on which casuists have differed more widely than
those of the legitimacy, and the proper measure of punishment. One
thinks it unjust that anybody should be punished for the sake of example
to others, or for any purpose except his own amelioration. A second
replies that it is only for the sake of other people's good that an
offender ought to be punished; for that, as for his own good, he himself
should be left to decide what that is, and he is pretty sure not to
decide that it is punishment. A third pronounces all punishment unjust,
seeing that a man does not make himself criminal, but is made so by
circumstances beyond his control--by his birth, parentage, education,
and the temptations he meets with. Then, for the apportionment of
punishment, some persons think there is no principle like that of the
_lex talionis_--an eye for an eye, and a tooth for a tooth. Others that
the penalty should be accurately proportioned to the immorality of the
offence, by whatever standard that immorality be measured. Others,
again, that punishment should be limited to the minimum necessary to
deter from crime, quite irrespectively of the heinousness of the
particular crime punished. Of the first three of these opinions, Mr.
Mill observes that 'they are all extremely plausible, and that so long
as the question is argued as one of justice simply, without going down
to the principles that lie under justice, and are the source of its
authority, he is unable to see how any one of the reasoners can be
refuted. For every one of them builds upon rules of justice confessedly
true--each is triumphant so long as he is not obliged to take into
consideration any other maxims of justice than those he has selected,
but that as soon as their several maxims are brought face to face, each
disputant seems to have as much to say for himself as the others. No one
can carry out his own notion of justice without trampling upon another
equally binding.'[16] This view of the matter, however, can scarcely be
regarded as satisfactory. If utilitarian notions of justice cannot be
carried out without trampling each other down, they plainly should not
be suffered to go at large, but should be relegated forthwith to the
limbo of oblivion. But right cannot really be opposed to right; justice
cannot really be inconsistent with itself: it never can be unjust to do
what is just. Anti-utilitarian justice tolerates no such intestine
disorder. The sole ground on which she sanct