Volume Ii Part 36 (2/2)

22.

_The Principle of Equilibrium._-The robber and the man of power who promises to protect a community from robbers are perhaps at bottom beings of the same mould, save that the latter attains his ends by other means than the former-that is to say, through regular imposts paid to him by the community, and no longer through forced contributions. (The same relation exists between merchant and pirate, who for a long period are one and the same person: where the one function appears to them inadvisable, they exercise the other. Even to-day mercantile morality is really nothing but a refinement on piratical morality-buying in the cheapest market, at prime cost if possible, and selling in the dearest.) The essential point is that the man of power promises to maintain the equilibrium against the robber, and herein the weak find a possibility of living. For either they must group themselves into an equivalent power, or they must subject themselves to some one of equivalent power (_i.e._ render service in return for his efforts). The latter course is generally preferred, because it really keeps two dangerous beings in check-the robber through the man of power, and the man of power through the standpoint of advantage; for the latter profits by treating his subjects with graciousness and tolerance, in order that they may support not only themselves but their ruler. As a matter of fact, conditions may still be hard and cruel enough, yet in comparison with the complete annihilation that was formerly always a possibility, men breathe freely.-The community is at first the organisation of the weak to counterbalance menacing forces. An organisation to outweigh those forces would be more advisable, if its members grew strong enough to destroy the adverse power: and when it is a question of one mighty oppressor, the _attempt will_ certainly be made. But if the one man is the head of a clan, or if he has a large following, a rapid and decisive annihilation is improbable, and a long or permanent feud is only to be expected. This feud, however, involves the least desirable condition for the community, for it thereby loses the time to provide for its means of subsistence with the necessary regularity, and sees the product of all work hourly threatened. Hence the community prefers to raise its power of attack and defence to the exact plane on which the power of its dangerous neighbour stands, and to give him to understand that an equal weight now lies in its own side of the scales-so why not be good friends?-Thus equilibrium is a most important conception for the understanding of the ancient doctrines of law and morals. Equilibrium is, in fact, the basis of justice. When justice in ruder ages says, ”An eye for an eye, a tooth for a tooth,” it presupposes the attainment of this equilibrium and tries to maintain it by means of this compensation; so that, when crime is committed, the injured party will not take the revenge of blind anger. By means of the _jus talionis_ the equilibrium of the disturbed relations of power is restored, for in such primitive times an eye or an arm more means a bit more power, more weight.-In a community where all consider themselves equal, disgrace and punishment await crime-that is, violations of the principle of equilibrium. Disgrace is thrown into the scale as a counter-weight against the encroaching individual, who has gained profit by his encroachment, and now suffers losses (through disgrace) which annul and outweigh the previous profits. Punishment, in the same way, sets up a far greater counter-weight against the preponderance which every criminal hopes to obtain-imprisonment as against a deed of violence, rest.i.tution and fines as against theft. Thus the sinner is reminded that his action has excluded him from the community and from its moral advantages, since the community treats him as an inferior, a weaker brother, an outsider. For this reason punishment is not merely retaliation, but has something more, something of the cruelty of the state of nature, and of this it would serve as a reminder.

23.

WHETHER THE ADHERENTS OF THE DOCTRINE OF FREE WILL HAVE A RIGHT TO PUNISH?-Men whose vocation it is to judge and punish try to establish in every case whether an evil-doer is really responsible for his act, whether he was able to apply his reasoning powers, whether he acted with motives and not unconsciously or under constraint. If he is punished, it is because he preferred the worse to the better motives, which he must consequently have known. Where this knowledge is wanting, man is, according to the prevailing view, not responsible-unless his ignorance, _e.g._ his _ignorantia legis_, be the consequence of an intentional neglect to learn what he ought: in that case he already preferred the worse to the better motives at the time when he refused to learn, and must now pay the penalty of his unwise choice. If, on the other hand, perhaps through stupidity or shortsightedness, he has never seen the better motives, he is generally not punished, for people say that he made a wrong choice, he acted like a brute beast. The intentional rejection of the better reason is now needed before we treat the offender as fit to be punished. But how can any one be intentionally more unreasonable than he ought to be? Whence comes the decision, if the scales are loaded with good and bad motives? So the origin is not error or blindness, not an internal or external constraint? (It should furthermore be remembered that every so-called ”external constraint” is nothing more than the internal constraint of fear and pain.) Whence? is the repeated question. So reason is not to be the cause of action, because reason cannot decide against the better motives? Thus we call ”free will” to our aid. Absolute discretion is to decide, and a moment is to intervene when no motive exercises an influence, when the deed is done as a miracle, resulting from nothing.

This a.s.sumed discretion is punished in a case where no discretion should rule. Reason, which knows law, prohibition, and command, should have left no choice, they say, and should have acted as a constraint and a higher power. Hence the offender is punished because he makes use of ”free will”-in other words, has acted without motive where he should have been guided by motives. But why did he do it? This question must not even be asked; the deed was done without a ”Why?” without motive, without origin, being a thing purposeless, unreasoned.-However, according to the above-named preliminary condition of punishability, such a deed should not be punished at all! Moreover, even this reason for punis.h.i.+ng should not hold good, that in this case something had _not_ been done, had been omitted, that reason had not been used at all: for at any rate the omission was unintentional, and only intentional omission is considered punishable. The offender has indeed preferred the worse to the better motives, but without motive and purpose: he has indeed failed to apply his reason, but not exactly with the object of not applying it. The very a.s.sumption made in the case of punishable crime, that the criminal intentionally renounced his reason, is removed by the hypothesis of ”free will.” According to your own principles, you must not punish, you adherents of the doctrine of free will!-These principles are, however, nothing but a very marvellous conceptual mythology, and the hen that hatched them has brooded on her eggs far away from all reality.

24.

JUDGING THE CRIMINAL AND HIS JUDGE.-The criminal, who knows the whole concatenation of circ.u.mstances, does not consider his act so far beyond the bounds of order and comprehension as does his judge. His punishment, however, is measured by the degree of astonishment that seizes the judge when he finds the crime incomprehensible.-If the defending counsel's knowledge of the case and its previous history extends far enough, the so-called extenuating circ.u.mstances which he duly pleads must end by absolving his client from all guilt. Or, to put it more plainly, the advocate will, step by step, tone down and finally remove the astonishment of the judge, by forcing every honest listener to the tacit avowal, ”He was bound to act as he did, and if we punished, we should be punis.h.i.+ng eternal Necessity.”-Measuring the punishment by the degree of knowledge we possess or can obtain of the previous history of the crime-is that not in conflict with all equity?

25.

EXCHANGE AND EQUITY.-In an exchange, the only just and honest course would be for either party to demand only so much as he considers his commodity to be worth, allowance being made for trouble in acquisition, scarcity, time spent and so forth, besides the subjective value. As soon as you make your price bear a relation to the other's need, you become a refined sort of robber and extortioner.-If money is the sole medium of exchange, we must remember that a s.h.i.+lling is by no means the same thing in the hands of a rich heir, a farm labourer, a merchant, and a university student. It would be equitable for every one to receive much or little for his money, according as he has done much or little to earn it. In practice, as we all know, the reverse is the case. In the world of high finance the s.h.i.+lling of the idle rich man can buy more than that of the poor, industrious man.

26.

LEGAL CONDITIONS AS MEANS.-Law, where it rests upon contracts between equals, holds good so long as the power of the parties to the contract remains equal or similar. Wisdom created law to end all feuds and useless expenditure among men on an equal footing. Quite as definite an end is put to this waste, however, when one party has become decidedly weaker than the other. Subjection enters and law ceases, but the result is the same as that attained by law. For now it is the wisdom of the superior which advises to spare the inferior and not uselessly to squander his strength.

Thus the position of the inferior is often more favourable than that of the equal.-Hence legal conditions are temporary _means_ counselled by wisdom, and not ends.

27.

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