Front Page Titles (by Subject) DEFINITION XXI: Demerit is an estimative moral quality resulting to a man from a bad action through which he is under obligation to make amends for the injury done to a second person thereby. - Two Books of the Elements of Universal Jurisprudence
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DEFINITION XXI: Demerit is an estimative moral quality resulting to a man from a bad action through which he is under obligation to make amends for the injury done to a second person thereby. - Samuel von Pufendorf, Two Books of the Elements of Universal Jurisprudence 
Two Books of the Elements of Universal Jurisprudence, translated by William Abbott Oldfather, 1931. Revised by Thomas Behme. Edited and with an Introduction by Thomas Behme (Indianapolis: Liberty Fund, 2009).
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Demerit is an estimative moral quality resulting to a man from a bad action through which he is under obligation to make amends for the injury done to a second person thereby.
1. In any misdeeds whatsoever, at all events those which terminate in another person, there are found two things, the defect itself, or the divergence from the norm of law according to execution or intention, and the damage done, directly or indirectly, to a second person thereby. It is our task here to investigate what is wont and ought to be observed upon both of these points in a human court of law, for, as it is not ours to set forth the edicts of the Divine Tribunal, so we are averse to having them introduced there. It is certain, therefore, on the basis of the law of nature about not bringing upon a second person that whereby peace and human society would be disturbed, that every man whatsoever is bound to make amends to the other party for damage done him in any way at all by his own fault, and, if that damage has proceeded from malice, he is bound to give bond not to offend in the future.
2. Furthermore, among those who, being bound by no civil law, use merely the law of nature among one another, if, indeed, a person induced by repentance, of his own free will, and not compelled by force, presents himself in order to make amends for the damage, this same law of nature appears to obligate him to furnish no other bond than to pledge his good faith with a simple asseveration, or even with an oath, that he will avoid offences for the future, and this because that repentance is a sufficient indication of a change of mind and of a firm determination to refrain from injuries henceforward.1 And so, if the one who had received some damage should be unwilling to be content with that, but out of unjust lack of confidence or some asperity of temper should wish to extort a bond by the use of superior force, although by the law of nature the other be not bound thereto, the blame for violating the peace will attach to the first party himself, and the other can rightly resist by force the man who, out of a desire for vengeance, or excess of fear, is unwilling to be content with a fair satisfaction. In this case it results that he who did the injury is waging a just war, he who suffered it an unjust one. But, when one has to be driven by force to make satisfaction, since this very same circumstance renders quite clear his obstinacy in badness, and satisfaction cannot be obtained unless the injured forcibly overpowers the injurer, it rests with the victor to determine just what kind of bond will best provide for his own security. Here he may not merely proceed to taking away arms, demolishing or occupying fortified places, to hostages, perpetual imprisonment, and the like, but even to death itself, if, indeed, it be well enough established that the one restored to liberty will plot our destruction, and no more convenient remedy be found for avoiding that. For the rest, it cannot properly be said that one is bound to furnish a bond of this kind; because a bond presupposes and involves in him from whom it is taken some fault of the mind, and a sin against the law of nature, to wit, the denial of a spontaneous satisfaction and the defence by force of his misdeed.
3. Now, in truth, as states have been instituted for fastening with stronger bonds society among men, so the laws which they enact tend not merely to prescribe to citizens what is to be given to each man, and how each is to be recompensed for the damage done him by the fault or malice of a second person, but also to have all men whatsoever, as far as that is possible, protected, as it were, in advance against receiving injuries and losses, namely, by establishing punishments against delinquents; and this is done primarily because persons are very rarely found who without force or fear descend to making amends for the injury they have caused, and damage and injury are done not without disturbance, even if the same be afterwards made good in the most full measure. Therefore, the greatest and most convenient bond for security, which, indeed, the condition of human society allows, is this, namely, that, because of the punishment, it be more damaging to have injured a second person than not to have injured him. To that end all punishments which men exact from other men ought to tend. For that men should regard nothing but the pain in the one who is punished, is not only repugnant to the gentleness of human nature, but also quite useless, and it is characteristic only of children or weak women to get some solace for their own grief out of the suffering of their injurer. And so it appears to harmonize very poorly with reason, that among some states, for example, in homicide, it rests with the kinsmen of the murdered man to condone or to leave the punish-ment for homicide, as if it be proper for a man to be slain, not as an example, but to assuage the grief of the murdered man’s kinsmen.
4. In a state, therefore, aside from the fact that he who has done wrong is compelled by the supreme authority to make good, as far as nature admits, the damage done to a second party, precautions are taken for the future security of all men by inflicting punishment, the severity of which is to deter everybody from crime. In imposing these punishments there is regarded both the advantage of him whose interest it was that the misdeed did not take place, as well as the advantage of all other men in general, namely, that for the future neither he nor they suffer anything of the sort from the same person or from others.2 The former end can be attained if either the delinquent be destroyed, or his powers of doing harm be taken away, or by the evil which he suffers he be taught to give up his wrongdoing. That injuries be not done by others is brought about through open and conspicuous punishment, which by its example inspires terror in them. But those inflictions of pain upon others which regard nothing but the reformation of him who has done wrong, can scarcely be listed under the name of punishments, although most punishments which stop short of inflicting death, produce at the same time that effect also.
5. Now a threefold division can be made of punishments, to wit, into real punishments, which are paid in person or money, to which class also belong instances of removal from a lucrative office as such; moral, as reproof, relegation, ignominy, infamy, loss of civil status, &c.; and notional, as affixing a man’s name and effigy to the gallows, demolishing statues, erasing a man’s name from the records of some society or from some works which he has himself set up, adding to the same an ignominious designation, and the like. All these are applied with the purpose of bringing some suffering to the one upon whom they are inflicted. Hence, although laborious tasks are commonly imposed upon some persons in place of punishment; nevertheless, in so far as they are annoying to the agent, the same purposes are in mind, and so they are here regarded as suffering.
6. From all this one gathers just why it cannot be said properly that some one is bound to punishment, or punishment is owed by some one; because, namely, punishment signifies something which is to be imposed upon a man against his will, and it involves an abhorrence of the will from it3 (for otherwise it would not be adapted to its end, namely, by the sight of it to frighten men away from their evil deeds). But, in truth, the things to which we are properly bound are understood to be such that we ought to be moved of our own accord and gladly to furnish them. From this the reason is apparent why, for example, when, in constructing the same rampart, some countryman at the order of his master, and a criminal condemned thereto, do the same task, to the latter the work is a punishment, but not to the former; because, namely, the former is understood to be doing it on the basis of an obligation, and so willingly, but it is imposed upon the latter as something abhorrent to his will. Thus he also does not suffer a punishment who is compelled to pay a fine while giving surety for a second person. For, on the occasion, indeed, of the second person’s misdeed he sustains a loss, but in such a way that the second person’s misdeed is not the proximate cause of his suffering the loss, but his own will is, by which he bound himself through the giving of surety. From all this, likewise, it results that, just as a person when he has made good a damage done by him of the kind, indeed, which could be made good, is by no means bound to report upon himself, so that the punishment assigned by the law may be measured out to him; so, for the same reason, he can rightly avoid punishment by hiding or through flight. Finally, since that which I inflict upon myself cannot happen to one who is unwilling to bear it, it is patent also that no one can exact penalty from himself; and since the unwilling cannot be compelled to submit to punishment except by a superior, neither can he who does not have a superior in some state be subjected to human punishment.
7. Now as every punishment presupposes a misdeed or demerit, in such wise that it is contrary to nature for one to be punished because of some deed which cannot be imputed against him; so that pain or loss which in due consequence comes from the punishment of one person upon other persons who have done no wrong, cannot be designated by the name of punishment. For, just as other persons are by the punishment to be deterred from wrongdoing, so also the punishment ought to be imposed directly in view of the misdeed, and the pain or loss, which, in the case of a second person, is to have the character of punishment, ought to regard his own misdeed as the cause. And so that pain which one feels at the punishment of a kinsman or friend of his, is not a punishment, unless, perchance, he himself has concurred in that misdeed. Thus, properly speaking, children are not punished when their father because of some misdeed is fined in money or by the loss of his feudal holding; especially since on that score damage is not done directly to the children by taking away that to which they had their own right, but the loss comes to them merely as a consequence, namely, in that they do not have what they otherwise would have had, to wit, by the expiration of that condition without which they had no right, this condition being that the goods in question should have been kept by their parents until their death. Thus, when, on the parents having been reduced to servitude because of some misdeed, the children born thereafter to them become slaves also, in the case of the latter slavery does not at all have the character of punishment, but merely of a misfortune; especially since no one, before he is born, can have a right to be born in such and such a condition and no other. Precisely as an infant existing in its mother’s womb, if, indeed, it also lose life or liberty while its mother is being punished, cannot properly be said to have been punished; although the laws of many states rightly forbid that a pregnant woman suffer the death penalty before her child has been born. Also the Roman laws ordain that, if a free-woman conceive, and become thereafter a slave because of a misdeed, and give birth in this status, the child which is born of her is free.4 But those are improper expressions, whereby, for example, one extremely poor or sickly is said to be born of his parents to punishment.
8. Moreover, as it is in the highest degree conformable to nature for any one whatsoever to entrust to some honest third person the decision of his controversies with a second; so how each is to be safeguarded in his own security, or what the measure of punishment ought to be, is most conveniently fixed by a third person, because the sensitiveness of self-love, when irritated by a hurt, commonly forces us to punish the injurer more harshly than in the judgement of reason might otherwise suffice us. Since in states both of these matters are in the hands of those who enjoy the supreme sovereignty therein, it has also been placed in their free choice to determine what punishments they desire to inflict upon what crimes, and how severe these punishments shall be. Now in determining the degree of punishments, although the defect of the formal action is altogether to be considered, above all, as regards the intention, in such wise that the delinquent out of weakness, and the delinquent out of malice, be treated differently, as also the one who is carried away through emotions immediately followed by penitence, and the one who approaches the crime with his mind deliberately made up; nevertheless, it is not necessary that there always be the same proportion between punishments that there is between the objects violated through the misdeed; since, forsooth, the reason for not committing some misdeed does not properly result from the nobility or ignobility of the object, but from the authority and decree of the legislator, whose will he who commits a misdeed about a smaller object opposes quite as much as he who does the same about a larger one; although here legislators do not so follow their mere free choice, or ought not so to follow it, but intensify or remit punishments as it is of great or small concern to the commonwealth, or at the immediate moment, for some misdeed not to be committed. Thus he can be visited with the utmost punishment who is caught in the lowest grade of that crime by which the greatest injuries can be inflicted. From this is apparent also the reason for that trite saying: “Punishments are to be made more severe, as misdeeds increase or grow more frequent.” Just as, on the contrary, when some fault has passed into a custom, with the result that, because of the multitude of delinquents, there is no room to exact punishment, unless you wish utterly to exhaust or overturn the state by inflicting penalties, the necessity of the commonwealth orders that the punishments be remitted. This could not take place if we imagine vindicative justice among men to be of such a sort as to order that the punishment, appropriate in itself to the crime, should always be inflicted promiscuously upon any one at all, and not rather such as to adapt itself to the seasons and the advantage of the commonwealth, especially since in no other respect is it necessary for one man to exact a punishment from another for any crime at all, except to insure the preservation of human society. Thus, when a war is on, if other suitable men are wanting, who would doubt that a vigorous general ought deservedly to have the punishment of exile or death remitted, simply because the commonwealth cannot well do without his services at that time?
9. Now we are not of the opinion that it is always in all commonwealths necessary for that penalty which is expressed by the divine law to be imposed upon misdeeds; and this because that was the civil law of the Jews, in which the punishments attached were determined by the positive direction of God according to the genius of that people and commonwealth. Nay, since the character of different peoples is different, it is also proper that punishments be adjusted to the same. But, in truth, it can very well be doubted whether this principle ought to be applied also to the capital punishment for homicide expressed in the divine writings, since this punishment seems to have been enacted into law, not for the one nation of the Jews, but for the whole race of men. The reason for that is assuredly clear; because he whose wickedness is so great that he does not fear of set resolution to shed human blood, cannot be adequately guarded against by other men unless he be deprived of life. And so, as they who have committed murder with some incomplete intention only, which was soon followed by penitence, may be punished more mildly than they deserve; so the malicious murderer, as one who sets out to subvert the foundation of human society, is not to be spared, unless, perchance, the utmost necessity of the commonwealth require it. Nevertheless, even in this we by no means feel that that divine law is violated, partly because the determined quantity of every punishment is a matter of positive law, which it is no more than right should be adjusted to the needs of the commonwealth (and an exception is properly presumed to have been made of this circumstance in that divine law);5 and partly because no matter if sometimes a murderer of that sort has escaped the punishment of men, nevertheless, the divine vengeance is generally so accustomed to pursue him, that he perishes in a bloody death by an act of violence, either in some fashion by the sword of another man, or punished for some different crime. And assuredly it appears that this punishment of homicide is not so much a constitution given to men by means of the civil law, as it is a declaration of the vengeance to be exercised by God himself through the instrumentality of men, or through other tragic chances upon murderers, no matter if they have escaped the severity of a human court of law.
10. Nor is it to be thought necessary that a man should suffer the same thing which he has inflicted on another, or in other words that misdeeds always be punished by talion. For there are a great many crimes with which that kind of punishment does not at all square. For how would you conveniently punish adultery, lewdness, vile forms of copulation, crimes of lese-majesty, and the like by talion? Now in most crimes that punishment would be lighter than is just, and it would not adequately attain the end of punishments, which is to safeguard the security of each of us. For on that score the status of insolence would be better than that of innocence, if, indeed, the former should fear nothing more from the laws than the latter from the malice of evildoers, while in addition there was the dominating hope of avoiding punishment either by deceit, or by flight, or in some other way.
11. Nevertheless, in this point, as far as is possible, an equality is to be observed in punishments, namely, that those who are equally guilty should suffer equally, and the misdeed which in the case of one is punished, should not in the case of the other be condoned, without a very weighty cause;6 since, forsooth, an inequality of that kind frequently furnishes matter for dangerous disturbances to commonwealths; and punishment which seems to be meted out, not for the public welfare, but for private satisfaction, lacks its proper effect. For the rest, that equality is to be understood of the same misdeed, not of different ones. For frequently in a human court of law, due to the necessity of the commonwealth or the free choice of legislators, a rather severe penalty has been assigned a misdeed which in itself appears somewhat light, and vice versa, but the accused cannot by any means allege this inequality, as though he were being unfairly dealt with, for, of course, he knew it beforehand, and, in having subjected himself to the magistracy, he is regarded as having himself approved of it. Thus, for example, although the crime of theft be in itself far lighter than homicide, nevertheless the thief has no cause for complaint if he himself, who has not committed things equally guilty with the murderer, should nevertheless suffer equal punishment with the same, namely, capital punishment. The reason for this is that punishment is imposed separately, as it were, for the individual misdeeds, in that quantity which the advantage of the commonwealth seems to demand, and it ought not necessarily to be attempered to the punishment of other misdeeds of a different kind, in such wise, that, as the gravity of one misdeed stands in relation to the gravity of the other, so the punishments for the same ought to correspond with one another. This is because, of course, the measure of punishments in a human court of law is not alone the gravity of the misdeeds in themselves, but it is that conjoined with respect to the advantage of the commonwealth. Thus, also, there are many misdeeds, of which one, although worse than another, is yet equally punished with death, because a more grievous punishment than death cannot be found, except that sometimes, when the misdeed has been very atrocious, tortures precede death. As for the rest, that equal punishment be rightly imposed upon those who commit the same misdeed, regard must assuredly be taken of the condition of the persons, for this has the utmost force in intensifying or diminishing the punishment. Thus the ignominy which to some very common man is a slight misfortune, affects most severely the eminent man, and the fine which is light for a man of means, will turn the humble man out of all his fortunes. All these points are to be carefully observed by him who has set his heart upon properly attempering punishments of that kind.
12. From all this it is easily understood how far there is incumbent upon the magistrate the obligation to inflict punishment, so that, namely, quite as much in the very exercise of the punishment, as in its determination relative to quantity, the good of the state may be advanced; and when this good urges the contrary, it is not to be believed that he is altogether bound to inflict punishment. And so, if one who has suffered injury calls upon the magistrate in regard to it, if, indeed, he obtains the restitution of the damage, but because of the condition of the commonwealth it should not appear wise to the magistrate to inflict an additional punishment upon the injurer, the magistrate does by no means derive the guilt of the misdeed upon himself, nor does the injured party have reason to complain of justice denied himself, because he could not satisfy his grief or his vengeance. Thus, when a man on committing a crime in one state has fled to another, the magistrate of the latter state is bound, indeed, to see to it that he give satisfaction for the damage done; but that he should give him over to corporal punishment, or himself punish him, is not necessary, unless definite considerations tending towards the advantage of the commonwealth persuade him; especially since the former state has still the faculty of proceeding against him with moral and notional punishments. This much with regard to human actions in genus. The consideration of the same in species is excluded by the narrow limits of this work. ,
THE ELEMENTS OF UNIVERSAL JURISPRUDENCE BY SAMUEL PUFENDORF BOOK II
[1. ] See bk. II, Observ. 4, §19.
[2. ] Pufendorf follows the Grotian definition of punishment as both retaliatory and utilitarian according to reason (see bk. I, Def. 12, note 44). Blind satisfaction of anger, on the other hand, results from an instinct man has in common with beasts (Grotius, JBP, II.xx.5). The real end of punishments and the sole measure of its degree is as a precaution against injury, and this is secured by reforming the offender, protecting the victim and society against further injuries, and deterring others, thus strengthening the authority of the state and its laws (JNG, 8, 3, §§9, 11–12; JBP, II.xx.6).
[3. ] Cf. JNG, 8, 3, §§1 and 4. §1 discusses whether the right to exact punishment—a harm inflicted upon someone against his will—may arise from a voluntary transfer in a pact. Following Hobbes, De cive (chap. 2, §18; chap. 5, §§7ff), Pufendorf explains it as the result of the individual’s obligation in the pact of submission not only to refrain from defending others against the sovereign but to put his strength at the latter’s disposal to coerce others.
[4. ]Dig., I.v.5, §2.
[5. ] Cf. JNG, 8, 3, §26, where Pufendorf refers to Grotius’s commentary on Matthew 5:40 and Genesis 9:6 (Opera omnia theologica, vols. I and II).
[6. ] Cf. JNG, 8, 3, §23. The sovereign’s liberty in defining the measure of punishment according to public utility does not refer to individual cases, but to the threat of punishment contained in the laws; as a rule these should be applied equally to equal cases. See also ibid., §§4 and 7: “not every evil, inflicted because of an antecedent sin, is a punishment, but such as has been announced in advance, and was imposed after cognizance was taken of the crime.”