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The Moral Basis of Punishment

Published online by Cambridge University Press:  24 September 2024

Austin Gaskell O.P.
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Example alone is the end of all public punishments and rewards. Laws never inflict disgrace in resentment, nor confer honour from gratitude. ‘For it is very hard, my lord’, said a convicted felon at the bar to the late excellent judge Burnet, ‘to hang a poor man for stealing a horse’. ‘You are not to be hanged, sir, answered my ever-honoured and beloved friend, for stealing a horse, but you are to be hanged that horses may not be stolen.

A Voyage to Lisbon, 1754.

Henry Fielding too, was honoured in his time as a just and humane magistrate, but few of us today would feel able to endorse the judge’s action as he does. Even the severity of the sentence scarcely repels us so much as the callousness with which the judge scores a debating point at the expense of the condemned man. And is his point even valid? Put like this, the theory of pure deterrence appears crudely utilitarian, and difficult to justify morally, because it treats a human being as only an instrument of deterrence. Can we truly say that the man is not being hanged for stealing a horse? Would he have been hanged if he had not stolen the horse? Surely not. And in that case, can we say that penal justice is concerned only with the future effects of punishment, and that we need not consider what punishment the criminal has deserved?

In talking about punishment, there is a danger of a false antithesis arising through over-simplification. Retribution, deterrence and reformation are sometimes presented as if they were mutually exclusive— as if the adoption of one theory automatically excluded the other two.

Type
Research Article
Information
Blackfriars , Volume 42 , Issue 495 , September 1961 , pp. 352 - 363
Copyright
Copyright © 1961 Provincial Council of the English Province of the Order of Preachers

References

2 ‘Même quand il s'agit de l'exécution d'un condamnéà la mort, l'Etat ne dispose pas du droit de l'individu à la vie. Il est réservé alors au pouvoir public de priver le condamné du bien de la vie, en expiation de sa faute, après que, par son crime, il s'est déjà d%eApossédé de son droità la vie’. Pope Pius XII, in an address to the first International Congress on the Histopathology of the Nervous System. A.A.S., vol. xix (1952), p. 787.Google Scholar

3 2a‐2ae. 80, c and ad I. 108, 2 ad 1.

4 2a‐2ae. 61, 4. Ethics, v, 5, 1132 b 22.

5 2a‐2ae. 87, 1.

6 A.A.S., vol. xx (1953), pp. 730–744. Google Scholar cf. 1a‐2ae. 87, 6.

7 2a‐2ae. 108.

8 ‘Children and Punishment’, Durham Research Rev., vol. 3, no. 11 (1960), pp. 12–26. Google Scholar

9 A.‐M. Henry, o.p., Initiation Théologique, tome 3, p. 946. Google Scholar

10 ‘Et eadem est ratio de pueris qui nondum habent debitum usum rationis, per quern sint doli capaces; quem quidem pueri habent, ut frequentius, circa quartumdecimum annum, puellae vero circa duodecimum, qui dicuntur anni pubertatis. In quibusdam tamen anticipatur, et in quibusdam tardatur, secundum diversam dispositionem naturae’. 2a‐2ae. 189, 5.

11 Cf. the symposium, ‘The Development of Children's Moral Values’, Brit. J. Educ. Psychol., 1957–60. There is useful survey of earlier work in the first two papers: I, J. Hemming, ‘Some Aspects of Moral Development in a Changing Society’ (vol. 27, June 1957, pp. 77–88); II, J. F. Morris, ‘The Development of Adolescent Value‐Judgments’ (vol. 28, Feb. 1958, pp. 1–14).