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Revisiting Kantian Retributivism to Construct a Justification of Punishment

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Abstract

The standard view of Kant’s retributivism, as well as its more recent reworking in the ‘limited’ or ‘partial’ retributivist reading are, it is argued here, inadequate accounts of Kant on punishment. In the case of the former, the view is too limited and superficial, and in the latter it is simply inaccurate as an interpretation of Kant. Instead, this paper argues that a more sophisticated and accurate rendering of Kant on punishment can be obtained by looking to his construction of the concept of justice. In so doing, not only is a superior account of Kant furnished, but also one up to the task of resolving the vexed issue of justifying legal punishment.

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Notes

  1. For a good discussion of the issue see Ellis (1995).

  2. The notion that justifications of punishment should include a justification of the distribution of punishment as well as of its general justifying aim trace back to H.L.A. Hart’s influential work Hart (1968). The distribution of punishment involves justifying when punishment is applied, on being able to give a coherent answer as to why punishment is enforced and against whom. It answers the question of justification framed in terms of why punishment is meted out in particular circumstances, what warrants punishment’s application, why it is that an individual is, as it were, entitled to punishment. Justifying the goal of the practice more generally falls under the title of punishment’s ‘general justifying aim’. A theory which hopes to justify this aspect of punishment needs to furnish a reason or reasons why the practice and its system of rules exists, what its goals are and what it achieves.

  3. Wood (1990, p. 109).

  4. Scheid (1983, p. 274).

  5. Brown (1962, p. 38).

  6. Murphy (1987, p. 509).

  7. Cooper (1971, p. 160).

  8. Potter (1998).

  9. Scheid (1983).

  10. Tunick (1996, p. 64).

  11. Byrd (1989).

  12. Since Tunick’s account of Kant as a limited retributivist is the most systematic, it will primarily be relied on in the examination of this view which follows.

  13. Kant (1997).

  14. Tunick (1996, p. 64).

  15. For a brief discussion of these issues and an indication of where to locate a fuller treatment of them see Schneewind (1997).

  16. Tunick incorrectly describes these examples as involving a life raft rather than a plank.

  17. Kant (1991, 6:236).

  18. Tunick (1996, p. 77).

  19. Tunick (1996, p. 66).

  20. Tunick (1996, p. 77).

  21. Kant (1991, 6:233).

  22. Tunick (1996, p. 77).

  23. Kant (1991, 6:334).

  24. Kant (1991, 6:337).

  25. Kant (1991, 6:337).

  26. Kant (1997, 27:287–88). Italics are mine. It might be objected that Kant’s Lectures on ethics have been dismissed as an unreliable source above and so should not be appealed to here simply when it suits the argument being run. However the point made earlier is that the Lectures should not be relied on if they directly conflict with other sources, if they agree with or find support in Kant’s other works they need not be disregarded. And arguably the idea that retributively motivated punishment might legitimately have consequentialist side effects, is compatible with what Kant states in his most famous passage on punishment from The Metaphysics of morals. Kant writes that ‘[p]unishment by a court …. can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society.’ Kant (1991, 6:331). Punishment should never follow from anything other than retributivist motives, but this does not rule out its having other possible outcomes as well.

  27. Shell (1997).

  28. For instance in his Attempt to introduce the concept of negative magnitudes into philosophy Kant refers to a flawed interpretation of Newton by Christian Crusius which could have been averted, Kant claims, if Crusius had understood how negative magnitudes are employed in mathematics. On Kant’s view if Crusius had appreciated that negative magnitudes are not to be mistaken for negations of magnitudes, he would not have condemned Newton in the manner in which he did. Kant (1992).

  29. Kant (1992, 2:172).

  30. Kant (1992, 2:172).

  31. Kant (1992, 2:173).

  32. Because Leibniz lacks a concept of real negation and instead has a view of evil as an absence or deprivation of reality, he is unable to entertain a Kantian construction of justice. If wrong is merely a nullity, punishment has nothing genuine to set itself against and cancel. (The connection to Leibniz is discussed further in footnote 40).

  33. Amongst those who defy this trend are Ellington (1985); Goldmann (1971); Moggach (2000); Morrison (1995); Morrison (1998); Saner (1973); Shell (1996) and Shell (1997); while reciprocity is discussed to some extent in the punishment literature.

  34. These authorities being the sovereign authority embodied in the form of the legislator; the executive authority in the guise of the ruler; and finally there exists within the state judicial authority represented by the judge. It should be noted however, that Kant does not explicitly point out that these authorities are in community.

    Interestingly, Kant’s description of the interaction of the three authorities operating within the state at Kant (1991, 6:313). is quite similar to the way in which he characterizes disjunctive judgments as logical instantiations of community in Kant (1929, B12-B113). For Kant the sum of all the disjunctive judgments related to an area of knowledge can be thought to cover the field with respect to that area in a way that mirrors how the authorities in this context are coordinated to bring about the whole that is the state. Further, the way in which each of the functions of the authorities are related to each other is akin to how the propositions which comprise disjunctive judgments are logically opposed in so far as the scope of one excludes that of the others.

  35. Kant (1991, 6:314).

  36. Kant (1991, 6:313–14).

  37. Kant (1991, 6:313).

  38. Kant (1991, 6:314).

  39. Kant (1991, 6:230).

  40. Kant (1991, 6:230–31). That Kant is able to construe wrong here as a real and existing phenomenon rather than a mere deprivation or negation, is because of his account of real negation. As Kant is aware, his interactionist account sets him apart from a philosopher like Leibniz whom he criticizes in the Critique of pure reason’s Amphiboly for his inability to properly conceive of wrong or evil. Leibniz is forced into the awkward position of construing evil as some kind of limitation or absence of reality, because he lacks the kind of opposition the critical philosophy’s separation of intuitions and concepts allows. Stuck within an entirely conceptual understanding of the world, Leibniz cannot entertain ‘the conflict of reciprocal injury, in which each of two real grounds destroys the effect of the other – a conflict which we can represent to ourselves only in terms of conditions presented to us in sensibility.’ Kant (1929, B330/A274).

  41. Kant (1991, 6:312).

  42. Kant (1929, A713/B41).

  43. Kant (1929, Bxii).

  44. Kant (1929, Bxii).

  45. Kant (1929, Bxxxv).

  46. Kant (1929, A716/B744-A717/B745).

  47. Kant (1929, A713/B741-A714/B742).

  48. Kant (1998, 6:71).

  49. Kant (1999, 5:70).

  50. Kant (1991, 6:232).

  51. Kant (1985, p. 98, footnote 43).

  52. It should be noted that not all individuals within society are citizens on Kant’s view.

  53. Kant (1991, 6:232).

  54. Kant (1991, 6:362).

  55. Kant’s choice of the word ‘contradiction’ (Widerspruch) is puzzling here since it would seem to imply a connection with logical opposition, when in fact it is real opposition or negation that is involved in the construction of justice.

  56. Kant (1991, 6:231).

  57. Gorner (2000, p. 129).

  58. Gorner (2000, p. 129).

  59. Nicholson (2000, p. 132).

  60. Nicholson (2000, pp. 132–34).

  61. Kant (1991, 6:233).

  62. Kant (1991, 6:332).

  63. Kant (1991, 6:332).

  64. Kant (1991, 6:363).

  65. These pillars being that the legitimacy of punishment is tied to the crime; that the type and amount of punishment also derive from the crime according to a principle of equality; and that there is an obligation to mete out to the criminal punishment as his desert.

  66. Kant (1991, 6:332).

  67. Kant, (1991, 6:333).

  68. Those familiar with Hegel’s theory of punishment will see obvious parallels to his view here.

  69. Kant (1991, 6:362).

  70. Nicholson (2000, p. 133).

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  1. Unit for the History and Philosophy of Science, University of Sydney, Carslaw Building F07, Sydney, 2006, NSW, Australia

    Jane Johnson

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Correspondence to Jane Johnson.

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I am indebted to an anonymous reviewer for their insightful and fruitful comments on an earlier version of this paper.

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Johnson, J. Revisiting Kantian Retributivism to Construct a Justification of Punishment. Criminal Law, Philosophy 2, 291–307 (2008). https://doi.org/10.1007/s11572-008-9052-7

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