The ideas of responsibility and punishment seem to go very closely together. The most obvious form of this is that punishment is thought to be inflicted properly only on the guilty in respect of some failure to make appropriate use of their responsibility. We do indeed sometimes use the words ‘punishing the innocent’, and it is hard to see how this can be altogether avoided. If there has been some ‘miscarriage of justice’ and an innocent person comes in this way to be wrongly convicted and sentenced, perhaps to death or imprisonment, we are deeply disturbed at this suffering of an innocent person; and we protest and seek to have amends made, where possible, for this wrongful punishment. But one cannot be altogether happy with this way of speaking. We are even less happy if it is thought that there may be very exceptional circumstances where we would proceed against those who have done no wrong for some retaliatory purpose or, by some deception, ‘make an example of them’ or allow them to become scapegoats. Whether there are circumstances which could justify this expedient is a moot point. Most of us would take a great deal of convincing. But I do not wish to go into that question here. Punishment is normally of the guilty, and it is only under cover of pretending that the innocent are guilty, or framing them, that the dire expedient of punishing the innocent can be thought to have any purpose or justification — if it has. At some point there is a presumption of guilt.
The same goes for cases where an innocent person takes on himself the punishment of the guilty. This may be done out of profound concern, or to meet some supposed requirement of justice. Various forms of expiation come about in this way, and the more unblemished the victim the better. But in these cases also the ultimate presumption is of guilt somewhere. That is what calls for punishment.
The situation in which we are most prone to think that punishment for some wrongful action may have to fall on persons quite other than the actual perpetrators of the deed is where there is supposed to be some shared or collective responsibility whereby those who are not themselves implicated, or at least not directly so, are presumed all the same to share the actual guilt of the persons expressly accountable. But in this case the assumption is that persons who had no part, at least explicitly, in some wrongful action may all the same in some way become partakers of the guilt and responsibility for it.
Alternatively, we may think of punishment falling on the innocent simply because they are unavoidably hurt in the punishment of those who are actually guilty. Punishment may in this way fall heavily on the parents or other relatives of guilty persons. Sanctions are a similar case. If these are applied, it is impossible in practice to so isolate the innocent, even those who have been very actively opposed to some evil regime, that they will not also suffer grievously along with the wicked. But we would certainly be very reluctant in such cases to concede that the innocent had themselves become guilty because they are caught up in the punishment of the guilty. There is no proper presumption of guilt in these instances, and, for that reason, no punishment except in a very loose metaphorical sense or for a rough and ready purpose.
But there is further involvement of the ideas of punishment and responsibility in one another, at least according to widespread opinion. This comes about when it is thought that the notion of responsibility itself has to be understood in terms of liability to punishment. The one idea, it is presumed, goes along essentially with the other. This has been the view of impressive thinkers who have been markedly at variance with one another in their main approach to ethical problems — Bradley1 and Rashdall,2 for example, some while ago and Blanshard3 and Nowell-Smith4 more recently. To many indeed it seems axiomatic that the notion of responsibility is meaningless in isolation from the idea of punishment, and thus they may come to make the alleged involvement of responsibility and punishment in one another a major guide in their treatment of some central ethical issues.
At some levels the case for this view is clear and unobjectionable. It seem beyond doubt that, in early times, and extensively later, there has been, in thought and practice, an identification of responsibility and liability to punishment. The etymology of the former term reflects this. The word ‘responsibility’ is derived from a word which meant liability to answer, or to be called upon to answer. This presupposed that, if the answer was not satisfactory, if a person could not give a proper account of himself, he could be justly proceeded against and punished in some way. That is still the meaning of the term in law, or in some quasi-legal contexts. We do not regard very young children or the insane as responsible in these ways. They may have to be restrained in their own interest of that of others, or subjected to some other unpleasant treatment. But it would be highly insensitive to think of this as punishment. It is a measure we may have to take, and with every justice. But it is not punishment, for only persons with further attributes, lacking in these cases, are thought to be persons whom we consider to be properly liable to punishment.
But legal concepts and their like are nonetheless not to be identified with ethical ones. They are closely related but not the same. We expect the law to further the ends which are ethically important. Legal requirements are also extensively ethical ones. It is a crime to steal and it is also morally wrong. I have a legal obligation to pay my debts and also a moral one. The enactment of a law as such imposes a moral obligation, though other factors may over-ride it. But we do not mean the same in speaking of a moral and a legal obligation, even when the content is identical. The intention is vastly different; morality is one thing, law another.
There are, moveover, many areas of our lives which fall outside the proper province of the law. there are matters which are not the proper subjects of legal enactment. What these are need not detain us now. But personal relations, matters of literary and artistic interest, and religious belief and commitment, are obvious examples. This does not mean that the law has no concern of any kind with such matters. Just how the law may properly impinge upon them is a delicate question. But it seems beyond dispute that the law would defeat itself if it went too far in these matters. There are things, our attitudes of mind or our feelings, for example, which simply cannot be enforced by law directly; and there is much that we do, and which is to be highly esteemed, which would lose its point if done under compulsion, displays of courtesy and consideration for instance. Much will turn here on the spirit in which something is done, and on a delicacy in the execution which it would be out of the question to enforce.
T. H. Green has laid down a helpful principle for us here:
‘Those acts only should be matter of legal injunction or prohibition of which the performance or omission, irrespectively of the motive from which it proceeds, is so necessary to the existence of a society in which the moral end stated can be realized, that it is better for them to be done or omitted from that unworthy motive which consists in fear or hope of legal consequences than not to be done at all’.5
It is only outward conformity that can be directly enforced. Even here there is some limit in actual compliance. To take a trivial example, suppose it were thought important that we should greet one another politely by saying ‘Good day’. This could certainly be effectively enforced by sufficiently rigorous penalties. But it would also be possible to say ‘Good day. Sir’, as sometimes happens, as a brusque dismissal or in some other hostile way, or, if one were required by law to doff one’s hat, one might do so with an air of extreme contempt. Some well-meaning persons, often with a fine cause to further, have done their cause great harm by seeking to enforce by law certain matters which cannot be effectively furthered in that way. R. M. Maclver provided an impressive list in a well-known work The Modern State.6
The most direct way to bring out the radical difference, in what they mean, between law and morality is to note that it is possible to do grievous wrong morally, to be thoroughly wicked, without contravening any law of the land, and, on the other hand, to commit a serious crime and be morally innocent or indeed worthy of great esteem. Literature and history provide notable examples of persons who have been outrageously wicked without committing any crime. We need look no further than Mr. Tulkinghorn in Bleak House to find a rogue who knew the law well enough to keep the right side of it. Few ordinary citizens commit crimes, apart from minor matters like parking offences. But how many could put their hands on their hearts to say they had never in other ways been seriously at fault?
Examples of persons, on the other hand, who have been gravely at odds with the law but are, in the same respect, without blemish or indeed worthy of high esteem are easily found. In some of these cases there may be no more involved than ignorance, either of the circumstances or the precise requirements of the law, and if the ignorance is not due to easily avoidable negligence, the law itself would usually find exculpation in it, though it may sometimes have to take its course without allowing for excusable ignorance — legal justice has often to be rough and ready. But morally, I would maintain, invincible ignorance exonerates totally. There is not any ‘sinning in ignorance’, and of this there will be more to say later. But what matters more now is that it is possible to break the law deliberately and with full awareness and remain morally innocent or admirable.
There are notable examples in the Bible of persons we admire in this way. They have endured torment and died rather than conform to what the rulers in their land required. The early Christian martyrs are an excellent example. For a law came to be devised expressly to put them to the test by requiring certain responses from them which would involve a betrayal of their faith. To their lasting honour they endured privation and unspeakable torment, notable persons and vast numbers of ordinary and simple people, rather than conform at the expense of conviction. We place them high among the noble army of martyrs. Nearer our own time we have a formidable instance — one of very many down the ages — in the case of Thomas More, both a great lawyer and a great churchman. He understood well the importance of upholding the law, he was not recklessly defiant but a man of conformity and compliance, not obviously in the mould of martyrs, but he went to his death, after a remarkable exercise of Christian charity, with words that went echoing round Europe in his day and are very pertinent to our thoughts today — ‘the King’s good servant but God’s first’.
Those who helped the Jews to escape from Germany in the days of Hitler or aided them in other ways, or who opposed Hitler on other counts, like Bonhoeffer, were clearly out of line with the law. There was no mistaking what the law required; these fine people were committing crimes in Hitler’s Germany, but we warmly endorse what they did and admire the courage and persistence they showed in the course of it. Legally they were at fault, but morally blameless and exceptionally worthy.
These are examples of people who took a brave stance in resistance to despotic regimes. But the same situation could arise, and the same stance be taken and justified, in democratic communities also. But there the point of actual resistance, and much in the form of it as well, would be differently and much more reluctantly reached. Illegal or unconstitutional procedure is most extreme medicine in democratic countries. The normal and usually proper method of righting wrongs, to ourselves or others, in a democratic state, even an imperfect one, is persuasion. Where persuasion fails we abide by the result. The observance of constitutional procedure and the maintenance of law abiding-habits are of the utmost importance and would normally take clear precedence over the furthering of other important causes. For reforms to last they must themselves have a firm place within a constitutional framework. A right when we have one does not imply that we have invariably a right to insist on that right. There are available to us various means of persuasion, in personal encounter, in the press, the media, in public assemblies and many other ways. These may as yet be far from perfect. But they are immensely valuable and to be cherished, and in countries that have also elections and secret ballots and where the rule of law, with protection against arbitrary arrest, is firmly upheld, the observance of law and constitutional procedures have paramount place.
This needs to be firmly stressed in the present state of the world and of our own society. There is deeply embedded in our own history, from the time of Magna Carta and earlier, and in impressive ways in our Celtic heritage, and through Habeas Corpus acts to the rule of law and electoral procedures of today, a profound respect for law and related supports of freedom. Compromise is not a sign of weakness but of strength. We need to be reminded of this when powerful sections of the community have recourse to new sources of power, made possible by democratic advances, to impose their will ruthlessly on others. The complexities of our economic existence, and the close web of industrial life, at home and abroad, give us new instruments of power which need to be used with restraint and respect for agreed methods of settling differences on which our health and prosperity are greatly dependent.
But when all this has been said, and stressed far more than is appropriate here, it must also be allowed that even in democratic communities, and highly advanced ones, the point may be reached when individual members of such communities, or organised groups, may have to say, as was said at another period of turbulence and crisis, ‘Here I stand, I can do no other’. This stance may be justified in a particular case, or it may not. It may be objectively, or, as it is sometimes put, materially right. But, whether it is or not, this, as such, has no direct bearing on the properly moral worth of the agent. That, as will be stressed again, depends entirely on the loyalty of a person to his duty as he sees it at the time. In theological terms, there is no ‘sinning in ignorance’, or at least in ‘invincible’ ignorance. Failure to take proper care and trouble is another matter. But a conscientious person can do no other at the time than act in accordance with what seems to him at the time required. It does not follow that when a person sincerely does this, our respect for his integrity and devotion to duty precludes his being rightfully hindered or stopped by others. Sincere convictions are also fallible, and in some cases the error may be gravely damaging. In that case, respect for conscience would be consistent with the intervention of others. How, in practice, those matters should be approached, is a further question. How much allowance should be made for integrity etc. will vary much with other circumstances, and here again there will be something which is actually or materially required, together with our honest fallible convictions as to what that is. I have written at more length on this elsewhere.
But the main point at the moment is that, even in democratic communities, and after adjustment to their imperfections, the point may be reached when the circumstances justify some unconstitutional action of one form or another, and that even when this is not objectively the case, the moral worth of the agent, even a very misguided but sincere one, is unimpaired and depends entirely on all he is prepared to do or endure in the line of duty as he sees it — irrespectively of all that others may feel, and perhaps rightly, they should do to arrest the mischief such persons may cause. There is no strict rule in these matters, only guidelines and the ‘rule of thumb’, which throws us back ultimately again in practice on each one’s fallible judgement, a judgement nonetheless claiming truth about what is in fact required.
It seems, then, to return to our main theme at the moment, that what is required in the way of moral demand and appraisal is radically different, in intention or meaning as well as, in some important ways, in content or substance, from legal enactment and demand. Law is one thing, morality another, and the question how we are to understand fundamental ethical notions, even when they have much in common with legal ones, is one that has to be considered in its distinctively ethical form.
This does not mean that there may not, all the same, be important resemblances between law and morality. We have noted that, in a legal sense, and in other quasi-legal senses, responsibility consists in one’s liability to punishment in certain conditions. Does this provide any clue to what responsibility means in a properly ethical sense?
Many suppose that it does. They take it that, in an ethical as well as a legal sense, responsibility is liability to punishment, if not by the officers of the law, then by other social pressures or sanctions, or, perhaps, by God. This has affected extensively the way the subject has been treated recently, by philosophers and others. We need, therefore, at this stage, to pursue this theme further.
It will help now to take a brief look at the main views that have been held about the nature of punishment. There is first the retributive view. There is, on this view, an inherent suitability in the infliction of suffering on the offender, appropriate to the nature and the gravity of the offence. The evil deed calls for punishment, and it is wrong for it not to be inflicted. The offender must get what is due to him simply in virtue of having committed the offence or being in some way morally evil. Punishment is what is due in this immediate way. This notion is sometimes thought to exemplify the doctrine of ‘organic unities’, in respect of values, as advanced by G. E. Moore in Principia Ethica. According to this doctrine, the value of a whole is not always the same as the sum of the values of the parts considered in themselves. The combination of the evil of the wrong-doing with the evil of suffering is thought thus to make the situation as a whole better rather than worse. Moore, and I think most who initially agreed with him. later abandoned the doctrine of organic unities. But it does help to underline the inherent appropriateness of punishment, irrespective of any further concern, in the notion of punishment as retribution.
A commendable feature of the notion of retribution is the insistence on the appropriateness, in degree and to some extent in nature, of the kind of suffering to be inflicted in the way of retribution. The measure of the severity, for example, must be pertinent to the gravity of the wrong-doing. The offender does not forfeit all consideration, he has not so outlawed himself as to be ‘fair game’ for any unmitigated suffering that may be inflicted on him. It would be monstrous, in terms of the present notion, to ‘must fit the crime’. This is sometimes overlooked by those who think in terms of retribution.
We need also to distinguish carefully between proper punishment as retribution and vengeance. The latter is for the satisfaction of personal feeling or grievance. Retribution concerns an inherent objective suitability. There is a case in practice also for apportioning punishment in part to the assuaging of the feeling of outrage of the immediate victims of wrong. But to the extent that this is allowed, we are passing beyond the area of retribution as such. That is also the case if allowance is made for deep public feelings of outrage. We have passed here to some form of expediency. Retribution must also be distinguished from making amends, though the latter, in some forms, may border on retribution, at least to the extent of its being thought to be inherently appropriate that the offender himself should be making amends. But we seem to pass beyond punishment proper here and to enter a terrain where other considerations, some form of expediency for example, may be most involved. It has been argued that the best treatment for some offenders, young persons perhaps especially, is to set them to work to repair some damage they have done. But the idea of retribution itself goes no further than the infliction of suffering, or its like in the form of deprivations etc., on the offender as what is immediately due to him in virtue of the wrongful thing he has done.
The second view of punishment to be noted here is the reformative one. According to this view, the purpose and justification of punishment is to reform the wrong-doer, especially in the form of making him genuinely sorry for what he has done or repentant. This must obviously mean more than that the offender is determined not to err in the same way again. For this might involve no more than that he has learnt how much to his disadvantage it may be to offend, a matter that falls under the deterrent theory to which I shall come. The reform must be genuine, and not a matter of prudence, a true change of heart, though it could involve other matters than strictly moral ones, the deepening of sensitivity and understanding perhaps.
We must not, however, conflate the reformative view of punishment with the advances we have in mind when we speak generally of penal reform. These are not meant to be part of the punishment as such. If they affect it this will almost certainly be as an amelioration. To have less crowded accommodation in prison, to be taught skills or a trade they might follow later, to have opportunities of improving their minds or working for a degree, to be protected against exploitation or sadism, to have remission for good behaviour or parole, to have access to those who may help if there is suspicion of injustice or need for greater privacy at visiting times — all such things may be greatly to the benefit of the offender and help to make him a better person and better able to take his place in society later. But such arrangements, although they have to do with punishment, are not implemented as part of the punishment itself. In most cases they would considerably lighten it, and objections are sometimes raised on the score that reforms move too far in the direction of comfort and easement.
What the reformative theory of punishment, therefore, implies is that the punishment as such, qua infliction of suffering, may bring about a genuine change of heart and related changes of attitude and character.
The third view to be noted now is the deterrent one. On this view the purpose and justification of punishment is to deter the offender, and others by his example, from behaving in undesirable ways, in the familiar words of John Locke to make it a bad bargain for the offender. It must be made clear that wrong-doing does not pay, or at least that the chances of its paying are low. In practice this seems to be the main justification of punishment and one about which there would be the main consensus of opinion among those who agree that punishment in some conditions is justified. Social enactments must be maintained, lawlessness and hurtful behaviour curbed; and if there are persons who will not observe these requirements out of genuine concern and scruple, they must be induced to do so for prudential reasons arising from the penalties imposed for wilful misdemeanour. Wrong-doing must not be allowed to pay, and punishment is an obvious way of ensuring that.
Deterrent measures may also include physical restraint upon the offender, most obviously by keeping him in prison and thus forcibly preventing him from persisting in the practices which brought about his downfall. But what is usually uppermost in the imposition of deterrent penalties is the effect upon the motivation of conduct by the threat of consequent deprivation or other suffering.
It must be added now that the views I have noted are not essentially exclusive or incompatible. It is possible for all the alleged features of punishment to be combined in a full understanding of it. Punishment may be in part retributive, in part for reform, and in part for deterrence. Such is the view of many thinkers. The judge, in that case, should have all these matters in mind when deciding what the sentence should be. Others retain one, or sometimes two, of the alleged ingredients in their final view.
The retributive view has a long history and has been very influential. Long before it was expressly formulated it had a formative part in the attitudes and practice of peoples. Immemorial custom prescribed it, blended imperceptively no doubt with the requirements of preservation. It deepened and perpetuated many antagonisms, most of all the collectivist presuppositions of early societies. Retaliation became an established requirement, extending not only to individuals but to entire communities as such. Bitter feuds and rivalries were perpetuated in these ways, and these had often more to do, we are told, with early wars than lust for power and expansion. Such attitudes persist in subtle ways, and sometimes overtly, in civilized communities and are apt to have a dangerous recrudescence in times of stress and crisis.
In religious contexts, and the religious toning of general attitudes, the notion of retribution has had a central role. It is present in some forms at least of the doctrine of Karma, and most of all in popular assimilations of it. In the long cycle of rebirth the circumstances of a new beginning are thought to depend on the way lives have been conducted in the opportunities and trials of earlier existences, including of course the one immediately preceding. There is much in the Jewish and Christian scriptures that must be understood as retribution and even more starkly in the subsequent more systematic and sophisticated formulations of Christian doctrines and in the controversies about them.
In its starkest form, the Christian understanding of retribution centred on a requirement of divine justice that sin should have visited upon it the appropriate punishment of damnation and unrelieved torment. This came about, moreover, through a fallen state and corrupt nature, sometimes totally corrupt, from which no one could extricate himself by his own effort. It is to this dire situation that Christian salvation was directed, the passion of Christ meeting on behalf of all who accepted him the full exactions of divine justice; and thus, in the triumph of God’s mercy over his justice, a restoration was possible and the blessedness of acceptance into the Kingdom of Heaven. This will seem to most Christians today a horrendous travesty of all we should understand by ‘the work and person of Christ’. The metaphors of bondage and ransom are understood for what they are — metaphors; and renewed efforts are made to appreciate better what must be understood, in respect of both original intention and later refinement, by ‘alienation’, ‘lostness’, ‘the price that was paid’, salvation and reconciliation. Such undertakings will concern us closely later. But at the moment all that we need to note is that an outright notion of retribution has played a part in the evolution of Christian doctrines and contributed in part to some of its more objectionable forms. Whether, as many suppose, it has still to be invoked in some way, short of complete transformation into some new idea, is a moot point on which I will not dwell further here. But it must be noted that some of our most remarkable thinkers, such as Kant, and many clear-sighted and liberal thinkers of today, have been loath to discard the notion of retribution altogether.
For my own part, however sympathetic I try to be, I can find no merit or fittingness in the infliction of suffering on an offender as an end in itself or an inherent ethical requirement — punishment for its own sake, if we may so put it. That there are natural reactions that bring us close to this I admit. When some peculiarly atrocious crime is committed, callous cruelty for example, it is very natural to feel that the perpetrator of it should, as we put it, be made ‘to take some of his own medicine’. He should not go scot-free when he has purposely caused acute and sustained misery to others, he should get ‘what is coming to him’. It is unjust that he should not be brought low himself. But there are in fact many strands in these spontaneous reactions. One is sheer revulsion at the deed. The other is the very proper sentiment that there is something deeply amiss, a thoroughly bad state of affairs, when a person in full possession of his faculties can commit vile atrocities without compunction. Such a one should be made to realize what he has done, it must be brought home to him, and this just because it is such a bad thing for him to be so insensitive. It is to do good to him, to stir up some pity and comprehension by his becoming more aware of the enormity of what he has done. There is also, especially in cases of assault and violence, much fear and the concern that such deeds should be ‘stamped out’ by the example of penalties they incur. Our spontaneous reactions are a mixture, and severely utilitarian concern may masquerade as the exaction of retribution.
It must be allowed that what I have called spontaneous reactions can in fact be long-lived. They persist many years after a crime has been committed and cause much public resentment of any easement or remission of a long sentence. My suspicion is that much of this arises from anxiety that, however the offender may appear on the surface to be now a changed person, some of the earlier motivation or madness may erupt again. There is also personal hate or resentment, especially a sense of unfairness when the victims of a crime still bear the marks of it. This is understandable, but retribution in the properly ethical sense is another matter. Apart from consideration of some good purpose served, for the wrong-doer or others, I fail to see that any ethical requirement is met by the infliction of suffering on an evil-doer simply because he is that, and irrespective of some good, perhaps of a suitable kind, to be brought about.
A further thought, to be brought out more fully later, is that assessment of properly moral worth or evil with any completion or finality is peculiarly difficult for us, except for each one in his own case. There may be features of the story which are not publicly available; and, while this does not preclude appraisal or condemnation, to seem to have it in a form which could be properly pertinent to the infliction of punishment would seem to allocate to ourselves the fullness of understanding only proper to God.
There seem to be some difficulties also in the reformative view, and some ambiguities. The main difficulty is to know whether the punishment as such, the suffering caused, brings about a genuine improvement or change of heart. It may well be that, in consequence of the punishment, the offender will vow never to err, in that way (or its like) again, and others will ‘learn the lesson’ from him. But this is deterrence, not genuine reform. There may be nothing more than prudence involved. The strong case for the reformative value of punishment is that the emphatic condemnation of the offence by society through its institutions and their rituals, in the infliction of punishment, induces sober reflection which may lead to a better perspective and change of attitude. It may induce a deeper sensitivity. I am not sure how strong the case is. The effect in some instances may be the reverse of what we expect. I would not, however, altogether deny that some forms of punishment at least may have the salutary effect of inducing a genuine change of heart. The point remains a moot one for me.
That other, supplementary, measures may bring about changes of mind and character, is not in dispute. It is important to reclaim the offender as well as to discipline him, and much thought is given to that in our time. But this is a different matter from supposing that punishment as such, as the infliction of pain or unpleasantness in some form, in the conditions which are appropriate, itself brings about, or has a strong chance of doing so, a genuine improvement of mind or character.
We seem thus, in the main, to be left with the deterrent purpose of punishment. In practice, at least, that is the consideration that is uppermost and counts. In the debate, a short while ago, about capital punishment, it was significant, when it came to the crunch, how much the issue centred on whether this form of punishment, to which in many respects there are strong objections, does in fact deter potential murderers in a way which may not be equally well achieved by other penalties which might be preferable in various ways. Less was heard, as the debates proceeded, about retribution and reform and more about the experience of countries where the death penalty had been abolished. Statistics were quoted respecting the alleged effect of dispensing with this punishment. Much was heard also about the possible hazards to policemen and others who had to cope with dangerous criminals. These were utilitarian considerations, and, while that by no means settles the issue, it inclines one still more strongly to the conclusion that deterrence is the sole justification of punishment, not only in the public administration of law but in all contexts.
With some hesitation, therefore, about the possible factor of reform, I myself come down strongly on the side of thinking of punishment exclusively in terms of its deterrent purpose. This, as will be seen shortly, has a very close bearing on some views of responsibility and freedom to which I proceed now.
It has often been stressed, as Bradley does especially in his celebrated essay on ‘The Vulgar Notion of Responsibility’,7 that, in all our thinking on this subject, there lies the deep conviction that no one can be properly called to account for what he has done or blamed except in respect of something which is truly his doing. ‘The vulgar understand that we answer; that we answer not for everything, but only for what is ours; or. in other words, for what can be imputed to us’8, ‘the deed must issue from my will’.9 If I am not the proper agent there is no sense in blaming me. But we have to consider also that what we are, the sort of person one is and the conduct that flows fom this, is shaped by heredity and environment; and, when we think in those terms, we are apt to conclude that, if a full account is taken, if we heed all that has made us what we are up to the very moment of action, what we do at some particular time is inevitable; it could not be otherwise, or, in further familiar terms, we ‘could not help it’. There is generated thus, and intensified by various views about Providence or Fate or Divine Foreknowledge that may be held, the notion that we cannot be free in a way that would warrant our being called to account or blamed.
This is the agelong problem of free will, debated, according to Milton, even by the demons ‘on a hill apart’. It seems, along one line of thinking at least, that we cannot be held responsible for anything, since nothing is properly our own doing. What we are and do is pre-ordained, or, if that is a somewhat laden term, determined by all the factors that have made us what we are and prescribe in that way what we do. This is the central problem for us in this study. In what sense do we have to be free to be morally accountable creatures, and do we ever have such freedom?
There are various answers to this question, and they will be noted in due course. I want here to note one very simple answer that appeals to many today and which depends expressly on the assimilation of moral to legal responsibility in the supposition that, in both cases, the crucial notion is punishment and our liability to it. Bradley, who does not however fall for the answer to be noted at the moment, puts it all very succinctly: ‘For practical purposes we make no distinction between responsibility, or accountably, and liability to punishment. Where you have the one, there (in the mind of the vulgar) you have the other; and where you have not the one, there you can not have the other’.10 This is firm and unambiguous. It is the basis for one widely canvassed solution to the problem of moral freedom.
That answer proceeds to note that, even if we find some form of determinism unavoidable, we may still find the infliction of punishment a defensible practice. Admittedly, the offender, in legal or moral wrong-doing, could not do other than he did at the time; all things considered he ‘could not help it’, the issue was inevitable at the time. But punishment, in certain conditions, could still serve a practical purpose. It could affect the conduct of the offender on some other occasion; it may, in the form of imprisonment perhaps, effectively prevent him from repeating his offence; and, as is even more important, it is very likely to deter others who might be tempted to commit the same offence or its like. The example of what the offender has suffered, in the course of his punishment, the extent to which his conduct proved a ‘bad bargain’ for him, will be in his own mind and that of others when temptation presents itself again. If, therefore, all that is involved in moral accountability is liability to punishment, there appears to be no obstacle to retaining that notion notwithstanding that we are presumed to act within the framework of some kind of determinism. Our problem is solved in all essentials.
This solution appears in writings which are otherwise vastly different. It is found, for example, in a notable work by Hastings Rashdall at the turn of century and, in a very different philosophical climate, half a century later in a widely read and admired Penguin book by Nowell-Smith, entitled Ethics.
Rashdall writes as follows:
‘The suggestion that Determinism undermines the idea of responsibility means at bottom that on the deterministic view punishment would be unjust. Whether that is so or not, must depend on the view we take of the nature of punishment… But if we were right in rejecting the idea of retribution, the fact that a man ‘could not help’ being born as he was, or educated as he was, is no reason why he should not be punished. If the judgement of value is to be trusted he is (to the extent of his actual wrong-doing) a bad man; and (again assuming the validity of our moral judgements) a bad man is a being who ought not to exist or who, if he does exist, ought to be turned into a good one by every means in our power. The protection of Society is of course another reason why he would be punished, the protection of Society meaning the true good of other individuals, each of whom may be worth as much or more than the offender. Ideally punishment ought to secure both ends; practically, in the administration of ordinary criminal law, the social object has to be the prominent one. But whichever side of punishment we look at. Determinism does nothing to make it unjust or irrational’.11
Professor Nowell-Smith writes as follows;
‘It would be strange if the logic of lawyers’ talk about responsibility were very different from our ordinary moral talk’.12 Proceeding on these lines, he declares that ‘the purpose of blame and punishment is to change a man’s character and principles’.13 But in seeking this end ‘we do not have pointless rules’. There is no purpose in punishing or blaming someone, blaming being here a variety of punishment, if the harm that was done was due to physical compulsion, like someone being pushed — ‘We know that it would do no good to punish him’.14 ‘We know from experience that most men can be trained to curb some desires, but not others’, and as we can prevent some diseases. ‘Similarly, if I know how Jones came to be a dishonest man I cannot prevent him from being dishonest now; but it may be possible to prevent others from becoming dishonest and to cure Jones of his dishonesty’.15 We punish juvenile delinquents less harshly than others because of the prospect of achieving the end in mind without the infliction of pain.
In the same vein we are told that ‘the names of virtues and vices are not purely descriptive words. They are terms of praise and blame used to express appraisal and disapproval and to influence the conduct of the person whose character is appraised and also of others’.16 There are some aptitudes we cannot induce in these ways. The schoolmaster punishes a lazy boy but not a stupid one, for ‘the lazy boy could have done better’.17 Some ‘characteristics can be strengthened or weakened by the fear of punishment or of an an adverse verdict or the hope of a favourable verdict’, and ‘we can therefore say that moral traits of character are just these traits that are known to be amenable to praise or blame’. ‘If we really thought that a man was so bad as to be irremediable we should, I think, cease to blame him’.18 This is the essential difference between thieves and kleptomaniacs; the wicked man differs ‘from the addict or compulsive in that the latter will respond neither to threats nor to encouragement’.19
This is very clearly presented. I can also readily make substantial concessions to it. In rejecting the retributive view, I agree that the purpose and justification of punishment must be the good, if any, to the offender and the deterrence of himself and others on other occasions — mainly the latter. It seems clear also that punishment in these ways makes good sense even when it is understood that it was inevitable at the time that the offender should behave as he did. There are various things which we would not punish, bad though their consequences may be. For they are not the kind of things that could be modified by punishment. If a person has no ear for music no amount of punishment would make a musician of him. If a train-driver fails to stop his train because the brakes failed, in a way in which he himself could not have foreseen or prevented, punishment would not induce him or others to do better another time. But if the driver had been negligent it would be quite another matter. However unavoidable, granted all that was true about me at the time, my punishment could induce in me or others a better frame of mind on other occasions.
Indeed, we punish animals or brutes in that way — if that is a proper term here. We house-train puppies by making things unpleasant for them, or swish the cat to teach it not to leap on the table to lap up the milk. Some training of this sort may be cruel, and in that case few would approve of it, but the point at the moment is that such training can be effective, and the like can be effective in the way we control one another’s conduct, or are controlled by our society. The ways in which this should be done, and the ends it should serve, are another matter. The point at the moment is that the infliction of punishment in these ways is in no way pointless if it should also appear that the sort of creature one is at a particular time makes it inevitable that we pursue a particular course.
Do I go along then with Nowell-Smith and his like? By no means. But the point at which I part company with them precedes the points which I have in common with them and the concessions I have just made. I challenge the claim that, in the properly moral sense, responsibility has to be essentially tied up with punishment, the one, as Bradley puts it, being unthinkable without the other. The issue of punishment, of when and how it is appropriate, is a quite separate one; and, if we think in terms of some inherent suitability of punishment, and do not treat it entirely as a practical device, then, far from punishability itself giving us the meaning of responsibility, it itself presupposes it. The punishment is called for because we have done ill and are already wicked and guilty. If wickedness calls for punishment it must have some prior reality of its own. If there is a debt to be cancelled, the debt must have been incurred in some way already.
This makes a position like that of F. H. Bradley peculiarly difficult to understand. He is so emphatic about the inherent appropriateness of punishment, irrespective of any further purposes it serves. He is particularly careful to indicate the conditions, as he understands them, in which punishment may be incurred. A punishable offence must be very certainly one’s own doing, that is the only way in which punishment can be deserved. There is a ‘necessary connection of punishment and guilt. Punishment is punishment, only when it is deserved. We pay the penalty because we owe it, and for no other reason’.20 But how do we come to owe it? ‘It is because I have been guilty’.21 ‘Punishment is the denial of wrong by the assertion of right, and the wrong exists in the self, or will, of the criminal’.22 We annihilate the wrong by fine or imprisonment, and ‘so punishment is also an end in itself’.23 But all this throws us back on guilt and the wrong that ‘exists in the self. This must have some nature of its own to require the punishment, and it must surely have that irrespective of the further fact that it calls for its appropriate punishment.
Far from being essentially involved in responsibility, and the meaning of it, punishment, it would seem, presupposes the prior reality of responsibility and the guilty misuse of it. How otherwise could we be so insistent that our conduct, on occasion, deserves punishment. Indeed, if conditions were such that punishment could never in fact be meted out, if our wrong-doing went always — as it certainly does a great deal of the time — unpunished, and with no overt liability to punishment, would it not still be wrong-doing; and if we dissociate ourselves, as I do, from Bradley’s notion of punishment for its own sake, or as an immediate cancelling out of the wrong, is it not still possible to retain the notion of wrong-doing and its involving a misuse of responsibility? Should we not in fact treat the question of punishment, of whether it is required in itself or for some further purpose, as a further question, presupposing guilt perhaps and responsibility but not directly constitutive of them? In that case our first concern should be with responsibility and what it implies.
What then, if, in opposition to Nowell-Smith, we claim that the clue to the nature of responsibility, in the moral sense, is not to be found in the legal and kindred infliction of punishment and liability to it, and, in correction to Bradley, maintain the priority of moral accountability to punishment — what, in the light of this, are we to say ourselves about moral responsibility? How are we to describe it in itself? To this question I now turn.
Ethical Studies Chapter I (See especially p. 4 of the London 1876 edition.)
The Theory of Good and Evil. Vol 2 p. 334 & f.
The Philosophy of Brand Blanshard (Library of Living Philosophere), p. 259–266.
Ethics Chapters 19 and 20.
Principles of Political Obligation, p. 38.
op.cit. Chapter V.
Ethical Studies. Essay I.
op.cit., p. 5.
Ethical Studies, p. 4.
The Theory of Good and Evil. Vol. II, p.334.
op.cit., p. 292:
op.cit., p. 294.
ibid., p. 296.
ibid., p. 297.
ibid., p. 301.
ibid., p. 303.
ibid., p. 306.
ibid., p. 306.
Ethical Studies, p. 25.
ibid., p. 25.
ibid., p. 25.
ibid., p. 25.