Abstract
In analysing the Hobbesian philosophy of punishment, we observed a clash between a naturalistic account of man’s nature as a passion-dominated creature and an ideal juridical account of political obligation which ‘liberated’ man from his natural self. But in Hobbes, man’s material nature continues to contradict his other ideal juridical self, for the liberation is only superficial. The result is a philosophical eclecticism in which opposing views of man persistently cut across each other. The process of idealisation and abstraction necessary to create legal and political obligation via a social contract does not expunge man’s natural being, and so must face it at every turn. In Hobbes, the form of the justification of punishment is locked in conflict with the content of human nature. My argument in this chapter will be that the process of idealisation and abstraction begun by Hobbes and at the root of his proto-retributivism is maintained and developed by Kant in a more sophisticated fashion. With regard to the philosophy of punishment, this means that the retributive element in the Kantian theory assumes a predominant role.
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References
Both Kant and Hegel recognised that punishment could have effects upon individual and collective behaviour which were useful, but which were nothing to do with the justification of punishment. They could therefore recognise the need for an understanding of how punishment worked in practice, even although they themselves were concerned with the different question of its justification. This is the significance of the famous passage (below, at fn.2) in which Kant does not reject utilitarian effects of punishment but insists that punishment must first be deserved in the individual case. In what follows, I have used the modern translation by John Ladd: I. Kant, The Metaphysical Elements of Justice (New York, 1965). The implications of George Fletcher’s recent criticisms of the Ladd translation ((1987) Columbia Law Review 87, p.429) are not clear. Because of this and given that it remains the most accessible rendition, I have stuck with Ladd. In general, I refer to the work hereafter by its initials.
John Ladd: I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.100
John Ladd: I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.102.
John Ladd: I. Kant, The Metaphysical Elements of Justice (New York, 1965), p. 101.
John Ladd: I. Kant, The Metaphysical Elements of Justice (New York, 1965), p. 101.
B. Aune, Kant’s Theory of Morals (Princeton, 1979), p.169.
J. Murphy, Retribution Justice and Therapy (Dordrecht, 1979), p.100.
J. Murphy, Retribution Justice and Therapy (Dordrecht, 1979), p.100. In ‘Does Kant Have a Theory of Punishment?’ (1987) Columbia Law Review 87, p.509, Murphy partially recants his interpretation of Kant in the Rawlsian manner, stating that it does not properly square with the texts (p.523). But when he seeks to explain Kant’s position, he falls back on it (pp.521, 528–529), while acknowledging its failure to generate anything other than a hypothetical, not categorical, imperative (p.521). Not surprisingly, given this ambivalence, Murphy now doubts whether Kant had a theory of punishment. Murphy is right to identify the contradictions he does in Kant, but these should be the starting point for understanding the theory, not a reason for discarding it.
For the important differences between Rawls and Kant, see A. Levine, ‘Rawls’ Kantianism’, Social Theory and Practice (1974) 3, pp.47–63.
H. Williams, Kant’s Political Philosophy (Oxford, 1983), p.97.
I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.80, and see Translator’s Introduction, p.xxvii.
I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.105.
I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.83.
See also R. Plant, ‘Justice, Punishment and the State’ in A. Bottoms and R. Preston, The Coming Penal Crisis (Edinburgh, 1980) for a similar position.
I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.100. Murphy now implicitly concedes as much in his acknowledgement that the Rawlsian influenced interpretation generates only a hypothetical imperative to punish (above, fh.8)
I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.84.
I. Kant, The Metaphysical Elements of Justice (New York, 1965) p.3.
I. Kant, The Metaphysical Elements of Justice (New York, 1965), p.35. Murphy mentions the doctrine of just coercion (op.cit., p.97) only three pages before he argues for the quasi-contractual analysis, but does not attempt to link the two, presumably because of the Rawlsian influence. More puzztingly, Williams correctly notes in his discussion of justice that ‘the initial lawless act suspends the individual’s freedom’ and the punishment is allowed ‘because it counteracts the hindrance of an effect’ (op.cit., p.70). Yet he does not carry this insight over into his discussion of punishment itself, two chapters later.
I. Kant, The Metaphysical Elements of Justice (New York, 1965), pp.35–36 emphasis added.
B. Aune, Kant’s Theory of Morals (Princeton, 1979), p.164.
B. Aune, Kant’s Theory of Morals (Princeton, 1979), p.12
These positions are developed by Kant in chapter 3 of his Groundwork of the Metaphysics of Morals. I have used H. Paton’s translation: The Moral Law (London, 1948), and also referred to his The Categorical Imperative (London, 1953), chs. XX, XXVI, along with L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI.
I have also found helpful S. Korner, Kant (Harmondsworth, 1955), ch.7;
R. Walker, Kant (London 1978), ch.X; and
H. Williams, Kant’s Political Philosophy (Oxford, 1983), p.97., ch.3.
H. Williams, Kant’s Political Philosophy (Oxford, 1983), p.13
H. Williams, Kant’s Political Philosophy (Oxford, 1983), p.26.
H. Williams, Kant’s Political Philosophy (Oxford, 1983), pp.22–23.
H. Williams, The Moral Law, (Oxford, 1983), p.115.
E.g., H. Williams, The Moral Law, (Oxford, 1983), p.27: ‘Laws proceed from the Will; maxims, from the will. In man, the will is free. The Will, which relates to nothing but the law, cannot be called either free or unfree…. Only will can, therefore, be called free.’
H. Williams, The Moral Law, (Oxford, 1983), p.27.
H. Williams, The Moral Law, (Oxford, 1983), p.180.
Paton, The Moral Law, (Oxford, 1983), p.210;
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.190. For a concise definition of the two conceptions of freedom — liberty of spontaneity and liberty of indifference
see A. Kenny, Freewill and Responsibility, (London, 1978), pp.25–26.
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.190. Kant’s position on the nature of Willkur is slightly more complex than that suggested in the quote above from the M.J.E J. for he discussed it elsewhere under the title of arbitrium liberum in addition to arbitrium brutum. By the former Kant meant the ability of men to rise above immediate sensible impulses in order to comprehend their long-term interests. Such a position was also recognised by Hume and did not entail any shift away from the deterministic conception of Willkur since arbitrium liberum still falls ‘under the head of’natural necessity’ (Paton, op.cit., p.210).
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.34
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.34
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.43.
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.196
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., 1.105
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.209
I disagree with George Fletcher’s argument that Kant’s moral and legal theory are distinct and non-intersectional Claw and Morality: a Kantian Perspective’ (1987) Columbia Law Review 87, 533). They are different, but should be seen as interconnected elements in a single philosophical project. Fletcher’s approach cannot explain Kant’s theory of punishment which, he recognises, embraces both the juridical element and the categorical imperative (Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., pp.551–2). Kant’s theory can only be understood in the context of the dualisms at the heart of his discussions of freedom, law and morality. In that light, the interconnection between legal punishment and moral command is understandable, even if the end product is a contradictory theory.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.19. Here we see clearly the scope for utilitarian considerations, in Kant’s general conception of law and punishments.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.13.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.26.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.34, emphasis added.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.35.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.36.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.31.
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.31
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.1936
Paton, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., p.31.
Ladd’s translation may be misleading here since ‘inasmuch as it is the prevention of a hinderance to freedom’ perhaps suggests a more practical than metaphysical meaning. The original German reads: ‘als Verhinderung eines Hindernesses der Freiheit’. Als is normally translated as ‘as’ and Verhinderung can mean ‘hindrance’, ‘obstacle’ or ‘impediment’ in addition to the more practical ‘prevention’. Thus the passage can be rendered more metaphysically as ‘as being the hindering of a hindrance of freedom’. This is the translation given by W. Hastie in The Philosophy of Law (Edinburgh, 1887), p.47. The German is from volume 6 of Kant’s Werke (Konigliche Preussische Akademie edition) p.231.
G. Hegel, The Philosophy of Right (transi. T.M.Knox) (Oxford, 1952), p.246.
G. Hegel, The Philosophy of Right (transi. T.M.Knox) (Oxford, 1952), p.67
Not that this has stopped 20th century ‘ordinary language’ philosophers from wrenching Hegel’s meaning from its context. See, e.g. A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969). See chapter IV below.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p.99.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p. 100
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), pp.44–45.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p.105.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p.169.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p.36.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p.132.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p. 101.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p. 101.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p. 101.
A. Quinton, ‘On Punishment’ in H. Acton, The Philosophy of Punishment (London, 1969), p. 90.
See J. Murphy, Retribution Justice and Therapy (Dordrecht, 1979), p.86.
J. Murphy, Retribution Justice and Therapy (Dordrecht, 1979), pp.41–42.
H.L.A. Hart, Punishment and Responsibility (Dordrecht, 1979), ch.l.
H.L.A. Hart, The Moral Law, (Dordrecht, 1979), pp. 116–118.
H.L.A. Hart, The Moral Law, (Dordrecht, 1979), p.107.
H.L.A. Hart, The Moral Law, (Dordrecht, 1979), p.107
Letter to J.B. Erhard, in A. Zweig, Kant, Philosophical Correspondence 1759–99 (Chicago, 1967), p.199.
Quoted by Ladd in M. J., at p. 107.
Cf. Paton, op.cit., pp.214–215, 276–277; R. Walker, Kant (London 1978), ch.X; and, pp. 148–149.
See L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., pp. 192–194 for an attempted resolution. He suggests that the two ontological realms — the phenomenal and the noumenal — should be seen as two methodological approaches to a common world, differing only with reference to the purposes we hold in regarding the world in one way or another. Kant should be seen as holding a ‘two-aspect’ rather than a ‘two-world theory’. But if we take mis view, the problem of responsibility becomes harder not easier, for now it is resolved in terms of the purposes of the observer rather than the nature of the action, and we lose any independent guidance whatsoever as to the proper way of regarding the action.
L. Beck, The Moral Law, (Chicago, 1960) p.118.
L. Beck, The Moral Law, (Chicago, 1960) pp.29–30
See Paton, op.cit., pp.213–215; H. Williams, Kant’s Political Philosophy (Oxford, 1983), pp.66–67.
L. Beck, A Commentary on Kant’s Critique of Practical Reason (Chicago, 1960) ch.XI., pp. 192–194, attempts to build on this position by arguing that while Willkur has only comparative freedom in the sense that ‘the determining causes are internal to the agent and not compulsion from without’ (p.190), it can also be free ‘in the practical and phenomenological sense, as a faculty of spontaneously initiating a new causal series in nature….’ (p. 198). He does not explain how a will that is part of a causal series in nature can at the same time initiate such a series. This ‘solution’ appears simply to replicate the problem by using a dualistic definition of Willkur in place of the Willkur/der Wille duality.
Cf. R. Walker, Kant (London 1978), ch.X, p.149: ‘In his Lectures on Ethics… [Kant] recognises a gradation of different degrees of responsibility, saying for example that if a starving man steals food he is less responsible for his theft than a well-fed man would be, because he is less free; but this is incompatible with his official theory of freedom, whereby in each case the phenomenal choice is determined and the noumenal agents are equally free all the same.’
R. Walker, Kant (London 1978), ch.X, pp.131–133. In relation to bestiality, it is as well that utilitarian considerations do not enter into the determination of rightful punishment (but see M.E.J. p. 104), for in this case the punishment seems designed to encourage the crime.
R. Walker, Kant (London 1978), ch.X, p.132.
R. Walker, Kant (London 1978), ch.X, p.101.
R. Walker, Kant (London 1978), ch.X, p.72.
Murphy suggests (R. Walker, Kant (London 1978), ch.X, pp.84–86) that the best that can be hoped for from retributivism is a proportionality between crime and punishment in terms of seriousness, but he concedes that the measure of seriousness is a contentious issue. He therefore argues for an objective concept while acknowledging that no such concept exists. On the problem of proportionality, see the recent article by M. Davis, ‘Harm and Retribution’ (1986) Philosophy and Public Affairs 236. His alternative suggestion of grounding proportionality on the price people would be willing to pay for crimes seems equally susceptible to the problems of subjectivity. In Past or Future Crimes (Manchester, 1986), ch.6, A. Von Hirsch discusses the issue, but inconclusively.
R. Walker, Kant (London 1978), ch.X, p. 105. Without tracing the reasons for the problem in the structure of the theory, Murphy hits the nail on the head when he writes We want an account of unjust actions and we want an account of what it is to deserve (or not to deserve) punishment for such actions; but it would seem that Kant’s fondness for radical dichotomies (inner/outer, phenomenal/noumenal, justice/virtue, action/maxim) obscures rather than clarifies here’ (op.cit., fn.8, p.524).
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Norrie, A.W. (1991). Purifying Juridical Individualism: Kantian Retributivism. In: Law, Ideology and Punishment. Law and Philosophy Library, vol 12. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-0699-0_3
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