185. The idea of punishment implies on the side of the person punished at once a capacity for determination by the conception of a common or public good, or in other words a practical understanding of the nature of rights as founded on relations to such public good, and an actual violation of a right or omission to fulfil an obligation, the right or obligation being one of which the agent might have been aware and the violation or omission one which he might have prevented. On the side of the authority punishing, it implies equally a conception of right founded on relation to public good, and one which, unlike that on the part of the criminal, is realised in act; a conception of which the punitive act, as founded on a consideration of what is necessary for the maintenance of rights, is the logical expression. A punishment is unjust if either element is absent; if either the act punished is not a violation of known rights or an omission to fulfil known obligations of a kind which the agent might have prevented, or the punishment is one that is not required for the maintenance of rights, or (which comes to the same thing), if the ostensible rights for the maintenance of which the punishment is required are not real rights, are not liberties of action or acquisition which there is any real public interest in maintaining.
186. When the specified conditions of just punishment are fulfilled, the person punished himself recognises it as just, as his due or desert, and it is so recognised by the onlooker who thinks himself into the situation. The criminal, being susceptible to the idea of public good, and through it to the idea of rights, though this idea has not been strong enough to regulate his actions, sees in the punishment its natural expression. He sees that the punishment is his own act returning on himself, in the sense that it is the necessary outcome of his act in a society governed by the conception of rights, a conception which he appreciates and to which he does involuntary reverence.
It is the outcome of his act, or his act returning upon himself, in a different way from that in which a man's act returns on himself when, having misused his body, he is visited according to physical necessity by painful consequences. The cause of the suffering which the act entails in the one case is the relation of the act to a society governed by the conception of rights; in the other it is not. For that reason, the painful consequence of the act to the doer in the one case is, in the other is not, properly a punishment. We do indeed commonly speak of the painful consequences of imprudent or immoral acts ('immoral' as distinct from 'illegal') as a punishment of them, but this is either metaphorically or because we think of the course of the world as regulated by a divine sovereign, whom we conceive as a maintainer of rights like the sovereign of a state. We may think of it as divinely regulated, and so regulated with a view to the realisation of moral good, but we shall still not be warranted in speaking of the sufferings which follow in the course of nature upon certain kinds of conduct as punishments, according to the distinctive sense in which crime is punished, unless we suppose the maintenance of rights to be the object of the moral government of the world,—which is to put the cart before the horse; for, as we have seen, rights are relative to morality, not morality to rights (the ground on which certain liberties of action and acquisition should be guaranteed as rights being that they are conditions of the moral perfection of society).
While there would be reason, then, as against those who say that the punishment of crime is merely preventive, in saying that it is also retributive, if the needed correction of the 'merely preventive' doctrine could not be more accurately stated, it would seem that the truth can be more accurately stated by the proposition that punishment is not justified unless it is just, and that it is not just unless the act punished is an intentional violation of real right or neglect of real obligation which the agent could have avoided (i.e. unless the agent knowingly and by intentional act interferes with some freedom of action or acquisition which there is a public interest in maintaining), and unless the future maintenance of rights requires that the criminal be dealt with as he is in the punishment.[1]
[1] The conceptions of the just and of justice implied in this statement of the conditions of just punishment may be expressed briefly as follows. 'The just' = that complex of social conditions which for each individual is necessary to enable him to realise his capacity of contributing to social good. 'Justice' is the habit of mind which leads us to respect those conditions in dealing with others,—not to interfere with them so far as they already exist, and to bring them into existence so far as they are not found in existence.
187. It is clear, however, that this requirement, that punishment of crime should be just, may be covered by the statement that in its proper nature it is preventive, if the nature of that which is to be prevented by it is sufficiently defined. Its proper function is, in the interest of rights that are genuine (in the sense explained), to prevent actions of the kind described by associating in the mind of every possible doer of them a certain terror with the contemplation of the act,—such terror as is necessary on the whole to protect the rights threatened by such action. The whipping of an ill-behaved dog is preventive, but not preventive in the sense in which the punishment of crime is so, because (1) the dog's ill conduct is not an intentional violation of a right or neglect of a known obligation, the dog having no conception of right or obligation, and (2) for the same reason the whipping does not lead to the association of terror in the minds of other dogs with the violation of rights and neglect of obligations. To shoot men down who resist a successful coup d'état may be effectually preventive of further resistance to the government established by the coup d'état, but it does not satisfy the true idea of punishment, because the terror produced by the massacre is not necessary for the protection of genuine rights, rights founded on public interest. To hang men for sheep-stealing, again, does not satisfy the idea; because, though it is a genuine right that sheep-stealing violates, in a society where there was any decent reconciliation of rights no such terror as is caused by the punishment of death would be required for the protection of the right. It is because the theory that punishment is 'merely preventive' favours the notion that the repetition of any action which any sufficient body of men find inconvenient may justifiably be prevented by any sort of terror that may be convenient for the purpose, that it requires to be guarded by substituting for the qualifying 'merely' a statement of what it is which the justifiable punishment prevents and why it prevents it.
188. But does our theory, after all has been said about the wrongness of punishment that is not just, afford any standard for the apportionment of just punishment, any criterion of the amount of interference with a criminal's personal rights that is appropriate to his crime, except such as is afforded by a prevalent impression among men as to what is necessary for their security? Can we construe it so as to afford such a criterion, without at the same time condemning a great deal of punishment which yet society could be never brought to dispense with? Does it really admit of being applied at all in the presence of the admitted impossibility of ascertaining the degree of moral guilt of criminals, as depending on their state of character or habitual motives? How, according to it, can we justify punishments inflicted in the case of 'culpable negligence,' e.g. when an engine-driver, by careless driving, for which we think very little the worse of him, is the occasion of a bad accident, and is heavily punished in consequence?
189. It is true that there can be no a priori criterion of just punishment, except of an abstract and negative kind. We may say that no punishment is just, unless the rights which it serves to protect are powers on the part of individuals or corporations of which the general maintenance is necessary to the well-being of society on the whole, and unless the terror which the punishment is calculated to inspire is necessary for their maintenance. For a positive and detailed criterion of just punishment, we must wait till a system of rights has been established in which the claims of all men, as founded on their capacities for contributing to social well-being, are perfectly harmonised, and till experience has shown the degree and kind of terror with which men must be affected in order to the suppression of the anti-social tendencies which might lead to the violation of such a system of rights. And this is perhaps equivalent to saying that no complete criterion of just punishment can be arrived at till punishment is no longer necessary; for the state of things supposed could scarcely be realised without bringing with it an extinction of the tendencies which state-punishment is needed to suppress. Meanwhile there is no method of approximation to justice in punishment but that which consists in gradually making the system of established rights just, i.e. in harmonising the true claims of all men, and in discovering by experience the really efficient means of restraining tendencies to violation of rights. An intentional violation of a right must be punished, whether the right violated is one that should be a right or no, on the principle that social well-being suffers more from violation of any established right, whatever the nature of the right, than from the establishment as a right of a power which should not be so established; and it can only be punished in the way which for the time is thought most efficient by the maintainers of law for protecting the right in question by associating terror with its violation. This, however, does not alter the moral duty, on the part of the society authorising the punishment, to make its punishments just by making the system of rights which it maintains just. The justice of the punishment depends on the justice of the general system of rights; not merely on the propriety with reference to social well-being of maintaining this or that particular right which the crime punished violates, but on the question whether the social organisation in which a criminal has lived and acted is one that has given him a fair chance of not being a criminal.
190. We are apt to think that the justice of a punishment depends on some sort of equality between its magnitude and that of the crime punished, but this notion arises from a confusion of punishment as inflicted by the state for a wrong done to society with compensation to the individual for damage done him. Neither a crime nor its punishment admits of strictly quantitative measurement. It may be said, indeed, that the greater the crime the heavier should be its punishment, but this is only true if by the 'heavier punishment' is understood that with which most terror is associated in the popular imagination, and if the conception of the 'greater crime' is taken on the one hand to exclude any estimation of the degree of moral guilt, and, on the other hand, to be determined by an estimate not only of the importance in the social system of the right violated by the crime, but of the amount of terror that needs to be associated with the crime in the general apprehension in order to its prevention. But when its terms are thus understood, the statement that the greater the crime the heavier should be its punishment, becomes an identical proposition. It amounts to this, that the crime which requires most terror to be associated with it in order to its prevention should have most terror thus associated with it.
191. But why do the terms 'heavier punishment' and 'greater crime' need to be thus understood? Why should not the 'greater crime' be understood to mean the crime implying most moral wickedness, or partly this, partly the crime which violates the more important kind of right? Why should a consideration of the amount of terror that needs to be associated with it in order to its prevention enter into the determination of the 'greater crime' at all? Why again should not the 'heavier punishment' mean simply that in which the person punished actually suffers most pain? Why should it be taken to mean that with which most terror is associated upon the contemplation? In short, is not the proposition in question at once true and significant in the sense that the crime which implies the most moral depravity, or violates the most important right (such as the right to life), or which does both, should be visited with the punishment that involves most pain to the sufferer?