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of the past, or arise out of the very incomplete manner in which, as yet, over most of Europe the πολιτεία has superseded the δυναστεία.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.
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. Arightof 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 successfulcoup d'étatmay be effectually preventive of further resistance to the government established by thecoup 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 noa prioricriterion 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.
193. In truth, however, the state in its capacity as the sustainer of rights (and it is in this capacity that it punishes) has nothing to do with the amount of moral depravity in the criminal, and the primary reference in punishment, as inflicted by the state, is not to the effect of the punishment on the person punished but to its effect on others. The considerations determining its amount should be prospective rather than retrospective. In the crime a right has been violated. No punishment can undo what has been done, or make good the wrong to the person who has suffered. What it can do is to make less likely the doing of a similar wrong in other cases. Its object, therefore, is not to cause pain to the criminal for the sake of causing it, nor chiefly for the sake of preventing him, individually, from committing the crime again, but to associate terror with the contemplation of the crime in the mind of others who might be tempted to commit it. And this object, unlike that of making the pain of the punishment commensurate with the guilt of the criminal, is in the main attainable. The effect of the spectacle of punishment on the onlooker is independent of any minute inquiry into the degree to which it affects the particular criminal. The attachment of equal penalties to offences that are alike in respect of the importance of the rights which they violate, and in respect of the ordinary temptations to them, will, on the whole, lead to the association of an equal amount of terror with the prospect of committing like offences in the public mind. When the circumstances, indeed, of two criminals guilty of offences alike in both the above respects are very greatly and obviously different, so different as to make the operation of the same penalty upon them very conspicuously different, then the penalty may be varied without interfering with its terrifying effect on the public mind. We will suppose e.g. that a fraud on the part of a respectable banker is equivalent, both in respect of the rights which it violates and of the terror needed to prevent the recurrence of like offences, to a burglary. It will not follow because the burglary is punished by imprisonment with hard labour that hard labour should be inflicted on the fraudulent banker likewise. The infliction of hard labour is in everyone's apprehension so different to the banker from what it is to the burglar, that its infliction is not needed in order to equalise the terror which the popular imagination associates with the punishment in the two cases.
194. On the same principle may be justified the consideration of extenuating circumstances in the infliction of punishment. In fact, whether under that name or another, they are taken account of in the administration of criminal law among all civilised nations. 'Extenuating circumstances' is not a phrase in use among our lawyers, but in fact the consideration of them does constantly, with the approval of the judge, convert what would otherwise have been conviction for murder into conviction for manslaughter, and when there has been conviction for murder, leads to the commutation of the sentence. This fact is often taken to show that the degree of moral depravity on the part of the criminal, the question of his character and motive, is and must be considered in determining the punishment due to him. In truth, however, 'extenuating circumstances' may very well make a difference in the kind of terror which needs to be associated with a crime in order to the future protection of rights, and under certain conditions the consideration of them may be sufficiently justified on this ground. Suppose a theft by a starving man, or a hare shot by an angry farmer whose corn it is devouring. These are crimes, but crimes under such extenuating circumstances that there is no need to associate very serious terror with them in order to the protection of the essential rights of property. In the latter case the right which the farmer violates is one which perhaps might be disallowed altogether without interference with any right which society is interested in maintaining. In the former case the right violated is a primary and essential one; one which, where there are many starving people, is in fact pretty sure to be protected by the most stringent penalties. And it might be argued that on the principle stated this is as it should be; that, so far from the hunger of the thief being a reason for lightening his punishment, it is a reason for increasing it, in order that the special temptation to steal when far gone in hunger may, if possible, be neutralised by a special terror associated with the commission of the crime under those conditions. But this would be a one-sided application of the principle. It is not the business of the state to protect one order of rights specially, but all rights equally. It ought not therefore to protect a certain order of rights by associating special terror with the violation of them, when the special temptation to their violation itself implies a violation of right in the persons of those who are so tempted, as is the case when a general danger to property arises from the fact that many people are on the edge of starvation. The attempt to do so is at once ineffectual and diverts attention from the true way of protecting the endangered right, which is to prevent people from falling into a state of starvation. In any tolerably organised society the condition of a man, ordinarily honest and industrious, who is driven to theft by hunger, will be so abnormal that very little terror needs to be associated with the crime as so committed in order to maintain the sanctity of property in the general imagination. Suppose again a man to be killed in a quarrel arising out of his having tampered with the fidelity of his neighbour's wife. In such a case 'extenuating circumstances' may fairly be pleaded against the infliction of the extremest penalty, because the extremest terror does not need to be associated with homicide, as committed under such conditions, in order to the general protection of human life, and because the attempt so to associate it would tend, so far as successful, to weaken the general sense of the wrong—the breach of family right—involved in the act which, in the case supposed, provokes the homicide.
195. 'After all,' it may be said, 'this is a far-fetched way of explaining the admission of extenuating circumstances as modifying the punishment of crime. Why so strenuously avoid the simpler explanation, that extenuating circumstances are taken into account because they are held to modify the moral guilt of the crime? Is not their recognition a practical proof that the punishment of a crime by the state represents the moral disapproval of the community? Does it not show that, however imperfectly the amount of punishment inflicted on a crime may in fact correspond to its moral wickedness, it is generally felt that it ought to do so?'
196. The answer is that there are two reasons for holding that the state neither can nor should attempt to adjust the amount of punishment which it inflicts on a crime to the degree of moral depravity which the crime implies. (1) That the degree of moral depravity implied in any crime is unascertainable. It depends on the motive of the crime, and on this as part of the general character of the agent; on the relation in which the habitual set of his character stands to the character habitually set on the pursuit of goodness. No one can ascertain this in regard to himself. He may know that he is always far from being what he ought to be; that one particular action of his represents on the whole, with much admixture of inferior motives; the better tendency; another, with some admixture of better motives, the worse. But any question in regard to the degree of moral goodness or badness in any action of his own or of his most intimate friend is quite unanswerable. Much less can a judge or jury answer such a question in regard to an unknown criminal. We may be sure indeed that any ordinary crime—nay, perhaps even that of the 'disinterested rebel'—implies the operation of some motive which is morally bad, for though it is not necessarily the worst men who come into conflict with established rights, it probably never can be the best; but the degree of badness implied in such a conflict in any particular case is quite beyond our ken, and it is this degree that must be ascertained if the amount of punishment which the state inflicts is to be proportionate to the moral badness implied in the crime. (2) The notion that the state should, if it could, adjust the amount of punishment which it inflicts on a crime to the moral wickedness of the crime, rests on a false view of the relation of the state to morality. It implies that it is the business of the state to punish wickedness, as such. But it has no such business. It cannot undertake to punish wickedness, as such, without vitiating the disinterestedness of the effort to escape wickedness, and thus checking the growth of a true goodness of the heart in the attempt to promote a goodness which is merely on the surface. This, however, is not to be understood as meaning that the punishment of crime serves no moral purpose. It does serve such a purpose, and has its value in doing so, but only in the sense that the protection of rights, and the association of terror with their violation, is the condition antecedent of any general advance in moral well-being.
197. The punishment of crime, then, neither is, nor can, nor should be adjusted to the degree of moral depravity, properly so called, which is implied in the crime. But it does not therefore follow that it does not represent the disapproval which the community feels for the crime. On the whole, making allowance for the fact that law and judicial custom vary more slowly than popular feeling, it does represent such disapproval. And the disapproval may fitly be called moral, so far as that merely means that it is a disapproval relating to voluntary action. But it is a disapproval founded on a sense of what is necessary for the protection of rights, not on a judgment of good and evil of that kind which we call conscience when it is applied to our own actions, and which is founded on an ideal of moral goodness with which we compare our inward conduct ('inward,' as representing motives and character). It is founded essentially on the outward aspect of a man's conduct, on the view of it as related to the security and freedom in action and acquisition of other members of society. It is true that this distinction between the outward and inward aspects of conduct is not present to the popular mind. It has not been recognised by those who have been the agents in establishing the existing law of crimes in civilised nations. As the state came to control the individual or family in revenging hurts, and to substitute its penalties for private vengeance, rules of punishment came to be enacted expressive of general disapproval, without any clear consciousness of what was the ground of the disapproval. But in fact it was by what have been just described as the outward consequences of conduct that a general disapproval of it was ordinarily excited. Its morality in the stricter or inward sense was not matter of general social consideration. Thus in the main it has been on the ground of its interference with the general security and freedom in action and acquisition, and in proportion to the apprehension excited by it in this respect, that conduct has been punished by the state. Thus the actual practice of criminal law has on the whole corresponded to its true principle. So far as this principle has been departed from, it has not been because the moral badness of conduct, in the true or inward sense, has been taken account of in its treatment as a crime, for this has not been generally contemplated at all, but because 'religious' considerations have interfered. Conduct which did not call for punishment by the state as interfering with any true rights (rights that should be rights) has been punished as 'irreligious.' This, however, did not mean that it was punished on the ground of moral badness, properly so called. It meant that its consequences were feared either as likely to weaken the belief in some divine authority on which the established system of rights was supposed to rest, or as likely to bring evil on the community through provoking the wrath of some unseen power.
198. This account of the considerations which have regulated the punishment of crimes explains the severity with which 'criminal negligence' is in some cases punished, and that severity is justified by the account given of the true principle of criminal law, the principle, viz., that crime should be punished according to the importance of the right which it violates, and to the degree of terror which in a well-organised society needs to be associated with the crime in order to the protection of the right. It cannot be held that the carelessness of an engine-driver who overlooks a signal and causes a fatal accident, implies more moral depravity than is implied in such negligence as all of us are constantly guilty of. Considered with reference to the state of mind of the agent, it is on a level with multitudes of actions and omissions which are not punished at all. Yet the engine-driver would be found guilty of manslaughter and sentenced to penal servitude. The justification is not to be found in distinctions between different kinds of negligence on the part of different agents, but in the effect of the negligence in different cases upon the rights of others. In the case supposed, the most important of all rights, the right to life, on the part of railway passengers depends for its maintenance on the vigilance of the drivers. Any preventible failure in such vigilance requires to have sufficient terror associated with it in the mind of other engine-drivers to prevent the recurrence of a like failure in vigilance. Such punishment is just, however generally virtuous the victim of it is, because it is necessary to the protection of rights of which the protection is necessary to social well-being; and the victim of it, in proportion to his sense of justice, which means his habit of practically recognising true rights, will recognise it as just.
199. On this principle crimes committed in drunkenness must be dealt with. Not only is all depravity of motive specially inapplicable to them, since the motives actuating a drunken man often seem to have little connection with his habitual character; it is not always the case that a crime committed in drunkenness is even intentional. When a man in a drunken rage kills another, he no doubt intends to kill him, or at any rate to do him 'grievous bodily harm,' and perhaps the association of great penal terror with such an offence may tend to restrain men from committing it even when drunk; but when a drunken mother lies on her child and smothers it, the hurt is not intentional but accidental. The drunkenness, however, is not accidental, but preventible by the influence of adequate motives. It is therefore proper to treat such a violation of right, though committed unknowingly, as a crime, and to associate terror with it in the popular imagination, in order to the protection of rights by making people more careful about getting drunk, about allowing or promoting drunkenness, and about looking after drunken people. It is unreasonable, however, to do this and at the same time to associate so little terror, as in practice we do, with the promotion of dangerous drunkenness. The case of a crime committed by a drunkard is plainly distinguishable from that of a crime committed by a lunatic, for the association of penal terror with the latter would tend neither to prevent a lunatic from committing a crime nor people from becoming lunatics.
200. The principle above stated, as that according to which punishment by the state should be inflicted and regulated, also justifies a distinction between crimes and civil injuries, i.e. between breaches of right for which the state inflicts punishment without redress to the person injured, and those for which it procures or seeks to procure redress to the person injured without punishment of the person causing the injury. We are not here concerned with the history of this distinction (for which see Maine,Ancient Law, chap. x, and W.E. Hearn,The Aryan Household, chap. xix), nor with the question whether many breaches of right now among us treated as civil injuries ought not to be treated as crimes, but with the justification that exists for treating certain kinds of breach of right as cases in which the state should interfere to procure redress for the person injured, but not in the way of inflicting punishment on the injurer until he wilfully resists the order to make redress. The principle of the distinction as ordinarily laid down, viz. that civil injuries 'are violations of rights when considered in reference to the injury sustained by the individual,' while crimes are 'violations of rights when considered in reference to their evil tendency as regards the community at large' (Stephen, Book V, chap, i), is misleading; for if the well-being of the community did not suffer in the hurt done to the individual, that hurt would not be a violation of a right in the true sense at all, nor would the community have any ground for insisting that the hurt shall be redressed, and for determining the mode in which it shall be redressed. A violation of right cannot in truth be considered merely in relation to injury sustained by an individual, for, thus considered, it would not be a violation of right. It may be said that the state is only concerned in procuring redress for civil injuries, because, if it left an individual to procure redress in his own way, there would be no public peace. But there are other and easier ways of preventing fighting than by procuring redress of wrong. We prevent our dogs from fighting, not by redressing wrongs which they sustain from each other (of wrongs as of rights they are in the proper sense incapable), but by beating them or tying them up. The community would not keep the peace by procuring redress for hurt or damage sustained by individuals, unless it conceived itself as having interest in the security of individuals from hurt and damage, unless it considered the hurt done to individuals as done to itself. The true justification for treating some breaches of right as cases merely for redress, others as cases for punishment, is that, in order to the general protection of rights, with some it is necessary to associate a certain terror, with others it is not.
201. What then is the general ground of distinction between those with which terror does, and those with which it does not, need to be associated? Clearly it is purposeless to associate terror with breaches of right in the case where the breaker does not know that he is violating a right, and is not responsible for not knowing it. No association of terror with such a breach of right can prevent men from similar breaches under like conditions. In any case, therefore, in which it is, to begin with, open to dispute whether a breach of right has been committed at all, e.g. when it is a question whether a contract has been really broken, owing to some doubt as to the interpretation of the contract or its application to a particular set of circumstances, or whether a commodity of which someone is in possession properly belongs to another,—in such a case, though the judge finally decides that there has been a breach of right, there is no ground for treating it as a crime or punishing it. If, in the course of judicial inquiry, it turns out that there has been fraud by one or other of the parties to the litigation, a criminal prosecution, having punishment, not redress, for its object, should properly supervene upon the civil suit, unless the consequences of the civil suit are incidentally such as to amount to a sufficient punishment of the fraudulent party. Again, it is purposeless to associate terror with a breach of obligation which the person committing it knows to be a breach, but of an obligation which he has no means of fulfilling, e.g. non-payment of an acknowledged debt by a man who, through no fault of his own, is without means of paying it. It is only in cases of one or other of the above kinds,—cases in which the breach of right, supposing it to have been committed, has presumably arisen either from inability to prevent it or from ignorance of the existence of the right,—that it can be held as an absolute rule to be no business of the state to interfere penally but only in the way of restoring, so far as possible, the broken right.
202. But there are many cases of breach of right which can neither be definitely reduced to one of the above kinds, nor distinguished from them by any broad demarcation; cases in which the breaker of a right has been ignorant of it, because he has not cared to know, or in which his inability to fulfil it is the result of negligence or extravagance. Whether these should be treated penally or no, will depend partly on the seriousness of the wrong done through avoidable ignorance or negligence, partly on the sufficiency of the deterrent effect incidentally involved in the civil remedy. In the case e.g. of inability to pay a debt through extravagance or recklessness, it may be unnecessary and inadvisable to treat the breach of right penally, in consideration that it is indirectly punished by poverty and the loss of reputation incidental to bankruptcy, and the creditors should not look to the state to protect them from the consequences of lending on bad security. The negligence of a trustee, again, may be indirectly punished by his being obliged to make good the property lost through his neglect to the utmost of his means. This may serve as a sufficiently deterrent example without the negligence being proceeded against criminally. Again, damage done to property by negligence is in England dealt with civilly, not criminally; and it may be held that in this case the liability to civil action is a sufficient deterrent. On the other hand, negligence which, as negligence, is not really distinguishable from the above, is rightly treated criminally when its consequences are more serious; e.g. that of the railway-servant whose negligence results in a fatal accident, that of the bank-director who allows a misleading statement of accounts to be published, fraudulently perhaps in the eye of the law, but in fact negligently. As a matter of principle, no doubt, if intentional violation of the right of property is treated as penal equally with the violation of the right of life, the negligent violation should be treated as penal in the one case as much as in the other. But as the consequences of an action for damages may be virtually though not ostensibly penal to the person proceeded against, it may be convenient to leave those negligences which do not, like the negligence of a railway-servant, affect the most important rights, or do not affect rights on a very large scale as does that of a bank-director, to be dealt with by the civil process.
203. The actual distinction between crimes and civil injuries in English law is no doubt largely accidental. As the historians of law point out, the civil process, having compensation, not punishment, for its object, is the form which the interference of the community for the maintenance of rights originally takes. The community, restraining private vengeance, helps the injured person to redress, and regulates the way in which redress shall be obtained. This procedure no doubt implies the conviction that the community is concerned in the injury done to an individual, but it is only by degrees that this conviction becomes explicit, and that the community comes to treat all preventible breaches of right as offences against itself or its sovereign representative, i.e. as crimes or penal; in the language of English law, as 'breaches of the king's peace.' Those offences are first so treated which happen to excite most public alarm, most fear for general safety (hence, among others, anything thought sacrilegious). In a country like England, where no code has been drawn up on general principles, the class of injuries that are treated penally is gradually enlarged as public alarm happens to be excited in particular directions, but it is largely a matter of accident how the classification of crimes on one side and civil injuries on the other happens to stand at any particular time. [1]
[1] See Markby,Elements of Law, chap. xi, especially note 1, p. 243; and Austin, Lecture XXVII. Between crimes and civil injuries the distinction, as it actually exists, is merely one of procedure (as stated by Austin, p. 518). The violation of right in one case is proceeded against by the method of indictment, in the other by an 'action.' The distinction that in one case punishment is the object of the process, in the other redress, is introduced in order to explain the difference of procedure; and to justify this distinction resort is had to the further distinction, that civil injury is considered to affect the individual merely, crime to affect the state. But in fact the action for civil injury may incidentally have a penal result (Austin, p 521), and if it had not, many violations of right now treated as civil injuries would have to be treated as crimes. As an explanation therefore of the distinction between crimes and injuries as it stands, it is not correct to say that for the former punishment is sought, for the latter merely redress. Nor for reasons already given is it true of any civil injury to say that it affects, or should be considered as affecting, injured individualsmerely. The only distinction of principle is that between violations of right which call for punishment and those which do not; and those only do not call for punishment in some form or other which arise either from uncertainty as to the right violated, or from inability to prevent the violation.
204. According to the view here taken, then, there is no direct reference in punishment by the state, either retrospective or prospective, to moral good or evil. The state in its judicial action does not look to the moral guilt of the criminal whom it punishes, or to the promotion of moral good by means of his punishment in him or others. It looks not to virtue and vice but to rights and wrongs. It looks back to the wrong done in the crime which it punishes; not, however, in order to avenge it, but in order to the consideration of the sort of terror which needs to be associated with such wrong-doing in order to the future maintenance of rights. If the character of the criminal comes into account at all, it can only be properly as an incident of this consideration. Thus punishment of crime is preventive in its object; not, however, preventive of any or every evil and by any and every means, but (according to its idea or as it should be)justlypreventive ofinjustice; preventive of interference with those powers of action and acquisition which it is for the general well-being that individuals should possess, and according to laws which allow those powers equally to all men. But in order effectually to attain its preventive object and to attain it justly, it should be reformatory. When the reformatory office of punishment is insisted on, the reference may be, and from the judicial point of view must be, not to the moral good of the criminal as an ultimate end, but to his recovery from criminal habits as a means to that which is the proper and direct object of state-punishment, viz. the general protection of rights. The reformatory function of punishment is from this point of view an incident of its preventive function, as regulated by the consideration of what is just to the criminal as well as to others. For the fulfilment of this latter function, the great thing, as we have seen, is by the punishment of an actual criminal to deter other possible criminals; but for the same purpose, unless the actual criminal is to be put out of the way or locked up for life, it must be desirable to reform him so that he may not be dangerous in future. Now when it is asked why he should not be put out of the way, it must not be forgotten that among the rights which the state has to maintain are included rights of the criminal himself. These indeed are for the time suspended by his action in violation of rights, but founded as they are on the capacity for contributing to social good, they could only be held to be finally forfeited on the ground that this capacity was absolutely extinct.
205. This consideration limits the kind of punishment which the state may justly inflict. It ought not in punishing to sacrifice unnecessarily to the maintenance of rights in general what might be called the reversionary rights of the criminal, rights which, if properly treated, he might ultimately become capable of exercising for the general good. Punishment therefore either by death or by perpetual imprisonment is justifiable only on one of two grounds; either that association of the extremest terror with certain actions is under certain conditions necessary to preserve the possibility of a social life based on the observance of rights, or that the crime punished affords a presumption of a permanent incapacity for rights on the part of the criminal. The first justification may be pleaded for the executions of men concerned in treasonable outbreaks, or guilty of certain breaches of discipline in war (on the supposition that the war is necessary for the safety of the state and that such punishments are a necessary incident of war). Whether the capital punishment is really just in such cases must depend, not only on its necessity as an incident in the defence of a certain state, but on the question whether that state itself is fulfilling its function as a sustainer of true rights. For the penalty of death for murder both justifications may be urged. It cannot be defended on any other ground, but it may be doubted whether the presumption of permanent incapacity for rights is one which in our ignorance we can ever be entitled to make. As to the other plea, the question is whether, with a proper police system and sufficient certainty of detection and conviction, the association of this extremest terror with the murderer is necessary to the security of life. Where the death-penalty, however, is unjustifiable, so must be that of really permanent imprisonment; one as much as the other is an absolute deprivation of free social life, and of the possibilities of moral development which that life affords. The only justification for a sentence of permanent imprisonment in a case where there would be none for capital punishment would be that, though inflicted as permanent, the imprisonment might be brought to an end in the event of any sufficient proof appearing of the criminal's amendment. But such proof could only be afforded if the imprisonment were so modified as to allow the prisoner a certain amount of liberty.
206. If punishment then is to be just, in the sense that in its infliction due account is taken of all rights, including the suspended rights of the criminal himself, it must be, so far as public safety allows, reformatory. It must tend to qualify the criminal for the resumption of rights. As reformatory, however, punishment has for its direct object the qualification for the exercise of rights, and is only concerned with the moralisation of the criminal indirectly so far as it may result from the exercise of rights. But even where it cannot be reformatory in this sense, and over and above its reformatory function in cases where it has one, it has a moral end. Just because punishment by the state has for its direct object the maintenance of rights, it has, like every other function of the state, indirectly a moral object, because true rights, according to our definition, are powers which it is for the general well-being that the individual (or association) should possess, and that well-being is essentially a moral well-being. Ultimately, therefore, the just punishment of crime is for the moral good of the community. It is also for the moral good of the criminal himself, unless—and this is a supposition which we ought not to make—he is beyond the reach of moral influences. Though not inflicted for that purpose, and though it would not the less have to be inflicted if no moral effect on the criminal could be discerned, it is morally the best thing that can happen to him. It is so, even if a true social necessity requires that he be punished with death. The fact that society is obliged so to deal with him affords the best chance of bringing home to him the anti-social nature of his act. It is true that the last utterances of murderers generally convey the impression that they consider themselves interesting persons, quite sure of going to heaven; but these are probably conventional. At any rate if the solemn infliction of punishment on behalf of human society, and without any sign of vindictiveness, will not breed the shame which is the moral new birth, presumably nothing else within human reach will.
207. The right of the individual man as such to free life is constantly gaining on its negative side more general recognition. It is the basis of the growing scrupulosity in regard to punishments which are not reformatory, which put rights finally out of the reach of a criminal instead of qualifying him for their renewed exercise. But the only rational foundation for the ascription of this right is the ascription of capacity for free contribution to social good. We treat this capacity in the man whose crime has given proof of its having been overcome by anti-social tendencies, as yet giving him a title to a further chance of its development; on the other hand, we act as if it conferred no title on its possessors, before a crime has been committed, to be placed under conditions in which its realisation would be possible. Is this reasonable? Yet are not all modern states so acting? Are they not allowing their ostensible members to grow up under conditions which render the development of social capacity practically impossible? Was it not more reasonable, as in the ancient states, to deny the right to life in the human subject as such, than to admit it under conditions which prevent the realisation of the capacity that forms the ground of its admission? This brings us to the fourth of the questions that arose [1] out of the assertion of the individual's right to free life. What is the nature and extent of the individual's claim to be enabled positively to realise that capacity for freely contributing to social good which is the foundation of his right to free life?
[1] [Above, sec. 156. RLN]
208. In dealing with this question, it is important to bear in mind that the capacity we are considering is essentially a free or (what is the same) a moral capacity. It is a capacity, not for action determined by relation to a certain end, but for action determined by a conception of the end to which it is relative. Only thus is it a foundation of rights. The action of an animal or plant may be made contributory to social good, but it is not therefore a foundation of rights on the part of an animal or plant, because they are not affected by the conception of the good to which they contribute. A right is a power of acting for his own ends,—for what he conceives to be his good,—secured to an individual by the community, on the supposition that its exercise contributes to the good of the community. But the exercise of such a power cannot be so contributory, unless the individual, in acting for his own ends, is at least affected by the conception of a good as common to himself with others. The condition of making the animal contributory to human good is that we do not leave him free to determine the exercise of his powers; that we determine them for him; that we use him merely as an instrument; and this means that we do not, because we cannot, endow him with rights. We cannot endow him with rights because there is no conception of a good common to him with us which we can treat as a motive to him to do to us as he would have us do to him. It is not indeed necessary to a capacity for rights, as it is to true moral goodness, that interest in a good conceived as common to himself with others should be a man's dominant motive. It is enough if that which he presents to himself from time to time as his good, and which accordingly determines his action, is so far affected by consideration of the position in which he stands to others,—of the way in which this or that possible action of his would affect them, and of what he would have to expect from them in return,—as to result habitually, without force or fear of force, in action not incompatible with conditions necessary to the pursuit of a common good on the part of others. In other words, it is the presumption that a man in his general course of conduct will of his own motion have respect to the common good, which entitles him to rights at the hands of the community. The question of the moral value of the motive which may induce this respect—whether an unselfish interest in common good or the wish for personal pleasure and fear of personal pain—does not come into the account at all. An agent, indeed, who could only be induced by fear of death or bodily harm to behave conformably to the requirements of the community, would not be a subject of rights, because this influence could never be brought to bear on him so constantly, if he were free to regulate his own life, as to secure the public safety. But a man's desire for pleasure to himself and aversion from pain to himself, though dissociated from any desire for a higher object, for any object that is desired because good for others, may constitute a capacity for rights, if his imagination of pleasure and pain is so far affected by sympathy with the feeling of others about him as to make him, independently of force or fear of punishment, observant of established rights. In such a case the fear of punishment may be needed to neutralise anti-social impulses under circumstances of special temptation, but by itself it could never be a sufficiently uniform motive to qualify a man, in the absence of more spontaneously social feelings, for the life of a free citizen. The qualification for such a life is a spontaneous habit of acting with reference to a common good, whether that habit be founded on an imagination of pleasures and pains or on a conception of what ought to be. In either case the habit implies at least an understanding that there is such a thing as a common good, and a regulation of egoistic hopes and fears, if not an inducing of more 'disinterested' motives, in consequence of that understanding.
209. The capacity for rights, then, being a capacity for spontaneous action regulated by a conception of a common good, either so regulated through an interest which flows directly from that conception, or through hopes and fears which are affected by it through more complex channels of habit and association, is a capacity which cannot be generated—which on the contrary is neutralised—by any influences that interfere with the spontaneous action of social interests. Now any direct enforcement of the outward conduct, which ought to flow from social interests, by means of threatened penalties—and a law requiring such conduct necessarily implies penalties for disobedience to it—does interfere with the spontaneous action of those interests, and consequently checks the growth of the capacity which is the condition of the beneficial exercise of rights. For this reason the effectual action of the state, i.e. the community as acting through law, for the promotion of habits of true citizenship, seems necessarily to be confined to the removal of obstacles. Under this head, however, there may and should be included much that most states have hitherto neglected, and much that at first sight may have the appearance of an enforcement of moral duties, e.g. the requirement that parents have their children taught the elementary arts. To educate one's children is no doubt a moral duty, and it is not one of those duties, like that of paying debts, of which the neglect directly interferes with the rights of someone else. It might seem, therefore, to be a duty with which positive law should have nothing to do, any more than with the duty of striving after a noble life. On the other hand, the neglect of it does tend to prevent the growth of the capacity for beneficially exercising rights on the part of those whose education is neglected, and it is on this account, not as a purely moral duty on the part of a parent, but as the prevention of a hindrance to the capacity for rights on the part of children, that education should be enforced by the state. It may be objected, indeed, that in enforcing it we are departing in regard to the parents from the principle above laid down; that we are interfering with the spontaneous action of social interests, though we are doing so with a view to promoting this spontaneous action in another generation. But the answer to this objection is, that a law of compulsory education, if the preferences, ecclesiastical or otherwise, of those parents who show any practical sense of their responsibility are duly respected, is from the beginning only felt as compulsion by those in whom, so far as this social function is concerned, there is no spontaneity to be interfered with; and that in the second generation, though the law with its penal sanctions still continues, it is not felt as a law, as an enforcement of action by penalties, at all.