Some Thoughts on Kant's 'Retributivism'

[Paul Hubbard <curley_boy_99@yahoo.co.uk>]

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Last semester, I wrote an essay for my philosophy of law module about 
whether or not the institution of capital punishment was 'cruel or 
unusual'.  As part of the research for the essay, I researched some of 
Kant's opinions on the topic (taken primarily from a book called: 
'Kant's Political Writings' by Hans Reiss).  What follows are some of 
the difficulties I faced when trying to understand Kant's position -- 
perhaps some of you could help me out?


Kant's retributivism is hard to unpick because he seems to treat moral 
problems, their solutions and the whole 'framework' of the law, as being 
of the same kind as those encountered in logic and abstract 
mathematics.  In his book: 'Moral Theory and Capital Punishment', Sorell 
states that: "Kant lays special stress on the 'law of retribution', 
according to which like is to be exchanged for like in matters of 
offence and penalty".

The state implements, through its legislature, laws that receive their 
principles and authority from the 'general law'.  Kant's reasoning 
behind this is apparently that the criminal "draws the evil deed back to 
himself ... when he suffers that which according to the penal law ... is 
the same as what he has inflicted on others [ie a state sanctioned 
punishment]".  Now with regards to capital punishment we can see how 
this 'law' works in practice (even if we are dubious about its /a 
priori/ status).  Here, the life of the murderer is taken by the state 
in exchange for the life of the murderer's victim.

But how does this work with other crimes?  Take stealing as an example.  
Kant's proposed punishment for stealing is that the perpetrator should 
not only loose everything he owns, but that he should also be prevented 
from acquiring further property (and perhaps even give himself over to 
the state, to work for it as it sees fit).  Surely this goes far beyond 
the kind of retributivism that demands 'like for like'?  For if there 
were to be a genuine similarity between crime and punishment then all 
the state need do, in order to right the wrong that had occurred, would 
be to take from the thief's own purse the exact amount originally stolen 
from his victim (nothing more, nothing less).  It appears that Kant's 
excessive form of retribution is punishing the criminal /twice/ (once 
for the victim's loss, and again for a breach of the general law).  
Surely the only motive the state has to punish the criminal, in this 
instance, is because his breach of the general law makes the institution 
of property ownership unstable?  If the state goes a step further, and 
punishes him for the loss incurred by the victim of his theft, then 
surely this second punishment is motivated by a consequentialist desire 
for material re-compensation?  This is unnecessary because the victim 
has already been paid back by the state's donation from the thief's 
purse (as part of the desire to 'restore the balance' in its duty to the 
general law.)

A further problem occurs because of the diminished status Kant seems to 
give to the role that consequences play in agents' decisions to act in 
violation of laws in the first place.  Kant's defense of harsh 
punishment seems to be that genuine disincentives must be provided to 
cause potential law-breakers to 'think twice' before acting.  Now 
obviously this is more of a consequentialist approach.  But Sorell 
states that Kant defends this aspect of his theory by saying that 
although rational agents will apprehend the general laws behind those of 
the state, and thus not break them, not everybody is completely rational 
(and thus punishment appeals to irrational peoples' "feelings and 
inclinations").  But however compatible this admission is with the rest 
of Kant's theory of morals, in relation to the autonomy of individuals 
as rational agents, surely it undermines the supposed importance of the 
role that reason plays in our decision-making processes?  For if human 
beings were as rational as Kant supposes them out to be, then they would 
always understand that stealing (for example) undermines the general 
principle of ownership, and thus punishment would not be required to act 
as a deterrent.

Now since Kant's admission, above, admits that most people are rational 
/enough/ to apprehend the general laws (and thus their unwillingness to 
transgress them does not rely on the perceived /consequences/ of their 
acts), the only people who are liable to be punished are those that are 
too irrational to apprehend the moral law and the duty they have to 
respect it.  Such people are likely to be found amongst the ranks of the 
poor (who lack access to education, and thus the opportunities to 
enhance their reasoning abilities) and the mentally disturbed (who are 
perhaps not 'reasonable enough' even to understand the concept of a law 
in the first place).

Thus, as I have so far understood it, Kant's retributivism seems to 
punish purposelessly (as those who are more likely punished are those 
who could not be held responsible for lacking the rationality to 
perceive the laws their acts breached).  In addition, Kant's 
understanding of what motivates human beings on an everyday basis seems 
rather unrealistic.  It may be that philosophers can understand, on a 
rational level, why breaching general moral laws are wrong (because they 
undermine the general principles of social institutions like ownership 
and autonomy), but most people do not always act 'from reason'.  Many 
crimes are not premeditated; people act more commonly from instinct than 
from their understanding rational principles.  (And, more often than 
not, the instinct on which people act is fear of /consequences/!)  Since 
Kant marginalises the role consequences play in influencing peoples' 
motives to act, his theory of punishment becomes almost nonsensical.

Perhaps such difficulties arise as the result of Kant's attempts to 
prove that the retributive aspects of Christian morality had rational 
foundations?  By squeezing it into what he perceived to be a systematic 
'framework', similar to those found in mathematics and natural 
philosophy, it seems that what Kant actually achieved was to divorce his 
system from the motivations and considerations of peoples' everyday 
lives.  Therefore, I wonder, in what sense could this aspect of Kant's 
philosophy be considered to be about 'morality' at all?




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