[58] Montesquieu, Lettres Persanes, 81.
[59] Beccaria, Dei delitti e delle pene, passim.
[60] Filangieri, La scienza della legislazione, iii. 2. 27, vol. iv. 13 sq.
[61] von Feuerbach-Mittermaier, Lehrbuch des gemeinen in Deutschland gültigen Peinlichen Rechts, p. 38 sqq.
[62] Schopenhauer, Die Welt als Wille und Vorstellung, ii. 683 sqq.
[63] Bentham, Principles of Morals and Legislation, p. 170 sq. n. 1: “… Example is the most important end of all.” Idem, Rationale of Punishment, p. 19 sqq.
[64] See von Feuerbach-Mittermaier, op. cit. p. 40.
[65] Garofalo, Criminologie, p. 251 sqq. Ferri, Criminal Sociology, p. 204 sqq.
The advocates of these various theories are unanimous in condemning retributive punishment as wrong. Without the grounds of social defence, says M. Guyau, “the punishment would be as blameworthy as the crime, and … the lawgivers and the judges, by deliberately condemning the guilty to punishment, would become their fellows.”[66] For my own part I believe, on the contrary, that those who would venture to carry out all the consequences to which the theories of social defence or of reformation might lead, would be regarded even as more criminal than those they punished, not only by the opponents, but probably by the very supporters of the theories in question. A brief statement of some of those consequences will, I hope, suffice to prove that punishment can hardly be guided exclusively by utilitarian considerations, but requires the sanction of the retributive emotion of moral disapproval.
[66] Guyau, Esquisse d’une morale sans obligation ni sanction, p. 148.