The Mystics give to punishment the character of fatherly and chastening discipline by which the sinner expiates his crime and is purged of the sin; thus it purifies him and leads him back to the state of innocence; a kind of anticipatory hell fire which enables him to enter paradise. In "Gorgias" Plato says explicitly: "He who is punished is liberated from the evil of his soul." And the Apostle Paul teaches us: "Punishment is ordained for the betterment of man." Criminal anthropology recognizes that it is useless to expect this moralizing and redeeming effect from punishment. Lombroso altogether rejects punishment as a means of discipline and expiation, and before him Bentham and J. S. Mill, and simultaneously with him and after him Fouillée, Guyau and Maudsley adopted the same view. According to them the sanction of criminal law, which extends and completes it and ensures its efficacy, can have no other aim than the law itself, and this aim is to defend society against its active enemies, if possible by converting them, if necessary by forcible subjugation.
In a book which is full of interest, but whose value is considerably diminished by a strong admixture of mysticism, "Esquisse d'une morale sans obligation ni sanction," M. Guyau goes much farther than the criminal anthropologists and sociological opponents of punishment, and expresses the somewhat paradoxical view that "the real sanction seems to imply complete freedom from punishment for the crime committed, as punishment for any action that has been accomplished is useless." It is quite correct that no punishment under the sun can undo what has been done. But it is not feasible for that reason to dispense with all punishment for misdeeds and to call this systematic freedom from punishment a sanction. Guyau overlooks the fact that the punishment is directed not to the crime but the perpetrator. It certainly alters nothing in a past transgression of the law, and that is not its object, but it may possibly have the effect of preventing fresh misdeeds on the part of the same wrongdoer or of others, and that would justify it.
If society must renounce the idea of improving the misdemeanant, especially the man whose organic tendencies make him a criminal and who is the most dangerous and commits the most numerous and worst crimes, it nevertheless assumes that it makes an impression on morally doubtful characters by punishing misdemeanours and crimes, that it warns them and prevents them from erring. That is the theory of intimidation, which also has many opponents. It will hardly be denied that psychologically it is well founded. The conception of the evil consequences for himself that his action may entail strengthens the impulsive man's power of inhibition when he is about to do wrong, and perhaps enables him to overcome his immoral instinct. Only it is difficult to measure the force which the thought of punishment adds to the effort of inhibition. This force does not come into question at all with the man who sins occasionally from passion. The flood of his impulses sweeps away all barriers which reason may oppose, and their power of resistance is not materially increased by the fear of consequences, because the mental horizon is completely darkened at the time of the storm and no prevision is possible. The criminal from organic causes exercises no inhibition. He knows that society condemns his actions, but he is convinced of his personal right to carry them out, and fears no punishment, because he hopes to escape it, and tries his utmost by means of planning, prudence and self-control to outwit society. The theory of intimidation is not applicable to these two classes of criminals, and they constitute a large proportion of the army of wrongdoers against which society has to defend itself by force.