Chapter VIII (2)

(i.) In dealing with the general question why recognition is demanded as an essential of rights, we must remember what we took to be the nature of society and the source of obligation. We conceived a society to be a structure of intelligences so related as to co-operate with and to imply one another. We took the source of obligation to lie in the fact that the logic of the whole is operative in every part, and consequently that every part has a reality which goes beyond its average self, and identifies it with the whole, making demands upon it in doing so.

Now, we are said to “recognise” anything when it comes to us with a consciousness of familiarity, as something in which we feel at home. And this is our general attitude to the demands which the logic of the whole, implied in our every act, is continuously making upon us. It is involved in the interdependence of minds, which has been explained to constitute _the mind_ of which the visible community is the body. A teacher’s {211} behaviour towards his pupils, for example, implies a certain special kind of interdependence between their minds. What he can do for them is conditioned by what they expect of him and are ready to do for him, and _vice versa_. The relation of each to the other is a special form of “recognition.” That is to say, the mind of each has a definite and positive attitude towards that of the other, which is based on, or rather, so far as it goes, simply _is_, the relation of their “positions” to each other. Thus, social positions or vocations actually have their being in the medium of recognition. They _are_ the attitudes of minds towards one another, through which their several distinct characteristics are instrumental to a common good.

Thus, then, a right, being a power secured in order to fill a position, is simply a part of the fact that such a position is recognised as instrumental to the common good. It is impossible to argue that the position may exist, and not be recognised. For we are speaking of a relation of minds, and, in so far as minds are united into a single system by their attitudes towards each other, their “positions” and the recognition of them are one and the same thing. Their attitude, receptive, co-operative, tolerant, and the like, is so far a recognition, though not necessarily a reflective recognition. Probably this is what is intended by those who speak of imitation or other analogous principles as the ultimate social fact. They do not mean the repetition of another person’s conduct, though that may enter in part into the relation of interdependence. They mean the {212} conscious adoption [1] of an attitude towards others, embodying the relations between the “positions” which social logic assigns to each.

[1] To call this imitation is something like calling fine art imitation. Really, in both cases, we find a re-arrangement and modification of material, incident to a new expression. The process, if we must name it, is “relative suggestion” rather than imitation.

(ii.) But then the question of page 210 presses upon us “If we deny that there can be unrecognised rights, do we not surrender human freedom to despotism or to popular caprice?”

The sting of this suggestion is taken out when we thoroughly grasp the idea that recognition is a matter of logic, working on and through experience, and not of choice or fancy. If my mind has _no_ attitude to yours, there is no interdependence and I cannot be a party to securing you rights. You are not, for me, a sharer in a capacity for a common good, which each of us inevitably respects. A dog or a tree may be an instrument to the good life, and it may therefore be right to treat it in a certain way, but it cannot be a subject of rights. If my mind _has_ an attitude to yours, then there is certainly a recognition between us, and the nature of that recognition and what it involves are matters for reasoning and for the appeal to experience. It is idle for me, for instance, to communicate with you by language or to buy and sell with you, perhaps even idle to go to war with you, [1] and still to say that I recognise no capacity in you for a common good. My behaviour is then inconsistent with itself, and the question takes the form what rights are involved {213} in the recognition of you which experience demonstrates. No person and no society is consistent with itself, and the proof and amendment of their inconsistency is always possible. And, one inconsistency being amended, the path is opened to progress by the emergence of another. If slaves come to be recognised as free but not as citizens, this of itself opens a road by which the new freeman may make good his claim that it is an inconsistency not to recognise him as a citizen.

[1] As distinct from hunting. We do not go to war with lions and tigers.

But no right can be founded on my mere desire to do what I like. [1] The wish for this is the sting of the claim to unrecognised rights, and this wish is to be met, as the fear that our view might lead to despotism was met. The matter is one of fact and logic, not of fancies and wishes. If I desire to assert an unrecognised right, I must show what “position” involves it, and how that position asserts itself in the system of recognitions which is the social mind, and my point can only be established universally with regard to a certain type of position, and not merely for myself as a particular A or B. In other words, I must show that the alleged right is a requirement of the realisation of capacities for good, and, further, that it does not demand a sacrifice of capacities now being realised, out of proportion to the capacities which it would enable to assert themselves. I must show, in short, that in so far as the claim in question is not secured by the State, Society is inconsistent with itself, and falls short of being what it professes to be, an organ of good life. And all my showing gives no _right_, till it has {214} modified the law. To maintain a right against the State by force or disobedience is rebellion, and, in considering the duty of rebellion, we have to set the whole value of the existence of social order against the importance of the matter in which we think Society defective. There can hardly be a duty to rebellion in a State in which law can be altered by constitutional process.

[1] Green, _Principles of Political Obligation_, p. 149.

The State-maintained system of rights, then, in its relation to the normal self and will of ordinary citizens with their varying moods of enthusiasm and indolence, may be compared to the automatic action of a human body. Automatic actions are such as we perform in walking, eating, dressing, playing the piano or riding the bicycle. They have been formed by consciousness, and are of a character subservient to its purposes, and obedient to its signals. As a rule, they demand no effort of attention, and in this way attention is economised and enabled to devote itself to problems which demand its intenser efforts. They are relegated to automatism because they are uniform, necessary, and external--“external” in the sense explained above, that the way in which they are required makes it enough if they are done, whatever their motives, or with no motives at all.

By far the greater bulk of the system of rights is related in this way to normal consciousness. We may pay taxes, abstain from fraud and assault, use the roads and the post-office, and enjoy our general security, without knowing that we are doing or enjoying anything that demands special attention. Partly, of course, attention is being given by other consciousnesses to maintaining the securities and {215} facilities of our life. Even so, the arrangement is automatic in so far as there is no reason for arousing the general attention in respect to it; but to a varying extent it is automatic throughout, and engrained in the system and habits of the whole people. We are all supposed to know the whole law. Not even a judge has it all in his knowledge at any one time; but the meaning is that it roughly expresses our habits, and we live according to it without great difficulty, and expect each other to do so. This automatism is not harmful, but absolutely right and necessary, so long as we relegate to it only “external” matters; _i.e._ such as are necessary to be done, motive or no motive, in some way which can be generally laid down. Thus used, it is an indispensable condition of progress. It represents the ground won and settled by our civilisation, and leaves us free to think and will such matters as have their value in and through being thought and willed rightly. If we try to relegate these to automatism, then moral and intellectual death has set in.

But if the system of rights is automatic, how can it rest on recognition? Automatic actions, we must remember, are still of a texture, so to speak, continuous with consciousness. “Recognition” expresses very fairly our habitual attitude towards them in ourselves and others. We might think, for example, of the system of habits and expectations which forms our household routine. We go through it for the most part automatically, while “recognising” the “position” of those who share it with us, and respecting the life which is its end. At points here and there in which it {216} affects the deeper possibilities of our being, our attention becomes active, and we assert our position with enthusiasm and conscientiousness. Our attitude to the social system of rights is something like this. The whole order has our habitual recognition; we are aware of and respect more or less the imperative end on which it rests--the claim of a common good upon us all. Within the framework of this order there is room for all degrees of laxity and conscientiousness; but, in any case, it is only at certain points, which either concern our special capacity or demand readjustment in the general interest, that intense active attention is possible or desirable.

The view here taken of automatism and attention in the social whole impairs neither the unity of intelligence throughout society nor the individual’s recognition of this unity as a self liable to be opposed to his usual self. As to the former point, every individual mind shows exactly the same phenomena, of a _continuum_ largely automatic, and thoroughly alive only in certain regions, connected, but not thoroughly coherent. As to the latter point, permeation of the individual by the habits of social automatism does not prevent, but rather gives material for, his tendency to abstract himself from the whole, and to frame an attitude for himself inconsistent with his true “position,” against which tendency the imperative recognition of his true self has constantly to be exerted.

7. We have finally to deal with the actual application by the State of its ultimate resource for the maintenance of rights, viz., force. Superior force may be exercised upon human nature both {217} by rewards and by punishments. In both respects its exercise by the State would fall generally within the lines of automatism; that is to say, it would be a case of the promotion of an end by means other than the influence of an idea of that end upon the will. But, owing to the subtle continuity of human nature throughout all its phases, we shall find that there is something more than this to be said, and that the idea of the end is operative in a peculiar way just where the agencies that promote it appear to be most alien and mechanical. In so far as this is the case, the general theory of the negative character of State action has to be modified, as we foresaw, [1] by the theory of punishment. _Prima facie_, however, it is true that reward and punishment belong to the automatic element of social life. They arise in no direct relation of the will to the end. They are a reaction of the automatic system, instrumental to the end, against a friction or obstacle which intrudes upon it, or (in the case of rewards) upon the opposite of a friction or obstacle. There is no object in pressing a comparison into every detail; but perhaps, as social and individual automatism do really bear the same kind of relation to consciousness, it may be pointed out that reward and punishment correspond in some degree to the pleasures and pains of a high-class secondary automatism, say of riding or of reading, _i.e._ of something specially conducive to enhanced life. Such activities bring pleasure when unimpeded, and pain when sharply interrupted by a start or blunder which jars upon us. Putting this latter case in language which {218} carries out the analogy to punishment, we might say that the formed habit of action, unconsciously or semi-consciously relevant to the end or fuller life, is obstructed by some partial start of mind, and their conflict is accompanied with recognition, pain, and vexation. “What a fool I was,” we exclaim, “to ride carelessly at that corner,” or “to let that plan for a holiday interrupt me in my morning’s reading.”

[1] P. 189.

It may seem remarkable that reward plays a small and apparently decreasing part in the self-management of society by the public power. To the naïve Athenian, [1] it seemed a natural instrument for the encouragement of public spirit, probably rather by a want of discrimination between motives than by a real belief in political selfishness. In European countries honours still appear to play a considerable part, but on analysis it would be found less than it seems. Partly they are recognitions of important functions, and thus conditions rather than rewards. To a great extent, again, they recognise existing facts, and are rather consequences of the respect which society feels for certain types of life (with very curious results in regions where the general mind is inexperienced, _e.g._ in fine art) than means employed to regulate the conduct of citizens. We should think a soldier mean whose aim was a peerage, still more a poet or an artist. I hardly know that rewards adjudged by the State, as distinct from compensations, exist {219} in the United States of America. [2] Rewards then fill no place correlative to that of punishments, and the reason seems plain. Punishment corresponds much better to the negative method which alone is open to the State for the maintenance of rights. For Punishment proclaims its negative character, and no one can suppose it laudable simply to be deterred from wrong-doing by fear of punishment. But though precisely the same principle applies to meritorious actions done with a view to reward, an illusion is almost certain to arise which will hide the principle in this case. For, if reward is largely used as an inducement to actions conducive to the best life, it is almost certain that it will be used as an inducement to actions, the value and certainty of which depend on the state of will to which they are due. And then the distinction between getting them done, motive or no motive, which is the true region of State action, and their being done with a certain motive, which is necessary to give them either practical or moral value, is pretty sure to be obliterated, and the range of the moral will trenched upon in its higher portion and with a constant tendency to self-deception. [3] {220} It is the same truth in other words when we point out that taking reward and punishment, as interferences, only to deal with exceptional cases, reward would deal with the exceptionally good. Therefore, again, reward must either make an impossible attempt to deal with all the normal as good, which involves the danger of _de_-moralising the whole of normal life, or must take the line of specially promoting what is exceptionally conducive to good life; in which case confusion is certain to arise from interference with the delicate middle class of external actions analysed above. [4] And thus it is only what we should expect when we find that States having no _damnosa hereditas_ of a craving for personal honours are hardly acquainted with the bestowal of rewards by the public power.

[1] “Speech of Pericles,” Thucyd., ii. 46: “Where there are the greatest rewards of merit, there will be the best men to do the work of the State.” Contrast Plato’s principle that there can be no sound government while public service is done with a view to reward.

[2] The precise theory of the grants in money made to soldiers or sailors, for distinguished service, is not easy to state. But it seems clear that they are not intended to act as motives. They are essentially a recognition after the act, not an inducement held out before it.

[3] It is perhaps permissible to observe in general, what is very well known to all who have much experience of what is called philanthropy, that the tendency to distinguish it by public honours is exceedingly dangerous to its quality, which depends entirely on that energy and purity of intelligence which can only accompany the deepest and highest motives. Mere vulgar self-seeking is not the danger (though it does occur) so much as obfuscation of intelligence through a mixture of aims and ideas.

[4] P. 199.

It will be sufficient, then, to complete the account of State action in maintenance of rights by some account of the nature and principles of punishment.

And we may profitably begin by recalling M. Durkheim’s suggestion, which was mentioned in a former chapter. [1] Punishment, he observes, from the simplest and most actual point of view, includes in itself all those sides which theory has tended to regard as incompatible. It is, in essence, simply the reaction of a strong and determinate collective sentiment against an act which offends it. It is idle to include such a reaction entirely under the head either of reformation, or of retaliation, or of prevention. An aggression is _ipso facto_ a sign of character, an injury, and a menace; and the reaction against it is equally _ipso facto_ an attempt {221} to affect character, a retaliation against an injury, and a deterrent or preventive against a menace. When we fire up at aggression it is pretty much a chance whether we say “I am going to teach him better manners,” or “I am going to serve him out,” or “I am going to see that he doesn’t do that again.” A consideration of each of these aspects is necessary to do justice both to the theories and to the facts.

[1] P. 37.

i. An obvious point of view, and the first perhaps to appear in philosophy, though strongly opposed to early law, is that the aim of punishment is to make the offender good. As test of the adequacy of this doctrine by itself, the question may be put, “If pleasures would cure the offender, ought he to be given pleasures?” The doctrine, however, does not, by any means, altogether incline to leniency. For it carries as a corollary the extirpation of the incurable, which Plato proposes in a passage of singularly modern quality, when he suggests the co-operation of judges and physicians in maintaining the moral and physical health of society. [1]

[1] _Republic_, 409, 410.

The first comment that occurs to us is, that by a mere medical treatment of the offender, including or consisting of pleasant conditions, if helpful to his cure, the interest of society seems to be disregarded. What is to become of the maintenance of rights, if aggressors have to anticipate a pleasant or lenient “cure”? It may be true that brutal punishments stimulate a criminal temper in the people rather than check it; but it is a long way from this to laying down that there is no need {222} for terror to be associated with crime. To suppose that pleasures may simply act throughout as pains, is playing with words and throws no light on the question. If we leave words their meaning, we must say that punishment must be deterrent for others as well as reformatory for the offender, and therefore in some degree painful. It is true, however, that the offender, as a human being, and presumably capable of a common good, has, as Green puts it, “reversionary rights” of humanity, and these, punishment must so far as possible respect.

But there is a deeper difficulty. If the reformation theory is to be seriously distinguished from the other theories of punishment, it has a meaning which is unjust to the offender himself. It implies that his offence is a merely natural evil, like disease, and can be cured by therapeutic treatment directed to removing its causes. But this is to treat him not as a human being; to treat him as a “patient,” not as an agent; to exclude him from the general recognition that makes us men. (If the therapeutic treatment includes a recognition and chastisement of the offender’s bad will [1]--the form of which chastisement may, of course, be very variously modified--then there is no longer anything to distinguish the reformatory theory from other theories of punishment.) It has been lately pointed out [2] what a confusion is involved in the claim that beings, who are irresponsible and so incapable of guilt, are therefore in the strict sense innocent. Here are the true objects {223} for a pure reformatory theory. Here that may freely be done, as to creatures incapable of rights, which is kindest for them and safest for society, from quasi-medical treatment to extirpation. There is no guilt in them to demand punishment, but there is no human will in them to have the rights of innocence.

[1] Plato’s reformatory theory seems to involve this.

[2] Mr. Bradley, in the _International Journal of Ethics_, April, 1894.

But, applied to responsible human beings, such a theory, if really kept to its distinctive contention, is an insult. It leads to the notion that the State may take hold of any man, whose life or ideas are thought capable of improvement, and set to work to ameliorate them by forcible treatment. There is no true punishment except where one is an offender against a system of rights which he shares, and therefore against himself. And such an offender has a right to the recognition of his hostile will; it is inhuman to treat him as a wild animal or a child, whom we simply mould to our aims. Without such a recognition, to be punished is not, according to the old Scotch phrase, to be “justified.”

ii. The idea of retaliation or retribution, though in history the oldest conception of punishment, [1] may be taken in theory as a protest against the conception that punishment is only a means for making a man better. Its strong point is its definite idea of the offender. The offender is a responsible person, belonging to a certain order which he recognises as entering into him and as entered into by him, and he has made actual an intention hostile to this order. He has, {224} as Plato’s Socrates insists in the _Crito_, destroyed the order so far as in him lies. In other words, he has violated the system of rights which the State exists to maintain, and by which alone he and others are secured in the exercise of any capacity for good, this security consisting in their reciprocal respect for the system. His hostile will stands up and defies the right, in so far as his personality is asserted, through a tangible deed which embodies the wrong. It is necessary, then, that the power which maintains the system of rights should not merely, if possible, undo the external harm which has been done, but should strike down the hostile will which has defied the right by doing that harm. The end or true self is in the medium of mind and will, and is contradicted and nullified so far as a hostile will is permitted to triumph.

[1] We saw that, even in its earliest forms, it cannot really be taken to exclude the other aspects.

It is obvious, however, that the means by which the hostile will can be negatived fall _prima facie_ within the region of automatism. The recalcitrant element of consciousness is not susceptible to the end as an idea, or it would not be recalcitrant. The end can here assert itself, agreeably to the general principle of State action, only through external action the mental effects of which cannot be precisely estimated. It might, therefore, seem that the pain produced by the reaction of the automatic system on the aberrant consciousness--the punishment--was simply a natural pain, which might act as a deterrent from aberration, but had no visible connection with the true whole or end for the mind of the offender. We shall speak below of the sense in which {225} punishment is deterrent or preventive. But it is to be noted at this point that a high-class secondary automatism, with which all along we have compared the system of rights as engrained in the habits of a people, retains a very close connection with consciousness. We do not indeed will every step that we walk, but we only walk while we will to walk, and so with the whole system of routine automatism which is the method and organ of our daily life. At any interruption, any hindrance or failure, consciousness starts up, and the end of the whole routine comes sharply back upon us through our aberration.

So it is with punishment. Primarily, no doubt, chastisement by pain, and the appeal to fear and to submissiveness, is effective through our lower nature, and, in as far as operative, substitutes selfish motives for the will that wills the good, and so narrows its sphere. But there is more behind. The automatic system is pulsing with the vitality of the end to which it is instrumental; and when we kick against the pricks, and it reacts upon us in pain, this pain has subtle connections throughout the whole of our being. It brings us to our senses, as we say; that is, it suggests, more or less, a consciousness of what the habitual system means, and of what we have committed in offending against it. When one stumbles and hurts his foot, he may look up and see that he is off the path. If a man is told that the way he works his factory or keeps his tenement houses is rendering him liable to fine or imprisonment, then, if he is an ordinary, careless, but respectable citizen, he will feel some thing of a shock, and recognise that he was getting {226} too neglectful of the rights of others, and that, in being pulled up, he is brought back to himself. His citizen honour will be touched. He will not like to be below the average which the common conscience had embodied in law.

When we come to the actual criminal consciousness, the form which the recognition may take in fact may vary greatly; and as an extreme there may be a furious hostility against the whole recognised system of law, either involving self-outlawry through a despair of reconciliation, or arising through some sort of habitual conspiracy in which the man finds his chosen law and order as against that recognised by the State. [1] But after all, we are dealing with a question of social logic and not of empirical psychology. And it must be laid down that, in as far as any sane man fails altogether to recognise in any form the assertion of something which he normally respects in the law which punishes him (putting aside what he takes to be miscarriage of justice), he is outlawed by himself and the essentials of citizenship are not in him. Doubtless, if an uneducated man were told, in theoretical language, that in being punished for an assault he was realising his own will, he would think it cruel nonsense. But this is a mere question of language, and has really nothing to do with the essential state of his consciousness. He would understand perfectly well that he was being served as he would say anyone should be served, whom he saw acting as he had done, in a case where his own {227} passions were not engaged. And this recognition, in whatever form it is admitted, carries the consequence which we affirm.

[1] See the account of the Mafia in Marion Crawford’s _Corleone_. Accepting this as described, it simply is the social will in which the population of a certain region find their substitute for the State.

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 in 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 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. [1] Even in the vulgar form, when a brutal murder evokes a general desire to have the offender served out, [2] the general or social indignation is not the same as the selfish desire for revenge. It is the offspring of a rough notion of law and humanity, and of the feeling that a striking aggression upon them demands to be strikingly put down. Such a sentiment is a part {228} of the consciousness which maintains the system of rights, and can hardly be absent where that consciousness is strong.

[1] It may be noted that Durkheim, relying chiefly on early religious sentiment, denies Maine’s view that criminal law arises out of private feud.

[2] Green, _Principles of Political Obligation_, p. 184.

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 to factors which cannot be known. And further, the attempt to punish for immorality has evils of its own. [1] The graduation of punishments must depend on wholly different principles, which we will consider in speaking of punishment as preventive or deterrent.

[1] See above, p. 192.

iii. The graduation of punishments must be almost entirely determined by experience of their operation as deterrents. It is to be borne 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 in some way to be secured. But these conditions are included in the preventive or deterrent theory of punishment, if completely understood; if, that is to say, it is made clear precisely what it is that is to be prevented.

If we speak of punishment, then, as having for {229} its aim to be deterrent or preventive, we must not understand this to mean that a majority, or any persons in power, may rightly prevent, by the threat 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 to 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 a 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 the 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 the true adjustment of the rights themselves to human ends, and on that 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 increased seventy of punishment. We have seen that the equivalence of punishment and offence is really a meaningless superstition. And there is no principle on which {230} 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 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 the 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 right 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 {231} 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 than 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 the class of offences from which men need to be deterred by a recognised amount of severity. If a 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 high 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 other wise it is likely to become common?” Or in general, ought not severity to increase with {231} temptation or provocation, as a greater deterrent is needed to counterbalance this? The case in which the temptation or provocation is exceptional has just been dealt with. But if abnormal temptation or provocation becomes common, as in a famine, or in some excited condition of public feeling, then it must be remembered that not one right only, but the system of rights as such, is what the State has to maintain. If starvation is common, some readjustment of rights, or at least some temporary protection of the right to live, is the remedy indicated, and not, or not solely, increased severity in dealing with theft. [1] 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 encourage wrongs.

[1] Though for the sake of all parties, and to avoid temptation, a strong policing of threatened districts may be desirable in such circumstances.

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 {232} 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, throughout, for example, our English system of public and private Acts of Parliament, would run 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 the whole, which at the 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 a Will; the real Will, or the Will as logically implied in 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 that of 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 [1] process it {234} 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 sits,” and superseding the aim by the instrument.

[1] It must not be forgotten that the State is, by its nature, under a constant temptation to throw its weight on the side of the automatic process. A most striking example is its adoption of the automatic water-carriage system in drainage, with far-reaching economic consequences. See Poore’s _Rural Hygiene_ and _The Dwelling House_.

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