Studies in Hegelian Cosmology. John McTaggart Ellis McTaggart 1901
137. We may define punishment as the infliction of pain on a person because he has done wrong. That it must be painful, and that it must be inflicted on a person who has done, or is thought to have done, wrong, will be generally admitted. But we must also remember that it is essential that it should be inflicted because of the wrong-doing. In the children’s books of an earlier generation, the boy who went out without his mother’s leave was struck by lightning. This cannot, unless theology is introduced, be considered as a punishment. For the lightning would have struck with equal readiness any boy on the same spot, although provided with the most ample parental authority. And more modern and pretentious works, while less amusing, are not more accurate. They speak of the rewards and punishments which Nature herself distributes among us. But Nature – the Nature of science and common sense – though she often destroys, never punishes. For the moral value of an action makes no difference to her. She takes no account of intention or purpose. She destroys, with a magnificent indifference alike the man who has injured his body by self-indulgence, and the man who has injured his body in his work for others. Her bacteria are shed abroad equally on the man who let the drains go wrong, on the man who is trying to put them right, and on the child who was not consulted in the matter. Some people assert Nature to be above morality, but, whether above or below, she is certainly indifferent to it. And so, to get a proper use of the idea of punishment we must go beyond her.
138. Punishment, then, is pain, and to inflict pain on any person obviously needs a justification. There are four ways in which punishment is usually justified – not by any means incompatible. One punishment might be defended under all of them. The first is the theory of vindictive punishment. It asserts that, if a man has done wrong it is right and just that he should suffer for it, even if the pain does no good, either to himself or to others. The punishment is looked on as a satisfaction of abstract justice, and he is said to deserve it. The second way in which a punishment may be defended is that it is deterrent. It is desirable to suppress wrong-doing. And so we try to attach to a fault a punishment so certain, and so severe, that the remembrance of it will prevent the offender from offending again, while the fear of a similar punishment will deter others from a similar crime.
We must mark here an important distinction. In these two cases the object which justified our action could only be obtained by punishment.
In the first, abstract justice was supposed to require that the man should be made unhappy. In the second case, it is clear that you can only deter – that is, frighten – men from crime by making its consequences painful.
But now we come to two other uses of punishment which do not depend on its being painful, but on other qualities which the particular punishment happens to possess. The first of these is that it may deprive the criminal under punishment of the chance of committing fresh crimes.
A man cannot steal while he is in prison, nor commit murder – in this life – after he has been hanged. But this effect does not come because the man has been punished. If he welcomed imprisonment or death gladly, they would cease to be punishments, but they would be equally preventive of crime.
The second of these further advantages of punishment is the reformation of the criminal. This does not mean that the punishment frightens him from offending again. That is the deterrent effect, of which we spoke before. But a punishment may sometimes really, cure a man of his vicious tendencies. The solitude which it gives him for reflection, or the religious influences which may be brought to bear on him in prison, or the instruction which he may receive there, may give him a horror of vice or a love of virtue which he had not before. But if his punishment does this, it is not as a punishment. If his character is, by such means, changed for the better, that change is not made because he was unhappy.
Thus, for reformation, as well as for prevention, punishment may be a useful means, but only incidentally; while it is only by means of punishment that we can avenge a crime, or deter men from repeating it.
139. Of late years we have almost given up the theory of vindictive punishment, both in law and education, though it is still retained in theology by those who accept the doctrine that punishment may be eternal.
The ordinary view of the use of punishment in law is, I take it, that its main object is deterrent – to prevent crime by making the possible criminal afraid of the punishment which would follow. Its preventive use – of checking crime by restraining or removing persons who have already proved themselves criminals – is also considered important, but in a lesser degree. Finally, if the state can reform the criminal while punishing him, it considers itself bound to try; but the primary object of criminal justice is held to be the protection of the innocent rather than the improvement of the guilty, and therefore the discouragement of crime is taken as of more importance than the reform of the criminal.
Capital punishment, indeed, is still sometimes defended on the ground of vindictive justice, but more often as being deterrent of crime on the part of others, and a safeguard against its repetition by the particular criminal executed. And in other cases vindictive punishment has dropped out of law, and, perhaps, still more out of education.
There is no tendency to the contrary in Sir James Stephen’s ingenious defence of the vindictive pleasure that men feel in punishing atrocious criminals. He defends that pleasure on the ground that it renders their punishment more certain. But he does not recommend that a man should be punished merely because he has done wrong. He only says that, in 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.
140. We have now seen what the ordinary view of punishment 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 improving 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 improves 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 slightest intention of advocating what we have called vindictive punishment. 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 deterrent 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."[56] 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 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 punishment – 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 possibility of pardon.
141. What, then, is Hegel’s theory? It is, I think, briefly this. In sin, man rejects and defies the moral law. Punishment 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, 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 consequence more inclined 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 Hegelian view for many ages, but as an explicit 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 be 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 temptation, to which before he yielded. And why 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 offender must be little better than a brute; if it is not justified, the brutality is in the person who inflicts it.
This reasoning appears to travel in a circle. Punishment, they say, is degrading, therefore it can work no moral improvement. 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 brutalizing 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 wrong 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 per 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 collision, 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 sufferer 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."[57] That the principle expressed here is one which often operates cannot 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, looking at it more closely, we should have to alter this definition, which is too narrow, and 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 punishment 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 moral law, his attitude will be very different. He will 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 sufficiently 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 punishment 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 pain coincides with that intellectual recognition, on the part of the offender, that the law is binding, prevents the punishment 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 affirmed 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 single 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 to 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 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 believed 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 consciously 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 limited 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.
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 determinist 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 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 punishment 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 valid 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 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 eases 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 do so by emphasising 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 punishment 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 produces no feeling of disgrace. But a punishment cannot lead to repentance unless it is recognized as the fitting consequence of a moral fault, and it is this recognition which makes a punishment appear disgraceful.
151. It is sometimes maintained that it is undesirable to attempt to emphasise the element of disgrace in punishment, especially in the education of children. We are recommended to trust principally to rewards, and if we should unhappily be forced to inflict pain, we must represent it rather as an inconvenience which it would be well to avoid for the future, than as a punishment for an offence which deserved it. And for this reason all punishments, which proclaim themselves to he such, are to be avoided.
It seems to me that to trust to the influence of the pleasures of rewards, and of the pain of punishments, implies that the person to be influenced is governed by his pleasure and pain. On the other hand, to trust to the fact that his punishment will appear a disgrace to him implies that he is, to some degree, influenced by a desire to do right; for otherwise he would feel no disgrace in a punishment for doing wrong.
And this second view of human nature is, at any rate, the more cheerful of the two.
It is necessary to distinguish between degradation and disgrace. A man is degraded by anything which lowers his moral nature. A punishment which does this would of course be so far undesirable. But he is disgraced by being made conscious of a moral defect. And to become conscious of a defect is not to incur a new one. It is rather the most hopeful chance of escaping from the old one. It can scarcely be seriously maintained that, if a fault has been committed, the offender is further degraded by becoming ashamed of it.
This confusion seems to be at the root of the controversy as to whether the corporal punishment of children is degrading. There is no doubt that it expresses, more unmistakeably and emphatically than any substitute that has been proposed for it, the fact that it is a punishment. It follows that, unless the offender is entirely regardless of the opinions of the authority above him, it is more calculated than other punishments to cause a feeling of disgrace. But, supposing it to be inflicted on the right occasions, this is surely an advantage in a punishment. That it produces any degradation is entirely a separate assertion, which demands a separate proof – a demand which it would be difficult to gratify.
152. But although a punishment must, to fulfil its highest end, be disgraceful, it does not follow that we can safely trust to the disgrace involved in the offence itself as a punishment – a course which is sometimes recommended. The aim of punishment is rather to produce repentance, and, as a means to it, disgrace. If we contented ourselves with using as a punishment whatever feeling of disgrace arose independently in the culprit’s mind, the result would be that we should only affect those who were already conscious of their fault, and so required punishment least, while those who were impenitent, and so required it most, would escape altogether. We require, therefore, a punishment which will produce disgrace where it is not, not merely utilize it where it is. Otherwise we should not only distribute our punishments precisely in the wrong fashion, but we should also offer a premium on callousness and impenitence.
As a matter of prudence it is as well to make sure that the offender, if he refuses to allow his punishment to be profitable to him, shall at any rate find it painful.
And in this connection we must also remember that the feeling of disgrace which ensues on punishment need be nothing more introspective or morbid than a simple recognition that the punishment was deserved.
On the other hand, an attempt to influence any one – especially children – by causing them to reflect on the disgrace involved in the fault itself, must lead to an habitual self-contemplation, the results of which are not unlikely to be both unwholesome to the penitents, and offensive to their friends.
153. I have thus endeavoured to show that there are certain conditions under which punishment can perform the work which Hegel assigns to it. The question then arises, When are these conditions realised? We find the question of punishment prominent in jurisprudence and in education. It is found also in theology, in so far as the course of the world is believed to be so ordered as to punish sin. Now it seems to me that Hegel’s view of punishment cannot properly be applied in jurisprudence, and that his chief mistake regarding it lay in supposing that it could.
In the first place, the paramount object of punishment from the point of view of the state ought, I conceive, to be the prevention of crime, and not the reformation of the criminal. The interests of the innocent are to be preferred to those of the guilty – for there are more of them. And the deterrent effect of punishment is far more certain than its purifying effect.
(I use the word purifying to describe the effect of which Hegel treats. It is, I fear, rather stilted, but the word reformatory, which would be more suitable, has by common consent been appropriated to a different theory.) We cannot, indeed, eradicate crime, but experience has shown that by severe and judicious punishment we can diminish it to an enormous extent. On the other hand, punishment can only purify by appealing to the moral nature of the culprit. This may be always latent, but is sometimes far too latent for us to succeed in arousing it. Moreover the deterrent effect of a punishment acts not only on the criminal who suffers it, but on all who realise that they will suffer it if they commit a similar offence. The purifying influence can act only on those who suffer the punishment. From these reasons it would appear that if the state allows its attention to be distracted in the humble task of frightening criminals from crime, by the higher ambition of converting them to virtue, it is likely to fail in both, and so in its fundamental object of diminishing crime.
154. And in addition there seems grave reason to doubt whether, in a modern state, the crimes dealt with and the attitude of the criminal to the community are such that punishment can be expected to lead to repentance. The crimes with which a state has to deal may be divided into two classes. The first and smaller class is that in which the state, for its own welfare, endeavours to suppress by punishment conduct which is actuated by conscientious convictions of duty – as is often the case with high treason. Now in these cases the criminal has deliberately adopted a different view of his duty to that entertained by the state. He is not likely, therefore, to be induced to repent of his act by a punishment which can teach him nothing, except that he and the state disagree in their views of his duty – which he knew before. His punishment may be resented by him as unjust persecution, or may be accepted as the inevitable result of difference of opinion, but can never be admitted by him as justly deserved by his action, and cannot therefore change the way in which he regards that action.
155. In the second, and much larger, class of criminal offences, the same result happens, though from very different reasons. The average criminal convicted of theft or violence is, no doubt, like all of us, in his essential nature, a distinctly moral being. And, even in action, the vast majority of such criminals are far from being totally depraved. But by the time a man has become subject to the criminal law for any offence, he has generally become so far callous, with regard to that particular crime, that his punishment will not bring about his repentance. The average burglar may clearly learn from his sentence that the state objects to burglary. He might even, if pressed, admit that the state was, from an objective point of view, more likely to be right than he was. But, although he may have a sincere objection to murder, he is probably in a condition where the state’s disapproval of his offences with regard to property will rouse no moral remorse in him. In such a case repentance is not possible. Punishment can, under the circumstances I have mentioned above, convince us that we have done wrong. But it cannot inspire us with the desire to do right. The existence of this is assumed when we punish with a view to the purification of the offender, and it is for this reason that the punishment, as Hegel says, honours him. Where the desire to do right is, at any rate as regards one field of action, hopelessly dormant, punishment must fall back on its lower office of intimidation.
And this would happen with large proportion of those offences which are dealt with by the criminal law.
156. Many offences, no doubt – especially those committed in a moment of passion, or by persons till then innocent – are not of this sort, but do co-exist with a general desire to do right, which has been overpowered by a particular temptation. Yet I doubt if, at the present day, repentance in such cases would often result from punishment by the state. If the criminal’s independent moral will was sufficiently strong, he would, when the particular temptation was removed, repent without the aid of punishment. If it was not sufficiently strong, I doubt if the punishment would much aid it. The function in this respect of punishment was, as we have seen, to enforce on the offender the disapproval with which his action was considered by an authority, whom he regarded as expressing the moral law. But why should the modern citizen regard the state as expressing the moral law? He does not regard it as something above and superior to himself, as the ancient citizen regarded his city, as the child regards his parent, or the religious man his God.
The development of individual conscience and responsibility has been too great for such an attitude. The state is now for him an aggregate of men like himself. He regards obedience to it, within certain limits, as a duty. But this is because matters which concern the whole community are matters on which the whole community is entitled to speak. It does not rest on any belief that the state can become the interpreter of the moral law for the individual, so that his moral duty lies in conforming his views to its precepts. Not only does he not feel bound, but he does not feel entitled, to surrender in this way his moral independence. He must determine for himself what he is himself to hold as right and wrong.
The result of this is that, if he sees for himself that his action was wrong, he will repent without waiting for the state to tell him so, and, if he does not see it for himself, the opinion of the state will not convince him. I do not assert that there are no cases in which a man finds himself in the same childlike relation to the state as was possible in classical times, but they are too few to be of material importance. And except in such cases we cannot expect the punishments of jurisprudence to have a purifying effect.
157. Hegel’s mistake, in applying his conception of punishment to criminal law, resulted from his high opinion of the state as against the individual citizen. The most significant feature of all his writings on the metaphysics of society is the low place that he gives to the conscience and opinions of the individual. He was irritated – not without cause – at the follies of the writers who see nothing in morality but conscientious convictions, or “the good will.” But he did not lay enough emphasis on the fact that, though the approval of conscience does not carry us very far, by itself, towards a satisfactory system of morality, yet without the approval of the individual conscience no system of morality can now be satisfactory. It has become impossible for any adult man to yield up his conscience into the hands of any other man or body of men. A child, in so far as it is young enough to be treated entirely as a child, can and ought to find its morality in the commands of others. And those who believe in a divine revelation will naturally endeavour to place themselves in an attitude of entire submission to what appears to them to be the divine will, whether manifested through books, or through some specially favoured organization of men. But a man is not a child, and the state is not God. A man may indeed accept the direction of a teacher whom he has chosen – even accept it implicitly. But then this is by virtue of his own act of choice. We cannot now accept any purely outward authority as having, of its own right, the power of deciding for us on moral questions.
158. Hegel points out, indeed, in the Phenomenology, that the highest realisation of the state – that in which it is the universal which completely sums up the individuals which compose it – may be considered as being in the past or the future, but not in the present. But when he comes to deal with the state in detail he seems to forget this. Sometimes he appears to think of the classical state as not yet passed away. The ancient state did, indeed, endeavour to stand in the same relation to its citizens as the father to the child, or even as God to man, as is indicated by the very close connection which existed in the ancient world between religion and patriotism. But to attempt to bring this idea into the modern world is to ignore the enormous development of the idea of individuality, which accompanied, whether as cause or effect, the rise of Christianity, and was marked by the increasing prominence of the ideas of immortality and conscience. The individual began then to claim the right of relating himself directly to the highest realities of the universe – and, among others, to duty. He insisted on judging for himself. The state could be no longer the unquestioned judge of right and wrong; it could now itself be judged and condemned by the individual on moral grounds.
It had still a claim to obedience, but not to unquestioning veneration.
Nor is there anything inconsistent with this in the authority – perhaps as strong as that of the classical state – which the church exercised during the middle ages. For the church was regarded as a supernaturally commissioned authority. It could never have held its position if it had been looked on as an assembly of mere men. And in the course of years it became evident that even the church’s claim to unquestioning veneration could not stand before the demand of the individual to have everything justified before the tribunal of his own spirit.
159. From another point of view, Hegel may be said to have supposed that the ideal state had already come, when it was still far in the future. Indeed we may go further, and say that, by the time the state had become ideal, it would have long ceased to be a state. No doubt Hegel looked forward, and by his philosophical system was justified in looking forward, to an ultimate ideal unity which should realise all, and far more than all, that the classical state had ever aimed at. He contemplated a universal so thoroughly realised in every individual that the most complete unity of the whole should be compatible with the most complete self-development of the parts. But before this last and highest development of reality could be reached; we should have to leave behind us altogether the world of matter and time, which would be incompatible with such a complete perfection of spirit. Still more would it be impossible in a stage of development in which external government and criminal justice still existed. And to encourage the actual state, as we see it in the world to-day, to assume functions justified only in the far past, or in the remote future, is disastrous both in theory and in practice.
No part of Hegel’s teaching has been productive of more confusion than his persistent attempt to identify the kingdom of Prussia with the kingdom of Heaven.
160. The result then, to which we have come, is as follows. Hegel’s view of the operation of punishment is one which is correct under certain circumstances. And when punishment has this function, it is fulfilling its highest end, since only in this manner does it succeed in really eradicating the fault which caused it. But this function is one which it scarcely ever succeeds in performing at present, when administered in the course of criminal law, and which it is not more likely to succeed in performing in the future.
This does not, however, render it unimportant. For, although it is disappearing in jurisprudence, it is persistent and important in education.
There is not the same need in education as in law that punishment shall be deterrent at all costs. The ordinary offences of children are not very dangerous to the structure of society, and we can therefore turn our attention, without much risk, rather to curing them than suppressing them. And, as a general rule, the decisions of the elder. world are tacitly accepted by the younger as righteous. In cases where the authority who inflicts the punishment, or the law upon which it is inflicted, are explicitly rejected as unjust by the offender, we cannot hope that punishment will be more than deterrent. But such cases are infrequent, and there is good reason to suppose that they will remain so. For it is a fact which, though often forgotten, cannot well be denied, that children are born young – a fact which has some significance.