The origin and development of the moral ideasWestermarck, Edward
Philosophy
The origin and development of the moral ideas
Westermarck, Edward
Ethics; Ethics -- History; Prehistoric peoples
A law expresses a rule of duty by making an act or omission which is
regarded as wrong a crime, that is, by forbidding it under pain of
punishment. Law does not in all cases directly threaten[38] with
punishment--I say directly, since all law is coercive, and all
coercion at some stage involves the possibility of punishment.[39]
Sanctions, or the consequences by which the sovereign political
authority threatens to enforce the laws set by it, may {169} have in
view either the indemnification of the injured party, or the suffering
of the injurer. In the latter case the sanctions are called
punishments. But, though highly important, the distinction between
indemnification and punishment is not absolute. A person who causes
harm to another would hardly have to pay damages unless some kind of
guilt or quasi-guilt were imputed to him; and, on the other hand,
punishment may actually consist in the damages he has to pay.
Moreover, the suffering involved in punishment must be regarded as a
kind of indemnification in so far as it is intended to gratify the
injured party's craving for revenge. The pleasure of vengeance, says
Bentham, "is a gain; it calls to mind Samson's riddle--it is sweet
coming out of the terrible, it is honey dropping from the lion's
mouth."[40] In cases where the injured party is allowed to decide
whether the injurer shall be punished or not, or what punishment
(within certain limits) shall be inflicted upon him, it is obvious
that punishment is largely looked upon as a means of indemnification.
However, the fact that such a privilege is granted to the injured
party indicates the existence of some degree of sympathetic resentment
in the public. Punishment, in all its forms, is essentially an
expression of indignation in the society which inflicts it.[41] Hence
it is of extreme importance for the study of moral ideas, and calls
for our careful consideration.
[Footnote 38: "Not every sovereign can make sure of enforcing his
commands; and sometimes laws are made without even any great intention
of enforcing them" (Pollock, _Essays in Jurisprudence and Ethics_,
p. 9 _sq._).]
[Footnote 39: _Cf._ Stephen, _op. cit._ i. 2.]
[Footnote 40: Bentham, _Theory of Legislation_, p. 309.]
[Footnote 41: "Die Missbilligung ist das Wesentliche aller Strafe"
(von Bar, _Die Grundlagen des Strafrechts_, p. 4). "La peine consiste
dans une réaction passionnelle d'intensité graduée" (Durkheim,
_Division du travail social_, p. 96).]
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