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Kant's Theory of Punishment

  • Thom Brooks (a1)
Abstract

The most widespread interpretation amongst contemporary theorists of Kant's theory of punishment is that it is retributivist. On the contrary, I will argue there are very different senses in which Kant discusses punishment. He endorses retribution for moral law transgressions and consequentialist considerations for positive law violations. When these standpoints are taken into consideration, Kant's theory of punishment is more coherent and unified than previously thought. This reading uncovers a new problem in Kant's theory of punishment. By assuming a potential offender's intentional disposition as Kant does without knowing it for certain, we further exacerbate the opportunity for misdiagnosis – although the assumption of individual criminal culpability may be all we can reasonably be expected to use. While this difficulty is not lost on Kant, it continues to remain with us today, making Kant's theory of punishment far more relevant than previously thought.

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1 Kant Immanuel, Critique of Pure Reason, trans. Pluhar W. S., Indianapolis, [1781/1787] 1996, p. 9 [A xiii].

2 Kant Immanuel, Groundwork of the Metaphysics of Morals, ed. and trans. Gregor M. J., Cambridge, 1991, p. 35 [4:425]. When citing all works by Kant except the Critique of Pure Reason, the first number will refer to the page in the edition cited. In the brackets, the first number refers to the volume number of the Prussian Academy of Sciences edition of Kant's works with the second number after the colon referring to the page number in this volume where the quotation is found. Unless stated otherwise, all uses of emphasis in citations are given.

3 Tunick Mark, ‘Is Kant a Retributivist?History of Political Thought, xvii (1996), p. 60.

4 See Ashton H. B., Kant's Moral Philosophy, London, 1970; Brandt Richard, Ethical Theory, Englewood Cliffs, 1959, pp. 496–8; Dean Richard, ‘Cummiskey's Kantian Consequentialism’, Utilitas, xii (2000); Fleischacker Samuel, ‘Kant's Theory of Punishment’, Essays on Kant's Political Philosophy, ed. Williams H., Cardiff, 1992; Flikschuh Katrin, ‘On Kant's Rechtslehre’, European Journal of Philosophy, v (1997); Gregor Mary J., Laws of Freedom: A Study of Kant's Method of Applying the Categorical Imperative in the Metaphysik der Sitten, Oxford, 1963; Hampton Jean, Political Philosophy, Boulder, 1997, pp. 134 f., 147, 175; Holtman Sarah Williams, ‘Toward Social Reform: Kant's Penal Theory Reinterpreted’, Utilitas, ix (1997); Johnson Conrad D., ‘The Authority of the Moral Agent’, Consequentialism and its Critics, ed. Scheffler S., Oxford, 1988, p. 273; Korsgaard Christine M., Creating the Kingdom of Ends, Cambridge, 1996; Murphy Jeffrie G., ‘Kant's Theory of Criminal Punishment’, Proceedings of the Third International Kant Congress, ed. Beck L. W., Dordrecht, 1972, p. 434; Pincoffs Edmund L., The Rationale of Legal Punishment, Atlantic Highlands, 1966, p. 9; Pojman Louis P., ‘For the Death Penalty’, The Death Penalty: For and Against, ed. Pojman L. P. and Reiman J., Oxford, 1998, pp. 1, 7–11; Rawls John, Political Liberalism, New York, 1993; Rawls John, A Theory of Justice, Cambridge, 1971; Reiman Jeffrey, ‘Why the Death Penalty Should Be Abolished’, The Death Penalty, ed. Pojman and Reiman , pp. 90–2; Riley Patrick, Kant's Political Philosophy, Totowa, 1983; Saner HansKant's Political Thought: Its Origins and Development, trans. Ashton H. B., Chicago, 1967; Sherman Nancy, Making a Necessity of Virtue: Aristotle and Kant on Virtue, Cambridge, 1997; Simhony Avital, ‘Was T. H. Green a Utilitarian?Utilitas, vii (1995); Slote Michael, From Morality to Virtue, Oxford, 1992; Sullivan Roger J., Immanuel Kant's Moral Theory, Cambridge, 1989, pp. 243 f., 361n25; and Williams Howard, Kant's Political Philosophy, Oxford, 1983.

5 See my Corlett on Kant, Hegel, and Retribution’, Philosophy, lxxvi (2001); Byrd B. Sharon, ‘Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution’, Law and Philosophy, viii (1989); Corlett J. Angelo, ‘Making Sense of Retributivism’, Philosophy, lxxvi (2001); Cummiskey David, Kantian Consequentialism, Oxford, 1996; Cummiskey David, ‘Kantian Consequentialism’, Ethics, 1 (1990); George Robert P., Making Men Moral: Civil Liberties and Public Morality, Oxford, 1993, pp. 148–53, esp. 149n39; Hare R. M., ‘Could Kant Have Been a Utilitarian?Utilitas, v (1993); Scheid Don, ‘Kant's Retributivism’, Ethics, xciii (1983); and Tunick, ‘Is Kant a Retributivist?’ Also see Griffiths A. Phillips, ‘Kant's Psychological Hedonism’, Philosophy, lxvi (1991); Frederick Neuhouser's editorial footnote at p. 245n14 in Fichte Johann Gottlieb, Foundations of Natural Right, ed. Neuhouser F. and trans. Baur M., Cambridge, [1795–1796] 2000; and Weinstein David, ‘Between Kantianism and Consequentialism in T. H. Green's Moral Philosophy’, Political Studies, xli (1993), esp. p. 631 where he claims that Green reinterpreted Kant as a consequentialist.

6 An interesting exception is Williams who claims that Kantian punishments must be justified from two standpoints: (1) the moral law's retributivism and (2) an empiricoutilitarianism. Therefore, punishments ought to both fit crimes and deter potential offenders. (Williams, p. 106; see p. 101.) In addition to Williams, Fleischacker confuses these two standpoints (Fleischacker, p. 193).

7 See Murphy Jeffrie G., ‘Does Kant Have a Theory of Punishment?Columbia Law Review, lxxxvii (1987). At 509, Murphy says: ‘I am not even sure that Kant develops anything that deserves to be called a theory of punishment at all. I genuinely wonder if he has done much more than leave us with a random (and not entirely consistent) set of remarks’. Holtman attempts to reinvent Kant so she can ‘reject the law of retribution and other disturbing details, but embrace more basic aspects of the accounts of justice and punishment’. Nevertheless, she says that his theory is at best incomplete. (Holtman, 12, 16, 21; also see Arendt Hannah, Lectures on Kant's Political Philosophy, ed. Beiner R., Chicago, 1982, pp. 7 f.; Brown Stuart, ‘Has Kant a Philosophy of Law?’, Philosophical Review, lxxi (1962); Fleischacker, p. 193; Saner, p. 2; and Slote, pp. 31–57.)

8 Kant , The Metaphysics of Morals, ed. and trans. Gregor M. J., Cambridge, 1996, p. 105 [6:331].

9 Necessity arises from a universal duty to respect the moral law. (Kant , Groundwork, p. 13 [4:400]. See ibid., p. 14n [4:402].)

10 See Mariña J., ‘Kant's Derivation of the Formula of the Categorical Imperative: How to Get it Right’, Kant-Studien, lxxxix (1998), pp. 167 f.

11 Kant says: ‘All I need for morality is that freedom does not contradict itself and hence can at least be thought; I do not need to have any further insight into it’ (Kant , Critique of Pure Reason, trans. Pluhar , p. 30 [B xxix]). See Hare, 11; Fichte, pp. 245 f. [282–3 § 20 Remark]; Hegel Georg Wilhelm Priedrich, Elements of the Philosophy of Right, ed. Wood A. W. and trans. Nisbet H. B., Cambridge, [1820] 1991, pp. 135–40 [§§ 105–12, with Remarks and Additions]; see ibid., p. 43 [§ 9]; Kant , Groundwork, p. 3; Robinson Daniel N. and Harré Rom, ‘The Demography of the Kingdom of Ends’, Philosophy, lxix (1994); Schneewind J. B., ‘Autonomy, Obligation, and Virtue: An Overview of Kant's Moral Philosophy’, Cambridge Companion to Kant, ed. Guyer P., Cambridge, 1992; Steinberger Peter J., ‘The Standard View of the Categorical Imperative’, Kant-Studien, xc (1999), pp. 91, 99; and Williams Bernard, Ethics and the Limits of Philosophy, Cambridge, 1985. Also see Allison Henry E., Kant's Theory of Freedom, Cambridge, 1990, pp. 180–98; Ameriks Karl, ‘The Hegelian Critique of Kantian Morality’, New Essays on Kant, ed. den Ouden B. and Moen M., New York, 1987; Baron Marcia, Kantian Ethics Almost Without Apology, Ithaca, 1995; Lo P.-C., ‘A Critical Re-evaluation of the Alleged “Empty Formalism” of Kantian Ethics’, Ethics, xli (1981); O'Neill Onora, Acting on Principle, New York, 1975; Edwards Jeffrey, ‘Egoism and Formalism in the Development of Kant's Moral Philosophy’, Kant-Studien, xci (2000); and Onof Christian J., ‘A Framework for the Derivation and Reconstruction of the Categorical Imperative’, Kant-Studien, lxxxix (1998).

12 Often, this is solely attributed to Hegel. See Hegel , Elements of the Philosophy of Right, pp. 49 [§ 15 Addition], 113 [§ 81, Remark], 115 f. [§ 82, Addition], 124 f. [§ 99, Remark], 126 f. [§ 100, Remark], and 131 f. [§ 104]. See also ibid., pp. 117 f. [§ 86, Addition] and 104 [§ 73].

13 See Kant , Groundwork, pp. 3740 [4:428–32]. We should not forget that ‘morality is the condition under which alone a rational being can be an end in itself, since only through this is it possible to be a lawgiving member in the kingdom of ends’ (ibid., p. 42 [4:435]).

14 Kant's moral theory would not tolerate all universal maxims, such as ‘destroy human life whenever you please’, as the respect for persons must remain primary as a rule. This would contradict Hare's reading. However, Hare is quite correct to point that ‘[m]oral principles do not have to be as simple and general as Kant seems to have thought, and they can still be universal all the same’ (see Hare , ‘Could Kant Have Been a Utilitarian?’ pp. 7 f.).

15 See my ‘Corlett on Kant, Hegel, and Retribution’, p. 563.

16 ‘But to look upon all punishments and rewards as mere machinery in the hands of a higher power, serving only to put rational beings into activity toward their final purpose (happiness) is so patently a mechanism which does away with the freedom of the will that it need not detain us here’ (Kant , Critique of Practical Reason, ed. and trans. Gregor M. J., Cambridge, [1788] 1997, p. 35 [5:38] and Kant , Practical Philosophy, ed. and trans. Gregor M. J., Cambridge, 1996, pp. 170 f.). See Kant's essay ‘The End of All Things’ in Kant , Religion within the Boundaries of Mere Reason, ed. Wood A. and di Giovanni G., Cambridge, 1998, p. 204 [8:338–9].

17 Kant , Metaphysics of Morals, p. 105 [6:331].

18 Likewise, rule-utilitarians can justify punishments without being retributive.

19 Kant , Metaphysics of Morals, p. 106 [6:333]. It is easy to forget that we also have a duty to forgive fellow human beings, which at times may result in abandoning the distribution of punishments to culpable violators of moral and positive law (ibid., p. 208 [6:461]).

20 Ibid., p. 105 [6:332]. Hegel thinks just the opposite: ‘Let justice be done’ should not have as its consequence ‘even if the world should perish’ (Hegel , Elements of the Philosophy of Right, p. 157 [§ 130]).

21 Ibid. See Kant , Lectures on Ethics, ed. Heath P. and Schneewind J. B., trans. Heath P., Cambridge, 1997, pp. 310 f. [§ 49 27:555]. (I am citing a passage from Johann Friedrich Vigilantius's notes from Kant's 1793–4 lecture course entitled ‘The Metaphysics of Morals’.) Eugen Dühring argued that the lex talionis satisfied too low a penal threshold, as to properly negate an offending will one must cause more harm to the criminal than he or she committed to make up the shortfall of his or her ‘lack of regard for others shown by that will in the crime’ (Small, 42). At times Kant seems to be somewhat sympathetic to this approach: ‘Every deed that violates a human being's right deserves punishment, the function of which is to avenge a crime on the one who committed it (not merely to make good the harm that was done)’ (Kant , Metaphysics of Morals, p. 207 [6:460]).

22 Kant , Metaphysics of Morals, p. 106 [6:332].

23 Ibid., pp. 106 f. [6:333]. Other interesting examples involve Kant's suggested punishments for rape, pederasty, and bestiality (ibid., p. 130 [6:363]).

24 Ibid., p. 27 [6:235].

25 Kant , Critique of Practical Reason, p. 34 [5:37] and Kant , Lectures on Ethics, trans. Heath , pp. 79 [27:286], 304 [§ 38 27:547], 308 f. [§§ 43–4 27:552 f.], 312 [§ 50 27:556]. (From the Lectures, the first citation is from the section ‘Of Rewards and Punishments’ from Georg Ludwig Collins's 1784 notes. The following citations are Vigilantius's notes.)

26 There is an exception for crimes where the appropriate manner of punishing criminals is to levy fines. Moreover, wealthy criminals who will not be ‘hurt’ by the fine are to be publicly embarrassed, perhaps a form of psychological punishment. (Kant , Metaphysics of Morals, p. 106 [6:332].)

27 Kant , Critique of Practical Reason, pp. 34 f. [5:37] and Kant , Metaphysics of Morals, p. 104 [6:331].

28 See Sorell Tom, Moral Theory and Capital Punishment, Oxford, 1987, p. 134.

29 ‘No punishment should be coupled with cruelty’ Kant , Lectures on Ethics, trans. Heath , p. 311 [§ 49 27:556].

30 Kant , Lectures on Ethics, trans. Infield L., Indianapolis, 1963, p. 57.

31 Ibid., p. 55 and Kant , Lectures on Ethics, trans. Heath , p. 79 [27:286] in the section ‘Of Rewards and Punishments’. See the section entitled ‘Of the Lawgiver’ in ibid., p. 79 [27:286]. (Both are from the notes of G. L. Collins.) This statement mirrors Fichte's belief that the purpose of punishment is solely to deter. (See Fichte, pp. 226–48 [260–85 § 20].)

32 I know of only three treatments: Byrd, 196, 196n144; Scheid, 268–71; and Tunick, 63. Corlett takes this view only with regard to his own reinterpretation of a Kantian penal theory (Corlett, 78, 78n7).

33 Kant , Metaphysics of Morals, p. 107 [6:334].

34 Ibid., p. 95 [6:319]. Should a citizen resist the rule of his sovereign, she ‘would be punished, got rid of, or expelled in accordance with the laws of this authority, that is, with every right’ (ibid.).

35 Ibid., p. 96 [6:320]. He says further: ‘It is the formal execution of a monarch that strikes horror in a soul filled with the idea of human beings’ rights, a horror that one feels repeatedly as soon as and as often as one thinks of such scenes as the fate of Charles I or Louis XVI' (ibid., p. 97n [6:320]).

36 Ibid., pp. 97n–98n [6:320] (emphasis added). As ‘the people’ are implicated in a crime most, if any at all, did not participate in in any way, Kant sanctions yet again the violation of a universal maxim.

37 Ibid., pp. 95, 98 [6:319, 323].

38 Ibid., p. 130 [6:363].

40 See Kant , Metaphysics of Morals, p. 28 [6:235 f.].

41 I take this phrase from Tunick, 65.

42 Kant , Metaphysics of Morals, p. 28 [6:235 f.] (emphasis given). See Murphy Jeffrie G., Kant: The Philosophy of Right, London, 1970, p. 130n3.

43 Kant , Groundwork, p. 11 [4:397]. Fleischacker argues that in this example ‘Kant does not hold that the impossibility of deterring someone morally justifies not punishing him; on the contrary, he stresses the fact that deterrence concerns only the subjective (empirical), not the objective value of punishment’ (Fleischacker, 194). The problem with this view is that Fleischacker has misrepresented Kant's penology by not taking into consideration that punishment is itself an empirical practice – and, for Kant, governments can only administer deterrent punishments.

44 Kant , Metaphysics of Morals, pp. 108 f. [6:336 f.].

45 See Kant , Metaphysics of Morals, pp. 14, 17 [6:220, 224]. As positive laws may be irrational, Kant's argument against the right to sedition or rebellion against the state may be problematic (see ibid., pp. 96 f. [6:320]). In addition, human beings are only ends in themselves in morality, not in positive law (Kant , Groundwork, p. 42 [4:435]). This is not to say that Kant's project of a kingdom of ends is complete fantasy, for one of the primary foundations of a kingdom of ends is its possible realization through human conduct (ibid., p. 44n [4:437]). Kant hints that there would be no need for punishment in the ideal society (Kant , Critique of Pure Reason, trans. Smith N. K., London, 1963, A317/B373; see Fleischacker, 191 and Fichte, 244 [§ 20 282V(f.)]).

46 Kant , Metaphysics of Morals, p. 20 [6:219]. See ibid., p. 23 [6:230].

47 Ibid., p. 21 [6:220].

48 See ibid., p. 20 [6:219].

49 Ibid., p. 15 [6:222–3]. See ibid., p. 19 [6:227] and Kant , Groundwork, pp. 5 [4:392]; 30–3 [4:420–4] and 39 f. [4:430–2].

50 Kant , Groundwork, pp. 15 [4:402], 16 [4:403], and 31 [4:421].

51 Ibid., pp. 41 [4:432] and 42 [4:434]. See ibid., p. 40 [4:432].

52 Ibid., p. 42 [4:435]. See ibid., p. 15 [4:403] and Kant , Metaphysics of Morals, p. 182 [6:429].

53 Kant , Critique of Practical Reason, p. 34 [5:37].

54 See Kant , Metaphysics of Morals, pp. 17, 20 [6:219, 225] and 10, noted. The best treatment of Kant's theory of punishment is Tunick, 60–78, esp. 77 f. A fairly similar dichotomy is present in Hegel (see Hegel , Elements of the Philosophy of Right, p. 121 [§ 94 Addition]). Also see Hare, 11 and Kant , Groundwork, pp. 57 [4:452] and 61 [4:457].

55 Kant , Metaphysics of Morals, p. 109 [6:336–7]. See Wood Allen W., Kant's Ethical Thought, Cambridge, 1999, p. 322: ‘Kant holds that we have a moral obligation to limit ourselves to actions that are right [R], but that duty is no part of R itself. R grounds only juridical duties, which are distinguished from ethical duties by the fact that their concept contains no determinate incentive for complying with them’. Unfortunately, there is no discussion of the role(s) of moral and juridical duties regarding punishment. (Ibid., p. 407n32 and Wood Allen W., ‘Kant's Practical Philosophy’, Cambridge Companion to German Idealism, ed. Ameriks Karl, Cambridge, 2000.)

56 For example, Kant tells us that the legal system he is describing is that of ‘the state in idea, as it ought to be in accordance with pure principles of right’ (Kant , Metaphysics of Morals, p. 90 [§ 45 6:313]).

57 Kant , Kant: Philosophical Correspondence, 1756–99, ed. and trans. Zweig A., Chicago, 1967, p. 199 [11:398–9] and Kant , Correspondence, ed. and trans. Zweig A., Cambridge, 1999, p. 448. See Kant , Metaphysics of Morals, pp. 24–7, 104–6 [6:231–4, 331 f.]. Fleischacker cites only the first half of this letter, which may have further contributed to his misinterpretation of it (Fleischacker, 204).

58 See Kant , Kant: Philosophical Correspondence, p. 199n3. Kant says of Klein on criminal right: ‘Most of what he says is excellent and quite in accord with my own view’ (ibid., p. 199).

59 As he says in the letter to Erhard, the authorization of punishment is dependent upon retributive justification (esp. its concept of desert), subsumed under a primarily consequentialist theory of punishment.

60 Kant's use of ‘sovereign’ is a term easy to confuse. In the Groundwork, the ‘sovereign’ is each rational being in the kingdom of ends: ‘He belongs to it as sovereign when, as lawgiving, he is not subject to the will of any other’ (Kant , Groundwork, p. 41 [4:433]). However, in Metaphysics of Morals, the sovereign is a single person who alone rules over his community (Kant , Metaphysics of Morals, pp. 95–8 [6:319–23]). I believe that ‘sovereign’ in the first sense is related to individual autonomy and in the second it is related to a particular individual (i.e. a monarch).

61 Kant , Metaphysics of Morals, p. 109 [6:337]. See Becker Don, ‘Kant's Moral and Political Philosophy’, Routledge History of Philosophy, vol. 6, The Age of German Idealism, ed. Solomon R. C. and Higgins K. M., London, 1993, p. 84. I believe that Jeffrie Murphy was mistaken in declaring that Kant held no such view, as Kant says: ‘conformity with juridical laws is the legality of an action and conformity with ethical laws is its morality’ (Kant , Metaphysics of Morals, pp. 14 [6:220] and 17 [6:225]; see Murphy Jeffrie G., ‘Kant's Concept of A [sic] Right Action’, Kant Studies Today, ed. Beck Lewis W., La Salle, 1969, pp. 471–95).

62 Kant , Metaphysics of Morals, p. 107 [6:334]. To recall Kant's ‘blood guilt’ example, it would then seem to follow that the last murderer in prison might not be executed upon the dissolution of his island community if the community's preservation is no longer at issue: When its preservation may collapse, alternative penal remedies are justified to continue the community.

63 See Kant , Critique of Practical Reason, pp. 35 f. [5:38], 70 f. [5:82–4] and 79 [5:93]; Kant , Metaphysics of Morals, p. 9 [6:215].

64 Kant , Critique of Practical Reason, p. 44 [5:50]. See ibid., pp. 33, 74 [5:37, 86–7]; Kant , Metaphysics of Morals, pp. 42 f. [6:252–3]; Kant , ‘On the Proverb: That May be True in Theory, But Is of No Practical Use’, Perpetual Peace and Other Essays on Politics, History, and Moral Practice, ed. Humphrey T., Indianapolis, 1983, p. 71.

65 See Kant , Critique of Practical Reason, p. 54 [5:63]; Kant , Lectures on Ethics, trans. Heath , pp. 73 f. [27:279] (‘De Littera Legis’), 80 [27:287] (‘Of Rewards and Punishments’), 83 [27:291] (‘Of Degrees of Imputation’); and Kant , Metaphysics of Morals, p. 16 [6:223 f.]. (All citations from Kant's Lectures are from the notes of G. L. Collins.) See also Kant's discussion of public right at Kant , Metaphysics of Morals, p. 89 [6:311]; ‘On a Supposed Right to Lie because of Philanthropic Concerns’, p. 165 [429]. In Kant , Ethical Philosophy, 2nd edn., ed. and trans. Ellington J. W., Indianapolis, 1994: in the move ‘from a metaphysics of right (which abstracts from all empirical determinations) to a principle of politics (which applies these [metaphysical]concepts [of right] to instances provided by experience’ we ‘gain the solution of a problem of politics in accordance with the universal principle of right’. (Brackets supplied by Ellington.)

66 Kant , Critique of Practical Reason, p. 34 [5:37]. In ‘Of Rewards and Punishments’, Kant says: ‘Punishment in general is the physical evil visited upon a person for moral evil’. (See Kant , Lectures on Ethics, trans. Heath , p. 79 [27:286]. See pp. 308 [§ 43 27:552] (‘In punishments, a physical evil is coupled to moral badness’), 309 [§ 44 27:553].)

67 Kant , Metaphysics of Morals, p. 19 [6:227] (emphasis given). See Kant , Lectures on Ethics, trans. Heath , pp. 76 [27:282], 80 f. [27:288], and 306 [§ 40 27:549].

69 As an example, see ibid., pp. 106 f. [6:333].

70 Kant , Metaphysics of Morals, p. 20 [6:228].

71 Kant , Groundwork, p. 10 [4:397].

72 Ibid., p. 13 [4:399 f.]. See ibid., p. 14 [4:401].

73 Kant , Metaphysics of Morals, pp. 106 f. [6:333].

74 See Kant , Lectures on Ethics, trans. Heath , p. 74 [27:280] in the section ‘De Littera Legis’.

75 I am referring to the common legal distinctions of actus reus and mens rea and their often critical importance in attributing punishments to criminals.

76 Kant , Metaphysics of Morals, p. 108 [6:335]. See Kant , Groundwork, pp. 13 [4:399 f.] and 19 f. [4:407].

77 It should also be kept in mind that the calibration of juridical law towards encompassing moral law is not a project to be completed overnight. This process may well take generations. (See Kant, ‘Idea for a Universal History with a Cosmopolitan Intent’, Kant , Perpetual Peace and Other Essays, Akademie p. 19.)

78 As Kant says, ‘Right [justice] must never be adapted to politics; rather, politics must always be adapted to right’ (Kant , Ethical Philosophy, p. 166 [429]). See Kant , Lectures on Ethics, trans. Heath , p. 306 [§40 27:550]. The fact that most interpretations of Kant's theory of punishment have not found such a gap previously ought then to be seen as one instance in which many were misled.

79 Kant , Critique of Pure Reason, trans. Smith N. K., p. 475n [A552/B580] (emphasis added). See Sullivan , Immanuel Kant's Moral Theory, p. 243.

80 Kant , Groundwork, p. 19 [4:407]. Due to our inability of knowing dispositions with any certainty, T. H. Green criticizes Kant for continuing to include intentionality in his theory of punishment. Green does what he believes Kant ought to have done: base his theory of punishment on more consequentialist grounds. (See Green Thomas Hill, Lectures on the Principles of Political Obligation, London, [1882] 1941, pp. 180205 [sections 176–206] and my ‘T. H. Green's Theory of Punishment’, History of Political Thought (forthcoming).)

81 Kant , Groundwork, p. 62 [4:458–9]. Kant says: ‘We see this as soon as we become convinced that there is a use of pure reason which is practical and absolutely necessary (viz., its moral use). When used practically, pure reason inevitably expands and reaches beyond the bounds of sensibility’ (Kant , Critique of Pure Reason, trans. Pluhar , p. 27 [B xxv]; see Flikschuh Katrin, Kant and Modern Political Philosophy, Cambridge, 2000, p. 194).

82 I paraphrase Korsgaard , ‘Introduction’, p. xxi.

83 Kant , Groundwork, p. 20 [4:407]. Nevertheless, this state of affairs does not stop Kant from stating that: ‘the pure thought of duty and in general of the moral law, mixed with no foreign addition of empirical inducements, has by way of reason alone an influence on the human heart so much more powerful than all other incentives, which may be summoned from the empirical field’ (ibid., pp. 22 f. [4:410–11]).

84 Ibid., p. 27 [4:416].

85 See Fleischacker, 202. Fleischacker believes that the Kantian judge ‘appears to be a rather strange human being, and indeed it is not clear that he is, in his formal role, a human being at all’ (ibid., p. 203). Also see where Kant says: ‘Rewards and punishments are merely subjective motivating grounds; if objective grounds no longer avail, the subjective serve merely to replace the want of morality’ (Kant , Lectures on Ethics, trans. Heath , p. 80 [27:287]; see p. 284 [§ 24 27:522]; Kuehn Manfred, Kant: A Biography, Cambridge, 2001, p. 41; and George, p. 149n39).

86 This is not to say that Kant would find it desirable to punish innocent persons, for, in fact, the moral law prohibits this from happening. I would argue that the attempt to administer punishments only to guilty persons is one example of how consequentialist punishments are to be tempered by dictates of rational morality to the best degree possible (and for good reason). However, the inability to always (or mostly) positively identify one's moral disposition when breaching juridical laws plausibly opens the door wide to mistaking unintended consequences for criminal culpability. Thus, the Kantian believes the innocent man being punished is innocent, whereas the ‘naïve utilitarian’ knows the person to be punished is innocent and punishes him anyway. (See my Gilligan on Deterrence and the Death Penalty: Has Legal Punishment Failed Us?’, Ethics and Justice, iii/iv (2001/2002); my Utilitarianism, Capital Punishment, and Innocent Persons: A Defense of Bentham’, Review Journal of Philosophy and Social Science, special issue, xxvii (2002); and Rosen Fred, ‘Utilitarianism and the Punishment of the Innocent: The Origins of a False Doctrine’, Utilitas, ix (1997). On ‘naïve utilitarianism’, see my ‘Corlett on Kant, Hegel, and Retribution’, pp. 578–80.)

87 Kant , Metaphysics of Morals, p. 232 [6:491].

88 Thompson Kevin, ‘Kant's Transcendental Deduction of Political Authority’, Kant-Studien, xcii (2001), 78.

89 Lindstedt, 133.

90 I am therefore at odds with Hare's assertion that Kant ‘was a sort of utilitarian, namely a rational-will utilitarian’, although I am generally sympathetic with Hare's analysis (Hare, 4).

91 Presented at the Fourth European Congress for Analytic Philosophy at Lund University, the Scottish Postgraduate Philosophy Association at Stirling University, and the senior postgraduate seminar at the University of Sheffield. I am most grateful to Gustav Arrhenius, Albert Atkin, Jes Bjarup, Meagan Brooks, Andy Clark, Martin Golding, Gerry Hough, David Liggins, Brian O'Connor, and, especially, Fabian Freyenhagen, Bob Stern, and Leif Wenar for very helpful comments on earlier drafts.

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