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Published online by Cambridge University Press: 22 July 2011
Kant is regarded as one of the staunchest advocates of retributive punishment in the modern tradition. This essay makes the case that a careful reexamination of Kant's account of punishment is necessary, especially in light of liberalism's characteristic inability to give the powerful moral appeal of retribution its due. Kant attempted to provide a clear analysis of what we mean when we say that morality demands that punishment be “proportional” to the crime. According to Kant, punishment's retributive aspect—as distinguished from its deterrent or restorative effects—is primarily concerned with redeeming (negative) moral worth. This paper attempts to unpack this claim by examining Kant's discussions of judicial punishment, the conscience, and divine punishment, respectively. It concludes that as a result of serious unresolved difficulties in his arguments for retribution, Kant manages only to deepen the question of the morality of retribution rather than to give it a decisive answer.
1 Hobbes, Thomas, Leviathan, ed. Curley, Edwin (Indianapolis: Hackett, 1994), chap. 15, § 19Google Scholar.
2 Ibid. Cf. Locke, Second Treatise of Government, § 8; Montesquieu, Spirit of the Laws, bk. 6, chap. 16; Beccaria, On Crimes and Punishments, chaps. 2 and 12; Mill, John Stuart, On Liberty (Indianapolis: Hackett, 1978), 9Google Scholar.
3 See Merle, Jean-Christophe, German Idealism and the Concept of Punishment (New York: Cambridge University Press, 2009), chaps. 1–3;CrossRefGoogle ScholarSussman, David, “Shame and Punishment in Kant's Doctrine of Right,” Philosophical Quarterly 58 (2008): 231CrossRefGoogle Scholar; Hill, Thomas Jr., “Kant on Wrongdoing, Desert, and Punishment,” Law and Philosophy 18 (1999): 407–41Google Scholar; Tunick, Mark, “Is Kant a Retributivist?,” History of Political Thought 17, no. 1 (1996): 60–78Google Scholar; Byrd, Sharon, “Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution,” Law and Philosophy 8 (1989): 151–200CrossRefGoogle Scholar; and Scheid, Don, “Kant's Retributivism,” Ethics 93 (1983): 262–82CrossRefGoogle Scholar.
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5 Brubaker, Stanley C., “Can Liberals Punish?,” American Political Science Review 82 (1988): 821–36CrossRefGoogle Scholar.
6 Ibid., 821–22, 825.
7 Ibid., 828–31. See also Corlet, J. Angelot's criticism of Rawls in “Making Sense of Retributivism,” Philosophy 76 (2001): 81–83Google Scholar.
8 Brubaker, “Can Liberals Punish?,” 833.
9 Ibid., 826–27.
10 On the challenges that positive liberty poses for liberalism, see Berlin, Isaiah's famous essay “Two Concepts of Liberty,” in Four Essays on Liberty (Oxford: Oxford University Press, 1990)Google Scholar.
11 Kant, Immanuel, Metaphysics of Morals (henceforward MM), trans. Gregor, Mary (New York: Cambridge University Press, 1996), 6:305–13 (84–90)CrossRefGoogle Scholar. Whenever possible, the pagination of the Akademie edition of Kant's works will be given as the first set of page numbers (preceded by the volume number); the numbers in parentheses that follow refer to the corresponding pages in the cited English translation. Other works by Kant frequently cited in the text have been identified by the following abbreviations: Critique of Judgment (CJ), trans. Pluhar, Werner (Indianapolis: Hackett, 1987)Google Scholar; Critique of Practical Reason (CPr), trans. Beck, Lewis White (New York: Liberal Arts Press, 1956)Google Scholar; Groundwork of the Metaphysics of Morals (Gr), trans. Paton, H. J. (New York: Harper and Row, 1956)Google Scholar; and Lectures on Ethics (LE), trans. Infield, Louis (Indianapolis: Hackett, 1980)Google Scholar.
12 See, e.g., Hobbes, Leviathan, chap. 28 (beginning); Locke, Second Treatise of Government, §§ 7–13 and 87–88.
13 MM, 6:331 (105).
14 Ibid., 6:332 (105–6).
15 Ibid., 6:332 (105).
16 Ibid., 6:331 (104–5).
17 Gr, 4:393 (61).
18 Ibid., 4:429 (96), second illustration.
19 Ibid., 4:429–30 (97).
20 MM, 6:223 (16).
21 Ibid., 6:227–28 (19–20).
22 Uleman, Cf. Jennifer, “External Freedom in Kant's Rechtslehre: Political, Metaphysical,” Philosophy and Phenomenological Research 68, no. 3 (2004): 585–91CrossRefGoogle Scholar.
23 MM, 6:335 (108).
24 This view has also been expressed in Herbert Morris, “Persons and Punishment,” and in Murphy, Jeffrie, “Marxism and Retribution,” Philosophy and Public Affairs 2, no. 3 (1973): 217–43Google Scholar.
25 In the context, Kant anticipates the objection that equal retribution “is not possible in terms of the letter” in every single case. No one can take an eye for an eye from a blind man. Kant argues, however, that it is possible to remain true to the spirit of the principle, if not always to its letter. In his example, Kant suggests that when an innocent person has been insulted, the punishment of the offender can satisfy the demand of retributive justice, even if it does not take the exact same form as the original insult, as long as the offender is made to feel shame in proportion to the outrage he caused his victim. See MM, 6:332–33 (105–6).
26 MM, 6:232–33 (26).
27 Ibid., 6:333 (106–7). Cf. Kant's note at Gr, 4:430 (97), where he clearly implies that punishment is a strict duty to others.
28 See, e.g., Murphy, Jeffrie, “Does Kant Have a Theory of Punishment?,” Columbia Law Review 87, no. 3 (1987): 509–33CrossRefGoogle Scholar.
29 MM, 6:218–19 (20); cf. 6:214 (14).
30 One might object that in the Doctrine of Right retributive punishment is concerned not with the ends of a criminal's choices, but merely with their “form” as they relate to the choices of others, as Kant appears to state in the context of his discussion of the principle of reciprocity (MM, 6:230 [23–24]). But in that context, Kant seems to be speaking only about reciprocal relations between persons insofar as their actions, “as facts,” can have influence on each other—that is, wholly as external phenomena—and does not intend to say anything about imputation, a subject with which he had already dealt earlier. (Cf. translator Mary Gregor's note c on p. 24.) It is hard to imagine what Kant could have in mind, if not the criminal's immoral ends, when he speaks of his “inner wickedness.”
An issue to which I cannot give adequate treatment here is why retribution must follow some immoral actions but not others. The answer, I believe, has to do with Kant's distinction between perfect and imperfect duties. Human beings are competent to punish transgressions of perfect duties, knowing that such transgressions are always morally culpable, whereas imperfect duties need not be violated just because our actions do not appear to conform to them.
31 See Kant, Immanuel, Critique of Pure Reason, trans. Smith, Norman Kemp (New York: St. Martin's, 1965), A 551–52/B 579–80 (475)Google Scholar.
32 MM, 6:333–35 (106–8).
33 Ibid., 6:334 (107).
34 I must therefore disagree with Herbert's and Fleischacker's attempts to interpret Kant's use of “desert” as signifying something that does not relate to moral motivations. See Herbert, Gary, “Immanuel Kant: Punishment and the Political Preconditions of Moral Existence,” Interpretation 23 (1995): 67–72Google Scholar; Fleischacker, Samuel, “Kant's Theory of Punishment,” in Essays on Kant's Political Philosophy, ed. Williams, Howard (Cardiff: University of Wales Press, 1992), 202–5Google Scholar.
35 See also Herbert, “Immanuel Kant,” 67–68.
36 Cf. CJ, 5:429–31 (317–19) with MM, 6:246–47 (40–41).
37 MM, 6:230–32 (24–26).
38 Ibid., 6:231 (25).
39 See ibid., 6:307–8 (86) and 6:312 (89–90).
40 Ibid., 6:219–20 (21).
41 Hill, “Kant on Wrongdoing, Desert, and Punishment,” 409.
42 Ibid., 429.
43 Ibid., 428–31. In his interpretation, Hill follows Sharon Byrd's “Kant's Theory of Punishment” and Don Scheid's “Kant's Retributivism.” Byrd reads Kant's basic position as virtually identical with that of H. L. A. Hart (see Byrd, “Kant's Theory of Punishment,” 183).
44 Cf. Hill, “Kant on Wrongdoing, Desert, and Punishment,” 433–34, 438.
45 Tunick, “Is Kant a Retributivist?,” 60–78.
46 Cf. MM, 6:235–36 (28).
47 Tunick, “Is Kant a Retributivist?,” 64.
48 Ibid., 65–66. Cf. MM, 6:336–37 (108–9).
49 MM, 6:336 (109).
50 See ibid., 6:334 (107–8), 6:337 (109–10). Cf. Tunick, “Is Kant a Retributivist?,” 63–64.
51 There is another passage that is often cited by Kant scholars as showing him to be espousing what is essentially a deterrence theory of punishment. In his posthumously published Lectures on Ethics, Kant says that “all punishments imposed by sovereigns and governments are pragmatic; they are designed either to correct or to make an example” (LE, “Reward and Punishment,” 55). While it is true that Kant is here saying that every punishment imposed by the state will necessarily be intended to correct or to make an example, he is not denying that such punishments may also meet the criteria of retribution—that is, by reflecting the crime as much as possible in kind and degree. Nevertheless, if in the final analysis there remains a real discrepancy between the two texts, more weight should be given to the Metaphysics of Morals, which was published in Kant's lifetime, as representing his mature view, than to his lectures, which were published without his supervision.
52 Gr, 4:398–99 (66).
53 MM, 6:391 (154).
54 Cf. ibid., 6:379–80 (145–46).
55 Ibid., 6:439n (189n).
56 LE, “Conscience,” 129.
57 Ibid., 131.
58 Ibid., my emphases.
59 Ibid., my emphasis. As an illustration of what Kant may have in mind in this passage, consider the example of the titular character of Thomas Hardy's The Mayor of Casterbridge.
60 This account bears an obvious resemblance to, and is likely to have been in some part influenced by, biblical moral psychology. On the conscience, see Romans 2:15 and Proverbs 20:27; on retribution, see Romans 2:5–12 and Proverbs 20:30.
61 CPr, 5:113–14 (117–18), 5:124–32 (128–36).
62 Ibid., 5:110–14 (114–18).
63 Ibid., 5:114 (118).
64 Ibid., 5:113 (117).
65 Ibid., 5:114–32 (118–36).
66 Ibid., 5:110 (114–15).
67 CJ, 5:445 (334).
68 Ibid., 5:449n (338n).
69 See also MM, 6:488–90 (230–32); and “On the Miscarriage of All Philosophical Theodicies,” in Religion and Rational Theology, ed. Wood, Allen and Giovanni, George di (Cambridge: Cambridge University Press, 2001), 8:260n (28n)Google Scholar. Byrne, Cf. Peter, Kant on God (Burlington, VT: Ashgate, 2007), 110–17Google Scholar; Beck, Lewis White, A Commentary on Kant's “Critique of Practical Reason” (Chicago: University of Chicago Press, 1960), 270–71Google Scholar.
70 This is Fleischacker's suggestion as well. See “Kant's Theory of Punishment,” 203–6.
71 CPr, 5:61 (63); my emphasis.
72 In his own discussion of equity in the Metaphysics of Morals, Kant does not mention the possibility of dispensations from the law of retribution. According to Kant, claims of right based on equity are nonbinding because no judge can be appointed to render a decision. Cf. 6:234–35 (27).
73 Beck, Commentary, 242–45.
74 Ibid. Despite defending the summum bonum as a synthesis of “architectonic reason” Beck nevertheless denies that it has “any practical consequences.”
75 See Shell, Susan Meld, The Rights of Reason (Toronto: University of Toronto Press, 1980), 94Google Scholar.
76 Taylor, Robert raises the same doubt in “Kant's Political Religion: The Transparency of Perpetual Peace and the Highest Good,” Review of Politics 72 (2010): 11–12CrossRefGoogle Scholar.
77 See Emil Fackenheim, L., “Kant's Philosophy of Religion,” in The God Within: Kant, Schelling, and Historicity, ed. Burbidge, John (Toronto: University of Toronto Press, 1996)CrossRefGoogle Scholar.
78 Ibid., 9.
79 Ibid. Cf. 15–18.
