THE ADMINISTRATION OF JUSTICE
§ 25. =Necessity of the Administration of Justice.=
“A herd of wolves,” it has been said,[80] “is quieter and more at one
than so many men, unless they all had one reason in them, or have one
power over them.” Unfortunately they have not one reason in them, each
being moved by his own interests and passions; therefore the other
alternative is the sole resource. For the cynical emphasis with which he
insists upon this truth, the name and reputation of the philosopher
Hobbes have suffered much. Yet his doctrine, however hyperbolically
expressed, is true in substance. Man is by nature a fighting animal, and
force is the _ultima ratio_, not of kings alone, but of all mankind.
Without “a common power to keep them all in awe,” it is impossible for
men to cohere in any but the most primitive forms of society. Without
it, civilisation is unattainable, injustice is unchecked and triumphant,
and the life of man is, as the author of _Leviathan_ tells us,
“solitary, poor, nasty, brutish, and short.”[81] However orderly a
society may be, and to whatever extent men may appear to obey the law of
reason rather than that of force, and to be bound together by the bonds
of sympathy rather than by those of physical constraint, the element of
force is none the less present and operative. It has become partly or
wholly latent, but it still exists. A society in which the power of the
state is never called into actual exercise marks not the disappearance
of governmental control, but the final triumph and supremacy of it.
It has been thought and said by men of optimistic temper, that force as
an instrument for the coercion of mankind is merely a temporary and
provisional incident in the development of a perfect civilisation. We
may well believe, indeed, that with the progress of civilisation we
shall see the gradual cessation of the actual exercise of force, whether
by way of the administration of justice or by way of war. To a large
extent already, in all orderly societies, this element in the
administration of justice has become merely latent; it is now for the
most part sufficient for the state to declare the rights and duties of
its subjects, without going beyond declaration to enforcement. In like
manner the future may see a similar destiny overtake that international
litigation which now so often proceeds to the extremity of war. The
overwhelming power of the state or of the international society of
states may be such as to render its mere existence a sufficient
substitute for its exercise. But this, as already said, would be the
perfection, not the disappearance, of the rule of force. The
administration of justice by the state must be regarded as a permanent
and essential element of civilisation, and as a device that admits of no
substitute. Men being what they are, their conflicting interests, real
or apparent, draw them in diverse ways; and their passions prompt them
to the maintenance of these interests by all methods possible, notably
by that method of private force to which the public force is the only
adequate reply.
The constraint of public opinion is a valuable and indeed indispensable
supplement to that of law, but an entirely insufficient substitute for
it. The relation between these two is one of mutual dependence. If the
administration of justice requires for its efficiency the support of a
healthy national conscience, that conscience is in its turn equally
dependent on the protection of the law and the public force. A coercive
system based on public opinion alone, no less than one based on force
alone, contains within itself elements of weakness that would be
speedily fatal to efficiency and permanence. The influence of the public
censure is least felt by those who need it most. The law of force is
appointed, as all law should be, not for the just, but for the unjust;
while the law of opinion is set rather for the former than for the
latter, and may be defied with a large measure of impunity by determined
evildoers. The rewards of successful iniquity are upon occasion very
great; so much so that any law which would prevail against it, must have
sterner sanctions at its back than any known to the public censure. It
is also to be observed that the influence of the national conscience,
unsupported by that of the national force, would be counteracted in any
but the smallest and most homogeneous societies by the internal growth
of smaller societies or associations possessing separate interests and
separate antagonistic consciences of their own. It is certain that a man
cares more for the opinion of his friends and immediate associates, than
for that of all the world besides. The censure of ten thousand may be
outweighed by the approval of ten. The honour of thieves finds its
sanction and support in a law of professional opinion, which is opposed
to, and prevails over that of national opinion. The social sanction,
therefore, is an efficient instrument only so far as it is associated
with, and supplemented by the concentrated and irresistible force of the
incorporate community. Men being what they are—each keen to see his own
interest and passionate to follow it—society can exist only under the
shelter of the state, and the law and justice of the state is a
permanent and necessary condition of peace, order, and civilisation.
§ 26. =Origin of the Administration of Justice.=
The administration of justice is the modern and civilised substitute for
the primitive practices of private vengeance and violent self-help. In
the beginning a man redressed his wrongs and avenged himself upon his
enemies by his own hand, aided, if need be, by the hands of his friends
and kinsmen; but at the present day he is defended by the sword of the
state. For the expression of this and other elements involved in the
establishment of political government, we may make use of the contrast,
familiar to the philosophy of the seventeenth and eighteenth centuries,
between the civil state and the state of nature. This state of nature is
now commonly rejected as one of the fictions which nourished in the era
of the social contract, but such treatment is needlessly severe. The
term certainly became associated with much false or exaggerated doctrine
touching the golden age on the one hand and the _bellum omnium contra
omnes_ of Hobbes on the other, but in itself it nevertheless affords a
convenient mode for the expression of an undoubted truth. As long as
there have been men, there has probably been some form of human society.
The state of nature, therefore, is not the absence of society, but the
absence of a society so organised on the basis of physical force, as to
constitute a state. Though human society is coeval with mankind, the
rise of political society, properly so called, is an event in human
history.
One of the most important elements, then, in the transition from the
natural to the civil state is the substitution of the force of the
incorporate community for the force of individuals, as the instrument of
the redress and punishment of injuries. Private vengeance is transmuted
into the administration of criminal justice; while civil justice takes
the place of violent self-help. As Locke says,[82] in the state of
nature the law of nature is alone in force, and every man is in his own
case charged with the execution of it. In the civil state, on the other
hand, the law of nature is supplemented by the civil law, and the
maintenance of the latter by the force of the organised community
renders unnecessary and impermissible the maintenance of the former by
the forces of private men. The evils of the earlier system were too
great and obvious to escape recognition even in the most primitive
communities. Every man was constituted by it a judge in his own cause,
and might was made the sole measure of right. Nevertheless the
substitution was effected only with difficulty and by slow degrees. The
turbulent spirits of early society did not readily abandon the liberty
of fighting out their quarrels, or submit with good grace to the
arbitrament of the tribunals of the state. There is much evidence that
the administration of justice was in the earlier stages of its
development merely a choice of peaceable arbitration, offered for the
voluntary acceptance of the parties, rather than a compulsory substitute
for self-help and private war. Only later, with the gradual growth of
the power of government, did the state venture to suppress with the
strong hand the ancient and barbarous system, and to lay down the
peremptory principle that all quarrels shall be brought for settlement
to the courts of law.
All early codes show us traces of the hesitating and gradual method in
which the voice and force of the state became the exclusive instruments
of the declaration and enforcement of justice. Trial by battle, which
endured in the law of England until the beginning of the nineteenth
century,[83] is doubtless a relic of the days when fighting was the
approved method of settling a dispute, and the right and power of the
state went merely to the regulation, not to the suppression, of this
right and duty of every man to help and guard himself by his own hand.
In later theory, indeed, this mode of trial was classed with the ordeal
as _judicium Dei_—the judgment of Heaven as to the merits of the case,
made manifest by the victory of the right. But this explanation was an
afterthought; it was applied to public war, as the litigation of
nations, no less than to the judicial duel, and it is not the root of
either practice. Among the laws of the Saxon kings we find no absolute
prohibition of private vengeance, but merely its regulation and
restriction.[84] In due measure and in fitting manner it was the right
of every man to do for himself that which in modern times is done for
him by the state. As royal justice grows in strength, however, the law
begins to speak in another tone, and we see the establishment of the
modern theory of the exclusive administration of justice by the
tribunals of the state.[85]
§ 27. =Civil and Criminal Justice.=
The administration of justice has been already defined as the
maintenance of right within a political community by means of the
physical force of the state. It is the application by the state of the
sanction of force to the rule of right. We have now to notice that it is
divisible into two parts, which are distinguished as the administration
of civil and that of criminal justice. In applying the sanction of
physical force to the rules of right, the tribunals of the state may act
in one or other of two different ways. They may either enforce rights,
or punish wrongs. In other words, they may either compel a man to
perform the duty which he owes, or they may punish him for having failed
to perform it. Hence the distinction between civil and criminal justice.
The former consists in the enforcement of rights, the latter in the
punishment of wrongs. In a civil proceeding the plaintiff claims a
right, and the court secures it for him by putting pressure upon the
defendant to that end; as when one claims a debt that is due to him, or
the restoration of property wrongfully detained from him, or damages
payable to him by way of compensation for wrongful harm, or the
prevention of a threatened injury by way of injunction. In a criminal
proceeding, on the other hand, the prosecutor claims no right, but
accuses the defendant of a wrong. He is not a claimant, but an accuser.
The court makes no attempt to constrain the defendant to perform any
duty, or to respect any right. It visits him, instead, with a penalty
for the duty already disregarded and for the right already violated; as
where he is hanged for murder, or imprisoned for theft.
Both in civil and in criminal proceedings there is a _wrong_ (actual or
threatened) complained of. For the law will not enforce a right except
as against a person who has already violated it, or who has at the least
already shown an intention of doing so. Justice is administered only
against wrongdoers, in act or in intent. Yet the complaint is of an
essentially different character in civil and in criminal cases. In civil
justice it amounts to a claim of right; in criminal justice it amounts
merely to an accusation of wrong. Civil justice is concerned primarily
with the plaintiff and his rights; criminal justice with the defendant
and his offences. The former gives to the plaintiff, the latter to the
defendant, that which he deserves.
A wrong regarded as the subject-matter of civil proceedings is called a
civil wrong; one regarded as the subject-matter of criminal proceedings
is termed a criminal wrong or a crime. The position of a person who has,
by actual or threatened wrongdoing, exposed himself to legal
proceedings, is termed liability or responsibility, and it is either
civil or criminal according to the nature of the proceedings to which
the wrongdoer is exposed.
The same act may be both a civil injury and a crime, both forms of legal
remedy being available. Reason demands that in general these two
remedies shall be concurrent, and not merely alternative. If possible,
the law should not only compel men to perform their disregarded duties,
but should by means of punishment guard against the repetition of such
wrongdoing in the future. The thief should not only be compelled to
restore his plunder, but should also be imprisoned for having taken it,
lest he and others steal again. To this duplication of remedies,
however, there are numerous exceptions. Punishment is the sole resource
in cases where enforcement is from the nature of things impossible, and
enforcement is the sole remedy in those cases in which it is itself a
sufficient precautionary measure for the future. Not to speak of the
defendant’s liability for the costs of the proceedings, the civil remedy
of enforcement very commonly contains, as we shall see later, a penal
element which is sufficient to render unnecessary or unjustifiable any
cumulative criminal responsibility.
We have defined a criminal proceeding as one designed for the punishment
of a wrong done by the defendant, and a civil proceeding as one designed
for the enforcement of a right vested in the plaintiff. We have now to
consider a very different explanation which has been widely accepted. By
many persons the distinction between crimes and civil injuries is
identified with that between public and private wrongs. By a public
wrong is meant an offence committed against the state or the community
at large, and dealt with in a proceeding to which the state is itself a
party. A private wrong is one committed against a private person, and
dealt with at the suit of the individual so injured. The thief is
criminally prosecuted by the Crown, but the trespasser is civilly sued
by him whose right he has violated. Criminal libel, it is said, is a
public wrong, and is dealt with as such at the suit of the Crown; civil
libel is a private wrong and is dealt with accordingly by way of an
action for damages by the person libelled. Blackstone’s statement of
this view may be taken as representative: “Wrongs,” he says,[86] “are
divisible into two sorts or species, private wrongs and public wrongs.
The former are an infringement or privation of the private or civil
rights belonging to individuals, considered as individuals, and are
thereupon frequently termed civil injuries; the latter are a breach and
violation of public rights and duties which affect the whole community
considered as a community; and are distinguished by the harsher
appellation of crimes and misdemeanours.”[87]
But this explanation is insufficient. In the first place all public
wrongs are not crimes. A refusal to pay taxes is an offence against the
state, and is dealt with at the suit of the state; but it is a civil
wrong for all that, just as a refusal to repay money lent by a private
person is a civil wrong. The breach of a contract made with the state is
no more a criminal offence than is the breach of a contract made with a
subject. An action by the state for the recovery of a debt, or for
damages, or for the restoration of public property, or for the
enforcement of a public trust, is purely civil, although in each case
the person injured and suing is the state itself.
Conversely, and in the second place, all crimes are not public wrongs.
Most of the very numerous offences that are now punishable on summary
conviction may be prosecuted at the suit of a private person; yet the
proceedings are undoubtedly criminal none the less.
We must conclude, therefore, that the divisions between public and
private wrongs and between crimes and civil injuries are not coincident
but cross divisions. Public rights are often enforced, and private
wrongs are often punished. The distinction between criminal and civil
wrongs is based not on any difference in the nature of the right
infringed, but on a difference in the nature of the remedy applied.
The plausibility of the theory in question is chiefly attributable to a
certain peculiarity in the historical development of the administration
of justice. Where the criminal remedy of punishment is left in the hands
of the individuals injured, to be claimed or not as they think fit, it
invariably tends to degenerate into the civil remedy of pecuniary
compensation. Men barter their barren rights of vengeance for the more
substantial solatium of coin of the realm. Offenders find no difficulty
in buying off the vengeance of those they have offended, and a system of
money payments by way of composition takes the place of a system of true
punishments. Hence it is, that in primitive codes true criminal law is
almost unknown. Its place is taken by that portion of civil law which is
concerned with pecuniary redress. Murder, theft, and violence are not
crimes to be punished by loss of life, limb, or liberty, but civil
injuries to be paid for. This is a well-recognised characteristic of the
early law both of Rome and England. In the Jewish law we notice an
attempt to check this process of substitution, and to maintain the law
of homicide, at least, as truly criminal. “Ye shall take no satisfaction
for the life of a murderer, which is guilty of death: but he shall be
surely put to death.”[88] Such attempts, however, will be for the most
part vain, until the state takes upon itself the office of prosecutor,
and until offences worthy of punishment cease to be matters between
private persons, and become matters between the wrongdoer and the
community at large. Only when the criminal has to answer for his deed to
the state itself, will true criminal law be successfully established and
maintained. Thus at Rome the more important forms of criminal justice
pertained to the sovereign assemblies of the people, while civil justice
was done in the courts of the praetor and other magistrates. So in
England indictable crimes are in legal theory offences against “the
peace of our Lord the King, his crown and dignity,” and it was only
under the rule of royal justice that true criminal law was superadded to
the more primitive system of pecuniary compensation. Even at the present
day, for the protection of the law of crime, it is necessary to prohibit
as itself a crime the compounding of a felony, and to prevent in courts
of summary jurisdiction the settlement of criminal proceedings by the
parties without the leave of the court itself. Such is the historical
justification of the doctrine which identifies the distinction between
civil injuries and crimes with that between public and private wrongs.
The considerations already adduced should be sufficient to satisfy us
that the justification is inadequate.
§ 28. =The Purposes of Criminal Justice; Deterrent Punishment.=
The ends of criminal justice are four in number, and in respect of the
purposes so served by it, punishment may be distinguished as (1)
Deterrent, (2) Preventive, (3) Reformative, and (4) Retributive. Of
these aspects the first is the essential and all-important one, the
others being merely accessory. Punishment is before all things
deterrent, and the chief end of the law of crime is to make the evildoer
an example and a warning to all that are like-minded with him. Offences
are committed by reason of a conflict between the interests, real or
apparent, of the wrongdoer and those of society at large. Punishment
prevents offences by destroying this conflict of interests to which they
owe their origin—by making all deeds which are injurious to others
injurious also to the doers of them—by making every offence, in the
words of Locke, “an ill bargain to the offender.” Men do injustice
because they have no sufficient motive to seek justice, which is the
good of others rather than that of the doer of it. The purpose of the
criminal law is to supply by art the motives which are thus wanting in
the nature of things.
§ 29. =Preventive Punishment.=
Punishment is in the second place preventive or disabling. Its primary
and general purpose being to deter by fear, its secondary and special
purpose is, wherever possible and expedient, to prevent a repetition of
wrongdoing by the disablement of the offender. We hang murderers not
merely that we may put into the hearts of others like them the fear of a
like fate, but for the same reason for which we kill snakes, namely,
because it is better for us that they should be out of the world than in
it. A similar secondary purpose exists in such penalties as
imprisonment, exile, and forfeiture of office.
§ 30. =Reformative Punishment.=
Punishment is in the third place reformative. Offences are committed
through the influence of motives upon character, and may be prevented
either by a change of motives or by a change of character. Punishment as
deterrent acts in the former method; punishment as reformative in the
latter. This curative or medicinal function is practically limited to a
particular species of penalty, namely, imprisonment, and even in this
case pertains to the ideal rather than to the actual. It would seem,
however, that this aspect of the criminal law is destined to increasing
prominence. The new science of criminal anthropology would fain identify
crime with disease, and would willingly deliver the criminal out of the
hands of the men of law into those of the men of medicine. The feud
between the two professions touching the question of insanity threatens
to extend itself throughout the whole domain of crime.
It is plain that there is a necessary conflict between the deterrent and
the reformative theories of punishment, and that the system of criminal
justice will vary in important respects according as the former or the
latter principle prevails in it. The purely reformative theory admits
only such forms of punishment as are subservient to the education and
discipline of the criminal, and rejects all those which are profitable
only as deterrent or disabling. Death is in this view no fitting
penalty; we must cure our criminals, not kill them. Flogging and other
corporal inflictions are condemned as relics of barbarism by the
advocates of the new doctrine; such penalties are said to be degrading
and brutalizing both to those who suffer and to those who inflict them,
and so fail in the central purpose of criminal justice. Imprisonment,
indeed, as already indicated, is the only important instrument available
for the purpose of a purely reformative system. Even this, however, to
be fitted for such a purpose, requires alleviation to a degree quite
inadmissible in the alternative system. If criminals are sent to prison
in order to be there transformed into good citizens by physical,
intellectual, and moral training, prisons must be turned into
dwelling-places far too comfortable to serve as any effectual deterrent
to those classes from which criminals are chiefly drawn. A further
illustration of the divergence between the deterrent and the reformative
theories is supplied by the case of incorrigible offenders. The most
sanguine advocate of the curative treatment of criminals must admit that
there are in the world men who are incurably bad, men who by some vice
of nature are even in their youth beyond the reach of reformative
influences, and with whom crime is not so much a bad habit as an
ineradicable instinct. What shall be done with these? The only logical
inference from the reformative theory is that they should be abandoned
in despair as no fit subjects for penal discipline. The deterrent and
disabling theories, on the other hand, regard such offenders as being
pre-eminently those with whom the criminal law is called upon to deal.
That they may be precluded from further mischief, and at the same time
serve as a warning to others, they are justly deprived of their liberty,
and in extreme cases of life itself.
The application of the purely reformative theory, therefore, would lead
to astonishing and inadmissible results. The perfect system of criminal
justice is based on neither the reformative nor the deterrent principle
exclusively, but is the result of a compromise between them. In this
compromise it is the deterrent principle which possesses predominant
influence, and its advocates who have the last word. This is the primary
and essential end of punishment, and all others are merely secondary and
accidental. The present tendency to attribute exaggerated importance to
the reformative element is a reaction against the former tendency to
neglect it altogether, and like most reactions it falls into the
falsehood of extremes. It is an important truth, unduly neglected in
times past, that to a very large extent criminals are not normal and
healthy human beings, and that crime is in great measure the product of
physical and mental abnormality and degeneracy. It has been too much the
practice to deal with offenders on the assumption that they are ordinary
types of humanity. Too much attention has been paid to the crime, and
too little to the criminal. Yet we must be careful not to fall into the
opposite extreme. If crime has become the monopoly of the abnormal and
the degenerate or even the mentally unsound, the fact must be ascribed
to the selective influence of a system of criminal justice based on a
sterner principle than that of reformation. The more efficient the
coercive action of the state becomes, the more successful it is in
restraining all normal human beings from the dangerous paths of crime,
and the higher becomes the proportion of degeneracy among those who
break the law. Even with our present imperfect methods the proportion of
insane persons among murderers is very high; but if the state could
succeed in making it impossible to commit murder in a sound mind without
being indubitably hanged for it afterwards, murder would become, with
scarcely an exception, limited to the insane.
If, after this consummation had been reached, the opinion were advanced
that inasmuch as all murderers are insane, murder is not a crime which
needs to be suppressed by the strong arm of the penal law, and pertains
to the sphere of medicine rather than to that of jurisprudence, the
fallacy of the argument would be obvious. Were the state to act on any
such principle, the proposition that all murderers are insane would very
rapidly cease to be true. The same fallacy, though in a less obvious
form, is present in the more general argument that, since the proportion
of disease and degeneracy among criminals is so great, the reformative
function of punishment should prevail over, and in a great measure
exclude, its deterrent and coercive functions. For it is chiefly through
the permanent influence and operation of these latter functions, partly
direct in producing a fear of evildoing, partly indirect in establishing
and maintaining those moral habits and sentiments which are possible
only under the shelter of coercive law, that crime has become limited,
in such measure as it has, to the degenerate, the abnormal, and the
insane. Given an efficient penal system, crime is too poor a bargain to
commend itself, save in exceptional circumstances, to any except those
who lack the self-control, the intelligence, the prudence, or the moral
sentiments of the normal man. But apart from criminal law in its sterner
aspects, and apart from that positive morality which is largely the
product of it, crime is a profitable industry, which will flourish
exceedingly, and be by no means left as a monopoly to the feebler and
less efficient members of society.
Although the general substitution of the reformative for the deterrent
principle would lead to disaster, it may be argued that the substitution
is possible and desirable in the special case of the abnormal and
degenerate. Purely reformative treatment is now limited to the insane
and the very young; should it not be extended to include all those who
fall into crime through their failure to attain to the standard of
normal humanity? No such scheme, however, seems practicable. In the
first place, it is not possible to draw any sharp line of distinction
between the normal and the degenerate human being. It is difficult
enough in the only case of degeneracy now recognised by the law, namely
insanity; but the difficulty would be a thousand-fold increased had we
to take account of every lapse from the average type. The law is
necessarily a rough and ready instrument, and men must be content in
general to be judged and dealt with by it on the basis of their common
humanity, and not on that of their special idiosyncrasies. In the second
place, even in the case of those who are distinctly abnormal, it does
not appear, except in the special instance of mental unsoundness, that
the purely deterrent influences of punishment are not effective and
urgently required. If a man is destitute of the affections and social
instincts of humanity, the judgment of common sense upon him is not that
he should be treated more leniently than the normal evildoer—not that
society should cherish him in the hope of making him a good citizen—but
that by the rigour of penal discipline his fate should be made a terror
and a warning to himself and others. And in this matter sound science
approves the judgment of common sense. Even in the case of the abnormal
it is easier and more profitable to prevent crime by the fear of
punishment than to procure by reformative treatment the repentance and
amendment of the criminal.
It is needful, then, in view of modern theories and tendencies, to
insist on the primary importance of the deterrent element in criminal
justice. The reformative element must not be overlooked, but neither
must it be allowed to assume undue prominence. To what extent it may be
permitted in particular instances to overrule the requirements of a
strictly deterrent theory is a question of time, place, and
circumstance. In the case of youthful criminals the chances of effective
reformation are greater than in that of adults, and the rightful
importance of the reformative principle is therefore greater also. In
orderly and law-abiding communities concessions may be safely made in
the interests of reformation, which in more turbulent societies would be
fatal to the public welfare.
§ 31. =Retributive Punishment.=
We have considered criminal justice in three of its aspects—namely as
deterrent, disabling, and reformative—and we have now to deal with it
under its fourth and last aspect as retributive. Retributive punishment,
in the only sense in which it is admissible in any rational system of
administering justice, is that which serves for the satisfaction of that
emotion of retributive indignation which in all healthy communities is
stirred up by injustice. It gratifies the instinct of revenge or
retaliation, which exists not merely in the individual wronged, but also
by way of sympathetic extension in the society at large. Although the
system of private revenge has been suppressed, the emotions and
instincts that lay at the root of it are still extant in human nature,
and it is a distinct though subordinate function of criminal justice to
afford them their legitimate satisfaction. For although in their lawless
and unregulated exercise and expression they are full of evil, there is
in them none the less an element of good. The emotion of retributive
indignation, both in its self-regarding and its sympathetic forms, is
even yet the mainspring of the criminal law. It is to the fact that the
punishment of the wrongdoer is at the same time the vengeance of the
wronged, that the administration of justice owes a great part of its
strength and effectiveness. Did we punish criminals merely from an
intellectual appreciation of the expediency of so doing, and not because
their crimes arouse in us the emotion of anger and the instinct of
retribution, the criminal law would be but a feeble instrument.
Indignation against injustice is, moreover, one of the chief
constituents of the moral sense of the community, and positive morality
is no less dependent on it than is the law itself. It is good,
therefore, that such instincts and emotions should be encouraged and
strengthened by their satisfaction; and in civilised societies this
satisfaction is possible in any adequate degree only through the
criminal justice of the state. There can be little question that at the
present day the sentiment of retributive indignation is deficient rather
than excessive, and requires stimulation rather than restraint.
Unquestionable as have been the benefits of that growth of altruistic
sentiment which characterises modern society, it cannot be denied that
in some respects it has taken a perverted course and has interfered
unduly with the sterner virtues. A morbid sentimentality has made of the
criminal an object of sympathetic interest rather than of healthy
indignation, and Cain occupies in our regards a place that is better
deserved by Abel. We have too much forgotten that the mental attitude
which best becomes us, when fitting justice is done upon the evildoer,
is not pity, but solemn exultation.[89]
The foregoing explanation of retributive punishment as essentially an
instrument of vindictive satisfaction is by no means that which receives
universal acceptance. It is a very widely held opinion that retribution
is in itself, apart altogether from any deterrent or reformative
influences exercised by it, a right and reasonable thing, and the just
reward of iniquity. According to this view, it is right and proper,
without regard to ulterior consequences, that evil should be returned
for evil, and that as a man deals with others so should he himself be
dealt with. An eye for an eye and a tooth for a tooth is deemed a plain
and self-sufficient rule of natural justice. Punishment as so regarded
is no longer a mere instrument for the attainment of the public welfare,
but has become an end in itself. The purpose of vindictive satisfaction
has been eliminated without any substitute having been provided. Those
who accept this view commonly advance retribution to the first place
among the various aspects of punishment, the others being relegated to
subordinate positions.
This conception of retributive justice still retains a prominent place
in popular thought. It flourishes also in the writings of theologians
and of those imbued with theological modes of thought, and even among
the philosophers it does not lack advocates. Kant, for example,
expresses the opinion that punishment cannot rightly be inflicted for
the sake of any benefit to be derived from it either by the criminal
himself or by society, and that the sole and sufficient reason and
justification of it lies in the fact that evil has been done by him who
suffers it.[90] Consistently with this view, he derives the measure of
punishment, not from any elaborate considerations as to the amount
needed for the repression of crime, but from the simple principle of the
_lex talionis_: “Thine eye shall not pity; but life shall go for life,
eye for eye, tooth for tooth, hand for hand, foot for foot.”[91] No such
principle, indeed, is capable of literal interpretation; but subject to
metaphorical and symbolical applications it is in Kant’s view the
guiding rule of the ideal scheme of criminal justice.
It is scarcely needful to observe that from the utilitarian point of
view hitherto taken up by us such a conception of retributive punishment
is totally inadmissible. Punishment is in itself an evil, and can be
justified only as the means of attaining a greater good. Retribution is
in itself not a remedy for the mischief of the offence, but an
aggravation of it. The opposite opinion may be regarded as a product of
the incomplete transmutation of the conception of revenge into that of
punishment. It results from a failure to appreciate the rational basis
of the instinct of retribution—a failure to refer the emotion of
retributive indignation to the true source of its rational
justification—so that retaliation is deemed an end in itself, and is
regarded as the essential element in the conception of penal justice.
A more definite form of the idea of purely retributive punishment is
that of expiation. In this view, crime is done away with, cancelled,
blotted out, or expiated, by the suffering of its appointed penalty. To
suffer punishment is to pay a debt due to the law that has been
violated. Guilt _plus_ punishment is equal to innocence. “The wrong,” it
has been said,[92] “whereby he has transgressed the law of right, has
incurred a debt. Justice requires that the debt be paid, that the wrong
be expiated.... This is the first object of punishment—to make
satisfaction to outraged law.” This conception, like the preceding,
marks a stage in the transformation of revenge into criminal justice.
Until this transformation is complete, the remedy of punishment is more
or less assimilated to that of redress. Revenge is the right of the
injured person. The penalty of wrongdoing is a debt which the offender
owes to his victim, and when the punishment has been endured the debt is
paid, the liability is extinguished, innocence is substituted for guilt,
and the _vinculum juris_ forged by crime is dissolved. The object of
true redress is to restore the position demanded by the rule of right,
to substitute justice for injustice, to compel the wrongdoer to restore
to the injured person that which is his own. A like purpose is assigned
to punishment, so long as it is imperfectly differentiated from that
retributive vengeance which is in some sort a reparation for wrongdoing.
The fact that in the expiatory theory satisfaction is conceived as due
rather to the outraged majesty of the law, than to the victim of the
offence, merely marks a further stage in the refinement and purification
of the primitive conception.
§ 32. =Civil Justice; Primary and Sanctioning Rights.=
We proceed now to the consideration of civil justice and to the analysis
of the various forms assumed by it. It consists, as we have seen, in the
enforcement of rights, as opposed to the punishment of wrongs. The first
distinction to be noticed is that the right so enforced is either a
Primary or a Sanctioning right. A sanctioning right is one which arises
out of the violation of another right. All others are primary; they are
rights which have some other source than wrongs. Thus my right not to be
libelled or assaulted is primary; but my right to obtain pecuniary
compensation from one who has libelled or assaulted me is sanctioning.
My right to the fulfilment of a contract made with me is primary; but my
right to damages for its breach is sanctioning.
The administration of civil justice, therefore, falls into two parts,
according as the right enforced belongs to the one or the other of these
two classes. Sometimes it is impossible for the law to enforce the
primary right; sometimes it is possible but not expedient. If by
negligence I destroy another man’s property, his right to this property
is necessarily extinct and no longer enforceable. The law, therefore,
gives him in substitution for it a new and sanctioning right to receive
from me the pecuniary value of the property that he has lost. If on the
other hand I break a promise of marriage, it is still possible, but it
is certainly not expedient, that the law should specifically enforce the
right, and compel me to enter into that marriage; and it enforces
instead a sanctioning right of pecuniary satisfaction. A sanctioning
right almost invariably consists of a claim to receive money from the
wrongdoer, and we shall here disregard any other forms, as being quite
exceptional.
The enforcement of a primary right may be conveniently termed specific
enforcement. For the enforcement of a sanctioning right there is no very
suitable generic term, but we may venture to call it sanctional
enforcement.
Examples of specific enforcement are proceedings whereby a defendant is
compelled to pay a debt, to perform a contract, to restore land or
chattels wrongfully taken or detained, to refrain from committing or
continuing a trespass or nuisance, or to repay money received by mistake
or obtained by fraud. In all these cases the right enforced is the
primary right itself, not a substituted sanctioning right. What the law
does is to insist on the specific establishment or re-establishment of
the actual state of things required by the rule of right, not of another
state of things which may be regarded as its equivalent or substitute.
Sanctioning rights may be divided into two kinds by reference to the
purpose of the law in creating them. This purpose is either (1) the
imposition of a pecuniary penalty upon the defendant for the wrong which
he has committed, or (2) the provision of pecuniary compensation for the
plaintiff in respect of the damage which he has suffered from the
defendant’s wrongdoing. Sanctioning rights, therefore, are either (1)
rights to exact and receive a pecuniary penalty, or (2) rights to exact
and receive damages or other pecuniary compensation.
The first of these kinds is rare in modern English law, though it was at
one time of considerable importance both in our own and in other legal
systems. But it is sometimes the case even yet, that the law creates and
enforces a sanctioning right which has in it no element of compensation
to the person injured, but is appointed solely as a punishment for the
wrongdoer. For example, a statute may make provision for a pecuniary
penalty payable to a common informer, that is to say, to any one who
shall first sue the offender for it. Such an action is called a penal
action, as being brought for the recovery of a penalty. But it is none
the less a purely civil, and in no respect a criminal proceeding.
Primarily and immediately, it is an action for the enforcement of a
right, not for the punishment of a wrong. It pertains, therefore, to the
civil administration of justice, no less than an ordinary action for the
recovery of a debt. The mere fact that the sanctioning right thus
enforced is created by the law for the purpose of punishment does not
bring the action within the sphere of criminal justice. In order that a
proceeding should be criminal it is necessary that its direct and
immediate purpose should be punishment; it is not enough that its
purpose should be the enforcement of a right which has been created by
way of punishment. A proceeding is civil if it is one for the
enforcement of a right, and the source, nature, and purpose of the right
so enforced are irrelevant.[93]
The second form of sanctioning right—the right to pecuniary compensation
or damages—is in modern law by far the more important. It may be stated
as a general rule, that the violation of a private right gives rise, in
him whose right it is, to a sanctioning right to receive compensation
for the injury so done to him. Such compensation must itself be divided
into two kinds, which may be distinguished as Restitution and Penal
Redress. In respect of the person injured, indeed, these two are the
same in their nature and operation; but in respect of the wrongdoer they
are very different. In restitution the defendant is compelled to give up
the pecuniary value of some benefit which he has wrongfully obtained at
the expense of the plaintiff; as when he who has wrongfully taken or
detained another’s goods is made to pay him the pecuniary value of them,
or when he who has wrongfully enriched himself at another’s expense is
compelled to account to him for all money so obtained.
Penal redress, on the other hand, is a much more common and important
form of legal remedy than mere restitution. The law is seldom content to
deal with a wrongdoer by merely compelling him to restore all benefits
which he has derived from his wrong; it commonly goes further, and
compels him to pay the amount of the plaintiff’s loss; and this may far
exceed the profit, if any, which he has himself received. It is clear
that compensation of this kind has a double aspect and nature; from the
point of view of the plaintiff it is compensation and nothing more, but
from that of the defendant it is a penalty imposed upon him for his
wrongdoing. The compensation of the plaintiff is in such cases the
instrument which the law uses for the punishment of the defendant, and
because of this double aspect we call it penal redress. Thus if I burn
down my neighbour’s house by negligence, I must pay him the value of it.
The wrong is then undone with respect to him, indeed, for he is put in
as good a position as if it had not been committed. Formerly he had a
house, and now he has the worth of it. But the wrong is not undone with
respect to me, for I am the poorer by the value of the house, and to
this extent I have been punished for my negligence.
§ 33. =A Table of Legal Remedies.=
The result of the foregoing analysis of the various forms assumed by the
administration of justice, civil and criminal, may be exhibited in a
tabular form as follows:—
{SPECIFIC ENFORCEMENT—
{ enforcement of a primary right:
{ _e.g._, payment of debt,
{ or return of property
{ detained. I.
{CIVIL— { {RESTITUTION—return
Legal { Enforcement{ { of profit unlawfully
Proceedings{ of rights { { made. II.
{ { {COMPENSATION{
{ { { {PENAL REDRESS—
{ {SANCTIONAL { { payment for loss
{ { ENFORCEMENT— { { unlawfully
{ { enforcement { { inflicted. III.
{ { of a {
{ { sanctioning {PENALTY: _e.g._, action by
{ { right { informer for statutory
{ { penalty. IV.
{
{CRIMINAL—Punishment of wrongs: _e.g._, imprisonment for
{ theft. V.
§ 34. =Penal and Remedial Proceedings.=
It will be noticed that in the foregoing Table legal proceedings have
been divided into five distinct classes, namely: (1) actions for
specific enforcement, (2) actions for restitution, (3) actions for penal
redress, (4) penal actions, and (5) criminal prosecutions. It must now
be observed that the last three of these contain a common element which
is absent from the others, namely the idea of punishment. In all these
three forms of procedure the ultimate purpose of the law is in whole or
in part the punishment of the defendant. This is equally so, whether he
is imprisoned, or compelled to pay a pecuniary penalty to a common
informer, or is held liable in damages to the person injured by him. All
these proceedings, therefore, may be classed together as _penal_, and as
the sources of _penal liability_. The other forms, namely specific
enforcement and restitution, contain no such penal element; the idea of
punishment is entirely foreign to them; and they may be classed together
as _remedial_, and as the sources of _remedial liability_. From the
point of view of legal theory this distinction between penal and
remedial liability is, as we shall see, of even greater importance than
that between criminal and civil liability. It will be noted that all
criminal proceedings are at the same time penal, but that the converse
is not true, some civil proceedings being penal while others are merely
remedial.
It may be objected that this explanation fails to distinguish between
penal liability and criminal, inasmuch as punishment is stated to be the
essential element in each. The answer to this objection is that we must
distinguish between the ulterior and the immediate purposes of the law.
Proceedings are classed as criminal or civil in respect of their
immediate aim; they are distinguished as penal or remedial in respect of
their entire purpose, remote as well as immediate. One way of punishing
a wrongdoer is to impose some new obligation upon him, and to enforce
the fulfilment of it. He may be compelled to pay a penalty or damages.
Whenever this course is adopted, the immediate design of the law is the
enforcement of the right to the penalty or damages, but its ulterior
design is the punishment of the wrong out of which this right arose. In
respect of the former the proceedings are civil, not criminal; while in
respect of the latter they are penal, not remedial. Penal proceedings,
therefore, may be defined as those in which the object of the law,
immediate or ulterior, is or includes the punishment of the defendant.
All others are remedial, the purpose of the law being nothing more than
the enforcement of the plaintiff’s right, and the idea of punishment
being irrelevant and inapplicable.
§ 35. =Secondary Functions of Courts of Law.=
Hitherto we have confined our attention to the administration of justice
in the narrowest and most proper sense of the term. In this sense it
means, as we have seen, the application by the state of the sanction of
physical force to the rules of justice. It is the forcible defence of
rights and suppression of wrongs. The administration of justice properly
so called, therefore, involves in every case two parties, the plaintiff
and the defendant, a right claimed or a wrong complained of by the
former as against the latter, a judgment in favour of the one or the
other, and execution of this judgment by the power of the state if need
be. We have now to notice that the administration of justice in a wider
sense includes all the functions of courts of justice, whether they
conform to the foregoing type or not. It is to administer justice in the
strict sense that the tribunals of the state are established, and it is
by reference to this essential purpose that they must be defined. But
when once established, they are found to be useful instruments, by
virtue of their constitution, procedure, authority, or special
knowledge, for the fulfilment of other more or less analogous functions.
To these secondary and non-essential activities of the courts, no less
than to their primary and essential functions, the term administration
of justice has been extended. They are miscellaneous and indeterminate
in character and number, and tend to increase with the advancing
complexity of modern civilisation. They fall chiefly into four groups:
(1) _Petitions of Right._—The courts of law exercise, in the first
place, the function of adjudicating upon claims made by subjects against
the state itself. If a subject claims that a debt is due to him from the
Crown, or that the Crown has broken a contract with him, or wrongfully
detains his property, he is at liberty to take proceedings by way of
petition of right in a court of law for the determination of his rights
in the matter. The petition is addressed to the Crown itself, but is
referred for consideration to the courts of justice, and these courts
will investigate the claim in due form of law, and pronounce in favour
of the petitioner or of the Crown, just as in an action between two
private persons. But this is not the administration of justice properly
so called, for the essential element of coercive force is lacking. The
state is the judge in its own cause, and cannot exercise constraint
against itself. Nevertheless in the wider sense the administration of
justice includes the proceedings in a petition of right, no less than a
criminal prosecution or an action for debt or damages against a private
individual.
(2) _Declarations of Right._—The second form of judicial action which
does not conform to the essential type is that which results, not in any
kind of coercive judgment, but merely in a declaration of right. A
litigant may claim the assistance of a court of law, not because his
rights have been violated, but because they are uncertain. What he
desires may be not any remedy against an adversary for the violation of
a right, but an authoritative declaration that the right exists. Such a
declaration may be the ground of subsequent proceedings in which the
right, having been violated, receives enforcement, but in the meantime
there is no enforcement nor any claim to it. Examples of declaratory
proceedings are declarations of legitimacy, declarations of nullity of
marriage, advice to trustees or executors as to their legal powers and
duties, and the authoritative interpretation of wills.
(3) _Administrations._—A third form of secondary judicial action
includes all those cases in which courts of justice undertake the
management and distribution of property. Examples are the administration
of a trust, the liquidation of a company by the court, and the
realisation and distribution of an insolvent estate.
(4) _Titles of Right._—The fourth and last form includes all those cases
in which judicial decrees are employed as the means of creating,
transferring, or extinguishing rights. Instances are a decree of divorce
or judicial separation, an adjudication of bankruptcy, an order of
discharge in bankruptcy, a decree of foreclosure against a mortgagor, an
order appointing or removing trustees, a grant of letters of
administration, and vesting or charging orders. In all these cases the
judgment or decree operates not as the remedy of a wrong, but as the
title of a right.
These secondary forms of judicial action are to be classed under the
head of the _civil_ administration of justice. Here, as in its other
uses, the term civil is merely residuary; civil justice is all that is
not criminal.
We have defined the law as consisting of the rules observed in the
administration of justice. We have now seen that the latter term is
used in a double sense, and the question therefore arises whether it
is the strict or the wide sense that is to be adopted in our
definition of the law. There can be no doubt, however, that logic
admits, and convenience requires, the adoption of the wider
application. We must recognise as law the sum total of the rules that
are applied by courts of justice in the exercise of any of their
functions, whether these are primary and essential or secondary and
accidental. The principles in accordance with which the courts
determine a petition of right, decree a divorce, or grant letters of
administration, are as truly legal principles as those which govern an
action of debt or a suit for specific performance.
SUMMARY.
The administration of justice by the state a permanent necessity.
The origin of the administration of justice.
Justice {Criminal—The punishment of wrongs.
{Civil—The enforcement of rights.
Crimes not necessarily public wrongs.
Purposes of punishment:—
1. Deterrent.
2. Preventive.
3. Reformative.
4. Retributive.
{Enforcement of primary rights—Specific enforcement.
Civil Justice {Enforcement of sanctioning rights—Sanctional enforcement.
{Compensation {Restitution.
Sanctional enforcement { {Penal redress.
{Penalty
{Remedial—independent of the idea of punishment—always civil.
Justice {Penal—involving the idea of punishment—civil or criminal.
Subsidiary functions of courts of justice:—
1. Petitions of right.
2. Declarations of right.
3. Administration of property.
4. Creation, transfer, and extinction of rights.