Page:Ethical Studies (reprint 1911).djvu/34

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Yes, in despite of sophistry, and in the face of sentimentalism, with well-nigh the whole body of our self-styled enlightenment against them, our people believe to this day that punishment is inflicted for the sake of punishment; though they know no more than our philosophers themselves do, that there stand on the side of the unthinking people the two best known names of modern philosophy.[1]

But, even were we able, it is not our task here to expound to the reader, what this, or again what the other metaphysician understands by punishment. The above is no more than the theoretical expression of the popular view, viz. that punishment is justice; that justice implies the giving what is due; that suppression of its existence, in one form or other, is due to guilt, and so to the guilty person; and that, against his will, to give or take from a man what is not due, is, on the other hand, injustice. We have now to see what punishment is for the believer in Necessity.

And here the Necessitarian does not leave us in doubt. For him, it is true, ‘responsibility’ may ‘mean punishment,’ or rather the liability thereto; and perhaps he would not mind saying that guilt deserves punishment. But when we ask him, what is to be understood by the term ‘desert,’ then we are answered at once, that its meaning is something quite other than the ‘horrid figment’ which we believe in; or, lost in phrases, we perceive thus

  1. The following passages from Kant will perhaps surprise those persons among us, who think nothing ‘philosophical’ but immoral Humanitarianism. Kant’s Werke, ix. 180, 183:—
      ‘Judicial punishment (poena forensis) is not the same as natural (poena naturalis). By means of this latter, guilt brings a penalty on itself; but the legislator has not to consider it in any way. Judicial punishment can never be inflicted simply and solely as a means to forward a good, other than itself, whether that good be the benefit of the criminal, or of civil society; but it must at all times be inflicted on him, for no other reason than because he has acted criminally. A man can never be treated simply as a means for realizing the views of another man, and so confused with the objects of the law of Property. Against that his inborn personality defends him; although he can be quite properly condemned to forfeit his civil personality. He must first of all be found to be punishable, before there is even a thought of deriving from the punishment any advantage for himself or his fellow-citizens. The penal law is a categorical imperative; and woe to that man, who crawls through the serpentine turnings of the happiness-doctrine, to find out some consideration, which, by its promise of advantage, should free the criminal from his penalty, or even from any degree thereof. That is the maxim of the Pharisees, “it is expedient that one man should die for the people, and that the whole nation perish not;” but if justice perishes, then it is no more worth while that man should live upon the earth.’
      ‘Even if a civil society were to dissolve itself by the vote of all its members (e.g. if a people, inhabiting an island, were to resolve to separate from one another, and scatter themselves over the surface of the globe), nevertheless, before they go, the last murderer in prison must be executed. And this, that every man may receive what is the due of his deeds, and the guilt of blood may not rest upon a people, which has failed to exact the penalty; for, in that case, the people may be considered as participators in this public violation of justice.’ I am not to be considered as endorsing wholly Kant’s views. Cf. Hegel, viii. p. 132-141, and Trendelenburg: Naturrecht, p. 136, foll.