^{page 325 note 1} A. Flew: “The Justification of Punishment,” in PHILOSOPHY, Vol. XXIX, 1954. pp. 291–307.

^{page 326 note 1} Admittedly, a rule might be justified in the first place by reference to one more general, under which it is subsumed as a particular application—e.g. “It is wrong to pick flowers from public gardens because it is wrong to steal—and this is a special case of stealing”. But this would not be conclusive. It could be countered by making a distinction between private and public property, such that while the more general rule prohibits stealing the former, it does not extend to the latter. Whether the distinction can be accepted as relevant must depend on the reasons for the more general rule, understood in terms of its expected advantages, and on whether to allow the exception would tend to defeat them. Consider “Euthanasia is wrong because it is wrong to kill ”. It could be argued that the latter does not require the former; that a proper distinction can be made between killings generally, and those satisfying the conditions: i.that the patient wants to be killed; ii. that the purpose is to put him out of pain; iii. that there is no hope for his recovery. Suppose the reason for the general prohibition is to ensure that the life of man shall not be “ solitary, poor, nasty, brutish, and short”; then exceptions satisfying the above criteria might be admissible, on the grounds that not only would they not defeat the objectives of the rule, but that advantages would follow from distinguishing on the basis of these criteria, that would otherwise be missed. On the other hand, it might be said that it is absolutely wrong to kill—which is to deny the need for justification in terms of purpose or consequences, but is also to deny the need for any moral (as opposed to authoritative) justification. But in that case, how are we to decide whether “ Thou shalt not kill” does, or does not, extend to a duty “officiously to keep alive”?

^{page 328 note 1} Cf. Lord Justice Denning, in evidence to the Royal Commision on Capital Punishment: “The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime.” Cmd. 8932, §53 (1953). But “denunciation” does not imply the deliberate imposition of suffering, which is the feature of punishment usually felt to need justification.

^{page 328 note 2} Cf. Sir Ernest Barker, in Principles of Social and Political Theory, p. 182: “the mental rule of law which pays back a violation of itself by a violent return, much as the natural rules of health pay back a violation of themselves by a violent return.”

^{page 328 note 3} For J. D. Mabbott, too, punishment is a kind of automatic response, though in a different sense. “Punishment is a corollary not of law but of law-breaking. Legislators do not choose to punish. They hope no punishment will be needed. The criminal makes the essential choice; he ‘brings it on himself’.” (“Punishment”, in Mind, Vol. 48, 1939, p. 161. He reaffirms the position in “Freewill and Punishment”, in Contemporary British Philosophy, 3rd Series, ed. H. D. Lewis, 1956, p. 303.) But legislators choose to make penal rules, and it is this choice that needs justification.Google Scholar

^{page 329 note 1} The Philosophical Theory of the State, 4th edn. (1923), p. 211.

^{page 331 note 1} Cf. A. Quinton: “On Punishment,” in Analysis, Vol. 14, reprinted in Philosophy, Politics, and Society, ed, P, Laslett, 1956.

^{page 332 note 1} Ethical Studies, 2nd edn. 1927, pp. 26–7.

^{page 332 note 2} A. Quinton: op. cit., in Analysis, p. 137, in Philosophy, Politics, and Society, p. 86.

^{page 333 note 1} Cf. Mundle, C. W. K.: “Punishment and Desert,” in Philosophical Quarterly, Vol. 4, 1954: “the retributive theory implies that punishment of a person by the state is morally justifiable if, and only if he has done something which is both a legal and moral offence, and only if the penalty is proportionate to the moral gravity of his offence”, p. 227.CrossRefGoogle Scholar

^{page 333 note 2} This is roughly Mabbott' view (op. cit.). He is a rare example of a retributivist who dissociates punishment and moral guilt.

^{page 334 note 1} A man who had broken a law (say, an import regulation), of the existence of which he was ignorant (but avoidably so), would be liable to punishment. It would be to counsel perfection to say that everyone has a moral duty to know of every law that might affect him. I should say, in this case, that the offender had been imprudent, but not immoral, in not ascertaining his legal position. I should impute no moral guilt either for his ignorance or for his breach of the rule; but I should not feel, on that account, that he was an injured innocent entitled to complain that he had been wrongly punished.

^{page335 note 1} Hegel virtually admits the impossibility of answering this question rationally (Philosophy of Right, § 101) but insists nevertheless that there must be a right answer (§ 214) to which we must try empirically to approximate. But by what test shall we judge whether our shots at justice are approaching or receding from the target?

^{page 336 note 1} The Right and the Good, 1930, pp. 62–3.

^{page 336 note 2} Op. cit., p. 162.

^{page 337 note 1} Introduction to the Principles of Morals and Legislation, Chap. XV, §§ 11–12.

^{page 338 note 1} We could say “Some trivial crimes deserve serious penalties” if we wished to imply that some crimes are a good deal more serious than they are generally held to be. But the sentence woul be better punctuated: “Some ‘trivial’ crimes...”, for they are “trivial” in the view of others, not of the speaker. Consider, in this connection, the difference of opinion between pedestrians’and motorists’ associations on the gravity of driving offences—and on the penalties appropriate. A pedestrian might not think a prison sentence too severe a penalty for speeding—but neither is it, for him, a trivial offence.

^{page 339 note 1} Grading sentences according to the number of previous convictions might be justified by the failure, ex hypothesi, of lesser penalties on earlier occasions, to act as deterrents. Possible imitators with similar records may possibly require a similarly severe deterrent example. For most of the rest of us, with little criminal experience, lighter penalties awarded to less hardened offenders are sufficient deterrents. A case can therefore be made for reserving the severest penalties for the class of criminals least easily deterred.

^{page 340 note 1} Consider, in this connection, the difficulty of distinguishing the genuine survivor of a suicide pact, who has been unable to carry out his side of the bargain, from the cheat who relies on a counterfeit pact to evade the maximum penalty for murder. (See the Report on Capital Punishment, referred to above, §§ 163–176.) The same applies to “mercy-killing”: “How, for example, were the jury to decide whether a daughter had killed her invalid father from compassion, from a desire for material gain, from a natural wish to bring to an end a trying period of her life, or from a combination of motives?”(Ibid.., § 179). Nevertheless, where we feel reasonably sure that the motive was merciful, we expect leniency. A mercy-killing is not in the same class as a brutal murder for profit, and we may feel justified in tolerating a few examples rather than inflict the maximum penalty on this type of offender.