|Commemorative stamp on Schopenhauer|
It is certain that apart from the state there is no right of punishment. All right to punish is based upon the positive law alone, which before the offense has determined a punishment for it, the threat of which, as a counter-motive, is intended to outweigh all possible motives for the offense. This positive law is to be regarded as sanctioned and recognized by all the members of the state. It is thus based upon a common contract which the members of the state are in duty bound to fulfill, and thus, on the one hand, to inflict the punishment, and, on the other hand, to endure it; thus the endurance of the punishment may with right be enforced. Consequently the immediate end of punishment is, in the particular case, the fulfillment of the law as a contract. But the one end of the law is deterrence from the infringement of the rights of others. (Page 445)He is against the idea of a man taking revenge for the wrong done to him because no man has the right to set himself up as a judge—that right belongs only to the state. He says that the existence of the state and the law is necessary to distinguish punishment from revenge.
For, in order that every one may be protected from suffering wrong, men have combined to form a state, have renounced the doing of wrong, and assumed the task of maintaining the state. Thus the law and the fulfillment of it, the punishment, are essentially directed to the future, not to the past. This distinguishes punishment from revenge; for the motives which instigate the latter are solely concerned with what has happened, and thus with the past as such. All requital of wrong by the infliction of pain, without any aim for the future, is revenge, and can have no other end than consolation for the suffering one has borne by the sight of the suffering one has inflicted upon another. This is wickedness and cruelty, and cannot be morally justified. Wrong which someone has inflicted upon me by no means entitles me to inflict wrong upon him. The requital of evil with evil without further intention is neither morally nor otherwise through any rational ground to be justified, and the jus talionis set up as the absolute, final principle of the right of punishment, is meaningless. (Page 445-446)He rejects the Kantian theory of punishment because Kant talks only about punishing the guilty, and not about preventing crime in future:
Therefore Kant's theory of punishment as mere requital for requital's sake is a completely groundless and perverse view. Yet it is always appearing in the writings of many jurists, under all kinds of lofty phrases, which amount to nothing but empty words, as: Through the punishment the crime is expiated or neutralized and abolished, and many such. But no man has the right to set himself up as a purely moral judge and requiter, and punish the misdeeds of another with pains which he inflicts upon him, and so to impose penance upon him for his sins. Nay, this would rather be the most presumptuous arrogance; and therefore the Bible says, “Vengeance is mine; I will repay, saith the Lord.” But man has the right to care for the safety of society; and this can only be done by interdicting all actions which are denoted by the word “criminal,” in order to prevent them by means of counter-motives, which are the threatened punishments. And this threat can only be made effective by carrying it out when a case occurs in spite of it. (Page 446)The punishment that the state awards to the wrongdoers is meant to serve as deterrence from crime. If instead of condemning the wrongdoers, the state becomes merciful towards them, then the crime will be repeated and the innocent will suffer. If the state can diligently perform its duty of maintaining law and order, then, according to Schopenhauer, it may succeed in eliminating all evil and create something resembling an utopia.