Chapter X: Part 10

166. (2) Reverting then to the questions which arose [1] out of the assertion of a right to free life on the part of the individual man as such, it appears that the first must be answered in the negative. No state of war can make the destruction of man's life by man other than a wrong, though the wrong is not always chargeable upon all the parties to a war. The second question is virtually answered by what has been said about the first. In regard to the state according to its idea the question could not arise, for according to its idea the state is an institution in which all rights are harmoniously maintained, in which all the capacities that give rise to rights have free-play given to them. No action in its own interest of a state that fulfilled this idea could conflict with any true interest or right of general society, of the men not subject to its law taken as a whole. There is no such thing as an inevitable conflict between states. There is nothing in the nature of the state that, given a multiplicity of states, should make the gain of the one the loss of the other. The more perfectly each one of them attains its proper object of giving free scope to the capacities of all persons living on a certain range of territory, the easier it is for others to do so; and in proportion as they all do so the danger of conflict disappears.

[1] [Above, sec. 156. RLN]

167. On the other hand, the imperfect realisation of civil equality in the full sense of the term in certain states, is in greater or less degree a source of danger to all. The presence in states either of a prerogatived class or of a body of people who, whether by open denial of civil rights or by restrictive laws, are thwarted in the free development of their capacities, or of an ecclesiastical organisation which disputes the authority of the state on matters of right and thus prevents the perfect civil fusion of its members with other citizens, always breeds an imagination of there being some competition of interests between states. The privileged class involuntarily believes and spreads the belief that the interest of the state lies in some extension without, not in an improvement of organisation within. A suffering class attracts sympathy from without and invites interference with the state which contains it; and that state responds, not by healing the sore, but by defending against aggression what it conceives to be its special interests, but which are only special on account of its bad organisation. Or perhaps the suffering population overflows into another state, as the Irish into America, and there becomes a source not only of internal difficulty but of hostile feeling between it and the state where the suffering population still survives. People, again, who, in matters which the state treats as belonging to itself, take their direction from an ecclesiastical power external to the state under which they live, are necessarily in certain relations alien to that state, and may at any time prove a source of apparently conflicting interests between it and some other state, which under the influence of the hostile ecclesiastical power espouses their cause. Remove from European states, as they are and have been during the last hundred years, the occasions of conflict, the sources of apparently competing interests, which arise in one or other of the ways mentioned,--either from the mistaken view of state-interests which a privileged class inevitably takes, or from the presence in them of oppressed populations, or from what we improperly call the antagonism of religious confessions,--and there would not be or have been anything to disturb the peace between them. And this is to say that the source of war between states lies in their incomplete fulfilment of their function; in the fact that there is some defect in the maintenance or reconciliation of rights among their subjects.

168. This is equally true in regard to those causes of conflict which are loosely called 'religious.' These do not arise out of any differences between the convictions of different people in regard to the nature of God or their relations to Him, or the right way of worshipping Him. They arise either out of some aggression upon the religious freedom of certain people, made or allowed by the powers of the state, which thus puts these people in the position of an alien or unenfranchised class, or else out of an aggression on the rights of the state by some corporation calling itself spiritual but really claiming sovereignty over men's actions in the same relations in which the state claims to determine them. There would be nothing tending to international disturbance in the fact that bodies of people who worship God in the Catholic manner live in a state where the majority worship in the Greek or Protestant manner, and alongside of another state where the majority is Catholic, but for one or other or both of these circumstances, viz. that the Catholic worship and teaching is interfered with by the Protestant or Greek state, and that Catholics are liable to a direction by a power which claims to regulate men's transactions with each other by a law of its own, and which may see fit (e.g.) to prohibit the Catholic subjects in the Greek or Protestant state from being married, or having their parents buried, or their children taught the necessary arts, in the manner which the state directs. This reciprocal invasion of right, the invasion of the rights of the state by the church on the one side, and on the other the restriction placed by the sovereign upon the subject's freedom, not of conscience, (for that is impossible), but of expressing his conscience in word and act, has sometimes caused a state of things in which certain of the subjects of a state have been better affected to another state than to their own, and in such a case there is an element of natural hostility between the states. An obvious instance to give of this relation between states would have been that between Russia and Turkey, if Turkey could be considered to have been constituted as a state at all. Perhaps a better instance would be the position of Ireland in the past; its disaffection to England and gravitation, first to France, then to the United States, caused chiefly by Protestant penal laws which in turn were at least provoked by the aggressive attitude of the church towards the English state. Whenever a like invasion of rights still takes place, e.g. in the treatment of the Catholic subjects of Russia in Poland, in the ultramontane movement of resistance to certain requirements of the state among the Catholic subjects of Germany, it tends to international conflict. And what is now a somewhat remote tendency has in the past been a formidable stimulant to war.

169. It is nothing then in the necessary organisation of the state, but rather some defect of that organisation in relation to its proper function of maintaining and reconciling rights, of giving scope to capacities, that leads to a conflict of apparent interests between one state and another. The wrong, therefore, which results to human society from conflicts between states cannot be condoned on the ground that it is a necessary incident of the existence of states. The wrong cannot be held to be lost in a higher right, which attaches to the maintenance of the state as the institution through which alone the freedom of man is realised. It is not the state, as such, but this or that particular state, which by no means fulfils its purpose, and might perhaps be swept away and superseded by another with advantage to the ends for which the true state exists, that needs to defend its interests by action injurious to those outside it. Hence there is no ground for holding that a state is justified in doing whatever its interests seem to require, irrespectively of effects on other men. If those effects are bad, as involving either a direct violation of personal rights or obstruction to the moral development of society anywhere in the world, then there is no ultimate justification for the political action that gives rise to them. The question can only be (as we have seen generally in regard to the wrong-doing of war), where in particular the blame lies. Whether there is any justification for a particular state, which in defence of its interests inflicts an injury on some portion of mankind; whether, e.g., the Germans are justified in holding Metz, on the supposition that their tenure of such a thoroughly French town necessarily thwarts in many ways the healthy activity of the inhabitants, or the English in carrying fire and sword into Afghanistan for the sake of acquiring a scientific frontier; this must depend (1) on the nature of the interests thus defended, (2) on the impossibility of otherwise defending them, (3) on the question how they came to be endangered. If they are interests of which the maintenance is essential to those ends as a means to which the state has its value, if the state which defends them has not itself been a joint-cause of their being endangered, and if they cannot be defended except at the cost of injury to some portion of mankind, then the state which defends them is clear of the guilt of that injury. But the guilt is removed from it only to be somewhere else, however wide its distribution may be. It may be doubted, however, whether the second question could ever be answered altogether in favour of a state which finds it necessary to protect its interests at the cost of inflicting an injury on mankind.

170. It will be said, perhaps, that these formal arguments in proof of the wrong-doing involved in war, and of the unjustifiability of the policy which nations constantly adopt in defence of their apparent interests, carry very little conviction; that a state is not an abstract complex of institutions for the maintenance of rights, but a nation, a people, possessing such institutions; that the nation has its passions which inevitably lead it to judge all questions of international right from its own point of view, and to consider its apparent national interests as justifying anything; that if it were otherwise, if the cosmopolitan point of view could be adopted by nations, patriotism would be at an end; that whether this be desirable or no, such an extinction of national passions is impossible; that while they continue, wars are as inevitable between nations as they would be between individuals, if individuals were living in what philosophers have imagined to be the state of nature, without recognition of a common superior; that nations in short are in the position of men judging their own causes, which it is admitted that no one can do impartially; and that this state of things cannot be altered without the establishment of a common constraining power, which would mean the extinction of the life of independent states,--a result as undesirable as it is unattainable. Projects of perpetual peace, to be logical, must be projects of all-embracing empire.

171. There is some cogency in language of this kind. It is true that when we speak of a state as a living agency, we mean, not an institution or complex of institutions, but a nation organised in a certain way; and that members of the nation in their corporate or associated action are animated by certain passions, arising out of their association, which, though not egoistic relatively to the individual subjects of them (for they are motives to self-sacrifice), may, in their influence on the dealings of one nation with another, have an effect analogous to that which egoistic passions, properly so called, have upon the dealings of individuals with each other. On the other hand, it must be remembered that the national passion, which in any good sense is simply the public spirit of the good citizen, may take, and every day is taking, directions which lead to no collision between one nation and another; (or, to say the same thing negatively, that it is utterly false to speak as if the desire for one's own nation to show more military strength than others were the only or the right form of patriotism); and that though a nation, with national feeling of its own, must everywhere underlie a state, properly so called, yet still, just so far as the perfect organisation of rights within each nation, which entitles it to be called a state, is attained, the occasions of conflict between nations disappear; and again, that by the same process, just so far as it is satisfactorily carried out, an organ of expression and action is established for each nation in dealing with other nations, which is not really liable to be influenced by the same egoistic passions in dealing with the government of another nation as embroil individuals with each other. The love of mankind, no doubt, needs to be particularised in order to have any power over life and action. Just as there can be no true friendship except towards this or that individual, so there can be no true public spirit which is not localised in some way. The man whose desire to serve his kind is not centred primarily in some home, radiating from it to a commune, a municipality, and a nation, presumably has no effectual desire to serve his kind at all. But there is no reason why this localised or nationalised philanthropy should take the form of a jealousy of other nations or a desire to fight them, personally or by proxy. Those in whom it is strongest are every day expressing it in good works which benefit their fellow-citizens without interfering with the men of other nations. Those who from time to time talk of the need of a great war to bring unselfish impulses into play, give us reason to suspect that they are too selfish themselves to recognise the unselfish activity that is going on all round them. Till all the methods have been exhausted by which nature can be brought into the service of man, till society is so organised that everyone's capacities have free scope for their development, there is no need to resort to war for a field in which patriotism may display itself.

172. In fact, just so far as states are thoroughly formed, the diversion of patriotism into the military channel tends to come to an end. It is a survival from a condition of things in which, as yet, the state, in the full sense, was not; in the sense, namely, that in each territory controlled by a single independent government, the rights of all persons, as founded on their capacities for contributing to a common good, are equally established by one system of law. If each separately governed territory were inhabited by a people so organised within itself, there would be nothing to lead to the association of the public spirit of the good citizen with military aggressiveness,--an association which belongs properly not to the πολιτεία [1], but to the δυναστεία. The Greek states, however complete might be the equality of their citizens among themselves, were all δυναστείαι in relation to some subject populations, and, as such, jealous of each other. The Peloponnesian war was eminently a war of rival δυναστείαι. And those habits and institutions and modes of feeling in Europe of the present day, which tend to international conflict, are either survivals from the δυναστείαι of the past, or arise out of the very incomplete manner in which, as yet, over most of Europe the πολιτεία has superseded the δυναστεία. Patriotism, in that special military sense in which it is distinguished from public spirit, is not the temper of the citizen dealing with fellow-citizens, or with men who are themselves citizens of their several states, but that of the follower of the feudal chief, or of the member of a privileged class conscious of a power, resting ultimately on force, over an inferior population, or of a nation holding empire over other nations.

[1] [Greek πολιτεία (politeia) = constitutional government, particularly a city-state, δυναστεία/ι (dunasteia/i) = narrow oligarchy/ies Tr]

173. Standing armies, again, though existing on a larger scale now than ever before, are not products of the civilisation of Europe, but of the predominance over that civilisation of the old δυναστείαι. The influences which have given rise to and keep up those armies essentially belong to a state of things in which mankind--even European mankind--is not yet thoroughly organised into political life. Roughly summarised, they are these: (1). The temporary confiscation by Napoleon to his own account of the products of the French Revolution, which thus, though founded on a true idea of a citizenship in which not the few only, but all men, should partake, for the time issued in a δυναστεία over the countries which most directly felt the effects of the revolution. (2). The consequent revival in dynastic forms, under the influence of antagonism to France, of national life in Germany. (3), The aspiration after national unity elsewhere in Europe,--a movement which must precede the organisation of states on a sound basis, and for the time readily yields itself to direction by a δυναστεία. (4). The existence, over all the Slavonic side of Europe, of populations which are only just beginning to make any approach to political life--the life of the πολιτεία, or 'civitas '--and still offer a tempting field to the ambition of rival δυναστείαι, Austrian, Russian, and Turkish (which, indeed, are by no means to be put on a level, but are alike as not resting on a basis of citizenship). (5). The tenure of a great Indian empire by England, which not only gives it a military character which would not belong to it simply as a state, but brings it into outward relations with the δυναστείαι just spoken of. This is no doubt a very incomplete account of the influences which have combined to 'turn Europe into a great camp' (a very exaggerated expression); but it may serve to show what a fuller account would show more clearly, that the military system of Europe is no necessary incident of the relations between independent states, but arises from the fact that the organisation of state-life, even with those peoples that have been brought under its influence at all, is still so incomplete.

174. The more complete that organisation becomes, the more the motives and occasions of international conflict tend to disappear, while the bonds of unity become stronger. The latter is the case, if for no other reason, yet for this; that the better organisation of the state means freer scope to the individual (not necessarily to do as he likes, e.g. in, the buying and selling of alcohol, but in such development of activity as is good on the whole). This again means free intercourse between members of one state and those of another, and in particular more freedom of trade. All restrictions on freedom of wholesome trade are really based on special class-interests, and must disappear with the realisation of that idea of individual right, founded on the capacity of every man for free contribution to social good, which is the true idea of the state. And as trade between members of different states becomes freer and more full, the sense of common interests between them, which war would infringe, becomes stronger. The bond of peace thus established is sometimes depreciated as a selfish one, but it need be no more selfish than that which keeps the peace between members of the same state, who have no acquaintance with each other. In one case as in the other it may be said that the individual tries to prevent a breach of the peace because he knows that he has more to gain than to lose by it. In the latter case, however, this account of the matter would be, to say the least, insufficient. The good citizen observes the law in letter and in spirit, not from any fear of consequences to himself if he did not, but from an idea of the mutual respect by men for each other's rights as that which should be an idea which has become habitual with him, and regulates his conduct without his asking airy questions about it. There was a time, however, when this idea only thus acted spontaneously in regulating a man's action towards his family or immediate neighbours or friends. Considerations of interest were the medium through which a wider range of persons came to be brought within its range. And thus, although considerations of an identity of interests, arising out of trade, may be the occasion of men's recognising in men of other nations those rights which war violates, there is no reason why, upon that occasion and through the familiarity which trade brings about, an idea of justice, as a relation which should subsist between all mankind as well as between members of the same state, may not come to act on men's minds as independently of all calculation of their several interests as does the idea which regulates the conduct of the good citizen.

175. If the necessary or impelling power of the idea of what is due from members of different nations to each other is weak, it must be observed on the other hand that the individual members of a nation have no such apparent interest in their government's dealing unfairly with another nation as one individual may have in getting the advantage of another. Thus, so far as this idea comes to form part of the habit of men's minds, there ceases to be anything in the passions of the people which a government represents to stimulate the government to that unfairness in dealing with another government, to which an individual might be moved by self-seeking passions in dealing with another individual, in the absence of an impartial authority having power over both. If at the same time the several governments are purely representative of the several peoples, as they should become with the due organisation of the state, and thus have no dynastic interests of their own in embroiling one nation with another, there seems to be no reason why they should not arrive at a passionless impartiality in dealing with each other, which would be beyond the reach of the individual in defending his own cause against another. At any rate, if no government can ever get rid of some bias in its own favour, there remains the possibility of mediation in cases of dispute by disinterested governments. With the abatement of national jealousies and the removal of those deeply-seated causes of war which, as we have seen, are connected with the deficient organisation of states, the dream of an international court with authority resting on the consent of independent states may come to be realised. Such a result may be very remote, but it is important to bear in mind that there is nothing in the intrinsic nature of a system of independent states incompatible with it, but that on the contrary every advance in the organisation of man kind into states in the sense explained is a step towards it.

L. _THE RIGHT OF THE STATE TO PUNISH._

176. (3) We come now to the third of the questions raised [l] in regard to the individual's right to free life, the question under what conditions that right may be forfeited; the question, in other words, of the state's right of punishment. The right (i.e. the power secured by social recognition) of free life in every man rests on the assumed capacity in every man of free action contributory to social good ('free' in the sense of determined by the idea of a common good. Animals may and do contribute to the good of man, but not thus 'freely'). This right on the part of associated men implies the right on their part to prevent such actions as interfere with the possibility of free action contributory to social good. This constitutes the right of punishment, the right so far to use force upon a person (to treat him as an animal or a thing) as may be necessary to save others from this interference.

[1] [Above, sec. 156. RLN]

177. Under what conditions a person needs to be thus dealt with, what particular actions on his part constitute such an interference, is a question which can only be answered when we have considered what powers in particular need to be secured to individuals or to officials in order to the possibility of free action of the kind described. Every such power is a right of which the violation, if intended as a violation of a right, requires a punishment, of which the kind and amount must depend on the relative importance of the right and of the extent to which its general exercise is threatened. Thus every theory of rights in detail must be followed by, or indeed implies, a corresponding theory of punishment in detail, a theory which considers what particular acts are punishable, and how they should be punished. The latter cannot precede the former: all that can be done here is further to consider what general rules of punishment are implied in the principle on which we hold all right of punishment to rest, and how far in the actual practice of punishment that principle has been realised.

178. It is commonly asked whether punishment according to its proper nature is retributive or preventive or reformatory. The true answer is that it is and should be all three. The statement, however, that the punishment of the criminal by the state is retributive, though true in a sense that will be explained directly, yet so readily lends itself to a misunderstanding, that it is perhaps best avoided. It is not true in the sense that in legal punishment as it should be there survives any element of private vengeance, of the desire on the part of the individual who has received a hurt from another to inflict an equivalent hurt in return. It is true that the beginning of punishment by the state first appears in the form of a regulation of private vengeance, but it is not therefore to be supposed that punishment by the state is in any way a continuation of private vengeance. It is the essence of the former to suppress and supersede the latter, but it only does so gradually, just as rights in actuality are only formed gradually. Private vengeance belongs to the state of things in which rights are not as yet actualised; in the sense that the powers which it is for the social good that a man should be allowed to exercise, are not yet secured to him by society. In proportion as they are actualised, the exercise of private vengeance must cease. A _right_ of private vengeance is an impossibility; for, just so far as the vengeance is private, the individual in executing it is exercising a power not derived from society nor regulated by reference to social good, and such a power is not a right. Hence the view commonly taken by writers of the seventeenth and eighteenth centuries implies an entire misconception of the nature of a right; the view, viz., that there first existed rights of self-defence and self-vindication on the part of individuals in a state of nature, and that these came to be devolved on a power representing all individuals, so that the state's right of using force against those men who use or threaten force against other men, is merely the sum or equivalent of the private rights which individuals would severally possess if there were no public equivalent for them. This is to suppose that to have been a right which in truth, under the supposed conditions, would merely have been animal impulse and power, and public right (which is a pleonasm, for all right is public) to have resulted from the combination of these animal impulses and powers: it is to suppose that from a state of things in which 'homo homini lupus' by mere combination of wolfish impulses, there could result the state of things in which 'homo homini deus.'

179. In a state of things in which private vengeance for hurt inflicted was the universal practice, there could be no rights at all. In the most primitive society in which rights can exist, it must at least within the limits of the family be suppressed by that authority of the family or its head which first constitutes rights. In such a society it is only on the members of another family that a man may retaliate at pleasure a wrong done to him, and then the vengeance is not, strictly speaking, taken by individual upon individual, though individuals may be severally the agent and patient of it, but by family upon family. Just because there is as yet no idea of a state independent of ties of birth, much less of a universal society from relation to which a man derives rights, there is no idea of rights attaching to him as a citizen or as a man, but only as a member of a family. That social right, which is at once a right of society over the individual, and a right which society communicates and secures to the individual, appears, so far, only as a control exercised by the family over its members in their dealings with each other, as an authorisation which it gives them in prosecuting their quarrels with members of another family, and at the same time to a certain extent as a limitation on the manner in which feuds between families may be carried on, a limitation generally dependent on some religious authority equally recognised by the families at feud.

180. From this state of things it is a long step to the régime of law in a duly constituted state. Under it the arm of the state alone is the organ through which force may be exercised on the individual; the individual is prohibited from averting violence by violence, except so far as is necessary for the immediate protection of life, and altogether from avenging wrong done to him, on the understanding that the society, of which he is an organ and from which he derives his rights, being injured in every injury to him, duly protects him against injury, and when it fails to prevent such injury from being done, inflicts such punishment on the offender as is necessary for future protection. But the process from the one state of things to the other, though a long one, consists in the further development of that social right [1] which properly speaking was the only right the individual ever had, and from the first, or ever since a permanent family tie existed, was present as a qualifying and restraining element in the exercise of private vengeance so far as that exercise partook at all in the nature of a right. The process is not a continuance of private vengeance under altered forms, but a gradual suppression of it by the fuller realisation of the higher principle which all along controlled it.

[1] 'Social right,' i.e. right belonging to a society of persons recognising a common good, and belonging through membership of the society to the several persons constituting it. The society to which the right belongs, is in principle or possibility a society of all men as rendered capable of free intercourse with each other by the organisation of the state. Actually at first it is only this or that family; then some association of families; finally the state, as including all other forms of association, reconciling the rights which arise out of them, and thus the most perfect medium through which the individual can contribute to the good of mankind and mankind to his.

181. But it will be asked, how upon this view of the nature of punishment as inflicted by the state it can be considered retributory. If no private vengeance, no vengeance of the injured individual, is involved in punishment, there can be no vengeance in it at all. The conception of vengeance is quite inappropriate to the action of society or the state on the criminal. The state cannot be supposed capable of vindictive passion. Nor, if the essence of crime is a wrong done to society, does it admit of retaliation upon the person committing it. A hurt done to an individual can be requited by the infliction of a like hurt upon the person who has done it; but no equivalent of wrong done to society can be paid back to the doer of it.

182. It is true that there is such a thing as a national desire for revenge [1] (France and Germany): and, if a state = a nation organised in a certain way, why should it not be 'capable of vindictive passion'? No doubt there is a unity of feeling among the members of a nation which makes them feel any loss of strength, real or apparent, sustained by the nation in its corporate character, as a hurt or disgrace to themselves, which they instinctively desire to revenge. The corporate feeling is so strong that individuals feel themselves severally hurt in the supposed hurt of the nation. But when it is said that a crime is an offence against the state, it is not meant that the body of persons forming the nation feel any hurt in the sense in which the person robbed or wounded does, such a hurt as excites a natural desire for revenge. What is meant is that there is a violation of a system of rights which the nation has, no doubt, an interest in maintaining, but a purely social interest, quite different from the egoistic interest of the individual of which the desire for vengeance is a form. A nation is capable of vindictive feeling, but not so a nation as acting through the medium of a settled, impartial, general law for the maintenance of rights, and that is what we mean when we talk of the state as that against which crimes are committed and which punishes them.

[1] 'Happy shall he be that rewardeth thee as thou hast served us.'

183. It is true that when a crime of a 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 is really quite different, because not egoistic. Indignation against wrong done to another has nothing in common with a 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 necessarily 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 the 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 that 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 the 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 are absolutely different in the case of the murdered man and in that of the man executed for murder. When a man is imprisoned with hard labour for robbery, there is not even an appearance of equivalence of suffering between the crime and the punishment. In what then does 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 a crime and the penalty which we are accustomed to see inflicted on it; that society has come to attach certain penalties to certain actions as a result of the experience (1) of suffering and loss caused by those 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 the 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 the 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 the conception of a common or public good, or in other words a practical understanding of the nature of rights as founded on relations to such public good, and an actual violation of a right or omission to fulfil an obligation, the right or obligation being one of which the agent might have 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 to public good, and one which, unlike that on the part of the criminal, is realised 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 an omission to fulfil 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, are not liberties of action or acquisition which there is any real public interest in maintaining.

186. When the specified conditions of just punishment are fulfilled, the person punished himself recognises it as just, as his due or desert, and it is so recognised by the onlooker who thinks himself into the situation. The criminal, being susceptible to the idea of public good, and through it to the idea 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 the 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 returns 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 it is not. For that reason, the painful consequence of the act to the doer in the 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 from '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 a state. We may think of it as divinely regulated, and so regulated with a view to the realisation 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 it is not 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.[1]

[1] The conceptions of the just and of justice implied in this statement of the conditions of just punishment may be expressed briefly as follows. 'The just' = that complex of social conditions which for each individual is necessary to enable him to realise his capacity of contributing to social good. 'Justice' is the habit of mind which leads us to respect those conditions in dealing with others,--not to interfere with them so far as they already exist, and to bring them into existence so far as they are not found in existence.

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 with the contemplation of the act,--such 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 a 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 the minds of other dogs with the violation of rights and neglect of obligations. To shoot men down who resist a successful _coup d'état_ may be effectually preventive of further resistance to the government established by the _coup d'état_, 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, though it is a genuine right that sheep-stealing violates, in a society where there was any decent reconciliation of rights no such terror as is caused by the punishment of death would be required for the protection of the right. It is because the theory that punishment is 'merely preventive' favours 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 rights 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? Can we construe it so as to afford such a criterion, without at the same time condemning a great deal of punishment which yet society could be never brought to dispense with? Does it really admit of being applied at all in the presence of the admitted impossibility of ascertaining the degree of moral guilt of criminals, as depending on their state of character or habitual motives? How, according to it, can we justify punishments inflicted in the case of 'culpable negligence,' e.g. when an engine-driver, by careless driving, for which we think very little the worse of him, is the occasion of a bad accident, and is heavily punished in consequence?

189. It is true that there can be no _a priori_ criterion of just punishment, except of an abstract and negative kind. We may say that no punishment is just, unless the rights which it serves to protect are powers on the part of individuals or corporations of which the general maintenance is necessary to the well-being of society on the whole, and unless the terror which the punishment is calculated to inspire is necessary for their maintenance. For a positive and detailed criterion of just punishment, we must wait till a system of rights has been established in which the claims of all men, as founded on their capacities for contributing to social well-being, are perfectly harmonised, and till experience has shown the degree and kind of terror with which men must be affected in order to the suppression of the anti-social tendencies which might lead to the violation of such a system of rights. And this is perhaps equivalent to saying that no complete criterion of just punishment can be arrived at till punishment is no longer necessary; for the state of things supposed could scarcely be realised without bringing with it an extinction of the tendencies which state-punishment is needed to suppress. Meanwhile there is no method of approximation to justice in punishment but that which consists in gradually making the system of established rights just, i.e. in harmonising the true claims of all men, and in discovering by experience the really efficient means of restraining tendencies to violation of rights. An intentional violation of a right must be punished, whether the right violated is one that should be a right or no, on the principle that social well-being suffers more from violation of any established right, whatever the nature of the right, than from the establishment as a right of a power which should not be so established; and it can only be punished in the way which for the time is thought most efficient by the maintainers of law for protecting the right in question by associating terror with its violation. This, however, does not alter the moral duty, on the part of the society authorising the punishment, to make its punishments just by making the system of rights which it maintains just. The justice of the punishment depends on the justice of the general system of rights; not merely on the propriety with reference to social well-being of maintaining this or that particular right which the crime punished violates, but on the question whether the social organisation in which a criminal has lived and acted is one that has given him a fair chance of not being a criminal.

190. We are apt to think that the justice of a punishment depends on some sort of equality between its magnitude and that of the crime punished, but this notion arises from a confusion of punishment as inflicted by the state for a wrong done to society with compensation to the individual for damage done him. Neither a crime nor its punishment admits of strictly quantitative measurement. It may be said, indeed, that the greater the crime the heavier should be its punishment, but this is only true if by the 'heavier punishment' is understood that with which most terror is associated in the popular imagination, and if the conception of the 'greater crime' is taken on the one hand to exclude any estimation of the degree of moral guilt, and, on the other hand, to be determined by an estimate not only of the importance in the social system of the right violated by the crime, but of the amount of terror that needs to be associated with the crime in the general apprehension in order to its prevention. But when its terms are thus understood, the statement that the greater the crime the heavier should be its punishment, becomes an identical proposition. It amounts to this, that the crime which requires most terror to be associated with it in order to its prevention should have most terror thus associated with it.

191. But why do the terms 'heavier punishment' and 'greater crime' need to be thus understood? Why should not the 'greater crime' be understood to mean the crime implying most moral wickedness, or partly this, partly the crime which violates the more important kind of right? Why should a consideration of the amount of terror that needs to be associated with it in order to its prevention enter into the determination of the 'greater crime' at all? Why again should not the 'heavier punishment' mean simply that in which the person punished actually suffers most pain? Why should it be taken to mean that with which most terror is associated upon the contemplation? In short, is not the proposition in question at once true and significant in the sense that the crime which implies the most moral depravity, or violates the most important right (such as the right to life), or which does both, should be visited with the punishment that involves most pain to the sufferer?

192. The answer is: As regards heaviness of punishment, it is not in the power of the state to regulate the amount of pain which it causes to the person whom it punishes. If it could only punish justly by making this pain proportionate in each case to the depravity implied in the crime, it could not punish justly at all. The amount of pain which any kind of punishment causes to the particular person depends on his temperament and circumstances, which neither the state nor its agent, the judge, can ascertain. But if it could be ascertained, and if (which is equally impossible) the amount of depravity implied in each particular crime could be ascertained likewise in order to make the pain of the punishment proportionate to the depravity, a different punishment would have to be inflicted in each case according to the temperament and circumstances of the criminal. There would be an end to all general rules of punishment.