to warn, and it uses punishment as a threat. But the acts which the law forbids are, as a rule, such as public opinion condemns as wrong, and it is their wrongness that in all ages has been regarded as the justification of the penalties to which they are subject. It is true that there are instances in which the law punishes acts which in themselves are not apt to evoke public resentment, and others in which the severity of the punishment does not exactly correspond with the resentment they evoke. The State may have a right to sacrifice the welfare of individuals in order to attain some desirable end. It may have a right to do so in cases where no crime has been committed, it would therefore seem to be all the more justified in doing so when the evil has been preceded by a warning. And yet, in the case of punishment, it is only within narrow limits that such a right is granted to the State. To punish a person could not simply mean that he has to suffer for the benefit of the society; there is always opprobrium connected with punishment. Hence the scope which justice leaves for determent pure and simple is not wide. Sir James Stephen observes:-"You cannot punish anything which public opinion, as expressed in the common practice of society, does not strenuously and unequivocally condemn. To try to do so is a sure way to produce gross hypocrisy and furious reaction." Experience shows that the fate of all disproportionately severe laws which make too liberal use of punishment as a deterrent is that they come to be little followed in practice and are finally annulled. As Gibbon says, "whenever an offence inspires less horror than the punishment awarded to it, the rigour of penal law is obliged to give way to the common feelings of mankind.”

Numerous data, to be referred to in following chapters, will show how faithfully punishment reflects the emotion of resentment, and how impossible it would be to explain it from considerations of social utility without close refer

1 Stephen, Liberty, Equality, Fra- Römisches Strafrecht, p. 91 sq. ternity, p. 159. Cf. Mommsen,

ence to the feeling of justice. Why, for instance, should the attempt to commit a crime, when its failure obviously depends on mere chance, be punished less severely than the accomplished crime, if not because the indignation it arouses is less intense? Would not the same amount of suffering be requisite to deter a person from attempting to murder his neighbour as to deter him from actually committing the murder? And is there any reason to suppose that the unsuccessful offender is less dangerous to society than he who succeeds? All the facts referring to criminal responsibility, as we shall see, suggest resentment, not determent, as the basis of punishment, and so does the gradation of the punishment conformably to the magnitude of the crime. According to the principle of determent, as expressed by Anselm von Feuerbach and others, punishment should be neither more nor less severe than is necessary for the suppression of crime. But if this rule were really acted upon, the penalties imposed, especially on minor offences, which the law has been utterly unable to suppress, would certainly be much less lenient than they actually are. Moreover,

if there were no intrinsic connection between punishment and resentment, how could we explain the predilection of early law for the principle of talion-an eye for an eye, a tooth for a tooth, a life for a life- which, as we have seen, so frequently regulates the custom of revenge?

3

The criminal law of a society may thus, on the whole, be taken for a faithful exponent of moral sentiments prevalent in that society at large. The attempt to make law independent of morality, and to allot to it a kingdom of its own, is really, I think, only an excuse for the moral shortcomings which it reveals if scrutinised from the standpoint of a higher morality. Law does not show us the moral consciousness in its refinement. But refinement

1 Cf. Durkheim, Division du travail social, p. 93 sq.

2 von Feuerbach, Ueber die Strafe als Sicherungsmittel vor künftigen Beleidigungen des Verbrechers, p. 83.

von Gizycki, Introduction to the Study of Ethics, p. 188.

3 On this subject, see Günther, op. cit. passim.

is a rare thing, and criminal law is in the main on a level with the unreflecting morality of the vulgar mind. Philosophers and theorisers on law would do better service to humanity if they tried to persuade people not only that their moral ideas require improvement, but that their laws, so far as possible, ought to come up to the improved standard, than they do by wasting their ingenuity in sophisms about the sovereignty of Law and its independence of the realm of Justice.

CHAPTER VIII

THE GENERAL NATURE OF THE SUBJECTS OF

ENLIGHTENED MORAL JUDGMENTS

THE subjects of moral judgments call for a very comprehensive investigation, which will occupy the main part of this work. As already said, we shall first discuss the general nature, and afterwards the particular branches, of those phenomena which have a tendency to evoke moral condemnation or moral praise; and in each case our investigation will be both historical and explanatory. The present chapter, however, will be neither the one nor the other. It seems desirable to examine the general nature of the subjects of moral valuation from the standpoint of the enlightened moral consciousness before dealing with the influence which their various elements have come to exercise upon moral judgments in the course of evolution. By doing this, we shall be able, from the outset, to distinguish between elements which are hardly discernible, or separable, at the lower stages of mental development, as also to fix the terminology which will be used in the future discussion.

Moral judgments are commonly said to be passed upon conduct and character. This is a convenient mode of expression, but the terms need an explanation.

Conduct has been defined sometimes as "acts adjusted to ends," 1 sometimes as acts that are not only adjusted to ends, but definitely willed. The latter definition is too

1 Spencer, Principles of Ethics, i. 5.

2 E.g., Mackenzie, Manual of Ethics,

CH. VIII SUBJECTS OF MORAL JUDGMENTS 203

narrow for our present purpose, because, as will be seen, it excludes from the province of conduct many phenomena with reference to which moral judgments are passed. The same may be said of the former definition also, which, moreover, is unnecessarily wide, including as it does an immense number of phenomena with which moral judgments are never concerned. Though no definition of conduct could be restricted to such phenomena as actually evoke moral emotions, the term "conduct" seems, nevertheless, to suggest at least the possibility of moral valuation, and is therefore hardly applicable to such "acts adjusted to ends" as are performed by obviously irresponsible beings. It may be well first to fix the meaning of the word "act."

According to Bentham, acts may be distinguished as external, or acts of the body, and internal, or acts of the mind. "Thus, to strike is an external or exterior act : to intend to strike, an internal or interior one."1 But this application of the word is neither popular nor convenient. The term "act suggests something besides intention, whilst, at the same time, it suggests something besides muscular contractions. To intend to strike is no act, nor are the movements involved in an epileptic fit

acts.

An act comprises an event and its immediate mental. cause. The event is generally spoken of as the outward act, but this term seems to be too narrow, since the intentional production of a mental fact—for instance, a sensation, or an idea, or an emotion like joy or sorrow or anger may be properly styled an act. The objection will perhaps be raised that I confound acts with their consequences, and that what I call the "event" is, as Austin maintains, nothing but bodily movements. But Austin himself admits that he must often speak of "acts when he means "acts and their consequences," since "most of the names which seem to be names of acts, are names of acts, coupled with certain of their consequences,

1 Bentham, Principles of Morals and Legislation, p. 73.