The Philosophy of Law: Supplementary Explanations, V: Addition to the Explanation of the Conception of Penal Right
The mere idea of a political Constitution among men involves the conception of a punitive Justice as belonging to the supreme Power. The only question, then, is to consider whether the legislator may be indifferent to the modes of punishment, if they are only available as means for the removal of crime, regarded as a violation of the Security of property in the State; or whether he must also have regard to respect for the Humanity in the person of the criminal, as related to the species; and if this latter alternative holds, whether he is to be guided by pure principles of Right, taking the jus talionis as inform the only & priori idea and determining principle of Penal Right, rather than any generalization from experience as to the remedial measures most effective for his purpose. But if this is so, it will then be asked how he would proceed in the case of crimes which do not admit of the application of this Principle of Retaliation, as being either impossible in itself, or as in the circumstances involving the perpetration of a penal offence against Humanity generally. Such, in particular, are the relations of rape, paederasty, and bestiality. The former two would have to be punished by castration (after the manner of the white or black eunuchs in a seraglio), and the last by expulsion for ever from civil society, because the individual has made himself unworthy of human relations. Per quod quis peccat per idem, punitur et idem. These crimes are called unnatural, because they are committed against all that is essential to Humanity. To punish them by arbitrary penalties, is literally opposed to the conception of a penal Justice. l>ut even then the criminal cannot complain that wrong is done to him, since his own evil deed draws the punish ment upon himself; and he only experiences what is in accordance with the spirit, if not the letter, of the penal Law which he has broken in his relation to others.
Every punishment implies something that is rightly degrading to the feeling of honour of the party condemned. For it contains a mere one-sided compulsion. Thus his dignity as a citizen is suspended, at least in a particular instance, by his being subjected to an external obligation of duty, to which he may not oppose resistance on his side. Men of rank and wealth, when mulcted in a fine, feel the humiliation of being compelled to bend under the will of an inferior in position, more than the loss of the money. Punitive Justice (justitia punitiva), in which the ground of the penalty is moral (quia peceatum est), must be distinguished from punitive Expediency, the foundation of which is merely pragmatic (ne peccetur) as being grounded upon the experience of what operates most effectively to prevent crime. It has consequently an entirely distinct place (locus justi) in the topical arrangement of the juridical conceptions. It is neither the conception of what is conduciUe to a certain effect (conducililis), nor even that of the pure Jloneslum, which must be properly .placed in Ethics.