Any theory of justice needs to understand where punishment fits in. Who gets punished? Why do those people get punished? How much punishment? What things are punishable? Who does the punishing? When shoud someone not be punished? Given that punishing someone for something involves a loss of freedom and possibly damage, it is of the utmost importance to conduct the process of punishment properly. The famous 12 Angry Men makes this concept not only philosophically interesting, but emotionally riveting as well.
Many theorists have given a system of punishment, such as just deserts theories or utilitarian theories. However, Kant has a fascinating theory of punishment which is due to how fascinating and complex his theory is already. Historically, Kant has been used as a simple foil to other theories, the unhuman philosopher, and the archetypal retributivist (eye for an eye). Since Kant’s theory is so rich and since studying his theory of punishment for my independent study with Professor Sussman, I have gained a greater appreciation for Kant and how exciting philosophy is, his in particular.
Necessary to this post, you should have read this post before since it has the foundation that grounds his theory of punishment.
Central to Kant’s theory of right is the justified use of coercion. In the ideal condition, a state has force, freedom, and law, in which force is used to uphold the law in the name of freedom. Contrasted to the civil condition is the state of nature which has no justified use of coercion, it is just violence. The civil condition uses coercion with respect to freedom, so it is not just violence, to hinder hindrances of freedom. This is essentially what Kant’s theory of punishment is.
Once in a civil condition, the state posits laws, ideally in conformity to right, that are supposed to govern conduct. Punishment is the guarantee for the laws to be effective in space and time. Punishment is supposed to secure what is rightfully ours from unjust uses of coercion. For the law to be effective in this sense, punishment serves also as a threat. This threat helps guide external conduct, which is central to the effectiveness of a state in the external world. Citizens are (well, ideally should be) warned in advance what the punishment is for violating the law. Additionally, if someone does violate the law they will be tracked down by the executive branch of the state and once caught, the state makes it its job to make sure that the deed that was done is made null.
To unpack, we discussed before that right and virtue/ethics are different. The state is only concerned with right and to guide external actions in conformity with right. Similar to unconditional poverty relief, the state must secure itself in its monopoly on coercion and the supremacy of law as the ultimate guide of external conduct.
To guide external conduct, the state does this in two ways. One is by threats as a method of deterrence. The other is actually following through with these threats if the deterrence was not enough. Following through this threat is what punishment is. The reason that someone can claim damages if they have stolen property is that Kant has a solid theory of right and property rights. For example, if someone steals your book, you only lost the physical book and not the right to the book. In this case, the state can rightfully force the criminal to give the book back to the victim. If the criminal does not have the book to give back, the victim can be compensated financially (or something else) in an equal way.
This is where Kant comes in as the archetypal retributivist. For Kant, the ius talionis (eye for an eye) comes in as the upper bound for the punishment on the criminal. This is such that the criminal cannot be “made an example of” or used to “promote some greater good”. Kant also limits punishment from being “cruel and unusual” in a way as well, he says that due to the humanity in criminals we are limited from turning back their maxim on themselves in every case. We can take the book back from the criminal, steal from the stealer. But we cannot rape the rapist or torture the torture.
Another limit to punishment is that there are certain areas that the law does not or cannot shine its light in. Kant uses a case where there is a sailor who is at sea during a bad storm and to survive needs to push over the other sailor. Here, probable execution by the state in the future serves as no deterrence to the immediate death facing them now. Similar reasoning can be used for cases of self-defense. It is wrong to coerce people, but in these “pockets of barbarism”, you find yourself without the protection of the law and the law cannot guide conduct. It is within your external right here to use violence to defend yourself from being murdered. However, it does not give you full license to just kill them in return, like a cop you should try to instead restrain them if possible. In this cases, since the law did not serve as a deterrence, there can be no punishment.
There are even more cases where the law does not serve to deter people. The case we covered above is cases of duress. Even more could be cases of the mentally insane. Someone who is mentally insane might not be able to understand the deterrence of the law. However, this does not mean that the state should do nothing about the mentally insane. To prevent violence and to maintain a monopoly on coercion, there should be institutions and resources to help the mentally insane from hurting themselves or others and to live the best life they can.
Another area is negligence. The state wants to deter unjust uses of external coercion by making it such that the intent to harm is outweighed by the threat of the law and the state will make it such that whatever they wanted to gain from their crime will be made void. Someone who is negligent does not have this intent to harm so the law cannot serve as a detterence and similarly there can be no punishment. This does not mean all negligence is allowed. For example, a grocery store worker cannot claim negligence if they were given training to make sure that expired food is taken off the shelves since they knew in advance.
An important thing to note is that no where has internal motivations been mentioned. The state cannot and should not concern itself with whether or not people internally were motivated to follow the law. All that they care about is giving an external reason, punishment, to conform to right. You do not have to like paying taxes, but you have to pay taxes. This is why a court should not need to prove your internal state of mind, the defendant does not even have to say anything the entire process. It is up to the prosecutor to prove that your external actions align with the crime. We are reminded here of A Clockwork Orange.
There are two aspects of Kant’s punishment that people have made to make him seem like the simple minded retributivist. One is that he thinks that someone who murders deserves capital punishment. Capital punishment is not only the upper bound for Kant, but also the lower bound. I am not certain how to exactly make sense of this in the theory, but it is not entirely crazy a thing to say. It seems out of all the moral commandments you can follow in life, one is that you should not murder anyone. You can lie, you can steal, but murder is too far and shows a complete lack of regard for right. However, given the human condition it might make sense to make the lower bound not capital punishment, which would not be detrimental to Kant’s theory and may improve it.
Something that Professor Varden mentioned was in response to terrorism. It might be that the only way to have justice here, to say we truly value the human life as priceless is that we enforce capital punishment. Do not quote me or her directly, but it is possible if not likely if a terrorist was to truly come to terms with the reality of what they have done, to take responsibility for it, they may become suicidal. I am also reminded of a scenario of not a terrorist, called “One in the Chamber” by Famous Last Words.
The suicide of the character in the song stemmed from alcohol. according to this story, the man was driving drunk and he crashed and killed a little girl who was driving with her father. This story is his suicide note to his mother, explaining why he chose to go…
The other is the even worse passage about “blood guilt”.
Even if a civil society were to be dissolved by the consent of all its members, the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt does not cling to the people for not having insisted upon this punishment; for otherwise the people can be regarded as collaborators in this public violation of justice.
Enforcing the law by punishment is such an a priori necessary feature of the state, that it must be carried out. However, his wording here seems insane to the average liberally minded citizen today. I too thought this. I was reading more into transitional justice, after taking a course on it. The area of study is not Kantian heavy at the moment, but it could use some. A large debate is going on if the places like the ICC should use punishment like prison or execution (like the Nuremburg Trials). One side argues more for non-forceful options, like the way South Africa handled post-apartheid. However, there is the counter that to recognize justice and the truth means also to punish. If you commit genocide or murder for ethnic, religious, racial, etc reasons, you should be put in prison for 25 to life, you should be put to death.
There is a particularly harrowing story that makes the blood guilt passage less crazy to read.
Most often, forgetting cannot serve as the basis for peacemaking. It is destructive on both the individual and collective levels. It compounds the suffering of individuals by forcing them to watch their tormentors walk around freely, reenter politics, or maintain their posts in public service and the military. All of this takes place while their own painful memories and traumas remain unacknowledged. Furthermore, policies advocating forgetfulness decrease the chances that victims will be compensated for their suffering. The most common institutional products of such policies are laws granting amnesty. Typically, under such amnesties, perpetrators are protected from both criminal charges and civil liability. Amanda Pike, a reporter for PBS’ Frontline, tells a story which starkly demonstrates the cost of forgetfulness for individual victims. During a trip through the Cambodian province of Pailin, Pike came across Samrith Phum, whose husband was executed by the Khmer Rouge. Phum knows the murderer well. He is her neighbor and he operates a noodle shop across the street from her house. He was never arrested and never charged with her husband’s murder. There is no procedure through which he can be sued for damages. Phum must simply get used to the idea that her husband’s killer quietly manages his store next door (Pike 2002).
Granted that this was in response to forgiveness, and her husband’s murderer was not punished in any way that is lesser than prison or death, but the sentiment I am arguing for stands. If punishment is so vital to justice, to creating a just world, and to uphold what is right, it may be necessary. It is not so crazy to think that Hitler should have been given the death penalty, or the people closer to him in making these decisions, but they are not the only ones in the entire Nazi institution that helped orchestrate the most heinous atrocity in history. To let these people roam free or even to live may give the people “blood guilt”. Forgiveness and amnesty may not be the appropriate lower bounds.
A similar story by Professor Varden is that, if I recall correctly, in the 2011 Norway attacks, she said that the parents of the victims have a sort of murder pact that if he got out of prison they would kill him? This could be motivating something similar to what Kant is saying about blood guilt. Norway may have too lenient of a policy on this, it may actually be inhumane to let him live, it could be unjust. The lower bound and upper bound for terrorism might be capital punishment, but we might lower it for other types of murders.
Lastly, Kant has some weird statements about honor in relation to punishment. In the case of a duel of honor, the person who wins can not be punished for the murder. In the case of a mother who kills their baby born out of wedlock, the mother would not be punished for murder. How it seems to make sense here is that honor is similar to the sailor scenario. During Kant’s time, honor was something that was a stronger incentive than capital punishment by the state, so the state cannot punish for this. It seems odd because it is odd. I think what Kant is going for is that eventually, society would abandon this out of control honor mentality in hopes of conforming to right.
Another important part of punishment is that it is tied a priori to the state. So it seems hard, if not impossible on a Kantian theory of right for any international organization to have coercive laws. A state may be able to sign on to UN rights, it may be in their constitution, but what happens if say India starts going Nazi Germany on their minorities? Maybe it would be that India is no longer a state, but can be considered in civil war and their is no sovereignty we would violate.
The cases of domestic punishment is more straightforward in Kant’s theory and additionally almost all theories. What we should have done with the Nazis or in Rwanda, before or after or even during, is philosophically challening. Something I am struggling with morally and philosophically, which is why my independent study is centered around this.