Book 7, Chapter 03 : Of the Purposes of Punishment
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Book 7, Chapter 03
Nature of defense considered. - Punishment for restraint - for reformation. - Supposed uses of adversity - defective - unnecessary. - Punish- ment for example - i. nugatory. - 2. until. - Unfeeling character of this species of coercion.
LET US proceed to consider the three principal ends that punishment proposes to itself, restraint, reformation and example. Under each of these heads the arguments on the affirmative side must be allowed to be cogent, not irresistible. Under each of them considerations will occur that will oblige us to doubt universally of the propriety of punishment.
The first and most innocent of all the classes of coercion is that which is employed in repelling actual force. This has but little to do with any species of political institution, but may nevertheless deserve to be first considered. In this case I am employed (suppose, for example, a drawn sword is pointed at my own breast or that of another, with threats of instant destruction) in preventing a mischief that seems about inevitably to ensue. In this case there appears to be no time for experiments. And yet, even here, a strict research will suggest to us important doubts. The powers of reason and truth are yet unfathomed. That truth which one man cannot communicate in less than a year, another can communicate in a fortnight. The shortest term may have an understanding commensurate to it. When Marius said, with a stern look and a commanding countenance, to the soldier that was sent down into his dungeon to assassinate him, 'Wretch, have you the temerity to kill Marius I' and with these few words drove him to flight; it was that the grandeur of the idea conceived in his own mind made its way with irresistible force to the mind of his executioner. He had no arms for resistance; he had no vengeance to threaten; he was debilitated and deserted; it was by the force of sentiment only that he disarmed his destroyer. If there were falsehood and prejudice mixed with the idea communicated, in this case, can we believe that truth is not still more powerful? It would be well for the human species if they were all, in this respect, like Marius, all accustomed to place an intrepid confidence in the single energy of intellect. Who shall say what there is that would be impossible to men thus bold, and actuated only by the purest sentiments? Who shall say how far the whole species might be improved, did they cease to respect force in others, and did they refuse to employ it for themselves?
The difference however between this species of coercion, and the species which usually bears the denomination of punishment, is obvious. Punishment is employed against an individual whose violence is over. He is, at present, engaged in no hostility against the community, or any of its members. He is quietly pursuing, it may be, those occupations which are beneficial to himself, and injurious to none. Upon what pretense is this man to be the subject of violence?
For restraint. Restraint from what? 'From some future injury which is to be feared lie will commit.' This is the very argument which has been employed to justify the most execrable tyrannies. By what reasonings have the inquisition, the employment of spies, and the various kinds of public censure directed against opinion been vindicated By recollecting that there is an intimate connection between men's opinions and their conduct; the immoral sentiments lead, by a very probable consequence, to immoral actions. There is not more reason, in many cases at least, to apprehend that the man who has once committed robbery will commit it again than the man who has dissipated his property at the gaming-table or who is accustomed to profess that, upon any emergency, be will not scruple to have recourse to this expedient. Nothing can be more obvious than that, whatever precautions may be allowable with respect to the future, justice will reluctantly class among these precautions a violence to be committed on my neighbor. Nor it is oftener unjust than it is superfluous. Why not arm myself with vigilance and energy, instead of locking up every man whom my imagination may bid me fear, that I may spend my days in undisturbed inactivity? If communities, instead of aspiring, as they have hitherto done, to embrace a vast territory, and glut their vanity with ideas of empire, were contented with a small district, with a proviso of confederation in cases of necessity, every individual would then live under the public eye; and the disapprobation of his neighbors, a species of coercion not derived from the caprice of men, but from the system of the universe, would inevitably oblige him either to reform or to emigrate. - The sum of the arguments under this head is that all punishment for the sake of restraint is punishment upon suspicion, a species of punishment the most abhorrent to reason, and arbitrary in its application, that can be devised.
The second object which punishment may be imagined to propose to itself is reformation. We have already seen various objections that may be offered to it in this point of view. Coercion cannot convince, cannot conciliate, but on the contrary alienates the mind of him against whom it is employed. Coercion has nothing in common with reason, and therefore can have no proper tendency to the cultivation of virtue. It is true that reason is nothing more than a collation and comparison of various emotions and feelings; but they must be the feelings originally, appropriate to the question, not those which an arbitrary will, stimulated by the possession of power, may annex to it. Reason is omnipotent: if my conduct be wrong, a very simple statement, flowing from a clear and comprehensive view, will make it appear to be such; nor is it probable that there is any perverseness that would persist in vise in the face of all the recommendations with which virtue might be invested, and all the beauty in which it might be displayed.
But to this it may be answered 'that this view of the subject may indeed be abstractedly true, but that it is not true relative to the present imperfection of human faculties. The grand requisite for the reformation and improvement of the human species seems to consist in the rousing of the mind. It is for this reason that the school of adversity has so often been considered as the school of virtue.1 In an even course of easy and prosperous circumstances, the faculties sleep. But, when great and urgent occasion is presented, it should seem that the mind rises to the level of the occasion. Difficulties awaken vigor and engender strength; and it will frequently happen that the more you check and oppress me, the more will my faculties swell, till they burst all the obstacles of oppression.'
The opinion of the excellence of adversity is built upon a very obvious mistake. If we will divest ourselves of paradox and singularity, we shall perceive that adversity is a bad thing, but that there is something else that is worse. Mind can neither exist, nor be improved, without the reception of ideas. It will improve more in a calamitous than a torpid state. A man will sometimes be found wiser at the end of his career, who has been treated with severity than with neglect. But, because severity is one way of generating thought, it does not follow that it is the best.
It has already been shown that coercion, absolutely considered, is injustice. Can injustice be the best mode of disseminating principles of equity and reason? Oppression, exercised to a certain extent, is the most ruinous of all things. What is it but this that has habituated mankind to so much ignorance and vise for so many thousand years? Is it probable that that which has been thus terrible in its consequences should, under any variation of circumstances, be made a source of eminent good? All coercion sours the mind. He that suffers it is practically persuaded of the want of a philanthropy sufficiently enlarged, in those with whom he has intercourse. He feels that justice prevails only with great limitations, and that he cannot depend upon being treated with justice. The lesson which coercion reads to him is, 'Submit to force, and abjure reason. Be not directed by the convictions of your understanding, but by the basest part of your nature, the fear of personal pain, and a compulsory awe of the injustice of others.' It was thus Elizabeth of England and Frederic of Prussia were educated in the school of adversity. The way in which they profited by this discipline was by finding resources in their own minds, enabling them to regard, with an unconquered spirit, the violence employed against them. Can this be the best mode of forming men to virtue? If it be, perhaps it is further requisite that the coercion we use should be flagrantly unjust, since the improvement seems to lie, not in submission, but resistance.
But it is certain that truth is adequate to excite the mind, without the aid of adversity. By truth is here understood a just view of all the attractions of industry, knowledge and benevolence. If I apprehend the value of any pursuit, shall I not engage in it? If I apprehend it clearly, shall I not engage in it zealously? If you would awaken my mind in the most effectual manner, speak to the genuine and honorable feelings of my nature. For that purpose, thoroughly understand yourself that which you would recommend to me, impregnate your mind with its evidence, and speak from the clearness of your view, and with fullness of conviction. Were we accustomed to an education in which truth was never neglected from indolence, or told in a way treacherous to its excellence, in which the preceptor subjected himself to the perpetual discipline of finding the way to communicate it with brevity and force, but without prejudice and acrimony, it cannot be believed but that such an education would be more effectual for the improvement of the mind, than all the modes of angry or benevolent coercion that ever were devised.
The last object which punishment proposes is example. Had legislators confined their views to reformation and restraint, their exertions of power, though mistaken, would still have borne the stamp of humanity. But, the moment vengeance presented itself as a stimulus on the one side, or the exhibition of a terrible example on the other, no barbarity was thought too great. Ingenious cruelty was busied to find new means of torturing the victim, or of rendering the spectacle impressive and horrible.
It has long since been observed that this system of policy constantly fails of its purpose. Further refinements in barbarity produce a certain impression, so long as they are new; but this impression soon vanishes, and the whole scope of a gloomy invention is exhausted in vain.2 The reason of this phenomenon is that, whatever may be the force with which novelty strikes the imagination, the inherent nature of the situation speedily recurs, and asserts its indestructible empire. We feet the emergencies to which we are exposed, and we feel, or think we feel, the dictates of reason inciting us to their relief. Whatever ideas we form in opposition to the mandates of law, we draw, with sincerity, though it may be with some mixture of mistake, from the essential conditions of our existence. We compare them with the despotism which society exercises in its corporate capacity; and, the more frequent is our comparison, the greater are our murmurs and indignation against the injustice to which we are exposed. But indignation is not a sentiment that conciliates; barbarity possesses none of the attributes of persuasion. It may terrify; but it cannot produce in us candor and docility. Thus ulcerated with injustice, our distresses, our temptations, and all the eloquence of feeling present themselves again and again. Is it any wonder they should prove victorious?
Punishment for example is liable to all the objections which are urged against punishment for restraint or reformation, and to certain other objections peculiar to itself. It is employed against a person not now in the commission of offense, and of whom we can only suspect that he ever will offend. It supersedes argument, reason and conviction, and requires us to think such a species of conduct our duty, because such is the good pleasure of our superiors, and because, as we are taught by the example in question, they will make us rue our stubbornness if we think otherwise. In addition to this it is to be remembered that, when I am made to suffer as an example to others, I am myself treated with supercilious neglect, as if I were totally incapable of feeling and morality. If you inflict pain upon me, you are either just or unjust, If you be just, it should seem necessary that there should be something in me that makes me the fit subject of pain, either absolute desert, which is absurd, or mischief I may be expected to perpetrate, or lastly, a tendency in what you do to produce my reformation. If any of these be the reason why the suffering I undergo is just, then example is out of the question: it may be an incidental consequence of the procedure, but it forms no part of its principle. It must surely be a very inartificial and injudicious scheme for guiding the sentiments of mankind, to fix upon an individual as a subject of torture or death, respecting whom this treatment has no direct fitness, merely that we may bid others look on, and derive instruction from his misery. This argument will derive additional force from the reasonings of the following chapter.
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