Before CHAPTER XIII WHY MORAL JUDGMENTS ARE PASSED ON CONDUCT AND CHARACTER—MORAL VALUATION AND FREE-WILL
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Westermarck, Edward
Whilst culpability or quasi-culpability is thus imputed to the innocent committer of a harmful deed, little or no censure is passed on him whose want of foresight or want of self-restraint is productive of suffering, if only the effect is sufficiently remote. This is exemplified by the frivolous leniency with which drunkenness, not long ago, was looked upon in many civilised countries, and by the criminal indifference with which law and public opinion still regard the production of offspring that are almost with certainty doomed to misery on account of the vices, poverty, or bodily infirmities of the parents. To interfere here, it is argued, would be to intrude upon the individual’s right of freedom, or to meddle with the affairs of Providence. But men are not, generally, allowed to do mischief simply in order to gratify their own appetites, and Providence might equally well be called in to answer for any other kind of human shortcoming. I presume the true explanation to be, that in this, as in many other kindred cases, the cause and effect are so distant from each other that the near-sighted eye does not distinctly perceive the connection between them. Indeed, there is hardly any other point in which the moral consciousness of civilised men still stands in greater need of intellectual training than in its judgments on cases which display want of care or foresight.
And there is no safer measure of the moral enlightenment of a man than the scrupulosity with which he considers the possible consequences of acts, and the number of positive commandments which are contained in his catalogue of duties.
That moral indignation and moral approval are from the very beginning felt, not with reference to certain modes of conduct per se, but with reference to persons on account of their conduct, is obvious from the intrinsic nature of those emotions. As we noticed before, they derive one of their most essential characteristics from their being directed against sensitive agents. Hence they may as naturally give rise to judgments on human character as to judgments on human conduct. And even when a moral judgment immediately refers to a distinct act, it takes notice of the agent’s will as a whole. The forgiveness which follows sincere repentance, and the distinction made between injuries committed deliberately in cold blood and injuries committed in the heat of passion, indicate that men, in their moral judgments, are apt to consider something more than a momentary volition. The same tendency is at the bottom of the common practice of punishing a second and third offence more severely than the first.
Among the Masai, “if a man is convicted of a particular crime several times, or constitutes himself a public nuisance, he is proclaimed an outlaw, his property is confiscated, and he is beaten away from any settlement or village he goes near. Unless an outlaw can find friends among non-Masai tribes, he dies of starvation.”29 Among the Wakamba “a murder is judged by the elders; if it is a man’s first offence of that kind he is punished by a fine…. But a man convicted for the second time of murder is killed at once, everyone setting on him the moment judgment is delivered…. For rape a first offender is flogged, and has to pay a fine of one cow; for the second offence he is killed.”30 Among the Wyandots of North America, “a woman guilty of adultery, for the first offence is punished by having her hair cropped; for repeated offences her left ear is cut off.”31 The laws of the Incas, also, were more lenient to a first offence than to a second;32 and in the kingdom of Mechoacan, whilst the first theft was not severely punished, the thief who repeated his crime was thrown down a precipice and his carcass was left to the birds of prey.33 Among the Aleuts, for the first theft “corporal punishment was inflicted; for the second offence of the kind some fingers of the right hand were cut off; for the third, the left hand and sometimes the lips were amputated; and for the fourth offence the punishment was death.”
Other crimes, again, “were punished at first by reprimand by the chief before the community, and upon repetition the offender was bound and kept in such a condition for some time.”34 The Kamchadales “burn the hands of people who have been frequently caught in theft, but for the first offence the thief must restore what he hath stolen, and live alone in solitude, without expecting any assistance from others.”35 Among the Ainu, “for breaking into the storehouse or dwelling of another, a very sound beating was administered for the first offence; for the second, sometimes the nose was cut off, sometimes the ears, and in some cases both the nose and ears were forfeited…. Persons who had committed such a crime twice were driven bag and baggage out of the home and village to which they belonged.”36 Among the Murray Islanders repetition of an offence such as murder or robbery generally incurred a penalty of death, whereas the first offence was punished only by a fine.37 According to the Javanese Níti Sástra, if a man violates the law, he may for the first transgression be punished by a pecuniary fine, for the second by a punishment affecting his person, but for the third he may be punished with death.38 The Penal Code of the Chinese prescribes that, for the first offence, individuals convicted of being concerned in a theft shall be branded in the lower part of the left arm with two words signifying thief, that for the second offence they shall be branded again with the same words in the lower part of the right arm, but that for the third offence they shall suffer death by being
strangled, after remaining the usual period in confinement.39 In Nepal, in the case of theft or petty burglary, for the first offence one hand is cut off, for the second the other hand, whilst the third offence is capital.40 Herodotus mentions with approval that in ancient Persia not even the king was allowed to put any one to death for a single crime.41 According to the Vendîdâd, the gravity of a crime does not depend only on the gravity of the deed, but on its frequency as well.42 In ancient Rome the repetition of a crime aggravated its punishment.43 According to early English law, the punishment upon a second conviction for nearly every offence was death or mutilation.44 In modern European legislation, the principle that the criminality of certain crimes is increased by their repetition is generally recognised.
The more a moral judgment is influenced by reflection, the more it scrutinises the character which manifests itself in that individual piece of conduct by which the judgment is occasioned. But however superficial it be, it always refers to a will conceived of as a continuous entity, to a person regarded as a cause of pleasure or pain. This holds good of savage and civilised men alike. Even tame animals, in response to a hurt or a benefit, behave differently towards different persons according to their previous experience of the agent.
Source notes
24 Holmes, Common Law, p. 80.
25 Stanley v. Powell, in Law Reports, Queen’s Bench Division, 1891, i. 86 sqq. Pollock and Maitland, op. cit. ii. 475 sq.
26 von Jhering, Schuldmoment im römischen Privatrecht, passim, especially pp. 20 sqq., 40 sqq. Hepp, op. cit. p. 106.
27 Forsman, Bidrag till läran om skadestånd i brottmål, p. 158 sq. Pollock, Law of Torts, p. 129 sqq.
28 Thon, Rechtsnorm und subjectives Recht, p. 106, n. 71.
29 Hinde, The Last of the Masai, p. 108.
30 Decle, op. cit. p. 487.
31 Powell, ‘Wyandot Government,’ in Ann. Rep. Bur. Ethn. i. 66.
32 Herrera, General History of the West Indies, iv. 338 sqq.
33Ibid. iii. 255.
34 Veniaminof, quoted by Petroff, ‘Report on Alaska,’ in Tenth Census of the United States, p. 152.
35 Krasheninnikoff, History of Kamschatka, p. 179.
36 Batchelor, Ainu and their Folk-lore, p. 285.
37 Hunt, in Jour. Anthr. Inst. xxviii. 6.
38 Raffles, History of Java, i. 262.
39Ta Tsing Leu Lee, sec. cclxix. p. 285.
40 Hodgson, Miscellaneous Essays, ii. 235.
41 Herodotus, i. 137.
42Vendîdâd, iv. 17 sqq.
43 Mommsen, Römisches Strafrecht, p. 1044.
44 Stephen, op. cit. i. 58.