Note 243 — LECTURE XV. PRIVATE AND PUBLIC ETHICS.

See on the theory of penalty, the Gorgias, vol. iii. of the translation of Plato, and our argument, p. 367: "The first law of order is to be faithful to virtue, and to that part of virtue which is related to society, to wit, justice; but if one is wanting in that, the second law of order is to expiate one's fault, and it is expiated by punishment. Publicists are still seeking the foundation of penalty. Some, who think themselves great politicians, find it in the utility of the punishment for those who witness it, and are turned aside from crime by fear of its menace, by its preventive virtue. And that it is true, is one of the effects of penalty, but it is not its foundation; for punishment falling upon the innocent, would produce as much, and still more terror, and would be quite as preventive. Others, in their pretensions to humanity, do not wish to see the legitimacy of punishment except in its utility for him who undergoes it, in its corrective virtue,—and that, too, is one of the possible effects of punishment, but not its foundation; for that punishment may be corrective, it must be accepted as just. It is, then, always necessary to recur to justice. Justice is the true foundation of punishment,—personal and social utility are only consequences. It is an incontestable fact, that after every unjust act, man thinks, and cannot but think that he has incurred demerit, that is to say, has merited a punishment. In intelligence, to the idea of injustice corresponds that of penalty; and when injustice has taken place in the social sphere, merited punishment ought to be inflicted by society. Society can inflict it only because it ought. Right here has no other source than duty, the strictest, most evident, and most sacred duty, without which this pretended right would be only that of force, that is to say, an atrocious injustice, should it even result in the moral profit of him who undergoes it, and in a salutary spectacle for the people,—what it would not then be; for then the punishment would find no sympathy, no echo, either in the public conscience or in that of the condemned. The punishment is not just, because it is preventively or correctively useful; but it is in both ways useful, because it is just." This theory of penalty, in demonstrating the falsity, the incomplete and exclusive character of two theories that divide publicists, completes and explains them, and gives them both a legitimate centre and base. It is doubtless only indicated in Plato, but is met in several passages, briefly but positively expressed, and on it rests the sublime theory of expiation.