Journal of Criminal Law and CriminologyVolume 24Issue 4 November-December Article 8

Winter 1933

Element of Vengeance in Punishment, TheArnold D. Margolin

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Recommended CitationArnold D. Margolin, Element of Vengeance in Punishment, The, 24 Am. Inst. Crim. L. & Criminology 755 (1933-1934)

THE ELEMENT OF VENGEANCE IN PUNISHMENT

ARNOLD D. MARGOLIN'

Almost all contemporaneous criminologists have abandoned thetheories of the "bad will." The conviction that crime is a direct andnatural result of definite conditions of heredity and environment isconstantly becoming more firmly established. Penal statistics revealan immediate causal connection between the economic factors of lifeon the one hand and the number and nature of crimes on the other.The significance of such factors as age, sex, climate and seasons ofthe year is also being more and more explored and many investiga-tions have been undertaken to analyze and define the influence of otherfactors on crime. The nature of crime and the person of the criminalare today a scientific study and the deterministic point of view is beingconstantly applied by modem criminologists and sociologists in theirendeavors to explain the origin and the roots of crime as a socialphenomenon.

This last statement, unfortunately, does not apply to the methodsand means used by the same criminologists with regard to the studyof punishment. If freedom of will is denied those who commit crimes,it must with equal reason be denied those who determine the kindand measure of punishment, and those who inflict punishment. Inreality, however, the field of scientific observation is limited to crimeand the criminal. Few attempts have been made to determine theinfluence of the personal make-up of legislators and of their surround-ing conditions on their legislative activities. Still less has been donewith regard to investigating the factors which predestinate the views,beliefs and acts of judges. While we deny freedom of will in general,we seem to grant it to the bench and to the jury. It seems certainhowever, that the so-called inner conviction of the judge depends toa large degree on his views and feelings, and that these, in their turn.are dependent on his hereditary properties, inclinations and previousexperiences. The individual characteristics of the judge play, a tre-mendous role in his work, especially within the limits which are leftto his discretion by the legislators.

Criminal statistics must not be one-sided. Their task cannot belimited to the study of crime alone. The real nature of punishment

IMember of the Massachusetts Bar. Former Justice of the Supreme Courtof the Ukraine.

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must be explored with the same audacity and definiteness. Theremust be no inviolable regions, no holy or tabood ground upon whichscientists dare not tread. Every human being, criminal or non-crim-inal, must equally be considered a subject for scientific observation.It is indisputable that if such factors as climate, religion, and inborntraits leave their impress on a murderer or thief, they must also in-fluence in one way or another the acts of non-criminals,-of so-calledlaw-abiding citizens. The law of causation does not know exceptions;all are equal before this law.-For instance, it is known and cor-roborated by statistical data that jurymen are more inclined towardleniency and the recognition of attenuating circumstances than judges.Defense attorneys gradually acquire views and attitudes towardspunishment totally different from the views and attitudes of pros-ecuting attorneys. It is evident that recidivism has an influence notonly on criminals but also on judges. Parallel to the fundamentaldifference between professional criminals and criminals by accident,there exists a fundamental difference between the views and psy-chology of professional judges, and of jurymen.

An involuntary, or rather subconscious, pietism towards theposition of powerful officials, judges and stAte prosecutors con-stitutes an unseen impediment or obstacle which diverts the observa-tion of investigators from these upper classes of society, and directstheir explorations more or less exclusively towards the world ofcrime, prostitution and pauperism. Criminologists must free them-selves of this pietism. Like a student in the field of the exactsciences, criminologists must explore all the angles of their field,not only those which are labelled criminal or abnormal, but also thosewhich are considered normal and sane.

Present-day punishment is a conglomeration of all kinds ofhistorical strata. There is no doubt that the punishment of the futurewill be different from present-day punishment, just as punishmentin our penal codes today differs from primitive forms of punishmentin the embryonic periods of human society. This does not mean,however, that there is no stable, permanent element in punishmentwhich always has been its very basis, its foundation. Such an ingredi-ent, basic element can be usually found in all social institutions.Let us take marriage for an example. History knows many differentsocial forms regulating the inter-relations of the sexes. There is anabyss dividing the Roman confarreatio or coemptio from the periodsof primitive polyandry and polygamy. There also is an essential dif-

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ference between the old Roman forms of marriage and our modernsystems of marriage. It would be erroneous, however, to concludethat there is no essential element in present-day marriage which wasnot fundamental and indispensable in primitive forms of sexual in-terrelations. Marriage may evolve more and more in the directionof moral and ethical perfection. Nevertheless, its most essentialfeature is the element which creates its very existence, and this elementalways has been, is and will be the physical attraction of sexes. Thelaw of domestic relations is nothing but the attempt to utilize andregulate this elemental trend towards sexual intercourse and reproduc-tion in the interests of human society.

The same can be said about other social institutions. The lawof property aims at the solution of the relations of human beingswith respect to land, buildings, chattels. The very right of humanbeings to possess, use and dispose of all these immovables and mov-ables cannot be justified, however, by logic; this right is accepteda priori, as something which always did exist and exists at the presenttime. This right was formulated in the earliest stages of Romancivilization in such a few words as "beati occupantes" and "beatipossidentes". Similarly, the law of inheritance regulates the fate ofthe estates of deceased persons. Yet, the fundamental element of thislaw is the natural feeling of love of parents to children and otherrelatives, and the elemental urge of transmitting to them all the ac-cumulated material wealth.

In studying the origin and foundation of punishment, one mustinevitably and frankly conclude that the basic and most essentialelement of punishment during all stages of human history is theurge of vengeance on the part of the person or persons who sufferedfrom the transgressor of the custom or of the law in question.

Historians of criminal law-Tonnisen, Tissault, Du-Bois,Loiseller and others,--all recognize that originally vengeance was thesole parent of punishment and that it remained so during the erapreceding the legislation of Moses. On the other hand, the majorityof these historians and of professional criminologists affirm that sincethe proclamation of the principle "an eye for an eye and a tooth fora tooth", justice has replaced vengeance as a foundation of punish-ment. Among the German philosophers, Zacharie was especiallyenthusiastic about the moral value of the principle of retaliation, andsaw in it the embodiment of the idea of highest justice. The cate-goric imperative of Kant, the dialectic retaliation of Hegel, as wellas the "aesthetic" demand for punishment of Herbardt are alsofurther identification of this principle of Mosaic law with the concept

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of higher justice by these creators of the so-called absolute theoriesof punishment.

Naturally, it has to be admitted that the principle: "an eye foran eye" was the first limitation upon the unrestrained, unbridledthirst for vengeance. When punishments are, really, based on thisprinciple, then the word "retaliation" seems to describe more exactlythe character of such punishments than the word "vengeance". But,nevertheless, retaliation is not and should not be confused with theidea of absolute justice. The affirmation that this "retaliating justice"is the sole essence of punishment, has no justification in fact. Historyhas proved that punishment as such is not a stable, unchangeableconcept, but that it reflects in itself the movements and variationsof intellectual and moral progress or atavistic regress ini humancivilization. Even a single influential thinker could cause the incor-porations of his views and theories into a new penal code, as is illus-trated by the Bavarian Penal Code of 1813. Feuerbach, its authoradopted as the foundation of punishment in this Code his theory ofintimidation. Feuerbach, however, was mistaken in his belief thathe had eliminated from this Code all other concepts of punishment.He believed, erroneously, that more severe punishment was necessaryfor homicide than for larceny, in order to deter and restrain trans-gressors. Logic dictated to Feuerbach the thought that punishmentmust be utilitarian, that is, that the state must try to diminish thenumber of crimes by means of punishment. But what was it thatcaused Feuerbach to revert to this ancient standard of making thekind and measure of punishment correspond to the value of harmdone? Feuerbach justified this system of kinds and grades of punish-ment by the assertion that intimidation can be effective only if thepunishment in each case would threaten greater suffering to thecriminal than that which would be caused to the victim of the crime,or, in other words, that the suffering which threatens the trans-gressor should be proportionally larger than the benefit the criminalmight derive from the crime. This justification, however, was arti-ficial, and was the result of the desire to explain by utilitarian reasonsthe old essence of punishment.

What motivated Feuerbach in his creation of his theory?The truth is that Feuerbach, without his realization, followed

the dictates of his own subconscious emotions or feelings. Thesecmotions were the same as those which made the primitive mandesire revenge in a measure proportionate to the harm inflicted uponhim by the transgressor. Therefore, despite Feuerbach's assertionto the contrary, there can be no doubt that the fundamental element

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of punishment in the Bavarian Code of 1813 was vengeance. Infact, Feuerbach exceeded the idea of retaliation, inasmuch as hisCode threatened criminals with a greater measure of suffering thanthat which they might impose upon their victims. It is evident thatnot only Christian but even Mosaic principles failed to penetrateinto the codes of Feuerbach's era, and that two eyes were to be takenfor one eye, or three teeth for one tooth.

The utilitarian theory of Feuerbach is the first of the so-calledrelative theories of punishment, that is, of the theories which seethe necessity of punishment not as some absolute, abstract principleof justice, but for the utility which it is supposed to achieve.

The utilitarian element, however, is present even in the reactionof primitive man who takes "justice" into his own hands when someother person or persons attack him or his property. This aspect ofutilitarianism appears when the person attacked can still prevent theaccomplishment of the transgressor's intention by making a counter-attack. Self-defense is the main motive of such reflexes. The ele-ment of vengeance becomes a secondary one during the period of thecounter-attack. Only later, after the original attack is repulsed, the'instinct of revenge becomes strong and justifies, in the eyes of theperson who was attacked, the results of his self-defense. "Youwanted to kill me, so I paid you for this attempt," is the thought andfeeling of primitive man when he victoriously puts his foot on thebody of the dead aggressor. At this moment, this is rather thevoice of vengeance than the voice of .self-defense. We see, in otherwords, two elements, both present as motives of the reflex of counter-attack: self-defense and revenge. This illustrates that the utilitarianideas which are the basis of relative theories of punishment are notnew, and were characteristic even of the caveman. There is nothingunnatural in this situation; the most primitive, savage person is movedin his acts not only by revengeful emotions or feelings but also byreason, by logic. The emotional part of organism dictates vengeance;on the other hand, reason dictates self-defense or the defense of one'sown interests as the primary motive of the counter-attack.

When, however, punishment becomes a function performed bythe state, replacing the individual, the utilitarian element of punish-ment becomes still more significant. Its influence on the work ofthe legislator can be found in the most ancient codes. Neither Greekand Roman utilitarian thinkers, nor Bentham, the father of scientificutilitarianism in the domain of criminal law, nor his followers, haveproposed anything that was new or unknown to mankind. It is true

ARNOLD D. MARGOLIN

that they strengthened the utilitarian element in penal systems as oneof the elements of punishment. Their assertions, however, that theessence and form of punishment are entirely based on utilitarianprinciples cannot withstand serious criticism. As has already beenindicated, Feuerbach's Code fixed the kind and measure of punish-ment corresponding to the value of the attacked interest. Such a"proportional" interdependence between crime and punishment cannotbe based on or explained by the one element of intimidation as thesole foundation of punishment.

The same can be said about another utilitarian idea-the idea ofimproving, or reforming the criminal by applying punishment to him.This theory of reformation is the second of the relative theories ofpunishment.

There is no logic, no reason in the assertion that a more severepunishment is necessary for the reformation of a murderer than itis for a thief. On the other hand, capital punishment which is pre-served in most of our modem codes as the highest measure certainlyhas nothing to do with the idea of the reformation, of the improve-ment of the criminal. One can hardly say that one who has com-mitted murder of the first degree for the first time in his life, cannotbe reformed, whereas a recidivistic thief can be considered as asubject fit for reformation. The difference in the kinds and measuresof punishment is derived not from logical, reasonable grounds, butrather reflects the different prices asked by vengeance for differentgrades of sufferings or losses caused to the victims of the crimes.

The third relative theory of punishment is the theory of isolatingcriminals from society. Its authors and adherents forget, however,that they themselves would not insist upon the application of isolationto all crimes and all criminals. What place has the fine, for example.in this idea? And how can temporary imprisonment be regarded asisolation for an inborn criminal or a professional recidivist?

The number of adherents to any single one of the utilitarianprinciples as the foundation of punishment becomes less and less.Contemporaneous representatives of the relative theories demand moreand more that the penal system combine all three elements: intimi-dation, reformation, and isolation. We will discuss the views ofthese eclectics of utilitarian theories when we consider the anthropo-logical and sociological schools of thought.

The so-called mixed theories of punishment attempted to pacifythe extremes of the absolute and relative theories by combiningthem into theories which contain both absolute and relative elements

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in their inter-relation one with another. They all ignored, however,the element of vengeance in their analysis and explanations of thetrue origin and essence of punishment.

A multitude of historical and philosophical investigations haveproved that the existence of a permanent evolution is the essenceand character of all social institutions. The bankruptcy of absolutetheories naturally followed, and there are few representatives ofthese theories among modern criminologists. The most outstandingamong them in the second half of the nineteenth century were theGerman jurists Berner and Binding, although contemporaneous crim-inologists consider them representatives of mixed theories. The over-whelming majority of present-day scholars in the field of criminallaw are adherents of relative theories. A goodly number of them goeven further and believe that all the elements of punishment willconstantly change parallel to the evolution of ideas and foundationsof our social life. Some of them repeat the old formula of theGreek philosopher: "all flows, nothing remains."

On the other hand, anthropological and sociological investigationsgradually changed the attitude of criminologists towards this wholequestion of the foundation of punishment. These investigationsdiverted the attention of students of criminal law from the questionof crime to the question of the criminal.

The head of the anthropological school, Lombroso, presented inhis main, capital work: "Homo delinquente", the division of crim-inals into the following groups or categories: (a) inborn criminals;(b) criminals by habit or professional criminals; (c) criminals byaccident; and (d) abnormal criminals, i.e. criminals with someorganic or psychic defect. Although differing from Lombroso inminor details, all other representatives of the anthropological schoolaccept Lombroso's basic classification.

The sociological school, in its turn, sought the causes of crimenot so much in the person of the criminal as in the environmentwhich surrounds him, in the conditions of his life. Montesquieuespecially emphasized in his essays this influence of surroundingconditions upon the behavior and acts of any individual. The realcreator and father of the sociological school in criminal law was,however, the eminent Belgian thinker and statistician, Kettle. Thehighest development and fullest bloom of this school was achievedwith the appearance of the works of Ferri, Garofalo, Sighele, Tardeand other sociologists, during the end of the nineteenth centtry andthe beginning of the twentieth century.

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At the present time, most sociologists accept some views andconclusions of the anthropologists, in addition to their sociologicalbeliefs. So, the prevailing school of our day is the anthropological-sociological. In accordance with the teachings of this school, moderncriminologists seek ways and means to counteract not crime butthe following phenomena: the inborn inclination to commit crimes;the acquired habit to commit crimes; coincidence of various cir-cumstances conducive to and resulting in crimes; mental and physicaldiseases; over-population of cities and depopulation of rural com-munities and villages, pauperism and starvation, etcetera.

The measures for combatting all these phenomena are classifiedinto two groups: repressive and preventive.

These are the repressive measures: absolute isolation-for in-born criminals; isolation, and partly-reformatory measures-forhabitual criminals; reformation and, in certain cases, probation withsuspended sentences-for accidental criminals; medical treatment-for mentally defective criminals. All these measures are but a com-bination of elements which were considered as the desirable founda-tion of punishment by the representatives of relative theories.

So far as the preventive measures are concerned, they havenothing immediately in common with punishment. A successfulattempt to wipe out unemployment, pauperism or prostitution mayconsiderably diminish the number of crimes. These prophylacticmeasures have a tremendous significance. But there is no necessityof analyzing them here.

As we have seen, the anthropological-sociological school did notbring any new elements into the foundation or essence of punish-ment. This school, however, threw much light upon the under-standing of the origin of crime, pointing out diverse conditionswhich conduce to and create crimes.

Our brief review of the theories of the foundation of punishmenthas indicated that all these theories were based by their authorsexclusively on the postulate of a reason, on logical grounds. Thesetheories entirely ignored the existence of human instincts, emotions,passions. Naturally, such an attitude is purely abstract and is possibleonly in books or lectures. When the same theorist participated in thepreparation of a penal code, he could not avoid the necessity ofbuilding the system of punishment upon the old basis. This basiswas and remains the proportional correspondence between thevalue of the interests attacked by the criminal, on the one hand-

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and the kind and measure of punishment, on the other hand. Thismeans that, as legislator, the theorist had to take into account theurge for revenge which is felt by the majority of the population inany country of the world towards the transgressors of the establishedrules of political, economic or social life.

There have been, however, a few attempts on the part oflegislators to eliminate this element of blind vengeance from someparts of penal codes. We will analyze one of these few exceptions,perhaps the most important and significant of them, with the purposeof demonstrating the futility and practical failure of such attemptsby law-givers to go "against the current", to ignore the fundamentalviews and feelings of the average man and woman in, their respectivestates of communities.

An attempt to commit a crime is punished less severely than anaccomplished crime in almost all existing penal codes. The French"Code Pnal" is an exception to this rule; its Section 2 fixes thesame kind and measure of punishment both for an attempt and for acompleted crime. The result of the attempt is ignored by this section.The criminal bears full responsibility and is threatened by the fullmeasure of punishment purely for the attempt to commit a crimewhich he commenced to fulfill, irrespective of the success or failureof his attempt. In other words, the French Code bases the measureof responsibility exclusively upon the subjective element, on thebad will or intention, entirely disregarding the objective element orthe results of the attempt. Let us see, hpwever, what is the reactionof French judges and jurymen when they face the necessity of apply-ing this Section 2 in practice.

The "Code Pnal" has existed and has been applied for morethan a century, and it can be stated that there is no other sectionof this Code which has been as much disobeyed and evaded by judgesand jurymen as Section 2. Capital punishment has been frequentlypronounced and applied when the premeditated intention to accomplisha murder resulted in the death of the victim. In every case, however,where death did not result from the attempt, the French jury alwayshas found some way to avoid the dictates of law, not hesitating evento mutilate or alter the real facts, by denying the presence of pre-meditation, by rejecting some other aggravating circumstances orby creating the presence of some attenuating circumstances. Inshort, all measures have been undertaken with the purpose of mitigat-ing the punishment for an unfulfilled attempt. On the other hand,

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there is no such striking divergence between the views of legislatorsand judges in all other countries, where the law provides differentmeasures of punishment for an attempt on the one hand, and anaccomplished crime on the other hand.

It is evident that the average person will often disapprove themost logical concepts of the legislator, if the latter ignores theformer's inborn instincts, emotions and natural reflexes.

The following two simple cases will illustrate this situation,(1) Peter, intending to kill Paul, thrusts a knife into him.

Paul dies.(2) Simon, intending to kill Saul, thrusts a knife into him.

Saul does not die.Let us assume that Peter and Simon acted with the so-called

premeditation, that the motives for their acts were identical, thatthe power of the strike and all other circumstances were exactlythe same, and that Paul died, whereas Saul did not die, merely be-cause of the remarkable vitality of Saul.

The French jury would be inclined to render a verdict of guilty,leading to capital punishment, in the case of Peter. The same juryhowever, would abhor the thought of giving a similar verdict in thecase of Simon, and would invent some fiction to evade the directdictates of Section 2, denying either premeditation on the part ofSimon or some other actual, material fact.

This attitude of the jury is only human and natural and itreflects the views and feelings of the average !man. An equal,identical punishment for Peter and Simon would arouse a feelingof dissatisfaction on the part of Paul's relatives and friends. Theaverage person takes into account the results of the crime much morethan the intention of the wrong-doer. Paul's father or wife wouldfeel wronged if Peter and Simon were to receive the same measureof punishment, inasmuch as the neighbor's son or husband, Saul, hadbeen only "scratched" whereas Paul, "his Paul" or "her Paul" hadbeen killed.

Most legislators feel or know that the majority of humanbeings react differently to the attempt as compared with the ac-complished crime. This explains why almost all penal codes establisha lesser punishment for the attempt than for the fulfilled crime.Legislators are inclined, however, to justify this difference by logicalgrounds. The representatives of the absolute theories say: Thegreater the harm done, the greater the retaliation for it. Due to thisobjective view, the adherents of absolute theories were also called

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"objectivists." On the oiher hand, the pure utilitarians were called"subjectivists" because they claimed to take into consideration onlythe element of intention, i.e., the subjective element of the crime.The utilitarians can, indeed, find no justification for this differencebetween punishments for an attempt and for an accomplished crime.

The mistake of both objectivists and subjectivists is the samein this case as in their whole attitude toward the foundation ofpunishment: They ignore human feelings, instincts and emotionsand seek to base punishment only upon metaphysical or utilitariangrounds.

The legislator, however, cannot ignore the wishes, inclinationsand views of the majority of the population. Punishment becameone of the functions of the state among many other functions whichfirst had been performed by the individual involved or by membersof his family, later by the tribe, and finally by the state. The state,therefore, represents the interests of the victim in criminal cases.The late German criminologist Binding said so well in his "Normen :""Punishment is not so much the right of the state as it is its duty,and a very serious duty." From our point of view, the main essenceof this state duty consists of the necessity of satisfying the thirst forrevenge which is felt by the victim of the crime and by his relativesand friends and, though in a more remote way, by the majority of thepopulation among whom the victim lived or lives. Where this neces-sity of satisfaction does not seem to be absolute and urgent in thevictim, the state prefers to wait until he or she has asked the stateto act in his or her behalf, that is, to prosecute and punish the trans-gressor. This hesitating attitude is taken by legislators toward thoseoffenses which are supposed to cause a desire for revenge only amonga small part of the population. Slander is an example of such aminor offense. Honor seems to have a greater value than life orproperty only among the minority of the population. There is nodoubt that only a few would feel very indignant and revengefulif called "a fool" by some irresponsible or drunken person. Thestate, therefore, does not interfere in such petty cases of its owninitiative, leaving the question of prosecution and punishment tothe discretion of the victim of the offense.

The prosecution of the criminal by the state is also conditionedupon complaint by the victim in cases where the prosecution maybecome a double-edged sword, that is, may cause disagreeable resultsnot only for the criminal but also for the victim. To this categoryof crimes belong rape and family theft. It is only to be expected

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that a woman who has been raped will often prefer to leave theviolator unpunished than to expose herself to the painful and dis-graceful publicity. It often happens that a father does not want toprosecute and disgrace his son for the theft of his property. Thestate hastens to say to itself in such cases: "Hands off." This

abstinence of the state is the result of doubt on the part of the legis-lator that the majority of the population would insist on punishinga petty offense, a doubt that most parents would be willing todisgrace their children for the commission of a domestic theft anda doubt that most victims of rape would be eager to prosecute theirattackers and thus unavoidably expose the crime.

Vengeance is, evidently, not only the fundamental element ofpunishment, as stated in this article; it is the dominating element ofpunishment even at the present time. The state is willing to close itseyes to the crime and to display is disinterestedness when there is aground for assuming that the victim does not care for the revenge

or will injure himself by the revenge.

One may say, in objection to this statement, that there are somepersons in every community who have no desire of being avengedfor serious offenses, such as larceny, robbery or arson. The answeris that the state cannot make prosecution and punishment dependentupon the complaint of victims of those crimes which invoke thewrath of the overwhelming majority of the population and arousetheir insistence upon revenge. The state must give satisfaction tothese instincts and feelings of individuals, in order to prevent the"taking of justice in one's own hands" by the individuals or bythe mob.

Another objection which may be raised against the assertion thatvengeance plays the prevailing role and has the utmost significancein the institution of punishment is the fact that the state provides

severe punishment for the so-called political crimes where there isoften no place for the feeling of personal revenge on the part of anindividual or individuals. The infringement of the interests of thestate, of political or social interests, however, injures the feelingsof the groups which support the state and the existing regime.These groups are composed of human beings, all of whom havehuman instincts and inclinations.

It would be erroneous, nevertheless, to come to the conclusionthat the role of the state in the institution of punishment has beenand is only a blind, obedient reproduction of the reflexes of anaverage person who happens to be the victim of the crime. Even

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such an ancient system of punishment as is presented in the Mosaiclaw takes under its protection persons who committed homicides bytheir negligent behavior or by accident, without the "dolus" or in-tention of killing. Such persons found legal refuge; they werehidden by the state authorities in special locations, away from theire and vengeance of the relatives of the victim who did not at thattime distinguish a homicide by negligence or accident from anintentional homicide. On the other hand, murderers were not pro-tected in this way, and were exposed to the "popular justice", tothe most brutal execution by relatives of the murdered person or bythe mob. Criminal codes contain many other examples of such at-tempts on the part of legislators to mollify the unrestrained brutalmob reactions and to bring the boiling torrent of instincts of ven-geance into definite channels.

History and the constant evolution of social order give founda-tion for a hope that punishment will gradually become milder andmilder and that legislators will give more and more consideration tothe utilitarian aims which can be achieved by punishmept. The mainessence of punishment, however, will always be vengeance.

A frank recognition of the origin and essence of punishmentwould eliminate the problem of its artificial justification by all kindsof fictions, as raised by the determinists. The postulates and demandsof revenge are even more understandable from the deterministicpoint of view than from the point of view of those who believe inthe freedom of human will. Just as crime is the result of theinborn properties of criminals on the one hand and of surroundingenvironment on the other hand, so also punishment is the unavoidablereflection of the passions and instincts of the "avenging" majorityof humankind on the one hand, and of the surrounding conditionsof the social life on the other hand. Just as the "criminal" or I'sick"or "abnormal" minority cannot restrain itself from committing crimes,so the "non-criminal", "sane", "normal" majority cannot restrainitself from the instinctive desire of avenging the transgressors forthe harm or wrong done. This "avenging" majority will finally findits Kettle and Lombroso who will explain the genesis and characterof punishment from the deterministic point of view just as Kettleand Lombroso and their successors explained the genesis and char-acter of crime with regard to the "criminal" minority of mankind.