The Retributive Theory of Punishment

from THE SCIENCE OF RIGHT,  by Immanual Kant, translated by W. Hastie

1.  According to Kant, who deserves judicial punishment?

2.  Why does Kant reject the maxim 'It is better that one man should die than that the whole people should perish?'

3.  Why does Kant believe that one must reject a proposal 'to keep a criminal

alive who has been condemned to death, on his being given to understand

that, if he agreed to certain dangerous  experiments being performed

upon him, he would be allowed to survive if he came happily through them' even

if it is 'argued that physicians might thus obtain new information that would be of

value to the commonweal'.  Do you agree or diagree with Kant on what should be done?

If you disagree, what is wrong with his justification here?

4. How does Kant explain the principle of retaliation?

5.  What is Kant's justification for the death penalty?

6.  Formulate the best response you can think of to show Kant that he is mistaken on the death penalty.

7.  Evaluate Kant's justification for the death penalty, making your own position on his justification clear, and defending your position.

  Judicial or juridical punishment (poena forensis) is to be

distinguished from natural punishment (poena naturalis), in which

crime as vice punishes itself, and does not as such come within the

cognizance of the legislator. juridical punishment can never be

administered merely as a means for promoting another good either

with regard to the criminal himself or to civil society, but must in

all cases be imposed only because the individual on whom it is

inflicted has committed a crime. For one man ought never to be dealt

with merely as a means subservient to the purpose of another, nor be

mixed up with the subjects of real right. Against such treatment his

inborn personality has a right to protect him, even although he may be

condemned to lose his civil personality. He must first be found guilty

and punishable, before there can be any thought of drawing from his

punishment any benefit for himself or his fellow-citizens. The penal

law is a categorical imperative; and woe to him who creeps through the

serpent-windings of utilitarianism to discover some advantage that may

discharge him from the justice of punishment, or even from the due

measure of it, according to the Pharisaic maxim: "It is better that

one man should die than that the whole people should perish." For if

justice and righteousness perish, human life would no longer have

any value in the world. What, then, is to be said of such a proposal

as to keep a criminal alive who has been condemned to death, on his

being given to understand that, if he agreed to certain dangerous

experiments being performed upon him, he would be allowed to survive

if he came happily through them? It is argued that physicians might

thus obtain new information that would be of value to the

commonweal. But a court of justice would repudiate with scorn any

proposal of this kind if made to it by the medical faculty; for

justice would cease to be justice, if it were bartered away for any

consideration whatever.

  But what is the mode and measure of punishment which public

justice takes as its principle and standard? It is just the

principle of equality, by which the pointer of the scale of justice is

made to incline no more to the one side than the other. It may be

rendered by saying that the undeserved evil which any one commits on

another is to be regarded as perpetrated on himself. Hence it may be

said: "If you slander another, you slander yourself; if you steal from

another, you steal from yourself; if you strike another, you strike

yourself; if you kill another, you kill yourself." This is the right

of retaliation (jus talionis); and, properly understood, it is the

only principle which in regulating a public court, as distinguished

from mere private judgement, can definitely assign both the quality

and the quantity of a just penalty. All other standards are wavering

and uncertain; and on account of other considerations involved in

them, they contain no principle conformable to the sentence of pure

and strict justice. It may appear, however, that difference of

social status would not admit the application of the principle of

retaliation, which is that of "like with like." But although the

application may not in all cases be possible according to the

letter, yet as regards the effect it may always be attained in

practice, by due regard being given to the disposition and sentiment

of the parties in the higher social sphere. Thus a pecuniary penalty

on account of a verbal injury may have no direct proportion to the

injustice of slander; for one who is wealthy may be able to indulge

himself in this offence for his own gratification. Yet the attack

committed on the honour of the party aggrieved may have its equivalent

in the pain inflicted upon the pride of the aggressor, especially if

he is condemned by the judgement of the court, not only to retract and

apologize, but to submit to some meaner ordeal, as kissing the hand of

the injured person. In like manner, if a man of the highest rank has

violently assaulted an innocent citizen of the lower orders, he may be

condemned not only to apologize but to undergo a solitary and

painful imprisonment, whereby, in addition to the discomfort

endured, the vanity of the offender would be painfully affected, and

the very shame of his position would constitute an adequate

retaliation after the principle of "like with like." But how then

would we render the statement: "If you steal from another, you steal

from yourself?" In this way, that whoever steals anything makes the

property of all insecure; he therefore robs himself of all security in

property, according to the right of retaliation. Such a one has

nothing, and can acquire nothing, but he has the will to live; and

this is only possible by others supporting him. But as the state

should not do this gratuitously, he must for this purpose yield his

powers to the state to be used in penal labour; and thus he falls

for a time, or it may be for life, into a condition of slavery. But

whoever has committed murder, must die. There is, in this case, no

juridical substitute or surrogate, that can be given or taken for

the satisfaction of justice. There is no likeness or proportion

between life, however painful, and death; and therefore there is no

equality between the crime of murder and the retaliation of it but

what is judicially accomplished by the execution of the criminal.

His death, however, must be kept free from all maltreatment that would

make the humanity suffering in his person loathsome or abominable.

Even if a civil society resolved to dissolve itself with the consent

of all its members- as might be supposed in the case of a people

inhabiting an island resolving to separate and scatter themselves

throughout the whole world- the last murderer lying in the prison

ought to be executed before the resolution was carried out. This ought

to be done in order that every one may realize the desert of his

deeds, and that blood-guiltiness may not remain upon the people; for

otherwise they might all be regarded as participators in the murder as

a public violation of justice.

  The equalization of punishment with crime is therefore only possible

by the cognition of the judge extending even to the penalty of

death, according to the right of retaliation. This is manifest from

the fact that it is only thus that a sentence can be pronounced over

all criminals proportionate to their internal wickedness; as may be

seen by considering the case when the punishment of death has to be

inflicted, not on account of a murder, but on account of a political

crime that can only be punished capitally. A hypothetical case,

founded on history, will illustrate this. In the last Scottish

rebellion there were various participators in it- such as Balmerino

and others- who believed that in taking part in the rebellion they

were only discharging their duty to the house of Stuart; but there

were also others who were animated only by private motives and

interests. Now, suppose that the judgement of the supreme court

regarding them had been this: that every one should have liberty to

choose between the punishment of death or penal servitude for life. In

view of such an alternative, I say that the man of honour would choose

death, and the knave would choose servitude. This would be the

effect of their human nature as it is; for the honourable man values

his honour more highly than even life itself, whereas a knave

regards a life, although covered with shame, as better in his eyes

than not to be. The former is, without gainsaying, less guilty than

the other; and they can only be proportionately punished by death

being inflicted equally upon them both; yet to the one it is a mild

punishment when his nobler temperament is taken into account,

whereas it is a hard punishment to the other in view of his baser

temperament. But, on the other hand, were they all equally condemned

to penal servitude for life, the honourable man would be too

severely punished, while the other, on account of his baseness of

nature, would be too mildly punished. In the judgement to be

pronounced over a number of criminals united in such a conspiracy, the

best equalizer of punishment and crime in the form of public justice

is death. And besides all this, it has never been heard of that a

criminal condemned to death on account of a murder has complained that

the sentence inflicted on him more than was right and just; and any

one would treat him with scorn if he expressed himself to this

effect against it. Otherwise it would be necessary to admit that,

although wrong and injustice are not done to the criminal by the

law, yet the legislative power is not entitled to administer this mode

of punishment; and if it did so, it would be in contradiction with

itself.

  However many they may be who have committed a murder, or have even

commanded it, or acted as art and part in it, they ought all to suffer

death; for so justice wills it, ...