189. The justice of punishment depends on the justice of the system of rights which it is to maintain 190. The idea that 'just' punishment is that which = the crime in amount confuses retribution for the wrong to society with compensation for damages to the individual 191. 'But why not hold that the pain of the punishment ought to = the moral guilt of the crime?' 192. Because the state cannot gauge either the one or the other; and if it could, it would have to punish every case differently 193. In truth the state has regard in punishing, not primarily to the individuals concerned, but to the future prevention of the crime by associating terror with it in the general imagination 194. The account taken of 'extenuating circumstances' may be similarly explained; i.e. the act done under them requires little terror to prevent it from becoming general 195 'But why avoid the simpler explanation, that extenuating circumstances are held to diminish the _moral guilt_ of the act?' 196. Because _(a)_ the state cannot ascertain the _degree_ of moral guilt involved in a crime; _(b)_ if it tries to punish immorality (proper), it will check disinterested moral effort 197. Punishment, however, may be truly held to express the 'moral disapprobation' of society, but it is to the external side of action that the disapprobation is directed 198. The principle that punishment should be regulated by the importance of the right violated explains the severity with which 'culpable negligence is punished 199. And the punishment of crimes done in drunkenness illustrates the same principle 200. It also justifies the distinction between 'criminal' and 'civil' injuries, (which is not a distinction between injuries to individuals and to the community, for no 'right' is violated by injury done to an individual _as such_) 201. There would be no reason in associating terror with breaches of a right which the offender either did not know that he was breaking or which he could not help breaking 202. When such ignorance and inability are culpable, it depends on the seriousness of the wrong or the degree to which the civil suit involves deterrent effects, whether they should be treated as crimes 203. Historically, the state has interfered first through the civil process; gradually, as public alarm gets excited, more and more offences come to be treated as crimes 204. Punishment must also be _reformatory_ (this being one way of being preventive), i.e. it must regard the rights of the criminal 205. Capital punishment is justifiable only _(a)_ if it can be shown to be necessary to the maintenance of society, _(b)_ if there is reason to suppose the criminal to be permanently incapable of rights 206. Punishment, though _directly_ it aims at the maintenance of rights, has indirectly a moral end, because rights are conditions of moral well-being. M. _The right of the state to promote morality._