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Le crime, le châtiment et les écossais

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Jean Berton
, 
Bill Findlay

III – Questioning Poetic Justice / L’immanence de la justice en question

Natural Feelings, Crime and Punishment in Adam Smith’s Moral Philosophy

Trung Thien Kim Nguyen

Texte intégral

1Among the thinkers of the Scottish Enlightenment, Adam Smith proposes to identify crime and determine punishment in a specific way. Contrary to the common view that the practice of punishment is used for public utility purposes and in situations where the common good is jeopardized, Smith’s theory of punishment is grounded on one’s natural feelings, that is, the resentment one feels when one has been the victim of a crime.

2This presentation will address several objections brought to the fore to challenge Smith’s justification of the practice of punishment. The first objection holds that insofar as Smith’s theory of punishment is founded on one’s natural feelings, it cannot provide a proper moral and universal justification of punishment. The second objection claims that Smith’s theory of punishment seems inconsistent since, on the one hand, he argues that punishment is justified only in situations where there is actual personal injury, and on the other hand, he considers some punishments as “just and proper” even though the acts prompting such punishments have not caused any direct injury to a person. The third objection identifies a discrepancy between the requirement that the impartial spectator mechanism embody a universal point of view and the fact that the operation of moral judgement is necessarily dependent upon the social context and particular circumstances the impartial spectator finds himself in.

3I will argue that in Smith’s theory of punishment, one’s natural feelings may very well establish a sound, moral and universal justification of the practice of punishment. At the core of Smith’s theory of punishment, the mechanisms of sympathy and of the impartial spectator work in a way that enables one to justly judge whether a crime deserves punishment and what degree of punishment should be administered. Secondly, although the distribution of punishment may sometimes be applied in contradiction with the principles of natural justice, this does not suggest that there is some inconsistency in Smith’s theory of punishment. Thirdly, that the emergence and exercise of moral judgement are matters of empirical fact does not prevent Smith from providing an account of how the principles of social morality evolve into universal moral ideals.

4The question of Smith’s theory of punishment has not been widely studied in recent years. Alan Norrie published an article entitled “Punishment and Justice in Adam Smith” in the journal Ratio Juris in December 1989 and Richard Stalley showed interest in the subject and published an article entitled “Adam Smith and the Theory of Punishment” in The Journal of Scottish Philosophy in 2012. In this paper, I shall explain on what grounds I take a different stance in relation to Norrie’s understanding of Adam Smith’s theory of punishment and I shall start off from where Stalley left off.

5I shall start by presenting the foundation of Smith’s theory of punishment. In the following section I shall examine the decisive role played by natural feelings in the determination of punishment. And in the third section I shall end by showing how Smith ensures the proper distribution of punishment despite conflicting factors in some particular cases.

The foundation of Adam Smith’s theory of punishment

Justice & Punishment

6The starting-point of Adam Smith’s theory of punishment is to be found in his account of justice. In his Theory of Moral Sentiments, first published in 1759, Smith explains that the acts that deserve to be punished are acts of injustice.

There is, however, another virtue, of which the observance is not left to the freedom of our own wills, which may be extorted by force, and of which the violation exposes to resentment, and consequently to punishment. This virtue is justice: the violation of justice is injury: it does real and positive hurt to some particular persons, from motives which are naturally disapproved of. It is, therefore, the proper object of resentment, and of punishment, which is the natural consequence of resentment.
Smith, TMS, 93

7Scottish Enlightenment thinkers all agreed that justice is the necessary requirement for the minimal order that makes society possible. This accounts for the fact that the virtue of justice is significantly different from any other virtue. All the other positive virtues, such as friendship, charity, generosity or benevolence make society flourishing and happy, although without them, social life is still quite possible. Conversely, without the virtue of justice, there can be no social life at all.

[Beneficence] is the ornament which embellishes, not the foundation which supports the building […]. Justice, on the contrary, is the main pillar that upholds the whole edifice. If it is removed, the great, the immense fabric of human society […] must in a moment crumble into atoms. ,
Smith, TMS101

8Beneficence, therefore, is not essential to the existence of society. “Society may subsist, though not in the most comfortable state, without beneficence; but the prevalence of injustice must utterly destroy it.” (Smith, TMS, 101) Justice is thus distinguished on account of its unique societal impact. Whereas some form of society might exist in the absence of the practice of other moral virtues, no society could subsist without the enforcement of the laws of justice. Insofar as justice is the “main pillar” supporting social intercourse, abiding by the rules of justice is not “left in some measure to our own choice”. (Smith, TMS, 93) Thus, not only do “we feel ourselves to be in a peculiar manner tied, bound, and obliged to the observation of justice” (Smith, TMS, 93), we will also be the proper object of punishment in case of failure of performance.

As society cannot subsist unless the laws of justice are tolerably observed, as no social intercourse can take place among men who do not generally abstain from injuring one another; the consideration of this necessity, it has been thought, was the ground upon which we approved of the enforcement of the laws of justice by the punishment of those who violated them.
Smith, TMS, 103

9Following the natural jurisprudential tradition, Smith identifies commutative justice as prescribing specific rules the violation of which can be legitimately punished by coercive means. Justice is also defined as the limit or boundary beyond which no individual’s pursuit of self-interest should extend. The observation of this limit, as explained earlier, is not to be left up to individual discretion. Here, Smith understands the concept of justice in its narrow meaning of abstaining from doing our neighbour any positive harm. Thus, the virtue of justice also differs from other positive virtues by its negative orientation: in contrast to the active performance required for the fulfilment of other moral virtues, justice manifests itself in refraining from performing certain acts.

Mere justice is, upon most occasions, but a negative virtue, and only hinders us from hurting our neighbour. The man who barely abstains from violating either the person, or the estate, or the reputation of his neighbours, has surely very little positive merit. He fulfils, however, all the rules of what is peculiarly called justice, and does every thing which his equals can with propriety force him to do, or which they can punish him for not doing. We may often fulfil all the rules of justice by sitting still and doing nothing.
Smith, TMS, 95

10It is usually situations of injustice, rather than situations of justice, that one has to deal with. In his Lectures on Jurisprudence, Smith describes what happens in situations of injustice: “Justice is violated whenever one is deprived of what he had a right to and could justly demand from others” (Smith, LJ (A), 7). Acts of injustice correspond to the kinds of actions that involve the violation of another’s rights. However, Smith points out that punishment does not ensue from the violation of any right, it only ensues from the violation of “perfect” rights. He refers to the tradition of modern natural law inaugurated by Grotius with the publication of De Iure Belli ac Pacis in 1625, according to which society is only possible with the respect of “perfect” rights, that is, the rights that must be respected if peace is to be secured and war avoided. The other positive virtues are called imperfect. One has a right to the virtuous behaviour of others. However, in the case of positive virtues, the corresponding rights are imperfect, and cannot justifiably be enforced. In the case of the negative virtue of justice, the right not to be injured is perfect. As a result, such a right can be demanded. It is legally enforceable and its violation leads to punitive retaliation. The resentment felt at the violation of those rights is proportional to the severity of the injury done, and accordingly, perfect and imperfect rights are ordered on a scale of importance. For instance,

The most sacred laws of justice, therefore, those whose violation seems to call loudest for vengeance and punishment, are the laws which guard the life and person of our neighbour; the next are those which guard his property and possessions; and last of all come those which guard what are called his personal rights, or what is due to him from the promises of others.
Smith, TMS, 98

11Therefore, the negative virtue of avoiding harm or injury is justice, and the personal attributes that are protected in each person when others show them justice, that is, when they abstain from injuring them, are their rights. The forcefulness with which one responds to injurious behaviour subsequently depends on the sympathetic resentment of the impartial spectator at the injuries against which the rights are a protection, which I will come back to in my second part.

Punishment & Utility

  • 1 The idea that justice is based upon utility is most obviously found in Hume, especially the Second (...)

12It appears that Smith’s account of justice laid the foundation for the mistaken theory that identifies usefulness or utility as the origin and obligation of justice. This approach, found for instance in David Hume’s treatment of justice,1 confuses “efficient” and “final” causes. Smith also denies Hume’s broader idea that human character and its motives are judged in terms of their tendency to be useful or harmful.

For first of all, it seems impossible that the approbation of virtue should be a sentiment of the same kind with that by which we approve of a convenient and well-contrived building; or that we should have no other reason for praising a man than that for which we commend a chest of drawers.
Smith, TMS, 220

13That Smith adopts the seventeenth- and eighteenth-century understanding of justice as the principal condition for the possibility of sociability does not entail that consideration of the utility of the laws of justice is the purpose of devising such laws. “Man, it has been said, has a natural love for society, and desires that the union of mankind should be preserved for its own sake, and though he himself was to derive no benefit from it.” (Smith, TMS, 103) Moreover, in his Lectures on Jurisprudence, Smith repudiates the argument “which Grotius and other writers commonly alledge”, that “the originall measure of punishments” derives from the utilitarian “consideration of the publick good”: such a “consideration of the publick good, will not sufficiently account for the constitution of punishments.” (Smith, LJ (A), 104) Instead, in cases of injustice, the distinctive moral response of punishment aims at relieving the particular injury suffered by the victim, and does not concern the general social interest ultimately served by the punishment.

14Although considerations of utility do not provide a justification for punishment, it is understandable that some people have thought so. Indeed, punishment based upon spectator sympathy with the resentment of the injured person does in fact lead to useful results which have been taken as its justification. Among those useful results are correction of the offender, deterrence of both him and others from repeating the crime in the future, or compensation for the injury. In a discussion of Adam Smith’s theory of punishment, Alan Norrie declared that “we would be justified in describing it as a limited form of utilitarianism”. (Norrie, 232) He alludes to “the returning of a right to the criminal”, states that “criminal desert is something owed to the criminal”, and that “punishment is a requital due to him, and to him alone”. (Norrie, 231) Thus, Norrie argues that “the idea of vengeance […] in fact is more appropriately assigned to a utilitarian conception of punishment with its emphasis on benevolent consequences” and asserts that “punishment can be justified both in terms of a primary justification of individual resentment and in terms of a latent justification of public utility”. (Norrie, 235) Therefore, Norrie’s understanding of Smith’s theory of punishment seems mistaken as the beneficial consequences deriving from punishment do not justify the establishment of its practice. Whether the cause of injury deserves punishment is determined irrespectively of the consequences, beneficial or otherwise, of the punishment. Smith makes a distinction between on the one hand, the reasons that justify and motives that lead, and on the other hand, the order of things that ensues. “The idea of the utility of all qualities of this kind, is plainly an after-thought, and not what first recommends them to our approbation.” (Smith, TMS, 25) The rules of justice and the theory of punishment have beneficial consequences but those consequences do not make up the foundation of justice or punishment.

15Another argument in favour of utility considerations has been put to the fore by Alan Norrie and R.F. Stalley. According to Norrie, “the recourse to utilitaSéverinerianism is a substitute for the natural sentiments” when “the natural passions have failed to pursue the criminal to his punishment” and “punishment can no longer be justified in terms of the natural passions”. (Norrie, 236) In the same way, Stalley “imagines someone who has been convicted for a dreadful crime and is about to suffer for it. When we see him ‘broken and humbled by the terror of his approaching punishment’ we may begin to take pity on him. But then we may reflect that his punishment is for the good of society and that showing compassion to the criminal would harm other people”. (Stalley, 74) Smith is well aware that resentment may fade over time. However, he does not argue against it and neither does he try to remedy it. Most crimes are allowed to expire after a certain time if they have not been prosecuted, and Smith believes that this is as it should be. He gives two arguments to support the prescription of crimes. One stems from consistency and the other stems from the nature of resentment which forms the basis for punishment. First, “[i] n the same manner as debts, so the punishment due for the commission of crimes, whether it be due to the public or to individuals, ought reasonably to prescribe in a time considerably shorter than that of a mans life time.” (Smith, LJ (A), 136) Second,

[a] s to the resentment of the injured person or his relations, it is plain that this must wear away by time; one who had been guilty of a great injury against me would not raise my resentment 20 years after near so much as at the time the deed was committed, or even in a much shorter time. On this principle it is plain therefore that the punishment of crimes should not extend for a very long time.
Smith, LJ (A), 136

16Therefore, Smith explains that since punishment is prompted by the resentment felt by the victim, once that feeling has gone away, so has the need for punishment. There is no appeal for considerations of the utility of punishment to replace the resentment and enforce the punishment. Moreover, in the absence of resentment, the impartial spectator has nothing to go along with or approve of in order to determine what the proper punishment would be. For moral behaviour, hence punishment, is judged not according to its utility but according to spectator approval.

17Let us now examine the natural feelings present and mechanisms at work in the determination of punishment in Smith’s moral philosophy.

Natural feelings and the determination of punishment

Injury & Resentment

18In Smith’s theory of punishment, acts of injustice are recognized and judged by one’s natural feelings. A key concept in Smith’s theory of punishment is that of injury. And the feeling that naturally arises after one has been the victim of an injury is resentment. Harbouring feelings of resentment leads one to consider that the act or behaviour which prompted them deserves to be punished. Justice, hence punishment, is dependent upon the concept of injury and the feeling of resentment. “Justice is violated […] when we do [someone] any injury or hurt without a cause.” (Smith, LJ (A), 7) The rules of justice aim at identifying one’s rights by laying down what actions constitute injuries against him or her. In his Lectures on Jurisprudence, Smith explains that a person can be injured in various ways. The different kinds of injury that a person can suffer are divided into three classes: “1st, he may be injured as a man; 2dly, as a member of a family; and 3dly, as a citizen or member of a state.” (Smith, LJ (A), 7) These three classes are exhaustive and subdivided into other classes thereby covering all the areas of law. In fact, Smith explains that it is a matter of empirical fact about human nature that men more readily recognize what is injurious than what is beneficial to them and others. Thus, since questions of justice concern instances of injury, acts of injustice can be easily identified.

19Within society, the lack of justice “does real and positive hurt” while the lack of other positive virtues does not. Failing to perform most virtues prompts reactions of disapproval and disappointment. However, in the particular case of failure of justice, the moral response is stronger and sharper: the perceived injury induces feelings of resentment. And when stimulated, these feelings lead the victim to demand that the offender be punished for his crime. Thus, Smith’s theory of punishment is founded on sentiments of resentment according to which one concludes to the demerit of an act and subsequently to the punishment of the person responsible for the act. In the operation of moral judgement, when an act meets with resentment, one says that there is some demerit in it, which naturally points towards punishment. However, that the victim of an injury feels resentment is not enough for the offender to be punished. More specifically, it is the victim’s resentment alone that is not enough. For punishment to be implemented, there needs to be an external point of view, that of a spectator, which would go along with the victim’s resentment and would agree that the offender deserves to be punished. The external point of view is found among one’s counterparts. Everyone can be a spectator. Sharing the victim’s feelings is what Smith calls the mechanism of sympathy. This mechanism is at the core of Smith’s moral philosophy, and more precisely at the core of his theory of punishment.

The Mechanism of Sympathy

20In Smith’s moral philosophy, the development of moral norms is accounted for by his particular theory of moral psychology. This theory of moral psychology is founded on two essential notions that are sympathy and the spectator. Smith observes that, “[h] ow selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it.” (Smith, TMS, 11) Thus, human beings communicate with their counterparts and from such a relationship, they have acquired the natural tendency of constantly seeking to understand one another’s passions. The mechanism enabling this moral and psychological practice Smith terms sympathy. That is how one is able to imaginatively put oneself in the situations of others and decide whether or not one would go along with their feelings and react as they do. Smith explains that the sympathetic feelings of the spectator arise when he places himself under the circumstances which gave rise to the original feelings. This can only be done through some imaginary change of situation.

It is by the imagination only that we can form any conception of what are his sensations. […] By the imagination we place ourselves in his situation, we conceive ourselves enduring all the same torments, we enter as it were into his body, and become in some measure the same person with him, and thence form some idea of his sensations, and even feel something which, though weaker in degree, is not altogether unlike them.
Smith, TMS, 11-12

21By the use of imagination, if the feelings aroused in the spectator concur with the original ones, they are called sympathetic feelings, “sympathy, or the correspondent affection of the Spectator”. (Smith, TMS, 361)

22The mechanism of sympathy is central in Smith’s theory of punishment as the judgement of whether an act deserves punishment is made according to the presence or absence of the spectator’s sympathetic feelings regarding the victim’s resentment. When one encounters someone whose perfect rights have been violated, one immediately enters into and sympathises with the resentment felt by the victim and agrees with him that the cause of such an injury deserves punishment.

When we see one man oppressed or injured by another, the sympathy which we feel with the distress of the sufferer seems to serve only to animate our fellow-feeling with his resentment against the offender. We are rejoiced to see him attack his adversary in his turn, and are eager and ready to assist him whenever he exerts himself for defence, or even for vengeance within a certain degree.
Smith, TMS, 82

23As explained earlier, human beings more readily recognize what is injurious than what is beneficial to them. It follows from this that they also sympathise with somebody else’s pain more effectively than with their joy and thus enter into their resentment to a much greater degree. Moreover, individuals tend to display a more forceful moral response against acts of injury than they do in favour of acts of benevolence. They are more willing to take action to suppress the former than to promote the latter. Thus, in society, situations of injustice are identified and elucidated on the basis of the spectatorial moral reaction which implies sympathy for the resentment of the victim and support for the punishment of the person responsible for the crime. As the offender is included among the victim’s spectators, he or she should be well aware of the clear and strong response to their act of injustice, and cannot but agree to the punitive consequences of their harmful behaviour.

As mankind go along with, and approve of the violence employed to avenge the hurt which is done by injustice, so they much more go along with, and approve of, that which is employed to prevent and beat off the injury, and to restrain the offender from hurting his neighbours. The person himself who meditates an injustice is sensible of this, and feels that force may, with the utmost propriety, be made use of, both by the person whom he is about to injure, and by others, either to obstruct the execution of his crime, or to punish him when he has executed it.
Smith, TMS, 93

24Smith pinpoints the origin of the practice of punishment: a combination of natural feelings made up of the resentment of the sufferer and the sympathy of the spectator. Thus, moral judgements in Smith’s moral philosophy have an empirical basis. They are matters of empirical fact. Smith conceives moral power in sensory terms. Following Hutcheson and Hume, he argues that morality is a matter of a perceptive power which, in the same way as the external senses, stimulates the response of the sentiments and thus directs action. Therefore, insofar as Adam Smith’s theory of punishment is grounded on natural feelings, it may be objected that such a theory cannot provide a proper and universal justification of punishment. In such circumstances, where moral judgements are a matter of passions rather than reason, Smith recognizes the possibility that “civil society […] become a scene of bloodshed and disorder, every man revenging himself at his own hand whenever he fancied he was injured”. (Smith, TMS, 403) However, it must be noted that the operation of the mechanism of sympathy does not presuppose nor does it require any special or personal relationship between the spectator and the sufferer. It appears that when the feelings of resentment are justified and appropriate, anyone would sympathise with the victim and no more is necessary “than the general fellow-feeling which we have with every man, merely because he is our fellow-creature”. (Smith, TMS, 106) In fact, this independent and neutral point of view sought in every instance of moral judgement takes shape in the figure of the impartial spectator. Smith put to the fore the mechanism of the impartial spectator to address the issue raised by concerns about the proper and universal justification of punishment in his moral philosophy.

The Mechanism of the Impartial Spectator

25Smith’s account of the development of moral judgement includes the central mechanism of the impartial spectator. “It is a stronger power, a more forcible motive […]. It is reason, principle, conscience, the inhabitant of the breast, the man within, the great judge and arbiter of our conduct.” (Smith, TMS, 158) This mechanism provides the point of view of the impartial spectator according to which human beings judge whether an act or a character is morally valuable or not. The point of view of the impartial spectator becomes the necessary condition for making moral judgements because

[i] t is from him only that we learn the real littleness of ourselves, and of whatever relates to ourselves, and the natural misrepresentations of self-love can be corrected only by the eye of this impartial spectator. It is he who shows us the propriety of generosity and the deformity of injustice; the propriety of resigning the greatest interests of our own, for the yet greater interests of others, and the deformity of doing the smallest injury to another, in order to obtain the greatest benefit to ourselves.
Smith, TMS, 158

26By seeking to conform to the point of view of the impartial spectator, what one hopes to accede to is “the love of what is honourable and noble, of the grandeur, and dignity, and superiority of our own characters”.

27To explain the kinds of injury and resentment that give rise to legally valid punishment, Smith refers to what “an impartial spectator would readily go along with”. (Smith, LJ (A), 87) The concept of injury is understood according to and defined by the mechanism of spectatorship: what the impartial spectator recognizes as injury becomes the authoritative criterion. Furthermore, the standard of propriety by means of which one judges the merit or demerit of an act, that is, whether an act deserves reward or punishment, is to be sought not in the sympathetic feelings of any concrete spectator but in those of the impartial spectator.

We endeavour to examine our own conduct as we imagine any other fair and impartial spectator would examine it. If, upon placing ourselves in his situation, we thoroughly enter into all the passions and motives which influenced it, we approve of it, by sympathy with the approbation of this supposed equitable judge. If otherwise, we enter into his disapprobation, and condemn it.
Smith, TMS, 129

28A concrete spectator is likely to have his own particular interests and biases, whereas the impartial spectator embodies the ideal third person who is neutral and objective in the presence of several different parties. As individuals naturally judge each other’s conduct, they increasingly look to a more neutral standpoint, which is that of the impartial spectator. It ensues from this that the propriety of reward or punishment is naturally to be determined in terms of the impartial spectator’s sympathetically created, natural feelings of gratitude or resentment. One’s gratitude or resentment, “as well as all the other passions of human nature, seem proper and are approved of, when the heart of every impartial spectator entirely sympathises with them, when every indifferent by-stander entirely enters into, and goes along with them.” (Smith, TMS, 81) Now that it is clearly established that punishment is determined according to the mechanisms of sympathy and the impartial spectator, it seems surprising that Alan Norrie declared that “the consideration at stake is not […] the spectator principle but rather the facility with which the crime may be committed and the temptation that goes with it.” (Norrie, 229)

29The most obvious principle within the mechanism of the impartial spectator is naturally that of impartiality. The ability to judge an act requires knowledge of the situation and impartiality, hence the need for an informed and impartial spectator. For this reason, Smith’s theory of punishment is not purely a matter of revenge. The impartial spectator’s sympathetic feelings are moderate and weaker than those of the original sufferer.

What they feel, will, indeed, always be, in some respects, different from what he feels, and compassion can never be exactly the same with original sorrow; because the secret consciousness that the change of situations, from which the sympathetic sentiment arises, is but imaginary, not only lowers it in degree, but, in some measure, varies it in kind, and gives it a quite different modification.
Smith, TMS, 27

30Smith does not condemn vengeance. However, the degree of punishment must be subjected to the point of view of the impartial spectator. The victim’s desire for revenge is recognized and allowed as long as it does not pretend to inflict excessive harm. And whether the punishment is excessive is left up to the impartial spectator to decide. The right to seek redress but also the right to seek a particular degree of punishment is therefore checked by the mechanism of the impartial spectator. Thus, the guarantee that “civil society […] [does not] become a scene of bloodshed and disorder, every man revenging himself at his own hand whenever he fancied he was injured” (Smith, TMS, 403) is found in the mechanism of the impartial spectator. “In all cases a punishment appears equitable in the eyes of the rest of mankind when it is such that the spectator would concur with the offended person in exacting it.” (Smith, LJ (A), 104) At the same time as the impartial spectator judges whether an act deserves resentment, he also delineates the measure within which resentment must be contained.

31It appears that it is through the mechanism of the impartial spectator that natural feelings become moral sentiments. The principle of impartiality expands into a principle of universality. Everyone goes along with the point of view of the impartial spectator and what the impartial spectator approves of naturally becomes what everyone longs to do or be. The judgements of the impartial spectator become general rules. Human beings want to gain their counterparts’ approval and praise, and to this end, they adopt their counterparts’ ideas of propriety. Eventually, it turns out that the ideas of propriety they are actually taking up are those of the impartial spectator. Mutual sympathy between patients, agents, and spectators establishes a social morality but then, with the aim of drawing closer to the impartial spectator, this sympathy also leads to the establishment of moral ideals. By refining his spectator theory of morals with the inclusion of the figure of the impartial spectator, Smith gives an account of how moral ideals developed out of social morality. Ideal morality emerges from and becomes independent of its empirical basis. By concluding that Smith’s theory of punishment “lacks a strong enough grounding to achieve the fundamental defence of individual responsibility as the basis for the right to, and measure of, punishment” (Norrie, 238), Norrie fails to see that the individual point of view is actually supposed to embody the point of view of the impartial spectator. The criteria for moral judgements of one become those of the many and vice versa.

32Smith’s theory of punishment is consistent and the mechanisms within the theory seem to work without trouble. However, it appears that some circumstances of injury may be more complicated. The standard case of wilful injury, where there is both a motive which the impartial spectator cannot sympathise with and actual harm, does not present any difficulties in the determination of what degree of punishment is deserved. The answer is not as obvious in cases where there is injury but no guilty intention, or conversely, where there is bad intention but no harmful consequence. Smith has an answer to these problematic situations and reveals how the impartial spectator proceeds to ensure the proper distribution of punishment.

The proper distribution of punishment

The Resolution of the Discrepancy between Motives and Consequences

33Smith recognizes that the circumstances which lead to injury may be different from one situation to another. In consequence, the distribution of punishment varies accordingly. The most severe punishment is applied in cases of wilful injury.

But when to the hurtfulness of the action is joined the impropriety of the affection from whence it proceeds, when our heart rejects with abhorrence all fellow-feeling with the motives of the agent, we then heartily and entirely sympathise with the resentment of the sufferer. Such actions seem then to deserve, and, if I may say so, to call aloud for, a proportionable punishment; and we entirely enter into, and thereby approve of, that resentment which prompts to inflict it.
Smith, TMS, 86

34The degree of punishment is then scaled down according to the estimated demerit of injurious acts and the strength of the resentment. The stronger the resentment, the more potent the punishment.

35Norrie conveys his puzzlement when he examines “Smith’s acceptance of the role that the consequences of an act play in determining the act’s blameworthiness, even where no guilty intention existed.” (Norrie, 229) He considers this to have “serious effects […] upon the consistency of Smith’s theory of punishment.” (Norrie, 230) In fact, Smith justifies this discrepancy by taking into consideration what is realistically feasible in real life. He does admit that the propriety or impropriety of the motives at the origin of an act should be the criterion for the evaluation of the merit or demerit of this same act. Hence, the title of his Third Chapter in Section 1 of the Second Part of his Theory of Moral Sentiments, which states that “where there is no disapprobation of the motives of the person who does the mischief, there is no sort of sympathy with the resentment of him who suffers it”. (Smith, TMS, 83) However, this is only the case in an ideal situation. The determination of whether an act deserves resentment and should lead to the punishment of the offender cannot depend on the propriety or impropriety of the motives solely. The reason for this is that it is simply impossible to condemn each and every single ill intention irrespectively of the presence or absence of harmful consequences.

If the hurtfulness of the design, if the malevolence of the affection, were alone the causes which excited our resentment, we should feel all the furies of that passion against any in whose breast we suspected or believed such designs or affections were harboured, though they had never broke out into any action. Sentiments, thoughts, intentions, would become the objects of punishment; and if the indignation of mankind run as high against them as against actions, if the baseness of the thought which had given birth to no action, seemed in the eyes of the world as much to call aloud for vengeance as the baseness of the action, every court would become a real inquisition.
Smith, TMS, 123-24

36Therefore, there needs to be a second factor other than the propriety or impropriety of the motives in the determination of punishment. That second factor is the presence or absence of actual harm.

[T] hough in the intentions of any person, there was either no laudable degree of benevolence on the one hand, or no blameable degree of malice on the other; yet, if his actions should produce either great good or great evil, as one of the exciting causes takes place upon both these occasions, some gratitude is apt to arise towards him in the one, and some resentment in the other.
Smith, TMS, 113

37Thus it seems that in practice, irrespective of the good or ill intent, insofar as an act leads to an injury, this act arouses resentment and thus provides justification for punishment. This also accounts for the approval of punishment for injuries that arose out of negligence. Even though the intent to do harm is lacking or deficient, since the act resulted in an injury, resentment ensued from it and hence the agreement that the act deserves to be punished.

38This process is also applied in the opposite cases where there is an injurious intent but no actual harmful consequences following from it. Here, as there is no injury, there is no resentment and, therefore, no justification for punishment.

As what gives pleasure or pain, therefore, either in one way or another, is the sole exciting cause of gratitude and resentment; though the intentions of any person should be ever so proper and beneficent on the one hand, or ever so improper and malevolent on the other; yet, if he has failed in producing either the good or the evil which he intended, as one of the exciting causes is wanting in both cases, less gratitude seems due to him in the one, and less resentment in the other.
Smith, TMS, 113

39In his discussion of Smith’s theory of punishment, Stalley explains that “unsuccessful attempts to commit a crime are generally punished less severely than successful ones even though the motives may be the same in both cases. The reason for this is that we are prone to resent the successful commission of a crime more strongly than the mere attempt.” (Stalley, 73) In the case of a not fulfilled or failed attempt at a crime, the resentment is less strong or absent, and since there is little or no damage, lighter punishment or even none at all, is agreed upon. Therefore, whereas the objects of our moral judgements are ideally supposed to be motives and intentions, they end up including the consequences of the acts as well. According to Knud Haakonssen, “[t] his is a most extraordinary combination of an ideal ethics of intentions with an actual ethics of consequences.” (Haakonssen, The Science of a Legislator, 65) In this entire process, the spectator mechanism provides the tool to critically discuss and assess the operation of moral judgements in the determination of punishment.

40Additionally, Smith’s method of implementing the just distribution of punishment has a beneficial consequence related to the maintenance of peace and order in society. The just distribution of punishment has the effect of preventing private and illegal pursuit of vengeance. Thus, the use of the mechanism of the impartial spectator ensures that the practice of punishment does not turn into retaliation and that a perpetual feud jeopardising one’s safety and property does not emerge in society.

41In order to determine the proper degree of punishment, one takes into account the motives and consequences of an injurious act. In that case, what is Smith’s justification for agreeing on inflicting the most severe punishment upon someone whose act did not cause any injury at all? It appears that Smith’s requirement of injury in the determination of punishment is only applicable in the sphere of natural justice, that is, in matters concerning private law. There are, however, other types of law which sustain other criteria in their determination of punishment.

The Determination of Punishment in Other Types of Law

42In his Lectures on Jurisprudence, Smith confirms that

[n] ow in all cases the measure of the punishment to be inflicted on the delinquent is the concurrence of the impartial spectator with the resentment of the injured. If the injury is so great as that the spectator can go along with the injured person in revenging himself by the death of the offender, this is the proper punishment, and what is to be expected by the offended person.
Smith, LJ (A), 104

43It follows from this statement that Smith’s theory of punishment necessarily relates to situations of injury and sympathetic feelings of resentment. And yet, in some cases, Smith approves of punishment – of even the most severe punishment – where there has been no injury whatsoever. In the example of the sentinel “who falls asleep upon his watch” (Smith, TMS, 106) and is condemned to death for falling asleep, Smith admits that “[t] hough such carelessness appears very blamable, yet the thought of this crime does not naturally excite any such resentment, as would prompt us to take such dreadful revenge.” (Smith, TMS, 106) And yet, he declares that “[t] his severity may, upon many occasions, appear necessary, and, for that reason, just and proper.” (Smith, TMS, 106) Smith considers that death penalty is “just and proper” because the act of falling asleep constitutes here a violation of the rules pertaining to military law. In this particular case, “such carelessness might endanger the whole army”, and “[w] hen the preservation of an individual is inconsistent with the safety of a multitude, nothing can be more just than that the many should be preferred to the one.” (Smith, TMS, 106) Private law, where punishment is determined according to the type of injury committed and the strength of resentment felt, is only one among many kinds of law, including domestic law, public law, or military law. In these different kinds of law, the determination of punishment is founded upon other principles:

[u] pon some occasions, indeed, we both punish and approve of punishment, merely from a view to the general interest of society, which, we imagine, cannot otherwise be secured. Of this kind are all the punishments inflicted for breaches of what is called either civil police, or military discipline. Such crimes do not immediately or directly hurt any particular person; but their remote consequences, it is supposed, do produce, or might produce, either a considerable inconveniency, or a great disorder in the society.
Smith, TMS, 106

44In An Inquiry into the Nature and Causes of the Wealth of Nations, Smith establishes in order of priority the duties of the sovereign:

[…] first, the duty of protecting the society from the violence and invasion of other independent societies; secondly, the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it […]; and, thirdly, the duty of erecting and maintaining certain public works, and certain public institutions […].
Smith, WN, 687

45It appears that defence is the most important duty. To Smith, without the guarantee of defence, there can be no social cohesion, which is the necessary precondition to a further agreement on the rules concerned with natural justice or private law. In his Lectures on Jurisprudence, Smith declares:

[t] ho’ the peace within doors be never so firmly established, yet if there be no security from injuries from without the property of individualls can not be secure. The danger to them on this head is no less to be feard than from those of their own society; and not only is the security of private persons in danger but the very being of the state. It is therefore requisite that an armed force should be maintained as well to defend the state against externall injuries as to obtain satisfaction for any that have been committed.
Smith, LJ (A), 6

46This accounts for characterising the punishment of the sentinel as “just and proper”. The means of determining and measuring punishment in private law are clearly different from those in other types of law. As Haakonssen accurately points out, “[i] n many cases the punishments which are thus justified by the over-all utility of the laws which they are meant to protect will be inconsistent with natural justice and punishment.” (Haakonssen, The Science of a Legislator, 121) In the case where there is a conflict between the principles of natural justice and the punishment imposed, the former ought to take precedence unless the respect of the law ensured by the punishment is absolutely crucial for the existence of society to the extent that such respect overrules the principles of natural justice. Only then does Smith allow the utility considerations of public law and the provisions of military law to override the requirements of private law. Norrie concludes that “[t] he aim of [his] analysis of Smith’s writings on punishment has been to argue for their complexity and inconsistency.” (Norrie, 237) However, one can see that there is actually neither confusion nor inconsistency in Smith’s theory of punishment. Smith unequivocally explains that there are different types of law and that the distribution of punishment therefore varies according to which principles an act is examined under.

47Furthermore, Norrie mistakenly confuses the prevalence of public law in some particular circumstances with something it is not. According to Norrie, Smith “moves from its [that of punishment] genesis in individual sentiments to consideration of its social effects and functions.” (Norrie, 237) It does not follow from Smith’s concern for the survival of society that the community comes out on top of the individual. A community is made up of individuals who first and foremost have a regard for their counterparts, namely other particular individuals in their singularity. In Smith’s moral philosophy, there is a clear supremacy of the individual over the community.

We are no more concerned for the destruction or loss of a single man, because this man is a member or part of society, and because we should be concerned for the destruction of society, than we are concerned for the loss of a single guinea, because this guinea is part of a thousand guineas, and because we should be concerned for the loss of the whole sum. In neither case does our regard for the individuals arise from our regard for the multitude; but in both cases our regard for the multitude is compounded and made up of the particular regards which we feel for the different individuals of which it is composed.
Smith, TMS, 105

48Smith immediately adds that this also and particularly applies to the determination of punishment:

[t]he concern which we take in the fortune and happiness of individuals does not, in common cases, arise from that which we take in the fortune and happiness of society […]. [W] hen a single man is injured, or destroyed, we demand the punishment of the wrong that has been done to him, not so much from a concern for the general interest of society, as from a concern for that very individual who has been injured.
Smith, TMS, 105

49In order to safeguard the consistency and relevance of his theory of punishment, particularly the proper distribution of punishment, Smith shows that he is able to solve the difficulties raised by the discrepancy between motives and consequences found in some cases and he reveals that if sometimes the degree of punishment imposed goes against the principles of natural justice, this is related to the different types of law and their different criteria of evaluation. Finally, Smith needs to address the issue concerning the universality of the judgement of the impartial spectator, which is questioned because on the one hand, this idea of universality implies that the judgement of the impartial spectator should be identical in all situations that are similar in relevant respects, and on the other hand, Smith recognizes that moral judgement is the product of socialisation and that the concepts of injury and rights evolved over time. This apparent conflict finds a clear and simple answer in Smith’s moral philosophy.

The Impartial Spectator’s Universal Judgement in Context

50Smith’s theory of punishment concerning matters that fall under natural justice is founded upon the point of view of the impartial spectator, the demerit of an injurious act and the propriety of the ensuing resentment. Subsequently, the natural feelings of the impartial spectator turn into moral sentiments and his impartial point of view becomes the universal judgement that individuals seek to adopt. The universality inherent in general rules means that those rules are outside the grip of social change. They ought to remain the same and independent of the social context. However, a decisive element in the operation of moral judgement is the social context or situation in which it takes place. In fact, Smith’s aim in his lectures is to provide an account of the development of rights. He endeavours to prove that injury and right are social concepts which can only be understood in their historical context. Thus, it appears that what is considered as proper injury in a given society is recognised as such only in that time and place. Furthermore, in Smith’s spectator theory, morality is described as an historical phenomenon. Moral judgements are necessarily made according to the available situations in which people are spectators of each other. The operation of moral imagination inherent in the mechanism of sympathy depends on social experience and hence varies from one stage of society to another. Smith devises a typology of societies, namely the four stages theory, which conceives the evolution of jurisprudence, that is, the different forms it supposedly took depending on which stage it was at. Accordingly, the hunter did not consider himself or his counterparts as landowners, just as the nomad could not understand the use of paper money. In the like manner, it makes little sense to suppose that an impartial spectator can accurately judge that trespassing is an injury in a society which has not developed the notion of property in land. It appears that justice and rights are temporal and historical phenomena. From this it follows that the rules of justice, hence the determination of what deserves punishment must have differed and evolved over time as well so that any instance of moral judgement must be examined in the light of the social setting it is taking place in. That human behaviour is judged according to its broader social context suggests that moral judgement may come under a contextualist theory of morality.

51This raises an issue in Smith’s moral philosophy and particularly in his theory of punishment as the judgement of the impartial spectator in the determination of punishment is supposed to be the universal point of reference. And yet, it seems that the decisions of the impartial spectator are dependent upon and relative to the circumstances presented to him. Stalley states that “[t] here are many subcultures each with its own norms and values. So long as that is the case it may be impossible to achieve genuine impartiality between members of different groups.” (Stalley, 86) Despite the fact that the point of view of the impartial spectator does vary according to the situation he judges, he succeeds in acquiring and maintaining the characteristic of universality which is crucial in the establishment of the principles of natural justice. Without such an essential characteristic, the impartial spectator could no longer convey the point of reference in the operation of moral judgement. Some features of the impartial spectator’s point of view are universal, for instance, the understanding of justice as a negative virtue or the primacy of this negative virtue over other positive virtues. Furthermore, whenever it comes to some particular injury that threatens the most basic conditions for human life, the impartial spectator’s judgement will always be the same. For this reason, Smith adopts the natural jurisprudential tradition of distinguishing natural rights from acquired rights: some rights are so vital that they are regarded as universal or natural. Certain minimal rights appear to be common to all human beings, regardless of the time and place. A social framework can only be maintained provided those natural rights are protected, that is, life without those particular rights would not be a recognisably human one. Therefore, there are some principles of natural justice that are independent of the stages of society: “[a]mong equals each individual is naturally, and antecedent to the institution of civil government, regarded as having a right both to defend himself from injuries, and to exact a certain degree of punishment for those which have been done to him.” (Smith, TMS, 94) Thus, natural law, which encompasses natural rights, is not only independent of civil society, it also constitutes the ideal foundation for positive law, the model that positive law seeks to emulate. Finally, it is therefore safe to declare that the principle of universality is embodied in the impartial spectator. The rules of justice, and hence the determination and distribution of punishment may be founded on the judgement of the impartial spectator without there emerging doubts concerning the legitimacy of the role played by such a figure.

52Smith’s moral philosophy endeavours to show that the operation of moral judgement is properly carried out when it is done according to the mechanisms of sympathy and the impartial spectator. The process of determining the proper distribution of punishment also relies on the workings of those mechanisms. It appears that Smith’s theory of punishment finds its genesis in the natural feelings of human beings. Thus, what gives unity to Smith’s theory of punishment, and more generally to his moral philosophy, is the foundational role of moral sentiments. Individual moral development starts with the apprehension of natural feelings and is then completed with the application of the sympathy and spectator mechanisms. With the shift from the point of view of the ordinary concrete spectator to that of the ideal impartial spectator, individuals seek to constitute a better social community with positive laws that tend to embody the natural laws of justice.

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Notes

1 The idea that justice is based upon utility is most obviously found in Hume, especially the Second Inquiry III.

Auteur

Paris 3, PRISMES, Paris.
Université Paris Sorbonne Nouvelle, France.
Trung Thien Kim Nguyen is a third year PhD student and teaching assistant at University Sorbonne Nouvelle – Paris 3. She holds a Master’s Degree in English Studies from University Sorbonne Nouvelle – Paris 3 and has passed an advanced competitive examination for teachers of English (Agrégation). Her research focuses on eighteenth-century history of ideas in the United Kingdom ; she is currently writing a thesis on the intellectual history of the Scottish Enlightenment under the supervision of Prof. Isabelle Bour. She is a member of Laboratoire PRISMES (Langues, Textes, Arts et Cultures du Monde Anglophone) – Equipe PEARL (Programme d’études sur l’Angleterre de la Renaissance aux Lumières).

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