Chapter Six





1. The Problem of Punishment

2. Definitions and Dialogues

3. Justifications

4. Apology and Penance

5. Condoning and Denouncing

6. The Overhearers

7. Vindication

8. Forgiveness and Mercy

9. Collective and Vicarious Punishment

10. The Constraints of Law

11. Strict Liability

12. Fair Trial

13. Nulla Poena Sine Lege?

14. Victimless Crimes




1. The Problem of Punishment


Punishment is a problem. It involves the deliberate infliction of something unwelcome on a rational agent, and that seems hard to justify. Punishment need not be painful in the ordinary sense of the word---it may, as Mabbott points out, be a deprivation of some good---but it is inherently unwelcome. When we punish someone we are doing to him something he would not, in the ordinary course of events, want us to do, and unless it is in some sense unwelcome, a punishment is not a punishment at all.


But if punishment is inherently unwelcome, it calls for justification. ``Why are you doing this to me?'' expostulates the person being punished, and often also the bystander may question ``Why are you doing that to him?''. We find it hard to answer these questions, but feel that we must try. Almost everyone has a concept of punishment, and on occasion thinks that somebody ought to be punished. Though sociologists and criminologists sometimes seem to be telling us that it is an out-moded concept that modern man ought to abandon, we are loath to drop it altogether, and we observe that those who profess disbelief in retributive punishment are none the less the first to demand punitive action when their own interests are infringed or ideals flouted. Punishment is a concept deeply entrenched in our moral and social thinking, difficult to elucidate, difficult to reconstruct according to modern principles, difficult to jettison altogether, and yet evidently in need of justification.



2. Definitions and Dialogues


Punishments are unwelcome. You cannot punish me by increasing my range of options---offering me a holiday in France, say. When the old lag commits a petty crime in order to be back in prison in time for Christmas, we sense that something has gone wrong. A punishment loses its point unless it is something that the person being punished would, at least at one level of thinking, rather not undergo. But there are many things that happen to us which we would rather not undergo, and few of them are punishments. If they just happen, and are not done to us by anyone, human or divine, they are not punishments. Only if they are done to us, only if they are done to us deliberately, can we raise the question ``Why are you doing this to me?'', and only if that question is answered in a particular way, can what is being done be construed as a punishment. For we often do things to people they would rather we did not, without its being a punishment. We give a child medicine for his own good, we turn down a candidate for a job because we think he is less suitable than another, we put people in quarantine for the good of others, and in lunatic asylums for their own good as well as that of others, we summon people to spend time on jury service, and in time of war conscribe them for military service, and we make people pay taxes. None of these are welcome; none of them would be freely chosen by the persons concerned. But they are not punishments. They may or may not be justified, but they are done for reasons of the wrong sort to be punishments. To be a punishment the question ``Why are you doing this to me?'' has to be met with an answer beginning ``Because you did . . . . '', where what you are accused of having done is something you ought not to have done, something allegedly wrong.


Even when unwelcome things are done on account of previous wrongdoing, they are not always to be construed as punishments. If I perform poorly in an exam, and get a low mark, I am not being punished. Equally if I fail to get promotion on account of poor performance in my present job, I am not being punished. Although it is sometimes construed as a punishment if I lose my job as a result of dereliction of duty, it is not really so. If a butler is found tippling his master's port, he is sacked because that that action shows him an unreliable custodian of alcoholic liquor; likewise the dishonest accountant or cashier loses his employment on account of what he has done, not in order to punish him, but in order to protect his employer from further defalcations. The fundamental purpose was not directed towards the person being punished, although his wrongdoing was relevant to the adverse action being taken. It was a ground for dismissal, because it was evidence of demerit---it showed him to be unsuitable for the job---but it was not the prime focus of concern. Punishment differs from other unwelcome actions on account of previous wrongdoing in that it is meant to be unwelcome, and understood as such. If I am punishing you, it is not enough for me merely to have an appropriate justification, and be ready to give it if the question is raised. If you do not ask me, then I must tell you why I am doing it. I cannot punish you without your knowing. I can dose you, quarantine you, restrain you, conscribe you, tax you, or pass you over for promotion, without your needing to know why I am doing it; I might, if I were a soft-hearted man, not tell the butler or cashier why I was sacking them---I might simply move them to another job, well away from the whisky or the till---and my action would be just as effective as if I had told them the unvarnished truth. But I cannot punish you unbeknownst to you. Punitive action is not a bare causal intervention in the course of events, but a communication, whose meaning must be understood if it is to be effective. The dialogues surrounding punishment not only occur naturally, but are constitutive of the concept.


Even when someone is being made to suffer the unwelcome attentions of another on account of some alleged wrong he has done in order to teach him a lesson, it may not be a punishment. It could be simple revenge. I can take vengeance on my enemies for insults or injuries they have inflicted on me, but it differs from punishment in being essentially personal and private. If I purport to be punishing somebody, I am not open to the argument ``I have not harmed you: you have nothing to complain about'', whereas if I am seeking revenge, the one thing that is relevant is that I am an injured party, and unless I can make out that either I or mine have been wronged, my action becomes unintelligible: there can be no tit unless there was a tat, and a tat is essentially defined in first-personal, though sometimes extendedly first-personal, terms.


For the same underlying reason, if I am purporting to punish, I am open to the question ``Who made you a judge over me?''. To punish is to claim some sort of public, or social, or communal, locus standi. It does not have to be, as some thinkers have supposed, a legal authorisation from the state. There are many other societies with shared values which may be upheld in the face of violations by some form of punishment, and families often have occasion to discipline wayward infants. It would be a mistake to adopt a definition which excludes many typical cases, though an understandable one, in that the person purporting to punish needs to have some locus standi, and the jurisdiction conferred by law is public and indisputable. But all that is essential if I am to punish is that I should be taking up some omni-personal stance, not an exclusively first-personal one, and lay myself open to further rational questioning, in a way I do not if I am simply retaliating for some injury done to me.


Punishment is thus both a social and an individual concept. Punishment is imposed in the name of some community or society sharing some system of values which have been violated by a member of that society who ought not to have done what he did do. But the reason for which a punishment is imposed is essentially an individualised reason, although a reason individualised within a system of values held in common by some society. It can be understood only as being inflicted solely for reasons that are fundamentally directed towards the individual: even with vicarious and collective punishments, we have to hold the persons being punished responsible for wrong actually done by their subordinates, colleagues, or accomplices, and in the absence of such an ascription of responsibility, the punitive action would once again become unintelligible. So too with miscarriages of justice. It is, alas, possible to punish the innocent, and that fact has been seen by some as breaking the conceptual tie between punishment and guilt. But although the innocent may be punished, they cannot be sentenced under that description. Unless I explain my unwelcome attentions as inflicted because of wrongdoing, they will not be construed as punishment. And further, since in this dialogue I lay myself open to further questioning and debate, I may need to make sure that the cap really fits the individual in the face of his denial that he did it, or protestations that it was not wrong: there is a germ of a trial in the very concept of punishment.


Punishment, then, is something unwelcome, deliberately imposed on somebody by someone claiming to act disinterestedly on behalf of some society or community, on account of some wrong he or his has allegedly done, and understood as such.



3. Justifications


It is difficult to justify punishment. There are many attempted justifications, and each has something to recommend it, but often there is a general unsatisfactoriness. In part it arises from the problematic way the demand for justification is raised. For already some justification has been given in describing the treatment meted out as a punishment: it is being imposed because of some wrongdoing. To ask for further justification is to ask either for more of the same type or for something different, and whichever is offered, it will fail on one count or another.


The justification for inflicting punishment on a particular person is his previous wrongdoing, and to many people this is justification enough. If asked why previous wrongdoing should entitle us to inflict unpleasantness, they will be at a loss how to answer, and will say, albeit in a grand manner, that it just does. Often they will invite us to view punishments as negative rewards. Just as good deeds deserve to be requited by good being done to the person who does good, so bad deeds deserve bad being done to the wrongdoer. But this argument fails to convince those who do not already accept the principle of retribution, and yields the counter-intuitive conclusion that, just as it is perfectly intelligible to pay someone before he does a good deed instead of rewarding him afterwards, so it should be all right for a malefactor to pay a fine or go to prison first, and then go and commit his crime afterwards, having already paid his debt to society. In fact, the argument is being used to argue in the wrong direction. There is indeed a parallel between the way in which it is appropriate to reward good deeds and punish bad deeds, but it illuminates the rationale of rewards rather than that of punishment. Punishments are not illuminatingly seen as negative rewards, but rather rewards as negative penalties.


The justification of punishment by reason of previous wrongdoing is essentially backward-looking, and consequentialists, and in particular utilitarians, will allow only forward-looking arguments to weigh with them. Utilitarian justifications of punishment abound, and carry some weight. Few murderers who have been hanged murder anyone else, few drunken drivers mow down pedestrians while in prison. The prospect of losing their liberty or their licence has deterred many convivial souls from having just one more for the road. And while British prisons have not earned a great reputation as schools for virtue, some convicts have been brought to review their way of life while in prison, and have returned to the community as chastened and rehabilitated citizens. Punishment does sometimes prevent, sometimes deter, sometimes reform; and if only consequentialist arguments will be acknowledged as valid, these good consequences can be adduced to outweigh the evident disutility of the punishment itself.


But consequentialist justifications of punishment have an inherent weakness. If they are exclusively forward-looking, they cannot satisfactorily accommodate the essentially backward-looking orientation of the concept itself. If prevention is the real object of the exercise, I had better prevent people from doing wrong before, rather than after, the event; if deterrence, I need not worry too much about executing an innocent man, who just happened to be in the wrong place at the wrong time, pour encourager les autres, so long as the cost-benefit analysis shows that the loss incurred by his untimely demise is outweighed by a greater law-abidingness by many others; and, as for reform, we are most of us in a far from satisfactory state, and could well be improved by a course of compulsory re-education.


Retributivists are quick to point out these unwelcome implications of utilitarian accounts, and utilitarians in turn complain that the retributivists offer no serious justification for the ill treatment they mete out to their victims, and accuse them of being simply vindictive. Each theory commends itself by emphasizing the demerits of its rivals, but singularly fails to meet the criticisms which they level against its own account.


The most satisfactory compromise is that first put forward by Hart, and worked out in detail by Ten. A distinction is drawn between the general justifying aim of punishment, which is deterrence, and the principle of application in particular cases, which requires that it be restricted to actual wrongdoers in order to reassure innocent. If enough weight is put on the latter consideration, a broadly utilitarian theory can be made to yield acceptable conclusions. But there is a suspicion of fudge. Utilitarian principles are often tailored to yield conclusions intuitively acceptable, but only by calling in aid some subsidiary considerations and giving them much greater weight than would normally be accorded them by those of a consequentialist turn of mind.




More particularly, there is a difficulty over the concept of punishment itself. What utilitarian arguments justify is the institution of punishment: it is like Plutarch's justification of religion---if we already have the institution, there are good grounds for keeping it for the sake of social harmony and well-being. But in neither case is there given a real rationale for their having the concept or developing the institution. The institution is seen from the outside, as having a social utility, not from the inside with the concepts adequately grounded in the rest of our understanding, and with a vigorous life of their own. The Home Office official deals with punishment, much as his uncle in the Colonial Office used to deal with native religion, as something he has to manage for the good of society, but not as something that has any meaning for himself.


The concept of punishment can, however, be explicated, and the institution justified, in terms of responsibility, a responsibility for wrongdoing which the wrongdoer needs to disown, and which society is anxious not to share. Punishment is, on this account, a third-personal penance, needed as a token of an apology's sincerity, and an emphatic disavowal of responsibility and a vindication of the values of society, and the rights of the victim if there is one, which have been flouted by the wrong done. It is a communication rather than a consequentialist account, though consequences remain, as always, important, and it may be classified in general terms as retributivist. I shall call it a vindicative account, to bring out both the similarity with, and the difference from, the vindictive account, that is to say the standard retributive account.



4. Apology and Penance


Sometimes I know I have done wrong, and own up to the wrongdoing, and admit my fault. I acknowledge it as my action, and acknowledge that it was wrong. In this case I both own the deed as my own, and disowns it as a misdeed, that is, a deed I would not do now, were I to be deciding on it afresh. Contrary to the original sense of the Greek word apologia, I am not defending my action, but saying it away, no longer standing by it, but de-endorsing it. The misdeed no longer expresses what I am now minded to do, and no longer manifests an intention to flout our standards of right and wrong. If I apologize sincerely, I am altering my mind: I had been minded to do the misdeed, which my interlocutor deemed to be wrong, and could not accept as an action I would endorse. So long as I was minded to do it, and he was minded not to go along with its being done, we were at variance, and the action stood between us. We could not be at one mind on whether it should be done or not. But if I change my mind, then we can be at one mind again. There is no longer a potential disagreement between us about what ought to be done. We are agreed that the action in question should neither be, nor have been, done. Since actions are not just events, but also means of communication, my actions can be construed as making a statement about my mind and values, and can therefore also be unsaid. We often withdraw statements by contradicting them: an apology is a sort of contradiction. If my apology is accepted as sincere, there is no longer a conflict between me, the agent, and those who hold that what I did was done amiss. We can make it up. They can forgive me, and I can be at one with them again.


The picture of apology, forgiveness and atonement is idealised: for one thing, actions are not just communications but also causes of consequences in the course of events, and what has been done cannot be undone; moreover in the real world people often cover up, rather than admit to their misdoings, and apologies are often insincere, if, indeed, they are given at all. Nevertheless, the ideal pattern structures the conceptual framework within which punishment takes its place: punishment fills a crucial gap between the ideal and the all-too-real.


Many apologies are not sincere. Often we apologize merely as a matter of social convention, often also to avert wrath or penal consequences. Words slip easily off the tongue, and for that very reason are often less meaningful than deeds. If I really repent of my action, it is not enough simply to say `sorry': I must mean it, and it may be difficult to make my words, without deeds, carry the message of genuine contrition. Sometimes I can unsay my ill-intentioned action by undoing its effects. Although what has been done cannot be undone in the easy way in what has been said can be denied, sometimes I can undo, or make good, the damage I did. I can give back the book I stole from you, I can mend the window of yours I broke, I can give you money to compensate you for the trouble or inconvenience I caused you. Though in many cases I cannot really restore you to the position you were in before my wrongdoing, sometimes I can, and if I do, then I am clearly cancelling my hostile or uncaring intention towards you, since I am putting myself out in order to ensure that you shall not be put out as a result of what I originally did.


In other cases the damage is irreparable. I cannot restore to life the man I have murdered, or call back the secrets I have betrayed. Not all wrongdoing is the infliction of harm on an assignable individual, and where there is no victim, no compensation can be paid to demonstrate the sincerity of contrition. In other cases again any compensation offered would be not so much inadequate as inappropriate. But tokens of sincerity may be needed none the less. Perhaps in theological contexts, when I am addressing God, to whom all desires are known and from whom no secrets are hid, my broken and contrite heart will be accepted for what it is, but for limited mortals, myself included, such transparency of motive is unattainable. I shall seem to have got away with it, if I have enjoyed the fruits of wrongdoing for a season, and then be absolved from them for free. The mirage of easy repentance and cheap forgiveness has led many sects astray in the course of the history of the Christian Church. For the sake of others, but even more for the sake of myself, I may need to offer tangible tokens of sincerity, if my change of heart is to be evidently genuine. Often in libel cases it is thought appropriate to make a contribution to a named charity. In the practice of some churches, the penitent does penance. Neither the donation to charity nor the penance does anything to restore the status quo, nor to compensate the injured party for the harm done to him, but they do in another way make amends: they purge the insult, even though they cannot make good the injury. They purge it by making the apology more real, more evidently meant, because indubitably costly. It is indisputably not easy to say goodbye to a large sum of money, or to submit to being beaten by the monks of some monastery. If I pay out, I make it clear to everyone that wrongdoing did not pay: my bad decision has cost me dear. No king would naturally and unconstrainedly submit to flagellation, and if a king does so as a penance, it is very clear to all his subjects that he would not now, in the light of these adventitiously annexed consequences, have made the same decision as he originally did. It is an emphatic disavowal of his deed, and its meaning, thus underscored, cannot be gainsaid by anyone.


The logic of penance is thus founded on a dissonance of values. I am re-expressing in terms of the unregenerate scale of values the value I now put on the action I did then. Originally it had seemed like a good idea to sleep around, fiddle the tax, betray confidences, stab a colleague in the back, and by so doing I reckoned to maximise my pay-off in life. These outcomes I now see for what they are, but I need to express their tawdriness in terms of the tawdry values of yesteryear, and need therefore to annex to them, adventitiously so far as the ordinary course of cause and effect is concerned, further outcomes whose pay-off is, on the old reckoning, such as to make the combined package a bad buy. My regretful self is seeing to it that my unreformed self would now regret having done the misdeed.


In our ordinary way of understanding, penance is a special case of self-imposed punishment. It is helpful, however, to reverse the connexion, and to view punishment as an externally imposed penance. In the limiting case, where the wrongdoer acknowledges his wrong and the justice of the punishment he is called on to undergo, punishment merges with penance, and has the same communication value. By being punished the wrongdoer expresses in terms of his old system of values the value that the community's system of values puts upon his misdeed, and thus espousing the community's system of values is once again at one with the community, and capable of resuming his membership of it as a member in good standing. In the much more usual case, where the wrongdoer does not own up to the wrong, and if found out, does not admit its wrongfulness, and is far from willing to accept punishment as his just deserts, the message is being forcibly impressed upon him. The penalties annexed to his wrongdoing by the community make it be the case that the whole transaction was a bad buy from his point of view and by his own system of reckoning, and the reason why it is being made to be a bad buy from his point of view is that it was a bad thing according to the community's system of values. The community's system of values is being vindicated by the violation's being shown to be manifestly inexpedient even according to other, more limited, systems.


But the idea of compulsory penance grates. When freely undertaken, it can have meaning as a token of sincerity, demonstrating that the contrition expressed is genuine. But typically the wrongdoer is not contrite, and the position then is that if he will not say `sorry', we make him be sorry; but how far can we impose a meaning which the about-to-be-punished criminal emphatically disavows?




5. Condoning and Denouncing


We can understand better the significance of punishment by considering two alternatives, and how we would construe them. We could adopt a no-holds-barred approach, and reckon the wrong-doer outside the pale, and obviate the ill consequences of his action in any way we could---as we might, without compunction, fire a shell at a driverless run-away vehicle or a mad bull careering down a busy street. But we are rightly reluctant to regard a single lapse as putting a man eo ipso outside the community, to be treated simply as a means and no longer as also an end in himself. There could conceivably be public enemies to be warred against rather than punished, but we are concerned with those who are still members of the community. They may have broken the law or done some other wrong, but they are not outlaws, excommunicates, or disowned by the family; they have rights in spite of their wrongdoing; we are still in dialogue with them; and we are not prepared simply to bundle them around like a sack of potatoes. The response of the community when one of its members contravenes its values is a muted one, not a rejection of him altogether.


The other alternative is to do nothing. That also is not an option open to us. Always to do nothing as a matter of principle in the face of deliberate and open violations of rules is to acquiesce in their violation and to condone the action as not being really wrong after all. If I tell you not to commit murder and you commit murder, then if I do nothing about it, I am showing that I did not really mean it when I told you not to. Unenforced laws cease to be in force: rules which are regularly broken with impunity are no longer rules demanding to be observed.


The degree to which to acquiesce is to connive or condone varies very much with circumstances and the sort of society involved. The general form of the argument, however, is that the community has some authority over its members, and the actions of its members are therefore to be taken as actions of the community. For this to be so the community needs to have knowledge of what is being done, and an opportunity of disavowing it and showing it not to be an action it approves of: if then it does have full cognizance, and does not disavow the action, it has thereby given it tacit approval, and will be taken both by the member concerned and by others to accept the doing of that action as consonant with membership of the community.


It follows that if the misdeed is something the community cannot or will not tolerate, then it must say so, or people will get the impression from its acquiescence in the face of wrongdoing that it does not greatly care whether its members do it or not. Sometimes, contrary to what many retributivists have held, saying so is sufficient. In the armed services a reprimand and a severe reprimand are two of the penalties laid down, and entirely adequate ones. Often in civil life the mere fact of conviction is penalty enough. When middle-aged, middle-class women are charged with shop-lifting, it would cost them far less to pay the fine than fight the case, but they fight it none the less in order to clear their name. The stigma of conviction is far greater penalty than any monetary loss. The values the courts uphold are widely shared, even by those who may have flouted them, who would therefore be humiliated by the knowledge of their wrongdoing becoming public, or insulted by the false supposition that they had done wrong being generally and authoritatively believed. But not all values are widely and unequivocally espoused. Some people do not accept some of society's values, and even if they do, it is thought that they might not. For them mere verbal rebuke is, or might be, just water off a duck's back. If the rebuke is to be incontrovertibly telling, it needs to be one that cannot be simply shaken off with a toss of the head and an ``I don't care'': Don't Care must be made to care and the verbal rebuke must be given barbs that will indubitably penetrate the thickest skin.


Punishment is a message, primarily addressed to the person who did wrong, though also and importantly overheard by others, denouncing the wrongdoing in a way that will not be ignored. It is because you did wrong that we are punishing you, and were you to be fully of one mind with us, you would understand that what you had done was wrong, and acknowledge the justice of what we are doing to you. But since, in the typical case, you are not of one mind with us, we are having to tell you, in language you can understand, that what you did was something it would have been better for you not to have done, and the more we succeed in impressing on you the wrongfulness of your action, the more you will come to recognise the shared values of our community, and the closer you will be to being restored to full membership of it. At the time of your doing wrong you did not care that what you were doing was wrong: but Don't Care was made to care, and in so far as he learns his lesson, he comes to know the values on which society is based, and to the extent he comes to share them, he returns to being a full member in good standing.


With punishment as with penance, there is a dissonance between the value systems of the repentant and the unregenerate wrongdoer. For the whole-hearted penitent, mere reprimand is adequate. But since repentance is not always whole-hearted, and in the secular world of the civil courts the message will sometimes be addressed to a totally unregenerate wrongdoer in his possibly impenitent frame of mind, its thrust needs to be that crime does not pay. Although at the time of decision it seemed like a good idea to do the deed rather than restrain himself for the sake of some socially established value or precept, it has proved not to have been a good idea after all. No matter how little the wrongdoer shares the values of the community, doing wrong has turned out to be a mistake from his own point of view. In a manner of speaking we are retrospectively deterring him from crime, and so prospectively deterring him from doing it again, and others from following suit. There is thus an inherent deterrent aspect to punishment, and this is the truth the deterrent theory is trying to express. But though inherent, deterrence is not central nor absolutely essential. Deterrence is forward looking and general, whereas punishment is primarily concerned with a particular action that has been done. Nor is deterrence absolutely essential: the schoolmaster who confiscates the catapult, the highway authority that tows away the illegally parked car, the Privy Council that withdraws a doctor's licence to prescribe drugs, may or may not deter others from doing wrong too, but they are effectively preventing further ill consequences from the wrongdoer's original misdeed. Forcible prevention negates the deviant intention as surely as effective deterrence. Whether by retrospective deterrence or by prevention, the wrongdoer's decision to flout the values of the community is made one that he could no longer sensibly and successfully uphold.



6. The Overhearers


Although punishment is primarily directed at the person being punished, it is a public act, and will be noted by others, who will draw their own conclusions from what is being done. There may be others tempted to do a similar wrong; there may be a victim, who has had wrong done to him; there are those whose business it was to maintain law and order, and bring criminals to justice. In dealing with the wrongdoer, we have to consider also how our action will appear to these other important bystanders.


Although for some wrongdoers the mere fact of conviction or a mere reprimand is denunciation enough, often the courts reckon that in spite of his evident contrition, they must impose a further sentence, else others might be tempted, who were not yet abashed by being actually found out, or who might reckon they could weather the disapproval of the judiciary. They too must get the message, and therefore the ill consequences of wrongdoing must be such as to register according to the value scales of a less sensitive soul, who cares little for anything beyond his pockets and his skin. He too must see that crime does not pay, and that by the most tangible of reckonings, in terms of life, or liberty, or property, it would be better for him not to act in like manner. It is not just to the one man who actually flouted the law that punishment is addressed, but to any one else who might be minded to pursue his own plans in defiance of the values of the community: he too needs to take in that he will not get away with with it, and that if he sets his face against the community, he will not succeed in outfacing it, but will eventually come off visibly the loser. Hence what sometimes seems to be the needless severity of punishment. There are occasions where the accused has made a clean breast of it, and is clearly remorseful and extremely unlikely ever to step outside the law again, and yet the judge imposes a custodial sentence saying `I cannot overlook the gravity of the crime', addressing himself not to the state of mind of the criminal, but to what might be the state of mind of potential criminals.


Often also there are victims. Victims suffer. Their rights were trampled on, their interests ignored by the wrongdoer, who was intent on getting what he wanted irrespective of the damage to them thereby engendered. They therefore have a fairly clear idea of the extent to which the wrongdoer was sensitive to considerations outside those of his own immediate interest at the time of the offence; and though it is possible that he has since undergone a sincere change of mind and change of values, they find that hard to believe. Almost inevitably they will impute to him the same scale of values as he manifested at the time he did them wrong, and so they will naturally construe his punishment by that scale too. Unless by that scale he has evidently fared badly, they will think he has been let off lightly, and the fact that the community is not prepared to avoid that impression, will convey the further message that the community does not care for them, the victims, as much as for the offender, or the opinion of trendy opinion-formers. They look to the punishment to vindicate their rights, and to make it evident that he who trampled on them does not get away with it. It is not exactly that they should have the last laugh, but that at least he should not.


Modern thinkers often fail to draw a crucial distinction between vindication and vindictiveness, and by refusing to allow a proper role to the former, actually encourage the growth of the latter. It is essential to identify with the victims, and the potential victims, of crime, as well as those who risk life or limb in bringing offenders to book. Society needs to express solidarity with them, and to make it clear that they matter, and that their point of view is recognised and respected. It makes a great difference to the victim whether the community takes his wrong seriously, or passes it off as of no consequence. If he sees the man who cared nothing for him go scot free, he is given to understand that society cares nothing for him either. But if the wrongdoer is made to see the error of his ways, the man to whom the wrong was done sees his rights vindicated, and is being assured that society cares for him, even if one of its members does not, and will uphold his rights in the face of assault and injury. The same is true of other bystanders, who may well see themselves as potential victims, and are to that extent in need of assurance that they too are prime objects of concern by society, which will see to it that nobody can harm them with impunity. Much modern criminology fails on this score. It shows great concern for the criminal, reminding us---and we may well need to be reminded---that criminals are human, and not outside the scope of our concern, but seeming to forget that their victims are also human, and that the community's first duty is to stand up for them, and only when it has effectively vindicated their right, to concern itself with rehabilitating the criminal. Otherwise it beams to them a message that they do not really count, and that those who keep the law are of much less value in the eyes of the law than those who break it.


The same wrong message is mediated to another set of bystanders, those whose business it was to maintain law and order, and bring criminals to justice. They too need not to be told that their efforts were misdirected, and that society does not really care whether or not wrongdoers are brought to book. If society seems to care only for the wrongdoer, and not for the fact that wrong was done, then it is a waste of effort to try very hard to find out who did wrong, or to bring the case to court. In all of these cases, once cognizance has been taken of the misdeed, society's stance has been brought into question, and if it does not denounce the wrong with sufficient emphasis in terms that come across to those not already minded to abstain from doing that wrong, society will seem to be condoning rather than disavowing it, and saying that it does not really matter after all.


Punishment is an emphatic denunciation of wrongdoing. To the person being punished it is a reprimand: to those bystanders who might be tempted to do likewise it is a warning: to the victim it is a vindication: to potential victims it is an assurance: and to those who brought the wrongdoer to book it is an endorsement of their efforts. It is a disowning of responsibility for the deed. The deed was a misdeed, and society dissociates itself from it, by deeds if necessary as well as words, in a way that cannot be ignored or overlooked, so that everyone shall know that that the action, though an action of a member of the community, was his action alone, and not one that the community itself approves of, acquiesces in, or is in any way prepared to acknowledge as its own.



7. Vindication


The vindicative account has only recently emerged, and is still largely misunderstood. Walker criticizes Feinberg's ``Expressive Function of Punishment'', which was the first authoritative formulation along vindicative lines. He complains that Feinberg allows punishment to have other purposes besides that of disavowing the wrong done, and argues that since many criminals are not caught, the message of disapprobation cannot get through to offenders, and cites the sparse newspaper coverage and general ignorance of what sentences the courts are imposing, and general dissatisfaction with those that are known.


These criticisms can be countered. It is inherent in the vindicative account that punishments will often be deterrent: if we generally seek to make it ex post facto a bad policy to have done wrong, people thinking of doing wrong will predict that it will turn out to have been a bad policy, and will therefore be deterred. Again, if we generally seek to prevent the bad intentions of wrongdoers from being effective, would-be wrongdoers who value their freedom of action will avoid incurring preventive measures. And if punishment is a forcible reminder of society's values, the message will sometimes go home, and result in an amendment of life on the part of the wrongdoer: we often speak of teaching him a lesson, and lessons are sometimes learnt, and lead to a reformation of behaviour. Communications often have consequences, and give grounds for consequentialist justifications. The only point at issue is whether these desirable side effects constitute the whole rationale of punishment: and it is difficult to maintain that they alone can account for the individualised backward-looking nature of the concept.


Walker argues that punishment cannot be seen as an effective means for expressing social disapprobation, because notoriously many offenders are not caught and so get away with it. But that says little for society's attitude. It is only when the offender has been brought to book, that failure to do anything about it can be construed as acquiescence. Even then, of course, it is sometimes best not to notice peccadilloes, and the judicious practice of the blind eye has much to recommend it: children are often naughty in order to engage their parents' attention, and are properly dealt with by being ignored. But although failure to apprehend wrongdoers may weaken the deterrent effect of punishment, the fact that those who are caught are punished is evidence enough of society's attitude to what they have done.


Walker suggests that society could adequately denounce wrongdoing by merely seeming to punish the wrongdoer, while actually smuggling him away from the Old Bailey to live in freedom on the Costa Brava. It is difficult to see how the wrongdoer himself would understand this as a denunciation of his action. For a utilitarian advocate of the deterrent theory such a deceit would make reasonable sense, but if we regard punishment as a tangible token of disapprobation, a reprimand that cannot be brushed off, which makes it evident even to the thickest skin that it was not a good idea to flout the values of the community, the one person who cannot be deceived is the putative recipient of the message. A similar consideration bears on some empirical evidence Walker adduces to the effect that the public do not derive much satisfaction from newspaper reports of sentences. Newspaper reports, though widely read, are not much regarded. What matters to most people is what happens in cases in which they have some personal interest, not what takes place in ones that concern them little: if they, or members of their family, or friends, or neighbours, have been attacked, or defrauded, or harmed, they are angry and upset if the courts are soft, and let the wrongdoers get away with a light sentence. They look to the authorities to uphold their rights, and are indignant if they fail. And this has nothing to do with newspaper reports and reactions to them.


Actions speak. What they signify can be understood by considering how inaction is construed. If a society in full knowledge of wrongdoing on the part of one of its members does nothing, it acquiesces in the wrong done. Its not doing nothing indicates its non-acquiescence, its repudiation of the misdeed. The misdeed meant that the wrongdoer did not care sufficiently for society's values to abide by them: he was, among other things, making a statement, a statement to the effect that society's values were not, so far as he was concerned, values at all. And in imposing punishment, society was in turn making another statement to him, and telling him on the contrary that their values were valued, and were not to be violated with impunity, and thus vindicating them.



8. Forgiveness and Mercy


It is a great defect of the standard theories of punishment that they leave no room for mercy. It is clearly wrong on retributive principles to remit any penalty due; equally on the various consequentialist theories, our duty is simply to calculate what measures will best deter others, reform the criminal, or prevent him from being able to commit another crime, and apply exactly those: to impose anything less would be sub-optimal, and so a dereliction of duty. On the vindicative theory, however, there is room for mercy, because we are operating with actions whose significance has to be construed according to many different canons.


In some cases the offence, although an offence against society's values, was motivated by other values, also recognised by society, so much so that the action was seen not as a simple flouting of society's values but as manifesting an integrity that deserved respect, though not an endorsement of what was actually done. The conscientious objector is not just being selfish. Gandhi's sentence under the British Raj was the least allowed by law. So too, those who commit crimes under provocation are treated more leniently than those who fully intended to do wrong, and mercy-killers are often shown mercy as not really being murderers at heart. In most cases, however, the exercise of mercy is a response to repentance, and has the same underlying logic as forgiveness, but subject to the constraint of being an official act which may be misunderstood by bystanders as well as by the wrongdoer himself.


If a man genuinely disclaims his previous intention, he removes the barrier which had stood between him and his fellows. He is, so far as what he is minded to do goes, at one with them again, and they can make it up. But it does not follow that they will. They can continue to nurture a grievance, and it is not a conceptual mistake for them to do so. They have suffered, and the injury remains. The mother whose daughter is murdered by a rapist will forever be bereft: maybe the rapist will be converted to Christianity in gaol, but that will not bring his victim back to life, or restore the shattered happiness of her family. Some people may be able to transcend their grief, and forgive those who have destroyed their happiness, but `I can never forgive him' is an entirely understandable stance.


Christians are none the less told to forgive. In part it can be argued for as a precept of wisdom. Many wrongs done were done for reasons we can understand and come to respect. As we come to comprehend more the personalities involved, we see the action less as a manifestation of an ill will, and without condoning the deed can bring ourselves to pardon the doer. In part it can be argued for as a counsel of prudence, psychological prudence. To nurse grievances is unhealthy. There is a sufficiency of evils in the current day, without need to treasure them up from the past. Bad things happen---people die---without any one bringing them about by ill will, and we have to make the best of the situation as it actually is, without forever repining about might-have-beens. The hatchet can be buried in oblivion, and often in the course of life we find erst-while enemies valuable allies in some new battle, and forge links with them in spite of their hostile behaviour hitherto. Often also apologies are tacit. People, men particularly, are shy about saying sorry on the occasions when they mean it, but indicate in other ways that they no longer stand by what they once did. To hold out for the ultimate grovel is to erect barriers on one's own side of the fence and to make it that much more difficult for relations to be restored. Even where a great wrong has been suffered, although it is abrasively harsh to say it insensitively or too soon, at some stage it is right to urge a partial oblivion of what was done, and forgiveness being an aid to this partial forgetfulness, forgiveness can be urged on the victims of wrongdoing, in those cases where the wrongdoer is, indeed, disowning his deed, and genuinely would undo it, were that possible.


The Christian injunction to forgive is not, however, grounded on our psychological health, but on a lively awareness of the barriers created by our own actions and attitudes. We are naturally self-isolating creatures. It is the reverse side of our autonomy. We are independent agents, capable of making up our minds for ourselves, and and as each does his own thing, he is likely to implement values of self-aggrandisement that are naturally not shared by others. Not only in particular actions, but in the whole course of our decision-making we are inclined to be guided by self-regarding concerns, which set each one of us apart from others and at odds with them. This being our nature, whose natural outcome of autistic loneliness is fearsomely unwelcome, we are not only wise to practise forgiveness as a useful discipline, but impelled by gratitude to make it up with others as others have made it up with us.


Forgiveness presupposes repentance, and repentance is unfashionable. It is currently thought that there is an unconditional duty to forgive, and no antecedent requirement of admitting that what was done was wrong. But that is a confusion. Where there is no repentance, no change of heart, no apology, there is no possibility of making it up. The wrongdoer is prepared to resume relations, but on his own terms, that he was right to do what he did and the man wronged accepts that. But there is no reason for him to accept that: the passage of time does not require him to accept that what was done by the might of the wrongdoer should now be deemed to have been right too. The duty to forgive is not a duty to condone. Forgiveness cannot be granted where it is not sincerely sought, and though we are bidden to pray for our enemies, we are not supposed to pretend that they are actually our friends. There are occasions when we conceptually cannot, and morally should not, forgive. But they are far fewer than we think, and we do well to remember how damaging, psychologically, resentment is, and how often we, too, are in need of being forgiven.


The case of mercy is comparable, but complicated by the fact of its being public, and in danger of being misconstrued by others, and in particular by the victim. Although occasionally a victim forgives the wrongdoer, it is not for us to exercise an easy forgiveness on a third-party basis. Sometimes there are exceptional circumstances which justify accepting the criminal's expressions of regret as genuine and letting him off more lightly than the gravity of the offence would normally warrant, but these occasions are rare, and when they occur, need to be clearly marked out as exceptional. Provided the exercise of mercy is clearly exceptional, other potential wrongdoers will not be encouraged to count on their also being able to plead successfully for mercy should they be found out. If the victim also asks that mercy be shown, he too will not be let down by the punishment being remitted. Other bystanders too can be assured in some circumstances that the judge is not being soft if he shows mercy. What is essential is that all are convinced that the change of heart of the wrongdoer is genuine. And the penitence commonly professed by those convicted of wrongdoing is much more a sorrow at the likely results of their wrongdoing than a genuine repudiation of it apart from the penal consequences now likely to ensue. We do not readily believe what wrongdoers say, and rightly are ready to impute to them, even when they profess the contrary, a strong attachment to the old Adam, who originally sinned, rather than to the new man, who has put all wrongdoing behind him. Hence the difficulty in not transmitting the wrong message if we treat wrongdoers leniently, and the general need to discount repentance and demonstrate the unwisdom of wrongdoing according to the unreformed reckoning. But this general need is not absolute, and mercy can operate in the interplay between the imputed original system of values of the wrongdoer and the actual system of values of the genuinely reformed character.



9. Collective and Vicarious Punishment


A communication theory of punishment argues that its prime purpose is to ``negate'' the intention of the wrongdoer to flout, or ``negate'', the standards of the community. It presupposes that the wrongdoer had that intention, what the lawyers call mens rea. We cannot sensibly unsay something that was never said. ``I didn't mean to'' is an entirely apt rejoinder to a criminal charge. It is natural, therefore, to draw a distinction between penal responsibility and the more general notion, with the former focussed on individual, positive intention, the latter admitting a wide range of shared and negative responsibilities.


But we sometimes punish people for things they have not done. The employer may be fined for the negligence of his employees, even though it is shown that he had no knowledge of what they were doing, and had indeed, given explicit instructions to them not to do it. The sins of the children are laid at the fathers' door, and the sins of the fathers have often been visited on the children. The whole class is kept in after school on account of some misdemeanour that only one of them did. These are clearly counter-examples to the principle previously laid down.


They are. But the very way they are glossed constitutes support nonetheless for the principle itself. In order to make the punishment intelligible as punishment, we have to extend the `do' or the `you' of the wrongdoer. Under certain conditions the principal is held responsible for the deeds of his agents; by employing someone an employer takes on a negative responsibility to see to it that in the course of his employment the employee keeps the law, and fulfills all statutory requirements. Fathers can keep their children in order, and have a duty to do so, and if they fail, can be brought to account for them. Families are communities, and what is done by some members is the business of all, who share responsibility for what the rest of them do. Even a class at school can be regarded as a community. Perhaps it is unfair---in some cases it certainly is---to punish someone for what another did, on account of some imputed responsibility. It is a matter for detailed argument in each case. But sometimes at least, the person being held responsible for the misdeeds of another could have taken action to restrain the other from wrongdoing, sometimes the values of a community to which we belong and from which we have benefited are values that lie behind the wrongdoing: although we did not actually do the deed ourselves, we may have countenanced it, or retrospectively endorsed it, and for that reason have responsibility ascribed to us.


Such ascriptions are not always conceptually impossible, though often unjust. But they need to be made if punishment is to be in point. I can fine an employer because his employees have failed to observe safety regulations, but not because the employees of the Standard Oil Company of New Jersey have misbehaved: the IRA may ``execute'' me as a punishment for the wrongs they imagine the British to have committed, but not on account of alleged misdeeds by the Russians, or because the weather has been bad. The link between the wrong done and the person being punished may be stretched, and may sometimes be tenuous, but it has to be made out, or the punishment ceases to be intelligible at all, and is seen either as some other sort of adverse decision-making or as gratuitous malevolence.


Even when some identification can be made, we are extremely chary of punishing anyone vicariously. Unless we can pin on him some definite failure or breach of duty which contributed to the wrongdoing being done by someone else, we think it unfair to punish him, even if he is responsible in some wide sense. He is liable for a tort, rather than guilty of a crime. Punishment for crimes deemed to have been committed according to the canons of strict liability stick in our throat, because they purport to negate bad intentions that were, in fact, never held by the person being punished.



10. The Constraints of Law


Many thinkers have reckoned punishment by legal authorities to be the only proper type of punishment, and have often written such a requirement into their definition. Although an understandable mistake, it is a mistake nonetheless, not only because it excludes many typical cases, but because it distorts our understanding of the concept itself, importing extraneous constraints which are not inherent in punishment, though they may be appropriate to the operations of the law, which is governed by considerations of practicality and utility, and arouses deep fears of possible abuse.


We are rightly awed by the law. The punishments imposed by legal authorities are nearly always the most severe we are likely to encounter. Many people feel frightened if they find a policeman calling at their door. In our own century we have witnessed again and again the horrors of the police state. We cannot do without the law, but we want to circumscribe it as much as possible, to ensure that it remains our defender and does not become our oppressor. We lay down many requirements of due process, standard of proof, and limitation of judicial discretion, to prevent the extreme sanctions available to the law being used to tyrannize over us. These often are proper restrictions, but are practical restrictions imposed on a developed legal system, not conceptual restrictions on the nature of punishment.


Some tags of the jurists are deeply embedded in the concept of punishment. Nulla poena sine crimine follows from the definition of punishment, though in the next section we shall see how it has been modified and abridged in current legal practice. Nulla poena sine judicio is also, as we have seen, almost a conceptual requirement. Nulla poena sine lege and Nulla crimen sine lege stem not from the nature of punishment, but have been argued for on the basis of what the law ought to be, and have been adopted as principles in some fully developed legal systems.



11. Strict Liability


In some cases, our qualms notwithstanding, the law, for reasons of public policy, deems people to be vicariously responsible for the wrongdoing of others, and punishes them for misdeeds they knew nothing of, and were in no position to prevent. ``Strict liability'' holds a man responsible for what is done even though he had no part in the doing of it. A farmer can be convicted of watering his milk, even though he did not do it, or know that it was being done, indeed even if he had given specific instructions to prevent its being done: Parliament enacted that a landlord was vicariously responsible for drugs being consumed on his premisses, even though he had no means of preventing, or even knowing of, the offence.


Strict liability is popular with legislators and administrators, unpopular with judges, juries and ordinary citizens. It is easy to impose, and leaves no room for excuses, and therefore makes people take redoubled precautions not to fall foul of the law. If I am in danger of being done for watering my milk, I shall not rest content with merely telling my employees not to add water to the milk, but take extra care to make sure they really are carrying out my instructions. But expedient though it is as a means of manipulating people, it is unfair, and in the long run counter-productive. Beyond a certain point, we reckon a person to have discharged his duty of care, and if then an enemy or disgruntled employee adds water to the milk in order to get him into trouble, we know that he is not responsible, and are not prepared to hold him responsible, whatever the administrators may say. This is what happened in Miss Sweet's case. Miss Sweet was a schoolmistress who let her house in Woodstock to a number of young people; while she was on holiday in Spain, the police raided the house, and found drugs being taken, whereupon Miss Sweet was prosecuted and convicted by the magistrates for permitting her house to be used for drug-taking. She appealed, and the House of Lords ``interpreted'' the statute to mean the opposite of what its wording naturally meant, because it was manifestly unjust to convict her of a serious crime she had no part in and could not have known about. It is, of course, bad that the House of Lords should fly in the face of the express intention of Parliament---that way lies the subversion of the constitution, as practised in America by the Supreme Court. But it is bad also that Parliament should instruct the courts of justice to condemn innocent people. Legislatures have a clear and present duty to avoid the easy option of strict liability, and to make sure that all ascriptions of vicarious responsibility are properly considered and judicially assessed.



12. Fair Trial


The principle Nulla poena sine judicio is almost as fundamental as the principle Nulla poena sine crimine. It follows from the dialogue which confers on punishment its meaning. I cannot punish you without telling you that this is what I am doing, or it will not be a punishment at all. I have to tell you that it is a punishment for something you have done wrong, and therefore you have an opportunity of protesting that you did not do it, or that it was not wrong at all. Because punishment is an individualised communication, the person to whom the message is addressed has the logical opportunity to deny the presuppositions of the message, and though his denials may not be believed, they have to be rejected for the punishment to make sense, and we are under deep intellectual pressure to make sure that the rejection is well founded before proceeding to deliver the punitive message itself.


Where the punishment is not great, I may ignore your protestations. The childish `but' is often obliterated by the maternal slap, and no great harm done. But the punishments imposed by law are severe, and we need to be very sure that the accused actually is guilty before we punish him. Hence the requirement in criminal cases that the case be proved beyond reasonable doubt. Often in practice, however, the requirement has been made unrealistically stringent. Although the burden of proof is rightly placed on the prosecution, once a prima facie case has been established, the dialectical nature of argument throws the burden on the other side, to show how the prima facie case is rebutted. The Anglo-American right to silence arose originally as a protection for those of scrupulous conscience who might otherwise be put on oath and asked whether they had committed the crime. That is a proper protection. But once it has been established that there is a case to answer, a refusal to answer it strongly implies that there is no answer. Our present rules are needlessly restrictive, and counter-productively so: it is because of artificial barriers to proving guilt that strict liability laws have been enacted, and often juries assume that the police must have evidence of guilt they are not allowed to produce in court, and convict on the grounds of having been charged.


The elaboration of procedures leads to unconscionable delays. Justice delayed is justice denied. In England a criminal case is often not heard until more than a year after the alleged crime. Memories fade. The accused, who is in some cases innocent, has been all that time living with the charge hanging over him. And for the guilty the intended connexion between crime and punishment is attenuated by the elapse of time. If society wishes to contradict the wrongdoer's violation of its values, it should do so promptly, or its ministrations will be misinterpreted as gratuitous malevolence.


In minor matters elaborate procedures, with personal attendance and cross-examination of witnesses under oath, are in any case out of place. A more informal mode of adjudication, by letter or telephone, would be appropriate, with appeal to the ordinary courts only in cases of great dispute. The present system not only clogs the courts, but actually results in injustice, since many of those wrongly accused reckon it cheaper to pay the fine than fight the case.


Two other principles, forbidding double jeopardy and double punishment are often cited. We do not put people on trial for the same offence again and again because we need legal decisions to have an assured stability which would be lost if a question could be reopened after it had been settled. Also, in the case of criminal charges, it would expose a man to being perpetually hassled by the authorities if he could be repeatedly charged with the same offence. These are sound practical reasons for laying down that once a man has been acquitted, he cannot be charged again, but they are not conceptual requirements, and indeed are not, in practice, always just. If at one stage a man has denied an accusation, and we have not been sure enough of our ground to overrule his denial, and later evidence emerges which shows he was lying, it would be perfectly intelligible and on occasion quite reasonable, in the absence of a legal provision to the contrary, to proceed to punish him.


Double punishment is different. It does not make sense for a society to punish a man twice for the same offence, because the punishment, being a compulsory penance, constitutes also a forcible atonement, whereby the wrongdoer is purged of his wrongdoing, rehabilitated and restored to full membership of the community. Once done, there is no room for it to be done again. But there are qualifications. The same bit of bodily behaviour can constitute a breach of more than injunction: my passage down the road may constitute exceeding the speed limit, dangerous driving, drunken driving, and driving while uninsured, and I may be punished for each of these misdeeds. Also, and more importantly, the same action may contravene the rules of more than one society, and the fact that I have been punished by one is no bar to my being also punished by another. If I deal in dangerous drugs, and am sentenced by the courts as a pusher, I am not thereby protected from being disciplined as a doctor and struck off the register. It is very common, and entirely right, that professional bodies should have higher standards than the criminal law, and often charges that cannot be proved in court are none the less shown convincingly to be true. In such cases the complaint of double jeopardy or double punishment is out of place, and it is reasonable for the other jurisdiction to take cognizance of the violation of its values and to signal its emphatic dissociation appropriately.



13. Nulla Poena Sine Lege?


A person may only be punished for a wrong he is taken to have done: but how was he to know that it was wrong? In families and other close-knit societies, where the values are very fully shared, each member can be expected to know what it right and wrong, and the same holds good for many primitive legal systems. The judge judges on the basis of shared values, and has no compunction in punishing the wrongdoer. To the plea ``I did not know it was wrong'' he retorts, ``Well, you do now''. In more developed legal systems, however, we hesitate to be so brusque, and articulate a legal code of what may and may not be done, and tend to confine punishment to transgressions of that code, and to lay down Nulla poena sine lege as a ground rule.


Four different lines of argument support our adopting that principle: the fear of judicial tyranny, the need to give the citizen breathing space in which to make his own decisions, the difficulty of drawing precise lines, and the opaqueness of some regulations. In the first place we are wary of judges. They are not to be trusted with unfettered discretion. Under the cover of public morality, they may feather their own nests; or, more insidiously, they may propagate some idiosyncratic ideal they have and father it on the shared values of our society contrary to our convictions. We garb Leviathan with legality not only to legitimise his powers, but to restrain them, and to protect each of us at our most vulnerable, when we stand before the judgement seat awaiting sentence, to ensure that sanctions shall be exercised against us only for misdeeds publicly specified as such.


The argument from fear, though all too justified in this century, is often muddled with another, more benign, consideration. We need to distance the state from the individual, in order to leave him room to be himself. Small cohesive societies, though highly supportive, can be suffocating. I cannot take over all of society's values wholesale without examining them for myself, or I cease to be an autonomous rational agent, and begin to suffer from mauvaise foi. However much I am identified with my own polis, I am not purely and simply a member of it, and may come to espouse values different from those it maintains. There is always some possibility of disagreement. And this possibility not only exists, but is recognised and legitimised by civil society. Civil society values its citizens, and sees them not simply as members of itself, as ants are of their ant hill, but as independent agents with minds of their own, minds which could be made up differently without thereby being guilty of some sort of treachery. It is not that every sort of disagreement about values can be accommodated, but only that complete agreement is not insisted on. Individuals, therefore, are not expected to internalise complete the knowledge of right and wrong, and have the right, at least in some cases, to be told where they stand. The principle is not so much Nulla poena sine lege as Nulla crimen sine lege. The code may be Draconian, but it gives guidance about what will not be tolerated without expecting the citizen to agree wholeheartedly with all its provisions. It allows some liberty of thought, if not much liberty of action.


It is often thought that a legal system needs to be fully articulated as a code, and that nothing can be said to be legally wrong unless it is specifically forbidden by some explicit law. Hart criticizes Lord Simonds for developing the common law to brand as criminal offences against public morality. But that presupposes a wrong view of the nature of law. Law is not just the positive enactment of an effective enforcing power, but is the common property of rulers and ruled alike, which enshrines some shared values they generally hold dear. Although citizens are not required to identify completely with them, they are, and must be, if law is not to rest on force alone, expected to identify with them by and large. The law against murder does not create the legal wrong of murder, but only defines its boundaries. Although the citizen should not be expected to know of himself all the law's requirements, he may be expected to have a fairly clear idea in many cases, and to know many things to be wrong without recourse to the law books. No code covers all eventualities, and judges in practice have to interpolate and extrapolate to bring new cases under existing legislation. Whether the judges stretch the meaning of some law already laid down, or appeal directly to some values underlying the whole legal system makes little difference in practice. Judicial interpretation merges into judicial innovation. Rather than insist on Nulla poena sine lege as an absolute requirement of a developed legal system, and then stretching the available lex to cover new cases, it is clearer and better to see it as a general desideratum, encouraging the law generally to move towards greater explicitness rather than relying on citizens internalising all its values.


In those legal systems in which the law is fairly fully articulated, it is sometimes thought of as the minimum morality which society expects all its members to observe and which it will enforce by coercive sanctions if need be. But actually it is a sub-minimal morality. Society would soon break down if its members observed only the requirements laid down by law. Before making some rule of behaviour a legal requirement, we have to consider not only whether we want all members of society to abide by it, but also the costs of enforcement, and whether it is really necessary to enforce it. Often, we reckon, the costs are great, and social pressure alone will suffice to ensure its general observance. We are reluctant to bring to bear the cumbersome machinery of legal enactment, unless the consequences of a single breach would be disastrous for someone---we do not rely on social opprobrium alone to dissuade murderers from making a habit of killing people---or there is some prisoners' dilemma so that if defaulters could get away scot free, others would be tempted to follow suit. Commercial life depends on a much higher standard of honesty than that required by law; similarly professional codes of behaviour are much more stringent than the legal minimum imposed on everyone: what the law does is to put up No Through Road signs, so that those tempted to cheat know that though they may get away with it on some occasions, they cannot consistently, and that sooner or later they will be found out and brought to book.


Two other considerations lead us towards making laws explicit. Though the fundamental principles are based on values we share, the exact line between cases falling under one---the right of privacy in one's own home---and those falling under another---the duty not to disturb or annoy one's neighbours---is not universally obvious. Specific knowledge of precedent and case law is called for, and that knowledge is necessarily more external than an understanding of values. More important is the fact that many legal provisions are not articulations of some underlying values, but practical measures designed to secure some practical ends by uniform means we could not work out for ourselves without being told. It is quite reasonable to have parking restrictions, speed limits, safety regulations, and to enjoin everyone to obey them. But I cannot know what is required of me except by being told, and the obligation to obey arises solely from the ordinance of the legal authority, and not from the inherent rightness of regulation. If the Queen-in-Parliament tells me that I must wear a seat-belt when driving, then I ought to do so, but only because she has told me, not because it is inherently right. It is a jus quia jussum rather than a jus quia justum. Many laws are of this type, particularly those intended to overcome some prisoners' dilemma. I cannot be expected to conclude I ought not to park here on the grounds that if everyone did the road be blocked: but if in order to secure free access there is a rule that nobody may park, then in the light of that rule it would be wrong for me to park, and if I do I may be held to have done wrong.


Some thinkers draw a distinction between crimes, in which a serious wrong has been committed, and violations of regulations, which justify the imposition of some penalty, but carry little moral stigma. It is a useful distinction. In the latter case the penalties are simply retrospectively deterrent, enough to make it generally a bad policy to violate the regulations, but not denouncing it with any great fervour. It may be inconsiderate, but is not very reprehensible, to park on double yellow lines. It needs to be effectively discouraged, or motorists in a hurry will ignore the prohibition implicit in the yellow lines altogether. We need penalties as deterrents, not punishments as denunciatory disavowals, and then, since the persistent parker is not going to be branded as a criminal, we do not need to protect him from being unfairly saddled with the charge in the way we do where serious crimes are alleged, and can adopt the less cumbersome procedures outlined in the previous section.



14. Victimless Crimes


It is a common view that there cannot be a crime unless there is a victim, and that the only reason why force should be exercised against a man is the prevention of harm to someone else. It is certainly not a general truth. Wrongdoing is possible without there being anyone who is wronged. The child who will not say `Hullo' to a visitor, a schoolboy who talks in the dormitory after lights out, the scientist who fakes experimental evidence, are not harming anyone, but are doing wrong, and may be punished, and have sanctions imposed on them, sanctions that ultimately depend on force. If I am expelled from a learned society for dishonesty, it is in the end the policeman and the bailiff enforcing the orders of the courts that will prevent my frequenting the society's premisses as I had done previously. So, too, more obviously for the schoolboy made to write out a hundred time `I must not talk after lights-out', or the child not given a chocolate biscuit at tea. All sanctions, whether those of the civil authority or those of other bodies or voluntary associations depend ultimately on the enforcement of the law, by physical coercion if need be.


The criminal law, likewise, punishes wrongdoing even when there is nobody harmed. In the United States people have been punished for disrespect to the Stars and Stripes, in Britain for blasphemy, and in almost every country there are laws protecting the sacred symbols of their culture and national identity. In modern times, however, some influential thinkers have maintained that a state ought not to legislate morality, and ought not to make any action criminal unless it caused harm to others.


The argument is based on a certain view of the state, which is seen as a minimal association for the maintenance of peace and order, rather than a natural community founded on values held in common. Historically there has been good reason to be wary of the pretensions of the state, and to seek principles which cut it down to size, but the minimalist view of the state is untrue to the facts as they are, and is impracticable anyhow. States do enshrine shared values, and unless they could inspire loyalty and devotion so that men were prepared to die for them, they would not survive long.


If the minimalist doctrine of the state is rejected, it will not follow from the nature of the state that we should not brand any action as criminal unless it causes harm to someone. Even in the absence of a victim, we may want to dissociate ourselves from something done by a compatriot. We do not think that God is harmed by a blasphemous celebration of the black mass, but we want to dissociate ourselves from it. More recently the feminists have quite rightly protested at obscene publications and advertisements, which degrade women. The actual damage to women---or men, for that matter---is open to dispute, and pornographers regularly make out that their products exercise a cathartic effect on their consumers. What is indisputable is that if our society countenances women being publicly represented as mere titillating sex-objects, we are endorsing a message that we ought to dissociate ourselves from.


There are other arguments for not making actions criminal, unless we have to, arguments of practicality, of respect for individuals' autonomy, of the need to encourage authenticity and free debate. These often carry the day. But the argument that if something is wrong there ought to be a law against it, is not broken-backed, even though not conclusive. So far as the concept of the state is concerned, there is no reason why a nation should not have laws requiring citizens to abide by certain standards: and if those standards are flouted, punishment is their appropriate vindication.