i. An obvious point of view, and the first perhaps to appear in

philosophy, though strongly opposed to early law, is that the aim of punishment is to make the offender good. As test of the adequacy of this doctrine by itself, the question may be put, “If pleasures would cure the offender, ought he to be given pleasures?” The doctrine, however, does not, by any means, altogether incline to leniency. For it carries as a corollary the extirpation of the incurable, which Plato proposes in a passage of singularly modern quality, when he suggests the co-operation of judges and physicians in maintaining the moral and physical health of society. [1]

[1] _Republic_, 409, 410.

The first comment that occurs to us is, that by a mere medical treatment of the offender, including or consisting of pleasant conditions, if helpful to his cure, the interest of society seems to be disregarded. What is to become of the maintenance of rights, if aggressors have to anticipate a pleasant or lenient “cure”? It may be true that brutal punishments stimulate a criminal temper in the people rather than check it; but it is a long way from this to laying down that there is no need {222} for terror to be associated with crime. To suppose that pleasures may simply act throughout as pains, is playing with words and throws no light on the question. If we leave words their meaning, we must say that punishment must be deterrent for others as well as reformatory for the offender, and therefore in some degree painful. It is true, however, that the offender, as a human being, and presumably capable of a common good, has, as Green puts it, “reversionary rights” of humanity, and these, punishment must so far as possible respect.

But there is a deeper difficulty. If the reformation theory is to be seriously distinguished from the other theories of punishment, it has a meaning which is unjust to the offender himself. It implies that his offence is a merely natural evil, like disease, and can be cured by therapeutic treatment directed to removing its causes. But this is to treat him not as a human being; to treat him as a “patient,” not as an agent; to exclude him from the general recognition that makes us men. (If the therapeutic treatment includes a recognition and chastisement of the offender’s bad will [1]--the form of which chastisement may, of course, be very variously modified--then there is no longer anything to distinguish the reformatory theory from other theories of punishment.) It has been lately pointed out [2] what a confusion is involved in the claim that beings, who are irresponsible and so incapable of guilt, are therefore in the strict sense innocent. Here are the true objects {223} for a pure reformatory theory. Here that may freely be done, as to creatures incapable of rights, which is kindest for them and safest for society, from quasi-medical treatment to extirpation. There is no guilt in them to demand punishment, but there is no human will in them to have the rights of innocence.

[1] Plato’s reformatory theory seems to involve this.

[2] Mr. Bradley, in the _International Journal of Ethics_, April, 1894.

But, applied to responsible human beings, such a theory, if really kept to its distinctive contention, is an insult. It leads to the notion that the State may take hold of any man, whose life or ideas are thought capable of improvement, and set to work to ameliorate them by forcible treatment. There is no true punishment except where one is an offender against a system of rights which he shares, and therefore against himself. And such an offender has a right to the recognition of his hostile will; it is inhuman to treat him as a wild animal or a child, whom we simply mould to our aims. Without such a recognition, to be punished is not, according to the old Scotch phrase, to be “justified.”