3. It sees that the state has a spiritual end, and so is entitled to repress immorality. Criminal law should express and thus strengthen the moral sense of the community, and as that sense grows keener, the sphere of criminal law should enlarge.
Science is extending its sway over politics and morals. The International Criminological Association, recently founded, aims to treat penal law, a branch of morals, scientifically. Its members accept these propositions among others: First, the object of punishment is the suppression of crime as a social phenomenon; secondly, the results of anthropology and sociology are to be applied to penology and penal legislation; thirdly, punishment is an effective means of suppressing crime, but it must be supplemented by other means. These propositions re-express the old doctrine that punishment is not for past sin, but to prevent future sin, and, naturally enough, are met by a reaffirmation of the opposed doctrine that punishment is for the sake of justice and must be equivalent in amount to the guilt. The latter is the primitive conception of all penal law, for this originated in revenge, or the desire for retribution. With the transition in the latter half of the last century from retributive law to law threatening punishment the idea of punishing to prevent became prominent, for prevention must be the object of threats. This antithesis between the absolute and the relative theories in penology is connected with those between freedom and determinism and between the responsibility and irresponsibility of criminals and others.
Determinism may find the essence of punishment in the threat and its value in bringing a counter-motive to act on the individual. If the deterring motive prove ineffectual, the punishment must fall, not for the sake of the criminal, but in order to keep that motive at work and efficient in society. The objection to this theory is that it makes the individual only a means to the common good.
Again, it may be contended that the normal man, though determined, is aware of what he does and of the penalty threatened. He reckons on that basis and can no more complain, if the result is painful, than could a loser at a lottery.
Reply. Such an hypothesis is, indeed, deterministic as applied to the will, but conceives that thought is free and that it goes before and determines the will. It regards men as alike in this respect, while as a matter of fact psychology is finding great differences between individuals in this as in all else, and is putting individuality in the place of uniformity, even intellectual uniformity. Self-restraint and self-determination are largely matters of heredity.
