§7. When we pass to consider the case of Criminal Justice, we find, in the first place, difficulties corresponding to those which we have already noticed. We find, to begin, a similar implication and partial confusion of the ideas of Law and Justice. For, as was said, by `bringing a man to Justice' we commonly mean `inflicting legal punishment' on him : and we think it right that neither more nor less than the penalty prescribed by law should be executed, even though we may regard the legal scale of punishment as unjust. At the same time, we have no such perplexity in respect of changes in the law as occurs in the case of Civil Justice; for we do not think that a man can acquire, by custom, prescriptive rights to over-lenient punishment, as he is thought to do to an unequal distribution of liberties and privileges. If now we investigate the ideal of Criminal Justice, as intuitively determined, we certainly find that in so far as punishment is not regarded as merely preventive, it is commonly thought that it ought to be proportioned to the gravity of crime. Still, when we endeavour to make the method of apportionment perfectly rational and precise, the difficulties seem at least as great as in the case of Good Desert. For, first, the assumption of Free Will seems necessarily to come in here also; since if a man's bad deeds are entirely caused by nature and circumstances, it certainly appears, as Robert Owen urged, that he does not properly deserve to be punished for them; Justice would rather seem to require us to try to alter the conditions under which he acts. And we actually do punish deliberate offences more than impulsive, perhaps as implying a more free choice of evil. Again, we think that offences committed by persons who have bad no moral training, or a perverted training, are really less criminal; at the same time it is commonly agreed that men can hardly remit punishment on this account. Again the gravity---from a moral point of view---of a crime seems to be at least much reduced, if the motive be laudable, as when a man kills a villain whose crimes elude legal punishment, or heads a hopeless rebellion for the good of his country: still it would be paradoxical to affirm that we ought to reduce punishment proportionally: Common Sense would hold that---whatever God may do---men must, generally speaking, inflict severe punishment for any gravely mischievous act forbidden by law which has been intentionally done, even though it may have been prompted by a good motive.
But even if we neglect the motive, and take the intention only into account, it is not easy to state clear principles for determining the gravity of crimes. For sometimes, as in the case of the patriotic rebel, the intention of the criminal is to do what is right and good: and in many cases, though he knows that he is doing wrong, he does not intend to cause any actual harm to any sentient being; as when a thief takes what be thinks will not be missed. Again, we do not commonly think that a crime is rendered less grave by being kept perfectly secret; and yet a great part of the harm done by a crime is the `secondary evil' (as Bentham calls it) of the alarm and insecurity which it causes; and this part is cut off by complete secrecy. It may be replied that this latter difficulty is not a practical one; because we are not called upon to punish a crime until it has been discovered, and then the secondary evil has been caused, and is all the greater because of the previous secrecy. But it remains true that it was not designed for discovery; and therefore that this part of the evil caused by the crime was not intended by the criminal. And if we say that the heinousness of the crime depends on the loss of happiness that would generally be caused by such acts if they were allowed to go unpunished, and that we must suppose the criminal to be aware of this; we seem to be endeavouring to force a utilitarian theory into an intuitional form by means of a legal fiction.
We have hitherto spoken of intentional wrong-doing: but positive law awards punishment also for harm that is due to rashness or negligence; and the justification of this involves us in further difficulties. Some jurists seem to regard rashness and negligence as positive states of mind, in which the agent consciously refuses the attention or reflection which he knows he ought to give; and no doubt this sort of wilful recklessness does sometimes occur, and seems as properly punishable as if the resulting harm had been positively intended. But the law as actually administered does not require evidence that this was the agent's state of mind (which indeed in most cases it would be impossible to give): but is content with proof that the harm might have been prevented by such care as an average man would have shown under the circumstances. And most commonly by `carelessness' we simply mean a purely negative psychological fact, i.e. that the agent did not perform certain processes of observation or reflection; it is therefore at the time strictly involuntary, and so scarcely seems to involve ill-desert. It may be said perhaps that though the present carelessness is not blameworthy, the past neglect to cultivate habits of care is so. But in many individual instances we cannot reasonably infer even this past neglect; and in such cases the utilitarian theory of punishment, which regards it as a means of preventing similar harmful acts in the future, seems alone applicable. Similar difficulties arise, as was before hinted (p. 282), in determining the limits within which Reparation is due; that is, on the view that it is not incumbent on us to make compensation for all harm caused by our muscular actions, but only for harm which-if not intentional-was due to our rashness or negligence.
The results of this examination of Justice may be summed up as follows. The prominent element in Justice as ordinarily conceived is a kind of Equality: that is, Impartiality in the observance or enforcement of certain general rules allotting good or evil to individuals. But when we have clearly distinguished this element, we see that the definition of the virtue required for practical guidance is left obviously incomplete. Inquiring further for the right general principles of distribution, we find that our common notion of Justice includes---besides the principle of Reparation for injury---two quite distinct and divergent elements. The one, which we may call Conservative Justice, is realised (1) in the observance of Law and Contracts and definite understandings, and in the enforcement of such penalties for the violation of these as have been legally determined and announced; and (2) in the fulfilment of natural and normal expectations. This latter obligation, however, is of a somewhat indefinite kind. But the other element, which we have called Ideal Justice, is still more difficult to define; for there seem to be two quite distinct conceptions of it, embodied respectively in what we have called the Individualistic and the Socialistic Ideals of a political community. The first of these takes the realisation of Freedom as the ultimate end and standard of right social relations: but on examining it closer we find that the notion of Freedom will not give a practicable basis for social construction without certain arbitrary definitions and limitations: and even if we admit these, still a society in which Freedom is realised as far as is feasible does not completely suit our sense of Justice. Prima facie, this is more satisfied by the Socialistic Ideal of Distribution, founded on the principle of requiting Desert: but when we try to make this principle precise, we find ourselves again involved in grave difficulties; and similar perplexities beset the working out of rules of Criminal Justice on the same principle.