[207] von Eicken, Geschichte und System der mittelalterlichen Weltanschauung, p. 563 sqq. Abegg, op. cit. p. 111 sq. Wilda, Strafrecht der Germanen, p. 530 sq. Günther, op. cit. ii. 12 sqq. Henke, op. cit. ii. 310 sq. Brunner, op. cit. ii. 587.
[208] Laws of Cnut, ii. 40.
[209] Montesquieu, De l’esprit des lois, xii. 4 (Œuvres, p. 282).
From the fact, then, that crimes are punished not only as wrongs against individuals, but as wrongs against the State, and, especially, as wrongs against some despotic or semi-divine lawgiver, or against the Deity, it follows that even seemingly excessive punishments may, to a large extent, be regarded as manifestations of public resentment. This emotion does not necessarily demand like for like. The law of talion presupposes equality of rights; it is not applicable to impersonal offences, nor to offences against kings or gods. And as the demands of public resentment may exceed the lex talionis, so they may on the other hand fall short of it. Moreover, though the degree of punishment on the whole more or less faithfully represents the degree of indignation aroused by any particular crime in comparison with other crimes belonging to the same penal system, we must not take the comparative severity of the criminal laws of different peoples as a safe index to the intensity of their reprobation of crime. As we have seen before, the strength of moral indignation cannot be absolutely measured by the desire to cause pain to the offender. When the emotion of resentment is sufficiently refined, the infliction of suffering is regarded as a means rather than as an end.
By all this I certainly do not mean to deny that punishment, though in the main an expression of public indignation, is also applied as a means of deterring from crime. Criminal law is preventive, its object is to forbid and to warn, and it uses punishment as a threat. But the acts which the law forbids are, as a rule, such as public opinion condemns as wrong, and it is their wrongness that in all ages has been regarded as the justification of the penalties to which they are subject. It is true that there are instances in which the law punishes acts which in themselves are not apt to evoke public resentment, and others in which the severity of the punishment does not exactly correspond with the resentment they evoke. The State may have a right to sacrifice the welfare of individuals in order to attain some desirable end. It may have a right to do so in cases where no crime has been committed, it would therefore seem to be all the more justified in doing so when the evil has been preceded by a warning. And yet, in the case of punishment, it is only within narrow limits that such a right is granted to the State. To punish a person could not simply mean that he has to suffer for the benefit of the society; there is always opprobrium connected with punishment. Hence the scope which justice leaves for determent pure and simple is not wide. Sir James Stephen observes:—“You cannot punish anything which public opinion, as expressed in the common practice of society, does not strenuously and unequivocally condemn. To try to do so is a sure way to produce gross hypocrisy and furious reaction.”[210] Experience shows that the fate of all disproportionately severe laws which make too liberal use of punishment as a deterrent is that they come to be little followed in practice and are finally annulled. As Gibbon says, “whenever an offence inspires less horror than the punishment awarded to it, the rigour of penal law is obliged to give way to the common feelings of mankind.”
[210] Stephen, Liberty, Equality, Fraternity, p. 159. Cf. Mommsen, Römisches Strafrecht, p. 91 sq.
Numerous data, to be referred to in following chapters, will show how faithfully punishment reflects the emotion of resentment, and how impossible it would be to explain it from considerations of social utility without close reference to the feeling of justice. Why, for instance, should the attempt to commit a crime, when its failure obviously depends on mere chance, be punished less severely than the accomplished crime, if not because the indignation it arouses is less intense? Would not the same amount of suffering be requisite to deter a person from attempting to murder his neighbour as to deter him from actually committing the murder? And is there any reason to suppose that the unsuccessful offender is less dangerous to society than he who succeeds? All the facts referring to criminal responsibility, as we shall see, suggest resentment, not determent, as the basis of punishment, and so does the gradation of the punishment conformably to the magnitude of the crime.[211] According to the principle of determent, as expressed by Anselm von Feuerbach and others, punishment should be neither more nor less severe than is necessary for the suppression of crime.[212] But if this rule were really acted upon, the penalties imposed, especially on minor offences, which the law has been utterly unable to suppress, would certainly be much less lenient than they actually are. Moreover, if there were no intrinsic connection between punishment and resentment, how could we explain the predilection of early law for the principle of talion—an eye for an eye, a tooth for a tooth, a life for a life—[213] which, as we have seen, so frequently regulates the custom of revenge?
[211] Cf. Durkheim, Division du travail social, p. 93 sq.
[212] von Feuerbach, Ueber die Strafe als Sicherungsmittel vor künftigen Beleidigungen des Verbrechers, p. 83. von Gizycki, Introduction to the Study of Ethics, p. 188.
[213] On this subject, see Günther, op. cit. passim.