A Kantian Critique of Kant\'s Theory of Punishment

A Kantian Critique of Kant's Theory of Punishment Jean-Christophe Merle Law and Philosophy, Vol. 19, No. 3. (May, 2000), pp. 311-338. Stable URL: http://links.jstor.org/sici?sici=0167-5249%28200005%2919%3A3%3C311%3AAKCOKT%3E2.0.CO%3B2-V Law and Philosophy is currently published by Springer. Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/about/terms.html. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/journals/springer.html. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is an independent not-for-profit organization dedicated to and preserving a digital archive of scholarly journals. For more information regarding JSTOR, please contact support@jstor.org. http://www.jstor.org Thu Apr 19 23:57:26 2007 JEAN-CHRISTOPHE MERLE A KANTIAN CRITIQUE OF KANT'S THEORY OF PUNISHMENT * (Accepted 23 March 2000) ABSTRACT. In contrast to the traditional view of Kant as a pure retributivist, the recent interpretations of Kant's theory of punishment (for instance Byrd's) propose a mixed theory of retributivism and general prevention. Although both elements are literally right, I try to show the shortcomings of each. I then argue that Kant's theory of punishment is not consistent with his own concept of law. Thus I propose another justification for punishment: special deterrence and rehab- ilitation. Kant's critique of utilitarianism does not affect this alternative, which moreover has textual support in Kant and is fully consistent with his concept of law. Utilitarianism and deontological ethics have traditionally dominated the debate on the justification of punishment and been asso- ciated respectively with deterrence theories of punishment and with retributivist theories of punishment. Nowadays the debate about the justification of punishment is increasingly dominated by mixed theories (cf. Byrd. 1989; Scheid, 1983: Holtman, 1997: Hill, 1997; Hoffe, 1998). Most of these mixed theories represent an effort by deontological, e\pecially Kantian philosophers to break with the traditional view of the deontological, especially Kantian justification of punishment as a thoroughly retributivist theory. Indeed, it is with good reason that such a theory has been suspected of relying more on private morality than on principles of right. In the following, I shall assess the success of these attempts to strengthen the Kantian retributivist theory by integrating into its I would like to thank Sharon Byrd. Matthias Kaufmann. Thornas Pogge, HervC Pourtois and Bruce Toombs for their very helpful comments. I am also grateful to the Humboldt-Stiftung and the Department of Philosophy at George- town University in Washington, D.C.. for having granted me the Feodor-Lynen- Fellowship which made it possible for me to write this article. Law ~lrzdPlziloro~pllr.19: 3 11-338, 2000. O 2000 Kl~luxerAcademic P~rhli.therc..Printed ln the Netherlaricls. 3 12 JEAN CHRISTOPHt h lERLt justification an element of deterrence, or prevention. First. I shall try to show that they are mixed only in appearance. while still com- pletely resting on a retributivist foundation. Second, I shall inquire into the justification provided by Kant for the principle of retribu- tion and into the kind of retribution he adopts. I shall point out the weakness of Kant's argument for his principle of retribution. Then I shall propose a principle of punishment that in my ~riecv fits Kant's principle of right better than does his own conception of punishment. I shall constantly arid deliberately rely upon this principle of right as a criterion for judging the righteousness of any principle of punishment. Kant expresses the principle of right in the Ilztn~diic~tiorzto the Doctrine c?f'Rigl?t, #D: "Right is therefore the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom" (VI. 230.Gregor 24). On this basis I shall criticize and try to reconstruct Kant's theory of punishment. I . T H E I N T E R P R E T A T l O N O F K A N T ' S P E N A L L A W A S A M I X E D T H E O R Y ( B Y R D ) For a long time the debate about penal law has been dominated by the dichotomy between retribution, illustrated in an exemplary way by the Kantian school, and general detentenee, by which I mean deterring the commission of future crimes not only by criminals themselves but also by other citizens. However. the situation has recently shifted radically, and the discussion is now dominated by explicitly mixed theories. Retributivist and deterrence theories are now thought to restrict and comple~nent one another. On the one hand. theorists of general deterrence clearly make culpability a prerequisite of any pu~iishnient and agree with a kind of proportionality between crime and punishment. On the other hand retributivists usually agree that the principle of retribution. although a moral principle in itself, does not qualify as a principle of law in so far as the punishment it would require is obviously unable to deter any crime. Each position con~pliments the other, because the element in which each is stronger is also that in which the other is weaker. The general deterrence theory remedies the weakness of the retribu- A KANTlAN CRITIQUE OF KANT'S THEORY OF PUNISHMENT 313 tion principle by providing a rationale for punishment that clearly does not connect it to private morality, but rather to the system of public law. Retributivism remedies the deterrence theory by provid- ing a principle that gives an easy answer to the question of the degree of punishment and seems unobjectionable regarding justice towards individuals. Sharon Byrd's important article on Kant's penal law brilliantly formulated this combination against the traditional view that Kant's penal law was thoroughly retributivist. Her argu- ment is that the system of law needs to be guaranteed against the inclination of citizens to break the law, and that it obtains this guarantee by threatening them. Thus deterrence is the fulfilment of the public right of coercion. But once the finality of punishment is defined in this way, the execution of punishment, i.e. its type and degree, no longer follows the deterrence principle. Rather, it follow5 the retribution principle. The main reason alleged for thi? shift from deterrence to retribution is that only the latter treats human beings not merely as means but as ends in themselves. She pointed out that in Kant's Dnctrivle of Right deterrence is the fulfilment of punishment considered as a threat, while retribution is the principle followed by the execution of punishment, so that deterrence and retribution are mutually "restrictive", according to Byrd. Although Byrd claims that in this combination deterrence and retribution are mutually restrictive, there is an obvious asymmetry which, in my view, privileges retributivism and explains the appeal of Kant's retributivism in the last decade. Indeed, in Byrd's recon- struction, even though general deterrence is said to constitute the aim of punishment, retributivism provides its degree. I would express it in the following way: Citizens should be punished for their potential crimes if and only if: I) the threat of the punishment may deter them (deterrence condition), nrzd 11) the punishment punishes the crime (retributivist condition), and 111) the degree of punishment is determined by the principle of retribution (I shall define this principle more precisely below). 314 JEAN-CHRISTOPHEMERLE The first two conditions are merely negative prerequisites. If these are not satisfied. both punishment and the threat of punishment are prohibited. Nonetheless, they don't positively determine the kind and degree of punishment. To illustrate this point, let me consider the strongest example upon which Byrd rests her new interpretation of Kant: There can be no pc~nul l r r~~ . that would assign the death penalty to someone in a shipwreck who. in order to save his own life. shoves another. whose life is equally in danger, off a plank o n which he had saved himself. For the punishment threatened by the law could not be greater than the loss of his own life. A penal law of this sort could not have the effect intended. \ince a threat of an ill that is still ~lrlc.ertaitl(death by a judicial verdict) cannot outweigh the fear of an i l l that is certrriil (drowning). Hence the deed of saving one's life by \,iolence is not to be judged inculpable (irlc,ulpclhilr).but only unp~~nishable ( . . . ) (DR.(iirlp~rrlibile) "Appendix to the Introduction of the Doctrine of Right". 11. V1. 336. Gregor 2 8 ) . Kant adopts two premises. The first is that the penal law "would assign the death penalty" (retributive determination of the degree of punishment: point 111). The second one is formulated indirectly, that is, negatively: " A penal law of this sort could not have the effect intended". the logical contrary of which is that we demand of the penal law that it should deter the crime. which means that i t cannot be proven that the threat has no effect. This logical contrary does not mean that the deterrent effect must be either proven or certain, or maximize. and so on. This is so weak a prerequisite that I wo~lder whether any imaginable punishment could ever fail to meet i t . Is there really nobody who would prefer the certain drowning to the uncertain death by a judicial verdict? If the risk of being caught (for instance because there were witnesses to the event. or for any other reason) is not negligible. is there really nobody wl~o would prefer to be drowned and mourned by others as someone who died tragically. if the alternative were the dishoilor of a public condem- nation which would possibly or probably be followed by death at any rate? To stress the point. suppose that the court would prob- ably find extenuating circumstances and sentence the criminal to twenty years in jail, so that the person who has to make the choice either to murder or be drowned is sure that she will not die if she commits murder. Can we exclude the idea that she might prefer to die tragically rather than to survive in jail. loosing honor and career? A KANTIAN CRITIQUE OF KANT'S THEORY OF PUNISHMENT 315 If so, then the threat of a death penalty (or even the threat of prison) really deters some murders even in such a "case of neces- sity". I admit that a not "uncertain" death by a judicial verdict would increase the deterrence effect, that is, it would deter some murders that the uncertain threat of death or prison by a judicial verdict would not. In at least some cases "[. . . ] a threat of an ill that is still uncertain [. . . I " can and in fact does "outweigh the fear of an ill that is certain [. . . I". The logical contrary of "could not have the effect intended" only required some deterrent effect. It did not require a maximized deterrent effect. Therefore there can be a penal law that would assign the death penalty (or a lower punishment) in such a "case of necessity". More generally I can see no punishment, no infliction of pain on guilty persons, of which we can say that it cannot deter at all (the punishment of innocents, on the other hand, may con~pletely fail to deter future crimes, probably because such punishment is not related to a crime). Even if murder were punished by such a ridiculous penalty as one month in jail or a $10,000 fine. this still would deter some murders. It would, that is, have a deterrent effect. Since the retribution principle prescribes the punishment for all crimes, the prerequisite mentioned above (that punishment must have come deterrent effect) seems to always be fulfilled. Thus the deterrence requirement does not restrict the retribution principle at all. Inversely, the retribution principle certainly does not restrict the deterrence principle, because the deterrence principle only requires some deterrent effect. But if (contrary to Kant as interpreted by Byrd) we were to understand the deterrence principle as deter- mining the degree of punishment, it would then aim to maximize the deterrence. In this case the retribution principle would restrict the deterrence principle. In our "case of necessity", the maximization of deterrence would require not merely the death penalty, but death qfter long and various tortures. One might object that the ban on torture means only that punish- ment doec not exceed a certain threshold dictated for instance by the prohibition of either cruelty or inhumanity, but that below this threshold the deterrence principle still can dictate the adoption of the most deterrent punishment. This could be an alternative approach, but it certainly isn't Kant's and Byrd's, because the retribution prin- 316 JEAN-CHRISTOPHE~ I E RL F ciple does not give any latitude to any kind of leximin. Rather, the retribution principle allows only one solution, for instance death for murder as in the above mentioned case of necessity. If in Byrd's mixed theory there is no incompatibility between the retributive element and the element of deterrence, the only reason is the weak criterion adopted by the latter: the punishment rnust deter seine future crimes. This criterion is fulfilled by the retributive principle, and hence does not really restrict it. All the mixed the- ory adds to the classical retributive principle is that the classical retributivism would not be justified unless the threats of punishment it prescribes actually deterred something. Claiming that for Kant the finality of punishment is deterrence is just a way to make the case for retributivism stronger. For the rest, the mixed theory pre- scribes the same degree of punishment as the classical retributivist theory. In order to express more clearly my point that the mixed theory is not really a mixed theory, let me distinguish the possible meanings of the retributivist theory and of the theory of general deterrence. Retributivism can involve at least four theses: (a) All criminals and only criminals should be punished. (b) The punishment of the criminal constitutes retribution for the crime committed. (c) The degree of punishment should be (ordinally. not cardin- ally) proportionate to the crime. i.e. the scale of punishments must correspond to the scale of crimes. By this 1 mean that a more serious crime should be punished more severely than a less serious crime, and that two equally serious crimes should result in punishments that are each as severe as the other. (d) The degree of punishment must be equal to the crime. Thesis (c) compares two sets of proportions. i.e. the proportion between several crimes and the proportion between several pun- ishments. On the contrary. thesis (d) directly links a crime to a punishment without considering these proportions. Thesis (c ) obvi- ously does not imply thesis (d). Thesis (c) forbids that we punish someone who has stolen clothes from a store more heavily than we would punish a murderer. Now consider the following possi- bilities. First possibility: the thief is sentenced to serve one week of community service and the murderer is sent behind bars for twenty A KANTIAN CRITIQUE OF KANT'S THEORY OF PUNISHMENT 317 years. Second possibility: the thief goes to jail for one year and the murderer is sentenced to death. Third possibility: the thief is sen- tenced to one week community service and the murder to death. All three examples comply with thesis (c). However they do not merely represent very different approaches to penal legislation. The first of them certainly fails to comply with thesis (d), because the murderer is not sentenced to death. It seems to me that the third possibility better fulfils the criterion for thesis (d) than the second one, but I admit that this might be controversial. I shall not discuss the ques- tion whether one could imagine a penal law which fulfilled thesis (d) without fulfilling thesis (c), though this seems to me not impossible. The only purpose of my distinction between thesis (c) and thesis (d) is to reject thesis (d) as incompatible with Kant's concept of right, even though Kant actually defended this thesis, while admitting that thesis (c) is statistically true (I shall explain later what I mean by 'statistically'). I observe that theses (a) to (d) remain untouched by Byrd's mixed theory. Let now distinguish the possible thesis concerning deterrence: ( a )Future crimes are deterred by the punishment of actual crimi- nals. Contrary to the following two theses, this descriptive thesis does not belong to any theory of deterrence considered to be normative. (B) Future crimes should be deterred by the punishment of actual criminals. ( y ) Citizens should be punished in such manner as to provide the most efficient deterrence to the commission of future crimes. (6) Criminals and only criminals should be punished, and this should be in such manner as to provide the most efficient deterrence to the commission of future crimes. I observe that theses (y ) and ( 8 ) are not supported by the mixed theory. Since ( a )is a purely descriptive thesis, the only thesis of the theory of general deterrence left is (B). Therefore, I shall now focus on the principle of retribution. As a first step, I shall inquire what Kant's justification is for this prin- ciple. I shall try to show that this justification is clearly insufficient. As a second step I shall show that Kant's principle of retribution is inconsistent with his principle of right. 318 JEAN-CHRISTOPHE~ I E R L E 11. RETRIBUTIVlSM AS THE RATIONALE FOR PUNISHMENT Before we inquire into Kant's justification for the principle of retri- bution, we must distinguish two meanings of retribution, a weaker and a stronger one: these are Vergeltz4rzg (thesis (b). or mere retri- bution) and WiedPn~ergelt~4~zg(thesis (d), izrv tcrlzonic). Mo4t of today's Kantian retributivists argue only for Ergelrung and reject Wiecleu~)ergeltutzg(cf. Scheid, 1983; Murphy, 1987; Hbffe. 1998 ). In 949E of the DR. Kant proceeds in two steps. First, he trles to justify the right to punish in general. Second, he tries to justify the Wic2der-~,ergrltu~lgor i1t.c talionr.\ as the principle determining the degree of punishment. In the first step Kant does not present the concept of penal law, but merely rebuts the utilitarian biew of penal law: "Punishment bq a court [. . . ] can neher be Inflicted merely as a means to promote some other good for the criminal himself or for civil ~ c i e t y . [ . . .1 The law of punishment is a categorical imperati\e. and woe to him who crawl4 through the windings of eudaemon- ism J... I" (DR VI, 33 1 . Gregor 105).Most inter-preters impllcitl) draw the principle of retribution (Vet-geltrrr~g)from this rebutt,il. Yet neither the word 'retribution' (I+r;yeltu~zg)nor ~ t s concept is present before the second step. Even then. one cannot find mere retribution (Vc.r;yeltur~g),but only equality in retribution ( Wietler-1 rr;yeltrrrlq). Therefore I suspect that the inteipretatlon of the first step as a jus- titication of mere retribution comes from the interpretation of the s