In his review of the Doctrine of Right, Bouterwek critically notes that Kant first discusses the law of state before discussing criminal law. Yet, Kant cannot discuss criminal law elsewhere because for Kant punishment is inconceivable without a state. In the state of nature, attacks against another person can be warded off, but they cannot be punished. They cannot be punished because there are no external (positive) laws, no judge to impose punishment, and no executive officer to execute the punishments imposed. Similarly, a “punitive war” waged by states which are not yet in a juridical state of nation states is a “self-contradictory notion.” In their mutual relations, the states are still in the state of nature. They too have no external laws or judge to impose punishment, and no “commander,” to execute the punishment imposed.

Bouterwek's misunderstanding of Kant's theory of criminal punishment is matched by current trends in German legal theory insisting that Kant is a pure retributivist. Kant, in the Achenwall tradition, understands criminal law as a device the state uses to ensure individual rights by threatening punishment for their violation. Retribution is the standard for determining how much punishment may be threatened to deter crimes and executed in case of violation of the law. The retributive idea functions simply to protect a criminal offender from being used merely as a means to the goal of deterrence. The purpose of the criminal law for Kant is thus deterrence, with retribution playing a regulatory role.