Published online by Cambridge University Press: 27 September 2011
Unlike that of most liberal thinkers, Kant's theory of punishment is unabashedly retributive. For classical liberals punishment is justified only by the harms it can prevent, not by any allegedly intrinsic good served by making the guilty suffer. Here Hobbes' blunt insistence that the aim of punishment ‘is not a revenge, but terror’ is prototypical in substance, if not in style. Hobbes, Locke, Mill, Bentham and Beccaria, for all their differences, agree that punishment must look to future good rather than to avenging past wrongs. This attitude on the part of classic liberalism toward retribution is not surprising, given its association with the kind of theocratic politics liberalism arose to combat.
1 Leviathan, ch. 28. Cf. Hobbes, , A Dialogue of the Common Laws of England, ed. Cropsey, Joseph (Chicago: University of Chicago Press, 1971), pp.131Google Scholar, 140–1. (I am indebted to Bernard Harcourt for drawing my attention to this essay.)
2 Montesquieu's qualified approval of retributive punishment, in the interest of mitigating the harshness of tyranny, is an exception to the general ruie.
3 ‘Does Kant have a theory of punishment?’ Columbia Law Review, 87 (1987).
4 Lectures on Ethics (27: 286); tr. in Kant, , Lectures on Ethics, tr. Heath, Peter (Cambridge: Cambridge University Press, 1997), p.79.CrossRefGoogle Scholar For an alternative view see Fleischacker, Samuel, ‘Kant's theory of punishment’, Kant-Studien (1988)CrossRefGoogle Scholar; and Herbert, Gary B., ‘Immanuel Kant: punishment and the political preconditions of moral existence’, Interpretation (Fall 1995).Google Scholar For a defence of the claim that liberalism and retribution are incompatible, see Brubaker, Stanley C., ‘Can liberals punish?’, American Political Science Review, 82 (September 1988).CrossRefGoogle Scholar See also Margaret Falls, M., ‘Retribution, reciprocity and respect for persons’, in Law and Philosophy 6 (D. Reidel: 1987Google Scholar), and Hampton, Jean, ‘A new theory of retribution’, in Frey, R. G. and Morris, C. W. (eds.), Liability and Responsibility (Cambridge: Cambridge University Press, 1991).Google Scholar
5 All references to Kant's work cite the Academy edition (Berlin: Walter de Gruyter, 1968), followed, where possible, by an available English translation, here The Metaphysics of Morals, trans. Mary G. Gregor (Cambridge: Cambridge University Press, 1991).
6 The centrality of the problem of imputation both to Kant's thought in general, and to his ethical teaching, is not generally remarked, even by scholars who regard themselves as generally sympathetic to his practical project. Typical in this regard is the work of John Rawls (and many of his students). See e.g. Rawls, , A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), especially pp.235–57.Google Scholar On matters of punitive justice Rawls defers to Hart's, H. L. A. anti-retributive account of punishment in Punishment and Responsibility (Oxford: Clarendon Press, 1968).Google Scholar
7 See Metaphysics of Morals (6: 223–4; 50).
8 Critique of Practical Reason (5: 110), tr. in Critique of Practical Reason, ed. Lewis White Beck (Indianapolis: Bobbs-Merrill, 1956), p.114.
9 Metaphysics of Morals (6: 227–8; 53).
10 Metaphysics of Morals (6: 227–8; 53).
11 Metaphysics of Morals (6: 231; 57).
12 Metaphysics of Morals (6: 331–2; 140–1).
13 Cf. reflection no. 7289 (19: 303): the principle of retributive punishment consists in ‘each always being conscious that he acquiesces, according to the rule of justice, of being done to as he does to another’.
14 Juridically relevant injury, for Kant, is, in the first instance, a harm inflicted against the will. Hence, punishment, likewise, is harm inflicted against the will — it is impossible, says Kant, ‘to will to be punished’ (6: 335; 143–4) — and only incidentally or secondarily against the body and/or estate of such a will. This partly explains Kant's repugnance (now widely shared) for corporal punishment and other physical badges of shame, especially for adults, but also for children. His approval of castration and death as appropriate punishments for the crimes of rape and murder, respectively (see 6: 363; 169), is only an apparent exception to this rule. For what is essential to these penalties is not the indignity visited on the body of the criminal, but the denial to his will of the use of his body, either partly or in full, comparable to the denial he has wrongfully imposed on another. Recent efforts to revive the traditional practice of public shaming still baulk at the once acceptable practice of inflicting bodily harm (e.g. branding and public caning), a reluctance that betrays an essentially Kantian perspective on such matters. Cf. in this regard Michel Foucault, Discipline and Punish. Foucault's treatment of the punitive practices of ‘enlightenment’ is marred by a failure to consider sufficiently Kant's theory of punishment, including, in particular, the basis of Kant's distinction between punishment and discipline — a distinction crucial to Kant's own understanding of enlightenment.
15 Compare especially, in this regard, the apocalyptic language of Perpetual Peace.
16 See Hegel, Philosophy of Right, Part I.
17 It is not participation in positive law-making per se, but participation in enlightened law-making that is juridically crucial for Kant. It is no injury, by Kantian lights, to be barred from voting if one lacks the characteristics of sex and occupation that facilitate enlightenment in the required sense. That there may be exceptions is no more an objection to this rule than the fact that some children are ‘wise beyond their years’ is an objection to the practice of denying the vote to minors.
18 Murphy, for one, dismisses Kant's argument as a species of ‘dark muttering’.
19 Cf. Perpetual Peace (8: 375); tr. in Reiss, , Kant's Political Writings, 2nd edition (Cambridge: Cambridge University Press, 1991), p.120.Google Scholar
20 That these words share a common root underscores the complexity of the underlying phenomenon as traditionally conceived. Kant's association of virtue with equality of rank (rather than distinction) owes much to Rousseau. See here especially Kant's famous confessional note, in which he credits Rousseau with ‘turning him upright/around’ (zurecht) from a sense of human honour (Ehre der Menschheit) based on his own intellectual progress and concomitant contempt for ‘the masses (Pöbel), who know nothing’, to an honour altogether dependent on belief that his philosophy might help establish the ‘rights of man’ (20: 44).
21 Kant may be alluding here to Aristotle's punning reference, in his denunciation of usury, to the Greek tokos, which means both Offspring' and ‘interest’.
22 Cf. Marx on use and exchange value, and, in particular, his discussion of surplus value (or human labour objectified as capital) as the mechanism by which man, the end setter and hence maker of value, is himself commodified.
23 On the history of the military aristocracy in Germany, including its peculiarly destructive role in the Thirty Years War, see Holborn, Hajo, A History of Modern Germany: The Reformation (New York: Alfred A. Knopf, 1959), pp.323ff.Google Scholar
24 Cf. the superficially similar case of the castaway who ejects another from a plank in order to preserve himself. Kant calls such a person Objectively culpable' but ‘subjectively unpunishable’ because the threat of future execution could not reasonably deter an act of immediate self-preservation (6: 235–6; 60–1). In this, as with crimes of honour, perpetrators find themselves in something like a state of nature, the difference being that those who commit crimes of honour act for the sake of something other than mere life.
25 Cf. Conflict of the Faculties, Part II (‘An old question raised again: is the human race constantly progressing?’) 7: 86; tr. by Mary J. Gregor (New York: Abaris, 1979), p.155. Kant there contrasts, to the latter's detriment, the ‘zeal and grandeur of soul’ which the concept of right produced in the defenders of the French nation, with the ‘concept of honor among the old martial nobility’, a concept that is enthusiasm's ‘analog’. The ‘vanishing’ of that concept before ‘the weapons of those who kept in view the right of the nation to which they belonged’ is a sight that brings ‘exaltation’ to the external, onlooking public, who ‘sympathized without the least intention of assisting’. This disinterested and personally risky exaltation before the spectacle of aristocratic valour succumbing to a (in itself ‘not wholly estimable’) democratic enthusiasm gives singular proof, according to Kant, that humankind is morally progressing. What elevates traditional martial honour is the disregard that it evinces for mere well being, a disregard it shares with the dissatisfaction of a free being with the pleasure of life's comforts. On moral fortitude in the struggle against vice as the ‘only true honor one can win in war’ see 6: 406; 206.
26 One is here reminded of the ‘spectator’ whose lack of delight in unmerited prosperity introduces Kant's Grounding of the Metaphysics of Morals. Cf. Foucault's very different treatment of the disinterested ‘spectator,’ along with punishment as a theatre of spectacular pain.
27 Metaphysics of Morals (6: 312; 123–4).
28 Cf. Leviathan, ch. 15, law 21. For Hobbes, the right to freedom from the will of others derives from a prior and more fundamental right to self-preservation. Kant, by way of contrast, gives freedom priority over self-preservation — a fact that goes some way toward explaining their divergent attitudes toward retributive justice.
29 Cf. Kant's treatment of lying as it bears on the relation between right and ethics at 6: 238n.; 63n. Lies, which always constitute a violation of one's ethical duty, do not violate the rights of others, for Kant, except where one explicitly avows (promises?) that one is telling the truth.
30 Men's inability to give up respect for the concept of right is a persistent theme in Kant's political thought. See e.g. Perpetual Peace, 8: 376n.; 121n.
31 See 8: 41 Iff. Kant's portrayal of this condition as an idea which can be written but not spoken points to the peculiarity of its status: the not yet realized idea of justice is at once a contradiction and the sole means available for its resolution. It is noteworthy that the idea of justice here assumes a form only expressible in writing.
32 This view of the citizen as one who has standing to speak publicly may help explain Kant's depiction of woman's civic immaturity (Unmündigkeit, or, as he literally understands it, ‘mouthlessness’) as flowing from a peculiar, and naturally justified, reluctance to, as we say, speak up for herself. It is also useful to note Kant's singling out of language (Sprache) (and religion) as the force that can be counted on to preserve the separateness of nations. (See Perpetual Peace, 8: 367–8; pp. 113–14.) Kant may have regarded himself as a citizen of the world, but he also took care, in his mature or independent writings, to speak to it in and as a German.
33 State of Kansas vs. Hendriks.
34 See Perpetual Peace (8: 378–9; 123).
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