23.
Whether the Adherents of the Doctrine of Free Will have a Right to Punish?—Men whose vocation it is to judge and punish try to establish in every case whether an evil-doer is really responsible for his act, whether he was able to apply his reasoning powers, whether he acted with motives and not unconsciously or under constraint. If he is punished, it is because he preferred the worse to the better motives, which he must consequently have known. Where this knowledge is wanting, man is, according to the prevailing view, not responsible—unless his ignorance, e.g. his ignorantia legis, be the consequence of an intentional neglect to learn what he ought: in that case he already preferred the worse to the better motives at the time when he refused to learn, and must now pay the penalty of his unwise choice. If, on the other hand, perhaps through stupidity or shortsightedness, he has never seen the better motives, he is generally not punished, for people say that he made a wrong choice, he acted like a brute beast. The intentional rejection of the better reason is now needed before we [pg 204] treat the offender as fit to be punished. But how can any one be intentionally more unreasonable than he ought to be? Whence comes the decision, if the scales are loaded with good and bad motives? So the origin is not error or blindness, not an internal or external constraint? (It should furthermore be remembered that every so-called “external constraint” is nothing more than the internal constraint of fear and pain.) Whence? is the repeated question. So reason is not to be the cause of action, because reason cannot decide against the better motives? Thus we call “free will” to our aid. Absolute discretion is to decide, and a moment is to intervene when no motive exercises an influence, when the deed is done as a miracle, resulting from nothing. This assumed discretion is punished in a case where no discretion should rule. Reason, which knows law, prohibition, and command, should have left no choice, they say, and should have acted as a constraint and a higher power. Hence the offender is punished because he makes use of “free will”—in other words, has acted without motive where he should have been guided by motives. But why did he do it? This question must not even be asked; the deed was done without a “Why?” without motive, without origin, being a thing purposeless, unreasoned.—However, according to the above-named preliminary condition of punishability, such a deed should not be punished at all! Moreover, even this reason for punishing should not hold good, that in this case something had not been done, had been omitted, that reason had not been used at all: for at any rate the omission was unintentional, [pg 205] and only intentional omission is considered punishable. The offender has indeed preferred the worse to the better motives, but without motive and purpose: he has indeed failed to apply his reason, but not exactly with the object of not applying it. The very assumption made in the case of punishable crime, that the criminal intentionally renounced his reason, is removed by the hypothesis of “free will.” According to your own principles, you must not punish, you adherents of the doctrine of free will!—These principles are, however, nothing but a very marvellous conceptual mythology, and the hen that hatched them has brooded on her eggs far away from all reality.
24.
Judging the Criminal and his Judge.—The criminal, who knows the whole concatenation of circumstances, does not consider his act so far beyond the bounds of order and comprehension as does his judge. His punishment, however, is measured by the degree of astonishment that seizes the judge when he finds the crime incomprehensible.—If the defending counsel's knowledge of the case and its previous history extends far enough, the so-called extenuating circumstances which he duly pleads must end by absolving his client from all guilt. Or, to put it more plainly, the advocate will, step by step, tone down and finally remove the astonishment of the judge, by forcing every honest listener to the tacit avowal, “He was bound to act as he did, and if we punished, we should be punishing eternal Necessity.”—Measuring the [pg 206] punishment by the degree of knowledge we possess or can obtain of the previous history of the crime—is that not in conflict with all equity?
25.
Exchange and Equity.—In an exchange, the only just and honest course would be for either party to demand only so much as he considers his commodity to be worth, allowance being made for trouble in acquisition, scarcity, time spent and so forth, besides the subjective value. As soon as you make your price bear a relation to the other's need, you become a refined sort of robber and extortioner.—If money is the sole medium of exchange, we must remember that a shilling is by no means the same thing in the hands of a rich heir, a farm labourer, a merchant, and a university student. It would be equitable for every one to receive much or little for his money, according as he has done much or little to earn it. In practice, as we all know, the reverse is the case. In the world of high finance the shilling of the idle rich man can buy more than that of the poor, industrious man.