202. But there are many cases of breach of right which can neither be definitely reduced to one of the above kinds, nor distinguished from them by any broad demarcation; cases in which the breaker of a right has been ignorant of it, because he has not cared to know, or in which his inability to fulfil it is the result of negligence or extravagance. Whether these should be treated penally or no, will depend partly on the seriousness of the wrong done through avoidable ignorance or negligence, partly on the sufficiency of the deterrent effect incidentally involved in the civil remedy. In the case e.g. of inability to pay a debt through extravagance or recklessness, it may be unnecessary and inadvisable to treat the breach of right penally, in consideration that it is indirectly punished by poverty and the loss of reputation incidental to bankruptcy, and the creditors should not look to the state to protect them from the consequences of lending on bad security. The negligence of a trustee, again, may be indirectly punished by his being obliged to make good the property lost through his neglect to the utmost of his means. This may serve as a sufficiently deterrent example without the negligence being proceeded against criminally. Again, damage done to property by negligence is in England dealt with civilly, not criminally; and it may be held that in this case the liability to civil action is a sufficient deterrent. On the other hand, negligence which, as negligence, is not really distinguishable from the above, is rightly treated criminally when its consequences are more serious; e.g. that of the railway-servant whose negligence results in a fatal accident, that of the bank-director who allows a misleading statement of accounts to be published, fraudulently perhaps in the eye of the law, but in fact negligently. As a matter of principle, no doubt, if intentional violation of the right of property is treated as penal equally with the violation of the right of life, the negligent violation should be treated as penal in the one case as much as in the other. But as the consequences of an action for damages may be virtually though not ostensibly penal to the person proceeded against, it may be convenient to leave those negligences which do not, like the negligence of a railway-servant, affect the most important rights, or do not affect rights on a very large scale as does that of a bank-director, to be dealt with by the civil process.
203. The actual distinction between crimes and civil injuries in English law is no doubt largely accidental. As the historians of law point out, the civil process, having compensation, not punishment, for its object, is the form which the interference of the community for the maintenance of rights originally takes. The community, restraining private vengeance, helps the injured person to redress, and regulates the way in which redress shall be obtained. This procedure no doubt implies the conviction that the community is concerned in the injury done to an individual, but it is only by degrees that this conviction becomes explicit, and that the community comes to treat all preventible breaches of right as offences against itself or its sovereign representative, i.e. as crimes or penal; in the language of English law, as 'breaches of the king's peace.' Those offences are first so treated which happen to excite most public alarm, most fear for general safety (hence, among others, anything thought sacrilegious). In a country like England, where no code has been drawn up on general principles, the class of injuries that are treated penally is gradually enlarged as public alarm happens to be excited in particular directions, but it is largely a matter of accident how the classification of crimes on one side and civil injuries on the other happens to stand at any particular time. [1]
[1] See Markby, Elements of Law, chap. xi, especially note 1, p. 243; and Austin, Lecture XXVII. Between crimes and civil injuries the distinction, as it actually exists, is merely one of procedure (as stated by Austin, p. 518). The violation of right in one case is proceeded against by the method of indictment, in the other by an 'action.' The distinction that in one case punishment is the object of the process, in the other redress, is introduced in order to explain the difference of procedure; and to justify this distinction resort is had to the further distinction, that civil injury is considered to affect the individual merely, crime to affect the state. But in fact the action for civil injury may incidentally have a penal result (Austin, p 521), and if it had not, many violations of right now treated as civil injuries would have to be treated as crimes. As an explanation therefore of the distinction between crimes and injuries as it stands, it is not correct to say that for the former punishment is sought, for the latter merely redress. Nor for reasons already given is it true of any civil injury to say that it affects, or should be considered as affecting, injured individuals merely. The only distinction of principle is that between violations of right which call for punishment and those which do not; and those only do not call for punishment in some form or other which arise either from uncertainty as to the right violated, or from inability to prevent the violation.
204. According to the view here taken, then, there is no direct reference in punishment by the state, either retrospective or prospective, to moral good or evil. The state in its judicial action does not look to the moral guilt of the criminal whom it punishes, or to the promotion of moral good by means of his punishment in him or others. It looks not to virtue and vice but to rights and wrongs. It looks back to the wrong done in the crime which it punishes; not, however, in order to avenge it, but in order to the consideration of the sort of terror which needs to be associated with such wrong-doing in order to the future maintenance of rights. If the character of the criminal comes into account at all, it can only be properly as an incident of this consideration. Thus punishment of crime is preventive in its object; not, however, preventive of any or every evil and by any and every means, but (according to its idea or as it should be) justly preventive of injustice; preventive of interference with those powers of action and acquisition which it is for the general well-being that individuals should possess, and according to laws which allow those powers equally to all men. But in order effectually to attain its preventive object and to attain it justly, it should be reformatory. When the reformatory office of punishment is insisted on, the reference may be, and from the judicial point of view must be, not to the moral good of the criminal as an ultimate end, but to his recovery from criminal habits as a means to that which is the proper and direct object of state-punishment, viz. the general protection of rights. The reformatory function of punishment is from this point of view an incident of its preventive function, as regulated by the consideration of what is just to the criminal as well as to others. For the fulfilment of this latter function, the great thing, as we have seen, is by the punishment of an actual criminal to deter other possible criminals; but for the same purpose, unless the actual criminal is to be put out of the way or locked up for life, it must be desirable to reform him so that he may not be dangerous in future. Now when it is asked why he should not be put out of the way, it must not be forgotten that among the rights which the state has to maintain are included rights of the criminal himself. These indeed are for the time suspended by his action in violation of rights, but founded as they are on the capacity for contributing to social good, they could only be held to be finally forfeited on the ground that this capacity was absolutely extinct.
205. This consideration limits the kind of punishment which the state may justly inflict. It ought not in punishing to sacrifice unnecessarily to the maintenance of rights in general what might be called the reversionary rights of the criminal, rights which, if properly treated, he might ultimately become capable of exercising for the general good. Punishment therefore either by death or by perpetual imprisonment is justifiable only on one of two grounds; either that association of the extremest terror with certain actions is under certain conditions necessary to preserve the possibility of a social life based on the observance of rights, or that the crime punished affords a presumption of a permanent incapacity for rights on the part of the criminal. The first justification may be pleaded for the executions of men concerned in treasonable outbreaks, or guilty of certain breaches of discipline in war (on the supposition that the war is necessary for the safety of the state and that such punishments are a necessary incident of war). Whether the capital punishment is really just in such cases must depend, not only on its necessity as an incident in the defence of a certain state, but on the question whether that state itself is fulfilling its function as a sustainer of true rights. For the penalty of death for murder both justifications may be urged. It cannot be defended on any other ground, but it may be doubted whether the presumption of permanent incapacity for rights is one which in our ignorance we can ever be entitled to make. As to the other plea, the question is whether, with a proper police system and sufficient certainty of detection and conviction, the association of this extremest terror with the murderer is necessary to the security of life. Where the death-penalty, however, is unjustifiable, so must be that of really permanent imprisonment; one as much as the other is an absolute deprivation of free social life, and of the possibilities of moral development which that life affords. The only justification for a sentence of permanent imprisonment in a case where there would be none for capital punishment would be that, though inflicted as permanent, the imprisonment might be brought to an end in the event of any sufficient proof appearing of the criminal's amendment. But such proof could only be afforded if the imprisonment were so modified as to allow the prisoner a certain amount of liberty.
206. If punishment then is to be just, in the sense that in its infliction due account is taken of all rights, including the suspended rights of the criminal himself, it must be, so far as public safety allows, reformatory. It must tend to qualify the criminal for the resumption of rights. As reformatory, however, punishment has for its direct object the qualification for the exercise of rights, and is only concerned with the moralisation of the criminal indirectly so far as it may result from the exercise of rights. But even where it cannot be reformatory in this sense, and over and above its reformatory function in cases where it has one, it has a moral end. Just because punishment by the state has for its direct object the maintenance of rights, it has, like every other function of the state, indirectly a moral object, because true rights, according to our definition, are powers which it is for the general well-being that the individual (or association) should possess, and that well-being is essentially a moral well-being. Ultimately, therefore, the just punishment of crime is for the moral good of the community. It is also for the moral good of the criminal himself, unless—and this is a supposition which we ought not to make—he is beyond the reach of moral influences. Though not inflicted for that purpose, and though it would not the less have to be inflicted if no moral effect on the criminal could be discerned, it is morally the best thing that can happen to him. It is so, even if a true social necessity requires that he be punished with death. The fact that society is obliged so to deal with him affords the best chance of bringing home to him the anti-social nature of his act. It is true that the last utterances of murderers generally convey the impression that they consider themselves interesting persons, quite sure of going to heaven; but these are probably conventional. At any rate if the solemn infliction of punishment on behalf of human society, and without any sign of vindictiveness, will not breed the shame which is the moral new birth, presumably nothing else within human reach will.
M. THE RIGHT OF THE STATE TO PROMOTE MORALITY.
207. The right of the individual man as such to free life is constantly gaining on its negative side more general recognition. It is the basis of the growing scrupulosity in regard to punishments which are not reformatory, which put rights finally out of the reach of a criminal instead of qualifying him for their renewed exercise. But the only rational foundation for the ascription of this right is the ascription of capacity for free contribution to social good. We treat this capacity in the man whose crime has given proof of its having been overcome by anti-social tendencies, as yet giving him a title to a further chance of its development; on the other hand, we act as if it conferred no title on its possessors, before a crime has been committed, to be placed under conditions in which its realisation would be possible. Is this reasonable? Yet are not all modern states so acting? Are they not allowing their ostensible members to grow up under conditions which render the development of social capacity practically impossible? Was it not more reasonable, as in the ancient states, to deny the right to life in the human subject as such, than to admit it under conditions which prevent the realisation of the capacity that forms the ground of its admission? This brings us to the fourth of the questions that arose [1] out of the assertion of the individual's right to free life. What is the nature and extent of the individual's claim to be enabled positively to realise that capacity for freely contributing to social good which is the foundation of his right to free life?
[1] [Above, sec. 156. RLN]
208. In dealing with this question, it is important to bear in mind that the capacity we are considering is essentially a free or (what is the same) a moral capacity. It is a capacity, not for action determined by relation to a certain end, but for action determined by a conception of the end to which it is relative. Only thus is it a foundation of rights. The action of an animal or plant may be made contributory to social good, but it is not therefore a foundation of rights on the part of an animal or plant, because they are not affected by the conception of the good to which they contribute. A right is a power of acting for his own ends,—for what he conceives to be his good,—secured to an individual by the community, on the supposition that its exercise contributes to the good of the community. But the exercise of such a power cannot be so contributory, unless the individual, in acting for his own ends, is at least affected by the conception of a good as common to himself with others. The condition of making the animal contributory to human good is that we do not leave him free to determine the exercise of his powers; that we determine them for him; that we use him merely as an instrument; and this means that we do not, because we cannot, endow him with rights. We cannot endow him with rights because there is no conception of a good common to him with us which we can treat as a motive to him to do to us as he would have us do to him. It is not indeed necessary to a capacity for rights, as it is to true moral goodness, that interest in a good conceived as common to himself with others should be a man's dominant motive. It is enough if that which he presents to himself from time to time as his good, and which accordingly determines his action, is so far affected by consideration of the position in which he stands to others,—of the way in which this or that possible action of his would affect them, and of what he would have to expect from them in return,—as to result habitually, without force or fear of force, in action not incompatible with conditions necessary to the pursuit of a common good on the part of others. In other words, it is the presumption that a man in his general course of conduct will of his own motion have respect to the common good, which entitles him to rights at the hands of the community. The question of the moral value of the motive which may induce this respect—whether an unselfish interest in common good or the wish for personal pleasure and fear of personal pain—does not come into the account at all. An agent, indeed, who could only be induced by fear of death or bodily harm to behave conformably to the requirements of the community, would not be a subject of rights, because this influence could never be brought to bear on him so constantly, if he were free to regulate his own life, as to secure the public safety. But a man's desire for pleasure to himself and aversion from pain to himself, though dissociated from any desire for a higher object, for any object that is desired because good for others, may constitute a capacity for rights, if his imagination of pleasure and pain is so far affected by sympathy with the feeling of others about him as to make him, independently of force or fear of punishment, observant of established rights. In such a case the fear of punishment may be needed to neutralise anti-social impulses under circumstances of special temptation, but by itself it could never be a sufficiently uniform motive to qualify a man, in the absence of more spontaneously social feelings, for the life of a free citizen. The qualification for such a life is a spontaneous habit of acting with reference to a common good, whether that habit be founded on an imagination of pleasures and pains or on a conception of what ought to be. In either case the habit implies at least an understanding that there is such a thing as a common good, and a regulation of egoistic hopes and fears, if not an inducing of more 'disinterested' motives, in consequence of that understanding.