05/10/2018
The debate on punishment is wide-ranging and well worn. In general for those who believe that the punishment of criminals by the state can be justified the lines are drawn between those that rest on deterrence arguments, be it special or general, and those that rest on retributivist arguments (although it is often not as clear cut). I will be assessing Kant’s justification for the punishment of criminals by the state. He is often portrayed as a thorough retributivist. I will referring to B. Sharon Byrd’s interpretation of Kant’s theory of punishment, which aims to show him as not thoroughly retributivist but rather considerate of deterrence too. In order to assess this interpretation I shall also consider a critique of it by Jean-Cristophe Merle. All this will amount to a defence of Byrd’s interpretation of Kant, and I will argue that thus interpreted Kant’s justification for the state punishing criminals is adequate.
Kant is traditionally interpreted as a retributivist, meaning he justifies punishment on the basis of retribution – a punishment is “imposed on the criminal simply because he has committed a crime”. [1] Importantly this is not the vengeance of the victim, retributivist theories tend to defer to a neutral body, namely the state. Thus the question arises: how is the state justified in meeting out this retribution? Kant’s answer to this arises from his moral theorising. For him, human beings, or more strictly rational beings, must never be treated as a means to an end. [2] The deterrence justification, insofar as it is often consequentialist, treats people as a means to an end, with that end being the deterrence of further crimes.
Freedom of choice for Kant is a presupposition of morality, if there were no metaphysical freedom then morality might be an illusion. [3] Hence the ‘laws of freedom’, as he termed the principles which govern rational beings, were divided into the juridical and ethical since they concern moral (practical) choice, the former corresponding to the external (phenomenal) the latter the internal (noumenal). [4] To unpack this distinction between external and internal duties: they are distinguished based upon the types of duties and motivations attached to them; external duties are empirically verifiable as all is required is external correspondence of an actor’s deed with the legal obligation, furthermore this is motivated only externally via force. [5] The internal is the field of ethical maxims, rules by which subjects direct themselves in action. [6] To illustrate: if A adopts the maxim ‘one should always keep one’s promises’ but then breaks said maxim by lying to B he may be said to have done something morally reprehensible (certainly for Kant) but legally acceptable – motivation for keeping such a maxim is internal to oneself.
If A were then to murder B, then A would be breaking external laws of freedom, in fact what Kant calls the universal principle of justice: acting in such a way that the free use of one’s will is compatible with the freedom of everyone according to a universal law. [7] This then is the basis on which criminals may be punished. When one exercises one’s “sole innate right” [8], namely freedom, in such a manner that it infringes upon another’s then one is acting unjustly. It can now be seen why Kant thinks criminals must be punished. The punishment to then be inflicted upon said criminal must, according to the rule of equality, be equal to the crime committed – nothing more, nothing less, else further injustice be created. [9] One may now see why in The Metaphysics of Morals Kant states: “All murderers… must suffer the death penalty” [10], for him this is the only way to redress the balance and correct the injustice inflicted.
There are clearly many issues with this conclusion, I will mention two. Firstly it appears that there is a contradiction: Kant states that a rational being’s innate right is freedom, yet argues that said freedom ought to be restricted if one is going to restrict the freedom of another by committing a crime. Granted it is perfectly reasonable, but simply appears peculiar, after all prima facie aside from security there appears to be little else one gains from civil society that one could not also get in the supposed state of nature. One cannot have freedom as an intrinsic right, but then have that freedom restricted in the name of the universal freedom of everyone; to do so it would seem that not everyone would be free, since no one could be free to do as they pleased.
Secondly, there is an issue with Kant’s prescription of the death penalty for murderers. It appears to be another bizarre contradiction: if willing as a universal law that rational beings not be killed, as such a thing is indeed a categorical imperative for Kant since they are being treated as means to an end, then to say that the murderer must himself be murdered, and further to ascribe to this a sense of justice, seems a most grave contradiction. Kant himself appears to appeal to the notion of honour in The Metaphysics of Morals [11], but since this isn’t relevant to his moral theory or in fact his juridical, it might be taken to simply be a result of his historical period. However, the contradiction still stands.
B. Sharon Byrd offers an interpretation of Kant on the justification of punishment that goes against the traditional purely retributivist one, and in so doing solves the contradictions that arise from the latter interpretation. She says of Kant’s position: “If the purpose of criminal law is to provide security for the common will, a retributive theory of justice seems out of place.” [12] In locating the purpose of criminal law for Kant in the security of the common will, she states that since retribution occurs only after the crime, concerns over security cannot be a consideration of retributive justice and as retribution is central for Kant it cannot be the entire ground on which he bases his justification of state punishment. [13] Byrd offers a useful distinction, between the threat of punishment and the execution of punishment, which she uses to illuminate the deterrence aspect of Kant’s grounds of justification. The threat induces compliance to the legal norm and deters violations of it [14], and the execution ensures on the one hand that the threat is effective and on the other that justice is served via retribution. [15] For Kant security is the reason the state is formed, and its duty to punish arises from the duty to ensure said security. [16]
Effectively her reasoning is thus: if according to Kant the duty of the state is security then it must punish, but if retributive punishment cannot be concerned with security then security must be the concern of deterrence and in order for it to deter the punishment must be effective and the only just and effective punishment for Kant is retributive punishment, since it treats agents as free, rational beings, as ends unto themselves. Thus Kant is not thoroughly retributivist, but is considerate of deterrence. Deterrence is the general justification for punishment through its threat, and retribution is the means by which that punishment is executed justly. She instead interprets Kant as offering a “mixed theory” as Jean-Cristophe Merle labels it. [17]
This interpretation seems to have merit, it is both backed up by sound reasoning and textual evidence. Further it does indeed solve the issues raised earlier. The apparent contradiction over freedom is settled via the threat of punishment: human beings are still respected as free, rational agents, they are given a choice to ignore the threat and break the law. It also still respects them as ends in themselves, since the punishment they will receive is proportional to their crime, and not used to deter crime but rather considered to be what they are owed in virtue of their unlawfulness. Unfortunately, it doesn’t help with the second contradiction raised, but that appears to be down to the culture of the historical period and not his philosophy as such.
Merle attacks Byrd’s interpretation for not really adding anything significant. If a prerequisite of punishment (according to Byrd’s interpretation) is that it must have some deterrent effect, then it seems that every punishment deters at least someone. [18] Even if murder was punished by a ridiculous crime, such as a fine, it would still deter some murders, thus deterrence appears to be always fulfilled by the retribution principle insofar as it punishes. [19] The point made then is that Byrd’s interpretation, her insistence on the deterrence aspect being entwined with the retributive aspect of Kant’s theory of punishment, adds nothing that isn’t already provided by the retributive justification. This reduces Byrd’s efforts to pointlessness, since the aspect she is trying to highlight is in fact already accounted for by the thoroughly retributivist interpretation of Kant. In short, her interpretation fails.
If we take Merle’s criticism to succeed, let us see if it can deal with the contradiction raised earlier. If Kant is to retain the ability of freedom for rational beings as an innate right, then for the state to restrict that freedom in the name of universal freedom seems a contradiction for if everyone’s freedom is restricted then everyone cannot be free. By taking deterrence to be a by-product of sorts of retributive justice, and not a justification, Merle retains the threat of punishment with which Byrd’s interpretation solved the contradiction. Yet because he removes deterrence as a justification, and deterrence is the goal of ensuring security which is the duty of the state, it doesn’t seem that retribution can be an effective justification on Kant’s grounds. This is because, as Byrd notes, retribution must necessarily occur after the crime, and so any notion of deterrence in fact cannot be bound up within it, prior to it, unless it is a justification itself of it. If A murders B, then A will be punished under the retribution principle, but it stops there, there is no other consideration given.
Furthermore from Kant’s position, which after all is what we are considering, the justification to punish A comes from the universal principle of justice, A restricted B’s freedom by killing him, and thus ought to be punished but this punishment can only be justified iff (1) it is effective enough to deter some future crimes thus guarantee the state is adhering to its duty of ensuring security and (2) respects him as an end in himself. The justification of the state to punish criminals is provided by the deterrence principle in addition to the retribution principle. Thus is appears that in fact Byrd’s interpretation stands, as Merle’s critique seems to fail.
To conclude I am confident I have shown Byrd’s mixed theory interpretation of Kant to have withstood the criticism of Merle. Further, that Kant’s justification, under Byrd’s interpretation, is adequate to justify the state punishment of criminals due to (1) it being the duty of the state to ensure security, and this entails deterring future crimes, and (2) respecting citizens as free, rational agents and not using them as a means to an end, which entails the retributive principle.
Notes
[1] Immanuel Kant, “The Metaphysics of Morals” (1797) in Kant’s Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1991 (1970): p. 155.
[2] Ibid. p. 155.
[3] John Kemp, “Practical Philosophy” in The Philosophy of Kant (Oxford: Oxford University Press, 1979 (1968)): p. 57.
[4] B. Sharon Byrd, “Kant’s Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution” in Law and Philosophy, Vol. 8, No. 2 (August 1989): p. 160.
[5] Ibid. p. 167.
[6] Ibid. p. 166.
[7] Kemp. Op. cit. p. 85. 8 Ibid. p. 85.
[9] Ibid. p. 89.
[10] Kant. Op. cit. p. 157. 11 Ibid. pp. 157-159.
[12] Byrd. Op. cit. p. 183. 13 Ibid. p. 183.
[14] Ibid. p. 183.
[15] Ibid. pp. 192-193.
[16] Ibid. pp. 186-187.
[17] Jean-Cristophe Merle, “A Kantian Critique of Kant’s Theory of Punishment” in Law and Philosophy, Vol. 19, No. 3 (May 2000): p. 312.
[18] Ibid. p. 314.
[19] Ibid. p. 315
Bibliography
Byrd, B. Sharon. “Kant’s Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution” in Law and Philosophy, Vol. 8, No. 2 (August 1989): pp. 151-200.
Kant, Immanuel. “The Metaphysics of Morals” (1797) in Kant’s Political Writings. Edited by Hans Reiss. Cambridge: Cambridge University Press, 1991 (1970): pp. 136-176.
Kemp, John. “Practical Philosophy” in The Philosophy of Kant. Oxford: Oxford University Press, 1979 (1968): pp. 56-97.
Merle, Jean-Cristophe. “A Kantian Critique of Kant’s Theory of Punishment” in Law and Philosophy, Vol. 19, No. 3 (May 2000): pp. 311-338.