When we come to the actual criminal consciousness, the form which the recognition may take in fact may vary greatly; and as an extreme there may be a furious hostility against the whole recognised system of law, either involving self-outlawry through a despair of reconciliation, or arising through some sort of habitual conspiracy in which the man finds his chosen law and order as against that recognised by the State. [1] But after all, we are dealing with a question of social logic and not of empirical psychology. And it must be laid down that, in as far as any sane man fails altogether to recognise in any form the assertion of something which he normally respects in the law which punishes him (putting aside what he takes to be miscarriage of justice), he is outlawed by himself and the essentials of citizenship are not in him. Doubtless, if an uneducated man were told, in theoretical language, that in being punished for an assault he was realising his own will, he would think it cruel nonsense. But this is a mere question of language, and has really nothing to do with the essential state of his consciousness. He would understand perfectly well that he was being served as he would say anyone should be served, whom he saw acting as he had done, in a case where his own { 227} passions were not engaged. And this recognition, in whatever form it is admitted, carries the consequence which we affirm.
[1] See the account of the Mafia in Marion Crawford’s _Corleone_. Accepting this as described, it simply is the social will in which the population of a certain region find their substitute for the State.
In short, then, compulsion through punishment and the fear of it, though primarily acting on the lower self, does tend, when the conditions of true punishment exist (_i.e._ the reaction of a system of rights violated by one who shares in it), to a recognition of the end by the person punished, and may so far be regarded as his own will, implied in the maintenance of a system to which he is a party, returning upon himself in the form of pain. And this is the theory of punishment as retributive. The test doctrine of the theory may be found in Kant’s saying that, even though a society were about to be dissolved by agreement, the last murderer in prison must be executed before it breaks up. The punishment is, so to speak, his right, of which he must not be defrauded.