The Philosophical Theory of the State

by Bernard Bosanquet

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.