ABSTRACT
The retaliatory principle of 'an eye for an eye' will work literally only in a few special cases, and in some of these it would be rejected as intolerably cruel. But if we are to take it in some other sense, 'in the spirit of the law', it involves a sort of arithmetical equation of suffering as impracticable as Bentham's hedonsitic calculus. Suffering of one sort cannot be equated with another, though it may be possible to prefer one to another (or to be indifferent as between one and another). I can certainly say that I would rather see A suffer in one way than B in another; or that there is really nothing to choose between the two. But this is quite different from saying that A ought to be made to suffer in exactly the same degree as B, whom he has injured; for this involves not a preference enunciated by some third person, but a quasi-quantitative comparison of the sufferings of two different people, treated as objective facts. And there is no way of making this comparison, even though the external features of their suffering may be identical. It is even more evidently impossible when the suffering of one is occasioned by, say, blackmail, and of the other by imprisonment.* Short of literal retaliation, there is no way in which the crime can be made the measure of the punishment, unless reference can be made to some predetermined scale. But the question then becomes that of drawing up the scale. This difficulty remains in the retributive theory as presented by Mr J. D. Mabbott. While admitting that there can be no direct relation between the offence and the penalty, he maintains that by comparing one crime with another we can make an estimate of the punishments relatively appropriate: 'We can grade crimes in a rough scale and penalties in a rough scale, and keep our heaviest penalties for what are socially the most serious wrongs regardless of whether these penalties . . . are exactly what deterrence would require'18 What, however, are we to
understand by 'socially the most serious wrongs'? Part at least of what we should mean by that phrase is that we ought to do our utmost to prevent them. The most serious wrongs are the ones we are least ready to tolerate. Consequently, these are not only the ones we blame most severely; they are also the ones we feel justified in penalizing most heavily, in order to deter people from committing them. It is difficult to see, then, how deterrence could be left out in constructing or justifying such a scale. Again, there is surely no doubt that in allocating penalties for offences against, say, currency or import regulations, what is most relevant is not the severity with which we blame the offence in any moral sense, but the profit that the offender might expect to make on such a transaction. Crime must not pay, however mildly we might blame it. It is not easy, with offences of this sort, to know what degree of blame is appropriate, because they are offences against morality only because there is a prima facie moral duty to obey the law. It is difficult to feel very deeply about breaches of rules which might be quite different in six months' time; but that is not a reason for punishing them leniently, if that would destroy the effectiveness of the rules.
