The Philosophical Review/Volume 1/Summary: Rashdall - The Theory of Punishment
The writer discusses the retributive and the utilitarian theories of punishment, the former making it an end in itself, and the latter making it a means of prevention or reformation. The retributive theory is perhaps a survival of the primitive notion that blood demands blood. Resentment at the sight of wrong-doing and desire that the doer be punished are attributable to the fact that punishment leads to amendment. Consider it apart from its effects, and there is no moral justification for the infliction of pain. If punishment were an end, its amount should be determined by the crime. But moral guilt and physical pain are incommensurable; the amount of pain appropriate for any crime is incapable of estimate.
An intermediate view, viz. that punishment exists as an end and yet that its amount and nature may be determined by utilitarian considerations, reduces the retributive theory to very modest limits. Such a position, however, includes three elements of truth neglected by thorough-going utilitarians. 1. It is true to the historical origin of state punishment in private vengeance, and accounts for many existing distinctions in the law; such as that between attempted and executed crime. 2. It admits that punishment is reformatory, while many advocates of punishing to reform at bottom disbelieve that punishment, i.e. pain, exerts a reforming influence. Pain, bodily or mental, and even the dread of it, keep the lower self under, and thus punishment on its reformatory side is an artificial creation of conditions favorable to moral improvement. 3. It sees that the state has a spiritual end, and so is entitled to repress immorality. Criminal law should express and thus strengthen the moral sense of the community, and as that sense grows keener, the sphere of criminal law should enlarge.