It is objected that the preventive theory is immoral, because it overlooks the ill-desert of wrong-doing, and furnishes [43] no measure of the amount of punishment, except the lawgiver’s subjective opinion in regard to the sufficiency of the amount of preventive suffering. 1 In the language of Kant, it treats man as a thing, not as a person; as a means, not as an end in himself.  It is said to conflict with the sense of justice, and to violate the fundamental principle of all free communities, that the members of such communities have equal rights to life, liberty, and personal security. 2

In spite of all this, probably most English-speaking lawyers would accept the preventive theory without hesitation.  As to the violation of equal rights which is charged, it may be replied that the dogma of equality makes an equation between individuals only, not between an individual and the community.  No society has ever admitted that it could not sacrifice individual welfare to its own existence.  If conscripts are necessary for its army, it seizes them, and marches them, with bayonets in their rear, to death.  It runs highways and railroads through old family places in spite of the owner’s protest, paying in this instance the market value, to be sure, because no civilized government sacrifices the citizen more than it can help, but still sacrificing his will and his welfare to that of the rest. 3

If it were necessary to trench further upon the field of morals, it might be suggested that the dogma of equality applied even to individuals only within the limits of ordinary dealings in the common run of affairs.  You cannot argue with your neighbor, except on the admission for the [44] moment that he is as wise as you, although you may by no means believe it.  In the same way, you cannot deal with him, where both are free to choose, except on the footing of equal treatment, and the same rules for both.  The ever-growing value set upon peace and the social relations tends to give the law of social being the appearance of the law of all being.  But it seems to me clear that the ultima ratio, not only regum, but of private persons, is force, and that at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference.  If a man is on a plank in the deep sea which will only float one, and a stranger lays hold of it, he will thrust him off if he can.  When the state finds itself in a similar position, it does the same thing.

The considerations which answer the argument of equal rights also answer the objections to treating man as a thing, and the like.  If a man lives in society, he is liable to find himself so treated.  The degree of civilization which a people has reached, no doubt, is marked by their anxiety to do as they would be done by.  It may be the destiny of man that the social instincts shall grow to control his actions absolutely, even in anti-social situations.  But they have not yet done so, and as the rules of law are or should be based upon a morality which is generally accepted, no rule founded on a theory of absolute unselfishness can be laid down without a breach between law and working beliefs.