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Juridical punishment can never be adminis-

Immanuel Kant tered merely as a means for promoting an-


other good, either with regard to the criminal
The Retributive Theory himself or to civil society, but must in all cases
be imposed only because the individual on
of Punishment 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
For biographical information on Kant, see his reading of another, nor be mixed up with the subjects
in Chapter 1. of real right. Against such treatment his inborn
On Kant's retributive theory of punishment, personality has a right to protect him, even
punishment is not justified by any good results, but although he may be condemned to lose his
simply by the criminal's guilt. Criminals must pay civil personality. He must first be found guilty
for their crimes; otherwise an injustice has occurred. and punishable, before there can be any
Furthermore, the punishment must fit the crime. thought of drawing from his punishment any
Kant asserts that the only punishment that is appro- benefit for himself or his fellow-citizens. The
priate for the crime of murder is the death of the penal law is a categorical imperative; and woe
murderer. As he puts it, "Whoever has committed a to him who creeps through the serpent-
murder must die." windings of utilitarianism to discover some
advantage that may discharge him from the
justice of punishment, or even from the due
Judicial or juridical punishment (poenaforen-
measure of it, according to the pharisaic
sis ) is to be distinguished from natural pun- maxim: 'It is better that one man should die
ishment (poena naturalis ), in which crime as than that the whole people should perish.' For
vice punishes itself, and does not as such come if justice and righteousness perish, human life
within the cognizance of the legislator. would no longer have any value in the
world. What, then, is to be said of such a
Immanuel Kant, The Philosophy of Law, Part II trans. W. proposal as to keep a criminal alive who has
Hastie (1887). been

144 Contemporary Moral Problems


condemned to death, on his being given to gratification. Yet the attack committed on the
understand that if he agreed to certain dan- honour of the party aggrieved may have its
gerous experiments being performed upon equivalent in the pain inflicted upon the pride
him, he would be allowed to survive if he of the aggressor, especially if he is condemned
came happily through them? It is argued that by the judgment of the court, not only to
physicians might thus obtain new information retract and apologize, but to submit to some
that would be of value to the commonweal. meaner ordeal, as kissing the hand of the
But a court of justice would repudiate with injured person. In like manner, if a man of the
scorn any proposal of this kind if made to it highest rank has violently assaulted an
by the medical faculty; for justice would cease innocent citizen of the lower orders, he may be
to be justice, if it were bartered away for any condemned not only to apologize but to
consideration whatever. undergo a solitary and painful imprisonment,
But what is the mode and measure of pun- whereby, in addition to the discomfort en-
ishment which public justice takes as its prin- dured, the vanity of the offender would be
ciple and standard? It is just the principle of painfully affected, and the very shame of his
equality, by which the pointer of the scale of position would constitute an adequate retali-
justice is made to incline no more to the one ation after the principle of like with like. But
side than the other. It may be rendered by how then would we render the statement: 'If
saying that the undeserved evil which any one you steal from another, you steal from your-
commits on another, is to be regarded as per- self? In this way, that whoever steals anything
petrated on himself. Hence it may be said: 'If makes the property of all insecure; he therefore
you slander another, you slander yourself; if robs himself of all security in property,
you steal from another, you steal from yourself; according to the right of retaliation. Such a one
if you strike another, you strike yourself; if you has nothing, and can acquire nothing, but he
kill another, you kill yourself.' This is the right has the will to live; and this is only possible by
of retaliation (Jus talionis ); and properly others supporting him. But as the state should
understood, it is the only principle which in not do this gratuitously, he must for this
regulating a public court, as distinguished purpose yield his powers to the state to be used
from mere private judgment, can definitely in penal labour; and thus he falls for a time, or
assign both the quality and the quantity of a it may be for life, into a condition of slavery.
just penalty. All other standards are wavering But whoever has committed murder, must die.
and uncertain; and on account of other con- There is, in this case, no juridical substitute or
siderations involved in them, they contain no surrogate, that can be given or taken for the
principle conformable to the sentence of pure satisfaction of justice. There is no likeness or
and strict justice. It may appear, however, that proportion between life, however painful, and
difference of social status would not admit the death; and therefore there is no equality
application of the principle of retaliation, which between the crime of murder and the
is that of 'like with like.' But although the retaliation of it but what is judicially
application may not in all cases be possible accomplished by the execution of the criminal.
according to the letter, yet as regards the effect His death, however, must be kept free from all
it may always be attained in practice, by due maltreatment that would make the humanity
regard being given to the disposition and suffering in his person loathsome or
sentiment of the parties in the higher social abominable. Even if a civil society resolved to
sphere. Thus a pecuniary penalty on account dissolve itself with the consent of all its
of a verbal injury, may have no direct membersas might be supposed in the case of
proportion to the injustice of slander; for one a people inhabiting an island resolving to
who is wealthy may be able to indulge himself separate and scatter themselves throughout the
in this offence for his own whole worldthe

Capital Punishment 145


last murderer lying in the prison ought to be Review Questions
executed before the resolution was carried
1. According to Kant, who deserves juridical
out. This ought to be done in order that every
punishment?
one may realize the desert of his deeds, and
2. Why does Kant reject the maxim "It is better
that bloodguiltiness may not remain upon the
that one man should die than that the whole people
people; for otherwise they might all be
should perish"?
regarded as participators in the murder as a
3. How does Kant explain the principle of retali-
public violation of justice.
ation?
The equalization of punishment with
crime, is therefore only possible by the cogni-
tion of the judge extending even to the pen- Discussion Questions
alty of death, according to the right of retalia-
1. Does Kant have any good reason to reject the
tion. "serpent-windings of utilitarianism"?
2. Is death always a just punishment for murder?
Can you think of any exceptions?