Word
Gems
What is a
man but the sum of his thoughts?
- Mortimer Adler's
- Syntopicon
Essays
Punishment
THE problem of punishment divides into a number of questions. In what does
punishment consist? What purpose should punishment serve, or what should be its principle
or reason? Who has the authority to punish and under what conditions shall this authority
be exercised? Who shall be punished and who shall be exempt from punishment? What are the
forms or kinds of punishment? Are any of these reprehensible either in principle or for
their consequences? Should there be a proportion between the severity of punishment and
the gravity of the offense? Can a person punish himself? Do men desire to be punished?
These questions apply, though not with equal emphasis, to the three major types of
wrongdoing in relation to which men discuss the nature and the need of punishment, its
justice or its expediency. Punishment is traditionally considered in relation to vice, to
crime, and to sin. According to the type of wrongdoing being considered, the punitive
agent may be the wrongful individual himself or his family, his state, his church or God.
The lines which separate these areas of the problem of punishment cannot be sharply drawn
in all cases, for as certain acts simultaneously violate the moral, the civil, and the
divine law, they may also cause a person to be simultaneously subject to punishment from
diverse sources. The wrong or injury which punishment is supposed to redress may in some
cases fall under none of these headings, as, for example, acts of war or rebellion. It is
sometimes questioned whether the theory of punishment remains the same when punitive steps
are taken by one state against some or all the people of another; or again, when a
government applies penalties for a rebellion engaged in by members of its own community.
In this chapter, we shall deal with the problem of punishment in its most general terms,
for the most part considering the foregoing questions without regard to the distinction of
sin, crime, and vice; or to the differences between divine and human punishment, or
between punishment by the state and in the family (i.e., punishment as involved in the
enforcement of law and punishment as an instrument of education or training). These more
specialized topics belong to other chapters: e.g., punishment as affecting the formation
of character to the chapters on EDUCATION and VIRTUE AND VICE; punishment as administered
by parents to the chapter on FAMILY; divine rewards and punishments to the chapters on
IMMORTALITY and SOUL.
The basic ideas in terms of which any discussion of punishment proceeds are, of course,
the subjects of the chapters on JUSTICE and LAW. One other chapter--PLEASURE AND PAIN --
is of peculiar relevance to the question about the nature of punishment. Concerning the
nature of punishment there seems to be no great difference of opinion in the tradition of
western thought.
Punishment is generally conceived as the infliction of pain, though some writers
distinguish between corporeal and spiritual punishment according as the pain inflicted is
the pain of sense or the pain of deprivation and loss. Imprisonment, for example, always
entails the pain of loss--the loss of freedom--but it may also carry with it the suffering
of physical hardships or even tortures. The torment of the damned is, according to some
theologians, both corporeal and spiritual--the agony of hell-fire and the anguish of the
soul deprived of God's love and presence.
IF THERE IS LITTLE DISPUTE about the nature of punishment, the opposite situation prevails
concerning its purpose. Why men should be punished is one of the most controversial
questions in the field of moral and political thought, and in psychology and theology as
well.
- The major opposition in the tradition of the great books is
between those who think that punishment need only be inherently just, and those who think
it cannot be justified without reference to its utility or expediency.
While this debate goes on, for more than twenty centuries, punishments in actual
practice--whether in accordance with the law or uncontrolled by it--tend generally to be
severe and often fiendish or ferocious. Not until Beccaria in the 18th, and Bentham in the
19th century, does the discussion of punishment lead to major reforms in the spirit and
provisions of the penal codes. But the opposite positions in the debate across the
centuries are never without practical significance for penal institutions and punitive
measures, even when theory is not immediately reflected in practice. The speculative
significance of the issue is, however, always immediately apparent. Although justice and
law are more fundamental and comprehensive ideas than punishment, this one problem of
punishment--the question of its purpose--critically tests the meaning of anyone's theory
of law and justice.
It may be that the issue cannot be fairly stated in terms of purpose. To use that word may
beg the question, since one of the basic positions in the controversy appears to be that
punishment has no purpose in the sense of serving some end beyond itself, or producing
some desired consequence in the future. This is the theory--shared by Kant and Hegel--that
punishment should be purely retributive.
According to this view the effect of the punishment upon the wrongdoer, or upon others
whose conduct may be affected by punishments meted out or threatened, must not be taken
into account at all. Nothing should be sought except the preservation of the balance
sheet of justice, by seeing that every wrong is duly requited by a proportionate
measure of punishment. Nor is the requital purely retributive if it considers any person
except the wrongdoer himself. That punishment of the transgressor may assuage the feelings
of those he has injured, or even satisfy a desire for revenge, should have no motivating
force. The only pleasure the spectacle of punishment should yield, the only desire it
should satisfy, is that of seeing the moral law upheld. We should punish only because we
have, under the moral law, a duty to do so.
Kant castigates as utilitarian every theory of punishment which directs it to the
service of anything besides strict justice--such as the reformation of the criminal, the
deterrence of others, the welfare of society, or the slaking of the thirst for vengeance.
"Juridical punishment," he says, "can never be administered merely as a
means for promoting another good, either with regard to the Criminal himself, or to Civil
Society, but must in all cases be imposed only because the individual on whom it is
inflicted has committed a Crime .... The Penal Law is a Categorical Imperative; and woe to
him who creeps through the serpent-windings of Utilitarianism to discover some advantage
that may discharge him from the justice of Punishment, or even from the due measure of
it."
What shall determine the mode and measure of punishment? Kant answers: "It is just
the Principle of Equality by which the pointer of the Scale of Justice is made to incline
no more to one side than the other. It may be rendered by saying that the undeserved evil
which anyone commits on another, is to be regarded as perpetrated on himself . . . . This
is the Right of Retaliation (lex talionis); and properly understood it is the
only Principle which . . . can definitely assign both the quality and the quantity of a
just penalty. All other standards are wavering and uncertain; and on account of other
considerations involved in them, they contain no principle conformable to the sentence of
pure and strict justice."
RETRIBUTIVE PUNISHMENT Or retaliation seems to express the principle of justice or
fairness in exchange. The Mosaic injunction that "thou shalt give life for life, eye
for eye, tooth for tooth, burning for burning, wound for wound, stripe for stripe,"
occurs in the context of other passages which declare the compensation in goods which an
injured party shall receive for the loss of or damage to his chattel. But it is also
accompanied by ordinances which impose the death penalty for wrongs other than the taking
of a life. "You have heard," Christ declares in the Sermon on the Mount,
"that it hath been said, An eye for an eye, and a tooth for a tooth. But I say unto
you, That ye shall resist not evil; but whosoever shall smite thee on thy right cheek,
turn to him the other also. And if any man will sue thee at the law, and take away thy
coat, let him have thy cloak also." This passage has sometimes been taken to mean
that all punishment is simply vengeance; and that instead of returning injury for injury,
the Christian should love his enemies and forgive them. "If you think someone has
wronged you," Princess Mary says to Prince Andrew in War and Peace,
"forget it and forgive! We have no right to punish."
But the Christian view of punishment may not be the same when the punishment of the
evildoer is a question for the state rather than for the individual. "Avenge not
yourselves," St. Paul commands; "for it is written, Vengeance is mine, I will
repay, with the Lord." The individual need not avenge himself, for God punishes the
wicked; not only God, but the ruler of the earthly state who, St. Paul says, "is the
minister of God to thee for good. But if thou do that which is evil, be afraid; for he
beareth not the sword in vain; for he is the minister of God, a revenger to execute wrath
upon him that doeth evil."
A life for a life appears to be the symbolic statement of the lex talionis in the
Greek as well as the Hebrew tradition. "Justice claims aloud her debt," the
Chorus explains in the Choephoroe of Aeschylus. "Who in blood bath dipped
the steel, deep in blood her meed shall feel . . . . Whoso'er shall take the sword, shall
perish by the sword." But as Aristotle points out--and similarly Aquinas in his
comment on the lex talionis of the Old Testament--simple reciprocity does not
determine the mode of retribution. "People want even the justice of Rhadamanthus to
mean this: Should a man suffer what he did, right justice would be done." Yet,
Aristotle points out, "in many cases, reciprocity and rectificatory justice are not
in accord, e.g., if an official has inflicted a wound, he should not be wounded in return,
and if someone has wounded an official, he ought not to be wounded only but punished in
addition." Retaliation consists in reciprocity only if it is "in accordance with
a proportion, and not on the basis of a precisely equal return." Punishment as
retaliation may seem to be inseparable from revenge. Yet, according to Lucretius, the
surrender of primitive freedom for the restrictions of civilized life is motivated by the
desire to substitute equitable retribution for unlimited vengeance. "Mankind, tired
out with a life of brute force, lay exhausted from its feuds; and therefore the more
readily it submitted of its own free will to laws and stringent codes. As each man moved
by anger took measures to avenge himself with more severity than is now permitted by
equitable laws, for this reason men grew sick of the life of brute force."
Hegel tries to clarify what he regards as a popular confusion of retribution with revenge.
"In that condition of society," he writes, "when there are neither
magistrates nor laws, punishment always takes the form of revenge; revenge remains
defective inasmuch as it is the act of a subjective will." It is understandable that
retribution should be objected to on the ground that "it looks like something
immoral, i.e., like revenge, and that thus it may pass for something personal. Yet it is
not something personal but the concept itself which carries out retribution. 'Vengeance is
mine, saith the Lord,' as the Bible says . . . . The Eumenides sleep, but crime awakens
them, and hence it is the very act of crime itself which vindicates itself."
The apparent contradiction in the identity and difference of retribution and revenge can,
in Hegel's opinion, be resolved. On the one hand, it can be said that "the annulment
of crime is retribution insofar as retribution in conception is an 'injury of the
injury."' On the other hand, it can be said that "the annuling of crime in this
sphere where right is immediate is principally revenge, which is just in its content
insofar as it is retributive." The demand that this contradiction be resolved
"is the demand for justice not as revenge but as punishment."
Hegel's resolution seems to be in terms of a distinction between the particular and the
universal. "When the right against crime has the form of revenge, it is only right
implicit, not right in the form of right, i.e., no act of revenge is justified. Instead of
the injured party, the injured universal now comes on the scene, and this has its proper
actuality in the court of law. It takes over the pursuit and the avenging of crime, and
this pursuit consequently ceases to be the subjective and contingent retribution of
revenge, and is transformed into the genuine reconciliation of right with itself, i.e.,
into punishment."
On this conception of punishment, Hegel like Kant decries every utilitarian purpose for
punishment. Such misconceptions of punishment arise, he says, from the supposition that
both crime and its annulment are "unqualified evils," which makes it seem
"quite unreasonable to will an evil merely because 'another evil is there already.'
To give punishment this superficial character of an evil is, amongst the various theories
of punishment, the fundamental presupposition of those which regard it as a preventive, a
deterrent, a threat, as reformative, etc., and what on these theories is supposed to
result from punishment is characterized equally superficially as a good. But . . . the
precise point at issue is wrong and the righting of it. If you adopt that superficial
attitude toward punishment, you brush aside the objective treatment of the righting of
wrong."
THE ISSUE WOULD SEEM to be a conflict between justice and expediency, with the
utilitarians identifying retribution with revenge and demanding that punishment serve some
good or mitigate some evil. But sometimes the question is whether justice and expediency
are compatible.
In the debate on the treatment of the Mytilenians, which Thucydides reports, Cleon calls
upon the Athenians to show no mercy to their rebellious subjects. "Their
offence," he says, "was not involuntary, but of malice and deliberate," and
they deserve to be punished. "If you follow my advice, you will do what is just
towards the Mytilenians, and at the same time expedient .... For if they were right in
rebelling, you must be wrong in ruling. However, if, right or wrong, you determine to
rule, you must carry out your principle and punish the Mytilenians as your interest
requires."
Diodotus objects to the policy of putting the Mytilenians to death on the ground that it
is not a question of justice but of expediency. "We are not in a court of
justice," he says, "but in a political assembly; and the question is not
justice, but how to make the Mytilenians useful to Athens .... I consider it far more
useful for the preservation of our empire to put up with injustice, than to put to death,
however justly, those whom it is our interest to keep alive. As for Cleon's idea that in
punishment the claims of justice and expediency can both be satisfied, facts do not
confirm the possibility of such a combination."
In the chapter on justice in Utilitarianism, Mill seems to place justice above
expediency, but he also seems to reduce retribution to revenge and call it just. "The
sentiment of justice," which includes as "one of its elements . . . the desire
to punish," Mill identifies with "the natural feeling of retaliation or
vengeance." Retribution, or the giving of "evil for evil," he says
,"becomes closely connected with the sentiment of justice and is universally included
in the idea." The principle of "giving to each what they deserve," he adds,
"that is, good for good as well as evil for evil, is not only included within the
idea of Justice as we have defined it, but is a proper object of that intensity of
sentiment, which places the Just, in human estimation, above the simply Expedient."
Other writers seem to think that the utility of punishment is not incompatible with its
retributive justice. The great theologians, for example, considering the difference
between the eternal punishment of the damned in Hell, and the cleansing punishment of the
repentant in Purgatory, do not find it impossible for divine justice to include both
absolute retribution and punishment which may be remedial as well as retributive. Purely
retributive punishment seems justifiable to them, but they do not think that punishment
can ever be justified simply by its utility--by the good it achieves--without any
reference to the retaliation of evil for evil.
In the context of saying that the institution of slavery among men is a just punishment
for Adam's sin, and that "God knows how to award fit punishments for every variety of
offence," Augustine observes that "we must not only do harm to no man, but also
restrain him from sin or punish his sin, so that either the man himself who is punished
may profit by his experience or others be warned of his example." Here there seems to
be no thought that retribution excludes a reformative or deterrent use of punishment.
Aquinas even more explicitly combines the remedial and the deterrent utility of punishment
with the function of punishment to preserve the order of justice by meting out an
equitable retribution.
In willing justice, God wills punishment, according to Aquinas. "The order of justice
belongs to the order of the universe; and this requires that penalty should be dealt out
to sinners." But just retribution is not the only reason for punishment. Sometimes it
is "for the good of those who are punished," sometimes "for the amendment
of others." These reasons for punishment apply to human as well as to divine law.
"When a thief is hanged, this is not for his own amendment, but for the sake of
others, who at least may be deterred from crime through fear of punishment."
Punishment is a proper effect of human law, not merely because justice requires it, but
because "the law makes use of the fear of punishment in order to ensure
obedience."
In discussing the proportion between the severity of the penalty and the gravity of the
fault in the punishment of sin under the Mosaic law, Aquinas explains that in addition to
the reason of justice (that "a greater sin, other things being equal, deserves a
greater punishment"), there is the purpose of reformation ("since men are not
easily cured of habitual sin except by severe punishments") and the purpose of
prevention ("for men are not easily deterred from such sins unless they be severely
punished"). Here three reasons for punishment are stated side by side. But in the
opinion of Aquinas retribution is more than the primary, it is the one indispensable
reason; for punishment cannot be justified except as doing the work of justice.
THE VIEW OF KANT AND Hegel that retribution or retaliation is the only basis for
punishment--not merely the primary or the indispensable reason--meets its exact opposite
in what appears to be the completely utilitarian theory of punishment to be found in the
writings of Plato, Hobbes, Locke, and Rousseau.
In the Protagoras, arguing for the proposition that virtue can be taught,
Protagoras insists that "no one punishes the evil-doer for the reason that he has
done wrong--only the unreasonable fury of a beast acts in that manner. But he who desires
to inflict rational punishment does not retaliate for a past wrong which cannot be undone.
He has regard to the future, and is desirous that the man who is punished, and he who sees
him punished, may be deterred from doing wrong again. He punishes for the sake of
prevention, thus clearly implying that virtue is capable of being taught."
Plato himself seems to adopt the opinion of Protagoras. In the Laws--wherein he
sets forth the provisions of a penal code in a detail equalled, in the tradition of the
great books, only by the proposals of Hobbes--Plato says no man is to be punished
"because he did wrong, for that which is done can never be undone, but in order that,
in the future times, he, and those who see him corrected, may utterly hate injustice, or
at any rate abate much of their evildoing." Yet he also goes on to say that the law
"should aim at the right measure of punishment, and in all cases at the deserved
punishment." This qualification seems, in turn, to be balanced by his remarks on the
death penalty which he thinks should be imposed only on the incurable who cannot profit
from punishment and whose execution "would be an example to other men not to
offend."'
The notion of desert in Plato's theory of punishment appeals to justice without implying
any separation between retribution and reform. In the Gorgias, Socrates says that
"to suffer punishment is another name for being justly corrected when you do
wrong." A wrongdoer who escapes punishment suffers a greater evil than one who is
punished, for he "who is punished and suffers retribution, suffers justly."
Thereby justice is restored to his soul. The judge who prescribes just punishments cures
the soul, as the physician who prescribes the right remedies cures the body. The criminal
who, having been unjust, goes unpunished "has no deliverance from injustice."
The fact that just punishments are deserved does not seem to be the reason why men should
be punished. Considering the penalties imposed by gods and men, in the next world or in
this, Socrates summarizes his argument by saying that "the proper office of
punishment is two fold: he who is rightly punished ought either to become better and
profit by it, or he ought to be made an example to his fellows, that they may see what he
suffers, and fear and become better. Those who are improved when they are punished by gods
and men, are those whose sins are curable; and they are improved, as in this world so also
in another, by pain and suffering:"
Like Plato, Hobbes places the reason for punishment in the future rather than in the
past--in its utility to procure certain effects rather than in its effecting retaliation.
He states it as a law of nature that "in revenges (that is, retribution of evil for
evil), men look not at the greatness of the evil past, but the greatness of the good
to follow. Whereby we are forbidden to inflict punishment with any other design than
for the correction of the offender, or the direction of others." Anything else he
calls "an act of hostility."
The chief aim of punishment, in securing the reformation and the deterrence of criminals,
Hobbes thinks, is to maintain public peace. "A punishment is an evil inflicted by
public authority" on those who have transgressed the law, "to the end that the
will of men may thereby the better be disposed to obedience." A law, without a
penalty attached, is "not a law, but vain words." It fails to achieve the end of
law, which is the same as the end of punishment. The worst offenses--those to be prevented
by the most severe penalties--are crimes, not against individuals, but those that
"are of most danger to the public."
Locke also derives from natural law the right to punish those who transgress that law,
"for restraint and preventing the like offence," to which he adds that
"each transgression may be punished to that degree, and with so much severity as to
make it an ill bargain to the offender, give him cause to repent, and terrify others from
doing the like." This theory of punishment applies not only to man living in a state
of nature, but in civil society as well.
Though Rousseau describes the wise statesman as one who knows how, by punishing crimes, to
prevent them, he lays greater emphasis on the other motive for punishment--the reformation
of the criminal. "There is not a single ill-doer who could not be turned to some
good. The State has no right to put to death, even for the sake of making an example,
anyone whom it can leave alive without danger." Or, as Fetyukovitch says in his
address to the jury in the Brothers Karamazov: "The Russian court does not
exist for punishment only, but also for the salvation of the criminal. Let other nations
think of retribution and the letter of the law, we will cling to the spirit and the
meaning--the salvation and the reformation of the lost."
THIS GREAT ISSUE CONCERNING the reason for or purpose of punishment seems to affect most
of the other questions which men raise about the penalties to be imposed for
wrongdoing--whether the wrong is a sin, a crime, or a vicious act, and whether it is God
or the state, nature or the individual himself, who inflicts the pain. The reverse also
seems to be true. These other questions raise difficulties or issues which test the
conflicting theories that punishment should be a just retaliation exclusively, or should
be justified only by its consequences, or should somehow be a combination of awarding
just-deserts and securing good effects.
For example, the question of how the various modes and measures of punishment should be
determined and assigned to diverse acts of wrongdoing does not seem to be answerable in
the same way when the principle is simply retribution and when the purpose of punishment
is reformation and deterrence. On the principle of retribution the gravity of the offence
appears to be the only determinant of the severity of the punishment. The punishment
should fit the crime, not the nature of the criminal as someone capable of being
benefitted by punishment.
Kant and Hegel do not think that the justification of the death penalty, for example,
depends on the curability or incurability of the offender. Nor do they think that the
taking of the criminal's life should be motivated, as Aquinas and Locke seem to suggest,
by the desire to protect society from his future depredations. It is sufficient that he
has taken a life, or committed some equally serious injury, which ought to be repaid by a
proportionate requital.
"What is involved in the action of the criminal," Hegel writes, "is not
only the concept of crime, the rational aspect in crime as such whether the individual
wills it or not, the aspect which the state has to vindicate, but also the abstract
rationality of the individual's volition. Since that is so," Hegel argues,
"punishment is regarded as containing the criminal's right and hence by being
punished he is as honored as a rational being. He does not receive this due of
honor unless the concept and measure of his punishment are derived from his own act. Still
less does he receive it if he is treated either as a harmful animal who has to be made
harmless, or with a view to deterring or reforming him."
On these grounds, Hegel criticizes Beccaria's unqualified opposition to the death penalty.
In addition, he rejects Beccaria's theory that "it could not be presumed that the
readiness of individuals to allow themselves to be executed was included in the social
contract." Rousseau takes the diametrically opposite view. He argues for the death
penalty on the ground that "we consent to die if we ourselves turn assassins" in
order to protect ourselves from falling victims to assassins. In making this consent a
part of the social contract, Rousseau holds that "we think only of securing our own
lives, and it is not to be assumed that any of the parties then expects to get
hanged."
Hegel disagrees with both Beccaria and Rousseau. According to him, the state is not based
upon a social contract; nor does he admit that "its fundamental essence involves the
unconditional protection and guarantee of the life and property of members of the public
as individuals. On the contrary," he holds, "it is that higher entity"--the
state--"which even lays claim to this very life and property and demands its
sacrifice."
The state, therefore, according to Hegel, cannot be denied the right of inflicting capital
punishment. Hegel admits that "Beccaria's requirement that men should give their
consent to being punished is right enough," but he adds that "the criminal gives
his consent already by his very act. The nature of the crime, no less than the private
will of the individual, requires that the injury initiated by the criminal should be
annulled. However that may be," he continues, "Beccaria's endeavor to have
capital punishment abolished has had beneficial effects." Because of the efforts made
by Joseph II and Napoleon to abolish it, "we have begun to see," Hegel thinks,
"which crimes deserve the death penalty and which do not. Capital punishment has in
consequence become rare, as in fact should be the case with this most extreme
punishment."
The attitude toward the death penalty as well as toward all other punishments is different
when the only purpose of punishment is the welfare of society and the improvement of
individuals, whether they are actual or potential offenders. The modes and degrees of
punishment must then be determined by considering their effectiveness as means to the ends
in view. Montesquieu discusses the penal codes in various systems of law entirely in terms
of their success in preventing crime. Though he does not seem to think that punishment can
improve the character of the individual, he believes that a certain proportion between the
penalty and the offense may tend to reduce the extent and gravity of crimes.
- "In Russia," he says, "where the punishment of
robbery and murder is the same, they always murder."
In general, Montesquieu is opposed to unduly severe punishments, and especially to
cruel and unusual punishments, not so much on the grounds of injustice as for the
protection of liberty and public morals. Hobbes, Locke, and Rousseau similarly discuss the
severity of punishment with reference to its utility, and, like Montesquieu, they face the
problem that the same measure or degree of punishment may not be equally effective for the
purposes of reformation and deterrence. Severe penalties, for example, may have a greater
deterrent effect upon potential offenders than milder forms of punishment, but they may
also tend to harden criminals instead of reforming them.
The conflict of principles in the determination of punishments seems to be even more
marked in the case of those who try to combine retribution with utility. If, for example,
the death penalty is the just desert for murder, should it be applied on the grounds of
retribution, even though a particular murderer can be reformed by milder treatment? If
heavy penalties were to prove highly effective as deterrents, should they be applied to
minor offenses, which deserve less severe retaliations, in order to reduce the amount of
crime?
THERE SEEMS TO BE AGREEMENT for the most part on who shall have the authority to
punish and who shall be subject to punishment, in the relation of men to one another, to
the state, and to God. Punishment seems to be annexed to law, as indispensable for its
enforcement, so that whoever has the authority to set rules of conduct for another also
has the authority to impose penalties for their violation. Yet the notion that punishment
is a necessary sanction for law--which is apparently shared by those who take the
retributive and those who take the utilitarian view of punishment--does not seem to fit
both views equally well, at least not to the extent that the end of law and its
enforcement is the common good or the public welfare.
Again, it seems to be generally agreed that moral responsibility on the part of offenders
is an indispensable condition of just punishment for their misdeeds. Unless the sinful or
the criminal act is voluntary, unless it is intentional rather than accidental--or if
negligent, capable of being attributed to a willful error of judgment--the act is without
fault and the agent without guilt. But although those who make punishment retributive and
those who make it reformative or deterrent seem to agree upon responsibility as
prerequisite, this principle does not seem to be equally consistent with both theories--at
least not to the extent that the exemplary punishment may deter others quite apart from
the responsibility of the person punished.
The question of responsibility raises other difficulties, e.g., the metaphysical issue
about personal identity, on which Locke takes the stand that unless the human individual
is an enduring substance, he cannot deserve subsequent punishment for his prior acts; and
the issue of free will and causality, on which Hume's position seems to be that unless
human actions are subject to causal necessity, a man cannot be blamed for his acts or
"become the object of punishment or vengeance."
Finally, there is the problem of a natural need for punishment and of the penalties which
nature itself imposes for wrongdoing to fulfill this need. The familiar statement that
virtue is its own reward and vice its own punishment, is sometimes interpreted to mean
that virtue and vice are intrinsically good and evil, and sometimes to mean that through
their natural consequences they heap benefit or injury on their possessor.
Augustine, for example, says that by the sins which he committed God did justly punish
him, for "every disorder in the soul is its own punishment"; and Kant
distinguishes juridical from natural punishment "in which Crime as Vice punishes
itself, and does not as such come within the cognizance of the Legislator." The other
interpretation seems to be represented by Hobbes' theory that "intemperance is
naturally punished with diseases . . . injustice with the violence of enemies . . .
cowardice with oppression." In the chain of consequences started by any action, he
discerns the pains which are "the natural punishments of those actions that are the
beginning of more harm than good."
But according to Freud it is the craving for punishment rather than the punishment which
is natural, i.e., psychologically determined. Individuals punish themselves or seek to be
punished for what is either real or fancied guilt. "The unconscious need for
punishment plays a part in every neurotic disease," Freud writes. "It behaves
like a part of the conscience, like the prolongation of conscience into the unconscious;
and it must have the same origin as conscience; that is to say, it will correspond to a
piece of aggressiveness which has been internalized and taken over by the super-ego. If
only the words were less incongruous, we should be justified . . . in calling it 'an
unconscious sense of guilt.' "
Whatever its psychological validity, Freud's theory does not resolve the moral issue
concerning the justice or utility of punishment. Nor does it eliminate the possibility of
other motives for submitting to punishment voluntarily. Socrates in the Crito
explains that he refuses to escape from the death penalty he thinks he does not deserve,
in order to uphold the law which is itself just even though in his own case it has been
unjustly applied by men. Thoreau and Gandhi refuse to obey laws their consciences cannot
approve, but do not resist the state's demand that they be punished for the law's
infraction. In an unjust society, going to prison is for them the necessary fulfillment of
the revolution begun by civil disobedience.
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