Hastings Rashdall - The Theory of Punishment
Hastings Rashdall - The Theory of Punishment
Hastings Rashdall - The Theory of Punishment
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International Journal of Ethics.
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The theoryof an intuitivecommand to punish will have reduced itselfto the somewhat barrenassertion that you have
no rightto punish except where therehas been wrong-doing.
This is a propositionwhich it is hard to dispute, since, as
a general rule,the public purpose is served by hanging the
wrong man. There are, however,cases where it must be admitted that sufferingmay lawfullybe inflictedon innocent
persons,-e.g., where a barony or a hundred is made to pay
compensationto persons injured in a riot,or where a savage
village that has sheltereda murdereris burnt by a European
man-of-war. These are two exceptional crises in which it is
necessary,in the interestsof society,to be less exacting in the
matterof evidence than a civilized state ought to be in quiet
times.
and disputable
We are here,however,strayinginto difficult
questions of ethics,and it is best to be contentwith simply
pointing out that when we have applied to the theorythe
qualificationswhich are demanded by the obvious facts,it is
reduced to very modest limits. It amounts simply to the
assertion that punishment should be inflictedonly on the
guilty; it admits that in its inflictionthe legislator should be
governed by utilitarianconsiderations,that is, by the end
which punishmentactually serves.
From the pointof view whichwe have hithertobeen taking,
the retributivetheorywill appear to most of us a mere survival of by-gone modes of thought. Yet, as is oftenthe case
with theories on whose vitalityrefutationseems to have no
effect,the retributivetheoryof punishmentcontains a good
deal of truthat the bottom of it,-deeper truthperhaps than
the Benthamiteview, which has taken its place in popular
philosophy. There are, I think,threeelementsof truthwhich
the retributive
view of punishmentrecognizes,and which the
ordinaryutilitarianview oftenignores.
(i) Firstly,it possesses historicaltruth. It is correctas an
explanation of the origin of punishment. Criminal law was
in its origin a substitute for private' vengeance. That is
shown by the Jewish law of homicide,by the Saxon system
of Wergilt,and by the Roman law, which punished the thief
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RASHDALL.