The Prevention of Crime

The Prevention of Crime
Author(s): Ferdinand Tonnies

Source: International Journal of Ethics, Vol. 2, No. 1 (Oct., 1891), pp. 51-77
Published by: The University of Chicago Press
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The Preventionof Crime.
THE
PREVENTION
OF
5'
CRIME.
(First Article.)
I. IN every departmentof life, science, and the culture

arising fromit are in modern times asserting their claim to
universal importance. It was especially necessaryin politics
and morals that this should be asserted. A year beforethe
INTERNATIONAL JOURNAL OF ETHICS appeared, the International Criminological Association was founded. Although
there was no outward,there was an inward connection between the two. Moral problems concern everybody. The
special moral problems are alike, in proportionas the conditionsof civilizationin different
countriesare similar. Penal
law must be recognized as a direct moral problem, or, at
least, as having pre-eminentlymoral consequences. The
CriminologicalAssociation has found numerous supporters
in about twentycountries of Europe and America. Membership implies assent to a number of propositions,the first
threeof which are as follows:
I. The object of punishmentis the suppressionof crimeas
a social phenomenon.
2. The resultsof anthropologicaland sociological investigabe taken intoaccount both in the science
tionsmust,therefore,
of punishmentand in penal legislation.
3. Punishmentis one of the most effectivemeans of suppressingcrime. But it is not the only means. Accordingly,
it must not be taken out of connectionwith the other means
of suppressing,and especially the other means of preventing,
crime.
In these propositionsthe old philosophical doctrine-Puniendumessenonquia peccatumestsednepeccetur-assumes a new
and strikingform. It is naturalthatthe opposite doctrinealso
should be set up anew. This latteris expresslya moral doctrine,since it explains punishmentas a postulateofjustice and
demands that it should be equal to the deed, or-put more

52
International
Yournalof Ethics.
exactly-to the quantityof the guilt containedin the deed.

decreesshould cancel the
The evil which the punishment
procureforhimwould-wrongfully
good whichthe criminal
self; it should be an equivalentof thewrongdone. This is
intention
of all penal law,so far
withoutdoubttheprimitive
in revengeand has risenabove it. Revenge
as it originated
demands satisfaction,-thatis, it wishes to inflictas much pain
as it has suffered.The manwho is insultedor injured,will,

in thesimplestcase,onlytryto get backwhathad beentaken
fromhim,or to do to theotherwhathad been doneto him.
Whatevertheangryman takesor does,over and abovethis,
ofhis own feelingsand thoseofthe
maybe to thesatisfaction
and maybe called just,because.theeffects
of the
spectators,
of
aggressorreachbeyondthelimitedobject,andthecondition
oflike
thepersonattackedcannotbe restored
bythemerereturn
of states,
forlike. In dailylife,as well as in the intercourse
metwitheitherunderthenameof retrevengeis continually
and in thewidedomain
ributionor underthatofpunishment,
its
maintained
of civillaw it has
positionin thelegal claimto
Justretribution
is a universally
recognized
indemnification.
is desiredand laudedby himwho wants
ideal: itsrealization
to takethelaw in his own hand,and is requiredas a dutyof
the judge who dispensesjustice. The idea of justicepostulated by our consciencedoes not exclude vivid emotions.
and righteous
Thereare suchthingsas righteousindignation
anger. But the will,bent on a just action,does not get its
butthroughthesimpleperception
standardfromanyemotion,
of thejudge
of therightwhichit is to realize. The function
and we Germanscall theverdictitself
is to perceivetheright,
a " perception" (Erkenntniss). The question is, By what
meansdoes thejudge perceivethe justiceof an act? Let us
considerthis questionas appliedto penal law. When the
definite
law,whichprescribes
judge has beforehimthewritten
classesof actions,theansweris simfordefinite
punishments
ple enough. The judge classifiesthegivencase whoserealityis presupposed. His "perception"or judgmentis a syllogismof thefirstfigure;and it is possibleto imaginethat
the rulesare specializedin sucha waythatno case can occur

53
whose general featurescould not be foreseen,thus forcing

the judge to a definiteverdict. Frederick II., king of Prussia,
thought that a code of law must be brought to this perfection. The judge would then resemble an executive officer.
His judicial activity,like that of modernjuries, would be limited to a perceptionof the factand theguilt. Actually,however, considerable latitude is allowed to the judge for the
adjustmentof punishment,according to the special circumstances of the case and the individualityof the criminal.
Within this latitude he is bound, independent of positive
right,to administerjustice,-viz., to perceivethe right. What
guides him in this process'? It may be laid down as the notio
communisthat the height of the punishmentmust correspond
to the stubbornnessof the criminalwill (gradually rise from
culpa to dolus,fromdolus indeterminatus
to dolusdeterminatus).
It is tacitlyimplied that this is the opinion of the law-giver
himself,or, in otherwords, thatthe judge interpretsthe la~wgiver's intentionin a supplementaryway. The law-giver intended to have decreed the just and properpunishment; but
a contradictionis stillpossible betweentheverdictof the judge
and the law-giver'sintention. Nevertheless,thejudge's verdict
remainsvalid, even if it should be contraryto the law-giver's
intention. The modern theoryof the state pays special regard to the independence
of the judicial fromthe legislative,as
well as fromthe executivepower. It is, therefore,
conceivable
that only the judge, withinthe latitudeallowed to him,is bent
on the rzghtpenalty,and thatthe legislator'sviews varywidely
fromthose of the judge's.
II. Justice,as a fact,will not be claimed in the same sense
from the law-giver as from the judge. The law-giver-or
what is equivalent to it, the state-is the representativeof the
collective body, and is regarded as threatened and injured
by crime. As public prosecutor,the state wants to be partial, as between itselfand the accused person,but as judge it
wants to be impartial. What does the state representin the
person of the law-giver? I hold it forcertainthat in this canearerto the judge than to
pacity the state stands historically
the public prosecutor. The state,accordingto the conception

54
Internationaljournall of Ethics.
underlyingit, aims,like the ideal judge, both at proportioning

the punishmentto the guilt of the criminal,and at deterring
and combatingthe criminaland makinghim harmless,which
should be the aim of the public prosecutor. But the judge,
considered as a supreme law-giving power, is older than the
state,and beforethe stateexisted he was considered as bound,
on the whole, by positive law. Yet all positive law derives
its lifeand authorityfromcustom and the faithof the people.
The state only assumes the formalrepresentationof this law,
which is considered unchangeable in its essence. But the
criminallaw is not onlyexposed to being put intowritingand
codified,but also to being consciously changed., It is looked
upon asjus publicum,and as such, according to the classical
rei romancespectat. The state,by means of
saying,ad statumn
the public law, governs its own affairs. The writtenform,
which otherwise only serves to help the memory,becomes
a declaration. Here, too, there is consequently a transition
which passes throughmanyphases. A code, like that of the
celebrated" Carolina," is, according to its contents,mainlya
law of usage. Though it be specificallycivic according to
its form,its object is to serve as a guide to the tribunals(its
title is " Special Tribunal Regulation)," and hardlyto constitute a warningto evil-doers. With modernlegislation,undertaken graduallyand systematicallyin most European countries,since the second halfof the eighteenthcentury,the idea
of threatof punishmentcomes into the foreground. It is
one of the conditionsof a rationalstate contract,and, therefore,one of the most importantrightsof the citizen,that he
should know beforehandto what penalty he is liable if he
wilfullytransgressesthe law. Nulla peena sine lege. And
hencearises the law-giver'sdutyto make threatsas efficacious
as possible. This, again, may collide with the other duty,
which aims at fixingthe right penaltyfor everyoffence,for
thesetwo seem inseparablefromeach other. The qulapeccatum
is the fundamentalthought underlyingall punishment; the
ne pecceturis the necessaryconceptionof the threatof punishment. To this antithesiscorrespondsthe antithesisof the
so-called absolute and relative theories of penal legislation.

55
They are met with,in an easily-explained connection,in the

doctrineof the freedomof the will, and its negation,the doctrineof determinism. The older doctrine asserts itselfhere
also as the moral one in the traditionalsense; for the common view makes the conception of responsibilitydepend on
the freedomof the will. He who is forced to do a thing,so
runs the reasoning,cannot be held responsible; and, in the
same way, he is irresponsiblewho was not masterof his will
on account of not having had any knowledge of the criminalityof his action. On the contrary,an action willedfreely,
when good, should be recompensed,and when evil, punished.
The state fulfilsat least the second halfof this moral demand.
III. Determinism may undertake to save the meaning of
punishmentin two ways. First,in the directionalready referredto,by declaringthe threatas the essentialfeature. The
value of this reasoning is more evident if the action of the
individual is deduced fromhis constitutionand the motives
actuating him; for the evil he may incur serves then as a
counter-motive. If the threatwas inefficaciousin one case,
the punishmentmustbe inflictedto keep it operativein other
cases and to serve as a deterrentin the future. This has been
as formulatedmostvigorouslyby
the opinion of determinists,
Hobbes, and by Schopenhauer who followed his footsteps.
Feuerbach and Bentham,among thespecialists,have perfected
this doctrine. The threatof punishmentis, in any case, judicious,-indeed, necessary. It fulfilsits aim,in spiteof numeras long as it is reasonably
ous cases in which it is inefficacious,
supposed that without it crimes would occur in far greater
number. The preventionof crime fulfilsthe purpose of the
threatand the purpose of punishmentas its corollary. The
celebratedpropositionshould ratherread,- pnetnaconstituendae
sunt ne peccetur. The theoryin itselfis, without doubt,free
fromcontradiction;but it cannotbe denied thatit presentsthe
inflictionof sufferingon the individual only as a means for
furtheringthe common weal,-in Bentham's words, as an
"indispensable sacrifice."
Determinism may attempt,in the second place, to defend
the justice of punishment,even as regards the involuntary

56
InternationalY7ournalof Ethics.
between
actor. It may contendthatthe value of the difference
menwho cannotbe made responsible,on account of theirmental condition,and the normal man whom we do make responsible, is independentof the disputedpoint. The normalman
is aware of whathe does, and knows the penaltyas -a probable,
and,-if its aim alone be considered,-a certainconsequence
of his action. When he resolves to do a punishable act, he
takes into account the risk of the penalty,as well as the good
he expects to derivefromit. He hopes to escape the penalty,
just as every one triesto reach the favorableand escape the
unfavorableresultsof the naturalconsequences of his actions.
When he is punished,he could no more complain of injustice
than he could say that his money had been taken fromhim
unjustlywhen he risked it in a lotteryand lost. This line of
by the reflectionthat everymember of
argument is fortified
the state is himselfa subject of the state,and has, therefore,
transferred
the rightof punishmentto the government. He
is punishedwithhis own consent; no injusticeis done to him.
The followingcriticismmay be made of this line of reasoning:
a. It is true thatthe conceptionof the priorityof thought,
and the act of the will as conditionedby thought,has a limited and relativevalidity. The will here is probably considered as whollyconditioned,but the involuntarinessof thought
is not taken account of. It appears to followits own laws and
to be conditioned by itself. And though it be admitted that
back of thought lie perceptions,which in their turn rest on
the impressions of objects,yet,according to this conception,
men are regarded as essentially alike, each one striving
afterhappiness and choosing in his own mind the means for
its attainment,each one being equally master of his will.
This theory of the intellect,though it denies metaphysical
freedom,restores empirical liberty. The conception implies
nothingbeyond the rulingof the intellect,and the likeness of
men in this respect. Both the psychologyof the will and that
of the intellectadmit this conception as an applicable idea
withincertainlimits; but in the investigationof the realityof
this conception psychologymeets with a highlymultifarious

57
inequalityof man in this as well as in every otherrespect. It

does not findan uncaused will; it ratherfindsthatthe significance of the will (the resolution,the determination,
etc.) as a
cause has been exaggerated in an extraordinarymanner. On
the other hand, as a normal phenomenon,it does not meet
with an abstract,calculating,balancing man; but witha concrete, illogical, idiosyncraticpersonality,with his likes and
dislikes, passions, habits, whims, and associated ideas, his
faith and superstition,his manifold and confused thoughts,
which often approach closer to insanity than to a logical
order. It restores the significanceof individualityas an important cause of human activity,but only to show that individualityis necessarilywhat it has come to be. The facts
of hereditycome to light,and these indicate a much deeper,
one is temptedto say a much coarser,causalityof the will than
the power of perceptionsand thoughts,and yet these factsare
much more mysterious. "L'h eredite," says Ribot, "c'est a'
dire, le determinisme,
nous envahitde touted
part,-par le dehors,
par le sedans." And further:"NIous la retrouvonsdans ce
germe memequi est en nous ce qu'ily a de plus intime,de plus
de plus personnel."* The facultyof self-restraint,
of
essentieAl,
self-determination,
of the clear and distinctweighing of the
consequences of our resolutions,is also an inheritedaptitude,
conditionedin its developmentand relativepower by education,surroundings,fortunateand unfortunate
accidents,health
and illness. For the imperfection
of these facultiesa man cannot be made responsible. They constitute
the man.
b. So far,however,as that conceptionis valid, what can be
deduced fromit? One thing, of course,-namely, that the
penaltycannot be called unjustin the juristical sense. The
philosophy of the last century-now too littleknown or honored-made special endeavors to separate entirelythe sphere
of natural right fromthat of ethics. Thomasius, Gundling,
Kant, and Feuerbach, among the Germans, brought their
penetrationto the discussion of the problem. The theory,.as
sometimeshappens, has been rejected,while the practicehas
* " L'hMr~dit6
psychologique,"3me edition,p. 322.

58
InternationalYournal of Ethics.
continued to progress in that direction. To-day we understand more clearlythanever how somethingmay be judicially
quite unassailable-and this whether recognized or not in
positive law-and yet present itselfto the moral feelingsand
our moral perceptionas in the highest degree unjust,revolting, and wicked. And thus the moraljustificationof punishment is not saved by basing it on natural right. In view
of the total dependence in which we find the human being,
with his desires and capacities,the question must be raised
anew, Is it rightand properto requite withpain and suffering
the wickedness (which we admit to be altogethera misfortune) of the unfortunate
man, who, born perhaps witha weak
understandingand coarse feelings,grown up in want and
misery, surrounded by vice, dragged lower down by his
every-daycompanions,has sinned against the life and propertyof his fellow-man? Is it right and proper to treat him
thus when we admit unhesitatinglythat the evil deed was the
necessary resultof all his antecedents?
IV. The more he who punishes gains an insight into the
causes, and the higher,consequently,the level fromwhich he
views the doings by which he, as the representativeof the
whole,is to feel himselfinjuredand provoked,the less will he
and the more will he,as an
experiencea desire forretribution,
impartialspectator,be moved by a feelingofpity,and wish to
help the erringone and to heal him.
Now the theory of reformation-elaborated as far back
as Plato, prominentin (5rotius,Montesquieu, Beccaria, and
other celebrated writers,and in accord with Christianas well
as modern philosophic ethics-answers such a tendency,independentof strictdeterminism. One of the ablest representativesof the reformation
theoryamong the modernsexpressly
rejectsthe theoryof threatof punishment" because logically
it would have to consider the punished individual as a mere
means to the welfareof society,"and goes so faras to regard
as the pedagogical theoryof punishment. " The
reformation
state,by punishment,vouchsafesa good to the individual."*
* Hoffding," Ethik," Germ.transl.,pp. 442 and 445.

59
So long as. capital and corporal punishmentsfor all heavy

offencespreponderated,this theory,of course,could not come
into vogue. But the aim of reformingthe criminalhas entered into our present systemof punishment,where deprivation of libertyoccupies the foremostplace, in consequence of
the humane directionconnectedwith the name of Beccaria,
and the improvementof prisons connectedwith the name of
Howard. "As faras I am acquainted withthe German criminal law, it is built on the principlesof the CriminologicalAssociation. . . . According to these principles,punishmentis
an act of justice, and the essence of punishmentis retribution. From theirstand-pointsatisfactionis the primaryobject
of punishment,and the other objects include reformation
and
*
deterrence." Syncretismis the characteristicmark of the
mode of thoughtof the nineteenthcentury,and, more especially, of its European codes of law and constitutions. In the
twentiethcenturywe shall have to eliminatemanyof the component parts so as to attain to clearer thoughts and purer
actions.
Now some people may thinkthat the deprivationof liberty
should improvethe criminalunder all circumstances. Facts,
nevertheless,go to show that the result depends mainlyon
the mannerof the execution of the punishment. There is a
belief abroad that the obligation to work, which is almost
everywherecoupled with imprisonment,combined with the
constraintto order,cleanliness,obedience, and decency, have
an educating influence. Effortsare made in the prison to
make up for the neglected and forgottenschool education.
By divine services and religious exhortationwe endeavor to
purifyand elevate the heart of the prisoner. He gets permission,indeed, is encouraged, to keep up his relationswith
his familyby receivingvisits,by being in communicationwith
them,and by helping them with the surplus of his earnings.
are made to improve
And, lastly,when he is dismissed,efforts
his chances in life,eitherby good advice or,as sometimes,by
* Dr. Wirth,governorofthe prisonof Pl6tzensee,speakingat the firstgeneral
assemblyof the InternationalCriminologicalAssociationin Germany(" Report,"
p. 27).

6o
InternationalYournal of Ethics.
active help. Along with these attentions to the prisoner

sufficientcare must be expended on his bodily well-being.
When all is said, there remains the fact that the measure
of humane treatmentis in a high degree dependent on the
personalityof the prison officialsand especially the jailers;
forbetween principles and theirperformance-betweenwhat
is called theoryand practice-there is, indeed, oftena yawning gulf,which under unfavorablecircumstancescontinually
widens. An importantfactoris the superior insightof the
superintendentof a- prison,who may cause a deep reaction
in favorof humanityand justice. It is a sad state of affairs,
which it is our duty to denounce, when governments,partly
fromfinancialreasons and partlyfroma blunted sense of all
moral motives,so frequentin governments,display verylittle
appreciation of the responsibilityand dignityof such a position. But the more the governmentand its executiveofficers
approach the ideal whichwe have beforeus, the more may be
expected in the way of reformation,
though a value must be
assigned to the formerwhich is independentof the latter.
V. It is evident that the humane treatment-whichis desirable in itself-and more especially the aiming at reformation, tendto lightenprison penalties. And it will be evident,
also, that a more humane executionof punishmentwill somewhat weaken the effectof threats. If the punishment,then,
is both to deterand to reform,it may happen easily enough
that these two aims come into conflict. It is true that prolonged termsof imprisonmentare accompanied by a feeling
of disgrace,-a resultthat varies greatlywith individuals,and
is wholly absent in entire classes of society. This disgrace
did not lay in the intentionof the law-giver,the judge, or the
administration,but is rather a necessaryconsequence of the
opinion of the differentstrata of society,forwhom a good
reputation is of some importance. This secondary result,
though it may serve as a deterrent,easily nullifiesthe criminal's desire to reform. If it is the object of material and
moral reformto facilitatea lawfulcourse of lifeand counteract
freshtemptations,it will yet be very hard forit to battle successfullyagainst the pressureof social disgrace which tends,

6i
with other circumstances,to force the individual back to a

criminalcareer.
The reformatory
treatmentmay perhaps be the primary
cause of arousing in the prisonera heart-felt
convictionof the
infamyof crime, and of his own crime in particular,and of
helping him to overcome his moral disgrace by inward repentance; the social disgrace of punishmentit cannot remove.
And when the punished criminal returnsto the circle where
crime and punishmentare looked upon ratheras an honor
than otherwise,the inner reformationitselfwill most likely
prove illusory. The idea of reformation,
the significanceand
the necessityof which we cannot but highly esteem,will,like
so many other ideas, be able to accomplish littlein the actual
world. Its resources are too insignificant,
the obstacles too
great,and the task too hard. The great numberof offences
against the law are of a light nature, and the consequent
punishmentsare of short duration; but even if the termsof
imprisonmentwere to be doubled, it would yet be unreasonable to expect, merelyas a resultof the mannerof treatment,
a true change of character and a steeling of the will against
the numberlessunbendinginfluencesof life. If manyof those
thus punished do not returnto prison,or returnto it only
aftera long period of absence, we are not justifiedto conclude
that they have not been transgressingthe law since theirdismissal, for many offencesnever come to the knowledge of
the authorities. We must also bear in mind that a course of
lifethat is not illegal is farfrombeing necessarily,therefore,
not immoral,much less moral in conduct. There are many
tolerated yet abominable professionsopen to unsteady and
dissolute men, especially in the great cities; and, besides, it
is precisely the intellectual originatorsof crime who know
best how to keep at arm's lengthfromthe authorities. Under
presentcircumstancesit remainsverydoubtfulwhethera progressive legislation that looks upon a criminal deed as a
sharply-definedfact could succeed in making " responsible"
those secret sowers of evil. But grantedthat a purelylegal
in its effects,this post would by no
attitudewere reformatory
means make probable a propter. For, apart fromthe factthat

62
International journal of Ethics.
it is, forinstance,more convenientto gain one's livelihood as

a souteneurthan to procure it by burglary,it is also true that
the legal proceedingsand subsequentconvictions,though they
offerlittle that is terrible,yet are sufficiently
objectionable;
and it can hardlybe contended that the more artfulperson
who circumventsthese dangers owes his dexterityto the
preachers and teachers in the penal establishment,even if
these latter,as is oftenthe case, have not been more ardent
than theirduties compelled them to be. Finally, even in the
most favorablecase, when the non-punishableconduct is not
grossly immoral,when it means,perhaps,a returnto an honest
livelihood,the formerprisoner may, it is true, gratefullyrememberthe kind person who stood by him in his misfortune
and express himselfaccordingly,and thisnot seldom happens.
The psychologist,nevertheless,will be bound to ascribe by
far the greatest part of the cause of such a result to other
outer and inner factors; though, most assuredly, there are
some extraordinaryinstances in which the humanity and
energy of a single man, especially when it extends itself
beyond the termof imprisonment,give a decisive turnto the
whole lifeof a " prodigal son."
If these extraordinarycases, which are the only ones that
fulfilthe reformpurpose,were somewhat more frequent,or
what is more,were normal,the threat of punishmentwould
turninto an invitationto punishment. The law-giverwould
have to say, " Ye who dwell in slums,who earn your money
perhaps honestly,perhaps dishonestly,only to squander it;
ye in whom a vulgar lifedeadens any finerfeelingsyou may
have possessed, only commit a theftor a fraud-it will not
weigh heavilyon your consciences-and I, the state,will have
the opportunityto reformyou by punishmentand open a new
course of lifeto you."
VI. The factsstand ratheras follows: It is truethata great
many of those who are punished with imprisonmentfor
venial offences* (how large a number is here of no impor* The convictionsfor begging,theft,etc., do not concernus here. In Germanythese trespassesare not counted as transgressionsagainst the imperial

63
tance) do not relapse. Still, no specialist believes this to be

the work of reformation. There is almost unanimityon the
point that shorttermsof confinementare really deteriorating.
The most prominentrepresentativeof the reformof the criminal class in Germany,one of the foundersof the International
Association, Herr Franz von Liszt, has collected a goodly
number of testimoniesof specialists fromvarious countries,
-a numberwhich could be easily augmented and which embrace our whole century,*-that may be summed up in a
sentence: "A punishmentwhichfurtherscrime,-that is the
latest and ripest fruitof 'avenging justice.' t "La prison
corrompt," says Lacassagne, the professorof medicinal law.
Many think that the real cause of this shocking result lies
rather in the fact that the "art of prison management" has
not yet had the help of governmentsto carryout its methods
in the prisons,and in other establishmentswhere culpritsare
sentforshorttermsof imprisonment. The isolation,so necesis, we
saryespecially foryounger criminalsand firstoffenders,
are told, yet far frombeing a rule, and would necessitate,of
course, a great deal of expense. But in Belgium, where no
expense has been grudged,and where the prisons are model
people thinkdifferently.It was in that counestablishments,
trythatpeople firstthoughtof abolishing by law shortterms
of imprisonment! And even those who believe in the relative utilityof such prison reforms-which we may gladly
give our assent to-only think of staying the recognized
process of deterioration. Hardly any one believes in reforlaws. When punishingthese classes of culpritsno one thinksof reformation.
alone determinethe punishment. The thing comDeterrenceand retribution
bated is somethingwhichthe massof thepeople considermorallyjustifiable,and
one is satisfiedif but a minorityof the actual culpritsfall into the hands of
"justice."
* Indeed, instancesthatgo further
back maybe easilygathered,thoughthe use
was verylimitedin the last century. I read in Hanmel,* one
of imprisonment
of the mostzealous championsof reformat that time,that" the prisonreforms
nobody,and the bad companyfoundtherecorrupts. The thiefis hardlysetat
liberty,and lo! he robs again."
ix. pp. 743-754.
furdie gesammteStrafrechtswissenschaft,
t Zeitschrift
* In his translation
of Beccaria,p. 5IO.

64
International_ournal of Ethics.
mation,during a few weeks' or months' stay in a model

prison.
How now about imprisonmentwith hard labor and long
termsof confinement? The demands of prison reformersare
oftenin some measure realized in this departmentof punishcounment,though the methodsvary still widely in different
tries. The general plan is, by a rigid discipline,hard work,
and deep humiliation(in Germanythe criminalis addressed by
the humiliating" du," and in all countriesthe beard and hair
are cut off),to make the prison system,which takes the place
of the formercorporal and capital punishments,as painful
and humiliatingas possible. The recreantmustsufferbecause
he has caused suffering. It can be said with Justicethat the
is theoretically
reconcilablewith such treataim at reformation
ment. The secondary purpose, humanity,does not modify
of suffering.And as
the main purpose,which is the infliction
Dr. Paul Aubrey *
forthe success of this method of treatment,
is a fiction." If the longer
tells us that here,too, "reformation
terms of imprisonmentand similar favorable conditions are
at reform,yet the material to be imadvantageous to efforts
proved is much more incapable of improvement. Every conteaches this: The
templationof the inmatesof a penitentiary
great majorityhave been frequentlypunished; they belong
to the criminal class; they are thieves,cheats, and receivers
of stolen goods by profession. They cannot and will not
change. The more accustomed they are to the prison, the
more indifferent
they become to what is done there. Teaching, preaching,reading,kindlywords, may inspire them with
half-heartedintentions,-oftennot even withthese,-and with
these " intentions"we know " the way to hell is paved." But
here,too, despair is not always in the right place. Some individuals,who as dissipating youths fall into bad company,
and who are led to steal because theycannot findemployment
to meet their needs, will receive a healthyshock 'fromprowhichmaybe made still more beneficial
longed imprisonment,
by moral and materialhelp. If the circumstancesare favor* La ContagiondcuMeurtre,quoted by Ellis, " The Criminal,"p. 250.

65
able, and the squalor carerns does not cling to them,theymay

yet become honorable men and honest workmen; some are
helped by the trade they learn in prison. So faras the great
majorityof this numerous class of criminals are concerned,
they are lost beyond saving,and we find,nearlyalways, that
they are characterizedas such, partlyby their social antecedents and partlyby their moral nature,but oftenestby both.
The moral naturemanifestsitselfin marks which can be outwardlypresented and even measured; this is the meaning of
all criminalanthropology,which requires much critical acumen, and, rightly understood,is of great significance. But,
likewise,"born" or "instinctive"criminals are found also in
all other classes,-among murderersand assassins, among
perjurersand incendiaries,and especiallyamong transgressors
of privatemorals. Even when among these, some do not fall
back. The reason is partlybecause after long punishment
they have left the prison broken down in body, grown old,
withoutsufficient
energyleftto commitnew crimes; in part,
the opportunityis lacking, as in the case of perjurers,who
are not again allowed to appear as judicial witnesses; and also
in the case of incendiaries,who do not again acquire property
on the insuranceof which they can speculate; or their new
deeds are not discovered; or, finally,theyare in a position to
buy offwitnesses,which those experienced will understand
how to do better-than the novices. If, in cases of extreme
criminality,punishmentas a means of reformis almost entirelya failure,it acts as an evil (even on the suppositionthat
a more humane treatmentwill equally benefitall) in a manner
which stands in properrelationship,neither to the end of retaliationor prevention. For example,the disgrace,as well as
the punishmentitself,and especially the same length of punishment,is feltin verydifferent
ways by different
individuals.
What may act as a physical blessing for the vagabond is for
the man who leaves a comfortablehome (as happens not seldom in the case of special criminals) almost fatal. This is
seen most clearly in respect to the quality of nourishment,
but it holds good of the whole prison life.
But the professionalthiefor forgerlooks upon the discomVOL. II.-No.

66
International7ouirna/of Ethics.
fortof incarcerationfora numberof years as a danger which

is attached to his otherwiseagreeable trade. He reconciles
,himselfto the rotationof two years of freeand even luxurious
living,and two years in prison,as a formof existence which
is more to his taste than the monotonyof a laborious and
virtuouscareer. But, as to the lengthof the term,not only
accordvery different,
is the effectof all long imprisonments
and outward conditionof the ining to.health,temperament,
dividual,but it is generallytrue that the severitywith which
the punishmentis felt increases out of all proportionto the
increase in the lengthof the term. According to a law of the
sensibilities,a pressure,which at firstis scarcely perceptible,
will graduallybecome irksome,and finallybecome a pain of
unendurableviolence; just as in respectto thephysical effect,
of one or
energyand vitalitywill returnafteran imprisonment
two years,or perhapsafterone of fiveor six, but will be broken
by eight or ten years of such a life. An imprisonmentwhich
exceeds ten years is, indeed,for most criminals,equivalentto
not only a slow moral but also a slow physical decay. That
this annihilatingof a man is more humane than the former
chopping offof a hand, or cuttingoff of a nose and ear, no
one dare maintain. The effectis oftenno bettereven froman
aestheticpoint of view.
VII. If one renouncesthesoothingthoughtthatthisis, under
the circumstances,a just punishmentforthebad conductof the
man,thenone will findone's selfever anew thrownback upon
the finalaim of law and orderwhich makes such sad and hateful means necessary. If the threatof punishment,
just as little
to
hold
certain
of
is
able
execution
individualsback
as the
it,
froma repetitionoftheircrimes,it neverthelessacts upon others
in this way, and so much the more,the more terriblea long
it is to the
termis, in its consequences,and the more frightful
mind. It protectsthe life,property,and honor of all against
all, and prevents countless crimes. In proportionas an unconditional worth is assigned to this end, every means is
allowable and must appear good; and, consequently,severer
and even more cruel punishmentscould be threatened,and a
correspondingexecutionof them should followin those cases

67
where the threat showed itselfto be inadequate. Justiceis

limited to its formalmeaning; accordingly,the formof the
process is the protectionof the suspected person,and also of
the guiltyone, against unjust punishment. In fact,modern
penal codes show their preventivetendencyvery clearly,in
the more severe punishmentswith which repetitionsof crime
are threatened. While it is the general supposition that all
are equally inclined to commit crimes and need the same
check upon their passions, a strongerimpulse on the part of
those who have already been punished is taken forgranted,
and should be met by a strongerthreat. For, evidently,the
wrong to be atoned foris not greaterwhen it is committedby
a person who has already been punished. The retaliation
theory,of course, affirmsa greater guilt, because a person
alreadyacquaintedwiththe legal consequences of such a deed
(the conceptionis generallylimitedto like or similar deeds)
should have been so much the more careful,-as if he should
be less expected to committhe deed than any one else. And
this is at least rightlythought,
provided a clear consciousness
is held to be the special ground
of deserving-to-be-punished
of culpability,and that all other circumstanceswhich might
deterfromcrime are to be ignored. But this basis presents
itselfhere in all its absurdity. For, in fact,the perpetuation
of the same deed is much moreprobable among those who
have already sufferedpunishmentthan among criminalsas a
class; (yet they argue: in itselfless probable,because there
is more than general knowledge of the liabilityof being punished; in individual cases, nevertheless,the crime is committedagain; this proves an unusuallybad character,which,
even through such knowledge,would not allow itselfto be
checked.) Such a varietyof causes forcejust these unhappy
persons into crime,that the experience of being punished
at the best can exercise only a very slight counter-force.
The end of deterringthrough fear is shown to be still
stronger and more effectualin the best penal codes,-the
military,-which, against manyby no means improbable,and
under some circumstances(in spite of the oath) morallyjustifiable,violations of obedience, proclaims such hard punish-

68
InternationalJournal of Ethics.
ments that they need almost never be applied. A milder

analogy is found in the special punishmentsforcrime with
which officersare threatened. Here no special justice is
practisedtowards some particularlyviolentwrong done (especially in cases of delicta mixza,where the holding of office
occasions a higher punishmentforcommon transgressions);
but a kind of wrong which is especially dangerous is to be
preventedby these means. The real standardof culpability
is the damage, not of the separate deed, but of the human
characteras a cause of it and of similardeeds.
VIII. Now when we speak of combatingcrime as a social
phenomenon,we oughtto specifythe exact object moreclosely.
We have in mind crime as a phenomenonappearing among
masses of people, as a kind of activitytowards which the
charactersof certaingroups of men or of individualmen are
directed permanently,
or at least with a tendencythat often
reappears. This is especially expressed in the second paragraph of the programmeof the CriminologicalAssociation:
" The resultsof anthropologicaland sociological investigations
are therefore. . . to be taken into account." The meaning
is not thatpenal law is to be given up in respectto all or in respect to officers;but,on the otherhand,that penal law should
be raised intoa highersignificancein respectto men knownto
be criminals.They, withoutdoubt,betraytheircriminalnature
by othersigns to the anthropologicaland sociological investigator. By the legislatorand the judge they are recognized,
in the firstplace, only by theirrepetitionof crime and by their
fallingback into it. The more,however,these " resultsof anthropological and sociological investigationsare taken into
account,"so much the morewill even a single deed be enough
forrecognition. Only underthat forcedrestrictionis it allowable for the fourthparagraph in the programmeof the InternationalAssociation to read: "The distinction between
occasional criminalsand habitual criminalsis of fundamental
importance in theoretical and practical relations; it must,
serve as a basis for fixingpenal legislation." Puntherefore,
ishment,as one of the most effectualmeans of " combating,"
applies itselfexpresslyto the habitual criminal. Accordingly,

69
the ninthand last paragraphreturnsto the subject again,with

a qualification. It reads: " Penal legislation,even when it is
a matterof the frequentrepetitionof pettytrangressions,
must
renderhabitual criminalsof the incorrigible
class harmlessfor
as long a period as possible." This is evidentlya very daring
innovation. Here for the firsttime the thoughtcomes forward boldly that the criminalis to be metwith " punishment"
no longer,even in form,on account of his deed, but on account
of his mental constitution. A thought,which was contained
already in the severerthreatagainst fallingback into crime,
now throwsoffthe last vestige of apparentjustice. The deed
is no longer regardedas a cause, which must have the punishmentas an effect,
but only as a means of knowingthe criminal and as an occasion for setting the will of the state in
motion(in order to renderthe incorrigiblehabitual criminal
harmless). One may say that the notionof punishmentmust
itselfherebybe transformedinto a higher conception,-that
of a judicious treatment
of thecriminal. Even capital punishment,withwhich ancient laws (as the Carolina) threatenthe
who is known as such through the furtum terfurfamnosus,
tium,is a case of renderingharmlessand ought to be so. But
it is still everywhereregarded as a punishment; it lay at the
basis of the popular notionthat the stubbornvillain has forfeitedhis life. When we speak to-dayof incorrigible.
habitual
criminals,no one of any insightthinksany more of an incomwickednessof characteras the single
prehensibleand arbitrary
cause of the repeated crimes. We know thatwe have to do
with a pathological phenomenon in the anthropological and
sociological sense, now more in the one, now more in the
other sense. The question has alreadybecome the subject of
discussion in the Second Congress of the CriminologicalAssociation (Bern, i890), from which, indeed, very little has
resulted. But the basis of it was an excellent reportby Professor von Lilienthal of Marburg (" Reports," ii. p. 64), the
firstsection of which closes with the following definition:
" We must regardas incorrigible,persons who repeatedlyfall
back and whose crimeappears as the outcome, first,of an inheritedor acquired degeneracy; second,of a professionallifeof

70
InternationalYournal of Etkics.
crime. (Here " first"signifiestheanthropological," second" the

sociological cause of the crime,but both stand in continualinteractionand community.) But if the second section begins,
"Against incorrigibletransgressorsonly the permanentrendering of the person harmlesscan come into considerationas
a means of punishment,"it is the jurist who is speaking and
is operating with his customary conceptions. For it would
have been more philosophical,and would have .been enough
to say: "The presuppositionof a judicious treatmentof incorrigiblesmustbe the permanentrenderingof them harmless." The punishmentwould here evidentlynot be put upon
the once occurring,and perhaps "slight transgression,"but
(i) upon the degeneracy; (so faras this (a) rests upon heredity,it is, in the judicial sense, absurd,to make the person answerable forit; so faras it is (b) acquired, the person's " own
fault"may surelybe said to lie at the basis of it. This may
be said, in the moral sense, to be "imputable;" it is in the
judicial sense as incomprehensibleas any youth's folly,which
bringslife-longillness upon him; besides this(b) is veryoften
a consequence of (a); or (2) the professionalcriminalcareer is
to be punished. This has certainlya judicial sense, as laws
already threatena single crime more severelywhen it is professional. But, in fact,just here,with no close connection
with (i) (degeneracy),the oppressiveweightof circumstances
is so clear and evident that as a social inheritanceit stands
wholly on the same footingwith psychological inheritance,
not only as an inheritanceof povertybut of aggravatingconditionsoflifein general; to whichthereare added punishments
as a sad and fatalacquisition.
IX. The proposal, cited above, fortreatingincorrigiblesis
evidentlythe complement of the reformtheory. But while
the latterholds fastto punishmentas an evil,which it would
transforminto a good; withthe formerthe purpose of inflicting pain is quite unessential. There, as a rule, it retainsits
necessity,in orderthat fearmay remain; it fulfilsthe threat.
Here, where the threat can be applied only to a narrowly
limitedcircle of individuals,it loses its worth; the degenerate
person will not be frightenedby it; or, if it presentsa great

71
evil as the effectof a pettyas well as of a great deed, it is

in danger of incitingto the greaterdeed; it ought,therefore,
ratherto be avoided or made less frightful.And a criminal
career is not begun witha conscious resolution; it growsout
of its conditions,and spins about its subject a net which he
cannot break through. But for the purpose of rendering
criminalsharmless,not onlyis the intentionto inflictpain not
essential,but it is even an obstacle. When we are readyto give
up the notion of punishmentas an equivalent of the guilt,or
of the deed, it is not discerniblewhy we ought to allow the
person with a criminal nature to sufferany more than the
person with a natural tendencyto insanity; why we should
inflictpain upon the man who leads a criminalcareer(so faras
this does not consist in separate provable and punishable
deeds) any more than upon the man who leads a dissolute
life. These are all injurious or dangerous; we wish to make
them harmless. This is a task forthe state only in so faras
the criminalis concerned. The psychological physicianpronounces judgment as to the necessityof bringingan insane
man under suitable treatment,but,as a rule,only at the solicitationof the familyof the invalid. The judge ought to decide as to the necessity of caring for the criminal; but it
would only be, fairand would secure safetyagainst an arbitrary decision, if, instead of or together with the charge,
a well-foundedpetition should be required fromthe residents of the communityto which the criminalbelongs. We
might add, it ought also be possible to give an authoritative
judgment concerningthe suitable treatmentof the dissolute
man, which would be the functionof the moralist-until
now called the priest-and which would have, as its presupposition,a request of those most concerned,namely,the
moral-religiousfellowship,without the boundaries of which
no one would be permittedto live. In all these cases we have
to do with men whom we dare no longer leave to themselves,
but who must be given over to the care, direction,yes, the
controlof others. But this special controlought to resortto
forceonly when all other means are denied; the no-restraint
systemofcaring forlunatics must be recognizedas in general

72
International
of Ethics.
-7ournal
the best. Unhappily,even in the mostcivilizedlands,the

treatmentof the insane is not sufficiently
regulatedand
secured. But theprinciple,
nevertheless,
holdsgood,thatthe
uncuredoughtto be broughtintotheinstitutions
and kept
there,and thatthe incurablesoughtalwaysto be keptthere.
From analogy,it is thoughtdesirableto maketheretention
of criminalsdependent
upon" theresultsoftheexecutionof
the punishment."This has been,indeed,acceptedas one of
the principlesof theCriminological
Association(? 8). The
thoughtis right,althoughone ceases to regardthetreatment
as punishment.Onlyone oughtnotto regard"reformation"
as the equivalentof " cure." On the contrary,
it would be
possibleto bringmanyindividualsintotherelationsof free
society,in whichone mayexpectto findtheirnature-after
it has been thoroughly
understood-better
developed. But
it will be indispensable
to keep in hand a leverfortheirmaterialinterests.No one,thatis, no habitualcriminal,
should
be releaseduntilhe has earneda considerablesum,the controlofwhichshouldremainwiththeinstitution.As soon as
well-founded
complaintsagainst him amountto a certain
or he fallsagain intocrime,this property
magnitude,
should
be forfeited.The existingHouses of Correction
and similar
mustabove all (theCriminological
penalinstitutions
Associationshouldmakethisitsmostemphaticdemand)be relieved
of all the insane,who are everywherenumerous. Special
places forkeepinginsanecriminals,
such as hereand there
alreadyexist,mustbe establishedeverywhere.The danger
thatdeceptionwill in thiswaybe increasedcan of coursebe
metbycarefulattention.But next,a changeintheworkpursued mustbe demanded,
at least on the continent,-since
in
Englanda bettersystemis alreadyfollowed. As theexisting
punishmentsnow are, theyhave-togetherwithall that is
rightlyblamed in them-at least one good point,namely,
thatthe culpritsduringthisperiodare " harmless,"-thatis,
incapableofperpetrating
newcrimes,-whether
thisoughtto
as
be regarded the end of punishment
or not. But against
theseadvantagesa considerable
of an economical
disadvantage
kind mustbe considered. Theirpowersof laborare farmed

73
make use of the opportunityto gain cheap

out; manufacturers
labor, with the products of which they can underbid competitorswho pay higher wages; the public is served with
goods which forthe most part-from causes easily discerned
-are stillworse thanthe ordinaryones, and whichsatisfytheir
produceras littleas theirconsumer. But cheapness constrains
the buyers. And herebythe state is relievedof a part of its
cost to the hurtof the community; not to its own honor,but
as an illustrationof its (especially in militarystates) notorious
fiscal avarice,which is, from every higher political point of
view, the merest folly. For the economic good of the community,and, therefore,finally,forthat of the state, it would
surelybe more advantageous if all culpritswere occupied in
an unproductivemanner. But this is by no means necessary.
We should be satisfiedwith the principle that no business
profitshould be made out of these labor forces. For many
kinds of work are necessaryforthe institutionitselfand could
be considerably multiplied. For instance, I found that a
shrewd director,who was not satisfiedwith his baker, established with good success his own bakery according to the
newest system. And further,
it will be met with no objection
if articles foruse also in otherpublic institutionsshould be
prepared.
Finally, industrialarticles could be orderedby officials,for
the purposes of the care of the poor, at cost price. No one
would suffer,for instance,if poor widows who are unable to
buy articlesat the market price were assisted with household
goods and clothes for themselves and children,to liftthem
out of extrememisery. And, to what end could the compulsory labor (which costs nothing froma political,economical
point of view,-since clothingand nourishmentmust in any
case be given to the prisoners)be betterapplied than to this?
But agricultural labbr is especially capable of a wide extension through penal institutions. There are many kinds of
cultivationwhich are not commerciallyprofitable,but at the
same time are highly useful,indeed, necessary. Vagabonds,
partly under compulsion, partly in a state of partial freedom, have with great success been applied to such work in

74
Internationaljournal of Ethics.
several districts in Germany. A great part of the culprits

could withoutdanger be occupied in the same way. These
workers would be under militarysupervision. Those attemptingto escape would be exposed to instant death,or, at
least,to chains,and perhaps to branding. It mightbe recommended that,as a rule, everyone should work chained for a
shorttime in order to make him more sensitiveto the benefit
of free motion. With a right choice of individuals, the
hygienic effect,
togetherwith the advantage obtained,might
be verygreat. And in such a reformthe judges could without harm increase the average lengthof the shorterperiods
of punishment(let us say up to threeand fiveyears) by thirty
per cent. to fifty
per cent.,wherebypublic securitywould be
gained. (A side consequence of this renderingof the criminal harmless, although only temporarily,would be that he
would be hindered during this time fromhaving children.)
Furthermore,the termof punishmentshould be so arranged
that no one who has been appointed to common labor shall
be dismissedat a time of year when such labor is, even for
free laborers, not to be obtained at all, or with difficulty.
This point of view is much more importantfora just measurement than the attempted and proposed plan to make the
termequal to the guilt,concerningwhichit oftenrequires selfcontrolnot to indulge in satire. I regard the most pressing
reformsof the severe and long terms of imprisonmentas a
necessaryconditionin order to deal withthe problemof rendering permanentlyharmless certain classes of so-called incorrigiblecases. For, withoutthese, the judicious treatment
would retaina certaincoloring of administrative
justice, from
which the idea itselfought to be freedwith all earnestness.
The object should be, not the destructionof justice, but the
restorationof a higher justice. We wish to be just to the
natures and circumstancesof unhappy and dangerous men,
and, fortheirown sake and forthe good of all, separate them,
kindly and with tenderness,like men-who have contagious
diseases, fromthe places where they would only sink the
deeper in filthand draw others down.
X. Thus far the treatmentof the lighter formsof delin-

75
quency have occupied the foregroundof our thought; or, in

the words of the seventhparagraphof the criminologicalprogramme,the "substitution of short terms of imprisonment."
The greatest attention,much support and much opposition,
have been bestowed upon the suggestionto leave to the will
of the judge a suspension of the execution,-which might
have as a consequence the annulmentof the punishment: the
so-called conditional condemnation (condamnationconditionedie),which in Belgium * has been made a law. I regard the
idea, althoughit is supportedby pre-eminentauthorities,to be
a desperate means of remedy against the evils which confessedlyattach to the shorttermsof imprisonmentin a higher
degree than to the long and severe. I also regard it as certain that the dangers of infectionthroughthe prison have
been ratedtoo high. We ought not to compare them with
the effectswhich an honest society could have upon the same
individual. An individual of this kind is, even in freedom,
exposed to the greatest dangers. In most cases-and especially in those which most commonlyterminatewith a relapse-the deed itselfis a proof that the person was already
accustomed to criminal companionship,and did not need
to become acquainted with it. Whoever was born in a purer
sphere and returnsto it will easily shake off from his feet
even the dust of the prison. Nevertheless,thereis contained
in the complaint-that the punishmentis oftenthe school of
crime-a terribletruth. The conditional condemnationconceived as a final,emphaticand individualwarningwould offer
protectionto some. Still, if a sharp police supervision did
not followit up (whichwould be worse than the punishment),
the premium upon innocent conduct in the days of grace
would succumb to all the objectionswhich we have put forward against presumptivereformation. We shall look to the
interestingexperimentwithattentiveexpectation,even though
a discriminatingknowledge of the actual result may disclose
great difficulties.
XI. There has also been felta doubt as to anothersubsti* Recently(March 26, i89i), also in France.

76
Internationaljournal of Ethics.
tute forthe customarypunishments. While I am writing,the

GermanConventionof the InternationalAssociation in Halle
is consideringthissubject. The suggestionthatthose punishments should be made more terrible by increased severity,
and that,indeed,somethinglike corporal chastisementshould
be set up in their place, has, to our delight,been met with
animatedopposition. On the other hand, the right thought
is containedin the proposal that there be a wider and more
rationalapplicationof a systemoffines. These would necessarily be measured according to the propertyand outward
circumstances of the offender; for making them effectual
when necessary(as in most cases it would be) compulsory
labor (but as a rule without imprisonment)would be of service. At the same time (in the writingsof the Association)
the plan has been broughtup, more thanformerly,
to consider
theinterestsof theinflured
party in penal legislation. I believe
that here,more than elsewhere,a point of contact is possible.
All smaller thefts,embezzlements,frauds,and other,at least
lighter,crimesagainst property,which come to the knowledge
of the judge, should have as a consequence a duty for the
perpetrators,-thedutyof compensationand indemnity. The
rational meaning of such a rule throws direct light on the
subject. The rational meaning of punishment-to make the
man sufferat public expense-is by no means of any help.
It will be objected,thatthismeans a returnto a privatetreatment of crime,which predominatedso stronglyamong the
Romans and in all ancient codes. Now what if this step
backwardwere to prove a returnto a healthyand wise apprehension? What if the whole penal law in its present form
should representan (historicallyindeed justifiable)-amalgamation of morals and law ? What if first,througha pure stripping of the real law, that is, of privatelaw, and the reduction
of the public law to a private obligatioex delictoagainst the
states-if first,
thus,the moral could attainto a strongand independentvalidity? As it is, penal law in all countriesis on the
verge of a collapse. For the purpose of acting as an evil, the
punishmentsare not great enough in comparison with the
attractionsof the smaller transgressions;besides, theirpower

The Etkzcal Teachingof Sopizokies.
77
of deterringthroughfearvariestoo much accordingto all the

relations of the individual. Their evils certainlydo not act
as spurs to reform. Almost no one believes any longer in
theirjustice. We ought to decide to drop entirelythe aim of
inflictingevil, and that is the essence of punishment. Justice
will demand that whoever has committedinjuryshould make
compensationforthe injury,and, perhaps,still morethan that.
Denial of libertyfora time should have its meaningonly as a
condition for the discharge of these duties,where it cannot
also serve as an education (and this maybe limitedto persons
underage, otherwiseit mightrequirethe assent of thesubject).
This hard duty will have more force as a deterrentthan
threatenedpunishment. In this way it may come about in
practice, that the criminals by nature and professionwould
be placed in lasting confinementas the conditionsuited to
them. Whoever forces himselfto that, because it is more
attractiveto him than repellent,gives evidence in that very
preferencethat his moral or social condition is diseased.
But all these reformswill at the same time tend towards
a research for other means of preventingcrime than can be
found in the threatenedor real consequences of what he has
done.
FERDINAND
UNIVERSITY
OF KIEL.
TONNIES.
THE ETHICAL TEACHING OF SOPHOKLES.

"SOPHOKLES paints men as they ought to be, I paint them
as they are," is said to have been the remarkof his younger
rival and contemporary. Sophokles was more an artistthan
IEschylos; but the moral world remainedfor him,as forthe
older poet, the sphere of tragedy; his works are dramas,but
the motives they use and the interestthey excite and the
high purposes of their author are all drawn fromthe moral
relations of men. In examining the ethical teaching of
our work is not simplythat of literary
Sophokles, therefore,
criticism,but rather it is a study of the moral sentimentsof


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