Abstract
Immanuel Kant is usually considered to be the philosopher whose view on punishment most exemplifies retributivism. At the very least, his words on punishment are paradigmatically retributivist. For if there is one thing Kant holds it is that criminal guilt deserves punishment, regardless of considerations of social utility. Does Kant have anything further than this to say about punishment? If so, do his ideas about punishment amount to a theory of punishment? Is there a plausible Kantian theory of punishment?
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References
Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?” Columbia Law Review, 87 (1987), p. 532.
In “Does Kant Have a Theory of Punishment?” Murphy reconsiders his previously held position that affirmed the existence of such a theory [See Jeffrie G. Murphy, “Kant’s Theory of Criminal Punishment,” in Jeffrie G. Murphy, Editor, Retribution, Justice, and Therapy: Essays in the Philosophy of Law (Dordrecht: D. Reidel Publishing Company, 1979), pp. 82–92; Kant: The Philosophy of Right (New York: St. Martin’s Press, 1970)].
Murphy, “Does Kant Have a Theory of Punishment?” Throughout this paper I shall refer to Kant’s The Metaphysical Elements of Justice, John Ladd, Translator (London: The Macmillan Publishing Company, 1965), hereafter cited as the “RECHTSLEHRE:’
But that Kant’s account of punishment in the RECHTSLEHRE does not add up to a theory of punishment should not surprise the careful student of Kant’s RECHTSLEHRE. For Kant himself writes the following words in his “Preface” to the RECHTSLEHRE:... a metaphysical system of justice would have to take into account the empirical diversity and manifoldness of those cases in order to be complete in its subdivision... Thus, the only appropriate name for the first part of the theory of morals is The Metaphysical Elements of Justice, for, if we take these cases of application into account, we can expect to attain only an approximation of a system, not a system itself [Kant, RECHTSLEHRE, pp. 3–4]. Thus we find Kant himself admitting at the outset of the RECHTSLEHRE that he does not believe he is offering the reader a theory (full-blown account) of any kind (much less a theory of punishment). The claim that there is probably no theory of punishment in the Kantian corpus, then, loses some of its significance as a result of this fact. Regardless of Kant’s admission that he is neither providing a theory of justice (nor, by implication, a theory of punishment) in the RECHTSLEHRE, one might ask whether or not Kant’s claims about punishment in the RECHTSLEHRE constitute a theory of punishment. Moreover, one might ask whether or not one can rationally reconstruct a theory (or the basis of a theory) of punishment from what Kant says about punishment in the RECHTSLEHRE. Let us, then, consider what Kant says about punishment in the RECHTSLEHRE in light of the five conditions of a theory of punishment so that we might discern whether there is a Kantian theory of punishment forthcoming.
Murphy, “Does Kant Have a Theory of Punishment?” p. 520.
That the law of retribution is a categorical imperative is stated at least twice in the RECHTSLEHRE (pp. 100, 107). That the categorical imperative admits of no exceptions may be found in the following passage where Kant distinguishes the categorical imperative from a hypothetical imperative: “the categorical imperative is limited by no condition, and can quite properly be called a command since it is absolutely, though practically, necessary” [Immanuel Kant, Grounding for the Metaphysics of Morals, James W. Ellington, Translator (Indianapolis: Hackett Publishing Company, 1983), p. 26, hereafter referred to as the “GRUNDLEGUNG”]. Kant also describes the categorical imperative as “an unconditional command” which “does not leave the will free to choose the opposite at its own liking” (Kant, GRUNDLEGUNG, p. 29). Furthermore, that whatever is required by the categorical imperative is a perfect duty is inferred from the RECHTSLEHRE: A perfect duty (“narrow duty”) is one the nonperformance of which is wrong: it is a duty owed (p. xiv); Duty is that action to which a person is bound. It is therefore the content [Materie] of obligation (p. 23);... an imperative is a rule the representation of which makes necessary a subjectively contingent action and thus represents the subject as one who must be constrained (necessitated) to conform to this rule. The categorical (unconditional) imperative is one that does not command mediately,... but immediately, through the mere representation of an end that could be attained by an action itself (its form), which the categorical imperative thinks as objectively necessary and makes necessary (p. 23). From these passages it seems reasonable to infer that, for Kant, an act required by the categorical imperative is also a perfect duty in the sense that such an act “is one the non-performance of which is wrong: it is a duty owed.” 7In a previous work, Murphy himself notes the following in regards to Kant’s “theory” of punishment: This theory of punishment is clearly retributive in character, holding that criminal guilt merits or deserves punishment and that the non-criminal members of the community have a moral duty to inflict (through official authorities, of course) the punishment” (See Murphy, “Kant’s Theory of Criminal Punishment,” p. 82). John Ladd also notes that punishment is, on Kant’s view, the state’s “right and duty.” (See Ladd’s “Translator’s Introduction” to the RECHTSLEHRE, p. xxi).
Kant, RECHTSLEHRE, p. 107.
Murphy, “Does Kant Have a Theory of Punishment?” p. 520.
Kant, RECHTSLEHRE, p. 102.
Ladd points this out in his “Introduction” to the RECHTSLEHRE, p. xxiii.
As Ladd writes of the sense of “Recht” in the RECHTSLEHRE, “... it is used for what we call a ‘right,’... the kind of right that one person has against another. (As a legal right, this kind of right might be a legal capacity or a legal power).” See, Kant, RECHTSLEHRE, p. xvi.
Kant, RECHTSLEHRE, p. xxiv.
Kant, RECHTSLEHRE, pp. 43–5.
Kant, RECHTSLEHRE, p. 100. Emphasis provided.
Kant, RECHTSLEHRE, p. 102; Jeffrie G. Murphy, Kant: The Philosophy of Right, p. 141; Murphy, “Kant’s Theory of Criminal Punishment,” p. 82.
Murphy, “Does Kant Have a Theory of Punishment?” p. 510.
Kant, RECHTSLEHRE, p. 99.
Consider what one legal theorist says about the distinction: “The distinction is in fact not an easy one to make, either in theory or in practice. Attempts to state it have led to much inconclusive discussion....” [W. H. Hitchler, “Crimes and Civil Injuries,” Dickenson Law Review, 39 (1934), p. 23]. This does not mean that the crime-tort distinction cannot or even should not be made. However, today there is little consensus about the theoretical apparatus that ought to serve as the justification of such a distinction. For example, Robert W. Drane and David J. Neal argue that there are at least four ways to attempt to justify the crime-tort distinction [Robert W. Drane and David J. Neal, “On the Moral Justification for the Crime/Tort Distinction,” California Law Review, (1985), pp. 398–421]. Of these ways, however, none of them is satisfactory. Richard A. Epstein writes, “... the entire matter is from a practical point of view far from clear. The substantive division between tort and crime will of course persist for the foreseeable future, no matter how fervently some might wish to collapse the one area into the other” [Richard A. Epstein, “Crime and Tort: Old Wine in Old Bottles,” in Randy E. Barnett and John Hagel, Editors, Assessing the Criminal: Restitution, Retribution, and the Legal Process (Cambridge: Ballinger Publishing Company, 1977), p. 257]. But Epstein also admits that “the relationship between crime and tort is much vexed in the judicial and academic literature” (Epstein, “Crime and Tort: Old Wine in Old Bottles,” p. 231), and that “the traditional bases for distinction are devoid of accuracy and analytic power” (Epstein, “Crime and Tort: Old Wine in Old Bottles,” p. 233).
Murphy does not clearly distinguish between these two sorts of justification. In fact, he ends up treating these two problems simultaneously. I take it, then, that what Murphy means is that it is a requirement of a theory of punishment that it provide a justification (moral and/or political) of punishment as a means of state coercion.
See note 15.
Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 84–5, 94.
Murphy, “Does Kant Have a Theory of Punishment?” pp. 524–30.
Kant, RECHTSLEHRE, pp. 106–07.
Kant, RECHTSLEHRE, p. 107.
Kant, RECHTSLEHRE, p. 27.
Kant, RECHTSLEHRE, p. 24.
Kant, RECHTSLEHRE, p. 25.
Kant, RECHTSLEHRE, p. 25.
Kant, RECHTSLEHRE, p. 30.
Murphy, “Does Kant Have a Theory of Punishment?” p. 523.
Elsewhere, it is claimed, Kant speaks of agents being legally responsible for their own acts of omission as well as their own acts of commission [See, Immanuel Kant, Lectures on Ethics, Louis Infield, Translator (London: 1930), pp. 59–60]. Although this view is found in one of Kant’s student’s notebooks and thus lacks a certain amount of authenticity concerning what can be rightly attributed to Kant himself, there seems to be no reason to think that such a view about omissions causes a difficulty for Kant’s metaphysic of morals as a whole.
Kant, RECHTSLEHRE, pp. 41–2, where Kant states, “although an act of self-preservation through violence is not inculpable (inculpabile) [unsträflich], it still is unpunishable (impunibile) [unstrafbar],...”
Kant, RECHTSLEHRE, p. 68, note 1; and p. 81, note 4.
Kant, RECHTSLEHRE, p. 89.
Kant, RECHTSLEHRE, pp. 90f.
Kant’s insistence on criminal guilt as a necessary condition of punishment has played a role in the way most philosophers think about the matter. Ronald Dworkin argues, “It is paradigmatic for us now that punishing innocent people is unjust,... Most of us would reject out of hand any conception that seemed to require or permit punishing the innocent. It is a standing argument against utilitarianism, therefore, that it cannot provide a good account or justification of these central paradigms” [See Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), p. 75]. The influence of Kantian retributivism on contemporary thinking about punishment can hardly be underestimated. Furthermore, it is a mistake to underrate the centrality of this Kantian thesis as the basis for a retributivist answer to the question of criminal liability.
Murphy, “Does Kant Have a Theory of Punishment?” p. 530.
Kant, RECHTSLEHRE, p. 101.
Murphy, “Does Kant Have a Theory of Punishment?” p. 530.
Kant, RECHTSLEHRE, pp. 132–33; Murphy, “Does Kant Have a Theory of Punishment?” p. 531.
Murphy, “Does Kant Have a Theory of Punishment?” p. 532.
Murphy, “Does Kant Have a Theory of Punishment?” p. 532.
Since Murphy does not argue that Kant fails to provide an answer to the query, “What are the appropriate punishments?” I shall assume that Murphy grants that Kant gives at least a basis of a reply to this question.
Kant, RECHTSLEHRE, p. 132.
Kant, RECHTSLEHRE, p. 101.
Murphy, “Kant’s Theory of Criminal Punishment,” pp. 85–6.
John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 118–92; J. Angelo Corlett, “Knowing and Believing in the Original Position,” Theory and Decision, 27 (1989), pp. 241–56; Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), Chapter 6.
For a defense of retributivism by an appeal to the Rawlsian social contract theory, see David A. Hoekema, “The Right to Punish and the Right to Be Punished,” in H. Gene Blocker and Elizabeth H. Smith, Editors, John Rawls’ Theory of Justice: An Introduction (Athens: Ohio University Press, 1980), pp. 239–69.
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (New York: Hafner, 1948), Chapter 14.
Kant, RECHTSLEHRE, p. 86. In regards to Kant’s claim that “it is the people’s duty to endure even the most intolerable abuse of supreme authority,” compare Dworkin’s dictum, “Society ‘cannot endure’ if it tolerates all disobedience; it does not follow, however, nor is there evidence, that it will collapse if it tolerates some.” (See Dworkin, Taking Rights Seriously, p. 206).
For a traditional analysis of civil disobedience, see Rawls, A Theory of Justice, pp. 363–391; “Legal Obligation and the Duty of Fair Play,” in J. P. White, Ed., Assent/Dissent (Dubuque: Kendall/Hunt Publishing Company, 1984), pp. 45–56; “The Justification of Civil Disobedience,” in J. P. White, Ed., Assent/Dissent, pp. 225–36. For discussions of the merits of the traditional analysis, see J. Angelo Corlett, Terrorism: A Philosophical Analysis (Dordrecht: Kluwer Academic Publishers-Philosophical Studies Series, 2003), Chapters 1–2; Joel Feinberg, “Civil Disobedience in the Modern World,” Humanities in Society, 2 (1979), pp. 37–68; Paul Harris, Editor, Civil Disobedience (Lanham: University Press of America, 1989), pp. 1–56.
Rawls, A Theory of Justice, pp. 363–91.
Other conditions of civil disobedience, according to Rawls, include publicity and non-violence (See Rawls, A Theory of Justice, pp. 363–91).
Dworkin, Taking Rights Seriously, p. 207.
Immanuel Kant, The Metaphysical Principles of Virtue, James W. Ellington, Translator (Indianapolis: Hackett Publishing Company, 1983), pp. 128–29. Hereafter referred to as the “TUNGENDLEHRE” See also Thomas E. Hill Jr., “Humanity as an End in Itself,” Ethics, 91 (1980), p. 96.
Herbert Morris, “Persons and Punishment,” The Monist, 52 (1968), pp. 476–501.
Kant, RECHTSLEHRE, p. 108.
Kant, RECHTSLEHRE, p. 108.
Kant, RECHTSLEHRE, p. 108.
Note that the Kantian cannot escape the force of this criticism by arguing that what Kant means when he says that punishment is a categorical imperative is that punishment is an imperfect duty, not a perfect one. This allows room for Kant to argue in favor of the Pardon Postulate near the end of his discussion of punishment in the RECHTSLEHRE. However, this move is not open to Kant because it misunderstands the nature of the categorical imperative as, say, a hypothetical imperative. Such a reply to this fourth objection is simply not in the spirit of Kant’s fundamental views.
Or, Kant must explain further the basis for the “right to majesty” (See Kant, RECHTSLEHRE, p. 107).
For example, one might challenge Kant’s claim that guilt is both a necessary and sufficient condition of punishment.
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Corlett, J.A. (2004). Foundations of a Kantian Retributivism. In: Responsibility and Punishment. Library of Ethics and Applied Philosophy, vol 9. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0421-2_4
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