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,