The Rationale of Punishment

Book I

General Principles

Chapter I

Definitions and Distinctions

To afford a clear apprehension of the subject of the following work, which subject is Punishment, it is necessary that what punishment is, and what punishment is not, should be clearly understood. For this purpose it will be proper to distinguish it from those objects with which it is in danger of being confounded, and also to point out the different shapes which it may assume.

Punishment, whatever shape it may assume, is an evil. The matter of evil, therefore, is the sort of matter here in question:—the matter of evil in almost all the shapes of which it is susceptible. In considering this matter, two objects, constant accompaniments one to the other, will require to be distinguished;—viz. 1. The act by which the evil is considered as being produced; and, 2. What is considered as being the result of that same act, the evil itself which is thus produced.

The English language affords but one single worded appellative in common use for designating both these objects; viz. Punishment.

Punishment may be defined—an evil resulting to an individual from the direct intention of another, on account of some act that appears to have been done, or omitted. The propriety of this definition will appear, and its use be manifested, by taking it to pieces, and examining its several constituent parts.

Punishment then is an evil—that is, a physical evil; either a pain, or a loss of pleasure, or else of that situation or condition of the party affected, which is the immediate cause of such pain or loss of pleasure. It is an evil resulting from the direct intention of another. It is not punishment, if it be obliquely intentional on the part of the person from whose agency it results, but an evil of some other nature, but which, however, is not in all cases distinguished by a specific name.

It is an evil resulting to a person from the direct intention of another, on account of some act that has been done or omitted. An evil resulting to an individual, although it be from the direct intention of another, if it be not on account of some act that has been done or omitted, is not a punishment. If, out of wantonness, for the sake of sport, or out of ill-will, resulting from an antipathy you entertain against a man's person, without having any particular act of his to ground it upon, you do him a mischief, the evil produced in this case is what nobody would understand to come under the name of punishment.

But so it be on account of some act that has been done, it matters not by whom the act was done. The most common case is for the act to have been done by the same person by whom the evil is suffered. But the evil may light upon a different person, and still bear the name of punishment. In such case it may be styled punishment in alienam personam, in contradistinction to the more common case in which it may be styled punishment in propriam personam. Whether the act ultimately or only mediately intentional, it may consistently enough with common usage bear the name of punishment. Though according as it was in the one or the other way that the intention happened to regard it, the act will assume a different name, as we shall have occasion to mention presently.

It must be on account of some act that at least appears to have been done; but whether such an act as appears to have been done, or any act, actually was done, is not material.

By the denomination thus given to the act, by the word punishment, taken by itself, no limitation is put to the description of the person of the agent; but on the occasion of the present work, this person is all along considered as a person invested for this purpose with the authority of the state; a legislator appointing the species of evil to be inflicted in a species of case; or a judge appointing the individual lot of evil to be inflicted in this or that individual case.

Vengeance, antipathy, amendment, disablement, determent, self-defence, self-preservation, safe custody, restraint, compulsion, torture, compensation in the sense in which it means a particular mode of satisfaction for injury or damage—burthen in any such phrase as that of imposition of a burthen, and taxation: by all these several words ideas are presented which will require in each instance to be compared, and, in most instances, to be distinguished from the ideas presented by the word punishment.

Take whatever portion of the matter of evil is upon the carpet, whether the term punishment shall or shall not with propriety be applied, depends upon the position in which the actual result stands with reference to the time in which the will or intention of the agent acts.

Intentional or unintentional: if intentional directly or indirectly, or, to use another word, collaterally intentional; if directly, ultimately, or but mediately intentional; such are the modifications which the matter of evil may be considered as receiving, when considered in the character of an object to which the will or intention turns itself.

In some cases, the man in power, or some person or persons, having, as he supposes, received at the hands of some person or other evil in some shape or other, the object which he has in view, in the infliction of the end in question, is an enjoyment of a certain kind, which he derives, or expects to derive, from the contemplation of the evil thus sustained. In this case, the act in question is termed an act of vengeance.

So far as this, and this alone, is his object, this evil thus produced is not only directly but ultimately intentional.

Whether in the character of a sole object, a result of this nature be a fit object for the man in power to propose to himself, is indeed a very important question, but one which has no place here: punishment, by being misapplied, is not the less punishment.

Laying out of the above case the supposed antecedent evil, you have no longer an act of vengeance, but an act performed for the mere gratification of antipathy. But by the supposition having for its author or agent the legislator or the Judge, it is still not the less an act of punishment.

Of the cases in which the act productive of the evil, intentionally produced by the hand of power, is termed an act of punishment, the most common class is that which is composed of those in which, on the part of the agent, the evil thus produced is, though intentional, and even directly intentional, yet not ultimately, but only mediately intentional.

In this case the ultimately intentional object—the object in relation to which the act of punishment is intended to minister in the character of a means to an end—may be either an act of the negative or the positive cast.

When the act to which the punishment is annexed is of the positive cast, the ultimately intentional object aimed at by the act of punishment is of the opposite cast: and so when the offence is negative, the result, the production of which is aimed at by the punishment, is positive.

If the offence be of the positive cast, then come the following string of appellatives, expressive of the results, the production of which is in different ways aimed at: viz. 1. Amendment or reformation: 2. Disablement: 3. Determent: 4. Self-defence: 5. Self-preservation: 6. Safe custody: and 7. Restraint.

If the offence be of the negative cast, then comes another string of appellatives, expressive, as above, of the results aimed at: viz. 1. Compulsion or constraint: 2. Torture: 3. Compensation, in the sense in which it is equivalent to satisfaction, rendered in consideration of injury resulting from an offence, or in consideration of damage produced without intentional injury: 4. Taxation.

Whether the result aimed at be of the negative or positive cast, the terms, coercion, obligation, burthen, or the phrase imposition of a burthen, are competent to the designation of it.

Amendment, or reformation, and disablement, are words expressive of the result aimed at, in so far as the conduct of the supposed delinquent is concerned. In the case of amendment or reformation, the obnoxious act is regarded as being of such a nature, that by a single instance of its being committed, such a degree of disorder in the moral constitution is indicated, as requires a general change to remove it, and bring the patient to a state of ordinary purity.

Few if any offences of the negative class being to be found which exhibit any such degree of malignity,—the use of the terms amendment and reformation is nearly confined to the case when the obnoxious act, the prevention of which is the ultimate end of the punishment, is of the positive kind.

Disablement is a term for which, with reference to an act of the negative kind, a place is hardly to be found. Doing nothing is a sort of offence to which every man is so competent, that all endeavours on the part of Government to disable a man from committing it may be set at defiance.

Determent is a result equally applicable to the case either of a positive or negative offence It is moreover equally applicable to the situation of the already punished delinquent, and that of other persons at large; nor does it involve, on the part of the punished delinquent, the supposition of any such general disorder as is implied by the words amendment or reformation.

When the ultimately intentional result is amendment or reformation, it is by the impression made by the action of the evil on the will of the offender that, in so far as it is produced, the result is considered as being produced. In this case the act of punishment is also termed an act of correction.

When the ultimately intentional result is disablement, it is by depriving the offender of the power of committing obnoxious acts of the like description, that, in so far as it is produced, the result is considered as being produced. In this case, the course taken to produce the result may either be such the nature of which is to produce it only for a time, as is done by temporary imprisonment, confinement, or deportation or for ever, as would in some cases be done by mutilation.

In so far as by the act of punishment exercised on the delinquent, other persons at large are considered as deterred from the commission of acts of the like obnoxious description, and the act of punishment is in consequence considered as endued with the quality of determent. It is by the impression made on the will of those persons, an impression made in this case not by the act itself, but by the idea of it, accompanied with the eventual expectation of a similar evil, as about to be eventually produced in their own instances, that the ultimately intentional result is considered as produced: and in this case it is also said to be produced by the example, or by the force of example.

Between self-defence and punishment, the relation is of this sort,—viz. that to the same act which ministers to the one of those purposes, it may happen to minister to the other. This coincidence may have place in either of two ways: an act which has self-defence for its direct object and result, may have punishment for its collateral result; or an act which has punishment for its direct object and result, may have self-defence for its collateral result.

In repelling a personal assault, it may happen to an individual, intentionally or unintentionally, to inflict on the assailant, a suffering by any amount greater than that of any which, by the assault, was inflicted on himself: if unintentionally, self-defence was not only the sole ultimately intentional, but the sole intentional result. but the suffering of the assailant, though not the collaterally intentional, was not in effect less truly the collateral result.

On the other hand, in inflicting punishment on a delinquent, it may happen to the man in authority to be exercising on his own behalf an act of self-defence: in regard to all offences, such as rebellion and treason, which have for their object or their effect the subversion of the government, or the weakening of its powers. But it is only in reference to such offences that an act of punishment can, with reference to the constituted authorities, be with propriety called an act of self

But if in lieu of the constituted authorities, the members of the community at large be considered as the persons by whom the punishment is inflicted; then is all punishment an act of self-defence, in relation to the particular species of evil with which the offence thus punished is pregnant: an act tending to defend the community against offences of the sort in question, with their attendant evils, viz. by means of reformation, disablement, and determent, one or more of them as above.

In the signification of the word self-defence, it is implied that the evil against which the party is endeavouring to guard himself has for its cause an act done by some sentient being, with the intention of producing that same evil.

The word self-preservation, is alike applicable whatsoever be the source or quarter from which the evil is considered as about to come. In so far, therefore, as the act of punishment is with propriety capable of being termed an act of self-defence, it is, with the same propriety, capable of being termed an act of self-preservation.

Between safe custody and punishment, the relation is of this sort:—To one and the same operation or factitious state of things it may happen to be productive of both of these effects. But in the instance of the same individual, it is only to a limited degree that there can be a sufficient reason for making provision for both at the same time.

To a considerable extent imprisonment with propriety may be, and everywhere is applied, under the name and to the purpose of punishment. In this case, safe custody is in part the same thing with the intended punishment itself; in part a concomitant necessary to the existence and continuance of whatsoever inflictions it may be deemed proper to add to those which are inseparable from the safe custody itself

But in another case, imprisonment, or an infliction of the same name at least as that which is employed as above, for the purpose of punishment, is to a great extent administered ultimately for the purpose of eventual forthcomingness, and mediately for the purpose of safe custody, though no such thing as punishment is, or at least ought to be, intended, because no ground for punishment has as yet been, and perhaps never may be, established.

Between restraint and punishment the relation is of this sort. In some shape or other, restraint is the directly intentional result of every prohibitive law. The evil, whatever it be that constitutes an inseparable accompaniment of the state thus denominated, is a collaterally intentional result of that same law. The evil of the restraint may be very moderate, but still by every general prohibitive law; evil in some shape or other, in some quantity or other, must come.

At the same time, restraint is, in a great variety of shapes, capable of being employed in the character of a punishment. As a punishment restraint is not incapable of being employed for the purpose of securing submission to restraint. But in this case, the coincidence is but verbal, and arises from the generality of the word restraint In the character of a punishment we cannot employ the restraint collaterally resulting from the negative act, the production of which is the object of the prohibition in the character of the eventual punishment, to secure obedience to that same prohibitive law. To prevent a man from stealing, a law threatening to prevent him from stealing, would be but an indifferent resource. To secure, by means of eventual punishment, restraint in this shape, you must employ restraint in some other shape; for example, the restraint attached to imprisonment.

Between compulsion and punishment, the relation is of this sort. In the case of compulsion, as in the case of restraint, the act in question is . the act which is regarded as the efficient cause of the evil, the prevention of which is the ultimate object of the act of punishment. What restraint is in the case when the act in question is of the positive cast, compulsion is in the case when the act is of the negative cast.

Between torture and punishment, the relation is of this sort. The term torture is employed, and perhaps with nearly equal frequency, in two different senses. In its most extended sense it is employed to designate pain, especially pain of body, when considered as being intense in its degree, and this without reference to the cause by which it is produced.

In its more restricted sense, being that in which it is most apt to be employed, when considered as the result of law, it is employed to signify pain of body in its degree intense as above, employed in due course of law, or, at any rate, by the hand of power, in the character of an instrument of compulsion.

But the account given of it when employed in this sense wants much, as yet, of being complete. The compulsion, or constraint may be produced by the mere apprehension of the punishment which is denounced.

By this circumstance, torture stands distinguished not only from compulsion itself, but from any lot of punishment considered as applied to the purpose of compulsion in the ordinary mode.

The notion of torture is not included in a punishment attached to an act of disobedience, of which no remission is allowed; but suppose the same lot of pain attached to the same offence, with power to remit any part of it, in case of and immediately upon compliance with the requisition of the law; and here the punishment comes under the notion and denomination of torture.

Between compensation, or satisfaction and punishment, the relation is of this sort: in all cases, if compensation be the end in view, so far as concerns pecuniary compensation, by whatsoever is done for the purpose of compensation, the effect of pecuniary punishment is produced likewise. More suffering, however, will in general be produced by what is taken for the purpose of compensation than if the same amount were taken for the purpose of punishment; it will be accompanied by the regret produced by the idea of the advantage not only reaped by an adversary, but reaped at one own's expense.

On the other hand, by the contemplation of the suffering inflicted by punishment on the delinquents, good in the shape of compensation, or say vindictive satisfaction, is administered to the party injured.

Between taxation and punishment of the pecuniary kind, for it is only in this form that they can be compared, the relation is of this sort; they both consist in the application of compulsion to the extracting out of the pocket in question a certain sum; the difference between them consists in the end in view. In the case of taxation, the object is the obtainment of a certain sum; in the case of punishment, the object is the prevention of the obnoxious act, to the commission of which the obligation of paying the money is attached in the character of a punishment. In the case of taxation, the wish of the legislator is, that the money may be paid; and, consequently, if it be to the performance of a certain act that the obligation of paying the money is annexed, his wish is that the act may be performed.

As in the two cases the result intended is opposite, the actual results are accordingly incompatible, in so far as either result is obtained, the other is missed. Whether the effect of any given law shall be taxation, or effectual prohibition, depends in the instance of each individual upon the value, which, in the case in question, he is called upon to pay, compared with the value in his estimation of the advantage which stands annexed to the exercise of the act; if the advantage appear the greater, he pays the money and exercises the act; if the value of the money to be eventually paid appear the greater, he obeys the prohibitory law, and abstains from the performance of the act.

When the face assumed by any law is that of a prohibition, if the penalty be nothing but pecuniary and the amount is fixed, while the profits of the offence are variable, the probability is that in many instances the penalty even if levied, which could not be without detection, prosecution, and conviction' would but operate as a taxed licence.

This circumstance is so obvious, that one would have thought it could not have been overlooked had it, however, been observed with any tolerable steadiness in England, the law of that country would wear a face widely different from that which it wears at present.

In relation to all these several results or concomitants of punishment, one observation useful to be borne in mind, that it may operate as a preservative against much error, is—that it is but in very few, if any of these instances, that from the name by which the object is here designated, any true judgment can be formed on any such question as whether and how far the object is a fit object of pursuit or aim in the character of an end.

Take any one of them for example,—if taken by itself that object be of the nature of good, yet in the first place, that good may be in any degree minute; in the next place, to the quantity of evil with which it may happen to it to be followed, there are no limits: and thus it is that false must be that proposition, which without leaving room for exceptions, should pronounce the attainment of that object to be universally an end fit to be aimed at, whether through the intervention of punishment, or any other means; and conversely.

Of the distinctions here pointed out between punishment and the several objects that are of kin to it, five distinguishable practical uses may be made.

1. They may serve as a memento to the legislator, to see on every occasion that for the several objects which may have place and present demand for legislative provision; due and adequate provision is accordingly made.

2. To preserve him from the delusion which would have place, wheresoever it happens that by one and the same lot of evil, due and adequate provision may be made for two or more of these purposes, if by the difference of their respective denominations, he were led to give birth to two or more lots of evil for the purpose of effecting the good, for the effectuation of which one of them would suffice.

3. That in each instance, in comparing the end he has in view with the means which he proposes to employ for the attainment of it, the view he takes of such proposed means may be sufficiently clear, correct, and complete, to enable him to form a correct judgment of the mode and degree in which they promise to be conducive to the attainment of the end.

4. That he may be upon his guard against that sort of rhetorical artifice which operates by substituting for the proper name of the object or result in question, according to the purpose in view, the name of some other object or result, the name of which is either more or less popular than the proper one.

5. That while in pursuit of any one of these objects, in the character of an end, he employs such means as to his conception appear conducive to that end, he may be correctly and completely aware of any tendency which such arrangements may have to be conducive or obstructive, with reference to any other of these same ends.

[RP, Book I, Chapter II]