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cases where punishment is desirable for the good of society,
it is advisable to cultivate any feelings which will lead people
to exert themselves to bring that punishment about.

9—2



132 PUNISHMENT

140. We have now seen what the ordinary view of punish-
ment is. My object is to consider what relation to this view
is held by Hegel's theory of punishment, as expressed in his
Philosophy of Law. It has often been said that he supports
vindictive punishment. And, at first sight, it looks as if he
did. For he expressly says that it is superficial to regard
punishment as protective to society, or as deterring or im-
proving the criminal. Now in so far as it is not protective
or deterring, we must give up the theories which we have
called the preventive and the deterrent. In so far as it is
not improving, we must give up the reformatory theory,
Hegel does not deny that punishment may deter, prevent,
or improve, and he does not deny that this will be an
additional advantage. But he says that none of these are
the chief object of punishment, and none of these express
its real nature. It would seem, therefore, that he must intend
to advocate vindictive punishment. And this is confirmed by
the fact that he expressly says the object of punishment is not
to do "this or that" good.

Nevertheless, I believe that Hegel had not the shghtest
intention of advocating what we have called vindictive punish-
ment. For he says, beyond the possibility of doubt, that in
punishment the criminal is to be treated as a moral being —
that is, one who is potentially moral, however immoral he may
be in fact, and one in whom this potential morality must be
called into actual existence. He complains that by the de-
terrent theory we treat a man like a dog to whom his master
shows a whip, and not as a free being. He says that the
criminal has a right to be punished, which indicates that the
punishment is in a sense for his sake. And, still more
emphatically, "in punishment the offender is honoured as a
rational being, since the punishment is looked on as his
right 1."

Now this is incompatible with the view that Hegel is here

approving of vindictive punishment. For he says that a man

is only to be punished because he is a moral being, and that

it would be an injury to him not to punish him. The

^ Philosophy of Law, Sections 99 and 100.



PUNISHMENT 133

vindictive theory knows nothing of all this. It inflicts pain
on a man, not for his ultimate good, but because, as it says,
he has deserved to suffer pain. And, on Hegel's theory,
punishment depends on the recognition of the criminal's
rational and moral nature, so that, in his phrase, it is an
honour as well as a disgrace. Nothing of the sort exists
for vindictive punishment. It does not care whether the
sinner can or will be good in the future. It punishes him
because he has done wrong in the past. If we look at the
doctrine of hell — which is a pure case of vindictive punish-
ment — we see that it is possible to conceive punishment of
this sort when the element of a potential moral character has
entirely disappeared, for I suppose that the supporters of this
doctrine would deny the possibility of repentance in hell, since
they deny the possibihty of pardon,

141. What, then, is Hegel's theory? It is, I think, briefly
this. In sin, man rejects and defies the moral law. Punish-
ment is pain inflicted on him because he has done this, and
in order that he may, by the fact of his punishment, be forced
into recognizing as valid the law which he rejected in sinning,
and so repent of his sin — really repent, and not merely be
frightened out of doing it again.

Thus the object of punishment is that the criminal should
repent of his crime and by so doing realise the moral character,
which has been temporarily obscured by his wrong action, but
which is, as Hegel asserts, really his truest and deepest nature.
At first sight this looks very much like the reformatory theory
of punishment which Hegel has rejected. But there is a great
deal of difference between them. The reformatory theory says
that we ought to reform our criminals while we are punishing
them. Hegel says that punishment, as such, tends to reform
them. The reformatory theory wishes to pain criminals as
little as possible, and to improve them as much as possible.
Hegel's theory says that it is the pain which will improve
them, and therefore, although it looks on pain in itself as an
evil, is by no means anxious to spare it.

When Hegel says, then, as we saw above, that the object
of punishment is not to effect "this or that" good, we must not,



134 PUNISHMENT

I think, take him to mean that we do not look for a good result
from punishment. We must rather interpret him to mean
that it is not in consequence of some accidental good result
that punishment is to be defended, but that, for the criminal,
punishment is inherently good. The use of "this or that" to
express an accidental or contingent good seems in accordance
with Hegel's usual terminology. And we must also remember
that Hegel, who hated many things, hated nothing more bitterly
than sentimental humanitarianism, and that he was in con-
sequence more inchned to emphasise his divergence from a
reformatory theory of punishment than his agreement with it.

We have thus reached a theory quite different from any of
the four which we started this chapter by considering. It is
not impossible that the world has been acting on the Hegehan
view for many ages, but as an exphcit theory it has found little
support. We all recognize that a man can be frightened into
or out of a course of action by punishment. We all recognize
that a man can sometimes be reformed by influences applied
while he is being punished. But can he ever be reformed
simply by punishment ? Repentance and reform involve either
that he should see that something was wrong which before he
thought was right, or else that the intensity of his moral feelings
should be so strengthened that he is enabled to resist a tempta-
tion, to which before he yielded. And w^hy should punishment
help him to do either of these things ?

142. There are certain people who look on all punishment
as essentially degrading. They do not, in their saner moods,
deny that there may be cases in which it is necessary.
But they think that, if any one requires punishment, he
proves himself to be uninfluenced by moral motives, and
only to be governed by fear. (It is curious, by the way, that
this school generally accepts the idea that government by
rewards is legitimate. It does not appear why it is less
degrading to be bribed into virtue than to be frightened away
from vice.) They look on all punishment as implying deep
degradation in some one, — if it is justified, the ofiender must be
Uttle better than a brute; if it is not justified, the brutahty is
in the person who inflicts it.



PUNISHMENT 135

This reasoning appears to travel in a circle. Punishment,
they say, is degrading, therefore it can work no moral improve-
ment. But this begs the question. For if punishment could
work a moral improvement, it would not degrade but elevate.
The humanitarian argument alternately proves that punishment
can only intimidate because it is brutalizing, and that it is
brutahzing because it can only intimidate. The real reason,
apparently, of the foregone conviction which tries to justify
itself by this argument is an unreasoning horror of the infliction
of pain. That pain is an evil cannot be denied. But, even if it
were the ultimate evil, we could not assert that it was always
WTong to inflict it. For that would be equivalent to a
declaration that a dentist was as criminal as a wife-beater.
No one can deny that the infliction of pain may in the long
run increase happiness — as in the extraction of an aching tooth.
If pain, in spite of its being evil fer se, can thus be desirable
as a means, the general objection to pain as a moral agent would
seem to disappear also.

143. Of course, there is nothing in simple pain, as such,
which can lead to repentance. If I get into a particular train,
and break my leg in a colUsion, that cannot make me repent
my action in going by the train, though it will very possibly
make me regret it. For the pain in this case was not a
punishment. It came, indeed, because I had got into the
train, but not because I had done wrong in getting into the
train.

Hegel's theory is that punishment, that is, pain inflicted
because the suft'erer had previously done wrong, may lead to
repentance for the crime which caused the punishment. We
have now to consider whether this is true. The thesis is not
that it always produces repentance — which, of course, is not the
case — but that there is something in its nature which tends
to produce repentance. And this, as we have seen, is not a
common theory of punishment. "Men do not become penitent
and learn to abhor themselves by having their backs cut open
with the lash; rather, they learn to abhor the lash^." That
the principle expressed here is one which often operates cannot
^ George Eliot, Felix Holt, chap. xu.



136 PUNISHMENT

be denied. Can we so far limit its application that Hegel's
theory shall also be valid?

We have so far defined punishment as pain inflicted because
the sufferer has done wrong. But this definition is too narrow,
for it does not include cases of mistaken punishment. To bring
these in we must say that it is pain inflicted because the person
who inflicts it thinks that the person who suffers it has done
wrong. Repentance, again, is the realisation by the criminal,
with sufficient vividness to govern future action, that he has
done wrong. Now is there anything in the nature of punish-
ment to cause the conviction in the mind of the judge to be
reproduced in the mind of the culprit? If so, punishment will
tend to produce repentance.

144, I submit that this is the case under certain conditions.
When the culprit recognizes the punishing authority as one
which embodies the moral law, and which has a right to enforce
it, then punishment may lead to repentance, but not otherwise.

Let us examine this more closely. A person who suffers
punishment may conceive the authority which inflicts it to be
distinctly immoral in its tendencies. In this case, of course,
he will not be moved to repent of his action. The punishment
will appear to him unjust, to incur it will be considered as a duty,
and he will consider himself not as a criminal, but as a martyr.
On the other hand, if the punishment causes him to change his
line of action, it will be due, not to repentance, but to cowardice.

Or, again, he may not regard it as distinctly immoral — as
punishing him for what it is his duty to do. But he may regard
it as non-moral — as punishing him for what he had a right,
though not a duty, to do. In this case, too, punishment will
not lead to repentance. He will not regard himself as a
martyr, but he will be justified in regarding himself as a very
badly-treated person. If the punishment does cause him to
abstain from such action in future, it will not be the result of
repentance, but of prudence. He will not have come to think
it wrong, but he may think that it is not worth the pain it will
bring on him.

If, however, he regards the authority which punishes him
as one which expresses, and which has a right to express, the



PUNISHMENT 137

moral law, his attitude will be very different. He wall no longer
regard his punishment either as a martyrdom or as an injury.
On the contrary he will feel that it is the proper consequence
of his fault. And to feel this, and to be able to accept it as
such, is surely repentance.

145. But it may be objected that this leads us to a
dilemma. The punishment cannot have this moral effect on
us, unless it comes from an authority which we recognize as
expressing the moral law, and, therefore, as valid for us. But
if we recognize this, how did we ever come to commit the sin,
which consists in a defiance of the moral law? Does not the
existence of the sin itself prove that we are not in that
submissive position to the moral law, and to the power which
is enforcing it, which alone can make the punishment a
purification ?

I do not think that this is the case. It is, in the first place,
quite possible for a recognition of the moral law to exist which
is not sufl&ciently strong to prevent our violating it at the
suggestion of our passions or our impulses, but which is yet
strong enough, when the punishment follows, to make us
recognize the justice of the sentence. After all, most cases of
wrong-doing, which can be treated as criminal, are cases of this
description, in which a man defies a moral law which he knows
to be binding, because the temptations to violate it are at that
moment too strong for his desire to do what he knows to be
right. In these cases the moral law is, indeed, recognized — for
the offender knows he is doing wrong — but not recognized with
sufficient strength ; for, if it was, he would abstain from doing
wrong. And, therefore, the moral consciousness is strong
enough to accept the punishment as justly incurred, though
it was not strong enough to prevent the offender from incurring
it. In this case, the significance of the punishment is that it
tends to produce that vividness in the recognition of the moral
law, which the occurrence of the offence shows to have been
previously wanting. The pain and coercion involved in punish-
ment present the law with much greater impressiveness than
can, for the mass of people, be gained from a mere admission
that the law is binding. On the other hand, the fact that the



138 PUNISHMENT

pain coincides with that intellectual recognition, on the part of
the offender, that the law is binding, prevents the punishment
from having a merely intimidating effect, and makes it a possible
stage in a moral advance.

146. Besides these cases of conscious violation of a moral
law, there are others where men sincerely believe in a certain
principle, and yet systematically fail to see that it applies in
certain cases, not because they really think that those cases are
exceptions, but because indolence or prejudice has prevented
them from ever applying their general principle to those
particular instances. Thus there have been nations which
conscientiously believed murder to be sinful, and yet fought
duels with a good conscience. If pressed, they would have
admitted a duel to be an attempt to murder. But no one ever
did press them, and they never pressed themselves. As soon
as a set of reformers arose, who did press the question, duels
were found to be indefensible, and disappeared. So for many
years the United States solemnly afl&i-med the right of all men
to liberty, while slavery was legally recognized. Yet they
would not have denied that slaves were men.

When such cases occur with a siiigle individual, punishment
might here, also, tend to repentance. For it was only possible
to accept the general law, and reject the particular application,
by ignoring the unanswerable question. Why do not you in this
case practise what you preach ? Now you can ignore a question,
but you cannot ignore a punishment, if it is severe enough.
You cannot put it on one side : you must either assert that it
is unjust, or admit that it is just. And in the class of cases we
have now been considering, we have seen that when the question
is once asked, it must condemn the previous line of action.
Here, therefore, punishment may lead to repentance.

147. A third case is that in which the authority is
recognized, but in which it is not known beforehand that it
disapproved of the act for which the punishment is awarded.
Here, therefore, there is no difficulty in seeing that recognition
of the authority is compatible with transgression of the law,
because the law is not known till after it has been transgressed.
It may, perhaps, be doubted whether it is strictly correct to say



PUNISHMENT 139

in this case that punishment may lead to repentance, since
there is no wilful fault to repent, as the law was, by the
hypothesis, not known at the time it was broken. The question
is, however, merely verbal. There is no doubt that in such
cases the punishment, coming from an authority accepted as
moral, may lead a man to see that he has done wrong, though
not intentionally, may lead him to regret it, and to avoid it in
future. Thus, at any rate, a moral advance comes from the
punishment, and it is of no great importance whether we grant
or deny it the name of repentance.

148. It may be objected, however, that punishment in the
last two cases would be totally unjust. We ought to punish,
it may be said, only those acts which were known by their
perpetrators, at the time they did them, to be wrong. And
therefore we have no right to punish a man for any offence,
which he did not know to be an offence, whether because he
did not know of the existence of the law, or because he did not
apply it to the particular case.

I do not think, however, that we can fairly limit the proper
application of punishment to cases of conscious wrong-doing,
plausible as such a restriction may appear at first sight. We
must remember, in the first place, that ignorance of a moral
law may be a sign of a worse moral state than that which would
be implied in its conscious violation. If a man really beheved
that he was morally justified, in treating the lower animals
without any consideration, he would not be consciously doing
wrong by torturing them. But we should, I think, regard him
as in a lower moral state than a man who was conscious of his
duty to animals, though he sometimes disregarded it in moments
of passion. Yet the latter in these moments would be con-
sciously doing wrong. A man who could see nothing wrong
in cowardice would surely be more degraded than one who
recognized the duty of courage, though he sometimes failed
to carry it out. Thus, I submit, even if punishment were
hmited to cases of desert, there would be no reason to limit
it to cases of conscious wrong-doing, since the absence of the
consciousness of wrong-doing may itself be a mark of moral
defect.



140 PUNISHMENT

But we may, I think, go further. There seems no reason
why we should enquire about any punishment whether the
criminal deserved it. For such a question really brings us
back, if we press it far enough, to the old theory of vindictive
punishment, which few of those who ask the question would be
prepared to advocate. On any other theory a man is to be
punished, not to avenge the past evil, but to secure some future
good. Of course, a punishment is only to be inflicted for a
wrong action, for the effect of all punishment is to discourage
the repetition of the action punished, and that would not be
desirable unless the action were wrong. But to enquire how
far the criminal is to be blamed for his action seems irrelevant.
If he has done wrong, and if the punishment will cure him, he
has, as Hegel expresses it, a right to his punishment. If a
dentist is asked to take out an aching tooth, he does not refuse
to do so, on the ground that the patient did not deliberately
cause the toothache, and that therefore it would be unjust to
subject him to the pain of the extraction. And to refuse a man
the chance of a moral advance, when the punishment appears
to afford one, seems equally unreasonable.

Indeed, any attempt to measure punishment by desert gets
us into hopeless difficulties. If we suppose that every man is
equally responsible for every action which is not done under
physical compulsion, we ignore the effect of inherited character,
of difference of education, of difference of temptation, and, in
fact, of most of the important circumstances. Punishments
measured out on such a system may, perhaps, be defended on
the ground of utility, but certainly not on the ground of desert.
Again, if we did attempt, in fixing desert, to allow for different
circumstances, desert would vanish altogether. On a deter-
minist theory every act is the inevitable result of conditions
existing before the birth of the agent. If we admit free will,
any responsibility for the past becomes unintelligible.

The only alternative seems to be the admission that we
punish, not to avenge evil, but to restore or produce good,
whether for society or the criminal. And on this principle we
very often explicitly act. For example, we do not punish high
treason because we blame the traitors, who are often moved by



PUNISHMENT 141

sincere, though perhaps mistaken, patriotism. We punish it
because we believe that they would in fact, though with the
best intentions, do harm to the state. Nor do parents, I
suppose, punish young children for disobedience, on the ground
that it is their own fault that they were not born with the
habit of obedience developed. They do it, I should imagine,
because punishment is the most effective way of teaching
them obedience, and because it is desirable that they should
learn it.

149. We must now return to the cases in which punish-
ment can possibly produce repentance, from which we have
been diverted by the question of the justice of the punishment
inflicted in the second and third cases. There is a fourth and
last case. In this the authority which inflicts the punishment
was, before its infliction, recognized faintly and vaguely as
embodying the moral law, and therefore as being a vahd
authority. But the recognition was so faint and vague that
it was not sufficient to prevent disobedience to the authority's
commands. This, it will be seen, is rather analogous to the
second case. There the law was held so vaguely that the
logical applications of it were never made. Here the authority
is recognized, but not actively enough to influence conduct.
It is scarcely so much that the criminal recognizes it, as that
he is not prepared to deny it.

Here the effect of punishment may again be repentance.
For punishment renders it impossible any longer to ignore the
authority, and it is, by the hypothesis, only by ignoring it that
it can be disobeyed. The punishment clearly proves that the
authority is in possession of the power. If it is pressed far
enough, there are only two alternatives — definitely to rebel
and declare the punishment to be unjust, or definitely to
submit and acknowledge it to be righteous. The first is
impossible here, for the criminal is not prepared definitely to
reject the authority. There remains therefore only the second.

Perhaps the best example of this state of things may be
found in the attitude of the lower boys of a public school
towards the authority of the masters. Their conviction that
this is a lawful and valid authority does not influence them



142 PUNISHMENT

to so great an extent as to produce spontaneous and invariable
obedience. But it is, I think, sufficient to prevent them from
considering the enforcement of obedience by punishment as
unjust, except in the cases where their own code of morality
comes explicitly in conflict with the official code — cases which
are not very frequent. In fact, almost all English school
systems would break down completely, if they trusted to their
punishments being severe enough to produce obedience by fear.
Their continued existence seems important evidence that
punishment can produce other effects than intimidation,
unless, indeed, any ingenious person should suggest that they
could get on without punishment altogether.

150. We have now seen that when punishment is able
to fulfil the office which Hegel declares to be its highest
function — that of producing repentance — it does so by em-
phasising some moral tie which the offender was all along
prepared to admit, although it was too faint or incomplete
to prevent the fault. Thus it essentially works on him as,
at any rate potentially, a moral agent, and thus, as Hegel
expresses it, does him honour. It is no contradiction of this,
though it may appear so at first sight, to say that a punish-
ment has such an effect only by the element of disgrace which
all deserved punishment contains. The deterrent effect is
different. A punishment deters from the repetition of the
offence, not because it is a punishment, but because it is
painful. An unpleasant consequence which followed the act,
not as the result of moral condemnation, but as a merely
natural effect, would have the same deterrent result. A man
is equally frightened by pain, whether he recognizes it as just
or not. And so a punishment may deter from crime quite as
effectually when it is not recognized as just, and consequently


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Online LibraryJohn McTaggart Ellis McTaggartStudies in Hegelian cosmology → online text (page 14 of 28)