6.1 Introduction
It is commonly thought that the legislation germane to the first part of the Metaphysics of Morals, the Doctrine of Right, is purely external. The state secures the rights of its citizens by coercive means, namely by reliable mechanisms of restraint, deterrence, and restitution. These measures prevent some crimes directly and provide strong disincentives to commit others. Wrongdoing that still occurs must be adequately dealt with. Any wrong must be righted. This is what distinguishes the juridical condition from the state of nature. As the law of the land is coercive and external, the state does not expect it to be obeyed out of respect for its normative authority. It does not police an agent’s inner dispositions. It is content with legality, since juridical duty need not be done from duty. The requirement of morality is the hallmark of ethical obligation, which is the subject of the second part of the book, the Doctrine of Virtue.
In what follows, we shall argue that this common account of juridical obligation is incomplete. The state cannot, it is true, expect citizens to be motivated by respect for either its own laws or the law that is the supreme principle of morality in general (if only because it is impossible to ascertain moral worth in individual cases). But the coercive measures of the penal system require that agents have the motive of duty at their disposal.Footnote 1 Without the support of internal or ethical legislation, those who transgress the law could not be held to account for their behaviour. Put slightly paradoxically, without the support of ethical obligation no crime would ever be committed. But not in a good way.
6.2 What Is Kantian Legislation?
In the general introduction to the Metaphysics of Morals, Kant tells us that legislation, whether ethical or juridical, consists of both an objective and a subjective element. It requires, first, a law that objectively ‘represents an action that is to be done as necessary’ and, secondly, an incentive that subjectively ‘connects a determining ground for the faculty of choice […] with the representation of the law’ (RL 6:218.13–17). Contemporary moral philosophy tends to neglect the second, subjective part. But it is important to realize that legislation would be incomplete without a motivational element. An objectively valid law would not be a law for us – it would lack authority – if there were no connection to our faculty of choice or Willkür. That law would remain ‘merely theoretical’ (RL 6:218.20), that is, the state would not be able to hold us to it because we would be unable to act on it. So, how do juridical and ethical legislation differ?
As to the first element, this is a highly contentious question. The minutiae of the debate lie beyond the scope of this chapter, but it is worth noting that at least some juridical laws will be positive laws not grounded in a priori reasoning. Trivially, the categorical imperative does not decide the question whether we should drive on the left side of the road or the right. That is a matter of convention. However, once a state has settled the question one way or the other, the law is binding for anyone driving a vehicle on its territory. The Highway Code can be coercively enforced. Other legal obligations can, perhaps, directly or indirectly be derived from the principle of morals. But, again, the details need not concern us.
As to the second element, it is uncontroversial that there the perspectives of law and ethics diverge sharply. This is how the issue is introduced in the general introduction to the Metaphysics of Morals:
Legislation that makes an action a duty and also makes this duty the incentive is ethical. But legislation that does not include the incentive of duty in the law, and hence also [!] admits of an incentive other than the idea of duty itself, is juridical.
There is a designated ethical incentive (Triebfeder), variously called ‘respect’ (or ‘reverence’) for the moral law (Achtung), ‘moral interest’, or ‘moral feeling’. That much is clear from the Groundwork and the Critique of Practical Reason. An action that coincides with what the moral law says (an action that is, in that thin sense, right) has moral worth (it is morally valuable or good) only if it proceeds from the appropriate inner attitude, from the right maxim. From the viewpoint of ethics, motives other than respect are illegitimate. When the moral law speaks, we must obey it; we must do what it says because we appreciate its unconditional authority. Juridical legislation, however, is independent of any particular incentive as long as there is an incentive that enables agents to do their duty.Footnote 2 The details of this will become clearer as we proceed. For now, let us note that while the juridical sphere does not privilege the duty motive, it does not exclude that motive either.Footnote 3 In fact, there is a sense in which it is our ethical duty to obey the laws of the state.Footnote 4 Kant says that, though there are many ‘directly ethical duties’, internal legislation makes ‘the remaining duties’ – that is to say, juridical duties – ‘one and all indirectly ethical’ (RL 6:221.1–3).Footnote 5 Note that the conception of ethics now in play is not restricted to duties of virtue but rather encompasses all categorical imperatives. It coincides with the discipline Kant normally calls ‘moral philosophy’.
6.3 Why is External or Coercive Legislation Needed?
In a juridical state, external legislation relies on coercive institutions. It arises as human beings exit the state of nature. The state of nature, Kant tells us, is a ‘a state devoid of justice’ (RL 6:312.24–5), if not entirely devoid of rights. It is possible to acquire property in that state, but any such acquisition can only be ‘provisional as long as it does not yet have the sanction of public law, since it is not determined by public (distributive) justice and secured by an authority exercising this right’ (RL 6:312.30–3).
Kant emphasizes the importance of provisional rights. They generate the exeundum, that is, it is by virtue of these rights that we are forced to enter the juridical state, which turns provisional right into actual or ‘conclusive’ right. Accordingly, the juridical state – commonly equated with the ‘state’ simpliciter – is characterized as ‘that relation of human beings among one another that contains the conditions under which alone everyone is able to enjoy [theilhaftig werden] his right […]’ (RL 6:305.34–306.1).
Note, however, that the notion of a ‘provisional right’ is problematic. On the one hand, Kant wants to break away from the Hobbesian paradigm. There are, he tells us, actual, practically relevant rights in the state of nature. On the other hand, these rights are not conclusive because they are not secured by coercive means and thus, in a sense, not really rights at all. Only rights that can be claimed are rights in the proper sense of the word. As such, only conclusive rights are rights; and conclusive rights exist only in the juridical state.Footnote 6
6.4 How Does the State Secure the Rights of Its Citizens?
Let us turn to the coercive measures put in place by state institutions to secure the rights of individuals. Once again, the right to property can serve as an example. The state must, among other measures, promulgate and enforce laws to the effect that those who steal other people’s property will not only not be allowed to keep their spoils.Footnote 7 Stolen goods must be returned to the original owner. If restitution turns out to be impossible, the owner deserves compensation.Footnote 8 In addition, they will be punished, that is, they will suffer an ill that is proportional to the crime. These measures are intended as a clear signal that it is in no one’s interest to break the law. Crime will be severely discouraged.
To make external legislation work, Kant has to assume that human beings take a natural and unavoidable interest in their own well-being.Footnote 9 As this interest is general – it aims at whatever gives us pleasure – it needs to be made determinate. Initially, we do not have a very good sense of what is in our interest. Prudential deliberation helps us discover what promises satisfaction long-term. Though this is often difficult to achieve, the threat of punishment makes this task a little easier by impressing upon us, as citizens of the state, that breaking the law will not be to our advantage.Footnote 10
6.5 Elements of Kant’s Theory of Punishment
It is apparent from what has been said so far that Kant’s theory of punishment is not purely ‘retributive’. As Sharon Byrd has argued, three elements need to be distinguished with care.Footnote 11 There is, first of all, the general threat contained in the law as promulgated by the state. The purpose of this threat is deterrence. The second element is the execution of this threat, namely the act of punishing an individual, which is legitimate only if the law was in force (promulgated, publicized) at the time it was broken. Retrospective legislation would fall foul of the rule of law. Thirdly, every law has to specify a sentence, which for Kant must be informed by the principle of retribution (ius talionis). Everyone who has broken the law is thus meant to receive the same fixed and fair punishment.Footnote 12
From the perspective of juridical legislation, the particular motivation of citizens is not only irrelevant when they comply with the law; it is also irrelevant when they – consciously, wilfullyFootnote 13 – break it. The state does not punish criminals because they acted on this or that morally objectionable motive, for example out of hatred, jealousy, or greed. Criminals are punished because they have broken the law, that is, because they have committed a crime. And there was no good reason, no justification, to do so. As long as certain conditions of rational agency (such as conscious deliberation or premeditation) are met, what matters is that unconditional law was violated. From the point of view of the law, motivation – which can never be ascertained with certainty – cannot make an action worse or better, let alone excuse it.
6.6 Why Do Criminals Break the Law?
Still, punishment must be proportionate to the crime. The state is not allowed to impose draconian sentences even if threatening such measures would prevent transgressions more effectively.Footnote 14 Moreover, even the best of states cannot ensure that all crimes are duly punished. Anyone inclined to break the law will be acutely aware of this. As a consequence, there is only so much a state can legitimately do to discourage crime.Footnote 15 Deterrence can never be perfect – or else, no law would ever be broken, no right would ever be infringed and, a fortiori, no citizen would ever be punished.Footnote 16 The crucial question, then, is this: what goes on in the mind of citizens when they decide to commit a crime?
On Kant’s view, human beings do not break the law because they want to defy it; such a desire would be diabolical (see RGV 6:37.21). Immoral action in general, and illegal action in particular, are governed by the principle of happiness (see KpV 5:22). Human beings break the law because they expect to profit from the illicit deed, the state’s best efforts notwithstanding. And this is possible only if the prohibited course of action appears to be in their interest. This impression may well be wrong. But prudential calculation is notoriously complicated, in part because we cannot predict the future with certainty. We can misjudge the situation, for example because we do not expect to be found out or convicted, or because punishment cannot be sufficiently severe to make it the case that crime is not worth our while. Also, some people may be more risk averse than others, and so more likely to take chances with compliance.Footnote 17
6.7 What Makes Self-Interested Behaviour Punishable?
So, if crimes are committed out of self-interest, if the crime is taken to be prudentially adequate at the time it is done, the state cannot, it would seem, punish the criminal for that – even though the threat of punishment appeals to the human desire to be happy.Footnote 18 Consider the following quotation from the Critique of Judgement. Kant is engaging in a thought experiment. What would be the result if the human will could only be determined by the expected agreeableness or disagreeableness of prospective options, which are commensurable and can be ranked on a single scale?
[T]his would be the agreeableness in the sensation of one’s condition, and since in the end all the workings of our faculties are directed to what is practical and must be united in it as their goal, one could not seek to impose upon them any other estimation of things and their value than that which consists in the gratification that they promise. The manner in which they achieve this does not, in the end, matter at all; and since the choice of means alone can make a difference in this, human beings could very well accuse each other of folly or lack of understanding [Unverstand], but never of baseness [Niederträchtigkeit] or malice [Bosheit]: because all of them, each seeing things his own way, hurry towards one goal, which for everyone is gratification.
We cannot punish criminals for their folly. In fact, in the second Critique Kant himself indicates that imprudence and punishability are different in kind – so different, in fact, that they are quite distinct even in the judgement of the agent who is justly punished (KpV 5:37–8). There must therefore be something (broadly) immoral about crime for judicial punishment to be appropriate.
Roughly, criminals are punished because they have wilfully broken a law promulgated and valid at the time it was broken.Footnote 19 The Kantian state does not punish criminals because of any particular kind of moral deprivation, a task that is left to the Deity (see TL 6:460.33). And as with complying with the law, the state does not pay attention to the particular motive of the criminal as long as it is clear that he was responsible for the act, namely that the decision to break the law was based on a free choice. But even though the law does not concern itself with the specific motive of the agent, there is an assumption that (i) the agent had no legitimate motive at his disposal and (ii) that there was a legitimate motive to which he did have access, a motive that would have been sufficient to produce an action in conformity with external legislation. The law thus takes account of the agent’s mindset without paying attention to specific motivations, which were one and all illicit. This idea is reflected in the following definition:
An intentional transgression (i.e. one that is coupled with the consciousness of its being a transgression) is called a crime (dolus).
But this raises further questions about the conditions that need to be given for an agent to be conscious of a prospective transgression in a way that renders it punishable by right.
6.8 How Can an Act That Is Judged Prudentially Adequate Be Punishable?
Consciousness of a transgression as such cannot merely consist in being conscious of what one is doing, such as appropriating someone else’s property. One must also be conscious of its wrongfulness. One must be conscious that one ought – and therefore can – do otherwise.Footnote 20 This qualification is vital. Without this consciousness, it would be manifestly inappropriate to hold criminals to the legal standards set by the state. To abide by the law, it needs to be a live option. And for that we need conscience, whose task it is to watch the legality of action in particular.Footnote 21 As a result, internal legislation is needed to back up external legislation. After all, all juridical duties are indirectly ethical.
Only external compliance is required in the sphere of right; but at times the motive of duty is the only motive that can secure external compliance. The motive of duty is not required from a juridical point of view, which is motivationally neutral – and thus does not preclude our acting on the duty motive as such. So, it is contingently demanded that we act for the sake of the law – not as such, but because it is the only way we can secure conformity with law (or ‘legality’).Footnote 22 That is why it is so important that all duties are indirectly ethical.Footnote 23
[T]he system of the general doctrine of duties is now divided into that of the doctrine of right (ius), which is capable of external laws, and that of the doctrine of virtue (Ethica), which is not capable of it […].
Note that this does not mean that the state can demand that we act in accordance with duty out of duty on any particular occasion;Footnote 25 rather, it must assume that we face a meaningful choice, that we can refrain from breaking the law even if we judge it to be in our interest. Agents do not think they are justified overallFootnote 26 as they violate the law (though they do think they are prudentially justified, or at least likely to give it a good shot).Footnote 27 In some cases (in cases in which the criminal act is, despite the state’s best efforts, judged to be in the interest of the agent) the motive of duty is needed to make sure that obeying the law is more than just a theoretical option for the agent – a theoretical option already dismissed on prudential grounds. There is no free choice without the duty motive. The duty motive is thus a background condition of moral responsibility.Footnote 28
6.9 Hegel’s Dog
Without the availability of the duty motive, Hegel’s criticism of Feuerbach’s deterrence theory of punishment would pose a problem for Kant’s view as well:
Feuerbach bases his theory of punishment on threat and thinks that if anyone commits a crime despite the threat, punishment must follow because the criminal was aware of it beforehand. But what about the justification of the threat? A threat presupposes that a man is not free, and its aim is to coerce him by the idea of an evil. But right and justice must have their seat in freedom and the will, not in the lack of freedom on which a threat turns. To base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with the freedom and respect due to him as a man. But a threat, which after all may rouse a man to demonstrate his freedom in spite of it, discards justice altogether. – Coercion by psychological factors can concern only differences of quantity and quality in crime, not the nature of crime itself, and therefore any legal codes that may be products of the doctrine that crime is due to such coercion lack their proper foundation.
This is a common concern. Readers and commentators are worried that Kant cannot espouse a deterrence theory of punishment – not even if, to use Sharon Byrd’s memorable phrase, deterrence in threat of punishment is coupled with retribution in its execution – because this kind of external manipulation would amount to treating human beings as mere means rather than persons. But on the reading given above, Kant’s theory of punishment is dependent on the personality of those who think that breaking the law might be in their interest. It is their autonomy – and the availability of the duty motive that is tied up with it – that makes them a fit object of a legal punishment that is neither ‘natural’ nor unduly moralized.Footnote 29
6.10 Backups in Law and in Ethics
Our account of the conditions of juridical punishment has an interesting implication for Kant’s moral philosophy as a whole. So far, we have argued that, appearances notwithstanding, Kant needs to rely on the duty motive in his legal theory. Respect needs to be available to motivate action in accordance with the law when – on, one would hope, rare occasions in a well-ordered state – agents judge that such action is not in their interest and are therefore inclined to break the law. Without the availability of moral interest, juridical punishment would be illegitimate.
Now, the idea that the motive of duty should serve as a backup has been ascribed to Kant’s moral philosophy before – if to his ethics, rather than his philosophy of law. Scholars like Richard Henson and Allen Wood maintain that we need to act from duty or respect for the moral law only when inclination-based motivation fails to point in the right direction. For the most part, action can thus be determined by benign inclination. They reject motivational rigorism on Kant’s behalf.Footnote 30 On these views, which can be seen as a response to broadly virtue ethical concerns, Kant’s ethics does not include a requirement that obligatory action always be done for the sake of duty. Rather, the moral motive – or an action that has moral worth – is required only in cases of conflict. Even from the point of view of ethics, there would then be nothing objectionable about acting on inclination as long as what one wants to do coincides with what one morally ought to do.Footnote 31 But doing away with Kant’s motivational rigorism in this manner means legalizing the sphere of ethics, which, in Wood’s case, goes hand in hand with de-ethicizing the sphere of right. We would argue that both tendencies should be resisted.
In the end, however, external legislation is an abstraction. The ethical perspective is more fundamental and it is, importantly, inevitably the perspective of the agent. From a first-person point of view, all moral decision-making is ethical, that is, the legal perspective exists only from a third-person point of view. As an agent, it would be weird for me to say: I care only about conforming with the law of the land; in one area of practical normativity, there is no need for me to do my duty from duty. I cannot say: I ought to do it, juridically, because the state forces me to do it – if only the state’s forcing me to do it makes me want to do it, and what I want cannot be regulated by oughts. I ought to obey the law whether I want to do it – whether I judge it to be in my interest – or not. We are experiencing juridical obligations as categorical imperatives, not as the hypothetical imperatives the legislator employs to enforce them.Footnote 32 And that is possible only because they fall within the sphere of ethics. In fact, our view can even accommodate Willaschek’s ‘paradox of juridical imperatives’.Footnote 33 His worry is that ‘juridical laws cannot find expression in categorical imperatives, after all, because juridical laws do not require obedience for their own sake’.Footnote 34 The answer is that even if from the point of view of the state they do not, from the point of view of the agent they do – which is why they are proper categorical imperatives after all.Footnote 35 The paradox can be resolved in true Kantian fashion by distinguishing two standpoints from which we can view juridical obligation.Footnote 36
6.11 Objection: What about Kant’s ‘State of Devils’?
Our view faces one obvious objection. What, we may wonder, about Kant’s dictum that establishing a state is a problem that can be solved even for a people or nation of devils (ZeF 8:366.15–17)? Surely, the state must sustain the threat and execution of punishment? And devils, for the lack of respect for the law, cannot do their duty from duty? So, how can it be right to punish them?
It is clear from the historical context of this passage that Kant is exaggerating. First of all, Kant is reacting – maybe overreacting – against August Wilhelm Rehberg’s allegation of utopianism.Footnote 37 The state does not rely on the divine nature of its citizens; on the contrary, even devils can live together in a well-ordered state. Secondly, the devils he has in mind are not endowed with a diabolical will in the sense defined in the Religion (see, again, RGV 6:37.21). They do not violate the law for the sake of violating the law. For a nation of truly diabolical devils, the task of establishing the state would be insoluble. Rather, the devils envisaged in On Perpetual Peace are a race of egotistical maximizers of self-interest.
So, rational, less than diabolical devils can make use of a state in a Hobbesian fashion, because it is in their interest. However, they do not have a state with the same kind of practical normativity as ours. There would be no exeundum either. This is Kant’s advice:
Given a multitude of rational beings all of whom need universal laws for their preservation, whilst each of whom is inclined covertly to exempt himself from them, so to order this multitude and establish their constitution that, even though in their private dispositions they strive against one another, these yet so check one another that in their public conduct the result is the same as if they had no such evil dispositions.
Would those devils that violate the laws of the land be punishable? Yes and no. They would not be punishable if by that expression we mean the infliction of just punishment. Making good on the threat of punishment would not be deserved. But any pain inflicted on such creatures does not count as undeserved either. It might thus still be in the interest of devil citizens to live in a state that is, by and large, to everyone’s advantage.
Human beings are importantly different from this breed of devils in that in their case acts of punishment are morally, not just instrumentally, justified.
6.12 Conclusion
So, the sphere of right and the sphere of ethics are less distinct than one might think. The former relies on the latter via the notion of legal obligation as indirectly ethical. The state cannot tell us: You have to do your (juridical) duty from duty. But the state can tell us: You have to do your (juridical) duty, period. It just happens to be the case that when committing a crime seems means–ends rational, the motive of duty – moral interest or respect for the law – is the only incentive available. And we cannot act without an incentive. If we then refrain from breaking the law, we do so from duty; if we do not, we should and could have decided not to break the law from duty. That is why, when we commit a crime, we deserve to be punished.
Let us note in conclusion that there are other ways in which the sphere of right rests on internal legislation. Most prominently, the exeundum does not depend on external legislation since it is only by virtue of our leaving the state of nature that external legislation arises in the first place. As Onora O’Neill puts it, ‘this duty to leave the state of nature and to enter a civil society is necessarily unenforceable, since it is a duty to establish the possibility of enforcement’.Footnote 38 So, our conclusion should not come as a surprise.Footnote 39
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