Handbook of Ethical Theory | Page 5

expect of them the judgment that guilt
should be punished. But what shall be accounted guilt? What shall be
the measure of retribution? Who shall be fixed upon as guilty?
As to what constitutes guilt. We have only to remind ourselves that the
Dyak head-hunter is not condemned by his fellows, but is admired;
[Footnote: WESTERMARCK, The Origin and Development of the
Moral Ideas, London, 1906, I, chapter xiv.] that the fattening and
eating of a slave may, in a given primitive community, be accounted no
crime; [Footnote: WESTERMARCK, _op. cit._ II, chapter xlvi.] that
infanticide has been most widely approved, and that not merely in
primitive communities, for Greece and Rome, when they were far from
primitive, practiced certain forms of it with a view to the good of the
state; [Footnote: _Ibid._, I, chapter xvii.] that the holding of a
fellow-creature in bondage, and exploiting him for one's own advantage,
even under the lash, was, until recently, not a crime in the eye of the
law even in the most civilized states. On the other hand, it may be a
crime to eat a female opossum. [Footnote: _Ibid._, I, chapter iv, p. 124.]
The impressive imperative: Thou shalt not! appears to bear
unmistakable reference to time and circumstance.
And what is the natural and proper measure of punishment? The
ancient and primitive rule of an eye for an eye and a tooth for a tooth
suggests the figure of the scales, the impartially meting out to each man
of his due. It is obviously a rule that cannot be applied in all cases. One
cannot take the tooth of a toothless man, or compel a thievish beggar to
restore fruit which he has eaten. We should be horrified were any
serious attempt made to make the rule the basis of legislation in any

civilized state today, but men have not always been so fastidious.
Approximations to it have been incorporated into the laws of various
peoples.
But all have modified it to some degree, and the modifications have
taken many forms--the punishment of someone not the criminal,
compensation in money or in goods, incarceration, and what not. Nor
have the modifications been made solely on account of the difficulty of
applying the rule baldly stated. Other influences have been at work.
Thus, in the famous Babylonian code, the man who struck out the eye
of a patrician lost his own eye in return, and his tooth answered for the
tooth of an equal--but the rule was not made general. [Footnote: 5
HOBHOUSE, _Morals in Evolution,_ I, chapter iii, Sec 3; New York,
1906.] In state after state it has been found just to treat differently the
patrician, the plebeian, the slave, the man, the woman, the priest. In the
very state to which Butler belonged, benefit of clergy could be claimed,
up to relatively recent times, by those who could read. The educated
criminal escaped hanging for offences for which his illiterate neighbor
had to swing. [Footnote: _Ibid.,_ Sec. 11.]
Nor is there any clear concensus of opinion touching the question of
who shall be selected as the bearer of punishment. If a man has injured
another unintentionally, shall he be held to make amends? It has
seemed just to men that he should. [Footnote: WESTERMARCK,
chapter ix.] That one man should be made responsible for the misdeeds
of another, under the principle of collective responsibility, has
commended itself as just to a multitude of minds. Not merely the sins
of the fathers, but those of the most distant relations, those of neighbors,
of fellow-tribesmen, of fellow-citizens, have been visited upon those
whose sole guilt lay in such a connection with the directly guilty parties.
This is not a sporadic phenomenon. Among the ancient Hebrews, in
Babylonia, in Greece, in the later legislation of Rome, in medieval and
even in modern Europe, the principle of collective responsibility has
been accepted and has seemed acceptable. Asia, Africa and Oceania
have cast votes for it. So have the Americas. [Footnote:
WESTERMARCK, I, chapter ii; DEWEY AND TUFTS, Ethics, New

York, 1919,

Part I, chapter ii.]
5. THE CODES OF COMMUNITES: VERACITY.--As to veracity: It
has undoubtedly been valued to some degree, and with certain
limitations, by tribes and nations the most diverse in their degrees of
culture. Did men never speak the truth they might well never speak at
all. But to maintain that absolute veracity has at all times been greatly
valued would be an exaggeration. The lie of courtesy, the clever lie, the
lie to the stranger, have been and still are, in many communities both
uncivilized and more advanced, not merely condoned, but approved.
With the defence which has been made of the doctrines of mental
reservation and pious fraud students of church history are familiar. In
diplomacy