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

by Leslie Stephen

Now, I may say, very briefly, that such a divergence of the two principles appears to me to be possible; and, further, that cases may be put in which it might be necessary to deter, at all hazards, even to the neglect of moral considerations. A general who is defending a town must sometimes burn the houses of innocent people, without stopping to consider whether they can ever be compensated; and I think that there may be analogous cases even in regard to law, where the consideration of the absolute necessity of putting down mischievous conduct may override the normal moral considerations. But the general answer is, I think, different, and may help to clear the principle. The law to which I have referred, for the protection of exposed property, obviously suggests one remark. The true remedy for the evil would have been not to increase the penalty, but to increase the protection. You ought to have provided more watchmen, or to have forbidden owners to put temptation in the way of their neighbours, and not to have tried to make the hangman do the work of the policeman. So our ancestors erred when they protected their fields, not by putting up fences, but by setting mantraps to mutilate occasional trespassers. In that, as in other cases, the mistake is to confuse between the deterring influence of punishment and the preventive influence of protective measures. Arguments, questionable when used on behalf of punishment considered as deterring, are perfectly applicable to the preventive measures. It is obviously right that such measures should be proportioned to the temptation. When a starving man steals a loaf, he is not so bad as a man who steals when he is not starving. We should, therefore, think it morally wrong to punish him as severely. But, if we thought that he ought not to have the loaf, we should take stronger precautions in proportion to the probable temptation. If, for example, we were sending supplies to relieve a starving district, it would be clearly right to send such a force with them as might prevent their appropriation by the strongest, or the first comers. But, at the same time, we should also think it right to save the men from temptation, by providing as much as possible against the danger of starvation. So, again, it would be monstrous to punish a poor man more severely than a duke, for stealing a watch; but, as a matter of prudence, I should take more precautions if I were dining in a poor public-house, than if I were dining in a ducal palace.

This suggests the true application of another doctrine, about the responsibility of society. Society, it is sometimes said, has no right to punish, because it ought to have suppressed the causes of crime. This doctrine is often stated very illogically, and would sanction a great deal of false sentimentalism. If society includes many corrupt and dangerous elements, that is no reason at all for not suppressing them by all available means. But, no doubt, it is a very good and sufficient reason for trying, as far as possible, to remove the cause as well as the effects; for getting rid of the temptations to crime, and training people so as to make them less disposed to crime, instead of simply punishing more severely those who have yielded to temptation and given play to instincts which have not been properly disciplined. This applies conspicuously to the case of the political criminal. It is generally essential to the welfare of a nation, that order should be preserved by a settled government. It is the duty of every government, not only to crush resistance, but to take such precautions as will make resistance hopeless. But a correlative duty is suggested when a rebellion actually occurs, and especially a rebellion which excites the sympathy of otherwise moral people. Such a case, that is, affords the strongest presumption that there are real grievances to be redressed, and that the rebel should not be confounded with the vulgar criminal. It may be, and often is, quite necessary to shoot him down, so long as he is actively attacking authority; but, when he is disarmed, he cannot be regarded simply as a thief or murderer, but as a man who has given a useful, though a disagreeable, hint that the times are out of joint.

I have gone so far into these questions—which might lead to a great many other problems of legal casuistry—with the desire of bringing out one essential part of the question. The difficulties which have arisen point, I think, to the impossibility of treating the problem exclusively, from a simple consideration of the deterring influence of punishment. That, however, remains an essential element. If the sole reason for punishing a sheep-stealer be not the prevention of sheep-stealing, that is, at least, a very excellent reason as far as it goes. But it seems to me an insufficient reason from the moral point of view, and, in particular, to fail in assigning a sufficiently distinct ground for determining the desirable degree of punishment. The principle was advocated as limiting the severity of the old laws; but it is not quite easy to define the limit suggested. There is a necessary clumsiness about the method. A punishment only becomes operative in the cases in which the threat has failed to deter. The fact that a man has committed a crime demonstrates the inadequacy of the system in his case; we have not given him a sufficient motive for abstaining. When Bentham says, that if a fine of five shillings would prevent a murder, you ought not to fine the murderer seven and sixpence, he says what is, in a sense, obviously true. If I could prevent a murder, or, indeed, achieve any other desirable object, for a given sum, why should I throw away another penny? But the fine is not inflicted till somebody has committed a murder, and, in that case, the threat of fining has obviously failed. The question arises, therefore, how far am I to go? Am I to go on raising the tariff till murder becomes altogether obsolete? But we have already got as far as capital punishment, without achieving that result. And, if we consider the case upon this method, we begin to find a difficulty in the method of calculation. We are to compare the pain inflicted upon the criminal with the pain saved to the victim. But the greater the pain inflicted, the smaller, according to the assumption made, will be the number of criminals, and the greater the number of victims saved. If we could adopt the Draconic system, and be sure of punishing every crime with death, crime ought to disappear; for hardly anybody would break the law if he were quite certain of the gallows. But, in that case, the pain, both of the criminal and the victim, would disappear, for there would be no one in either class. The result, therefore, would be a pure gain: no crime and no punishment. Against this practical conclusion, indeed, Bentham was one of the first to protest; and he uses one very sound argument. Punish all crime equally, he says, and you put a premium on the worst crimes. If both robber and murderer are to be hanged, the robber will have a good reason for destroying evidence, by adding the murder to the plunder of his victims. But, though the argument is very much to the purpose, it seems to make our calculations rather difficult. We cannot look simply to the deterring influence of a given punishment, but have to consider its place in the general tariff, and its influence in inducing people to prefer one variety of crime to another. And if we try to find our way out of this difficulty, we shall have, I think, to find that the mode of reasoning requires some modification.

The theory on which the calculation goes may, perhaps, be represented thus: It is supposed that by hanging a murderer, you prevent, say, ten murders which would otherwise happen. The suffering saved to the ten victims is greater than the actual suffering of the single criminal. Therefore, the infliction of the penalty gives a balance on the side of happiness. The argument seems to me to be sound as far as it goes, and, in some cases, it would, I think, be sufficient. If, for example, it were proved that the use of a certain remedy, such as inoculation, caused a certain number of deaths, while, on the other hand, it prevented ten times as many, we should consider that a good case had been made out for its adoption. And, similarly, if we attended simply to the number of executions and to the number of crimes, and could make the necessary arithmetical comparison, we should be able to estimate the balance of good or evil in terms of pain and pleasure. But this mode of considering the case is obviously inadequate; and, indeed, Bentham (though I cannot now go into his teaching) feels and makes allowance for its inadequacy. For, to say nothing else, the mere deterrence of a certain number of crimes is an entirely insufficient measure of the effect of the law. The one obvious remark is that, by suppressing violence, you not only save a certain number of lives, but you secure an essential condition of all civilised life. I came here to-night without a revolver in my pocket; and I am not aware that I showed any particular courage by doing so. But it would have been foolhardy to have shown the same negligence, a few years ago, in some of the Western States of America. If I had lived in such conditions, I should not only have taken a revolver, but have, very possibly, thought it a duty to join a vigilance committee, with a view to the suppression of crimes of violence. There are still regions where the fact that a man lives in a neighbouring village is a sufficient justification for shooting him down as soon as he comes in sight, for the simple reason that, otherwise, he would shoot you. So, when private war was still part of the regular custom, there was an obstacle which had to be crushed before any progress could be made in industrial development, which presupposes peaceful intercourse and mutual confidence. The formation of all that is meant by social order, the bringing about of a state of things in which men can meet habitually without fear or precaution, counting with complete confidence upon the absence of any hostile intention, is, obviously, an essential condition of everything that makes life worth living in a civilised country. The fact is too obvious to require much illustration; but it requires notice, for it is very imperfectly recognised when you regard murder, for example, simply as a kind of sporadic disease, which breaks out here and there, and can be kept within limits by killing some murderers, and so frightening other would-be murderers. The criminal law, no doubt, includes that consideration; but it includes infinitely more. It is a necessary corollary of that state of social relations which alone gives a secure base for every conceivable kind of satisfactory social relation. It might, perhaps, serve as a sufficient defence of the old system, when, in the absence of any settled order, the system of private vengeance, of blood-feuds, and so forth, served to restrain the prevalence of actual violence. But it is a totally insufficient measure of the real advantage gained by enforcing order. We have to compare, not only the number of murders and the number of victims which would exist in a given social order, supposing the penalty to be inflicted or not inflicted; but to compare two radically different social states, and to ask, whether it is better to live in a society where peace is the almost invariable rule, and violence the rare exception, or in one in which there is a chaos of little societies, each of them being in constant fear of all its neighbours. The construction of a central authority which will keep the peace is a necessary part of the process of civilisation, and the criminal law is involved in the process. For, of course, it follows that, so long as anti-social elements exist within the borders of society, and some people resort to the old methods of the knife or the bludgeon, they must be put down; and the hangman and the jailer, clumsy as the action may be, represent the only kind of machinery which has hitherto been invented for the purpose.

It follows that we must understand "deterrence" in a wider sense than we have hitherto given to it. When we speak of punishment as deterring from crime, we must consider, not merely the effect upon the individual of the prospect of punishment following detection, but the total effect of a systematic adherence to the law upon the preservation of a peaceful state of society at large. We do not simply wish to provide a sufficient motive to decide the individual who is asking himself, shall I steal or not steal? but to maintain an organisation under which property shall be normally respected, and stealing become as exceptional as we can make it. This, in turn, involves much more than a simple execution of the criminal law; it involves the support of agencies for prevention, education, and reformation; though it does, also, involve an inflexible adherence to the criminal law. The law has to use rough means, and cannot possibly affect to adhere precisely to the moral deserts of individual cases. But it is justified by the simple ground that the only alternative is a chaos of barbarism. If you ask, therefore, in what sense is a criminal law just? we must confess that, in certain respects, it is impossible that it should be strictly just; it must deal with the found-out exclusively and with those who are found out in certain definite cases of criminality, and it must, therefore, impose penalties which do not precisely correspond to the degree of criminality implied. But the relation to morality is, nevertheless, intimate. For the growth of the social order depends upon the growth of the corresponding social instincts; or rather, the two processes are correlative. If I love my neighbour I shall not wish to cut his throat; and, in order that I may love him, I must be pretty sure that he does not mean to cut mine. The external framework provides a protection under which the primary moral instincts can expand; and the expansion of the instincts supposes a correlative modification of the external framework. The moral requirement in regard to the criminal law is, therefore, essentially, that it should be such a law as is favourable, when considered in connection with the whole order, to the strength and development of the existing morality. If the criminal asks, How do you justify yourself for punishing me? the reply must be, Because the inflexible administration of the law is an essential precondition of the whole system, under which alone progress is possible. A society in which peace and order are preserved is superior, in morals as in other respects, to a society in which peace and order are made impossible by violence; and the suppression by punishment of offenders is involved in the system. The advantage of belonging to such a society is not to be measured by counting up the working of individual cases; but by the whole characteristics of the social state, taken as a whole, and including, as one essential part, the administration of criminal law in such a way as to be in conformity with the conditions of healthy social development. The difficulty, I think, though I can only indicate the argument briefly, results from a common illusion, which is illustrated by the once famous social contract theory. You suppose a number of independent individuals, agreeing to join and expecting to receive a precise equivalent for every sacrifice that they make in consequence. The reply is, that the individual is the product of the society, and it is a mere fiction to consider him as possessing any antecedent rights whatever. His rights are to be deduced from, not to supply the premisses for deducing, the social order. The only considerations which are relevant are those which affect the welfare of the social organism, taken as a whole; and we must regard them as determined, before we come to the distribution of benefits and burdens among its constituent facts. Otherwise, we should be falling into the same fallacy as if we argued about the health of separate bodily organs, legs, and arms, and stomachs, as though they were independent things, fastened together to make a single machine. Since the leg implies the stomach, any consideration of the leg's separate rights would be absurd. So the individual member of a political society cannot be regarded as though he had existed outside society somewhere, and was entitled to a precise equivalent for the sacrifice of his independence. The doctrine involves impossible considerations. I have to contribute to certain sanitary regulations, though I may be stronger or weaker than my neighbours, and therefore less or more in need of them. Or, I have to pay a school-rate, whether I have a dozen children or none at all. Do those facts give me a right to complain if I am taxed equally with my neighbours? If so, every benefit which I receive from society must be set down as a separate item in an account to be balanced by itself. Obviously, the advantage which I receive in such cases is the whole advantage received from living in a healthy place or among educated people; and it is essentially impossible to cut that up into a number of different bits of happiness conferred in return for separate payments on account. If I use the contract formula, I must interpret it to mean that amenability to various regulations, including the criminal law, is part of the whole bargain, which would have been made, if it had ever been real, when I decided, if I ever had decided, to join the society. The instinct for punishing criminals guilty of violence is one of the fundamental instincts of civilisation, and we must accept it just as we accept any other fundamental instinct.

The question of justice, however, is not a whit the less essential because it presupposes this social characteristic instead of supplying the primary axioms from which it is to be deduced. It is undoubtedly of the highest importance that every difference in our method of treating different classes should have its sufficient reason, to be assigned as clearly as possible. The preservation of the peace is essential; but that does not settle the methods by which it is to be preserved.

On what ground, then, are we to deal with the problem of justice as regards different classes of crime? If the calculation of pain and pleasure, as already stated, seems to be unsatisfactory, what is the right principle of proportioning punishment to offence? I have noticed one argument which Bentham applied, and, as I think, with very good reason. To punish crimes equally, he said, is virtually to put a premium upon the worst. The "in for a penny in for a pound" maxim becomes at once applicable. Moreover, as every one now admits, the old brutal system is condemned by experience. To punish a great number of offences with death led to a mixture of excessive brutality with excessive uncertainty. The cruel punishment of some criminals was balanced by the complete escape of others. But this practical failure clearly resulted, in great measure, from an obscure sense of justice. It was grossly unjust, it seemed, to hang a man for stealing a loaf, when you could only hang another for the brutal murder of his wife. The penalty in the first case, was, it was felt, altogether out of proportion to the offence. This instinctive sentiment was, as I think we all feel, substantially right. In any case, it would have to be taken into account by the legislator, for the obvious reason that punishments which outrun public opinion, tend to make martyrs of criminals. They are either not inflicted, or they set the sympathy of the people on the side of the offender. But to say this, is not to prove the sentiment to be just, only to take account of its existence. And the question, therefore, remains, how it is to be logically justified, for it may seem to imply the theory to which I have objected—the hypothesis of a sort of debtor and creditor account—of the old "eye for an eye" doctrine, which, as I have argued, involves a misconception of the true doctrine. My reply would be, in general terms, that the doctrine requires restatement, and, if properly stated, will not lose but acquire new forces.

Let us consider the consequences of my previous statements. The essential condition of social development is enforcement, where necessary, of peace and order by adequate means. The criminal law corresponds to one part of this process. The whole social system includes machinery for prevention, for reformation and for education, as well as for punishment; and it is only when taken in its relation to other parts of the system, that we can give the full justification. Its methods are, as I have said, obviously full of imperfections, from the purely moral point of view. If we consider it as an isolated fact, comparably to the interference of a quasi-supernatural power, which clutches an offender here and there, and punishes him simply to frighten others, the arbitrary and unequal nature of the proceeding assumes an air of injustice. In fact, if you take the extreme individualist view, according to which each man is an independent unit, while society represents a force impinging upon him from without, it always becomes difficult to introduce the conception of justice without ending in the approval of anarchy. When, however, we consider the social organisation as including all the means of civilising society, of strengthening the general spirit of order, as well as acting upon the fears of the disorderly, we have to take wider considerations into account. We become sensible, in the first place, of the importance of the principle that punishment should never be substituted for prevention. Wherever it is possible to remove temptations, or take precautions which make crime impossible, we can have no excuse for adopting the blundering and unsatisfactory system of punishing those who have committed it. We admit, that is, that the criminal law, though absolutely necessary, is an essentially clumsy contrivance, to be used only when other methods fail. When certain punishments have been condemned as brutalising, it has been replied that the persons punished were already so brutal that it is impossible to make them worse. But the brutalising influence is even more objectionable as it applies to the legislator than as it applies to the criminal. To make up for neglect of appropriate precautions by severity against the offender, is to adopt the necessarily arbitrary method in which chance must always play a part in place of more effective and civilising methods. Frugality in applying punishment is desirable as a guarantee that we are acting in the proper spirit. An Indian official was asked why the native police were disposed to use torture for the detection of crime. The cause was, he said, mainly from laziness: it was so much easier to sit in the shade, rubbing red pepper in a poor devil's eyes, than to go about in a hot sun collecting evidence. So, it would be very much easier to inflict cruel punishment than to try to remove the causes of crime; and a resolution never to use the more brutal methods is not, as I think, to be regarded as a proof of weak sentimentalism, but as a judicious self-denying ordinance, imposed upon society by itself, as binding it always to adopt, as far as it possibly can, what is at once the more humane and the more scientific method. The same principle involves the careful graduation of punishment. There are, indeed, as I believe, though I cannot give reasons, cases in which crimes ought to be punished with death. There are persons of whom we may say that it would have been better, especially for their neighbours, if they had never been born. "I am worth inconceivably more for hanging than for any other purpose," said the heroic John Brown; and the words may be applied, in a very different sense, to some of the wretches who occasionally make their appearance in the courts. To hang such a man is to act upon the assumption that murderers represent elements which are entirely and radically anti-social. The only remedy for them is extirpation. But, if this be admitted, it suggests a sufficient reason for not applying it to the cases of less gravity, in which such radical incompatibility has not been demonstrated. Punishment by death, even if necessary, is certainly a confession of impotence. We are admitting that we can do nothing better with the man than convert him into a scarecrow for the benefit of his like. What more, it may be asked, can we do with a criminal? The obvious reply would be, reform him. Although no one can doubt that reformation would be an extremely good thing, wherever practicable, it may be urged that the enterprise is exceedingly difficult; that, in many cases, it is hopeless; and that we might spend our money and our efforts to better purpose upon more hopeful materials. And yet, I think that the answer is the true one, if properly understood, and will suggest the right meaning to be given to the word "deterrence". So long as we consider the individual case alone, and merely mean that we are giving motives to bad men for refraining from particular lines of conduct, the results, however desirable, are of limited value. But if we consider deterrence as including or coinciding with reformation, as indicating a part of the general system of moral pressure by which the classes exposed to temptation may be gradually raised in the scale of civilisation, we recognise an acceptable meaning. In fact, if we ask what is the deterring influence of punishment, we must observe that at one extreme it will always fail, or only induce a bad man to take precautions against detection; and that, at the other end of the scale, there are a great many cases in which it does not come into active operation at all. You and I, I hope, are not in the least disposed to assault each other, even though no policeman is present. The bare thought of resorting to violence, pelting me, say, with rotten eggs, has not even suggested itself to you, even though I may be making a very provoking use of my tongue. But there is also an intermediate class of people upon whom the possibility of having to appear in a police court, and the strong sense of shame attached to such appearances, is an active restraining force, tending to limit, and, in cases where the proper conditions exist, gradually to narrow, the sphere of violence. We, the peaceable and law-abiding citizens, have gained a right to those epithets, because we have lived in a sphere where the law has been habitually enforced. We have ceased to carry deadly weapons about us, and have established a general condition of good order. The deterring influence of the criminal law acts, or ought to act, by gradually spreading that state of mind through a steadily widening circle. The classes which are still in need of such a support to their moral instincts are clearly capable of reformation, whatever may be the case of some of the individuals who break the law. A fighting tribe, which has been in the habit of resenting every injury by the use of the knife, may learn, in a very short time, that a court of law settles disputes more agreeably than a free fight; and may become a most admirable and efficient part of the society to which it belongs. And the same may be said of large classes in our own society, which are perfectly capable of being converted into good citizens, though they may retain certain propensities developed under a rougher and more brutal system. To employ excessive and brutalising punishments in order to suppress small offences, is, therefore, to abandon the aim of civilising, to declare internecine war against the class, and to regard them simply as a nuisance to be abated. The effect might be, if the law could be carried out, to prevent a certain number of crimes; but it must also be to generate a more dangerous spirit in the class which you regard simply as dangerous, instead of regarding it as the possible raw materials of a more civilised and orderly society. Without attempting to dwell upon a familiar argument, I merely say that this view of the case implies that the governing power should be regarded, not simply as a machinery for catching and killing noxious criminals, but as a great civilising influence, suppressing all temptations to crime, where possible; preferring prevention, in every practicable case, to punishment, and making use of the clumsy, though necessary, weapons in the last resort; and acting by a steady and regulated pressure upon all anti-social elements. It is only possible to give a satisfactory theory of the jail and the gallows, when you take them as a subordinate part of the system which includes reformatories and schools, and due precautions for the regular preservation of order. The ultimate criterion of justice is not to be found in any attempt to form a debtor and creditor account between the government and the individual; but in the civilising influence of the system, taken as a whole.