Summary/Comparative Insight — Kant
In The Metaphysics of Morals, Immanuel Kant writes on the “right to punish and grant clemency.” He believes that the right to punish is the right of a ruler to inflict pain upon a subject in response to a crime committed by the subject (140). He distinguishes between private crimes and public crimes — private crimes go before civil courts, whereas public crimes are settled in criminal court, since they actually “endanger the commonwealth,” not just one individual person (140). Indeed, breaking criminal law is often seen as an act against the entire state or community of people, as evidenced by the naming of criminal court cases “The State v. _____.” Kant believes that public crimes can be split into crimes originating from a “mean” character and those stemming from a “violent” character (140).
To Kant, punishment for crimes is a categorial imperative. He criticizes those who seek “eudaemonism” within criminal justice (141). Eudaemonia is the Greek word meaning “happiness”, and what Kant is criticizing here is essentially the consequentialist and utilitarian perspectives of justice that we examined last week. Essentially, these theories seek to maximize happiness for the greatest number of people, view punishment as an evil that ought to be pursued only if it prevents greater evil, and focus on the “advantages [punishment] promises” (141). For Kant, this view is problematic because justice itself is worthwhile, not as a means to an end, but as an end in itself. Further, he states that “justice ceases to be justice if it can be bought for any price whatsoever,” suggesting that justice is undermined and perhaps even destroyed altogether if it is used merely as a means to an end (141).
So how should punishment be meted out, according to Kant? His principle is: “whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself” (141). What Kant means by this principle is illustrated by an example that he provides: If you steal property from someone else, you make the property of everyone else insecure and therefore deprive yourself of security in any possible property (142). In one sense, by stealing property, you threaten to undermine the entire institution and security of property-owning, including for yourself. Retributivism requires that the punishment fit the crime, i.e. that the punishment is proportional to the crime. Kant thinks that some crimes should be punished with prison and that imprisoned people should work (and in some ways be reduced to a slave) so as to not have the state provide for them for free. However, the proportional punishment of some crimes, like murder, is death (142). As Kant says, if someone “has committed murder, he must die…there is no substitute that will satisfy justice” (142). The proportionality of punishment not only fits the crime but also responds to the “inner wickedness” of the criminal. In some circumstances, Kant thinks that imprisonment or death could be the proportional punishment for acts done in accordance with duty, but that people should prefer and value death, which is honorable, over imprisonment, which reduces one to essentially slave labor (142–143).
In answering some objections to his view, Kant addresses one made by Marchese Beccaria, who, “moved by compassionate feelings of an affected humanity,” argued that capital punishment is wrong because no one would consent to lose his life (143). Kant, in reply, calls this perspective “sophistry and juristic trickery” and makes an important distinction in noting that no one suffers punishment because they willed punishment, but because they have willed punishable action (143).
Lastly, in an interesting discussion, Kant addresses two crimes that he thinks deserve death, but that he is doubtful about allowing legislation to impose death upon. The first is a mother’s murder of her child when she is unmarried — Kant thinks that since the child is technically born “outside of the law” (i.e. outside of marriage) and is “like contraband merchandise,” then the law does not really have jurisdiction over these cases. This is a problematic view for very obvious reasons. The second case seems much more defensible — the case of military soldiers dueling and exposing themselves to death for the sake of honor (144–145). Since duels involve two adults who can make decisions about their values (life vs. honor), it seems that consenting parties to a duel would not really be committing murder and that arguably, it could be overreach of the legislation to punish such duels by death.
To conclude this post, it is clear that Kant is a non-consequentialist and a retributivist, at least in some sense of the term. He does not believe that punishment should be meted out based upon what ends it can achieve, but rather because justice itself is an end and that it is an imperative for justice to be carried out in proportion to the severity of the crime. From Kant’s perspective, it seems that compassion and mercy for criminals, at least with regard to public crimes, have no place within a justice system.
Kant, Immanuel. (1991). The Metaphysics of Morals. New York, NY: Cambridge University Press.
Note: In-text references correspond to page numbers, not sections.