Page:The World as Will and Idea - Schopenhauer, tr. Haldane and Kemp - Volume 3.djvu/428

412 by the latter, is really not affected by the former; but the poacher, if he has been guilty of nothing else, is certainly tainted with a fault, but yet is not regarded, like the thief, as dishonourable and shunned by all. For the principles of civil honour rest upon moral and not upon mere positive law; but game is not an object upon which labour is bestowed, and thus also is not an object of a morally valid possession: the right to it is therefore entirely a positive one, and is not morally recognised.

According to my view, the principle ought to lie at the basis of criminal law that it is not really the man but only the deed which is punished, in order that it may not recur. The criminal is merely the subject in whom the deed is punished, in order that the law in consequence of which the punishment is inflicted may retain its deterrent power. This is the meaning of the expression, "He is forfeited to the law." According to Kant's explanation, which amounts to a jus talionis, it is not the deed but the man that is punished. The penitentiary system also seeks not so much to punish the deed as the man, in order to reform him. It thereby sets aside the real aim of punishment, determent from the deed, in order to attain the very problematic end of reformation. But it is always a doubtful thing to attempt to attain two different ends by one means: how much more so if the two are in any sense opposite ends. Education is a benefit, punishment ought to be an evil; the penitentiary prison is supposed to accomplish both at once. Moreover, however large a share untutored ignorance, combined with outward distress, may have in many crimes, yet we dare not regard these as their principal cause, for innumerable persons living in the same ignorance and under absolutely similar circumstances commit no crimes. Thus the substance of the matter falls back upon the personal, moral character; but this, as I have shown in my prize essay on the freedom of the will, is absolutely unalterable. Therefore moral reformation is really not possible, but only