Social Rights And Duties: Addresses to Ethical Societies. Vol 2 [of 2]

by Leslie Stephen

I invite you to consider a rather dry problem. I ventured to select this topic because it has lately been my duty to occupy myself with certain legal writings, which, perhaps, took me a little beyond my depth. They touched, however, problems which are common to the lawyer and to the moralist. Although not a lawyer, I am interested in some moral problems which have also a legal aspect: What I propose to do this evening is, to consider certain questions which lie in the region common to both provinces of inquiry, and especially this question: What is the true ethical theory of punishments inflicted by the criminal law? How, and in what sense, are they to be regarded as just? There is, obviously, a relation between the two codes—moral and legal. Murder is both a sin and a crime: a breach of the moral law, and of the laws of every civilised country. Yet, there is one broad and deep distinction between the two systems of law. The moral law is essentially concerned with a man's motives. To say that a man's conduct is wicked, is necessarily also to say that it is the action of a bad man, or due to evil passions. Murder is wicked, as it is the manifestation of the murderer's hatred of his neighbour. The criminal law, on the other hand, has to deal, in the first instance, with the external facts. It contemplates, primarily, what a man does, not what he is. It does not attempt to punish every man who hates his neighbour, but every man who has, in fact, killed, whether the action springs from hatred or some other motive. Every one who deliberately kills, unless the act falls under certain definite exceptions, is guilty of murder. This, of course, does not imply that the moral aspect is of no account. The exceptions are so arranged that the legal classification corresponds roughly to the moral classification. Under certain exceptions, killing is regarded as justifiable homicide, and under others, it is only manslaughter, and, therefore, receives none, or a slighter penalty. The coincidence between the codes may thus be very close. In ninety-nine cases out of a hundred the action condemned by the criminal law will be condemned by the moralist. The man who is legally guilty of murder is also, almost invariably, guilty of a great moral offence. Although, again, the moral law applies to large classes of conduct, which are not within the cognisance of the criminal law, it is, at least, plainly desirable that the criminal law should condemn nothing which is not also morally wrong. The sway of the moral law is universal; it applies to all conduct, and, of course, to the conduct of legislators and judges: they and the law which they define and apply should be consistent with the general law of right and wrong. They and all of us are bound not to make virtue more difficult nor vice easier.

But, further, the questions as to the relations between the two codes arise in various directions. It is obvious that the criminal law has to employ very rough and ready methods. It cannot estimate, with any accuracy, the degree of immorality implied by any given action. It cannot, and it does not attempt to, look closely into the secrets of a man's heart. It cannot inquire, as a rule, how far a man's crime is the result of bad education or bad surroundings; how far it implies thorough corruption or only superficial faults of temper, or a misunderstanding of some fact or doctrine. It cannot take into account a number of metaphysical or psychological considerations which are connected with the theory of moral responsibility. To settle such points you would have to empanel a jury of philosophers, and the only thing of which you could be certain would be, that such a jury would never agree upon a verdict. Again, there are whole classes of virtues and vices with which the criminal law is not concerned. Ingratitude, to take the common example, is a grave vice, but one which it would be absurd to punish legally. Not only would such an attempt involve impossible inquiries, but the attempt would be self-defeating. If the duty of gratitude to a benefactor were turned into a legal obligation, gratitude proper would cease to exist. To confer a benefit would be the same thing as to acquire a right to repayment. A man who allows his best friend to starve, or to go to the workhouse, may be, morally, far worse than a thief; but you could not punish him legally, without adopting a principle which, even if practicable, would, so far as it operated, be destructive of all disinterested friendship. The law, again, can deal only with criminals who are found out. What proportion they may bear to the whole class of moral offenders is not discoverable; but it is, at least, safe to say that, for every man whom you convict of a crime, you must leave unpunished, because undetected, another sinner who is equally deserving of punishment. And, finally, it is apparently impossible to say, upon any intelligible grounds, what should be the proportion between crime and punishment. How many years' imprisonment does a man deserve for putting out his neighbour's eye? I do not see how such a rule of three can be stated. The good old theory of an eye for an eye and a tooth for a tooth, seems to suggest a possible criterion. But it was difficult to carry out. Deloraine, in the Lay of the Last Minstrel, has, as he points out, killed Musgrove's brother; but, on the other hand, Musgrove has killed Deloraine's nephew, and, besides, got a thousand marks ransom out of Deloraine himself. Is the account to be regarded as accurately balanced? Is one brother just equal to a nephew plus a thousand marks? The theory, of course, is an application of an inappropriate analogy. If we regard crime simply as a case of private injury, we may say that it is fair that the wrong-doer should restore the thing that he has taken, and so put matters where they were before. But this is obviously to take a view which is quite inapplicable in most cases, and in all cases becomes inadequate when we take the moral view, and regard crime as an offence against society—not simply as a wrong to another individual.

For such reasons, it is apparently impossible to say that a legal punishment can be just, in the full sense in which the moralist would use the words. No doubt we may say,—and we wish that we could always say,—that a man "deserves" what he has got; and that implies that we recognise as desirable some satisfaction to our sense of justice. And, of course, too, we demand that justice should be done in another sense of the word; that the case, for example, should be impartially investigated; that a man should not be punished severely because he is poor, or because he is unpopular, or let off easily because he is a private friend of the judge. Such demands mean that justice should not be perverted by applying irrelevant considerations; but they leave our previous questions untouched. The criminal law, from its nature, cannot impose equal penalties upon all men who are equally wicked; but only upon those who have made themselves liable: and that always involves elements of accident; it cannot take into account at all some of the elements upon which the depth of moral depravity essentially depends; and it is, at least, very difficult to say what specific meaning can be given to the proportion between crime and the suffering imposed upon the criminal.

If, then, the legislative action must, of necessity, be very imperfect from the moral point of view, we may try what will be the effect of dismissing the moral question altogether, or, at least, reducing it to a secondary place. We may, that is, consider crime not in so far as immoral, but in so far as mischievous. Here we have the doctrine worked out very consistently by Bentham and his followers. Pain, they said, is an evil, the only evil; pleasure, a good, and the only good. To inflict needless pain—pain which does not cause a balance of pleasure—upon any one, be he a good man or be he a bad man, is, so far, wrong. For the same reason, it is justifiable, and, indeed, right, to inflict pain, so far as it prevents some greater evil. Hence, you should punish criminals just so far as the pain which you inflict is less than the pain which you prevent. It is wrong to give a single useless pang even to the worst of men. If (according to a sentiment attributed to Bentham) a fine of five shillings would prevent a man from committing murder, it would be wrong to fine him seven shillings and sixpence. This gives a justification of punishment, in so far as deterrent. It is obviously connected with another doctrine. A man is the best judge of his own pleasures and pains. Therefore, in so far as a man's actions affect himself alone, they are not to be forbidden by the law. We may think them bad or degrading; but so long as they do not affect others, the fact that a man chooses them is a proof that they give him pleasure; and we shall, therefore, only diminish the sum of happiness by interfering. Now, it is plain that this distinction does not draw the line between what is morally bad or good. Every habit which affects a man's own character, affects, also, his capacity to fulfil his duties to others. But this theory overlooks immorality, except so far as it happens to involve certain extraneous consequences. We are, upon this showing, to punish a criminal precisely in the same spirit as we are to abate a nuisance. The thief is to be suppressed, as we are to extirpate a mischievous weed, and to be suppressed by just as much severity as is required for the purpose. The drunkard, so long as he confines himself to making a beast of himself in his own room, does his neighbours no direct injury, and must be left to enjoy the pleasure which is shown, because he chooses it, to be a pleasure to him. Of this theory, it may, I think, be said that, however imperfect, it is tolerably consistent, and, moreover, that it undoubtedly does express one legitimate end of punishment. There can be no doubt, that is, that the punishment of murderers may be rightly defended, among other grounds, at any rate, on the ground that it discourages the practice; though we may not fully agree with the famous saying of the judge, "You are not hanged for stealing sheep, but hanged in order that sheep may not be stolen". And, further, though there are various difficulties about the distinction between "self-regarding" and "extra-regarding" conduct, we must also, I think, allow, in general terms, that the fact that a man's conduct has a direct and assignable influence upon his neighbour's happiness, must always be one reason, and, frequently, the only sufficient reason, for suppressing it by legal penalties.

This doctrine of simple deterrence, however, seems, to most critics, to be insufficient. It omits the moral element too completely. When a man is punished for some revolting offence, we are not simply providing him and his like with reasons for abstaining in future. We are, as a fact, exposing him to infamy, sometimes more painful to bear than the immediate penalty, and are thus, in fact, invoking the sanction of the moral sentiment. Therefore, it is urged, we must still, whether we like it or not, be moralists. The purely utilitarian argument has omitted one element of the calculation. The punishment not only deters offenders, but gratifies the feeling of resentment to moral indignation, which has been approved by many moralists. Hence, it is urged, besides the deterrent theory, we must make room for the vindictive theory. It is legitimate and right to hate crime, and, therefore, to hate criminals; and legal punishments are defensible, not merely as adding to the motives for refraining from crime, but as gratifying the desire for revenge, which, in early ages, was assumed in the rude modes of putting down violence, and which, even now, should be not eradicated but confined within legal channels and directed towards the desirable ends.

Postponing, for the present, a consideration of this proposed emendation, let us consider, a little more closely, the objection made to the theory of deterrence. In what way does it come into direct conflict with a moral theory of punishment? It looks upon immorality as mischievous, or as diminishing happiness; and upon the utilitarian view immorality means the diminution of happiness. Now, without discussing ultimate moral questions, I may assume that, for practical purposes, this seems to be a sufficiently tenable position. After all, we admit, to whatever school we belong, that crime is mischievous, and, whatever deeper meaning may be assigned to it, may be considered in that light by the legislator. He cannot—certainly he ought not to—forbid actions which do no harm to anybody, or which nobody, at the time and place, feels to be injurious to happiness. Even, therefore, if utilitarianism be unsatisfactory as an ultimate theory, it may represent adequately the point of view of the practical legislator. He tries to suppress violence and fraud because, as a fact, they cause what their victims unanimously agree to be painful consequences; and he need not look any further for a reason. People, it is said, have very different standards of pleasure. Still, we all dislike having our throats cut or our pockets picked; and that fact supplies a sufficient ground upon which to base the whole criminal law. When we go a little further, a point of divergence may be noticed, a short consideration of which may help to clear the case. Let us assume the legitimate end of all punishment to be deterrence. It will follow, that we must annex as a consequence to crimes an adequate counterpoise, and a counterpoise not more than adequate to the criminal's motives. The fine to be paid must be just sufficient to prevent the transgression. Now, it has been urged, this necessarily implies a conflict with morality. The degree of moral guilt implied in a given crime varies inversely as the temptation. The greater the inducement to the offence, the less the wickedness shown in committing the offence. A man may have enough virtue to refrain from a gratuitous injustice, although he has not virtue enough to resist a large bribe, or the threats of a man in power. But, if the legislator is to provide simply a counterpoise, he will have to follow the opposite rule. The greater the temptation, the greater must be the force of the motive which must be added to counterbalance the temptation. If there be a crime by which a man might make a million of money, you must, if you would prevent it, hold out the prospect of such pains as would, in his estimation, be cheaply avoided at the sacrifice of a million; or, making allowance for the uncertainty of detection, by the sacrifice of more than a million. But if, by the same crime, he only got a five-pound note, the prospect of paying a hundred pounds in case of detection might be a sufficient preservative of his honesty. Yet, the man who is tempted by the million gives less proof of dishonesty than the man who commits the same crime for a paltry five pounds. Therefore the punishment must be increased, as the wickedness is less.

I must first set aside one ambiguity which perplexes this argument. When we speak of a temptation as varying, we may mean one of two very different things. To say that I am more "tempted" than you to commit a given crime, may mean that the gain expected by me is itself greater; or, it may mean that I am more predisposed to the crime. I may be more tempted, let us say, to poison my uncle than you are to poison yours. That may mean that my uncle is a rich old sinner and I am his heir, whereas your uncle is a poor saint and you will get nothing by his death. Or it may mean that I am more tempted because, our uncles being alike, I am spiteful, and you affectionate, by nature. In the first case, to say that I am under the stronger temptation would, perhaps, tend to alleviate the gravity of my crime; in the second, it would simply be another way of saying that I was the greater brute. In both cases, of course, it is true that the greater temptation would require the greater counterpoise. In one case, this only means that the worse the man, the stronger the restraints which he requires; and, if you could make different laws for bad men and good, it would follow that the bad would require the heaviest penalties. But this does not conflict with the moral view. It is no excuse for a murderer to say, "I am so bloodthirsty that I really could not help murdering". No contradiction to morality arises from punishing his crime more severely. In the other case alone,—the case in which we made distinctions founded upon the difference of surrounding circumstances,—it is true that we should, from the point of view of simple deterrence, require heavier penalties where the temptations were greater, and, therefore, the intrinsic malevolence proved to exist less.

For most purposes, this argument seems to have very little practical application. The law is made for people in general; we cannot have one law for bad men and another for good; partly because good and bad people do not carry about tangible marks of their quality written upon their faces. No doubt, indeed, the atrocity of a crime is recognised, if not by the general law, by the nature of the sentence. An assault may show unnatural ferocity or merely a rather excessive warmth of temper; and, though the offence may be forbidden under the same clause of the criminal law, the judge may be empowered to give sentences of varying severity, varying more or less according to the moral depravity implied. So far, the worst offences (in a moral sense) get the heaviest punishment; and the deterring influence is rightly exerted by proportioning the penalty to the temptation, that is, to the predisposition to crime. The other case, again, requires some qualification. It is not true, as an absolute proposition, that the criminality is always, or generally, diminished, in proportion to the greatness of the temptation; for we must remember that both the temptation and the crime will generally be greater in proportion to the amount of mischief inflicted. It is more tempting, no doubt, to appropriate a thousand pounds than a shilling; but we cannot infer that the man who takes the larger sum is, therefore, less wicked; that he has a conscience which would have kept him honest under the smaller temptation, and has only yielded to the greater. Compare, for example, the case of the petty pilferer who appropriates my watch, with the case of the man of business who appropriates securities worth many thousand pounds and ruins widows and orphans by the dozen. We should all agree, I imagine, that the perpetrator of the more gigantic fraud would require the stronger deterring motive to be kept straight. He is playing for heavy stakes, and we cannot hold out too strong a threat of infamy and suffering, if our aim is simply to prevent the crime. But neither, if we consider him from the purely moral point of view, would it be fair to argue that he was a better man than the pickpocket, because the plunder which tempted him was greater. The opposite, I fancy, would be true. He shows a callousness to human suffering, and an amount of deliberate hypocrisy and treachery which proves him to be not only the more dangerous, but the more thoroughly corrupt of the two. The two ends of providing a sufficient counterpoise and of punishing the worst men most severely, would, therefore, coincide in this case also; and the argument that the greater temptation implies less wickedness is plainly inapplicable.

Without going further into this, which may briefly indicate some of the perplexities involved, I may mention certain cases in which there seems to be a real divergence of the two principles. There are cases in which the temptation may be fairly held to lessen guilt, and in which punishment has, notwithstanding, been made severer in consequence. The criminal law of the last century, for example, imposed a penalty of death upon persons who stole certain kinds of property left in specially exposed positions. The ease of taking it would very possibly tempt to theft men who would elsewhere be honest; and it was sought to compensate for the strength of the temptation by more savage punishment of those who yielded to it. Or, again, there are certain problems of a similar kind connected with political offences. A man who gets up a rebellion from sincere political motives is generally far better morally than the man who gets up a rebellion for the sake, say, of simple plunder. Ought the motive to be allowed as an extenuation of the offence? It ought, it may be said, from a moral point of view; but, from the point of view of simple deterrence, we might rather consider that the patriotic rebel is the more dangerous person of the two, and, therefore, requires the prospect of at least as heavy a punishment to keep him quiet. So, again, it has been asked, whether it should be admitted as an excuse for a rioter, that he has joined in violent courses under threats from the riotous mob. This is, of course, an excuse from the moralist's point of view; the man is only attacking the police in order to save his own house from being burnt, not from a disorderly or disaffected spirit. But it is replied, from the deterring point of view, that, if such an excuse be allowed, you are ceasing to threaten at the precise moment when the threats are most required. If the law is not to press from one side, all the pressure will come from the other, and every argument will be in favour of joining the side of disorder. Hence, it is argued, we ought to proportion the punishment, not to the offence, but to the temptation.