The humanitarian theory removes from punishment the concept of desert. But the concept of desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question “Is it deserved?” is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice.
There is no sense in talking about a “just deterrent” or a “just cure”. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds. Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly
removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient,
a “case”.
The distinction will become clearer if we ask who will be qualified to determine sentences when sentences are no longer held to derive
their propriety from the criminal’s deservings. On the old view the problem of fixing the right sentence was a moral problem. Accordingly, the judge who did it was a person trained in jurisprudence;
trained, that is, in a science which deals with rights and duties, and which, in origin at least, was consciously accepting guidance from the Law of Nature, and from Scripture. … But the code was never in principle, and not always in fact, beyond the control of
the conscience of the society. And when (say, in eighteenth-century England) actual punishments conflicted too violently with the moral sense of the community, juries refused to convict and reform was
finally brought about. This was possible because, so long as we are thinking in terms of desert, the propriety of the penal code, being a moral question, is a question on which every man has the right to an opinion, not because he follows this or that profession, but because he is simply a man, a rational animal enjoying the Natural Light.
