1911 Encyclopædia Britannica/Punishment

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PUNISHMENT (from Lat. punire, to punish, from poena, punishment, Gr. ποινή), the infliction of some kind of pain or loss upon a person for a misdeed, i.e. the transgression of a law or command. Punishment may take forms varying from capital punishment, flogging and mutilation of the body to imprisonment, fines, and even deferred sentences which come into operation only if an offence is repeated within a specified time. The progress of civilization has resulted in a vast change alike in the theory and in the method of punishment. In primitive society punishment was left to the individuals wronged or their families, and was vindictive or retributive: in quantity and quality it would bear no special relation to the character or gravity of the offence. Gradually there would arise the idea of proportionate punishment, of which the characteristic type is the lex talionis[1] “an eye for an eye.” The second stage was punishment by individuals under the control of the state, or community; in the third stage, with the growth of law, the state took over the primitive function and provided itself with the machinery of “justice” for the maintenance of public order. Henceforward crimes are against the state, and the exaction of punishment by the wronged individual is illegal (cf. Lynch Law). Even at this stage the vindictive or retributive character of punishment remains, but gradually, and specially after the humanist movement under thinkers like Beccaria and Ieremy Bentham, new theories begin to emerge. Two chief trains of thought have combined in the condemnation of primitive theory and practice. On the one hand the retributive principle itself has been very largely superseded by the protective and the reformative; on the other punishments involving bodily pain have become objectionable to the general sense of society. Consequently corporal and even capital punishment occupy a far less prominent position, and tend everywhere to disappear. It began to be recognized also that stereotyped punishments, such as belong to penal codes, fail to take due account of the particular condition of an offence and the character and circumstances of the offender. A fixed fine, for example, operates very unequally on rich and poor.

Modern theories date from the 18th century, when the humanitarian movement began to teach the dignity of the individual and to emphasize his rationality and responsibility. The result was the reduction of punishment both in quantity and in severity, the improvement of the prison system, and the first attempts to study the psychology of crime and to distinguish between classes of criminals with a view to their improvement (see Crime; Prison; Children’s Courts; Juvenile Offenders). These latter problems are the province of criminal anthropology and criminal sociology, sciences so called because they view crime as the outcome of anthropological and social conditions. The man who breaks the law is himself a product of social evolution and cannot be regarded as solely responsible for his disposition to transgress. Habitual crime is thus to be treated as a disease. Punishment can, therefore, be justified only in so far as it (1) protects society by removing temporarily or permanently one who has injured it, or acting as a deterrent,[2] or (2) aims at the moral regeneration of the criminal. Thus the retributive theory of punishment with its criterion of justice as an end in itself gives place to a theory which regards punishment solely as a means to an end, utilitarian or moral, according as the common advantage or the good of the criminal is sought.

Authorities.—Jeremy Bentham, An Introduction to the Principles of Morality and Legislation; Henry Maine, Ancient Law; C. B. de Beccaria, Crimes and Punishments; also works quoted under Criminology; Capital Punishment; Prison; and articles on e.g. Romilly, Sir Samuel and Howard, John.

  1. Talio, in juridical Latin, the abstract noun from talis, such, alike, hence “retaliation.” See Exod. xxi. 24; Lev. xxiv. 20; Deut. xix. 21.
  2. This idea combined with the retributive is found as early as Deut. xix. 20, “ And those which remain shall hear and fear, and shall henceforth commit no more any such evil.”