The Rationale of Punishment

Book III

Of Privative Punishments, or Forfeitures

Chapter II


Punishments of this class admit of no distinctions: and this, however paradoxical it may seem, from no other reason than their extreme variety. The way in which a man suffers who is punished by the moral sanction is, by losing a part of that share which he would otherwise possess of the esteem or love of such members of the community as the several incidents of his life may lead him to have to do with. Now it is either from the esteem they entertain for him, or the love they bear him, or both, that their good-will towards him, in a great measure, depends: moreover, the way in which this good-will displays itself, is by disposing the person who entertains such affection, to render good offices, and to forbear doing ill offices (or in other words, to render inexigible services) to the party towards whom it is entertained; the way in which the opposite affection, ill-will, displays itself, is accordingly by disposing the former to forbear doing good offices, and if it has risen to a certain degree, by disposing him to render ill offices, as far as may be consistent with his own safety, to the latter.

Now then, from the good offices of one man to another, may all sorts of possessions, and through them, or even more immediately all sorts of pleasures, be derived. On the other hand, from the withholding of the good offices one man might have expected from another, may all sorts of pains, and death itself, be also derived; much more may they from positive ill-offices added to those other negative ones. And what are the good offices which you may be disposed to withhold from me, or the ill offices you may be disposed to do me, from my having become the object of your ill-will? It is plain not one or other particular species of good or ill office, but any species whatever, just as occasion serves, that shall be proportionate to the strength of your ill-will and consistent with your own safety. This consideration will make our work short under the head which respects the several modes or species of punishment subordinate to the mode in question.

The same consideration will make it equally short under the second head, relative to the evils producible by the mode or modes of punishment in question. These, it must have been already seen, may be all sorts of evils: all the different sorts of evils which are producible by any of the punishments belonging to the political sanction; by any punishments properly so called: in a word, all the different sorts of evils to which human nature is liable.

But though the punishments belonging to the moral sanction admit not of any varieties that are separable from one another, there are two distinct parcels, as it were, into which the evils produced by any lot of punishment issuing from this source, on the occasion of any offense, may be divided. One (which, as being the basis of the other, may be mentioned first, though the last in point of time) consists of the several contingent evils that may happen to the offender in consequence of the ill-will he has incurred; the other consists of the immediate pain or anxiety, the painful sense of shame, which is grounded on the confused apprehension of the unliquidated assemblage of evils above-mentioned. It is this last which is referable in a peculiar manner to the moral sanction, and which cannot be produced by the political, any otherwise than as far as those who have the management of that sanction can gain an influence over the moral: it may therefore, for distinction sake, be styled the characteristic evil of the moral sanction. This must obtain, in a greater or less degree, upon every instance of detected delinquency, unless in those callous and brutish natures, if any such there be, in whom all sense of disgrace, and all foresight of the consequences, is utterly extinguished. The others above spoken of may be styled the casual evils.

These casual evils, (as we have already intimated) owing to their extreme uncertainty, admit not of any determinate variations in point of quality; in point of quantity, however, they do admit of some distinctions resulting from, 1st, their Intensity; 2dly, their Extent. This distinction ought not to be overlooked, since we shall have occasion to make frequent application of it to practice.

These two lots of evils, howsoever distinguishable, intermix with and aggravate one another. I have done an immoral act: I am discovered: I perceive as much. Now then, before I happen to have Occasion to avail myself of the good offices of such of my acquaintance as come to know of it, before I happen to be in a way to suffer from the denial of those good offices, in a word, before I have experienced any of the casual evils annexed by the moral sanction to my delinquency, I already foresee more or less clearly, and apprehend more or less strongly the loss of those good offices and of that good will I feel the painful sense of shame, the pain of ignominy; I experience, in a word, the characteristic evil of the moral sanction as the punishment of my misbehaviour. This sense of shame stamps the marks of guilt upon my deportment. This being the case, either out of despair I avoid my acquaintance, or else I put myself in their way. If I avoid them, I by that means already deprive myself of their good offices: if I put myself in their way, the guilt which is legible in my countenance, advertises and increases their aversion: they either give an express denial to my request, or what is more common, anticipate it by the coldness of their behaviour. This reception gives fresh keenness to the sting of shame, or (in the systematical language I have ventured to make use of,) the experiment I have made of the casual evils adds force to the characteristic evils of this sanction.

We have already intimated the distinction between positive and negative ill offices; to the former, and even in a few instances to the latter, it is the duty, and a great part of the business, of the political magistrate to set limits. These limits, however, may come accidentally to be transgressed, as there are scarce any laws that can be made but what may come accidentally to be disobeyed. On this account, the evils that may result from this source remain still undeterminate and unlimited. But were the laws that might be made in this behalf ever so certain in their operation, those evils should still remain indeterminate and unlimited, notwithstanding. For so uncertain and unforeseeable may be the connection between the refusal of a good office, and the miseries which in particular circumstances may be the consequences of such a refusal, that no law could make a secure provision against those miseries in every case, without such a subversion of all liberty and all property as would produce much greater miseries. Your giving me a shilling to buy me food, or taking me twenty miles to a physician, may on a critical occasion save me from an excruciating disease; but no law, without leaving it to the determination of the person in want, can with sufficient certainty describe such occasions; nor can any law, without depriving you of all liberty and all property, oblige you to give money to, or take a journey for every man who shall determine himself to be in want of such assistance.

Howsoever this be with regard to negative ill offices, positive ill offices not only may be limited, but in most cases may be and commonly are forbidden. In no settled state of government is private displeasure permitted to rise so high as to vent itself indiscriminately in any of those direct ways of inflicting pain which the political magistrate himself may have thought it expedient to recur to. However flagrantly immoral may have been the conduct of a delinquent, persons at large are never permitted, of their own authority, to punish him by beating or maiming, or putting him to death Positive ill offices may be divided into such as display themselves in actions at large, and such as display themselves in discourse. Now, it is to speech that the latitude which is still left to the right of rendering positive ill offices in a direct way, is principally confined: and even this right is commonly subject to a number of limitations. But ill offices which are confined to speech are not, if they stop there, productive of any evil.When they are, it is ultimately by disposing other persons to entertain a displeasure against the same person, and manifest it by actions of another kind. If then such positive ill offices as display themselves in actions at large be excluded, all that remains is resolvable ultimately into negative ill offices. And of these, those which a delinquent has in ordinary cases to apprehend amount only to such as are not illegal.

Nor is even this a contemptible and inconsiderable source of suffering. Dependent as men in a state of society are upon one another, the punishment derived from the source in question, even when narrowed by all these restrictions, may, and, indeed, frequently does rise to a tremendous height. It admits of no evasion: it comes upon a man from all quarters: he can see no end to its duration, nor limits to its elects. It is not unusual for it to bereave him of the chief pleasures and sources of profit he has set his heart upon: it may deprive him of all those profits and enjoyments he had been accustomed to expect at the hands of his friend or his patron: by setting his common acquaintance at a distance from him, it may fill the detail of his life with a perpetual train of disappointments and rebuffs. It leaves him joyless and forlorn: and, by drying up the source of every felicity it embitters the whole current of his life.

Were we indeed to enquire minutely into the distinction between the nature of the political and moral sanctions, it would come out that, of the evils which when considered as issuing from the moral sanction I have stiled casual evils, some are even more likely to be brought upon a man by the action of one of these sanctions, and some others by that of the other. But as to the species of evil, this is all the distinction we shall be able to make out; for there is not any evil which the exertion of one of these forces may bring upon a man, but which may also be brought upon him by the action of the other.

The most studied and artificial torments, for instance, that can be invented by a political magistrate, and the most unlikely for a man to be to exposed to suffer by the unassisted powers of nature, or even from the unauthorised resentment of an individual, are what he may by accident be exposed to from the latter source. It may be for want of some evidence that an individual might furnish, and from ill-will forbears to furnish, that, I may have been doomed to these torments by a Judge; or if the like torments be supposed to be inflicted by the unauthorized violence of an enemy, they may be attributed in the first place indeed to the vengeance of that enemy; but in the second place, to the dis-esteem and ill-will borne me by some stranger, who having it in his power to rescue me, yet exasperated against me on account of some real or supposed instance of immorality in my behaviour, chose rather to see me suffer than to be at the pains of affording me his assistance.

On the other hand, the whole sum of the evils depending upon the moral sanction, to wit, not only the casual evils, but the sense of infamy which constitutes the characteristic evil, is liable in many instances to be brought upon a man by the doom of the political magistrate. This is what we have found it unavoidably necessary, on various occasions, to give intimation of, and what we shall have need more particularly to enlarge upon hereafter.

3. It is in the manner, then, in which the evils that come alike under the department of each of the two sanctions come to be inflicted, that the only characteristic difference discernible between these two sanctions are to be seen. With regard to punishment issuing from the political sanction, the species; the degree, the time, the place, the person who is to apply it, are all assignable. With regard to that which may issue from the moral sanction, none of these particulars are assignable.

When I say assignable, I must be understood to speak with reference to some particular time Coincident with or subsequent to that of the commission of the offence. At that very time, then, with respect to political punishment, that is, with respect to personal punishments and forfeitures, many of those particulars, and sometimes all of them, are assignable, and may be foreseen. At the time the offence, theft suppose, is committing, it may be foreseen that a number of stripes given with such an instrument, not more than so many nor fewer than so many, will be inflicted (in case of detection) so many days or weeks hence, at such a place and by the hands of such an executioner: and vice versâ, when they come to be inflicted, the punishment will be seen to be the consequence of such an offence. Now when the organical pain produced by the punishment thus inflicted is over, all the punishment for that offence, as far as depends upon the political sanction, is commonly over and at an end. But as to the ill offices, as well negative as positive, which constitute the substance and groundwork of the moral sanction, no man can tell what they will be, what particular evils they will subject a man to, when they will commence, or when they will end, where they will display themselves, nor who will render them. Nor vice versâ, when they have actually been rendered, when such or such a neighbour has shut his door against me, and I am pining with hunger or shivering with cold, can I always know for certain that the immorality I was guilty of at such or such a time was the occasion of his unkindness. In a word, determinateness is the perfection of the punishments belonging to the political sanction: indeterminateness is the very essence of those issuing from the moral.

A word or two may be of use in this place with respect to the nomenclature employed in speaking of the punishments belonging to this sanction. The expressions made use of on this occasion are singularly various: a whole legion of fictitious entities are created for the purpose of representing the one fundamental idea in question, under the different aspects of which it is susceptible. The names of these fictitious entities are many of them disparate; they require different sets of words to enable them to make a meaning: and the coincidence lies not between the import of these names when separately taken, but between certain sentences or propositions, in which they may respectively be made to bear a part. Among these words may be reckoned reputation, honour, character, good name, dishonour, shame, infamy, ignominy, disgrace, aversion, and contempt. In speaking then of a man as suffering under a punishment of the moral sanction, it may be more or less convenient, according to the occasion, to use amongst others any of the following expressions, We may say that he has forfeited his reputation, his honour, his character, his good name; that his fame has been tarnished; that his honour, his character, or his reputation has received a stain; that he stands disgraced; that he has become infamous; that he has sunk under a load of infamy, ignominy, or disgrace; that he has fallen into disgrace, into dis-esteem, into disrepute; that he has incurred the ill-will, the aversion, the contempt of the neighbourhood, of the public; that he is become an object of aversion or contempt. It were the task rather of the lexicographer than the jurist to exhaust the catalogue of these expressions. Those which have been already exhibited may be sufficient to advertise the reader of the similarity there may be in point of sense between a variety of other expressions of like import, however dissimilar they may be in sound.

Hitherto we have considered the punishment belonging to the moral sanction in no other point of view than that in which it appears when standing singly, uncombined with and uninfluenced by the political. In this state the direction given to it, and the force with which it acts, are determined altogether by the persons to whom it belongs ultimately to dispense it, unassisted and uncontrolled by the political magistrate. In this state it acted before the formation of political society, before the creation of that artificial body of which the political magistrate is the head. In this state, by its connection with the various modes of conduct which happened to be employed to prohibit or to recommend, it gave birth to that fictitious set of rules which are what some moralists have sometimes at least in view, when they speak of the law of nature. In this state it was an engine, to the power of which the political magistrate was a witness, before the construction of that which is of his own immediate workmanship. It then was, it still is, and it ever must be, an engine of great power in whatever direction it be applied; whether it be applied to counteract or to promote his measures. No wonder then he should have sought by various contrivances to press it into his service. When thus fitted up and set to work by the political magistrate, it becomes a part of the vast system of machinery to which we have given the name of the political sanction. And now then we are in a condition to discuss the nature of that genus of political punishment which, in systems of jurisprudence, is commonly spoken of under the name of infamy, or forfeiture of reputation.

[RP, Book III, Chapter I] [RP, Book III, Chapter II, §2]