176. (3) (See sec. 156). What right has the state to punish? The
right to live in a community rests on the capacity to act for the
common good, and implies the right to protect such action from
interference
177. A detailed theory of punishment implies a detailed theory of
rights. Here we can only deal with principles
178. Is punishment _retributive_? Not in the sense that it carries on
a supposed 'right' of private vengeance, for no such 'right' can exist
179. The most rudimentary 'right' of vengeance implies social
recognition and regulation, in early times by the family
180. And its development up to the stage at which the state alone
punishes is the development of a principle implied from the first
181. But if punishment excludes private vengeance, how can it be
retributory at all? And how can a wrong _to society_ be requited?
182. When a wrong is said to be 'done to society,' it does not mean
that a feeling of vindictiveness is excited in the society
183. The popular indignation against a great criminal is an
expression, not of individual desire for vengeance, but of the demand
that the criminal should have his due
184. And this does not mean an equivalent amount of suffering; nor
such suffering as has been found by experience to deter men from the
crime
185. Punishment, to be _just_, implies _(a)_ that the person punished
can understand what _right_ means, and _(b)_ that it is some
understood _right_ that he has violated
186. He will then recognise that the punishment is his own act
returning on himself; (it is in a different sense that the physical
consequences of immorality are spoken of as a 'punishment')
187. Punishment may be said to be_ preventive_, if it be remembered
_(a)_ that _what_ it 'prevents' must be the violation of a real
right, and _(b)_ that the _means by which_ it 'prevents' must be
really necessary
188. Does our criterion of the justice of punishment give any
practical help in apportioning it?
189. The justice of punishment depends on the justice of the system
of rights which it is to maintain
190. The idea that 'just' punishment is that which = the crime
in amount confuses retribution for the wrong to society with
compensation for damages to the individual
191. 'But why not hold that the pain of the punishment ought to = the
moral guilt of the crime?'
192. Because the state cannot gauge either the one or the other; and
if it could, it would have to punish every case differently
193. In truth the state has regard in punishing, not primarily to the
individuals concerned, but to the future prevention of the crime by
associating terror with it in the general imagination
194. The account taken of 'extenuating circumstances' may be
similarly explained; i.e. the act done under them requires little
terror to prevent it from becoming general
195 'But why avoid the simpler explanation, that extenuating
circumstances are held to diminish the _moral guilt_ of the act?'
196. Because _(a)_ the state cannot ascertain the _degree_ of moral
guilt involved in a crime; _(b)_ if it tries to punish immorality
(proper), it will check disinterested moral effort
197. Punishment, however, may be truly held to express the 'moral
disapprobation' of society, but it is to the external side of action
that the disapprobation is directed
198. The principle that punishment should be regulated by the
importance of the right violated explains the severity with which
'culpable negligence is punished
199. And the punishment of crimes done in drunkenness illustrates the
same principle
200. It also justifies the distinction between 'criminal' and 'civil'
injuries, (which is not a distinction between injuries to individuals
and to the community, for no 'right' is violated by injury done to an
individual _as such_)
201. There would be no reason in associating terror with breaches of
a right which the offender either did not know that he was breaking
or which he could not help breaking
202. When such ignorance and inability are culpable, it depends on
the seriousness of the wrong or the degree to which the civil suit
involves deterrent effects, whether they should be treated as crimes
203. Historically, the state has interfered first through the civil
process; gradually, as public alarm gets excited, more and more
offences come to be treated as crimes
204. Punishment must also be _reformatory_ (this being one way of
being preventive), i.e. it must regard the rights of the criminal
205. Capital punishment is justifiable only _(a)_ if it can be shown
to be necessary to the maintenance of society, _(b)_ if there is
reason to suppose the criminal to be permanently incapable of rights
206. Punishment, though _directly_ it aims at the maintenance of
rights, has indirectly a moral end, because rights are conditions of
moral well-being.