Punishment

The Oresteia proceeds from the assumption that a wrongful act calls for a return in kind, and that the debt is owed by the house as well as by the man who incurred it. The Furies, who appear in the third play of the trilogy, embody this demand. They are chthonic powers older than the Olympian gods, and they pursue the shedder of kindred blood with an implacability that argument cannot set aside. Their charge against Orestes is that he has killed his mother; the command of Apollo, under which he acted, and the crime of Clytemnestra, which provoked him, do not enter their reckoning. Where later writers separate the sin from the crime, and divine punishment from punishment by the state, the trilogy holds these together. The curse upon the house of Atreus is at once a pollution, an offense against the gods, and an injury done to men.

Aeschylus does not dismiss the claim of the Furies, but he shows that it cannot rest where it stands. The principle of exact retribution, applied without qualification, produces a further killing and therefore a further claim, so that the debt is never discharged. In the Eumenides a second moment appears, in which the demand for retribution is taken up and altered. Athena establishes a court of citizens to try the case, the votes are divided, and the Furies are persuaded with difficulty to accept the verdict and to be honored under a new name. What the court does is not to deny their claim but to remove the decision in each particular case from the hands of those most immediately wronged, and to submit it to a standing procedure in which circumstance and motive may be weighed.

The questions raised here are the ones to which later writers return. Whether punishment is essentially retribution or correction; whether its measure is the wrong done or the good it may produce; whether the authority to punish belongs to the sufferer, to the city, or to the gods; and whether a man may be held answerable for the acts of his kindred, which is the problem of collective responsibility. These matters are treated more fully under the ideas of Justice, Law, and State, and the question of pollution and the curse belongs to the discussion of Sin. Aeschylus settles none of them. He gives them the dramatic form in which the philosophers afterward find them.

Plato argues in the Gorgias and the Laws that punishment is a medicine for the soul, directed at the amendment of the wrongdoer rather than at the satisfaction of the injured party. Aristotle distinguishes corrective from distributive justice and places punishment under the first, adding that simple reciprocity does not by itself determine the mode of requital. Hegel, arguing that retribution differs from revenge because it is the concept rather than a subjective will that carries it out, cites the Eumenides who sleep until crime awakens them. Whether the substitution of the court for the avenger changes the nature of punishment or only its agent is a question that the trilogy poses without answering.

In the Gorgias Socrates maintains against Polus that it is worse to do injustice than to suffer it, and worse still to do injustice and escape punishment than to be punished for it. The argument rests upon an analogy with medicine. Injustice is a disorder of the soul, as disease is a disorder of the body, and as the physician cures the body by the pain of surgery or bitter remedies, so the judge who prescribes just penalties cures the soul. On this view to suffer punishment is another name for being justly corrected, and the man who evades it has no deliverance from his injustice. The tyrant who does as he pleases and is never called to account is accordingly the most wretched figure in the city, since his disorder goes without remedy, whereas the man who is punished suffers justly and has justice restored to him.

The reason for punishing, however, is not that the offender deserves to suffer for what he has already done. Protagoras, in the dialogue that bears his name, observes that no one punishes a wrongdoer merely because he has done wrong, since that is the way of unreasoning fury; the man who inflicts rational punishment has regard to the future, and desires that the offender and those who see him punished may be deterred. Plato appears to adopt this opinion. In the Laws, where he sets out a penal code in a detail matched among later writers only by Hobbes, he says that no man is to be punished because he did wrong, for what is done can never be undone, but in order that he and those who see him corrected may hate injustice or at least abate much of their evildoing. Yet he adds that the law should aim in all cases at the deserved punishment.

Desert therefore enters Plato's theory without carrying with it any separation of retribution from reform. The graded penalties of the Laws are fitted to the condition of the offender rather than to the magnitude of the injury alone, and the death penalty is reserved for the incurable, who cannot profit by correction and whose execution stands as an example to others. Since punishment works upon character through pain, the subject touches the formation of habit treated under Education and under Virtue and Vice, and since the wrongdoer is understood to act from ignorance of the good, it touches also the question, discussed under Will, whether anyone does evil willingly. The judge and the legislator are physicians whose patient is at once the soul and the city.

Aristotle keeps the connection between punishment and the formation of character while limiting the therapeutic claim, and Aquinas admits the medicinal purpose while subordinating it to the restoration of the order of justice. Hobbes and Locke retain the forward-looking principle and drop the concern with the soul's health. Kant, who holds that punishment can never be administered merely as a means of promoting another good, either for the criminal or for society, rejects the Platonic account at its root. The opposition between these positions turns on the question Plato states most sharply, whether the reason for punishing lies in the past act or in the effects to follow.

Aristotle retains the connection Plato draws between punishment and the education of character, but he states it in terms of habit rather than of medicine. Virtue is a stable disposition formed by repeated action; men become just by doing just acts and temperate by acting temperately. Punishment enters where habituation has failed or has not yet taken hold, and it works because pain is the counterpart of pleasure in the shaping of conduct. A man drawn toward wrong action by the pleasure it promises may be turned from it by the pain attached to it. Argument and exhortation, on this view, have force only with those already well brought up; the many are restrained by fear of penalties rather than by a sense of shame, and it is for their sake that the legislator attaches sanctions to law. Punishment is thus a kind of corrective training for adults whose early formation was defective.

The distinction between the voluntary and the involuntary governs the whole account. In Book III of the Ethics Aristotle argues that praise and blame, and with them reward and punishment, attach only to what is voluntary, to acts proceeding from a principle within the agent who knows the particular circumstances in which he acts. Acts done under compulsion, or from an ignorance for which the agent is not himself responsible, are involuntary, and the agent is excused or his penalty mitigated. Ignorance that he brought upon himself, as in drunkenness, does not excuse him. This condition of responsibility is common ground between those who make punishment retributive and those who make it reformative, though it fits the two theories unequally, since an exemplary penalty may deter others without regard to the desert of the man on whom it falls.

Under corrective justice, treated in Book V, the judge equalizes what the offense has made unequal, taking from the gain of the offender and restoring the loss of the injured party. Aristotle denies, however, that simple reciprocity determines the mode of requital. Some hold with Rhadamanthus that right justice is done when a man suffers what he did, but reciprocity and rectificatory justice are in many cases not in accord: an official who has inflicted a wound should not be wounded in return, and one who has wounded an official ought to be punished in addition. Retaliation answers to justice only when it is made in accordance with proportion. In the Rhetoric Aristotle takes up punishment from the side of the pleader and the juror, distinguishing the aggravating from the extenuating circumstances and separating punishment inflicted for the sake of the sufferer from vengeance taken for the satisfaction of the injured.

Aquinas takes over this vocabulary of corrective justice, voluntariness, and proportion, and adds to it the reference of the order of justice to the eternal law. Hobbes and Locke keep the emphasis on habituation and fear while dropping the doctrine of virtue that supported it. Kant and Hegel, in making the lex talionis the sole measure of the penalty, adopt the principle of equality that Aristotle qualified when he denied that a man must always suffer what he did. What Aristotle leaves unsettled is the treatment owed to the offender in whom correction fails, a question also raised under Virtue and Vice and under Law.

Augustine places the question of punishment within the order of creation, fall, and judgment. Where the Greek philosophers considered punishment chiefly as an instrument by which the city corrects its citizens, Augustine treats the punishment inflicted by God as the primary case, to which human penalties stand as an image. Sin is a turning of the will from the eternal Good toward mutable and lesser goods, and it disorders the soul that commits it. Two kinds of penalty follow. The first is imposed from without, in the suffering, disease, and calamity by which God chastens the living, and in the servitude which Augustine takes to be a just consequence of Adam's sin, God knowing how to award fit punishments for every variety of offense. The second is the disorder itself, for every disorder in the soul is its own punishment. This latter doctrine, that vice punishes itself, is developed further in the chapters on Sin and on Virtue and Vice.

The doctrine of eternal punishment is where Augustine departs from the Platonic tradition he elsewhere follows. Plato's penalties were curative, and the incurable were removed rather than tormented without end. In the later books of the City of God Augustine argues against those who would reduce hell to a purgation of limited term, holding that the damned suffer without remission because their wills are fixed in the rejection of the Good, and that the loss of God is a deprivation proportionate to what was refused. Whether such punishment can be reconciled with divine mercy, and whether the pain of the damned is corporeal as well as spiritual, are matters he treats at length and acknowledges to be difficult. The question of eternal suffering, and of the expiation that admits of remedy, belongs also to the chapters on Immortality and on God.

In temporal affairs Augustine does not make retribution exclude amendment. He holds that we must not only do harm to no man but also restrain him from sin or punish his sin, so that either the man who is punished may profit by his experience or others be warned by his example. A parent corrects a child, a magistrate restrains a criminal, and a bishop recalls a heretic, and in each case the one who punishes may act from love and intend the good of the one punished. Augustine's defense of the coercion of the Donatists rests on this reasoning. The retributive and the remedial accounts of punishment therefore stand side by side in his writings, joined in the divine judgment but not there reduced one to the other.

Aquinas takes up this position and orders its parts, making retribution the indispensable reason for punishment and treating amendment and deterrence as purposes that may accompany it. The distinction between the eternal punishment of the damned and the cleansing punishment of the repentant, which the later theologians elaborate, allows divine justice to include absolute retribution together with a penalty that is remedial. Whether an account of punishment framed without reference to divine law can sustain the claims made for it is a question Augustine leaves to his successors, and one on which Hobbes and Kant, from opposite directions, return contrary answers.

Aquinas holds that in willing justice God wills punishment, for the order of justice belongs to the order of the universe, and that order requires that penalty be dealt out to sinners. The first reason for punishing is accordingly retributive. The wrongdoer has taken to himself a liberty he had no right to, and the penalty restores the equality that his act disturbed. Aquinas distinguishes this from revenge, which seeks the suffering of the offender for its own sake, and he follows Aristotle in denying that simple reciprocity determines the measure of requital; commenting on the lex talionis of the Old Testament, he holds that the mode of retribution must answer to proportion rather than to a precisely equal return. What is restored is not merely a social balance. The order of justice in which the penalty is inflicted participates in the eternal law by which God governs all things, a matter treated at length under Law.

Retribution is not the only reason for punishment, though Aquinas takes it to be the indispensable one. Punishment is sometimes inflicted for the good of those who are punished, and sometimes for the amendment of others. When a thief is hanged, he observes, this is not for his own amendment but for the sake of others, who may at least be deterred from crime through fear of punishment. Both reasons apply to human as well as to divine law, and human law annexes penalties to its precepts because it makes use of the fear of punishment in order to ensure obedience among those whom the love of virtue does not move. Discussing the severity of the penalties imposed under the Mosaic law, Aquinas sets three reasons side by side: that a greater sin deserves a greater punishment, that men are not easily cured of habitual sin except by severe punishments, and that they are not easily deterred unless the punishment is severe.

On the death penalty Aquinas argues that the common good may require the removal of a criminal whose continuance is a danger to the community, as a physician amputates a diseased limb to save the body. The individual, considered as a part, may be sacrificed to the whole when he cannot be corrected by lesser means. Aquinas prefers the lesser penalty wherever it suffices, and he insists that only public authority, never a private person, may lawfully impose death. The doctrine of divine punishment follows the same order: the pains of hell are retributive and without term, while the pains of purgatory are cleansing and admit of an end, so that divine justice includes both absolute retribution and a penalty that is remedial. Whether punishment can ever be justified by its utility alone, without reference to the requital of evil for evil, Aquinas denies.

The account is the most fully articulated attempt in the tradition to hold retribution, amendment, and deterrence together in a fixed order rather than to choose among them. Hobbes and Locke afterward place the whole reason for punishing in its future effects, and Rousseau lays the greater weight on the reformation of the offender. Kant and Hegel take the opposite course, admitting no reason but the requital of the deed. Whether the conflicting principles can be combined without contradiction is tested most sharply in the determination of particular penalties, where a punishment deserved on the score of justice may be more or less than what deterrence or reform would recommend.

Hobbes defines punishment as an evil inflicted by public authority upon one who has done or omitted what that authority judges to be a transgression of the law, to the end that the will of men may thereby be the better disposed to obedience. Each part of the definition carries a restriction. The evil must be inflicted by public authority, so that private requital is no punishment at all. It must fall upon one who has transgressed a law already in force, so that harm inflicted where no law was broken is not punishment but violence. And the end assigned is wholly future: the disposing of men's wills, not the settling of an account. Among the laws of nature Hobbes accordingly places the rule that in revenges men look not at the greatness of the evil past but at the greatness of the good to follow, from which it follows that we are forbidden to inflict punishment with any other design than the correction of the offender or the direction of others.

Since justice and injustice have no place before the commonwealth is established, punishment cannot be grounded in a moral order antecedent to law. Hobbes therefore treats it as an instrument of sovereignty. A law without a penalty annexed is not a law but vain words, and the end of punishment is the same as the end of law, which is the preservation of peace. The severest penalties are reserved not for offenses against particular persons but for those that are of most danger to the public. Anything inflicted beyond this, or upon the innocent, or without antecedent law, Hobbes calls an act of hostility rather than a punishment, and he holds that against hostility the subject retains the right to defend himself, since he never covenanted away the defense of his own life.

Hobbes also takes up the penalties that follow from the nature of things rather than from the sentence of a judge. In the chain of consequences set going by any action he discerns what he calls the natural punishments of those actions that are the beginning of more harm than good: intemperance is naturally punished with diseases, injustice with the violence of enemies, and cowardice with oppression. This is one interpretation of the maxim that vice is its own punishment, and it differs from the interpretation, held by Augustine and by Kant, that the disorder of the soul is itself the penalty rather than the source of penalties to come. The distinction between natural and juridical punishment is developed further under the ideas of Nature and of Virtue and Vice.

The theory places Hobbes with Plato, Locke, and Rousseau among those who look for the reason of punishment in its consequences, though he differs from Plato in setting public peace rather than the health of the soul as the effect to be procured. Locke follows him in deriving the measure of punishment from what is needed to restrain the offense, while grounding the right to punish in a natural law that Hobbes would not admit before the commonwealth. Montesquieu and the later reformers work out in the penal codes what Hobbes states as a principle. Kant, who calls those who look for advantage in punishment the followers of serpent windings, denies the principle altogether.

Locke agrees with Hobbes that the reason for punishing lies in the effects to be procured, but he differs on the origin of the right. For Hobbes there is no right to punish until a sovereign has been erected; for Locke the right belongs in the state of nature to every man. The law of nature, which reason teaches to all who will consult it, forbids harm to the life, liberty, health, or possessions of another, and it would be of no force if no one had power to execute it. Locke therefore derives from natural law the right to punish transgressors for restraint and preventing the like offense, adding that each transgression may be punished to that degree and with so much severity as to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like. The natural executive power is not an arbitrary license. It is bounded by the same law that confers it, and it must be exercised by calm reason and conscience rather than by passion.

Three ends are named in that formula: the deterrence of others, the repentance of the offender, and the restraint of further injury, to which Locke adds the distinct right of the injured party to seek reparation for the damage he has suffered. What the account excludes is punishment inflicted for no reason but that the wrongdoer deserves to suffer. Even in the state of nature the penalty must answer to some good it procures, and the measure of severity is set by what will suffice to make the offense unprofitable. The right of reparation and the right of punishment are distinguished, since the first belongs only to the man who was injured while the second belongs to any man whatever, an arrangement that Locke thinks strange at first sight but necessary if the law of nature is to be preserved.

Civil society is entered in part because private punishment is subject to disorders that no rule can cure. Men are partial in their own cause, and where each is judge and executioner self-love and passion carry them beyond what the offense requires, while friendship carries them short of it. Government remedies this by settled and known laws, indifferent judges, and a power to execute the sentence, and the individual gives up his natural executive power in exchange. The magistrate's authority to punish is limited by the ends for which it was surrendered, extending no further than the preservation of the lives, liberties, and estates of the members. Locke also treats punishment in connection with the problem of personal identity, holding that unless the man punished is the same person who committed the act, no penalty can justly be laid upon him, a question discussed under Man and under Same and Other.

Locke's position stands between the two great parties in the controversy, since it makes punishment answer to utility while grounding the right to inflict it in a law antecedent to the state. Montesquieu presses the question of severity further, asking what proportion between penalties and offenses will actually reduce the number of crimes. Rousseau, who also derives the right to punish from the compact, lays more weight on the reformation of the offender and defends the death penalty on the ground that men consent to die if they themselves turn assassins. Kant and Hegel reject the whole manner of argument, holding that the taking of a criminal's life is warranted by what he has done and not by the protection of society from what he might do.

Montesquieu considers the penal codes of the various systems of law almost entirely with reference to their success in preventing crime and to the kind of government they belong to. He asks less whether a penalty is deserved than what sort of regime produces it and what effect it has upon the manners of a people. Republics, whose principle is virtue, and monarchies, whose principle is honor, can govern with moderate punishments, because their citizens are moved by attachment to the laws and by the fear of shame. Despotisms, whose principle is fear, must employ mutilations, tortures, and penalties extended to the families of offenders, since terror is the only spring of action left to them. The severity of the code is thus a mark of the constitution rather than of the wickedness of the people, and Montesquieu observes that where the laws are moderate the people are moderate, while a government that governs by the executioner hardens those it governs.

The argument against severe punishments is drawn from experience rather than from the injustice of severity. Excessive penalties lose their effect when men become accustomed to them, and a code that punishes lesser and greater crimes alike destroys the proportion by which men are led to prefer the lesser. In Russia, Montesquieu remarks, where robbery and murder are punished alike, they always murder. He does not seem to think that punishment can improve the character of an individual, but he holds that a certain proportion between the penalty and the offense tends to reduce both the number and the gravity of crimes. The graduated scale of penalties is therefore recommended as a means of directing the calculation of those who might offend, and this consideration, rather than any principle of desert, supplies the measure of severity.

Montesquieu also treats punishment as it bears upon liberty, which he takes to consist in the security or the opinion of security that the subject enjoys under the laws. Cruel and unusual punishments, secret accusations, and vague statutes are opposed on the ground that they destroy this security and corrupt public morals, and not chiefly on the ground that they are unjust to the man who suffers them. He holds that crimes against religion and against morals should be met by remedies drawn from the nature of the offense rather than by the penalties of the criminal law, since the confusion of these orders enlarges the power of the magistrate without securing the ends of either. The judgment of criminal cases should follow the letter of the law, for where the judge is left to determine what the offender deserves, the citizen no longer knows what he risks. This connects the treatment of punishment to the separation of powers discussed under Government and Liberty.

Beccaria afterward carries this manner of argument into the reform of the penal codes, and Bentham into a general theory. Hegel, who thinks that Beccaria's efforts to abolish capital punishment had beneficial effects even though the reasoning was mistaken, notes that the death penalty has in consequence become rare, as should be the case with the most extreme punishment. Hobbes and Locke discuss the severity of penalties in the same utilitarian way and face the same difficulty, that a punishment severe enough to deter may harden the offender instead of reforming him. Kant denies that the measure of punishment can be settled by any such consideration, holding that the principle of equality alone can assign both the quality and the quantity of a just penalty.

Kant holds that punishment has no purpose in the sense of an end beyond itself, and that the only desire it should satisfy is that of seeing the moral law upheld. Every theory that directs punishment to the reformation of the criminal, the deterrence of others, the welfare of society, or the slaking of the thirst for vengeance he classes together as utilitarian and rejects. The ground of the rejection lies in the principle that no rational being may be treated merely as a means to an end. A criminal punished in order to make an example of him is used as an instrument for the instruction of others, and a criminal punished in order to be reformed is treated as an object upon which the state may work its own conception of virtue. Punishment is imposed, on Kant's account, for no other reason than that the man on whom it falls has committed a crime, and the penal law is a categorical imperative from which no consideration of advantage can release either the offender or the judge.

The measure of punishment is supplied by the principle of equality, by which the pointer of the scale of justice is made to incline no more to one side than the other. The undeserved evil which anyone commits upon another is to be regarded as perpetrated upon himself, and this right of retaliation, properly understood, is for Kant the only principle that can definitely assign both the quality and the quantity of a just penalty; all other standards he takes to be wavering and uncertain. The death penalty follows for murder, since no other requital answers to a life taken, and Kant presses the point with the case of a civil society dissolving itself by common consent, in which the last murderer in prison would have to be executed before the dissolution, so that each receives the desert of his deeds and blood guilt does not remain upon a people that failed to insist upon the penalty.

The theory is not a defense of vengeance. Kant distinguishes the private passion of the injured party from juridical punishment, which is imposed by a court under promulgated law, and he distinguishes juridical punishment in turn from natural punishment, in which crime as vice punishes itself and which does not come within the cognizance of the legislator. Since the whole warrant for the penalty is the commission of the crime, no innocent person may be punished whatever advantage might follow, and the requirements of proof and fair trial belong to the theory rather than being added to it from outside. The bearing of these distinctions on responsibility, on the conditions under which an act is imputable to its author, is treated under the ideas of Will and of Duty.

Kant and Hegel stand together in the tradition as the writers who make retribution the whole of the reason for punishing rather than the first among several reasons. Hegel accepts the retributive premise and restates it as the annulment of a wrong by which the criminal's own rationality is acknowledged, while objecting that the theories which treat crime and its requital alike as evils brush aside the objective treatment of the righting of wrong. Mill, taking the contrary side, allows that the desire to punish is included in the sentiment of justice but denies that a sentiment can determine what ought to be done. The opposition between the two accounts governs most of the further questions about punishment, including the grading of penalties and the justification of the death penalty.

Hegel begins where Kant leaves off, taking punishment to be required by the deed itself rather than by any good it may procure. Crime, on his account, is not merely an injury to a particular man but a violation of right in general: the thief, in taking what is another's, asserts implicitly that the principle of property does not hold, though he relies upon that same principle in claiming the thing he takes. Punishment is the annulment of this assertion, an injury of the injury, by which right is restored to itself. Hegel objects to the theories that treat crime and punishment alike as unqualified evils, for on that supposition it seems unreasonable to will an evil merely because another evil is there already, and punishment must then be recommended as a threat, a deterrent, or a means of reform. To give punishment this character, he holds, is to brush aside the objective treatment of the righting of wrong.

From this follows the proposition that the criminal has a right to be punished. Since the criminal is a rational being, his act carries a universal implication which the state must take seriously, and punishment is regarded as containing his right, so that by being punished he is honored as a rational being. He does not receive this due of honor, Hegel writes, unless the concept and the measure of his punishment are derived from his own act, and still less if he is treated as a harmful animal to be made harmless, or with a view to deterring or reforming him. The consent that Beccaria demanded is already given, on this view, by the act of the criminal himself. Whether the penalty must be equal to the crime in kind, or only proportionate in the value of the injury, Hegel treats as a question of the specific determination of punishment, which admits of no exact resolution.

Hegel devotes considerable attention to the confusion of retribution with revenge. In a condition of society where there are neither magistrates nor laws, punishment always takes the form of revenge, which is defective because it is the act of a subjective will and provokes a further revenge without end. What removes the defect is the appearance of the injured universal in place of the injured party, and its actuality in the court of law, where the pursuit of crime ceases to be contingent and becomes the reconciliation of right with itself. On the death penalty Hegel denies Beccaria's conclusion while allowing that his efforts had beneficial effects, observing that capital punishment has in consequence become rare, as should be the case with the most extreme punishment. He rejects also the doctrine that the state rests upon a contract for the protection of life and property, holding that the state may claim the sacrifice of both, a position treated further under State and Citizen.

The argument gives the retributive position a ground different from Kant's, since the warrant for the penalty is located in the concept of right rather than in a categorical imperative binding the will. Mill afterward sets aside this manner of reasoning, holding that the sentiment of retaliation, however it may be dignified, must be judged by the consequences of indulging it. Whether the passage from private revenge to public punishment alters the nature of what is done, or only the hands that do it, is the question Aeschylus raised in the Eumenides, which Hegel cites when he says that the Furies sleep until crime awakens them.

In the chapter on justice in Utilitarianism Mill offers an account of the sentiment of justice rather than of the standard by which acts are to be judged. The sentiment includes among its elements the desire to punish, which Mill identifies with the natural feeling of retaliation or vengeance, enlarged by sympathy into a demand that wrongdoers generally should suffer. The giving of evil for evil is on his account closely connected with the sentiment of justice and universally included in the idea, as is the principle of giving to each what he deserves, whether good or evil. Mill goes so far as to say that this principle is a proper object of that intensity of feeling which places the just, in human estimation, above the simply expedient. Whether this leaves him a utilitarian in the theory of punishment has been questioned, since he appears in these passages both to reduce retribution to revenge and to call it just.

The standard by which the sentiment is to be regulated is, however, utility. A feeling of the strength Mill describes explains why men punish and why retributive doctrines have their hold, but it does not by itself show that any particular penalty ought to be inflicted. The purposes that can justify punishment are accordingly the deterrence of future offenses, the reformation of the offender, and the protection of others from him, all of which look to consequences, and none of which requires the notions of desert or of the annulment of a wrong. From this it follows that the penalty should be no greater than its purposes require, since suffering inflicted beyond that point adds to the sum of evil without a compensating good. The same limitation appears in On Liberty, where Mill argues that society may exercise power over the individual against his will only to prevent harm to others, and that conduct which concerns the agent alone is not a proper subject for legal penalty or for the milder punishments of opinion.

The chief objection brought against this manner of argument is that it appears to permit the punishment of the innocent whenever the consequences of doing so would be good. Mill answers that a practice of punishing the innocent could not in fact pass the test of utility, since the security men derive from knowing that only the guilty are punished is among the most important of all interests, and its destruction would outweigh any advantage gained in a particular case. The rule confining punishment to the guilty is therefore itself defended on utilitarian grounds, as are the forms of trial and proof which Kant derived from the dignity of the person. The question of what conditions must be satisfied before an act can be imputed to its agent at all, which Hume treats in connection with causal necessity, belongs to the discussion of Will and of Liberty.

Mill stands at the end of the line that runs from Plato and Hobbes through Locke and Montesquieu, in which the reason for punishing is sought in the effects to follow rather than in the deed already done. Against him stand Kant and Hegel, for whom the deed is the whole reason, and between them the theologians, who admit both the retributive and the remedial purposes while denying that utility alone can ever justify the infliction of pain. The issue is not settled by any of these writers, and it reappears in every further question about punishment: in the grading of penalties, in the justification of the death penalty, and in the conditions of responsibility treated under Justice and Law.