The Rationale of Punishment

Book III

Of Privative Punishments, Or Forfeitures

Chapter II

Of Punishments Belonging to the Moral Sanction

Section II


We will now proceed to examine the punishments belonging to the moral sanction itself, independently of any employment of it by the magistrate to aggravate or guide the effect of his designs.

Punishments of this class, as has been already said, admit of no distinctions; they comprise all sorts of evils: the ill-will produced manifests itself in a variety of modes, that can neither be calculated or foreseen. They admit then of no precise description; for it is only when the effects are: determinate that a punishment admits of a description. Will they be analogous to the offense, or unfrugal, or excessive? upon these points nothing can be said.

Our observations will be comprised under three heads---their divisibility, equability, and exemplarity.

1. These punishments admit of minute division: they have all the degrees possible from mere blame to infamy, from a temporary suspension of good-will, to active and permanent ill-will: but these several degrees depend altogether upon accidental circumstances, and are incapable of being estimated by anticipation. Punishments of the pecuniary or chronical class, as, for example, imprisonment, are susceptible of being exactly measured: punishments that depend on the moral sanction, not. Before they are experienced, the value put upon them is necessarily extremely inaccurate. In respect of intensity they are liable to be inferior to the greater part of those belonging to the political sanction; they consist more in privations of pleasure than in positive evils. This it is that constitutes their principal imperfectionand it is solely for supplying this imperfection that penal laws were established.

One of the circumstances by which their effect is weakened, is the locality of their operation. Do you find yourself exposed to the contempt of the people with whom you are in the habit of associating? to exempt yourself from it, all that you have to do is to change your abode. The punishment is reduced to the giving a man the option to remain exposed to the inconveniences resulting from this contempt, or to inflict on himself the punishment of banishment, which may not be perpetual. He does not abandon the hope of returning, when by lapse of time the memory of his transgressions shall be effaced, and the public resentment appeased.

2. In respect of equability these punishments are really more defective than at first sight they might appear. In every condition in life each man has his own circle of friends and acquaintance. To become an object of contempt or aversion to this society is a misfortune as great to one man as to another; this is the result that may at first view present itself to the mind, and which, to a certain extent, is really correct; it will, however, upon a more narrow scrutiny of the matter, be found, that in point of intensity this class of punishment is subject to extreme variation, depending as it does upon the condition in life, wealth, education, age, sex, and other circumstances; the casual evils resulting from the punishments belonging to this sanction are infinitely variable: shame depends upon sensibility.

Women, especially among civilized nations, are more alive to, and susceptible of, the impression of shame than men. From their earliest infancy, and even before they are capable of understanding the object of it, one of the most important branches of their education is, to instil into them principles of modesty and reserve; and they are not long in discovering that this guardian of their virtue is at the same time the source of their power. They are, moreover, physically weaker, and more dependent than men, and stand more in need of protection; it is more difficult for them to change their society, and to remove from the place of their abode.

At a very early age, generally speaking, sensibility to the moral sanction is not remarkably acute: in old age it becomes still more obtuse. Avarice, the only passion that is fortified by age, subdues all sense of shame.

A weak state of health, morbid irritability, any bodily defect, any natural or accidental infirmity, are circumstances that aggravate the suffering from shame as from every other calamity.

Wealth, considered of itself, independently of rank and education, has a tendency to blunt the force of these impressions. A rich man has it in his power to change his residence, to procure fresh connections and acquaintance, and by the help of money to purchase pleasures for which other people are dependent upon goodwill. There exists a disposition to respect opulence on its own account, to bestow on the possessor of it gratuitous services, and, above all, external professions of politeness and respect.

Rank is a circumstance that augments the sensibility to all impressions that affect the honour: but the rules of honour and morality are not always calculated upon the same scale: the higher ranks are, however, in general more alive to the influence of opinion than the inferior classes.

Profession and habitual occupation materially affect the punishments proceeding from this source. In some classes of society, the point of honour is at the very highest pitch, and any circumstance by which it is affected produces a more acute impression than any other species of shame. Courage, among military men, is an indispensable qualification: the slightest suspicion of cowardice exposes them to perpetual insults: thence, upon this point, that delicacy of feeling among men who, upon other points, are in a remarkable degree regardless of the influence of the moral sanction.

The middle ranks of society are the most virtuous, it is among them that in the greatest number of points the principles of honour coincide with the principles of utility: it is in this class also that the inconveniences arising from the forfeiture of esteem are most sensibly felt, and that the evil consequences arising from the loss of reputation produce the most serious ill consequences.

Among the poorer classes, among men who live by their daily labour, sensibility to honour is in general less acute. A day labourer, if he is industrious, though his character is not unspotted, will be at no loss for work. His companions are companions of labour, not of pleasure: from their gratuitous services he has little to expect and as little to ask. His wants are confined to the mere necessaries of life. His wife and his children owe him obedience, and dare not withhold it. The pleasures which arise from the exercise of domestic authority fill up the short intervals of labour.

3. The greatest imperfection attending punishments arising from the moral sanction, is their want of exemplarity. Their effect, in this respect, is less than that of any of the punishments of the political sanction. When a man is exposed to suffering from loss of reputation, it may be unknown to all the world, or at least the knowledge may be confined to those who are the instruments of his punishment, and to the immediate circle of his friends and acquaintance. But these are witnesses only of a small part of his sufferings. They perceive that he is treated with indifference or disdain---they observe that he does not find protection or confidence; but all these observations are transitory. The individual, wounded by these signs of coldness or aversion, shuns the company of the authors or the witnesses of his shame; he retires to solitude, where he suffers in secret, and the more unhappy he is, the smaller is the number of the spectators of his punishment.

Punishments, connected with the moral sanction, are advantageous with reference to reformation. When a man suffers in consequence of a violation of the established rules of morality, he can only refer the evil he experiences to its true cause; the more sensible he is to shame, the more he will fear to increase it: he will become either more prudent that he may avoid detection, or more careful to save appearances, or he will in future submit to those laws which he has been unable to break without suffering. Public opinion, with the exception of a few cases, is not implacable. There is among men a reciprocal need of indulgence, and a levity and ease in forgetting instead of forgiving faults, when the remembrance of them is not renewed by fresh failures.

On the other hand, with respect to dishonourable actions for which there is neither appeal or pardon, the punishment of infamy acts as a discouragement, and not as a motive to reformation. Nemo dignitate perditæ parcit.

These disadvantages are in measure compensated, and this sanction receives a degree of force which is often wanting in the political sanction, from the certainty of its action. There is no offending against it with impunity---an offence against one of the laws of honour, arouses all its guardians. The political tribunals are subjected to a regular process, they cannot pronounce a decision without proof, and proofs are often defective. The tribunal of public opinion possesses more liberty and more power; it is liable to be unjust in its decisions, but they are never delayed on that account; they can be reversed at pleasure. Trial and execution proceed with equal steps, Without delay or necessity for pursuit. There are everywhere persons ready to judge and to execute the judgment. This tribunal always inclines to the side of severity; its Judges are interested by their vanity and their love of display in making its decisions severe; the more severe they appear, the more they flatter themselves with the possession of the good esteem of others. They seem to think that the spoliation of one character forms the riches of another. Thus, although the punishments of the moral sanction are indeterminate, and, for the most part, when estimated separately, of little weight, yet by the certainty of their operation, their frequent recurrence, and their accumulation, from the number of those who have authority to inflict them, they possess a degree of force which cannot be despised by any individual, whatever may be his character, his condition, or his power.

The power exercised by the moral sanction varies according to the degree of civilization.

In civilized society there are many sources of enjoyment, and consequently many wants, which can be supplied only from considerations of reciprocal esteem; he who loses his reputation is consequently exposed to extended suffering in all these points.

The exercise of this sanction is also favoured or restrained by different circumstances. Under a popular Government it is carried to the highest degree, under a despotic Government it is reduced almost to nothing.

Easy communications, and the ready circulation of intelligence, by means of newspapers, augments the extent of this tribunal, and increases the submission of individuals to the empire of opinion.

The more unanimous the decisions of the moral sanction the greater their force. Are its decisions different among a great number of different sects or parties, whether religious or political, they will contradict each other. Virtue and vice will not use the same common measure. Places of refuge will be found for those who have disgraced themselves, and the deserter from one sect or party will be enrolled in another.

[RP, Book III, Chapter II] [RP, Book III, Chapter III]