II. WHY CRIME?

If Smith buys into the Humean “science of man” (Phillipson Reference Phillipson2010), he also buys into the Humean idea of a philosopher as an “anatomist,” someone who just describes how things are, rather than as a “painter” who shows how they should be (C. Smith Reference Smith2018). Smith’s primary concern is thus with the understanding of how we develop and use moral judgment, rather than with teaching people how to act, as his teacher Francis Hutcheson and his contemporary Adam Ferguson, for example, did (Campbell Reference Campbell, Berry, Paganelli and Smith2013). The recognition of Smith’s description of a natural basis of justice (Haakonssen Reference Haakonssen1981) is unambiguous in the literature, even if some see it as a fault in Smith’s theory (Fleischacker Reference Fleischacker2005) so big that it may have prevented Smith from completing his third planned book on jurisprudence (Griswold Reference Griswold1999), while others see it instead as an application of what Frank Knight (Reference Knight1944) would later call a “relative-absolute” (Rizzo Reference Rizzo2020). Smith does not seem interested in identifying universal principles of justice. Instead he is interested in their formation and use, which may vary with their historical context but which work as if absolute within each individual context.

Smith needs to find what is fixed and what is contingent in human behavior (Smith Reference Smith1982, “History of Metaphysics”). He identifies a few characteristics that are constant in people across time and place—characteristics of human nature. What is relevant for us here is that human beings want to be, and we believe we are, the center of the universe and that all revolves around us (Reference Smith, Raphael and Macfie TMS III.iii.3–4, pp. 135–136): we want people’s attention, we want their love and esteem. We naturally want to be the (proper) object of the approbation of others, but we are also naturally biased by our self-love.

The desire for approbation is one of those universal first principles from which Smith derives the explanation of complex social phenomena and the possibility of formulating general laws.Footnote ¹ Smith clarifies that the desire to receive the approbation of others is related to, but not the same as, the desire to be the proper object of approbation. That is, we desire to be approvable, not just approved. The desire to be approved is derived from our innate desire to be approvable. We learn to become the proper object of approbation by observing and replicating approvable conduct in others, and by observing real or imaginary others looking at our own conduct. Becoming the proper object of approbation, as Smith describes it, is a lifelong process and never fully achieved (Reference Smith, Raphael and Macfie TMS III.3).

For Smith, our self-love makes us believe that things that are close to us are bigger than they are, and things that are farther away are smaller than they are. The loss of a little finger for us is more important than the loss of the distant population of China. The “eye of the mind” needs to learn with experience how to correctly perceive distances, which means that we need to realize we are not the center of the universe but just one in a multitude (Levy Reference Levy1995; Paganelli Reference Paganelli2017). This is achieved, in part at least, through the interaction of another innate sentiment: our desire to be lovely and not to be hateful, our desire to be approvable and not to be the proper object of disapprobation. Our desire to be lovely counterbalances our self-love and helps us lower the pitch of our passions so that we can gain the approbation of others, either a physical other or an imaginary other. This imaginary other, or what Smith calls the “inhabitant of our breast” or the “man within,” is a spectator of our actions who learns to distance himself enough from us to become impartial in his judgment. He is a hypothetical individual, who is independent and unconnected with the facts and persons involved, whose opinion represents that of humanity in general and one that could be shared by each man. He is an invisible advisor who helps us moderate our passions and develop moral conduct (Reference Smith, Raphael and Macfie TMS III.iii.4, p. 137; Reference Smith, Raphael and Macfie TMS VII.ii.1.44, p. 292). The approbation of this spectator is the mechanism Smith adopts to give an objective value to an essentially subjective morality. So we cannot find a villain on earth willing to keep their little finger at the expense of the destruction of the entire population of China (Reference Smith, Raphael and Macfie TMS III.3.5, pp. 136–137). The impartiality of this spectator, though, is never perfectly achieved, since we, as humans, are not perfectible.

One problem we encounter with the development of our impartial spectator is that we naturally admire the rich and thus we may conflate wealth with virtue. Indeed, according to Smith, we gain approbation in two ways: by being moral and by parading our wealth. We naturally admire a just and virtuous man, just like we naturally look up to the rich and we look down on the poor. We want the rich in the spotlight and we do not want to see the poor. A poor person is ashamed of his poverty and wishes to become invisible to the eyes of others. A rich person proudly shows off his riches, gaining everybody’s attention and admiration. This is simply a description of human behavior. Smith does not endorse it or express moral judgment of it. But he remarks that this admiration for the rich exists, and is necessary, even if it can be a source of moral corruption.

The admiration for the rich allows for peace and order in society. Peace and order in society rest in part on the authority of its leaders. Both wealth and virtue give authority, but since it is easier to recognize wealth than virtue, our natural admiration for the rich potentially decreases conflicts of legitimacy (Reference Smith, Raphael and Macfie TMS VI.i.1.21, p. 266; see also Tegos Reference Tegos2013).

Such admiration for the rich is also necessary because of the complexity and the contradictions of the human soul. Nature has predisposed it to balance another innate and spontaneous feeling: envy, which otherwise could destroy social coexistence and impede the accumulation of wealth and the consequent progress. For example, see Wealth of Nations (hereinafter WN, [1776] Reference Smith1981, V.i.b.2, pp. 709–710); and Smith’s Lectures on Jurisprudence (hereinafter LJB, [1762–63, 1766] Reference Smith, Meek, Raphael and Stein1982); LJB (I.13, p. 402).

Riches glitter and are more easily recognizable than virtue. So we tend to rely more on wealth than on virtue to gain approbation. Not everybody has the same learning experiences in life. So if the “man within the breast” has not learned to be fully impartial, the admiration that wealth generates may became seductive to the point of overcoming the pleasure derived from moral actions and shadowing the consequences of reprehensible behavior (Reference Smith, Raphael and Macfie TMS I.iii.3.8, pp. 64–65). When this happens, the adulation of the external spectators prevails over the judgment of the inner spectator, and the moral restraint is weakened. Some will be more easily lured by this external adulation than others. Criminal behavior arises in those who wish to show their own wealth to the point of obtaining it by going beyond the bounds of justice (Reference Smith, Raphael and Macfie TMS III.iii.31, pp. 149–150). We may read the envy that leads the poor to steal from the rich (Reference Smith WN, V.i.b.2, pp. 709–710; and Reference Smith, Meek, Raphael and Stein LJB I.13, p. 402) as a subset of this general case, as we discuss later in the paper.

So Smith thinks that the two ways of achieving approbation are not always compatible (Reference Smith, Raphael and Macfie TMS I.iii.3.2, p. 62). The best possible scenario is when the two circumstances are both present and people acquire riches and a respectable social status by hard work and fair and virtuous behavior. This is a slow and gradual process, though. It is also the most common.

Since wealth is much easier to recognize than virtue, for some there is the irresistible temptation to increase wealth at the expense of virtue, especially since we tend to forgive and forget the questionable actions of the rich, given how much we look up to them. Alexander the Great is an example that Smith uses to make the case (Reference Smith, Raphael and Macfie TMS VI.iii.28, p. 250): his greatness was achieved through great crimes. Yet, because of his successes, we tend to overlook those great crimes he committed to achieve his great success. So we call him “the Great” and admire him. Alexander the Great is an example of the reason why, according to Smith, we may commit crimes: our desire to gain great approbation from others.

For Smith, this also applies to the great merchants and manufacturers of the Wealth of Nations ([1776] Reference Smith1981), who are willing to “extort from the legislature … laws … written in blood” (Reference Smith WN IV.viii.17, p. 648), not only because they criminalize behaviors that would otherwise be natural, such as trade that now becomes smuggling (e.g., Reference Smith WN V.ii.b.6, pp. 826–827; and Reference Smith WN V.ii.k.64, p. 898), but especially because they are willing and able to found and defend “a great empire” using the “treasure and blood” of their fellow-countrymen to enrich themselves at the expense of the great body of society (Reference Smith WN IV.vii.c.63, p. 613; see also Paganelli Reference Paganelli2008, Reference Paganelli2009). From the early stages of colonization, “folly and injustice” (Reference Smith WN IV.vii.b.59, p. 588) drive the race for the wealth of the colonizers, to the “servants” of joint stock companies, of the East India Company in particular, who are “perfectly indifferent” to the disaster they leave the colonies in when they “pervert administration of justice” of the colonies so that they can take with them immense riches (Reference Smith WN IV.vii.c.105–106, pp. 638–640): our desire to show off wealth blinds us so much that we commit even the most atrocious crimes.

On a smaller scale, this happens even when a poor person wishes to become more visible and adopts a “loose system of morality” more typical of the wealthy, rather than maintaining the “austere system of morality” more appropriate for his poor condition. His desire to show off, to appear what he is not, will lead the poor man into dissipation and crime (Reference Smith WN V.i.g.10, p. 794). Note that, for Smith, obscurity itself is not enough to incentivize the poor to commit crimes. Indeed, when a man of low condition sinks in the obscurity of a large city, he may abandon himself to “profligacy and vice” but not necessarily to crimes (Reference Smith WN V.i.g.12, p. 795). Similarly, need alone is not enough of a motivation for crime, in Smith’s account. “Want” needs to be accomplished by the “indignation of the poor” against the rich and that needs to be “prompted by envy” (Reference Smith WN V.i.b.2, p. 710).

Thus, for Smith, it is the prospect of gaining great wealth, enough to change our status in the eyes of others, that may motivate some to commit crimes. Smith also explains that the greatness of Alexander, as well as of the first colonizers and of merchants and manufacturers, of their great crimes and successes, comes from their great self-delusion. Our natural self-delusion is indeed an aspect of our natural self-love (e.g., Schliesser Reference Schliesser2006; Hanley Reference Hanley2009; Fleischacker Reference Fleischacker2011), which systematically biases and distorts our perception of reality, and which, Smith explains, may lead some to crime.

Our self-love naturally biases us so that we do not perceive probability correctly. We may understand that the probability of failure in some specific activity is very high, but we are convinced we are exempt from it. We love ourselves too much to admit failure, or its probability. That probability applies to others, not to us. For Smith, our natural overconfidence, which every person in relative good health has, is what explains the profitability of lotteries and the lack of profitability of insurance (Reference Smith WN I.x.b.26–28, pp. 124–126). The expected value of a lottery is less than its cost, yet many play because they are biased by their “presumptuous hope of success.” Of course, they will lose. Mirroring this, the expected value of insuring a ship at sea is higher than its cost, but few merchants insure their ships, according to Smith, because they overestimate their probability of success and underestimate their probability of failure.

The same presumptuous hope of success is also present in the choice of professions, including joining the army in the hope of vain glory (Reference Smith WN I.x.b.30–32, pp. 126–127). The dangers are underestimated and the probability of glory overestimated so much so that young boys join the army against the will of their fathers in great numbers, and as an unintended consequence drive down the salary of soldiers. That presumptuous hope of success also applies to criminal professions, such as smuggling. Smuggling is the most profitable profession, when successful. But the chances of success are very low. High profits attract more and more people, who in their turn, lower the probability of success, increasing the profits of the successful ones (Reference Smith WN I.x.b.33, pp. 127–128).

Smith seems to imply that our self-delusion affects the perception of the size of what we may gain, further biasing our “calculation.” The “absurd confidence” that no “judgment of sober reason and experience” would support led to the baseless belief that in the new lands of the Americas, one could find Eldorado (Reference Smith WN IV.vii.b.18–20, pp. 562–564). Alexander’s delusion of his own grandeur, his estimation of his probability of success of how much he could gain, was so distorted that it resembled “folly.” Yet, he succeeded and became “the Great.” No rational calculation would have ever allowed someone to do what Alexander the Great’s “folly” did (Reference Smith, Raphael and Macfie TMS VI.iii.28, p. 250). So, the other side of the coin of the motivation for crimes, for Smith, is our self-delusion, our systematic bias in perceiving probability of success and failure. This is as close as it gets to a rational calculation, in Smith’s analysis. It is not much, given the role self-delusion plays. A potential smuggler evaluates his expected benefits and expected costs and acts according to his calculation. But passions prevent this calculation from being “rational” since our self-love systematically biases our perception of the probabilities. Due to self-delusion, there are more smugglers than is “optimal,” to use today’s terminology, and most of them fail.

There are a couple of additional things to note here. First, even if one wishes to interpret Smith’s analysis as a somewhat “rational calculation of costs and benefits,” one should not ignore that, according to Smith, this attitude, which induces a person to earn more and more riches and accumulate properties, is not meant as a hedonistic form of satisfaction typical of utilitarianism, since it aims at a different range of pleasures. A person wishes to have at their disposal a great amount of wealth not simply to enjoy a high degree of utility according to some rational scheme of consumption: the stomach of a rich man is about the same as the stomach of a poor man. But we want more and more riches because, by showing them off, we can be the object of the attention and admiration of our fellows (e.g‥ Reference Smith WN I.xi.c.31, p. 190; Reference Smith, Raphael and Macfie TMS VI.i.3, pp. 212–213).

Second, and this may be one of the greatest limitations, if not the greatest one, of Smith’s model: Smith can explain only crimes done to achieve gains great enough to change our social status. He does not explain small crimes, or petty crimes where the criminal gains only a small amount. He simply claims we disapprove of those petty crimes and look down on the person who committed them (Reference Smith, Raphael and Macfie TMS VI.i.16, p. 217). One may infer that petty crimes may be a miniature version of large crimes, where our delusions induce us to think that the disapprobation we will receive is less than it is. But Smith himself does not describe this in any detail.

Even with this limitation, not only is Smith far from the Legal Enlightenment’s understanding of rational crimes—our sentiments always “interfere” by systematically biasing our calculations—but his understanding of what makes something a crime is also far from that of the Legal Enlightenment: it is based on our vanity, the systematic biases of our self-love, and the presence of an impartial spectator, even if that spectator is not perfectly impartial. We all share these characteristics, but since nurture is what differentiates a street porter from a philosopher (Reference Smith WN I.ii.4, pp. 28–29), the magnitude of these passions will vary across individuals, allowing for virtuous people as well as criminals, depending on how much the “man within” has learned to be impartial in a person’s life.

Unlike the utilitarian authors, Smith does not believe that a utilitarian calculation can deduce the laws of justice or that a valuation that correctly foresees benefits and losses can determine the morality of an action. Knud Haakonssen (Reference Haakonssen1981, p. 183) saw this anti-utilitarianism in Smithian jurisprudence; and Amos Witzum and Jeffrey Young (Reference Witztum and Young2013) are even willing to see utility and justice as substitutes in Smith. Indeed, Smith assigns the task of approving human actions to the spontaneous sentiments and judgment of the impartial spectator, as described in Part I of Reference Smith, Raphael and Macfie TMS. For Smith, it is the spontaneous feeling of the impartial spectator’s reaction that identifies what is illicit. This thesis marks an even further distance between Smith and the Legal Enlightenment for which the formulation of general rules of conduct is an ex ante analysis of the allegedly final effects of human actions. Indeed, scholars within the Legal Enlightenment tradition, such as Beccaria, conceive crime as the activity for which the gains an individual receives are less than the losses this individual imposes on another or on society (Beccaria [1764] Reference Beccaria and Young1986, pp. viii, xxvii): crime is a rational, social cost-benefit analysis (Simon Reference Simon2009, pp. 16–17).

Given his distance from Legal Enlightenment cost-benefit analysis, Smith can avoid a problem the Legal Enlightenment cannot: with a cost-benefit analysis, there may be immoral actions that remain unpunished because they produce more benefits for the criminal than costs for the victim. Working with the approbation of the impartial spectator means that Smith avoids this problem. For him, individuals must never prefer themselves to any other individual, as to hurt or injure someone, in order to benefit themselves, even if their benefit should be much greater than the other’s costs. The poor man must neither defraud nor steal from the rich, even if they might benefit much more than the rich man’s loss (Reference Smith, Raphael and Macfie TMS III.iii.6, p. 138).Footnote ²

An additional difference between Smith and Legal Enlightenment thinkers is how to direct behavior to improve one’s condition and society’s condition. For the exponents of Legal Enlightenment, rational legislation and the constitutional framework are valid instruments to direct individual interest towards those activities and conduct that better both one’s condition and public wealth (Simon Reference Simon2009, Reference Simon2011). But a rational legislation or constitutional framework works only when we assume that the actions of an individual are mainly logical and foreseeable, when we assume that the individual is a rational agent very close to the neoclassical version of homo economicus. Instead, Smith’s agent is the opposite: he is not guided by utility maximization but by sentiments that are not necessarily rational. So Smith, rather than being confident in the rationality of an omniscient legislator (Haakonssen Reference Haakonssen1981, pp. 85–86; Griswold Reference Griswold1999, pp. 250–252; Simon Reference Simon2017), entrusts the task of safeguarding wealth, happiness, and the respectability of the individual from the risk of immoral actions, to the innate virtue of prudence and propriety, directed by the impartial spectator who moderates human passions (Reference Smith, Raphael and Macfie TMS, VI.i.6, p. 213; see also Carrasco Reference Carrasco2008). His logic, as we will see below, parallels the one he uses to explain the growth of an economy, rooting it in the passions of individual persons, not in a public-spirited, social, rational plan.

III. WHY PUNISHMENT?

If the desire to gain the approbation of the spectators around us is a motivation to commit crimes, the judgment of the spectator inside us is the motivation for punishing these crimes.

According to Smith, we judge the propriety of an action as well as its merits or demerits (Reference Smith, Raphael and Macfie TMS, II). The propriety of an action concerns the causes of the action. The merit of an action concerns its effects (Reference Smith, Raphael and Macfie TMS II.i.5.3, pp. 74–75).

When we see someone doing something to someone else, we may feel either gratitude or resentment, meaning we believe that that behavior deserves either reward or punishment. Our judgment usually takes into consideration both the propriety and the merit of the action, that is, both the actor’s motivation (propriety) and the consequence on the other person (merit) (Reference Smith, Raphael and Macfie TMS II.i.5.5, p. 75; see also Reference Smith, Raphael and Macfie TMS, II.i.2.5, pp. 70–71). Our judgment of merit completes and strengthens our judgment of propriety of the action. It generates in us a desire to behave in a way that deserves moral reward and avoids resentment. So when we identify with the resentment of the victim more than with the propriety of the action, we think that punishment is appropriate (Reference Smith, Raphael and Macfie TMS II.i.4.4, p. 74). Our judgment is generally not the arbitrary result of a partisan individual, since we are far enough from, and uninvolved with, the action we observe. Our judgment is formed impartially, and may receive confirmation from a similar judgment by others, strengthening its validity even more (Carrasco Reference Carrasco2008).

Consequently, for Smith, punishment is the result of a spontaneous reaction of our feeling of resentment. It is one of the most significant distinguishing elements of Smithian legal theory since it breaks with the mainstream of Legal Enlightenment, which, on the contrary, founds punishment on the rational utilitarian calculation of pleasures and pains. A consequentialist theory becomes incompatible with a theory based on the judgment of worthiness of individuals in terms of assessment of the motivations and propriety of the actor (C. Smith Reference Smith2018). Smith is also able to offer a more coherent justification for punishment than philosophers, such as Immanuel Kant, who try to use a general principle instead (Fleischacker Reference Fleischacker1988). Consistent with his view of the natural emergence and evolution of institutions, Smith believes that Nature has entrusted the formulation of rules of conduct not to a rationalistic logic and a methodical speculation but rather to instincts and passions (Reference Smith, Raphael and Macfie TMS II.i.5.10, pp. 77–78).

So, punishment is not a price that a rational legislator conceives to curb unwelcomed social actions but a natural reaction determined by a feeling of revenge, a natural offspring of resentment (Reference Smith, Raphael and Macfie TMS II.i.2.5, pp. 70–71; Reference Smith, Raphael and Macfie TMS II.ii.1.5, pp. 79–80). In contrast with other scholars of his age, Smith doesn’t banish vengeance from the penal system (Fleischacker Reference Fleischacker1988). On the contrary, he endorses the appeasing of the victim’s resentment through the pain of the guilty. The Smithian idea of punishment, therefore, far from the new reformist trend of the eighteenth century, remains an expiation theory that can be summarized with the sequence of resentment–expiation–gratification.Footnote ³ For Smith, though, this expiation is not a religious one and neither does it aim to restore the authority of the sovereign through the torment of the criminal’s body (cf. Foucault Reference Foucault1975, pp. 8–72). These latter expiations would be the base of the “laws of police” rather than the “laws of justice,” a distinction that John Millar attributes to Smith himself (Cairns Reference Cairns1988, p. 394).

Smith’s contrast with an author such as Cesare Beccaria is stark. Beccaria refuses to use legal sanctions as an instrument to satisfy the victim, as they would be useless: “Can the cries of a poor wretch turn back time and undo actions which have already been done?” (Beccaria [1764] Reference Beccaria and Young1986, p. xii). Revenge is not restorative, thus useless. For Smith, instead, justice is retributive, in the sense that it aims at the punishment of the criminal, “without reference to any other goods that might arise” (Walen Reference Walen and Zalta2016).Footnote ⁴ Our feelings of resentment, and desire for revenge against the source of our suffering, are so strong, so natural (and so irrational), that all animated beings feel them even against an inanimate object that hurts them: “We are angry, for a moment, at the stone the hurts us. A child beats it, a dog barks at it, a choleric man is apt to curse it” (Reference Smith, Raphael and Macfie TMS II.iii.1.1, p. 94). Smith insists that “the object that caused [great harm] becomes so disagreeable to us even after, and we take pleasure to burn or destroy it. We should treat, in this manner, the instrument which had accidentally been the cause of the death of a friend, and we should often think ourselves guilty of a sort of inhumanity, if we neglected to vent this absurd sort of vengeance upon it” (Reference Smith, Raphael and Macfie TMS II.iii.1.1, p. 94). The feeling of gratitude for inanimate objects that accidentally help us mirrors it (Reference Smith, Raphael and Macfie TMS II.iii.1.2, p. 94).

The piacular feeling of remorse or regret for the harm we unintentionally cause to someone else is also an expression of the “absurd” strength of our feelings: we do not question the propriety of our action, so we are not properly guilty of the accidental harm we caused, and yet we desire to apologize or atone. Keith Hankins (Reference Hankins2016) goes so far to explain these irregular feelings as necessary to support and strengthen our moral responsibility, given the pervasive presence of luck in our lives (see also Williams Reference Williams1976; Schliesser Reference Schliesser, Lenz and Waldow2013, Reference Schliesser2017, pp. 121–136). Eric Schliesser (Reference Schliesser2017) goes farther and sees the piacular as a “species of shame” that may lead to permanent “stain” and “real danger to the mental health of well-formed minds” (Schliesser Reference Schliesser2017, p. 129), so much so that atonement for accidentally hurting others may include taking one’s own life.

The focus is thus strictly on the victim, not the criminal. Criminals do not need to understand their punishment. Punishment is not deterrence: it is just the way to satisfy the natural desire of seeing what the victim feels is the the morally deserved suffering in the wrongdoer.

But the victim’s desire for revenge risks excesses and disproportional reactions. Revenge risks becoming cruelty. For Smith, the judge of the appropriate measure of punishment is, again, the impartial spectator. The sympathy of the spectator is the judge not only of the behavior deserving resentment but also of the measure within which this resentment can be exercised and contained (Reference Smith, Raphael and Macfie TMS I.i.5.4, p. 24; Reference Smith, Meek, Raphael and Stein LJA ii.90, p. 104). The impartial spectator constrains the victim’s wish for vengeance into a fair retributive punishment, as the impartial spectator will not approve of disproportionate reactions. In addition, as shown below, the public magistrate will also play a role in institutionalizing revenge into its proper constraints.

Furthermore, as Richard Stalley (Reference Stalley2012, pp. 75–76) and Christel Fricke ([2011] Reference Fricke and Malloy2017, pp. 234–235) well recognize (see also Fleischacker Reference Fleischacker2005; C. Smith Reference Smith2013; Schwarze and Scott Reference Schwarze and Scott2015), for Smith, not all behaviors deserving moral reproof deserve punishment. Hurting someone is what makes the difference between deserving and not deserving punishment (Reference Smith, Raphael and Macfie TMS II.ii.1.5, pp. 79–80; Reference Smith, Raphael and Macfie TMS, II.iii.3.2, pp. 105–106). This is possibly one of the most important parts of the Smithian theory because it explains the origin of justice and its unintentional role in the survival of society (for a debate on whether distributive justice is part of this idea of justice, see Fleischacker Reference Fleischacker2005 and C. Smith Reference Smith2013).

According to Smith, acts of charity and of disinterested benevolence deserve approval and reward; but their omission or the lack of gratitude as a consequence of them do not cause an intolerable unhappiness to people and do not expose them to any risk, and so do not provoke indignation and hatred in the spectator (Reference Smith, Raphael and Macfie TMS II.ii.3.3–4, p. 86). Punishment cannot be called for when charity or benevolence are missing. Indeed, the very idea of using punishment to induce beneficence would undermine the concept of beneficence. Benevolence and beneficence cannot be extracted by force (see C. Smith Reference Smith2013; see also V. L. Smith and Wilson Reference Smith and Wilson2019); whereas hurting someone raises our resentment and requires a strong response. This response satisfies the sense of justice, while, unintentionally, also defending individuals from other similar harmful acts. Therefore, as the impartial spectator dictates, the only tasks of justice are redress and defense (Reference Smith, Raphael and Macfie TMS, II.ii.1.4, p. 79).

The Smithian idea of injury in some aspects appears to coincide with the Legal Enlightenment’s view of damage. Both break with the Ancien Regime tradition that identified sin and crime; both define the seriousness of the criminal action and the corresponding punishment. Yet, beyond the appearances there is a deep difference between the two theories. The damage described in the works of utilitarian scholars is the tangible result of an economic calculation of the loss and gain of socially undesirable behaviors and the same for the punishment that should discourage them. Instead, Smith’s injury is more about the sentiments of someone, harmed in his body, property, or freedom, who feels above all that his dignity is injured. This is a subjective and personal resentment, which the approbation of the impartial spectator transforms in a positive and objective datum.

Smith does not offer a clear distinction between injuries deserving private punishment and injuries that deserve an institutionalized punishment, most likely because the line will depend on the peculiarity of societal circumstances. As we see below, different societies have different legal structures, depending on what is appropriate to their circumstances. Similarly the demarcation between a general wrongdoing and a crime may be left to the peculiar circumstances of each society. In Smith, the distinction between a legal crime and a behavior that deserves punishment is not well defined, even if the two do not necessarily overlap.

Smith therefore consistently applies his understanding of human nature, which sees human beings as creatures with sentiments rather than simply utility calculators, in both his theory of crime and his theory of punishment. Grounded in individual feelings, Smith’s theory of crime and punishment generates a theory of criminal justice based on the individual person, and is not meant to promote what is good for society, even if it does achieve this unintentionally. Smith’s criminal legal theory fits comfortably within the same system with which he describes the economic system, as well as within the Scottish Enlightenment idea that well-functioning social institutions are the result of human action but not of human design. However, his theory greatly diverges from the views of the Legal Enlightenment.

IV. WHY PUBLIC MAGISTRATES?

Engaging in the study of the science of man implies distinguishing between the permanent and the contingent. Smith sees that our desire to achieve the approbation of others, through virtue and wealth, and our systematic overestimation of our probability of success and underestimation of our probability of failure, are permanent features of our being. The presence of “the man within the breast” judging the propriety and the merits of our actions is also part of our unchangeable nature. What is contingent is the material and institutional context in which we live, including the level of wealth and the opportunities to gain great wealth, and thus the strength of the incentives to commit crimes.

In pre-commercial societies, the desire to parade wealth is just as strong as in commercial societies, but there is less wealth to parade, so, everything else the same, we observe little showing off of wealth. In a society of hunters, approbation comes mostly from physical achievements or wisdom, since wealth is highly perishable, private property is thus practically non-existent, and significant accumulation of wealth is unlikely. With no property, the only possible injuries are either physical or reputational. These injuries do not benefit the injurer though, so they are not very frequent, according to Smith. Prudence and the impartial spectator work relatively well, given the weakness of the incentives. There is no need for a civil authority and indeed there is none (Reference Smith, Meek, Raphael and Stein LJB I. 19-20, pp. 404–405; Reference Smith WN V.i.b. 2, p. 709).

But as wealth becomes less perishable and can be accumulated, private property is more likely to be present, and wealth becomes an easier and less controversial way to achieve the approbation of others. This also means that there is more wealth to seduce and weaken moral restraints. And, given property, the injurer does benefit from injuring his victim. “Avarice and ambition in the rich … [and their] affluence … excites the indignation of the poor, who are often both driven by want, and prompted by envy, to invade his possessions”: crimes become more likely (Reference Smith WN V.i.b.2, p. 709) and the presence of a civil magistrate becomes necessary to guarantee security. “It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labour of many years, or perhaps of many successive generations, can sleep a single night in security (Reference Smith WN V.i.b.2, p. 709): we now see penal laws and judges enforcing them (Reference Smith WN V.i.b.2, p. 710).

For Smith, the origin of legal and civil authority therefore is a consequence of the emergence of property and its diffusion (see also Reference Smith, Meek, Raphael and Stein LJB I.11, p. 401), based on passions such as avarice, ambition, indignation, envy, and fear. And when the division of labor separates the roles of judge and legislator from that of executive, then we have secure general rules that are freed from political expediency (Reference Smith WN III.ii–iv). The legitimacy of political and juridical institutions are thus a by-product of the people’s approved conduct (Carrasco Reference Carrasco2008, p. 151).

So the first condition under which punishment requires institutionalization is the presence of crimes, which we see more often when there are the incentives to commit them and fear of being a victim of one, that is, when there is wealth (Reference Smith WN V.i.b.2, pp. 709–710; Reference Smith, Meek, Raphael and Stein LJB I.11–13, pp. 401–402). The second condition is the possibility that punishment escalates into disproportional revenge (Reference Smith, Raphael and Macfie TMS I.i.5.4, p. 24; Reference Smith, Meek, Raphael and Stein LJA ii.90–100, pp. 104–108). The injurer’s spectator is not impartial, by the simple fact that the injurer commits a crime. The victim’s internal spectator may also not be impartial, given the closeness of the injury. The unconscious temptation to magnify the hurt out of proportion is very much present. If that is the case, punishment may not be proportional to the crime and can escalate in a vicious spiral of violence. Legal justice and its public authority emerged as a mechanism that evolved from mediating the fear of being injured, and private vengeance and retaliation, which could otherwise escalate into a feud, “prevent[ing] the ill consequences which might arise from those crimes [and] preserving the publick peace” (Reference Smith, Meek, Raphael and Stein LJA ii.95, p. 106).

Deterrence is obtained unintentionally by assuring the satisfaction of the victim’s resentment (Reference Smith, Meek, Raphael and Stein LJA ii.93, p. 105).Footnote ⁵ What today we would recognize as efficiency is here again an unintentional result—as usually happens when Smith analyzes the origin of institutions. So, the fundamental feature of the Smithian idea of criminal justice is a marked focus on the person, which contrasts with the holism typical of the Legal Enlightenment’s theory of criminal justice as a social defense.

Smith’s legal theory is thus in open conflict with contract theories, as civil authority emerges only under specific circumstances (Reference Smith WN V.i.b.1–12, pp. 708–715; Reference Smith, Meek, Raphael and Stein LJB 92–93, pp. 433–434), and not from a deliberate decision (see also the Lectures on Rhetoric and Belles Lettres [Reference Smith and Bryce1983], p. 176).Footnote ⁶ It also differs from the theory of deterrence of the Legal Enlightenment. In the center stage of Smith’s work there is always the individual person; their interest is the ultimate aim of the authorities’ intervention. Justice is to defend each person and their property, not society as a whole. We can see the pivotal role of the individual person when we see that Smith puts the origin of the right to punish in the resentment of the victim and in the gratification of this personal sentiment. The dissuasion from committing further hypothetical crimes is just one of the side effects of the penal rules, but it is not the main motive that turns resentment into a legal sanctionFootnote ⁷ (Reference Smith, Raphael and Macfie TMS II.ii.1.4–5, pp. 79–80). Smith is aware of this intellectual distance from the exponents of Legal Enlightenment and underlines it, openly declaring his opposition towards the theorists of “publick good” (Reference Smith, Meek, Raphael and Stein LJA ii.91, p. 104). For Smith, these followers of Hugo Grotius focus on the “correction of the offender,” on “the deterring of others,” and on “the safety of the community” (Reference Smith, Meek, Raphael and Stein LJA ii.169, p. 136), placing the defense of society first and only indirectly dealing with the individual. Smith explicitly overturns them with his psychology of crime and punishment: he tells that, for example, we want to punish one who stole some change from us, not because we are afraid that the loss of few pennies will compromise our fortune but because the loss of those few small coins upsets us. Similarly, we want to punish the person who injured another, not because we care about society but because we care about the injured person (Reference Smith, Raphael and Macfie TMS, II.ii.3.10, pp. 89–90).

Furthermore, in contrast to the exponents of Legal Enlightenment who consider punishment as lawful only when it discourages illegal acts, and vengeance as an excessive suffering and thus an excessive cost to society, Smith believes that when we stray from the criterion of resentment to embrace society’s security, in the name of public interest, we risk inflicting punishment beyond the measure suggested by the impartial spectator (Reference Smith, Meek, Raphael and Stein LJA ii.91, p. 104).Footnote ⁸ A legislator who adopts this doctrine could punish innocuous behavior and limit personal freedom to maximize public welfare. In addition, punishing to pursue public good may also be ineffective. Positive law may mimic natural justice, but it may also follow utilitarian goals. Since punishment is the consequence of human passions and feelings, if it pursues public targets that are unconnected with natural resentment, individuals’ judgments may only feebly share its propriety. This may be another of Smith’s most original contributions: utilitarian punishment may fail. Indeed, Smith is so aware that punishment may fail and our resentment go unsatisfied that he believes that to calm our tormented sentiments, we lean on divine justice to make up for the lack of appropriate human justice (Reference Smith, Raphael and Macfie TMS II.ii.3.12, p. 91; see also C. Smith Reference Smith2018; and Schwarze and Scott Reference Schwarze and Scott2015).

It may not be by accident that, if with a utilitarian criterion we punish some offenses in a way that is deemed too light to satisfy the victim’s resentment, duels emerge as a way of appeasement and to recover honor (Reference Smith, Meek, Raphael and Stein LJA ii.137, p. 123). Similarly, in a more controversial passage of Reference Smith, Raphael and Macfie TMS (II.ii.3.11, pp. 90–91), Smith allegedly claims that we justly punish with death a sentinel who falls asleep, potentially jeopardizing the whole army, so that others may be deterred from falling asleep. His language is tentative, though, reflecting the hesitation of the impartial spectator and how reluctantly he makes himself agree that the severity of the punishment is appropriate, given the absence of resentment. Smith goes so far to claim that even “[a] man of humanity must recollect himself, must make an effort, and exert his whole firmness and resolution, before he can bring himself either to inflict it, or to go along with it when it is inflicted by others” (Reference Smith, Raphael and Macfie TMS, II.ii.3.11, p. 90; see also Reference Smith, Meek, Raphael and Stein LJA ii.90–2, pp. 104–105). The individual is sacrificed for the alleged well-being of society and this decision is not necessarily approvable (see also Schwarze and Scott Reference Schwarze and Scott2015; C. Smith Reference Smith2018, Reference Smith, Church and Hartman2019). David Raphael (Reference Raphael1972–73, pp. 95–96) indicates this reluctance to punish the sleepy sentinel as the exception that proves the rule: a punishment perceived as excessive compared with the resentment it generates is extremely difficult to accept and perform exactly because we approve only of punishment proportioned to the crime. Witzum and Young (Reference Witztum and Young2013, p. 584) push Raphael’s argument further, claiming that judging of it as just is an ex-post consideration of the philosopher.

While the sentinel will be executed, even if extremely reluctantly, other crimes meant to protect the whole society may not be punished if the positive law does not reflect natural justice. When Britain punished with death the exportation of wool, claiming that exporting wool would injure the whole society, it became almost impossible to find jurors or witnesses against the smugglers. People refused to inflict punishment for something they did not see as meeting the conditions for resentment (Reference Smith, Meek, Raphael and Stein LJA ii.90–2, pp. 104–105; Reference Smith WN IV.viii.19, pp. 648–649). In this circumstance people show scarce cooperation with the legal justice, jeopardizing its enforcement. Smith’s logic here is remarkably similar to the one used to justify abandoning attempts to draft and enforce economic policies meant to promote the public good: they generally are either superfluous or counterproductive (Reference Smith WN IV.ii.11, p. 456).