The Rationale of Punishment

Book I

General Principles

Chapter X


To prove that an institution is agreeable to the principle of utility, is to prove, as far as can be proved, that the people ought to like it: but whether they will like it or no after all, is another question. They would like it if, in their judgments, they suffered themselves to be uniformly and exclusively governed by that principle. By this principle they do govern themselves in proportion as they are humanised and enlightened; accordingly, the deference they pay to its dictates is more uniform in this intelligent and favoured country than perhaps in any other. I speak here, taking the great mass of the people upon this occasion, as they ought to be taken upon every occasion, into the account; and not confining my views, as is too commonly the case, to men of rank and education.

Even in this country, however, their acquiescence is far from being as yet altogether uniform and undeviating: in some instances their judgments are still warped by antipathies or prejudices unconnected with the principle of utility, and therefore irreconcileable to reason. They are apt to bear antipathy to certain offences without regard to even their imputed mischievousness, and to entertain a prejudice against certain punishments without regard to their eligibility with respect to the ends of punishment.

The variety of capricious objections to which each particular mode of punishment is exposed, has no other limits than the fecundity of the imagination: with some slight exceptions, they may however be ranged under one or other of the following heads:—LibertyDecencyReligionHumanity. What I mean by a capricious objection, is an objection which derives the whole of its apparent value from the impression that is apt to be made by the use of those hallowed expressions: the caprice consists in employing them in a perverted sense.

1. Liberty.—Under this head there is little to be said. All punishment is an infringement on liberty: no one submits to it but from compulsion. Enthusiasts, however, are not wanting, who, without regarding this circumstance, condemn certain modes of punishment, as, for example, imprisonment accompanied with penal labour, as a violation of the natural rights of man. In a free country like this, say they, it ought not to be tolerated, that even malefactors should be reduced to a state of slavery. The precedent is dangerous and pernicious. None but men groaning under a despotic government can endure the sight of galley-slaves.

When the establishment of the penitentiary system was proposed, this objection was echoed and insisted on, in a variety of publications that appeared on that occasion. Examine this senseless clamour, it will resolve itself into a declaration that liberty ought to be left to those that abuse it, and that the liberty of malefactors is an essential part of the liberty of honest men.

2. Decency.—-Objections drawn from the topics of decency are confined to those punishments, of which the effect is to render those parts which it is inconsistent with decency to expose, the objects of sight or of conversation.

Who can doubt, that in all punishments, care should be taken that no offence be given to modesty. But modesty, like other virtues, is valuable only in proportion to its utility. When the punishment is the most appropriate, though not either in its description or its execution altogether reconcileable with modesty, this circumstance ought not, as it appears to me, to stand in the way of the attainment of any object of greater utility. Castration, for example, seems the most appropriate punishment in the case of rape, that is to say, the best adapted to produce a strong impression on the mind at the moment of temptation. Is it expedient, then, on account of such scruples of modesty, that another punishment, as, for example, death, should be employed, which is less exemplary, and, consequently, less efficacious? [*]

3. Religion.—Among Christians there are some sects who conceive that the punishment of death is unlawful: life, say they, is the gift of God, and man is forbidden to take it away.

We shall find in the next book, that very cogent reasons are not wanting for altogether abolishing capital punishment, or, at most, for confining it to extraordinary cases. But this presence of unlawfulness is a reason drawn from false principles.

Unlawful, means contrary to some law. Those, who, upon the occasion in question, apply this expression to the punishment of death, believe themselves, or endeavour to make others believe, that it is contrary to some Divine law: this Divine law is either revealed or unrevealed; if it be revealed, it must be to be found in the text of those books which are understood to contain the expressions of God's will; but as there exists no such text in the New Testament, and as the Jewish law expressly ordains capital punishment, the partizans of this opinion must have recourse to some Divine law not revealed—to a natural law—that is to say, to a law deduced from the supposed will of God.

But if we presume that God wills anything, we must suppose that he has a reason for so doing, a reason worthy of himself, which can only be the greatest happiness of his creatures. In this point of view, therefore, the Divine will cannot require anything inconsistent with general utility.

If it be pretended that God can have any will not consistent with utility, his will becomes a fantastic and delusive principle, in which the ravings of enthusiasm, and the extravagancies of superstition, will find sanction and authority.

In many cases, religion has been to such a degree perverted as to become a bar to the execution of penal laws: as in the case of sanctuaries opened for criminals, in the Romish churches.

Theodosius I. forbade all criminal proceedings during Lent, alleging, as a reason, that the judges ought not to punish the crimes of others whilst they were imploring the Divine forgiveness far their own transgressions. Valentinian I. directed that at Easter all prisoners should be discharged, except those that were accused of the most malignant offences.

Constantine prohibited, by law, the branding criminals on the face, alleging, that it is a violation of the law of nature to disfigure the majesty of the human face—the majesty of the face of a scoundrel!

The Inquisition, says Bayle, that it might not violate the maxim, Ecclesia non novit sanguinem, condemned its victims to be burnt alive. Religion has had its quibbles as well as the law.

4. Humanity.—Attend not to the sophistries of reason, which often deceive, but be governed by your hearts, which will always lead you to right. I reject, without hesitation, the punishment you propose, it violates natural feelings, it harrows up the susceptible mind, it is tyrannical and cruel. Such is the language of your sentimental orators.

But abolish any one penal law merely because it is repugnant to the feelings of a humane heart, and, if consistent, you abolish the whole penal code, there is not one of its provisions that does not, in a more or less painful degree, wound the sensibility.

All punishment is in itself necessarily odious; if it were not dreaded, it would not effect its purpose; it can never be contemplated with approbation, but when considered in connection with the prevention of the crime against which it is denounced.

I reject sentiment as an absolute Judge, but under the control of reason it may not be a useless monitor. When a penal dispensation is revolting to the public feeling, this is not of itself a sufficient reason for rejecting it, but it is a reason for subjecting it to a rigorous scrutiny. If it deserves the antipathy it excites, the causes of that antipathy may be easily detected. We shall find that the punishment in question is mis-seated or superfluous, or disproportionate to the offence, or that it has a tendency to produce more mischief than it prevents. By this means we arrive at the seat of the error. Sentiment excites to reflection, and reflection detects the impropriety of the law.

The species of punishment that command the largest share of public approbation are such as are analogous to the offence. Punishments of this description are commonly considered just and equitable; but what is the foundation of this justice and equity I know not. The delinquent suffers the same evil he has caused. Ought the law to imitate the example it condemns? Ought the Judge to imitate the malefactor in his wickedness? Ought a solemn act of justice to be the same in kind as an act of criminality?

This circumstance satisfies the multitude; the mouth of the criminal is stopped, and he cannot accuse the law of severity, without at the same time being equally self-condemned.

Fortunately, the same bent of the imagination that renders this mode of punishment popular, renders it at the same time appropriate. The analogy that presents itself to the people, presents itself, at the moment of temptation, to the delinquent, and renders it a peculiar object of dread.

It is of importance to detect and expose erroneous conceptions, even when they happen to accord with the principle of utility. The coincidence is a mere accident; end whoever on anyone occasion forms his judgment, without reference to this principle, prepares himself upon any other to decide in contradiction to it. There will be no safe and steady guide for the understanding in its progress till men shall have learnt to trust to this principle alone, to the exclusion of all others. When the judgment is to decide, the use of laudatory or vituperative expressions, is the mere babbling of children. They ought to be avoided in all philosophical disquisitions, where the object ought to be to instruct and convince the understanding, and not to inflame the passions.

[RP, Book I, Chapter XI]