2.3 Deontological Retributive Theories
It might be surprising to hear a retributive theory characterized as forward-looking or consequential, for retributivism is usually characterized as nonconsequential, as "deontic." According to one commentator, "[r]etributivism is a deontological theory, different in its logical behaviour from its teleological counterpart."[99]
A teleological theory would consider the punishment as the means to some good, either general or individual. But the obligation laid upon us by "This is a just punishment" asserts the independent moral value of the punishment itself, considered apart from, and even to the frustration of, some prudential value to be derived from its effects…. In teleological theory we may ask of each action in a sequence "why?" until we reach an answer that is considered prudentially sufficient…. In a deontological
[97] Feinberg, "The Expressive Function of Punishment," p. 105.
[98] In chapter 4, section 4, I shall defend a consequentialist retributivism. The sense in which this retributivism is con sequentialist is rather weak; but it is nevertheless forward-looking enough to be distinguished from the deontic theory we shall consider in the next section.
[99] Mary MacKenzie, Plato on Punishment (Berkeley: University of California Press, 1981), p. 29.
theory, on the other hand, "why?" questions terminate in a judgment which is considered to be morally sufficient—maybe from an intuitionist point of view.[100]
In this view, where retributivism is seen as a deontological theory that is mutually exclusive of teleological theories, the retributivist insists that we punish, not for any consequences, such as to deter future crimes, or to reform or incapacitate the criminal, but, rather, for the sake of punishing, because punishing is in itself just or right—regardless of the good it may yield.
Does anyone hold such a view? If anyone does, it is Kant,[101] and it is to his views about legal punishment that we now turn.
The conventional understanding of Kant is that he is a retributivist who opposes all utilitarian justifications of punishment, instead holding that we punish only because justice demands this.[102] I shall argue that this understanding gets Kant wrong. Kant, it is true, rejects consequentialism in thinking about moral actions, but Kant also thinks law and morality are separate spheres: the justification for a moral action has a different character from the justification for a legal action. Kant's theory of legal punishment is not deontological.
In his Lectures on Ethics , Kant distinguishes moral from pragmatic laws; the latter comprise statute and common law.[103] Pragmatic laws constrain actions related to other people;
[100] Ibid.
[101] MacKenzie, who makes the claim that retributivism is a deontological, not a teleological, theory, thinks Kant's is the paradigm of a deontological theory of punishment (ibid., p. 29, note 39).
[102] For example, Mitchell Franklin says that in Kant's view it is not justified to punish in order to deter ("The Contribution of Hegel, Beccaria, Holbach and Livingston to General Theory of Criminal Responsibility," in Philosophical Perspectives on Punishment , ed. Edward H. Madden, Rollo Handy, and Marvin Farber (Springfield: Charles C. Thomas, 1968), p. 102. See also Brubaker, "Can Liberals Punish?" p. 826.
[103] Immanuel Kant, Lectures on Ethics , trans. Louis Infield (New York: Harper Torchbooks, 1963).
unlike moral laws, they demand compliance regardless of one's moral disposition.[104] Whereas pragmatic laws are made by governments, moral laws have no author.[105] Kant then makes the following distinction, which seems so often ignored: the punishment imposed, by a being who is guided by moral standards is retributive,[106] but punishment for the violation of (pragmatic) law is imposed to deter or reform:
AII punishments imposed by sovereigns and governments are pragmatic. They are designed either to correct or to make an example.[107]
Ruling authorities do not punish because a crime has been committed, but in order that crimes should not be committed.[108]
Kant thinks that the risk of punishment should not be our ground for avoiding evil deeds. We use rewards and punishment in order to make up for our lack of morality,[109] not to inspire moral action. Kant thinks it is wrong to use the threat of punishment to inspire moral action, but that through punishment man acquires the habit of doing good deeds.[110]
In his often neglected essay On the Old Saw: That May Be Right in Theory But It Won't Work in Practice , Kant gives a hypothetical example in which he appeals implicitly to deterrence as the justification for legal (but not moral) punishment.[111] Kant supposes that one man on a life raft pushes the other off to save his own life. Kant says the man does not have a duty to save his own life; rather, he has an unconditional
[104] Ibid., p. 48.
[105] Ibid., pp. 51–52.
[106] Ibid., p. 55.
[107] Ibid.
[108] Ibid., p. 56.
[109] Ibid.
[110] Ibid., p. 57.
[111] Immanuel Kant, On the Old Saw: That May Be Right in Theory But It Won't Work in Practice , trans. E. B. Ashton (Philadelphia: University of Pennsylvania Press, 1974).
duty not to take the life of someone else who is not causing the danger threatening his life. (Kant does not consider the objection that the other man, by consuming what food and drink are available, is indirectly causing a danger to the life of the first.) But, in a footnote, Kant defends "law professors" as
quite consistent in making legal allowance for such emergency acts. For the authorities can't attach any punishment to this injunction, because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation.[112]
Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from acting in certain ways. The point of these laws is to deter. Consequently, a law that imposes a punishment that could not deter the action the law proscribes is absurd. In his Metaphysics of Ethics Kant repeats the lifeboat example and makes the further distinction that the rescued person's killing is not inculpable (unsträflich ) but is impunible (unstrafbar ).[113] here it is clear how important is Kant's separation of law (Legalität —whether an action accords with a law without further consideration of motivations) and morality (Moralität ). Legal duty is external duty, whereas ethical or moral duty is internal duty.[114] Legal duty binds by force or coercion (Zwang ).[115] In the lifeboat example there is a moral, not a legal, duty not to kill the other person. The rescued
[112] Ibid., p. 68, note.
[113] Immanuel Kant, Metaphysik der Sitten , in Kant, Werke in Sechs Bänden , vol. 4, ed. Wilhelm Weischedel (1798; reprinted Darmstadt: Wissenschaftliche Buchgesellschaft, 1963), AB41–42.
[114] Ibid., AB15.
[115] Ibid., AB16. Kant also makes the distinction between recht and gerecht (right and justice). He says that legal action is either gerecht or ungerecht ; moral action is either recht or unrecht (AB23). Kant's distinction is not unlike Hobbes's distinction between injustice and iniquity: Hobbes writes in Leviathan that the sovereign can do no injustice, but he may commit iniquity (ch. 18).
person is to be morally condemned but not legally punished.
Kant's theory of legal punishment does not rule out utilitarian considerations, but does it make sense to call his a retributive theory? If so, it is not because Kant thinks we punish to avenge: "[T]o insist on one's right beyond what is necessary for its defence is to become revengeful … such desire for vengeance is vicious."[116] There are other reasons why we call Kant a retributivist. Kant holds to the principle of equality in punishing. In the Metaphysics of Ethics Kant writes: "[W]hatever undeserved evil you inflict on someone, you do to yourself…. [I]f you strike him, you strike yourself; if you kill him, you kill yourself."[117] Kant draws the conclusion that my action should literally be turned back on me—if I kill another, I should be killed.[118] Kant thus adopts a version of the lex talionis , though he carefully distinguishes this view from one of private revenge.[119] He also allows that the principle of equality can be valid, if not in the letter, then in its effect; for example, justice can require a nobleman to apologize publicly if he insults someone, of lower class, since a fine would have no impact on him.[120]
Another reason we call Kant a retributivist is that he insists that a person may be punished only because he has committed a crime, and not for any other purpose:
The criminal must be found to be worthy of punishment [strafbar ], before it is to be thought that from his punishment some use for himself or his fellow citizens can be drawn.[121]
Kant argues that we cannot punish someone merely to achieve some further good; he opposes, for example, a proposal to
[116] Kant, Lectures on Ethics , p. 214.
[117] Kant, Metaphysik der Sitten , A197–98, B227–28.
[118] Ibid., A199, B229.
[119] Ibid.
[120] Ibid., A198, B228.
[121] Ibid., A196–97; B226–27.
have a person on death row participate in dangerous experiments that could yield beneficial results.[122] Underlying Kant's position is the view that human beings should not be treated only as a means to some end:
Now I say that man, and in general every rational being, exists as an end in himself, not merely as a means for arbitrary use by this or that will: he must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end.[123]
This aspect of Kant's theory has been emphasized by other retributivists who oppose what are called humanitarian theories of punishment. A humanitarian theory is a variation of utilitarian theory that advocates therapy and treatment, not punishment.[124] Karl Menninger, whose views we considered in chapter two, gives such a theory. For Menninger, punishment is nothing but the infliction of pain and suffering; punishment is inhumane and does no good, and our resources would be better spent reforming the criminal who has done "so human a thing."[125]
The retributivist objection to this seemingly benign position is best expressed by Hegel. In his early Propaedeutik Hegel opposes those who think the state should help people by treating or reforming them even though the person being helped
[122] Ibid. We might ask Kant why he thinks it is wrong to conduct medical experiments on a prisoner, so long as her imprisonment is deserved. In that case she is not being treated merely as a means.
[123] Immanuel Kant, Groundwork of the Metaphysic of Morals , trans. H. J. Paton (New York: Harper Torchbooks, 1964), p. 95; see in general pp. 95–103.
[124] MacKenzie, Plato on Punishment , prefers to distinguish humanitarian from utilitarian theories. For her, both are teleological theories, but for utilitarians the end for which punishment is the means is a general good, whereas for humanitarians it is an individual good.
[125] Another example of a humanitarian theory is that of Norval Morris and Donald Buckle, "The Humanitarian Theory of Punishment: A Reply to C. S. Lewis," in Grupp, ed., Theories of Punishment , pp. 309–16.
does not consent: "To help someone in need, that person must will that I help him, that I still will regard and treat him as equal."[126] Why? Hegel, drawing on Kant's idea of human beings as ends in themselves, explains in his later Philosophy of Right :
Punishment is regarded as containing the criminal's right and hence by being punished he is honoured as a rational being. He does not receive this due of honour unless the concept and measure of his punishment are derived from his own act. Still less does he receive it if he is treated either as a harmful animal who has to be made harmless, or with a view to deterring and reforming him.[127]
Kant's theory of legal punishment is not deontological, since for him a legal punishment is not justified that could not deter wrongs. But the theory is retributive, inasmuch as Kant holds to the negative retributive principle that we must punish for no other reason than that a wrong was committed. (However, we've seen that Bentham, a classic utilitarian, also holds to this principle.) Kant gives another hypothetical example, one that appeals to the stronger, positive retributive principle: on an island where all the people were to depart the next day, forever dissolving and dispersing the community, the last murderer in jail would have to have his execution carried out before the diaspora, because justice demands this. Kant is a retributivist because he holds that justice must prevail, "else a people is doomed."[128] The utilitarians we have discussed would contend that in such cases, where punishment could not possibly be justified by the principle of utility, we should refrain from punishing. On this point Kant and the utilitarians disagree.
At this point we might be puzzled by Kant's views, for the diaspora example is difficult to reconcile with Kant's other
[126] Hegel, Philosophische Propaedeutik , part 2, par. 66.
[127] Hegel, Philosophy of Right , par. 100, Remark.
[128] Kant, Metaphysik der Sitten , A196–97, B226–27. Note how Kant's formulation is consequentialist but not utilitarian.
hypothetical example, that of the lifeboat, whose point is that legal punishment must deter. With the diaspora example Kant claims that desert is a necessary and sufficient condition for punishment. Kant chose the diaspora example precisely because it presents a case in which we must punish even though there is no conceivable basis in utility for doing so. How could Kant claim both that the person on the lifeboat who kills the other need not be punished, because doing so would not provide any deterrent benefit, and that a murderer who could pose no possible future threat to his society must nevertheless be punished? I think a plausible answer is that in the lifeboat example Kant is saying, not that we should not punish a wrong where doing so would be ineffective, but, rather, that the killing should not be regarded as a criminal action, or wrong. Kant can with consistency hold both that we should not call a crime any action that could not be deterred by the threat of legal punishment, and that we must punish crimes even when doing so would not augment social utility.
A deontological theory that insisted we punish even though such punishing would lead to society's destruction would not be very attractive. Retributivists are typically characterized, rather unflatteringly, as nonconsequentialists, as only backward-looking. It is true that for the retributivist the fact that a crime occurred in the past is a compelling reason for punishing. But, as our discussion in this chapter should make clear, one can be a retributivist and still take consequences into account. Both the revenge and the condemnation version of retribution make reference to a future good: the satisfaction of personal desires, or the vindication of right. Utilitarianism is not the only theory that is forward-looking in any degree.[129]
[129] Justice Thurgood Marshall wrote in Gregg v. Georgia , 428 U.S. 153 (1976): "The … contentions that society's expression of moral outrage through the imposition of the death penalty pre-empts the citizens from taking the law into its own hands and reinforces moral values—are not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results." Marshall, apparently of the understanding that retributivism means being oblivious to consequences and that arguing for something on the basis of its good consequences means one is utilitarian, winds up labeling as utilitarian what clearly is a retributive position. Marshall could have avoided stretching utilitarianism so far had he seen that to be a utilitarian one must justify an action or practice by appealing to a calculation of net utilities. On the rejection of the simple dichotomy of "deontological" and "consequentialist" (that is, that one must be either one or the other), see Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), esp. p. xi.
The retributivist position I shall defend is not strictly deontological; it recognizes the importance of justice and right, but is unwilling to insist on justice "though the world perish."