the justification of punishment author(s): john lisle

8/14/2019 The Justification of Punishment Author(s): John Lisle

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The Justification of PunishmentAuthor(s): John LisleSource: International Journal of Ethics, Vol. 25, No. 3 (Apr., 1915), pp. 346-359Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2376823

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346 INTERNATIONAL OURNALOF ETHICS.

THE JUSTIFICATION OF PUNISHMENT.JOHN LISLE.

PUNISHMENT, in the sense of penal sanction, isjustified by its relative necessity, although certainpseudo-philosophershink that neither this nor any otherprinciple can permit the use of such a barbarous nstitu-tion. The justificationof punishmentby necessity wouldbe too apparent to need proof, however, in spite of suchallegations except that, as the categoricalrecognitionof atruth is alwaysan advancein knowledge,so the categoricalrecognition of this truth prepares the way for a clear un-derstandingof the bases of punishmentand is a long stepon the road to the reform of criminal law. Punishmentis relatively necessary,because society must protect itself-the right of self-defencecannot be denied. It is axio-matic. Society protects itself in two ways: (1) From ex-ternal attacks of all agentsor forcesexcept man, by elimi-natory and preventative acts; (2) from internal attacks ofits members by penal sanctions or punishment, anotherform of defence, contra-distinguishedromdefenceagainstforeign attack in being directed against fellow-humanbeings, who enjoy the use of reason, and to whom pun-ishment will bring a psychic reaction. Punishment is,therefore,addressedto the reason of the criminal,whichadds peculiarelements and qualities to such defensiveac-tion, lackingin the purely eliminatoryor preventative re-action to foreign attack. Thus the right of society topunish is that of any being or entity to protect itself andcorresponds o the duty of the member to comport him-self in accordancewith the rules,and to the best interest,of the associationof whose benefits he partakes.This requirement limits the applicability of criminallaw to membersof one society. Reciprocityof rights andduties betweengroupsis impossible,until, notwithstanding


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THE JUSTIFICATIONOF PUNISHMENT. 347the retention of group distinction, some ties have weldedthem into one, and thus the two groupshave becomemeresub-divisionsof a greatersociety. An exampleof such sub-division is found in the institution of classes in everycountry. Classes are of two kinds; traces of earlier dis-tinct societies, weldedinto one by historical development,and associations,formed within a society by an identityof individual interestsamongsome of its members.. In the last paragraph,we have made the limitation ofcriminal law, its application to members of one society,but in so doing, we must not be thought to have restrictedthe right of society to punish any man for an anti-socialact. Every human being is socially accountable. For,although many peculiarities and variances remain whichmark their subjects as members of different groups, stillretaining their group distinctions, more common traitsare found, which mark them as membersof a single greatsocial unit. In other words, while the different groupshave not become one homogeneoussociety, now they aresub-divisions of a larger organization. Homogeneousheterogeneityagain becomesheterogeneoushomogeneity.Society, beginning with the family, has grown in geo-graphicaland in ethical extent, until, in its principalrela-tions, it is, as we have said, universaland world-wide in-cluding all humanity in one large union. There are socialties betweenaboriginesand men of most advancedciviliza-tion, at least, in the recognitionof the duty of obedienceto custom, which is the crystallizationof what has beenfound to be socially advantageousor necessary. No rightof secession can be advanced, as a defence, by a member,who has committed some criminal act, because society isso universalthat no member s ableto secedein such a wayas to escape its advantages, and, therefore,his duties; forthe correlationbetween advantagesand duties must not beforgotten. And yet it may be admitted that, althoughthere is a social bond between all men, as we have said,and although there is a capacity for social unity betweenall men, and all men are potentially of one society, those


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348 INTERNATIONAL JOURNAL OF ETHICS.who have never been fellow-members of the same sub-division are in a relation which gives rise to the right toapply penal sanctions. A man, in a land, to all of whosecustoms he is strange, does not commit a crime, unless hisaction contains the psychic element of an attack upon agroup or unit of which the offender is a member. Hispsychic state is in no wise different from that of a dangerouscriminal or alien enemy, against whom preventative oreliminatory acts are alone justified. The absence offamiliarity precludes any appeal to reason, or any psychiceffect, which connotes punishment. Such acts may beattacks upon a society but they are not anti-social in thestrict sense, or criminal in the popular sense, because theyare external and foreign rather than internal or domestic.It must be clearly understood that we are not con-cerned with the organization of jurisdictions, which pre-vent local government from punishing foreigners for crimescommitted against citizens abroad; this is purely politicaland does not touch the question of the right of punish-ment. Every country can now punish foreigners for crimescommitted within its jurisdiction, because of the capacityand potentiality, which we have mentioned, that give riseto a presumption of social similarity, when accompaniedby actual association and the consequent receipt of bene-fits. But the exercise of the right to punish would not belegitimate without the social similarity, existing or pre-sumed, between the offender and his temporary neighbors.Such a presumption, as all legal presumption, is rebuttableby actual proof of falsity. Thus, a presumptive memberof a society, a savage in a civilized country, is given an op-portunity to prove his lack of the psychic state necessaryin the commission of crime. The present refusal of theCourts to allow the plea of ignorantia legis is a temporaryphase, based on convenience. As now understood, itformed no part of the law of Imperial Rome, but could bepleaded, by the rustici, in cases where ignorantia was notinconceivable. The punishment of a cannibal in Londonis based upon the presumption of his similarity to English-


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THE JUSTIFICATION OF PUNISHMENT. 349men. Such a presumptionmight well not exist prior tohis leaving his native land, there would then be a defactoabsence of similarity with Englishmen or familiarity withEnglish customs. In the latter case, also, the cannibalwould receive no benefit from the group of human societyattempting to punish him. But there is sufficient socialsimilarity between races, sufficient social unity among allnations, sufficient human social capacity and potentialityin all men, to subject a foreignerreceiving benefits from asociety to a duty to obey its rules under pain of punishment.This shows the unity of human society and the fact thatpunishment is relative to social benefits. Social benefitscannot be received by a member of a totally foreign groupor an animal, for example, because there is no point ofcontact. And in this connection, it is well to note thatsocial benefits are received by every member of society,that some receive less than others gives the former noclaim to an exemption from his share of duties-as thebenefits of the few are exceptional in quantity, so their bur-dens are exceptional in time of stress. But to return toour theme; when there is any point in common, the twogroups form one large unit, although retaining distinctiveclass marks. The fact-that the offenderfrom the SouthSeas did not know any better than to act in the way inwhich he did, is no defence in London. If, however, ananimal killed a man, the absenceof social similaritywouldpreclude any possibility of punishment. No need for areaction other than elimination or immediate preventionagainst repetition wouldbe felt, because the lack of similar-ity precludes the possibility of the psychic influence ofpunishment. The field of punishment covers all society,any man may be punished;it is limited only by humanityin mala in se, by benefits received in mala prohibits. Ifpunishment is not applicable, prevention or elimination isalways justified, the difference ying entirely in the appealto reason-in punishment, which prescribes the greatestmildness comparablewith protection.

Thus much accepted, and crime recognized as an in-


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350 INTERNATIONAL OURNALOF ETHICS.ternal attack upon the social life and pursuit of happi-ness, society is entitled to use the means of self-defencebest suited to its preservation, protection and defence.What this may be it is not the object of this article to dis-cuss. Our purpose is to prove that punishment, inthe sense of social sanction, is justifiedby social necessity,and must, therefore, be moulded by, and can, therefore,be limited only by the pre-requisitesof social protection.With this end in view, we will first take up the origin ofpunishment, then trace its development showing theincrustation of foreign ideas, which have resulted in theaddition of new ends and the loss of the essential goal ofcriminallaw. It can be said that the word "punishment"is inaccurate,becauseof the elementof expiationcontainedin it. A contemporaryEnglishwriter, believesthat "'pun-ishment' and 'infliction of pain' are convertible terms."'While Mr. Justice Holmes writes of "vengeance as anelement, though not the chief element of punishment."2But he qualifieshis statement in two ways: first, he looksuponvengeance as "'thefitness of making" our neighbors"smart "3 for doing wrong, thus depriving vengeance ofany significance greater than that of the phrase, socialsense. At a subsequentpoint, too, he takes up "the law'sindifferenceto man's particular temperament" which hejustifies by the fact that "


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THE JUSTIFICATIONOF PUNISHMENT. 351the more accurate but unusual term, penal sanction, con-tains the statement of a conclusion. The originof punish-ment will show its purpose and its properlimitations, for,as the great Italian philosopher, the precursor of theHistorical School, Vico, said, the essential quality of aninstitution is shownin its genesis. 5 But the alterationsinthe concept of punishment which have taken placeunder foreign influences show the cause of the pres-ent failure of criminal law, which has brought about adoubt of its justification. A correctunderstandingof theorigin and development of punishment will point the wayto alterations, old in method, and new in detail (becauseof scientificprogress), which will reinstate this importantsocial functionin a position of beneficentactivity.The right to self-defencemust, as we have said, be takenas axiomatic. In remote antiquity, property developed;men expended their labors upon objects whose usefulnesswas not consumed in the periodof creation;-weapons andimplements could be used morethan once. At this period,the right of self-defencewasextended o the resultsof man'sactivity. The necessity of protecting that part of one'spersonality, which was shown by the chattels, uponwhich activity had been expended was felt. And it wasfound, that their defence required the aid of others andthus the family, which had not been needed for self-de-fence when personality was limited to the individual andhis corporalentity, resulted. And a unit, larger than theindividual, was formed. At first the family was the unit,later a group of families, the number of which has con-stantly increased. At first necessity kept the family orgrouptogether. Its rules weresimpleand disobediencetoany of them by a memberentailed his immediate destruc-tion by some foreignenemy.As the group increasedin size and the means of protec-tion from its enemies became stronger and more perma-nent, however,it becamephysicallypossible for a member

5See, Holmes,id., p. 1. "In oxder to know what the law is we must knowwhat it has been and what it tends to become."


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352 INTERNATIONAL OURNALOF ETHICS.to disregardsome rules without a natural reaction imme-diately ending his offensivepower together with his exist-ence, although his act weakened the society of which hewasa member. At the sametime the advantageof associa-tion, as its constant and immediate necessity decreased,was recognized and appreciated. Necessity arising out-side of society gave rise to society, and the existence ofsociety increasing the complication of life made socialorganization always more advantageous. When, there-fore, the immediate reaction of complete destruction byforeign enemies lessened, it became necessary to adoptsome meansfor the protectionof society from disobedienceto its rules by its members,that is, from internal attack.Such protectionfromcriminalactivity had not been neces-sary at the beginningbecause, as we have said, the meansof existence were so threatened by external enemiesas torenderany breachof them fatal to the offender. At thatstage in the history of humanity, there was no criminallaw. And even at the beginning of the second periodwhen certain breaches of social relations occurred, therewas no real criminal law, for the attack of one memberupon another was sufficiently met by the payment ofdamages.6 Civil remedies, in other words were applied.

But with a greaterincreasein the size of the groupsandthe betterment of the means of defence against foreignenemies, such remedies weie found insufficientand pun-ishments were inflicted because they had become neces-sary. This was legitimate in itself, for social necessityknows no law, but its cause and the necessity for itmark the limits of the right to punish by the limits of theneedof protection. Penalties,however,soon exceededsuchlimits. And this fault was increased through a foreignelement of class selfishness,for the chief or head, howeverchosen,came to look upon the groupas his property. Hisrepresentativeposition was transmutedinto one of owner-ship. And all anti-social acts were, therefore,violationsof his rights of property, for which he was entitled

I See Bowen-Rowlands, d., p. 346.


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THE JUSTIFICATIONOF PUNISHMENT. 353to damages. This was, of course, an over-developmentof the idea of social protection and cannot be justified.It is due to an incrustation of an idea by analogy. Forexample, commonsbecamethe land of the State, or over-lord, through the elapse of years, duringwhich its or hisprotection control their use. Society has no right ofproperty, for whose violation damages can be imposed.The State itself may only own what is necessaryto carry onits functions. Society can own nothing. To distinguish;the State is an organization,purposelyformedfora purposelike any other corporation;society is an entity, the resultof growth. It has a right of existence, because of itsusefulness to progress and the benefits it confers, whichentails the right of self-defence. A breach of peace or ariot can and must be stoppedand its repetition prevented(in fact it should be prevented in the first instance, butthis was undreamtof in the stage of which we are writing)by society by every means in its power. But there wasno proprietaryright in the princeentitling him to damagesconsideredas such per se and not even as a deterrent. Thefact that the rulerwasgenerallythe headof the churchsoonresultedin making crimean offenseagainst the deity. Thisresulted in increased damages directed to the pacificationof the latter, entirely distinct from any idea of social pro-tection. In this way, anothererrorcrept into the conceptof punishment. This errorhas been fertile in results, forthroughout Christendom, t enabled the religious conceptof expiation to enter the juridical sphere. This religiouselement was transformed under the general influence ofChristianity into one of morality, and the moral reforma-tion or amelioration of the criminal came to be lookedupon as the justification of his punishment. And underthe resulting confusion, the goal of criminal law, the pro-tection of society from attacks by its members was lostsight of for centuries.In the latter half of the eighteenth century, Beccaria,moved by the atrocities in punishment, began to studycrime and punishment. His work, "Dei delitti e delle


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354 INTERNATIONAL JOURNAL OF ETHICS.pene" published in 1764 in Milan, was the first modernwork on criminality. Its historical influences upon thecriminallaw of Europe and Americafrom that day to thiscannot be over-estimated.The objects of punishment were generally thought tobe repression, reformation, and deterrence. With theseobjects as a basis, deontology proved the futility of thepenal systems and the latter were made the object of sys-tematic and bitter criticism. This was legitimate as faras the systems themselves were concernedbut by the abuseof terms it has been extended to include the right of pun-ishment. Correctlyanalyzed, however,these attacks uponthe systems of criminallaw will be seen to be limited tofaults due to the entranceof foreign conceptsinto its field.For while punishment is repressive, reformative anddeterrent,7 t is not expiatory or proprietary.8

Reformationof the criminalmust not be taken as moralameliorationper se; deterrence must not be taken to permitthe criminal o be used to teach a moral esson; reformation,deterrence,and repressionare'only justified and justifiedonly by the protectionwhichthey give.The value of punishmentas a deterrenthas been doubtedand, in fact, proved to-be useless beyond the peradventureof a doubt. Certainty of detection, however, an elementin punishment, has deterrent force. The failure of thepresent system of punishmentas a deterrent, reformative,or repressive (except in cases of capital punishment andthe rare cases of long term imprisonment,in which lattercase, the repressionand imprisonmentare conterminous),is an admitted failure. And this phraseshows the survival

7 Not in object, although in means, it may be. Its object is, as we havesaid, social protection; its means include repression, reformation,and deter-rence.8 It is true that the reform aimed to include in every criminaljudgment averdict of damagesin favor of the victim of the crime,to be advancedimme-diately by the political division in which the crime occurs, and to be repaidby the criminal to it, is excellent,but this is a proceduralreform and does notaffect the right of society to react for its own protectionin any way that maybe necessaryand gives it no right to exact damages for the violation of any

property right in it.


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THE JUSTIFICATIONOF PUNISHMENT. 355of the real object of punishment, for when it is said thatthe criminal courts are a failure, the incrustation of for-eign concepts is forgotten and the real aim of punishment,social protection, is actually recognized by the layman.He does not think of it as a failure in the moral uplift orspiritual reformationof the criminal, but in its practicalefficiency in giving protection and in insuring personalsafety. By both routes, the intuition of the layman andthe genetico-historicalmethodof the philosopher,the sim-ple fact is recognizedthat the goal of criminallaw is socialprotection. This is the clearest proof that the right topunish is justifiedby relative necessity. The need of usingthe means best suited to the end follows as a corollary.But there can be no question of the existence of the-right.It has been doubted because past political phases, pastreligiousbeliefs,themselves confusedwith politicaltheories,likewise buried in the past, have imposed foreign ideasupon it, and clothed it with foreign forms. These ideasthrough ideo-emotive arrest, have clung to the properconcept of punishment and lived in the phraseologyretained by popularusage and legal technicality.Past philosophical schools have also exerted an influ-ence, productive of bad results. The myth of an idealpast and the hope in a millennium, which, to quoteStevenson, "deserts us at no period of our existence," sothat "from first to last, and in the face of smarting dis-illusions, we continue to expect" it, "and that so confi-dently that we judge it useless to deserve" it, haveharmed criminallaw; the formerby making the necessityfor punishment a disgrace to the criminal and to thesociety, reducing it to a par with revenge. Mr. JusticeHolmes writes, "It is commonly known that the earlyforms of legal procedurewere grounded in vengeance."9But is this historically true? For the early form of pun-ishment was a fine.'0 And at a later point, he says:

9llolmes, id., p. 2.10Cf. Calisse, "Storia del diritto penale italiano dal secolo VI al XIX"(Florence, 1895), Vol. II, passim.Vol. XXV.-No. 3. 6


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356 INTERNATIONAL JOURNAL OF ETHICS."It certainly may be argued, with some force, that ithas never ceased to be one object of punishment tosatisfy the desire of vengeance. . . . The statementmay be stronger still, and it may be said, not only that thelaw does, but that it ought to, make the gratification ofrevenge an object. . . . The first requirement of asound body of law is, that it should correspond with theactual feelings and demands of the community, whetherright or wrong. If people would gratify the passion of

revenge outside of the law, if the law did not help them,the law has no choice but to satisfy the craving itself.and thus avoid the greater evil of private retribution. "1"To this, it can but be said that there is a wide differencebetween vengeance and "the actual feelings and demandsof a community," whose disregard will give rise, not tovengeance, but to private retribution. What we claim isthat criminal law, with its punishments and penalties isa failure, for the very reason that it does not correspondwith actual demands, but we advance the theory that itis not because such punishment lacks the spontaneouspassion of vengeance, but, on the other hand, becauseit does not fulfill its duty of giving protection and insuringsafety that it fails.

But, to return to our point, the verb to punish, containsthoughts of expiation, morality and false history, givenmoral weight, which have nothing to do with society'sright of self-defence or with criminal social accountability.Reformation is tarred with the same brush and its use ismore insidious, because the reformation of a criminal isone of the best means of defence against him. Reforma-tion is a factor in social self-defence, it is true, but it mustbe strictly kept within the sphere of criminal law, for itis not an end in itself. So it is with deterrence, as a meansof social protection; it is legitimate, if feasible and pro-ductive of results, but it savors strongly of suffering forconscience' sake, and must be closely watched. In factthe phrase guilt, applied to crime, shows the existence of

11Holmes, id., pp. 40, 41, 42.


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THE JUSTIFICATIONOF PUNISHMENT. 357a religious idea in criminal law, and these phrases hadbetter be discardedbecause of the misconceptionswhichthey entail, and whose numberincreaseswith use.Thus Bowen-Rowlands,whom we have quoted, writes,"The State is not concernedwith either positive moralityor religious canon,except insofaras such affect the main-tenance of the said standard of conduct. This being so,the justifiablepurposesor ends of the State punishmentofindividuals are:1. The protectionof the communityfrom a continuanceof individual wrong-doing by deterring the individualwrong-doer. It should be noted that reformation of awrong-doer,using the term as denoting the extinction ofanti-social desires is qua punitive procedureonly to be re-gardedwhen it is effected wholly or in part by a deterrentagency.2. The deterrence of other potential wrong-doers bydemonstrating to them the futility and painful conse-quences of anti-socialconduct.

* * * * *No punishmenteven of death or of preventive detentionis deemed justifiable if it is imposed only in order to de-

prive an offenderof the physical ability to continue in acourseof wrong-doing."'2This can mean nothing but that the object of punish.ment is to protect society and reformthe individual anddeter others from crimes; whereas the object of punish-ment is to protect society, if so be it that it can be done,by reforming the criminal and deterring others fromemulation;but social protectionis the goal, first, last andall the time. Such opinionsor the expressionof opinioninsuch languageare harmfulto any progress n criminology.The underlying ideas are misconceptions, entailed by apast historicalphase; they have survived their usefulness.The false doctrines, arising from the continuance of thetheories of the past, form an endless chain of bad influ-12Bowen-Rowlands,d., p. 340-1.


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358 INTERNATIONALJOURNALOF ETHICS.ences. The errorsof the past allowed and causedthe mis-conceptions. The retention of wordsadoptedin the periodof errorkeep the error alive after science has shown themistake.In fact, the legal concept of intent (with the consequentconfusionin case of attempt) is used to give a moral tingeto the prerequisites of punishment. It is used to denotemoral culpability in place of merely showing the connec-tion of the individualwith the result of his activity.Repressioncovers by far the largest part of protection.There is but one better method-prevention-criminalprophylactics-is the criminal law of the future. In thedays to come the first and only end of punishment,socialprotection, will be reinstated free from all entangling alli-ances and the means adopted will be largely preventative.When a crime is committed the means determinedto bethe best by a boardof criminologists,alienists,doctors,andsociologists-will be applied to prevent its repetition byrectifying the oversight which gave rise or opportunity toits commission. In the meantime, it is well to avoid theerrorswhich come from a mistakenconcept of the end andjustificationof punishmentand forman erroneous heory ofits originin the baser instincts of man.

But, apart from this, these sub-divisions of the abstractmeans to the goal of punishment,are looked upon as endsin themselves, and the concrete means are considered asinstruments for their attainment. This error must beovercome. By the genetico-historicalmethod, it has beenshown that the origin of crime was the increasingcompli-cation and perfection of society, which destroyed thenatural necessity of social co-ordination,and that punish-ment was originated to overcomethe resultinglicense andprotect society. It has been shown that criminal law ispronounceda failureby the man in the street, not becauseit does not reformthe criminal or help othersby example,but becauseit does not put an end to commissionof crime.Popular thought and the most advanced philosophicalmethod both lead to the same inevitable conclusion-that


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THE JUSTIFICATIONOF PUNISHMENT. 359punishment, in the sense of social sanction, is aimed atthe prevention of crime. Crimeis, ex hypothesisny anti-social act. The necessity for the prevention of crime ismeasured by the need for the existence of the body to beprotected. Hence, punishment is necessary in relationto society; it is a relative social necessity. It is not onlyan attribute of society, but a prerequisite and essentialpart of social existence. The right of punishment is jus-tified by the benefit conferredby -society upon men. Itcan only be logically denied as a part of the larger denialof the advantages of social existence, and of the economic,moral,and ethical progress of moderncivilizationfromthenomadiclife of prehistoriceras.

JOHN LISLE.OF THE PHILADELPHIABAR.

the justification of punishment author(s): john lisle

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