedformof the same fundamental
notion lingers in the theorywhich makes the primaryobject
of punishmentto be retribution. A man has done wrong,
thereforeforthat reason and forno other,it is said, let him be
punished. Punishment,we are told, is an end in itself,-not
a means to any end beyond itself. Punishmentlooks to the
past, not to the future. The guilt of the offencemust be, in
* The substanceof thispaperwas pleached as an Assize Sermonat St. Mary's,
Oxford,in February,189i.

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The Theoryof Punishmnen.

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some mysteriousway, wiped out by the sufferingof the


and that obliterationor cancellingof the guilt-stained
offender,
record,be it noticed,is conceived of as quite independentof
any effectto be produced upon the suffererby his bodily or
mental pain. For, the momentwe insistupon the effectproduced upon the sufferer'ssoul by his punishment,the retribor the deterrent.
utivetheoryis desertedforthe reformatory
" Juridicalpunishment,"says Kant, " can neverbe administered merelyas a means for promotinganother good, either
withregardto the criminalhimselfor to civil society,but must
in all cases be imposed, only because the individualon whom
The penal law is
it is inflictedhas committeda crime.
a categoricalimperative; and woe to himwho creeps through
to discover some advanof utilitarianism
the serpent-windings
tage that may discharge him fromthe justice of punishment,
or even the due measure of it !" He goes on to defend the
lex talionis as the only just principle for the allotment of
penaltyto crime, and to make the famous declaration that,
" if a civil societyresolved to dissolve itselfwith the consent
of all its members(so that punishmentwould be no longer
required for deterrentpurposes), the last murdererlying in
the prison ought to be executed before the resolution was
carriedout." *
There you have the retributivetheorypropounded by the
prince of modern philosophers; and it is still defended by
philosophers and philosophic jurists in Germany,England,
and America. For most of us, whetheror not we have consciously abandoned the theory,this view exercises but little
influenceover our ideas of human justice, though it is to be
fearedthat it stillcasts a black shadow over men's conceptions
of thatfuturepunishment,which reason compels the Theist to
expect forunrepentedsin.
to argue against a theorywhose truthor falseIt is difficult
hood must be decided foreach of us by an appeal to his own
moral consciousness,-by the answer which he gives to the
simple question whether he does or does not in his best
* Kant's " Philosophyof Law," E. T. by Hastie, 1887, p. 195 if.

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International-7ournalof Ethics.

momentsfeelthis mysteriousdemand that moral guilt should


be atoned by physicalpain. That the sightof wrong-doingparticularlywhen it takes the formof cruelty-does inspirea
sentimentof indignantresentmentin healthyminds,and that
it is rightand reasonable that in all legal ways that sentiment
should be gratified,no sensible person will deny. But that is
only because experienceshows that the inflictionof pain upon
offendersis one of the mosteffectual
ways-and in some cases
the onlyeffectual
way-of producingamendment. The question is whether,apartfromits effects,
therewould be any moral
proprietyin the mere inflictionof pain for pain's sake. A
wrong has been done-say, a crime of brutal violence; by
that act a double evil has been introduced into the world.
There has been so much physical pain for the victim,and so
much moral evil has polluted the offender'ssoul. Is the case
made any better by the addition of a thirdevil,-the pain of
the punishedoffender,
which ex hypothesi
is to do him no moral
good whatever? If,as enlightenedphilanthropists
sometimes
seem to imagine,the directeffectof all punishmentthatreally
is punishmentwere to inspire the offenderand others with
a passionate desire to repeat the offence,-ifin our prisonsa
liberal diet,genial society,free communicationwith the outside world,artisticcells, abundant leisure and varied amusementwere found in practice to be more deterrentand more
reformatory
than solitude and plank bed, skilly and the narrow exercising yard, would the philosopher of K6nigsberg
himselfhave forbiddenthe institutionof a code of graduated
rewardsforour presentbarbaricsystemof pain-givingpunishments?
Perhaps the simplestway of satisfyingourselves that it is
impossible to reconcile the intuitivetheory of punishment,
eitherwiththe actual practiceof our courts or withany practicablesystemofjudicialadministration,
willbe to noticea modificationof the theoryby Mr. Herbert Bradley. Mr. Bradley
seems to be so much struckwith the obvious disproportion
between the moral and the legal aspect of various offences,
that he actuallygives up the doctrinethat the amountof punishment should correspondwith the amount of the offence,

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The Theoryof Punishment.

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while still maintainingthat punishmentin general is justified


only by the past sin, not by the futureadvantage.
"We pay thepenaltybecause we owe it,and forno otherreason; and ifpunishmentis inflicted
forany otherreasonwhatever,thanbecause it is meritedby
a cryinginjustice,an abominablecrime,and not
wrong,it is a grossimmorality,
we
whatit pretendsto be. We mayhave regard for whateverconsiderations
please,-our own convenience,the good of society,the benefitof the offender;
we are fools,and worse,if we fail to do so. Having once t~e rightto punish,
we maymodifythe punishmentaccordingto the useful and the pleasant,but
theseare externalto thematter; theycan give us no rightto punish,and nothing
can do thatbutcriminaldesert. . . . Yes, in spiteof sophistry,
and in the face
withwell-nighthe whole body of our self-styledenlightenof sentimentalism,
mentagainstthem,our people believeto thisday thatpunishmentis inftictedfor
thesake of1punishment,"
etc.*

Now, in the firstplace, is this consistent? If punishment


is " modified"for utilitarianreasons,does not that mean that
it is inflictedpartlyforretributionand partlyfor some other
reason? If so, we do not pay the penaltybecause we owe it,
and for no otherreason. And, secondly,is it logical ? If sin
by itself confersthe rightand imposes the duty of punishment,theremustbe a right to inflicteithera definiteamount
of punishmentor an infiniteamount. If the latter,it is obvious that the state will always have the right to inflictany
quantityof punishmentit pleases upon any of its citizensat
any time,since all have sinned and incurredtherebyunlimited liabilityto punishment. " Use everyman according to
his deserts,and who should 'scape whipping?" Such a contentionwould renderthe whole theorynugatory. If, on the
other hand, wrong-doingconfersa right to inflicta merely
limited amount of punishment,Mr. Bradley is open to the
followingobjections:
(i) How can this amount be fixed? How can moral guilt
be expressed in termsof physical pain? To any one who
believes that punishmentis justifiedby its effects,the right
or just amount of punishmentis that which will best serve
the ends for which punishmentexists,-i.e., deterrence and
reformation. But how, apart fromits end, can the amount
of punishmentdue to each offencebe fixed? I findin my
* {' Ethical Studies," i876,

pp. 25,

26.

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InternationalYournal of Ethics.

own mind no intuitionson the subject,and believe that if we


were all to-sitdown and attemptto writeout lists of crimes,
with the numberof lashes of the cat or monthsof imprisonmentwhich they intrinsicallymerit,we should findthe task
an extremelydifficult
one,and should arriveat verydiscordant
results. At all events,such a task would be hopelesslyout of
harmonywith the actual practice of the most enlightened
tribunals. It is obvious that drunkennessin a " gentleman"
will oftenbe, morallyspeaking,as culpable as burglaryin an
hereditarycriminal. But it is not so much the practical as
the theoretical impossibilityof the task that I wish to emphasize. The idea of expressingmoral guilt in the termsof
cat or birch-rod,gallows or pillory,hard labor or penal servitude, seems to be essentiallyand intrinsicallyunmeaning. I
can see no commensurability
betweenthe two things.
(2) Assuming this difficulty
removed,it is clear that when
the properamountof punishmenthas been inflicted,
the right
to punish has been exhausted. If any furtherpunishmentis
inflictedforutilitarianreasons, it will be simply,as Mr. Bradley premises,so much unjustifiablecruelty. If fortystripes
save one is the properpunishmentforany offence,
the fortieth
will be simplya common assault, no matterwhether it is inflictedby the privateindividualor by the public executioner.
(3) The only way of escape open to Mr. Bradley would be
to contendthat though the state may not for utilitarianreasons increase,it may forutilitarianreasons reduce the ideally
just punishment. The position is obviously an arbitraryone,
and it is open to this objection: it involves the admission
that in all cases wrong-doing confers a right,but does not
impose a duty of punishment. Can it be moral that society,
if it might,withoutfailurein duty,remitpunishment,should
punish just because it pleases so to do ? This would be to
admit thatwhetherwe shall punishor not is to be determined
by mere caprice. So, if you say that it is duty to punish,except where utilitarianconsiderations demand that less than
the ideal amount should be inflicted,you practicallyadmit
thatwhether any punishmentshould be inflictedat all, and
how much, must be determinedby utilitarianconsiderations.

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The theoryof an intuitivecommand to punish will have reduced itselfto the somewhat barrenassertion that you have
no rightto punish except where therehas been wrong-doing.
This is a propositionwhich it is hard to dispute, since, as
a general rule,the public purpose is served by hanging the
wrong man. There are, however,cases where it must be admitted that sufferingmay lawfullybe inflictedon innocent
persons,-e.g., where a barony or a hundred is made to pay
compensationto persons injured in a riot,or where a savage
village that has sheltereda murdereris burnt by a European
man-of-war. These are two exceptional crises in which it is
necessary,in the interestsof society,to be less exacting in the
matterof evidence than a civilized state ought to be in quiet
times.
and disputable
We are here,however,strayinginto difficult
questions of ethics,and it is best to be contentwith simply
pointing out that when we have applied to the theorythe
qualificationswhich are demanded by the obvious facts,it is
reduced to very modest limits. It amounts simply to the
assertion that punishment should be inflictedonly on the
guilty; it admits that in its inflictionthe legislator should be
governed by utilitarianconsiderations,that is, by the end
which punishmentactually serves.
From the pointof view whichwe have hithertobeen taking,
the retributivetheorywill appear to most of us a mere survival of by-gone modes of thought. Yet, as is oftenthe case
with theories on whose vitalityrefutationseems to have no
effect,the retributivetheoryof punishmentcontains a good
deal of truthat the bottom of it,-deeper truthperhaps than
the Benthamiteview, which has taken its place in popular
philosophy. There are, I think,threeelementsof truthwhich
the retributive
view of punishmentrecognizes,and which the
ordinaryutilitarianview oftenignores.
(i) Firstly,it possesses historicaltruth. It is correctas an
explanation of the origin of punishment. Criminal law was
in its origin a substitute for private' vengeance. That is
shown by the Jewish law of homicide,by the Saxon system
of Wergilt,and by the Roman law, which punished the thief

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Internattional
-7ournalof Ethics.

caught red-handed twice as severelyas the thief convicted


afterwardsby evidence taken in cold blood. The theorywas
that the ownerwould naturallybe twice as angry in the first
case as in the second,though,of course,the injurydone either
to himselfor the communitywould be preciselythe same.
And this connection between punishmentand vengeance is
not simplya matterof history. It is still (as Sir HenryMaine
has insisted*) one of the purposes of punishmentto serve as
an outlet,a kind of safety-valve,for the indignation of the
community. All laws ultimatelydepend for their enforcement upon the public sentimentin their favor; hence the
legislatorcannot affordto take no account of popular sentimentin theiradministration. There are many featuresof the
moderncriminallaw which can only be defended on account
of the desirabilityof keeping up a certainproportionbetween
the measure of public indignationand the measure of legal
penalty, for instance,the distinctionmade between accomplished crimes and attempts at crimes which have failed
volition. Public
throughcauses independentof the offender's
opinion will sanction capital punishmentwhen the blood of a
brotherman seems to cry forvengeance fromthe ground; it
would not tolerate an execution for an attempted murder
which has failed through a pistol missing fire. It may be
doubted whether this irrational mode of estimatingpunishmentby the actual and not by the intendedeffectsof an act,
is not sometimes carried unnecessarilyfar,as when,for instance,a magistrateremands a prisoner to see how his victim's wounds progress. Whence it would seem to follow
that since a total abstainer's wounds heal sooner than a
drunkard's,a man is to be punishedmoreseverelyforstabbing
a drunkardthan forstabbinga total abstainer. In ways like
this,deferenceto popular sentimentmay be carried too far,
but therecan be no doubt of the soundness of the principle
that the criminallaw, Whileit seeks to guide, must not go too
far ahead of popular sentiment,nor yet (as American lynch
law occasionally remindsus) lag too farbehind it.
* " AncientLaw," 4th ed., 1870, p. 389..

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held in solution by the retribu(2) The second half-truth


as well
tive theoryis the factthatpunishmentis reformatory
found
it
will
be
on
as plainly deterrent. Very often,indeed,
examinationthat those who most loudly clamor for reformatory punishmentsdo not really believe in the reformatory
effectof punishmentat all. Punishmentis necessarilypainful,or it ceases to be punishment. Those people who denounce any particular punishmenton the ground that it is
painful,really mean that you ought to reformcriminalsinsteadofpunishingthem. Now, of course,it is the dutyof the
state to endeavor to reformcriminals as well as to punish
them. But when a man is induced to abstain fromcrimeby
the possibility of a better life being brought home to him
through the ministrationsof a prison chaplain,througheducation,througha book fromthe prison library,or the efforts
of a Discharged Prisoners'Aid Society, he is not reformedby
agencies
punishmentat all. No doubt thereare reformatory
much more powerfulthan punishment; and without the cooperationof such agencies it is rarelythat punishmentmakes
the criminal into a better man. But it is none the less true
that punishmentdoes help to make men better,and not simply
to induce themto abstain frompunishableacts forfearof the
consequences. At firstsightthis may seem to be a paradox;
but it seems so only when we forgetthat everyman has in
him a better self,as well as a lower self. And if the lower
selfis kept down by the terrorof punishment,higher motives
are able to assert themselves. Fear of punishmentprotectsa
man againsthimself. If in the treatmentof criminalswe have
to thinkmuch more of the deterrentthan of the reformatory
effectsof punishment,it is otherwisein education. Fear of
punishmentby itselfwill seldom turnan idle boy into a diligent one; but there are few boys who could be trusted to
work their best at all times,if in theirweaker momentsthey
were not kept to theirduty by a modicum of fear; and there
are fewof us, perhaps,whose conductwould not fallstill furtherbehind our own ideal than it actually does, if our better
selves were not sometimesre-enforcedby fearof punishment,
-at least in the formof social disapprobationor loss of repu-

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InternationalYournal of Ethics.

tation. And in the case of actual crime,thatconvictionof the


externalstrengthof the moral law which punishmentbrings
with it is usually at least the conditionof moral improvement;
though that convictionwill not make a man morally better,
unless the externaljudgment is ratifiedand confirmedby the
appellate tribunalof his own conscience. Nevertheless,this
external respect for the moral law is the firststep to the
recognitionof its internal,its intrinsicauthority.
Plausible as it looks to deny a priori that mere pain can
the absurdityof the contentionbecomes
produce moraleffects,
evidentwhen it is seen that it involves the assertion that no
external conditions have any moral effectupon character.
Yet it is matterof common experience that men's characters
are powerfullyaffectedby misfortune,bereavement,poverty,
disgrace. Adversity is not, of course, uniformlyand necessarily productive of moral improvement. But no one will
deny that under certain circumstancesand with men of cergreat moral changes are oftenproduced
tain temperaments,
by calamityof one kind or another. In some cases the effect
is directand immediate; in other cases it operates indirectly
throughthe awakeningof religious emotions. In eithercase,
of course, all that the misfortunedoes is to create conditions
of mind favorable to the action of higher motives and considerations, or to remove conditions unfavorable to their
side, may be said to
action. Punishment,on its reformatory
be an artificialcreationof conditions favorableto moral improvement. The artificialcreationof such conditionshas, of
that it is seen
course,this advantage over ordinarymisfortune,
to be the necessaryconsequence of the wrong-doing,which
is not necessarilythe case with other alterationsof circumstances.
In view of these considerations,we may,perhaps,go one
step furtherand maintain that even in cases where punishwhere the tendencies
effect,
mentwill not have a reformatory
to evil are too strong to be kept in check by fear,even then,
punishmentmay be, in a sense, for the moral good of the
offender. Wickedness humbled and subdued, though it be
only by external force,is a healthier moral condition than

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The Theoryof Punishment.

29

wickednesssuccessfuland triumphant. That is the extremest


point to which we can go withthe advocates of the vindictive
theory. This is, I suppose, the truth which underlies the
hackneyed expressions about avenging the insult offeredto
the morallaw, vindicatingthe moral law, assertingits majesty,
and so on. We recognize that punishmentmay sometimes
be right,in the interestsof the offenderhimself,even when it
fails to deter. But still,it is always a certain effecton consciousness that constitutesits justification,not merely the
satisfactionof an impersonaland irrationallaw.*
A word will sufficeto indicate the third and the highest
truthwhich the vindictivetheoryof punishmentcaricatures.
It is the truth-the great Aristoteliantruth-that the state
has a spiritualend.
We all know that experience sets tolerablystrictlimitsto
the extentto which it is desirablethat the state should interferewith personal libertyand private life in the pursuit of
moraland spiritualends. There are manygravemoraloffences
which the state may reasonably refuse to punish for quite
other reasons than indifferenceto moral well-being. The
offencemaybe incapable of exact definition. It mightrequire
for its detectiona police-forcewhich would be a public burden, or involve an inquisitorial procedure, or give rise to
black-mailingand false accusation to an extentwhich would
constitutea greaterevil than the offenceitself. The experience of the ecclesiastical court,which continuedin fulloperation in this country down to i642, would affordplenty of
illustrationsof the evils incident to such attemptsto extend police supervisionto the details of private life.t Very
* I should be prepared to recognizea largeramountof truthin the a priori
if the idea of punishmentwere to be confinedsimplyto
view of punishment,
the withholdingof good things,to whattheologianshave called apeena damne.
That the bad oughtnotto be made happy,is a more reasonablepropositionthan
the contentionthat theyought to be made miserablewith no ulteriorobject.
Furtherdiscussionof this thesis would seem, however,to belong ratherto the
theoryof rewardthanto the theoryof punishment.
t Since the penances imposed by the ecclesiastical courtswere (and theono distinctionin principlecould be
reticallyare) enforceableby imprisonment,
drawnbetweentheiractionand thatof the state.

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arises largely fromthe factthat


often,no doubt,the difficulty
the attemptputs too great a strainupon the moral sense of
the community. Many offencesmay be, on the whole, condemned by public opinion which are not condemnedwithsufficientearnestnessto secure the enforcementof the criminal
law against them. With all these admissions,it must still be
contended that the state is perfectlyentitledto repress immorality. If an act is not inconsistentwith the true wellbeing eitherof the individual or that of society,it is not immoral; and, even if it were admitted that the state should
with conduct affectingonly the well-beingof the
not interfere
individual,it is impossiblethat any act which affectsthe wellbeing of an individual should be without consequences for
othersalso. The distinctionbetween crimesand sins can be
found only in considerations of social utility. A crime is
simplya sin which it is expedient to repressby penal enactment.* Every civilized state punishes some offenceswhich
cannot be said to be injurious to the "public good," unless
moral well-beingis consideredto be part of the public good.
It must be rememberedthat it is not merelyby actual and
directintimidationthat the state can promotemorality. The
criminal law has an importantwork to do in giving expression to the 'moralsense of the community. Popular ideas as
to the moral gravityof many offencesdepend largely upon
the punishmentwhich is awarded to them by the criminal
courts. There are probablythousands who have hardlyany
distinctideas about sin except those which are inculcatedat
Assizes and PettySessions. It is no uncommon experience
fora clergymanto be told by a dying man-notorious, it may
be, for fornicationor drunkennessor hard selfishness-that
he has nothing to reproach himselfwith,his conscience is
quite clear, he has never done anythingwrong that he knows
of,he has no reason to be afraid to meet his God, and so on.
Then upon inquiryit turns out that what the poor fellow
* In practice,of course,thistermis usuallyreservedfor the graverkindsof
such offences. We do nottalk aboutthe crimeof havingone's chimneyset on
fire.

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The Theoryof Punishment.

really means is that he has done nothingforwhich he could


have been sent to prison.
There are many offenceswhich the state can do littleto
check by the directly deterrenteffortsof punishment,but
which it can do much to prevent by simplymaking them
punishable. Since a few persons with good coats have
actually been sent to prison for briberyat elections,the respectable public has really begun to suspect that theremust
be somethingwrong in the practice. A very little reflection
estimateswhich are formedof these forms
upon the different
of immoralityor of dishonestyforwhich people go to prison,
and of those forwhich they do not go to prison,will show at
once the enormous importanceof the criminallaw in preventing the moral education of the public mind. While, therefore,thereare some kinds of wrong-doingwhich,eitherfrom
theiressential naturesor fromcollateral considerations,cannot be wisely dealt withby the criminal law, we may expect
that with the necessary moralization of a community,the
sphere of criminal law ought gradually to extend. In the
growingdisposition to enact and enforcelaws against gambling, to assist, if not to enforce,temperanceby act of Parliament,and to protectby the criminallaw the chastityof young
girls,we may recognizean instalmentof moral progress.
HASTINGS

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RASHDALL.

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