The Philosophical Theory of the State

by Bernard Bosanquet

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.