Documente Academic
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Documente Cultură
JEAN-CHRISTOPHE MERLE
translated from the German by
JOSEPH J. KOMINKIEWICZ
with
JEAN-CHRISTOPHE MERLE
and
FRANCES BROWN
ISBN-13
978-0-521-88684-0
Hardback
CONTENTS
page xi
Preface
xiii
List of abbreviations
Introduction
17
44
72
87
107
149
171
Conclusion
187
Bibliography
197
Index
204
ix
PREFACE
Nemo prudens punit quia peccatum est sed ne peccetur, says Seneca
in De ira, and many philosophers who have come after him recommend
such a justification of punishment by deterrence. Since Immanuel
Kant, a completely different concept has spread among philosophers,
considerably more so than among legal scholars and lawyers.
According to Kant, the question of justification of punishment should
not read: For what purpose punish? Rather, according to Kants
absolutist or categorical imperative regarding punishment, punishment can only be carried out because the malefactor is deserving of
the punishment. Everything else is allegedly unjust, and is detrimental
to the malefactors human dignity as a moral subject. Such a theory of
retributive justice, which draws not only from Kant but also from
G. W. F. Hegel, inspires a great deal of fascination in many philosophers, but that notwithstanding it still stands on shaky ground.
A precise analysis of Kants and Hegels philosophy of law and morality leads rather to a special form of deterrence theory.
I will attempt to conduct this analysis within the confines of this
book. The analysis begins with Kant, continues with J. G. Fichte and
Hegel, leads to Friedrich Nietzsche, and then concludes with a discussion of the justification of punishment for crimes against humanity.
This closing discussion should be seen as the touchstone. Should my
position be able to explain this difficult case, then it should be even
more able to explain cases of lesser difficulty.
I would like to thank Manfred Frank and Anton Schindling for
their comments on the manuscript as well as two anonymous referees
from Cambridge University Press. Special thanks go to Sharon Byrd,
Philippe Coppens, Roman Eisele, George Fletcher, Thomas Grundmann,
Jan C. Joerden, Matthias Kaufmann, John Kleinig, Eugenio Pacelli de
xi
xii
preface
ABBREVIATIONS
Kant
GMS
Idee
KpV
KrV
Pad
Rel
xiv
RL
TL
VE
ZeF
Fichte
GNR
Hegel
GPhR
NRSW
list of abbreviations
list of abbreviations
PhR
xv
Nietzsche
GdM
On the genealogy of morality
(Zur Genealogie der Moral)
Friedrich Nietzsche, On the genealogy of morality, ed. Keith
Ansell-Pearson, trans. Carol Diethe (Cambridge: Cambridge
University Press, 2007), pp. 1128
WuL
On truth and lies in a nonmoral sense
ber Wahrheit und Luge)
(U
Friedrich Nietzsche, Writings from the early notebooks, ed. Ladislaus
Lob, Raymond Geuss and Alexander Nehamas (Cambridge:
Cambridge University Press, forthcoming)
INTRODUCTION
1. For an example of the few exceptions, see Herman Bianchi, Abolition: assensus and
sanctuary, in Alexander R. Duff and David Garland (eds.), A reader on punishment
(Oxford: Oxford University Press, 1994), pp. 33651.
2. See the beginning of Michel Foucault, Discipline and punish: the birth of the prison, trans.
Alan Sheridan, second edition (New York: Random House, 1995); see also the
Constitutio criminalis Carolina in Friedrich-Christian Schroeder (ed.), Die Carolina:
die Peinliche Gerichtsordnung Kaiser Karls V. von 1532 (Darmstadt: Wissenschaftliche
Buchgesellschaft, 1986).
introduction
introduction
introduction
introduction
the criminal represents justice for the victim.19 Apart from that, concern for the commonwealth does not play a role in retributive theorys
justification of punishment. Consequently, if in the retributivist justification of punishment only the criminal is taken into account, this
begs the question of why the punishment falls under the jurisdiction
of the judicial powers, that is, why it belongs to the commonwealth
which, in other cases, maintains distance from the private sphere of
the individual. If, in the retributivist justification of punishment, only
the criminal and the victim are taken into account, then it is inevitable
to ask why the punishment could not just be decided in a civil trial.
Under these circumstances, we should not be surprised to observe that
retributivism is hardly ever supported by legal theorists, even though it
enjoys a wide esteem among philosophers for its supposed morality, as
well as majority support.20 This discrepancy between the view of
philosophers and the view of legal theorists does not, unfortunately,
receive much attention from philosophers.
Unlike the theories of deterrence and rehabilitation, the justified
implementation of retributivism is not accountable to performance criteria, or to its output (put differently: According to retributivism . . . the
significance of punishment lies outside the realm of social reality).21 If
especially high recidivism figures were noticed in relation to one sort of
crime that was being handled with measures involving rehabilitation
of the criminal, there would then be questions as to the legitimacy of
this sort of penal mechanism. However, the implementation of retributivism is, by its very essence, not dependent on its effectiveness. The
justification for a system of retributive justice is not empirically verifiable through criminological studies, for example. Rather, the criticism
directed toward retributivism must be at the conceptual level. For this
19. This perspective is very questionable, because, in a modern constitutional state, the
criminal proceedings are differentiated from civil proceedings, among other things,
by the former being carried out by the states attorney as the representative of the
interests of the commonwealth, while the latter transpires between two private parties.
At the most, the victims appear alongside as joint plaintiffs and the punishment is in
no way seen to be compensation for the infringement on their rights. Since the notion
that punishing the malefactor represents justice for the victim seems not to be central
to the core of retributivism I will disregard this aspect of it, at least in this work, and
concentrate only on the main argument of retributivism. Were this main argument
omitted, the (alleged) justice on the part of the victim for a proponent of
retributivism would also not be enough justification for the ills that the criminal
would be forced to undergo as a component of his or her punishment.
20. Cf. Roxin, Strafrechtliche Grundlagenprobleme, p. 182.
21. Neumann and Schroth, Neuere Theorien, p. 11.
10
introduction
11
punishment for reaching these goals, and this assertion really must
be proven with empirical data.23 In my view, the debate about justification of punishment is first and foremost a legal and a moral discussion. In this work I will conduct the discussion accordingly.
The four aforementioned points urge skepticism in relation to the
claim of moral superiority that is made by retributivism, because
retributivism, unlike rehabilitation, does not pay heed to the criminals interests, but instead only to his or her merits or responsibility for
the consequences of every act. First, equal compensation is neither
necessarily nor self-evidently the consequence of a criminal offense.
Secondly, retributivism considers only one dimension of responsibility, but not the inalienable status of a human being as a being capable
of reason. Thirdly, retributivism would allow important consequences
of the criminal offense such as those for the commonwealth to be
disregarded. Fourthly, an explanation is missing in retributivism for
why a punishment intended retributively, whose justification only
concerns the criminal and possibly the criminals victim as well
does not, however, concern the commonwealth, but yet is still
imposed by the commonwealth.
All of these four objections form the basis of my critical debate with
retributivism. Many exponents of it are already cognizant that these
four points are at least problematic. They respond to skepticism by
dispensing with the exclusivity of retributivism in justifying punishment and in determining the degree of punishment. The opinion is
often expressed that retributivism only represents one particular ethical framework for criminal law in which goals of punishment are also
allowed to be fully pursued. When this point is made in order to limit
the application of the other theories of punishment through a kind of
limitation of power, there is a presupposition that retributivism enjoys
legal and moral superiority, for it allegedly respects the rights of the
individual human being more than the other theories of punishment.
Claus Roxin, for example, states:
If guilt gives the state a right to retribute, or if it is the means by which
the needs of the many as opposed to individual freedom can be reined
in, this seems to me to be a more important question for criminal law
than the question about the existence of guilt in general. The answer
must be compatible with the second option.24
23. Kuhl, Die Bedeutung der Rechtsphilosophie, p. 30.
24. Roxin, Strafrechtliche Grundlagenprobleme, p. 21.
12
introduction
13
14
PART I
DESERT AS THE SOLE
JUSTIFICATION FOR PUNISHMENT
1
THE TWO KANTIAN
CONCEPTS OF RIGHT
17
18
19
20
14. Cf. Chapter 27 of Beccaria, On crimes and punishments, p. 63: The harsher the
punishment and the worse the evil he faces, the more anxious the criminal is
to avoid it, and it makes him commit other crimes to escape the punishment of
the first.
15. Chapter 15, } 11 in Bentham, Principles of morals and legislation, p. 194.
16. Sidgwick, The elements of politics, p. 120.
17. John Stuart Mill, April 1868 speech on capital punishment, in Mill, Utilitarianism,
ed. George Sher (Indianapolis: Hackett, 2001), pp. 6570 (p. 65).
21
Fifthly, punishment is not considered as following any of the traditional principles of justice such as commutative justice, distributive
justice or corrective justice. Grotius and Pufendorf present the
following arguments for rejecting the classification of punishment in
any of the usual categories of justice. Since the aforementioned proportionality, which would correspond to a geometric equality in an
Aristotelian sense has been rejected, punishment does not follow
any principle of distributive justice. Does punishment follow a
principle of commutative justice? Punishment is not owed to the
criminal as being either the payment of a debt or the fulfillment of
any other agreement.18 Nor is punishment to be thought of as compensation for damage. Also, there exists a duty that requires one to
give back what each person merits only in the case of a positive merit
and not in the case of demerit.19 Instead of only following a principle
of justice, punishment is subject, first and foremost, to prudence
(prudentia) and to public utility.20 Admittedly, punishment can be said
to be just, but rather in a negative sense, by which no injustice arises
by punishing someone who deliberately caused an evil to the other
members of the commonwealth. Yet it is not justice but rather prudence that evaluates the degree of punishment necessary for
obtaining a deterrent effect. Furthermore, although criminals ought
to understand that being punished is not unjust, justice does not
require them either to inflict punishment upon themselves or to
cooperate in the infliction of punishment upon their own person. It
is solely the other citizens who must cooperate in the latter case.
Kant is the first theorist of penal law who derives from talion law
not only a rule for determining the degree of punishment, but also a
justification for punishment. In so doing, he introduces an alternative
theory that is external to the idea of deterrence, to which all competing theories hitherto belonged. Therefore, Kant is not only a central
figure in retributivism, but also its founding father.
The Kantian turn concerns all five elements mentioned. Concerning the first point, Kant excludes neither all the deterrent effects nor
all the deterrent goals of punishment. On the contrary, in the Doctrine
of virtue, for example, he even rejects any renunciation of rigorous
18. Cf. Grotius, Book ii, Chapter xx(2), in The rights of war and peace, vol. 2, p. 995; and
Book viii, Chapter iii(4f) in Pufendorf, De jure naturae et gentium, vol. 2, pp. 11526.
19. Cf. Book viii, Chapter iii(15) in Pufendorf, De jure naturae et gentium, vol. 2, pp. 11867.
20. Cf. Pufendorf, Book viii, Chapter iii(24), in Pufendorf, De jure naturae et gentium,
vol. 2, p. 1210.
22
23
degree only to the moral demerit of the criminal (something that only
a human being is capable of bearing), Kantian retributivists also see
the core of their theory as presenting the only theory that respects the
humanity in the person of the criminal. In this respect, Kantian
retributivism radically diverges from the ancient function of talion
law, as described by Henry Sidgwick: at an earlier stage of social and
intellectual development, th[e] distinction [between retribution and
reparation] is obscure, or but faintly perceptible; the penal loss of an
eye for an eye or a tooth for a tooth, was commonly regarded as a
kind of reparation to the person originally maimed.23 Thereby,
respect for humanity is not to be understood in the utilitarian or
natural law sense, that is, as keeping the evil or the pain inflicted
upon the criminal as low as possible. Rather, in Kants view, respect for
the humanity in human beings considered as beings capable of reason
consists in two dimensions. The first dimension is treating the humanity in the criminals person as an end in itself. In this book, I shall not
enter into Kants complex theory of autonomy and free will. Nor do
I need to deal with this theory. I limit myself to observing that there
cannot be any respect for the free will of rational beings without first
allowing them external freedom, provided that it conforms to the
limits imposed by the freedoms of the others. The second dimension
in which respect for humanity consists is the infliction of as much evil
on the criminal as is merited; it is respectful of the humanity in the
criminals person because this demerit is the choice of the criminal,
and therefore everybody ought to have the foreseeable consequences
of their actions expressed, that is, of their merits and demerits.
In } 49e of the Doctrine of right, which Kant devotes to penal law, he
assumes that the latter requirement meaning that everybody ought
to accept the consequences of their actions belongs to the former
one. Yet he does not provide any argument supporting this point,
and I think that none is possible in the Kantian system. Thus I shall
assess the questions of whether retributivism can be grounded in the
first dimension and of whether it can be grounded in the second
dimension as two separate issues.
The importance of proceeding through these two separate
approaches is enhanced by the link between the two dimensions of
respect for humanity, on the one hand, and the controversial issue of
the relationship between law and morality, on the other hand. There
23. Sidgwick, The elements of politics, p. 107.
24
are two theses that pertain to this relationship. Either the legal system
is largely independent from morality and its moral premise does not
go beyond preserving the first dimension that involves respect for
human dignity by mutually limiting external individual freedom of
each member of the legal system, or law is subordinated to morality,
which it intends to enforce to some extent which may be very wide.
Whereas the first dimension involves respect for human dignity and
belongs, incontrovertibly, to the competence of the law, the answer
to the question whether the second dimension can belong to the
competence of the law depends on the answer to the question about
the relationship between law and morality in general. Now, if it
appears that retributivism cannot be justified by respect for human
dignity as taken in its first dimension, one should still inquire into the
possibility of justifying it by respect for human dignity in the second
dimension, for the case of an extensive subordination of the legal
system under morality.
In what follows, this twofold question of whether retributivism can
be supported by either of the two dimensions of respect for human
dignity mentioned above will eventually be answered in the negative in
both dimensions. Thus, unlike the case in which only one of the two
questions is answered in a negative way, the other being answered
positively, I will not be obliged to choose either between the two
dimensions or between the two theses mentioned above. I shall thus
content myself with exploring the consequences of both dimensions
of respect for human dignity for the justification of punishment. It will
ultimately appear that they both support the same justification of
punishment and the same degree of punishment.
25
Likewise, Otfried Hoffe writes about the Doctrine of right that, on the
one hand, the political and legal theory that derives from it [from the
categorical legal imperative] consists of a political . . . liberalism.26
On the other hand, according to Hoffe, the Metaphysics of morals
orients the principles of moral philosophy in the (metaphysical)
doctrine of right toward an external, and in the (metaphysical) virtue
theory, toward an internal lawgiving.27 I believe, though, that these
aspects are not compatible with one another. In believing so, I am not
in any way disputing that Kant advanced them. He just did not
advance them in the same work.
The first aspect, that is, right as coexistence of empirical freedoms
with equal rights, is advanced by Kant in, for example, Toward perpetual
peace (1795) as a republican constitution, while requiring that the
civil constitution in every state should be republican,28 and defining
the republic in the following manner:
A constitution established, first on principles of the freedom of the members
of a society (as individuals), second on principles of the dependence of all
25. Wolfgang Kersting, Wohlgeordnete Freiheit: Immanuel Kants Rechts- und Staatsphilosophie,
second edition (Berlin: De Gruyter, 1993), p. 27.
26. Otfried Hoffe (ed.), Immanuel Kant: metaphysische Anfangsgrunde der Rechtslehre (Berlin:
Akademie Verlag, 1999), p. 8.
27. Otfried Hoffe, Der kategorische Rechtsimperativ: Einleitung in die Rechtslehre, in
O. Hoffe (ed.), Immanuel Kant: metaphysische Anfangsgrunde der Rechtslehre (Berlin:
Akademie Verlag, 1999), pp. 4162 (p. 48).
28. ZeF Ak viii:349. Immanuel Kant, Practical philosophy, ed. Mary Gregor (Cambridge:
Cambridge University Press, 1996), p. 322.
26
27
28
I would, however, like to accentuate the first point: the area of right
encompasses every ethical duty that can also be fulfilled through coercion. In other words, right should provide for the fulfillment of every
ethical duty that could be fulfilled through coercion by coercion itself
(that is, through both the threat of coercion and the application of
coercion).
But which duties can be fulfilled through coercion? Here too Kants
answer appears to be clear: not maxims, but actions. Bernd Ludwig
formulates this in the following manner:
Now, what is the fundamental substantive difference between the
principle of right and the categorical imperative? . . . When the
disposition (Gesinnung) [Ak vi:393] of the actor which is not
accessible to external lawgiving both cannot and is not allowed to be
included, it is also not possible to address demands to it. However, that
his or her actions at least can coexist with a universal lawgiving is indeed
externally enforceable and without having to exert influence for it on
the maxims of the person concerned.33
29
It is certainly the case that no legal system would ever want to enforce
fulfillment of every promise. Not even the relevant specifications from
Kants Doctrine of right fulfill this challenging requirement (this is often
35. RL Ak vi:21920. Practical philosophy, ed. Gregor, pp. 383ff.
30
31
32
But if external actions are actually commanded by the corresponding categorical imperative or by the corresponding duty, then these
actions because they are external, and provided that they are
enforceable by means of coercion as such are legally dictated, that
is, legally enforceable by means of coercion.
In this respect, we should not allow ourselves to be led astray either
by the asymmetry in the presentation of duties in the Groundwork of the
metaphysics of morals for instance, in the commentary on the categorical
imperatives formula of humanity as an end in itself or by qualifying
as duties of right the duties toward the preservation of humanity as
an end in itself.
The classification of duties follows two dichotomic criteria: dut
[ies] to oneself are opposed to dut[ies] to others, just as the
preservation of humanity as an end in itself is opposed to a furtherance of humanity as an end in itself. The asymmetry arises out of Kant
referring to the proscription of false promises and the assaults on
freedom and property as duties for the preservation of humanity as an
end in itself, whereas no duties toward its furtherance are named. At
least three arguments speak against combining the asymmetry in the
presentation offered by Kant with a conceptual asymmetry. First, it
would be absurd to believe that the proscription of false promises and
the attack against freedom and property apply unconditionally. If
property or freedom were to be abused as the means of a criminal
action, both could then be vastly curtailed or suspended for longer
periods of time. Secondly, the proscription of false promises is to be
understood as a duty of right. A false promise is a promise that the
43. RL Ak vi:239. Practical philosophy, ed. Gregor, p. 395.
33
promiser does not intend to keep. This intention is, however, not an
external action. An external action is present if, instead of observing a
false promise, one observes the non-fulfillment of a promise; in this
way, however, the moral prohibition of false promises becomes a legal
proscription of non-fulfillment of promises. Last but not least, thirdly,
the duties toward the furtherance of humanity as an end in itself can
be formulated as duties toward external action, for instance the duties
toward establishing basic schooling or basic medical care for all. Being
duties toward external and enforceable actions, these duties
should definitely belong to the duties of right, whereas in Kant they,
being duties toward the furtherance of humanity, count as being
duties of virtue. For these reasons, the identification of the differentiation between duties toward the preservation of humanity and duties
toward the furtherance of humanity, on the one hand, with a differentiation between duties of right, in the legal sense of enforceable rights,
and duties of virtue, in the sense of non-legally enforceable duties, on
the other hand, is generally untenable.
But how far does the range of Kantian right actually extend?
The categorical imperative cannot surely determine, a priori, either
the single proscribed, dictated and allowed maxims or the single
proscribed, dictated and allowed actions, because the moral appraisal
of maxims and actions presupposes knowledge of their empirical
attributes and of their context. In contrast, however, it is always
possible to determine with the categorical imperative whether a given
maxim or action is contrary to duty or in conformity with it, and, in
the latter case, whether it is morally dictated or just morally allowed.
Apart from that, every maxim, being as general and indirect as it can
be, is focused on external actions. If we have a general maxim for
guiding our lives, we can really determine for all cases that this or that
external action is compatible or incompatible with our maxim, and if
we necessarily have to carry out the action when following our maxim.
That is why one can say about all external actions taking into
consideration their entire context whether, in each case, they are
morally proscribed, dictated or merely allowed.
All external actions can potentially be influenced by coercion to
some extent. Therefore, all external actions are not only objects of
moral judgments, but also objects of right in the sense of Kants
concept of right. Apart from that, the moral and the legal judgments
of external actions should be decided identically every time. The only
thing in the moral judgment that does not have any influence on the
34
legal judgment is the answer to the question whether the morally and
legally dictated action was executed out of duty or merely in conformity with duty.44 In this respect, morality is certainly more demanding
than law.
The range of right presented here, nevertheless, greatly surpasses
whatever belonged to the area of law. The proximity of law and
morality is likewise here much closer than it ever was in a legal system.
Especially if one considers that the categorical imperative issues,
amongst other things, dictates and proscriptions about aspects of
personal lifestyle pertaining neither to the rights nor to the legitimate
interests of other individuals, then Kants conception of right appears
to be hardly liberal and, in fact, very odd.
And Thomas Pogge begins his enquiry into the concept of right
directly with the last lines from } B: Kant defines Recht as the whole
of the conditions under which the choice of one can coexist . . . with
the choice of the other according to a universal law of freedom.46
44. Otfried Hoffe, in Konigliche Volker: zu Kants kosmopolitischer Rechts- und Friedenstheorie
(Frankfurt a.M.: Suhrkamp, 2001), p. 11, correctly remembers that the differentiations
between morality and legality and between the duties of law and virtue are two different
differentiations.
45. Marcus Willascheck, Why The doctrine of right does not belong in The metaphysics of
morals, Annual Review of Law and Ethics, 5 (1997), 20527 (p. 230).
46. Thomas W. Pogge, Is Kants Rechtslehre a comprehensive liberalism? in Mark
Timmons (ed.), Kants Metaphysics of morals (Oxford: Oxford University Press,
2002), pp. 13358 (p. 137).
35
36
will: it is the same universal law as the one in the third formula of the
categorical imperative (act in accordance with a maxim that can at the
same time make itself a universal law).51 Because the individual formulas
of the categorical imperative are versions of the same imperative, and
therefore equivalent, it also says: So act that you use humanity, whether in
your own person or in the person of any other, always at the same time as an
end, never merely as a means.52 The reciprocal relation of choice is,
therefore, more demanding in relation to Kant than the mere coexistence of the powers of choice or the freedoms of action under the
principle of equality as in the liberal understanding of a just legal
system.
The reference to a demanding moral freedom is indeed present in
the concluding formulation of } B, in the Introduction to the doctrine of right, though not emphasized: Right is therefore the sum of
the conditions under which the choice of one can be united with the
choice of another in accordance with a universal law of freedom.53
One should, at this point, take note that Kant uses the expression in
accordance with a universal law of freedom, which is neither the same
as just saying in accordance with a universal law nor the same as
according to a universal law of choice. In the former case, freedom
(Freiheit) would be redundant, and should have been choice
(Willkur), as in the middle of the sentence. In the latter case, of
freedom would be superfluous. At the beginning of } C, we find a
variant of the very same definition of right in which it is stated more
51. GMS Ak iv:436f. Practical philosophy, ed. Gregor, p. 86. Allen W. Wood rejects this
point with the following argument: as to the universal principle of law itself, it is
hard to sustain the view that it can be derived from the moral imperative. This
principle is: any action is right if it can coexist with everyones freedom in
accordance with a universal law, or if on its maxim the freedom of choice of each
can coexist with everyones freedom in accordance with a universal law. . . This
principle may bear a superficial resemblance to the Formula of Universal Law: Act
only in accordance with that maxim which you can at the same time will that it become
a universal law . . . Like that formula, the principle of right provides us with a test only
of the permissibility . . . But the principle of right says nothing about willing maxims as
universal laws. A. W. Wood, Kants Doctrine of right, Introduction to Otfried Hoffe
(ed.), Immanuel Kant: Metaphysische Anfangsgrunde der Rechtslehre (Berlin: Akademie
Verlag, 1999), pp. 1939 (p. 35). Woods argument against the derivation of law from
the categorical imperative is, however, only valid against a derivation of his execution
from the categorical imperative; it is not convincing against an adjudication of actions
from the categorical imperative.
52. GMS Ak iv:429. Practical philosophy, ed. Gregor, p. 80. For the meaning of the term
humanity see below p. 64.
53. RL Ak vi:230. Practical philosophy, ed. Gregor, p. 387.
37
38
2. Kant designates as the highest task which nature has set for
mankind the establish[ment of] a society in which freedom under
external laws would be combined to the greatest possible extent with
irresistible force, in other words [the establishment of] a perfectly just
civil constitution.57 Kant states more precisely that it concerns that sort
of society that has not only the greatest freedom, and therefore a
continual antagonism among its members, but also the most precise
56. KrV B 373. Immanuel Kant, Critique of pure reason, ed. and trans. Paul Guyer and Alan
W. Wood (Cambridge: Cambridge University Press, 1997), p. 397.
57. Idee, Proposition 5, Ak viii:22. Immanuel Kant, Political writings, ed. Hans Reiss, trans.
H. B. Nisbet, second edition (Cambridge: Cambridge University Press, 1991), pp. 456.
39
40
this freedom to the individual only under the condition that he or she
fulfills any duties: individuals only need to heed the laws of coexistence in order to enjoy these freedoms guaranteed by coercion. That
means that they enjoy them equally, no matter if they act morally or
immorally, just not contrary to right. However, freedom is enabling
for an individual striving for the fulfillment of moral duty to fulfill in
an appropriate way the duties, which Kant derives from the categorical
imperative, toward the preservation and the furtherance of humanity
as an end in itself. The individual receives explicitly through freedom
more and better means to preserve and to advance humankind as an
end in itself. In this respect, the freedom to fulfill duty contains neither
a duty to achieve perfection nor a duty toward self-preservation (otherwise we would not be dealing with a liberal concept of right); rather the
freedom to fulfill duty is contained in the duty toward self-preservation
and the duty to achieve perfection (in one of the passages mentioned
above, Kant maintains, for example, that happiness would follow
of itself).62 For this reason, right actually belongs to the moral
pragmatic without thereby betraying Kants system of reason.
Thirdly, Kersting assumes that right of coercion toward the freedom to fulfill duty . . . must relate itself to a duty that demands the
formally perfect treatment of others . . . grounded . . . in an internal
lawgiving . . . requiring an act out of respect for the law, and for that
reason cannot depend on external assistance. Kersting shows here
that he locates the motivation for compliance to law in coercion, yet
sees the source of law as an institution entitled to coerce in the moral
duty to establish the right of coercion toward the freedom to fulfill
duty. In no case do I deny that, according to Kant, it is a part of duty
to enter into a state of laws wherever the state of nature still exists and
to contribute to the establishment of a just legal system to the best of
ones ability. Kant does not say, however, that the legal system should
originate from a humans conscious fulfillment of duty. On the contrary, he mentions misery in the state of nature, that is, natures
coercion being the drive for the establishment of a legal system, which
is opposed to the inclination of humans. Immediately after one of the
citations introduced above, we find the following remark:
Man, who is otherwise so enamoured with unrestrained freedom, is
forced to enter this state of restriction by sheer necessity. And this is
62. KrV B 373. Critique of pure reason, ed. Guyer and Wood, p. 397.
41
Kant repeats this conception in his Critique of the power of judgment and
in the text Toward perpetual peace:
For the problem is not the moral improvement of human beings but
only the mechanism of nature, and what the task requires one to know is
how this can be put to use in human beings in order so to arrange the
conflict of their unpeaceable dispositions within a people that they
themselves have to constrain one another to submit to coercive law
and so bring about a condition of peace in which laws have force.64
42
text Toward perpetual peace (1795) is the Metaphysics of morals (1797); all
the works listed belong to the critical section of Kants oeuvre.
That the concept of right is more comprehensively developed in the
Doctrine of right than in the other works should count less than the
repetition of the other concept in systematic contexts. Seen systematically, the liberal concept of right is also more convincing than the
others, because it reinforces the independence of right from morality,
expands the range of coercion from compliance with the law to the
establishment of a legal system, and saves the Metaphysics of morals from
dichotomization into a Doctrine of right and a Doctrine of virtue.
Just to name some external evidence: it is striking that many strange
no, even embarrassing legal regulations found in Kants Doctrine of
right, and derivable from a direct application of the categorical
imperative, are shamefully, or out of respect for such an otherwise
impressive philosophy, left unconsidered. In this context, Kants conception of marriage can be named, for instance, or his rigorous
proscription of public prostitution (venus volgivaga), the island
example, the remark on bestiality, etc.65 Fortunately, such embarrassments cannot justifiably be found in the passages of the aforementioned works. Not even Vittorio Hosle, who, on the basis of Kant,
Fichte and Hegel, also wants to punish those crimes whose impunity
. . . dissolves the metaphysical dignity of the person,66 and in doing so
advances a non-liberal concept of right, goes so far as to draw such
conclusions.
Last but not least, many Kant interpreters appear to me usually to
misunderstand the Doctrine of right as a depiction of a liberal concept
of right and thereby they choose more or less consciously the interpretation that they best hold to fit into Kants system. In this respect,
I am more sympathetic to this in my opinion, false interpretation.
Should I not be mistaken and were it to be correct, I would furthermore regret that Kant in the Doctrine of right did not derive the
corresponding legal regulations from the liberal concept of right.
Owing to this, because the interpretation of Kant is still open, I will,
in what follows, inquire into the respective consequences that arise
from both of the interpretations. A further reason compels me to such
an investigation. The argument from } 49e in the Doctrine of right in
65. RL Ak vi:27780; RL Ak vi:325; RL Ak vi:333; RL Ak vi:363. Practical philosophy, ed.
Gregor, pp. 42630; p. 467; p. 474; p. 498.
66. Vittorio Hosle, Was darf und was soll der Staat bestrafen? in Hosle, Rechtsphilosophie
des deutschen Idealismus (Hamburg: F. Meiner, 1989), pp. 545.
43
2
KANTS LEGAL
JUSTIFICATION OF PUNISHMENT
44
45
46
Kants conception of penal law3 brilliantly contrasted this combination with the traditional view of Kants penal theory according to
which it is through and through a retributivist penal theory. Byrd
argues that legal systems must be secured against the inclination of
citizens toward breach of the law and that they obtain this guarantee
through threatening punishment. Hence, according to Byrd, deterrence constitutes the fulfillment of the public right to coerce. But once
the aim of punishment is determined in that way, the execution that
is, the type and the degree of the punishment no longer follows
the principle of deterrence, but instead the principle of retribution.
The main reason Byrd proposes for this shift from deterrence to
retribution is that only the latter treats human beings not merely as
means but also as ends in themselves. Thus, Byrd points out, in Kants
Doctrine of right deterrence is found in the threat of executing the
punishment, whereas the retributive principle is found in the actual
execution of the punishment, so that deterrence and retribution
reciprocally limit each other.
Even though Byrd is of the opinion that threatening and retribution reciprocally limit each other in this relation, there is, however, an
obvious asymmetry between them, which, in my opinion, privileges
retribution and explains the appeal of Kants retributivism in recent
years. Indeed, even though in Byrds reconstruction general deterrence constitutes the aim of punishment, it is retribution that determines the amount of punishment. I would like to express this in the
following manner. Citizens should be punished for their crimes if and
only if:
1 the threat of punishment could deter them (deterrence condition);
and
2 the punishment punishes the crime (retributivist condition); and
3 the amount of punishment is determined by the retributive
principle (I will define this principle more precisely below).
The first two conditions are purely negative prerequisites: if
they are not satisfied then both the punishment and the threat of it
are prohibited. They do not, however, positively determine the type
and amount of punishment. For clarification of this point I would
like to look at the strongest example upon which Byrd grounds her
new interpretation of Kant, that is, Kants expounding on right of
3. Byrd, Kants theory of punishment.
47
Kant adopts two premises. The first premise states that the penal law
would assign the death penalty (retributive determination of the
degree of punishment, cf. the third point above). The second premise
is formulated indirectly, that is to say, negatively: A penal law of this
sort could not have the effect intended. The logical opposite to this is
our requirement that penal law prevent some crimes, which means
that the threat cannot be proven to have no effect. The logical opposite does not mean that the effect of deterrence must be either proven
or certain or maximal. This prerequisite is so weak that I have to ask
myself if there is any imaginable punishment that could ever fail to
satisfy it. Is there truly no one who would prefer a certain drowning to
a possible death by a judicial verdict? Provided that the risk of being
caught (for example because there were witnesses to the event or for
some other reason) is not negligible: is there really no person who
prefers drowning and being mourned because of this tragic accident
over the public dishonor of a judicial sentence possibly or probably
leading to death? To stress this point, let us assume that the court will
probably accept mitigating circumstances and sentence the criminal
to a prison sentence of twenty years, so that the person who has the
choice between murder and drowning could be sure that the death
sentence would not be imposed. Can we exclude the possibility that
some persons might prefer to die tragically rather than face a life in
prison without honor and career chances?
If that is so, then the threat of the death penalty (even of a prison
sentence) really does prevent some murders even in such a case of
necessity. I admit that a not uncertain death by judicial verdict
would increase the deterrent effect, that is, it would prevent some
4. RL, Appendix to the Introduction of The doctrine of right, at Ak vi:235f. Practical
philosophy, ed. Gregor, pp. 3912.
48
49
If, in Byrds essay, no incompatibility is present between the retributive and the deterrent elements, then it is due only to the weakness of
the criterion that is adopted for the latter: the punishment must at
least deter some future crimes. The retributive principle satisfies this
criterion and is thus not really limited by it. Hence, all that this mixed
theory adds to the classical theory of retribution is the condition that
classical retributivism would not be justified if the prescribed threat of
punishment would not actually prevent at least one crime. The claim
that the aim of punishment for Kant rests in deterrence shows just one
way in which the case for retributivism could be made stronger. For
the rest, the mixed theory prescribes the same degree of punishment
as the classical theory of retribution.
In order to express more clearly my point that mixed theory displays
no actual relationship between retributivism and deterrence, I would
like to differentiate the possible meanings of a retributive theory.
Retributivism can correspond to at least the four following theses:
1 All criminals, and only criminals, should be punished.
2 The punishment of criminals serves as retribution for the crimes
committed.
3 The degree of punishment should be proportional (ordinally, not
cardinally) to the crime, which means that the relation of the crimes
amongst themselves should correspond to the relation of the punishments amongst themselves. By that I mean that a serious crime
should be punished more harshly than a minor crime, and that two
equally serious crimes should be punished with equivalent harshness.
4 The degree of punishment must be equivalent to the crime.
The third thesis compares two classes of relations, that is, the relation
between different crimes and the relation between different punishments. In contrast to that, the fourth thesis directly links a crime to
a punishment without consideration of proportionality. The third
thesis obviously does not imply the fourth thesis, it merely prohibits
punishing a shoplifter more harshly than a murderer.
Now consider the following possibilities. The first possibility is that
the thief is sentenced to a week of community service, and the murderer to twenty years behind bars. The second possibility is that the
thief is sentenced to one year in jail, and the murderer is sentenced to
death. The third possibility is that the thief is sentenced to one week of
community service, and the murderer is sentenced to death. All three
examples comply with the third thesis. However, they are not just
50
51
Most interpreters implicitly derive the principle of retribution (Vergeltung) from this rebuttal. Yet neither the word retribution (Vergeltung)
nor its concept is present before the second step. Even then, one
cannot find mere retribution (Vergeltung) but only equality in retribution (Wiedervergeltung). Therefore, I suspect that the interpretation of
the first step as a justification of mere retribution comes from the
interpretation of the second step, that is, from the justification of
retaliation. Illustratively, the second step contains yet again the same
rejection of the utilitarian theory as the first step: according to Kant,
all principles except ius talionis are fluctuating and unsuited for a
sentence of pure and strict justice because extraneous considerations
are mixed into them.9 In part five of the Appendix, Kant makes a plea
for rejecting the utilitarian concept of punishment in favor of ius
talionis.10
6. The German terms Vergeltung (that is, requiring comparable recompense for a wrong)
and Wiedervergeltung (that is, demanding wholly equal recompense) correspond roughly
to the English terms retribution and retaliation (etymologically: ius talionis),
respectively.
7. Cf. Schied, Kants retributivism; Jeffrie G. Murphy, Does Kant have a theory of
punishment? Columbia Law Review, 87 (1987), 50932; and Hoffe, Vom Straf- und
Begnadigungsrecht.
8. RL Ak vi:331. Practical philosophy, ed. Gregor, p. 473.
9. RL Ak vi:332. Practical philosophy, ed. Gregor, p. 473.
10. RL Ak vi:363. Practical philosophy, ed. Gregor, pp. 497f.
52
The first sentence cites an undeserved evil and therefore does not
base itself on degree of punishment; thus it cannot concern retaliation, that is, equality in retribution. Furthermore, whoever wishes
to understand the passage as a plea for mere retribution will have to
derive this concept from the second sentence. In fact, there are no
examples to be found in the second sentence for the like-for-like
principle of punishment. For instance, the following interpretation of
the first sentence would be completely sufficient: if you commit a
crime, you throw society back to the state of nature in which you are
not protected against undeserved evils that are committed against you.
In this condition, there is no retribution, not even mere retribution.
Such an interpretation obviously falls short of explaining the second
sentence.
Therefore, the interpretation of the first step as the justification of
retribution is based merely on retaliation. This interpretation, though,
bases itself singularly and alone on the rejection of the utilitarian
position in which it is tacitly assumed that there cannot be a third
alternative to retributivism and the utilitarian theory of deterrence.
This assumption appears wrong to me. In order to demonstrate this,
I will suggest another solution.
First, however, I would like to make clear that Kant himself allows
exceptions with regard to retaliation. The first exception rests in the
alleged right of necessity in the example listed above in Section 2.1:
There can be no penal law that would assign the death penalty to someone
in a shipwreck who, in order to save his own life, shoves another, whose
life is equally in danger, off a plank on which he had saved himself.
For the punishment threatened by the law could not be greater than
the loss of his own life . . . Hence the deed of saving ones life by
violence is not judged inculpable (inculpabile), but only unpunishable
(inpunibile).12
53
This case is supported by neither the second, the third or the fourth
thesis of retributivism. There is a further exception, if the number of
a murderers accomplices
is so great that the state, in order to have no such criminals in it, could
soon find itself without subjects . . . then the sovereign must also
have it in his power . . . [to] pronounce a judgment that decrees
for the criminals a sentence other than capital punishment, such as
deportation.13
54
The debt (debitum) results from the criminal not fulfilling what the law
requires. It is here that the ambiguity of the German term Schuld
(guilt) comes into play. It can mean either debt (debitum) or culpability (culpa). Accordingly, retributivism can be schematically described in
the following manner:
1 Whoever makes him- or herself culpable of a crime has not paid his
or her debt to society.
2 Unpaid debts must be paid off.
3 Punishment is the paying off of debts.
To take the two meanings of the word Schuld as being equivalent is
misleading and leads to fallacies in the case of crimes that cause
damage for which no compensation is possible, that is, for crimes
for which there is no reparation. All infringements that are not irreparable are private crimes not falling under the jurisdiction of criminal
courts, but rather under that of civil courts. Kant gives the example of
embezzlement, that is misappropriation of money or goods entrusted
for commerce, and fraud in buying and selling when committed in
such a way that the other could detect it.15 Such crimes endanger the
existence not of the commonwealth, but only of the individuals who
trusted and freely entered into a contract with the criminal. On the
other hand, public crimes do not damage private legal contracts, but
instead the commonwealth itself. For such crimes, as in the case of the
exercise of possibly deadly force upon a victim, there is no possible
compensation. How can, for instance, a prison or death sentence ever
provide compensation for the victim of such a crime? What could ever
provide compensation for the insecurity of all citizens caused by a
murder? The debts (debita) to the commonwealth can only be paid off
when there is abstention from committing crimes in the future: as
soon as a crime occurs, though, the criminal is no longer able to pay
off his or her debts. Once the criminal has lost civil personality, then
this person has lost even the possibility of paying off the debt to the
community in the future, that is, to abide by the law in the future.
14. RL Ak vi:227f. Practical philosophy, ed. Gregor, p. 382.
15. RL Ak vi:331. Practical philosophy, ed. Gregor, p. 472.
55
The objection could be raised that there is no real possible compensation between the commonwealth and the criminal, but at least
an internal compensation is possible. An internal compensation of
this sort stands possibly connected with the problem of the highest
good that is, with the exact correspondence of happiness with
morality.16 Kant seems to support himself on such an idea when he
writes:
This fitting of punishment to the crime, which can occur only by a judge
imposing the death sentence in accordance with the strict law of
retribution, is shown by the fact that only by this is a sentence of death
pronounced on every criminal in proportion to his inner wickedness.17
There are two kinds of objections that can be raised against such a
justification of retributivism.18 The first and most obvious objection is
that, according to Kant, the state exercises control in a state of laws,
that is to say, it regulates the relation between the external freedom of
the individuals to one another. The highest good is, on the contrary,
part of an internal and therefore individual relation.19 Secondly, even
if procurement of the highest good falls under the purview of the
state, then the requirements for the highest good would never justify a
retributivist penal theory, but would rather refute it. The highest good
would require that the relative relation between immorality and
unhappiness, or pain (or remorse), should be the same. Actually,
Kant defines punishment as the right a ruler has against a subject
to inflict pain upon him because of his having committed a crime.20
What should the pain consist of so that it could be comparable with
the amount of immorality? Let us rely on Kants definition from the
Critique of practical reason:
Happiness is the state of a rational being in the world in the whole of
whose existence everything goes according to his wish and will, and rests,
therefore, on the harmony of nature with his whole end as well as with
the essential determining ground of his will.21
16. KpV Ak v:125. Practical philosophy, ed. Gregor, p. 240.
17. RL Ak vi:333. Practical philosophy, ed. Gregor, p. 474.
18. For a more detailed refutation of theories of punishment as restoration of harmony,
cf. Jean-Claude Wolf, Strafe als Widerherstellung eines Gleichgewichts, Jahrbuch fur
Recht und Ethik, 11 (2003), 199216.
19. Cf. Thomas E. Hill, Kant on wrongdoing, desert, and punishment, Law and
Philosophy, 18 (1999), 40741 (p. 429); see also below, Chapter 3.
20. RL Ak vi:331. Practical philosophy, ed. Gregor, p. 472.
21. KpV Ak v:124. Practical philosophy, ed. Gregor, p. 240.
56
57
58
59
60
philosopher who dares to endorse this part of Kants penal law. (An
interesting exception would be Tom Sorell, who argues in favor of
both Kantian retributivism and the death penalty.)33
If one accepts the Kantian theory of penal law, as Cohen does, then
such objections are, however, not convincing. They become so only
when one reconstructs an alternative theory of penal law from Kants
concept of right, which is explicitly counter to Kants theory of penal
law.34 In fact, Kant would deal with these objections in the following
way. First, a rational being ceases to be such as soon as a crime has
been committed, and not only after he or she has been punished. The
punishment only derives the consequence from the factor that
through the crime a rational being denies its rational character.
Secondly, the degree of punishment that Kant imposes for all other
crimes he mentions shows clearly that he no longer sees the criminal
as a rational being. In this vein, I wish to provide the following
example:
But what does it mean to say, If you steal from someone, you steal from
yourself? Whoever steals makes the property of everyone else insecure
and therefore deprives himself (by the principle of retribution) of
security in any possible property. He has nothing and can also acquire
nothing; but he still wants to live, and this is now possible only if others
provide for him. But since the state will not provide for him free of
charge, he must let it have his powers for any kind of work it pleases
(in convict or prison labor) and is reduced to the status of a slave for
a certain time, or permanently if the state sees fit.35
At this point, Kant fails to differentiate between two issues: (a) that
someone without property has to work for his or her livelihood and
(b) that the work for ones own livelihood means enslavement, instead
of, for example, working as a day laborer. Actually, there is a commonality between this enslavement and the death penalty, just as between
every other punishment mentioned in the Doctrine of right, for example
deportation,36 permanent expulsion from civil society, or castration.37 To Kant, castration is a partial murder, as is self-castration:
To deprive oneself of an integral part or organ (to maim oneself) . . .
33.
34.
35.
36.
37.
Tom Sorell, Moral theory and capital punishment (Oxford: Blackwell, 1987), p. 162.
Cf. Section 2.5.
RL Ak vi:333. Practical philosophy, ed. Gregor, p. 474.
RL Ak vi:334. Practical philosophy, ed. Gregor, p. 475.
RL Ak vi:363, Appendix 5. Practical philosophy, ed. Gregor, p. 498.
61
62
63
64
In both of these citations, humanity clearly means moral personality or freedom of the will. Understanding humanity in the formulation of the categorical imperative in this way would then make its
statement redundant: So act that you use [moral personality],
whether in your own person or in the person of any other, always at
the same time as an end, never merely as a means.47 The Groundwork
confirms this reading:
A human being, however, is not a thing and hence not something that
can be used merely as a means, but must in all his actions always be
regarded as an end in itself. I cannot, therefore, dispose of a human
being in my own person by maiming, damaging or killing him.48
65
66
67
68
69
70
71
2.6. Summary
The mixed theories of penal law fail in their attempt truly to link
retributivism and general deterrence. They necessarily fail because
both theories clearly differentiate themselves from each other as
justification for punishment. I have therefore proposed we undertake
a twofold modification of the terms in the debate between deontological ethics and deterrence theory. First, I have attempted to show
that Kants retributivist theory of punishment does not draw on his
concept of right. Secondly, I have consciously avoided attempting to
mix the Kantian concept of right with a principle of general deterrence, but instead have argued that the Kantian concept of right is
completely compatible with a theory of specific deterrence, which
encompasses both incapacitation and the rehabilitation of criminals.
This theory is not a mixed theory, and nor does it have to be one.
Therefore, if Kants theory of punishment is justifiable on the basis
of the Kantian system, then this justification could only occur while
attempting a moral argument from which legal consequences arise. In
the following chapter, I wish to show that Kants moral theory cannot
afford this justification. Quite to the contrary, it will confirm the
end result of this chapter, which had as its point of departure the
theory of right.
3
KANTS MORAL
JUSTIFICATION OF PUNISHMENT
72
73
3. A sensible person does not punish a man because he has sinned, but in order to keep
him from sin. Seneca, De ira, i.19.7. Seneca uses as a basis Platos Laws 11.933e934b,
where it is said that every thief should not only provide compensation for the item that
was taken, but also suffer a more lenient or a severer punishment depending on his
motives: This additional penalty is to be inflicted not because of the crime (whats
done cant be undone), but for the sake of the future: we hope that the offender
himself and those that observe his punishment will either be brought to loathe injustice
unreservedly or at any rate recover appreciably from this disastrous disease. Plato,
Laws, trans. Trevor J. Saunders, in John M. Cooper and D. S. Hutchinson (eds.), Plato:
Complete works (Indianapolis: Hackett, 1997), pp. 13181616 (pp. 15856). Therefore,
Platos as well as Senecas intention is clearly directed, not only toward the
compensation of the victim, but toward the reform of the criminal as well as toward
general deterrence, which is conceived of as a collective reform. Seneca, De ira, in Moral
essays, ed. John W. Basore (3 vols., London: Heinemann/Cambridge, Mass.: Harvard
University Press, 1928), vol. 1, pp. 106355 (pp. 1589).
4. RL Ak iv:331. Practical philosophy, ed. Gregor, p. 472.
5. H. L. A. Hart, Punishment and responsibility (Oxford: Clarendon Press, 1968), p. 231.
74
The first thesis does not constitute a specific characteristic of retributivism, because, in my opinion, no alternative theory of criminal
justice ever allowed the punishment of the innocent.6 The third thesis
can correspond to as many as the four following subtheses:
1 All criminals and only criminals should be punished.
2 The punishment of criminals acts as retribution for a past criminal act.
3 The degree of punishment should be proportional (in an ordinal, not
in a cardinal way) to the crime, that is, the proportion of punishments
to one another should correspond to the proportion of the crimes to
one another.
4 The degree of punishment must be equal to the crime.
The third thesis connects a legal descriptive observation (the descriptive observation of a punishable action) to a legal consequence (the
punishment of an action). In contrast, the second thesis connects a
legal consequence (the punishment of an action) to a descriptive
moral observation (the wickedness of the perpetrator). Thus, retributivisms moral justification pertains to the second thesis; however, it
can support or contradict the third thesis. In what follows, I will show
that it contradicts the third thesis. Even the point of reference is
lacking for proportionality between the moral wickedness and the
punishment. Kant distinguishes, in fact, actions in conformity with
duty from actions contrary to duty, and with the latter he distinguishes
actions that are merely in conformity with duty from actions that are
done out of it. However, neither a gradation of how much an action
stands in conformity with duty nor a gradation of contrariness to duty
can be found in Kants works. Kant merely states:
If someone does more in the way of duty than he can be constrained by
law to do, what he does is meritorious (meritum); if what he does is just
exactly what the law requires, he does what is owed (debitum); finally if what
he does is less than the law requires, it is morally culpable (demeritum).7
Virtue a is opposed to negative lack of virtue (moral weakness) 0
as its logical opposite (contradictorie oppositum); but it is opposed to vice a
as its real opposite (contrarie s. realiter oppositum).8
6. Cf. Fred Rosen, Utilitarianism and the punishment of the innocent: the origins of a
false doctrine, Utilitas, 9, no. 1 (March 1997), 2337.
7. RL Ak vi:227. Practical philosophy, ed. Gregor, p. 382.
8. TL Ak vi:384. Practical philosophy, ed. Gregor, p. 516. (There is a small error in the
translation that I have corrected.)
75
76
The highest good means postulating the reign of the principle of right
over the physical world, which usually abides by the laws of physics.
The highest good can only be realized under the reign of the
principle of right. Retaliation against evil, for the time being, plays
no role in this; instead, it is only the reward to the moral disposition
that plays a role. How can the relation between having wicked dispositions and the worthiness of punishment be derived using such a
definition of the highest good?
Next, we must refer to the status and the substance of the highest
good, whose negative variant is the worthiness to be punished. Being a
postulate of the practical reason, the highest good has the status of a
noumenal, synthetic and necessary connection between virtue and
happiness; in the sensible world this connection wherever it might
happen to be present can only incidentally come into existence.12
Kant even finds that,
it must seem strange, that philosophers both of the ancient and modern
times could nevertheless have found happiness in precise proportion to
virtue already in this life (in the sensible world), or [let themselves be]
persuaded that they were conscious of it.13
If the relation between guilt and punishment were to show the inverse
of the highest good, and therefore have the same status as the highest
good, then the relation must belong exclusively to the noumenal
world. In the Doctrine of virtue, we find an acknowledgment of this very
assumption:
Punishment is not an act that the injured party can undertake on his
own private authority but rather an act of a court distinct from him,
which gives effect to the law of a supreme authority over all those subject to
it; and when (as we must in ethics) we regard human beings as in a
rightful condition but in accordance only with the laws of reason (not civil
laws), then no one is authorized to inflict punishment and to avenge the
wrongs sustained by them except him who is also the supreme principle
of right giver; and he alone (namely God) can say Vengeance is mine;
I will repay.14
77
There are two reasons for the highest goods noumenal status. First,
for us human beings, actions done out of duty and actions that are
merely in conformity with duty can never be discerned from one
another.16 Secondly, we will never find a worldly ruler of whom we
can be completely sure that he or she will always abide by the categorical
imperative.17
One could argue against assigning this exclusively noumenal status
to the inverse of the highest good, that is, to the relation between guilt
and punishment, by saying that with an action that is contrary to the
legal law one is able to suggest wholly and with absolute certitude
the existence of wicked dispositions; and with that, one dispenses with
the first reason against a retributive punishment imposed by the
earthly authorities. The second reason still persists, however, because
there is no individual to be found, who acts out of duty, to be the
highest judge. In what follows, I would like to show that, even when
this second reason is disregarded, the earthly authority is still not
authorized to impose retributive punishments, principally for reasons
that result from the substance of the highest good.
The highest good consists of the necessary connection between
virtue and happiness, where virtue is the prerequisite for happiness.
Therefore, the converse of happiness should be derivable from the
converse of virtue, that is, from wicked dispositions. This appears prima
facie to suggest that the converse of happiness is unhappiness, in the
sense of an unhappy condition. However, this would be a fallacy,
because the logical converse of happiness is the lack of happiness as a
simple privatio. Now, Kant defines happiness in the following fashion:
Happiness is the state of a rational being in the world in the whole of
whose existence everything goes according to his wish and will, and rests,
therefore, on the harmony of nature with his whole end as well as with
the essential determining ground of his will.18
15. VE Ak xxvii:286. Immanuel Kant, Lectures on ethics, ed. Peter Heath and
J. B. Schneewind, trans. Peter Heath (Cambridge: Cambridge University Press, 1997).
16. GMS Ak iv:407. Practical philosophy, ed. Gregor, p. 62, and VE 43.
17. Cf. Idee, Proposition 6, Ak viii:23. Political writings, ed. Reiss, pp. 467.
18. KpV Ak v:124. Practical philosophy, ed. Gregor, p. 240.
78
Regarding crimes, this means that the moral legislator should prevent
their perpetration, and do so, in fact, before the implementation of the
criminal intention. Kant also did not ignore the fact that it does not
usually happen like that in the real world. However, one is allowed to
postulate that the necessary connection between guilt and punishment might be compensated in the noumenal world. When one has
finally determined that, despite this postulate, the intention that is
contrary to duty led to a deed that is contrary to duty, the question
arises as to why the evil intention, whose realization could not be
prevented, is allowed to be punished ex post facto. At this point, it is
19. TL Ak vi:460f. Practical philosophy, ed. Gregor, p. 578.
20. Conjectures on the beginning of human history, in Immanuel Kant, Political writings, ed.
Hans Reiss, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1970),
pp. 22134.
79
80
par excellence, the evil human beings lack of happiness, because in the
conversion he or she breaks with the evil intentions and new, good
intentions lead to happiness, that is, to their full effect. Kant evidently
describes punishment in a clear form with similarities to the Pauline
Epistles in the New Testament:25
The emergence from the corrupted disposition into the good is in itself
already sacrifice (as the death of the old man, the crucifying of the
flesh) and entrance into a long train of lifes ills which the new human
being undertakes in the disposition of the Son of God, that is, simply for
the sake of good, yet are still fitting punishment for someone else, namely
the old human being (who, morally, is another human being).26
81
82
punishments, that is, punishments in the proper sense. Kant comments on the legal punishment in the Lectures on ethics, just as he does,
at a later point, in the Doctrine of virtue :
Authority punishes, not because a crime has been committed, but so
that it shall not be committed. But every crime, in addition to this
punishment, has a property of deserving to be punished, because it has
taken place. Such punishments, which must therefore necessarily follow
upon the actions, are moral in character, and are poenae vindictivae; just as
a reward follows upon a good action, not so that further good actions
should be done, but because there has been a good action done.33
83
PART II
PUNISHMENT AS A
MEANS OF REHABILITATION
4
FICHTES EXPIATION CONTRACT
87
88
right about the right of coercion (}} 13ff.), Fichte developed this
aspect of the Kantian mixed theory, which was then neglected, but
since the 1980s it has again been receiving attention: general deterrence through threatening punishment. Fichtes actual theory, as it
was formulated in 1797 in } 20 of the Foundations of natural right,
seems, however, to be a mixed theory: Fichte interpreters have shown
that in the Foundations of natural right a combination of elements of
general deterrence through threatening punishment, elements of specific deterrence and elements of reform and of rehabilitation can
be found. In this respect, Kaufmann rightly sees a commonality
between the Kantian penal law interpreted as mixed theory and
Fichtes actual theory of punishment:
Here, in the principles of his theory of coercion, Fichte is very modern,
in the respect that he propagates the unification theory overwhelmingly
accepted nowadays of the connection between the theories of deterrence
and retribution. The justification of punishment, on the whole, occurs
through deterrence; in the determination of who should be punished,
not only the damage plays a role, but also the extent to which a bad or
an inadequate will played a role. The same is valid for determining the
degree of punishment.2
89
Kant declares the retributivism of talion law as being the only theory of
penal law that passes the test of this formula; all other theories of
penal law treat the criminal merely as a means. Now, not only do the
individual punishments determined by the retributivist talion law
clearly infringe the aforementioned formula of the categorical
imperative,8 but Kants negative argumentation in favor of retributivism also clearly applies to that theory, which regards general deterrence whether by threatening punishment or by an example carried
out as being the primary justification of punishment, while leaving,
in my opinion, the thesis of specific deterrence untouched.9 It is
4.
5.
6.
7.
8.
9.
RL Ak vi:332.
See Section 2.2.
GMS Ak iv:429. Practical philosophy, ed. Gregor, p. 80.
RL Ak vi:331.
See Section 2.4.
See Section 2.5.
90
exactly this neglected option that Fichte reaches as the result of his
deduction of penal law.
Fichte proceeds under the assumption of the same concept of
right: Every relation of right is determined by this proposition: each
person is to limit his freedom through the possibility of the others
freedom.10 He obviously regards Kants negative argumentation in
favor of retributivism as a crude fallacy. In the second part of his
Foundations of natural right, Fichte criticizes with sharp language Kants
Doctrine of right, which had appeared nine months earlier:
Punishment is not an absolute end. The claim that it is (whether stated
explicitly or through propositions that implicitly presuppose such a
premise, e.g. the unmodified, categorical proposition that he who
has killed, must die) makes no sense.11
Thereby, Fichte does not wish to contest, in any way, that retaliation is
a principle of justice. In the second edition of his Attempt at a critique of
all revelation (1793), Fichte definitely sees a motivation to moral action
in the morally necessary proportionality between virtue and happiness,
that is to say, in God as the infinite rational being whom Fichte declares
as just.15 In the Foundations of natural right, Fichte claims furthermore:
10. GNR i/3 411. Johann Gottlieb Fichte, Foundations of natural right: Grundlagen des
Naturrechts nach Principien der Wissenschaftslehre, ed. Frederick Neuhouser, trans.
Michael Baur (Cambridge: Cambridge University Press, 2000), p. 109.
11. GNR i/4 60. Foundations of natural right, p. 228.
12. Footnote at GNR i/4 76. Foundations of natural right, p. 245.
13. RL Ak vi:3345. Practical philosophy, ed. Gregor, p. 475.
14. GNR i/4 76. Foundations of natural right, p. 245.
15. Cf. Jean-Christophe Merle, Il punto di vista educativo e religioso dei Contributi
destinati a rettificare il giudizio del pubblico sulla Rivoluzione francese: la
dimensione politica del Saggio di una critica di ogni rivelazione, in Aldo Masullo
91
92
93
94
The substance of the synthesis begins with the sentence: This can be
arranged only through a contract of all with all,29 even though there
is, from the start of the Antithesis to the end of the chapter, no
heading for Synthesis. The synthesis immediately and explicitly
concerns a punishment in the legal sense. Yet, public security is
not to be reached anymore by the right of coercion, in the sense of
the chapter about the right of coercion, that is, by a 100 percent
effective right of coercion in the form of general deterrence through
threatening punishment.30 The synthesis rather deals, on the one
hand, with specific deterrence both by the criminals incapacitation
27.
28.
29.
30.
95
(the convicts live on their own island) and by the threat of irrevocable
exclusion from the commonwealth in the absence of any reform
and, on the other hand, with general deterrence by example:
The [penal] laws first aim was to prevent the criminal from committing
a crime. Since this goal was not achieved, the states punishment of
the criminal serves another purpose: to prevent other citizens, and to
prevent the criminal in the future, from committing the same offense.31
96
97
milder than the lack of a legal punishment, that is to say, milder than
extralegal punishment or exclusion from the commonwealth. Therefore, whoever compares the legal punishment to the lack of a legal
punishment will come to see that the legal punishment does not imply
punishment in the sense of the infliction of suffering due to the
crime, but instead a mitigation of extralegal punishment. Under these
circumstances, Fichte should have argued for the weaker antithesis
according to which legal punishment, despite its lesser deterrent
effect, does not lack every deterrent effect, as it would in the case in
which the criminal were further to enjoy the status of a normal citizen,
that is, impunity. With such an antithesis, the legal punishment recommended by Fichte must exert a not insignificant deterrent effect.
However, because this legal punishment in no way optimizes general
deterrence, it is impossible for general deterrence to be punishments
primary end. If at all the case, general deterrence would rather be the
primary end of an extralegal punishment (in my opinion, it is not
even that, because exclusion from the commonwealth has a reason
the criminal is a potential danger for the commonwealth rather than
a general deterrent end). In this respect, Fichte is not able to make the
claim anymore that, since exclusion from the commonwealth is not
as effective a deterrent as legal punishment, there is in such cases . . .
no reason to exclude the offender; but admittedly . . . there would also
be no reason not to exclude him. The decision would be a matter of
free choice.37
After Fichte has in this way wrongly assumed the parity of legal and
extralegal punishment out of consideration for general deterrence,
he reaches for a subsidiary criterion in order that the aforementioned
decision should not be left to free choice.
The subsidiary criterion could consist of the investigation into what
directly arises from the combination of the concept of right and the
concept of infringement of right. The result of this investigation
should actually not deliver merely a subsidiary criterion for the
appraisal of competing notions of degrees of punishment, but instead
the primary grounding of punishment itself. But, at first glance, this
option is not to be found. Now, the logical consequence of the reciprocal limitation of freedoms contained in the Fichtean concept of
right combined with the infringement of these limits would be the
complete exemption from legal punishment, that is, the unadorned
37. GNR i/4 60. Foundations of natural right, p. 227.
98
99
This expiation contract is useful for all (for the state as a whole) as well as
for each individual citizen. Under it, the whole obtains both the prospect
of preserving citizens whose usefulness outweighs their harmfulness, as
well as the obligation to accept their expiation; the individual citizen
obtains the perfect right to demand that some expiation be accepted in
place of the more severe punishment that he deserves.40
100
In the lines that follow that (heading C), Fichte universalizes this
requirement for consistent behavior: it holds true for relations to
every individual.
2. In } 4, Fichte in general attempts to show what his headings
already clearly formulate: (i) I can expect a particular rational being to
recognize me as a rational being, only if I myself treat him as one.43 (ii) But
in every possible case, I must expect that all rational beings outside me recognize
me as a rational being.44 (III) . . . I must in all cases recognize the free being
outside me as a free being, i.e. I must limit my freedom through the concept of
the possibility of his freedom.45 I will not address the reasons why,
according to Fichte, the satisfaction of these requirements is a prerequisite of the possibility of self-consciousness in finite, rational
beings; even less will I treat the question here as to whether Fichte
was right about this issue. Here I only have to observe that, according
to Fichte, the requirement that every finite, rational being should
belong to the commonwealth and be treated as a member of it is a
component of the concept of right, so that the decision about who
belongs to the commonwealth is not even at the disposal of the
commonwealth itself. The laws of thought demand that every finite,
rational being is recognized as a member of the commonwealth, so
long as this being recognizes other rational beings and treats them as
such, or as soon as the being is again ready to do so after having denied
this recognition for a time to others.
Thus Fichte makes it clear in } 4 that exclusion from the commonwealth cannot be final. It is merely a suspension that lasts as long as it
takes for the denier-of-recognition to recognize others. It becomes
clear that Fichtes use of the word usefulness is absolutely not
applied in the utilitarian sense. Fichtes background is neither the
Scottish school nor the utilitarianism of the eighteenth century, but
instead modern natural right, which is inspired more from Cicero
than from Aristotle. According to Cicero, that same usefulness (utilitas), which is not a merely apparent usefulness, is defined as being
42.
43.
44.
45.
101
Usefulness for state and citizens consists of the punishment contributing to what is just, that is, contributing to the establishment of a
legal system. If the state of law and the state of nature amount to a
dichotomy without a third option, which is the case with Kant and also
with Fichte, then the crime poses a transition from a state of law to a
state of nature between the criminal and other people. The concepts
of right and usefulness require, however, that all humans are part of
the commonwealth. The usefulness of legal punishment (in the twofold meaning of the word usefulness: in both the ancient and the
modern senses of the term) therefore consists in reestablishing
the state of law between the criminal and the community, and, indeed,
as quickly as possible. The concept of right requires simultaneously
the suspension and the fastest possible rehabilitation of the criminal
as a member of the commonwealth, provided that he or she is again
just as able as others to adhere to the laws.
That is why Fichte quickly abandons ius talionis, which he had
initially applied for the degree of punishment, in favor of specific
deterrence and the theory of reform. At the beginning of } 20, Fichte
still speaks of punishment . . . equal to the offense: poena talionis.48
46. Cf., for example, Cicero in De officiis, ii.ii.9f: What I am going to next address is that
which is labelled beneficial. Custom has stumbled over this word and strayed from
the path, gradually sinking to the point where she has severed honourableness from
benefit, decreeing that something can be honourable which is not beneficial, and
beneficial which is not honourable. Nothing more destructive than this custom could
have been introduced into human life . . . For they [the philosophers] hold that
whatever is just is also beneficial, and again, whatever is honourable is also just.
Therefore it follows that whatever is honourable is also beneficial. Those who do
not see this clearly often admire shrewd and crafty men and mistake wickedness for
wisdom. Theirs is an error that must be uprooted; and their fancy must be wholly
converted to that hope which consists of the understanding that they will achieve what
they want by honourable policies and just deeds, and not by deceit and wickedness.
Marcus Tullius Cicero, On duties, ed. M. T. Griffin and E. M. Atkins (Cambridge:
Cambridge University Press, 1991), p. 66.
47. GNR i/4 60. Foundations of natural right, p. 227.
48. GNR i/4 61. Foundations of natural right, p. 229.
102
Four pages later, Fichte says of the criminal that, He must forfeit his
freedom until it is clear that he has reformed; or else he must be
excluded from the state without mercy.49 Five more pages later,
Fichte states more precisely:
But these institutions for reform must also be prudently arranged. First,
they must be actually separated from society and established according
to the spirit of the law [specific deterrence through incapacitation].
The state has full responsibility for any damage caused by someone who,
at the time, is being excluded from society. Therefore, these persons
have lost all their freedom. However, if a person is to reform himself,
and if his efforts at reform are to be subject to judgment, then he must
be free. Therefore, a chief maxim is: such people must be free within
necessary limits and must live in society among themselves.50
49.
50.
51.
52.
103
After this term expires, the criminal should either in the case of
reform be reassumed into the commonwealth, or in the case that
reform did not occur be permanently excluded from it.55
As a result of the occurrence of multiple justifications of penal law
by Fichte, which exclude each other from being primary justifications
53. Cf. Section 2.4 above and Reinhard Brandt, Das Erlaubnisgesetz, oder: Vernunft und
Geschichte in Kants Rechtslehre, in Brandt (ed.), Rechtsphilosophie der Aufklarung
(Berlin: De Gruyter, 1982), pp. 23385.
54. GNR i/4 71. Foundations of natural right, p. 240.
55. Here it appears to me that Fichte contradicts his premise and antithesis, according to
which every human should be offered legal punishment, provided that this person
does not pose any danger for instance, for the prison guards. Now, we cannot
exclude the possibility that a criminal, after a certain period of time, still has not
reformed, but without having posed an additional security problem ipso facto by
continuing to remain in the correctional facility.
104
and also cannot be combined into a mixed theory because they lead to
different notions of degree of punishment, one must either declare
Fichtes penal law as being hopelessly contradictory or investigate the
individual arguments, as well as their role and relevance in Foundations
of natural right, and then reach an assessment. In view of this situation,
my argument has shown two things. First, if we do not accept the false
premises, according to which legal and extralegal punishments would
have an equally deterrent effect, then only Fichtes argument for specific deterrence by incapacitation would remain as a primary justification for penal law. Secondly, that argument is the only one that is
compatible with the degree of punishment, which Fichte conclusively
adopts at the end of } 20, for this reason. That is why I am of the opinion
that Fichte admittedly only after lengthy comings and goings
substantiates penal law with specific deterrence and rehabilitation.
Naturally, legal punishment exerts a deterrent effect by being
openly disseminated (general deterrence by threatening punishment)
and by the execution of punishment not being a secret (general
deterrence by example). This effect certainly contributes to public
security and, for that reason, is thoroughly welcomed by the commonwealth. Nevertheless, threatening punishment and public execution
of punishment are only then allowed if the infliction of punishment is
itself justified, because punishment exceeds the reciprocal limitation
of freedoms contained in the concept of right. If general deterrence
by threatening punishment were 100 percent effective and the punishment, ipso facto, never needed to be executed as Fichte wishes
in the chapter about the right of coercion then the infliction of
punishment would never be justified; then, however, the whole of } 20
of the Foundations would be superfluous.
The chapter about the right of coercion clearly stipulated a 100
percent effective general deterrence by threatening punishment: the
security of any two given persons
is not supposed to depend on a contingency, but on a near-mechanical
necessity that excludes every possible exception. There can be such
security only if the law of right is the inviolable law of both parties wills.56
105
106
5
HEGELS NEGATION OF CRIME
107
108
109
110
15. Heiko Hartmut Lesch, Der Verbrechensbegriff: Grundlinien einer funktionalen Revision
(Cologne: Heymanns, 1999), p. 97.
16. GPhR, Parts i and iii, respectively.
17. GPhR }} 90103.
18. See GPhR }} 218 and 220, respectively.
111
112
I shall name this thesis the thesis of negation of the negation. According to
Flechtheim, the thesis was formulated in } 93, where Hegel states:
Because coercion24 destroys itself in its concept, it has its real expression
(Darstellung) in the fact that coercion is cancelled (aufgehoben) by coercion;
it is therefore not only conditionally right but necessary namely, as
a second coercion which cancels an initial coercion.25
113
29. Flechtheim, Von Hegel zu Kelsen, p. 17. Elements, ed. Wood, p. 257.
30. GPhR } 101, Remarks. Elements, ed. Wood, p. 127.
31. GPhR } 101, Remarks. Elements, ed. Wood, p. 128.
114
will [subjective aspect].32 Yet this implies neither that this subjective
aspect would be necessary for the justification of the punishment as a
complement to the objective justification, nor that the criminal would
have to consent to penal law in order that the punishment might be
legitimate. Hegels formulation in } 100 completely allows that, after
first being sentenced and then having served a punishment, the
criminal gains the insight that his or her deed must imply the punishment, even though the deed implied the punishment in itself already
while he or she was committing the deed. In such a case, the criminals
consent would not be unlike the case with the cancellation of the
crime and the restoration of right a (normative) prerequisite, but
instead a result of the crime.
Naturally, this does not mean that the subjective insight of the
criminal into the justification of his or her punishment has no systematic locus in the Elements of the philosophy of right. Obviously, the process
by which the criminal gains insight into the necessity of penal law
makes possible the Transition from right to morality. In the part
about morality that truly does constitute a further advance in the
inner conceptual determination of the will, punishment is not at
issue the word punishment itself practically never appears.33 It is
in the part about Ethical life, in which the opposition between the
general will in itself and the general will for itself is cancelled, that
punishment is discussed again for the first time. There it is handled
from the perspective that dangerousness is a criterion for punishment
in general as well as for legal punishment in particular, that is, for the
opposite of private revenge. }} 218 and 220 clearly do not make the
claim, however, to contributing to the justification of the existence of
punishment. To this extent, the justification of punishment rests
exclusively on the development of the general will in itself; therefore,
32. GPhR } 100. Elements, ed. Wood, p. 126.
33. Cf. GPhR } 104. Elements, ed. Wood, p. 131. The word Strafe (punishment) itself
appears only in Hegels handwritten marginalia in GPhR } 118 as well as in the
Remark on } 132, though Allen W. Wood, for instance in } 218, renders the
German Ahndung as the English punishment, though it could also be rendered as
revenge for a wrong. In these passages, the word Strafe is used only in the following
contexts: Suffering in general including punishment as a consequence in general of
the action, punishment, infringement, and unhappiness merely as such has no
ethical interest just as injustice and punishment are not mere ills (translation
mine); The sphere in which the above circumstances come into consideration as
grounds for relaxing the punishment is not the sphere of right, but the sphere of
clemency, in Elements, ed. Wood, p. 161.
115
116
117
118
49.
50.
51.
52.
119
120
121
5.3.1. Hegels critique of talion law concerns more than its literal application.
In the first passage in which Hegel refers to the theory of retaliation,
this occurs solely with reference to the argument of the negation of
the negation57 as well as in relation to taking into account the crimes
quantity and quality in the determination of the negation of the
negation:58
The cancellation . . . of crime is retribution in so far as the latter, by its
concept, is an infringement of an infringement, and in so far as crime,
by its existence . . . has a determinate qualitative and quantitative
magnitude, so that its negation, as existent, also has a determinate
magnitude.
GPhR }} 93 and 97. Elements, ed. Wood, pp. 1201 and p. 123.
GPhR } 96. Elements, ed. Wood, pp. 1223.
GPhR } 101. Elements, ed. Wood, p. 127.
GPhR } 101, Remarks. Elements, ed. Wood, p. 129.
122
61.
62.
63.
64.
123
Hegel presumably means by this those various theories of punishment as prevention, as a deterrent, a threat, a corrective, etc. which
presuppose, in the punishments rationale, the superficial character
of an evil.67 Hegel sharply criticizes them:
As a result of these superficial points of view, however, the objective
consideration of justice, which is the primary and substantial point of
view in relation to crime, is set aside; it automatically follows that the
essential consideration is now the moral point of view, i.e. the subjective
aspect of crime, intermixed with trivial psychological ideas.68
I proceed under the assumption that the contradictory propositions that Hegel criticizes in the Remark on } 101 are those very
theories I have described above, because both these and retributivism
were already then the two dominant competing theories of punishment: punishment was imposed either because the crime was committed
(retributivism), or in order that something occur (rehabilitation, either
general or specific deterrence; all following a consequentialist intent).
Sometimes, these are referred to as retrospectively or prospectively
directed theories.
Hegel raises the same objection against retributivism as he raises
against the various consequentialist theories of punishment, that is,
that they rely on common sense, that they are subjective rationales
and that they contradict one another.
65.
66.
67.
68.
124
About retributivism, Hegel states: It is this inner identity which, for the
understanding, is reflected in external existence (Dasein) as equality.71
By inner identity is meant the infringement of the infringement; by
equality is meant classical retaliation.
Before I move on to the Hegelian cancellation of the opposition
between both of these theories in the concept of punishment, there is
a point that contradicts the assumption of some interpreters, stating
that the classical theory of retaliation and the Hegelian penal theory
are compatible, to which I have yet to attend.
5.3.2. The negation of the negation is not retaliation. The aforementioned
negation of the negation is not to be understood as being the
negation of an opposing element, as in the case that A is the negation
of :A, and therefore it is ::A. For Hegel, the negation of the negation
is rather the cancellation of the negation, that is, the cancellation of
69. Cf., for example, Hegels Encyclopedia of the philosophical sciences, } 36, Addition.
70. GPhR } 99, Remarks. Elements, ed. Wood, p. 125.
71. GPhR } 101, Remarks. Elements, ed. Wood, p. 128.
125
coercion. It is not ::A, but rather A. Yet it is not the absolute A, but
instead an A having validity by the cancellation of the negation.
Naturally, by the negation of the negation, :A becomes negated.
That :A becomes negated does not mean, however, that the negation
is on the whole negated. Now, right requires that the negation itself
becomes negated, and therefore that no violence results from the
punishment. The punishment is the special negation actually bringing
to termination the very act of negating in general.
Now, how does this relate to classical retaliation, according to which
what the criminal has done should also happen to him?72 The criminal has
negated the personality (A) of his or her victim: :A. Happening to the
criminal what he or she him- or herself has done to the victim means
the negation of the personality (B) of the criminal: :B. The relationship between :A and :B is naturally that B executed the action :A.
Through :B, :A was indeed negated but B was also negated. Therefore, :B must be negated. In other words: whoever is responsible for
making sure that what the criminal has done happens to the criminal
him- or herself does exactly what the criminal has done. Therefore,
what the criminal has done ought also to happen to him or her
(whoever is responsible, that is). Retaliation reproduces the negation
instead of canceling it. Hegel expresses this in the following way:
In the sphere of the immediacy of right, the cancellation . . . of crime is
primarily revenge, and its content is just so far as it constitutes retribution
. . . Thus revenge, as the positive action of a particular will, becomes
a new infringement; because of this contradiction, it becomes part of an
infinite progression and is inherited indefinitely from generation to
generation.73
126
127
What Hegel calls retribution (Wiedervergeltung), which is an infringement of an infringement, should not be confused, therefore, with the
retaliation (Wiedervergeltung) of classical retributivism.78
In the degree of punishment as well, a difference now arises
between the restoration of the personality of the individual or of a
group of individuals and the restoration of the law. Restoring the
law, that is, to reaffirm its validity, is completely feasible. Restoring the
existence (Dasein) of the will in an individual person in which it was
found before the crime is, on the contrary, only possible in some
cases. These cases are treated in } 98 of the Elements of the philosophy
of right: The cancellation . . . of the infringement, where the latter has
caused damage, is civil satisfaction in the form of compensation (in so
far as any compensation is possible) [second emphasis mine].79 In most
of the cases, though, there is no compensation to be found. And in
those cases as well, wherein compensation is possible, the positive
existence of the injury, that is, the particular will of the criminal, remains
unaffected: the criminal can provide the whole compensation while
keeping his or her criminal intentions.80
Some authors attempt to justify the classical principle of retaliation
not merely by appeal to reciprocity in general, but also in other ways.
Jean Hampton mentions, for example, the explanation that talion law
has the aim of destroying the criminals claim permanently to acquire
supremacy over his or her victim. Poking out the criminals eye is,
according to this conception, a way for the victim, who was made
monocular by the criminal, to revoke that superiority unjustly gained
by the criminal. The question of the rightness of this and of similar
explanations remains to be addressed (Hampton herself rejects it).
Bear in mind, though, that Hegel does not enter into such interpretations of classical retaliation theory.81 In its place, Hegel adopts a
symbolic interpretation: It is this inner identity which, for the understanding, is reflected in external existence . . . as equality. In revenge,
the restoration of right cannot really occur: therefore, it occurs symbolically that is, as talion law, as a specific equality: robbery for
robbery, an eye for an eye, and a tooth for a tooth.82
GPhR } 101. Elements, ed. Wood, p. 127.
GPhR } 98. Elements, ed. Wood, p. 124.
GPhR } 99. Elements, ed. Wood, p. 124.
Cf. John Kleinig, Punishment and moral seriousness, Israel Law Review, 25, no. 3
(1991), 40121 (p. 416).
82. GPhR } 101, Remarks. Elements, ed. Wood, p. 128.
78.
79.
80.
81.
128
83.
84.
85.
86.
129
130
Weil der Wille, nur insofern er Dasein hat, Idee oder wirklich frei und
das Dasein, in welches er sich gelegt hat, Sein der Freiheit ist, so zerstort
Gewalt oder Zwang in ihrem Begriff sich unmittelbar selbst.90
131
individuals, as well as for those whose direct victim is the state.95 Now,
body, life and property of the individuals are all an existence of
the free will. Therefore, the body, life and property of the criminal
are just as much the existence of the free will as the body and life of
the victim. Therefore, self-destruction in } 92 ought to be understood
in the following ways:
1 One must understand self-destruction as the thesis of the necessary
destruction of that which contradicts right. Since the realization of
right and along with it as well, the existence of the free will in the
body, in the life and in the property of the victim is a necessity, the
crime, being an attempt to infringe on this existence, can only fail
and lead to the exercising of coercion against the criminal.
2 Self-destruction must also be understood as the thesis of the identity
of the criminals free will with the victims free will. The criminal
coerces or destroys the existence of free will in the person of the
victim and thereby coerces or destroys him- or herself, since the
criminals own existence is also the existence of free will.
The two theses are linked to each other, since right must have its
existence in every person, so that, for right, the personality of the
criminal and that of the victim are equal. In Hegel, the refusal to
recognize the personality of all the other humans implies a discrepancy on the part of that person who denies the recognition: on the
one hand, the universal element in the persons will is one with the
universal element in the wills of the other persons; on the other hand,
this universality is alien to it. Its particular will and its general will
diverge. This implies that the human who does not recognize the
status of the personality in other humans lacks the foundation upon
which he or she can base his or her own status as a person. According
to Hegel, those societies in which the personality of only some
humans is recognized (for instance, Egypt or the Greece of antiquity)
are societies in which the personality is something contingent.
Therefore, the necessity of right requires the self-destruction of
coercion. Now, this requirement is still taken in the abstract (that
is, abstractly understood) as long as it has not come to realization:
force or coercion immediately destroys itself in its concept [emphasis
95. Cf. GPhR } 95, Remarks. Elements, ed. Wood, p. 122: the determination which will be
considered in the following paragraph also applies to the particular and further
determined content [of crime], e.g. in perjury, treason, counterfeiting, forgery, etc.
132
96.
97.
98.
99.
100.
101.
133
On the other hand, Hegel really sees alternatives to the death penalty. Because punishment must coerce the criminal, whereas the
death penalty does perfectly fulfill the personal wishes of some to
be sentenced to death, then Hegel must actually allow some alternative punishments, even for murder. A handwritten remark in his copy
of the Elements on } 99 notes that punishment has to be sensitive . . .
It even has occurred that murders [were committed] in order to lose
[ones] life, therefore, [they are] insensitive to the death penalty;
then it came to be, that it was changed to imprisonment. In the
Lecture on the philosophy of right (1824/5) he says in a somewhat more
detailed way:
There have been cases in which a murder occurred in order [for
one] to be sentenced to death. The murderer did it out of world
weariness, contempt for life, though especially in a religious sense . . .
Thus the death penalty does not affect him he already wills to leave
this life consequently, a sentence of life has been replaced with
prison in order to affect the will of the criminal.104
102. GPhR } 101, Addition. Elements, ed. Wood, p. 129.
103. GPhR } 100, Addition. Elements, ed. Wood, p. 127.
104. PhR 285.
134
135
107.
108.
109.
110.
For both points one and two cf. the Remarks in GPhR }} 99 and 100.
GPhR } 99, Remarks. Elements, ed. Wood, p. 124.
GPhR } 99, Remarks. Elements, ed. Wood, p. 125.
GPhR } 220. Elements, ed. Wood, p. 252.
136
137
138
as the present and past will of the criminal. Hegels presumption is that
the particular will of the criminal continues to be a criminal will
should it remain unpunished. In his lecture Natural right and the science
of state (Naturrecht und Staatswissenschaft) from 1818/19, Hegel
expressly says:
What the will does is, according to appearance, a single, but also a
universal something temporal and something intemporal. Thus the
consequences of the deed remain even if the deed is itself hidden.
Thus whoever steals remains for ever a thief, not merely in memory but
actually.120
And a little later he adds: the deed of the criminal is not merely
something transient, single, but instead something at the same time
universal, a law stating that infringement against somebody is allowed.121
Therefore, if the punishment does not occur then the criminal again
commits a crime. According to this, in order that right should not be
harmed again, the criminal must be coerced:
The positive existence of the injury consists solely in the particular will of the
criminal. Thus, an injury to the latter as an existent will is the
cancellation . . . of the crime, which would otherwise be regarded as valid,
and the restoration of right.122
Specific deterrence is therefore an aim of punishment that necessarily belongs to the primary aim of the cancellation of the crime. General
deterrence, however, is not only an indirect side effect of punishment
grounded in such a way, but also necessarily itself an aim of punishment. It means: If society is still inwardly unstable, punishments must
be made to set an example, for punishment is itself a counter-example
to the example of crime.123
This general deterrent aim of the Hegelian theory of punishment is
also indirectly derived from the main aim of the cancellation of the
crime. With the deed, the criminal accepts all consequences that he or
she can foresee. These consequences that are internal to the criminal
action, under which there is the risk that the deed moves other
citizens to commit a crime, pertain to his or her criminal intent. The
relationship between the criminals will and these consequences,
120.
121.
122.
123.
NRSW 2756.
NRSW 2767.
GPhR } 99. Elements, ed. Wood, p. 124.
GPhR } 218, Addition. Elements, ed. Wood, p. 251.
139
Belonging to the particular will of the criminal is the risk that the
crime comes to be an example, therefore a precedent for a third party.
The coercion exercised by punishment of the will of the criminal also
cancels this precedent, which has a general deterrent effect, that is,
though only a secondary one.
124. GPhR } 218, Remarks. Elements, ed. Wood, p. 251. Also, cf. Ripstein, Equality,
responsibility and the law, pp. 2289.
125. PhR 279.
126. GPhR } 96, Remarks. Elements, ed. Wood, pp. 1223.
140
141
Therefore, the subjective aspect does not occur, for instance as a subjective justification without which punishment would lack a rationale,
but instead the justification is deduced from the punishments aim of
specific deterrence, which is grounded in the cancellation of a wrong.
Coercion must be by definition sensitive.
129. Remarks on GPhR }} 99 and 101. Elements, ed. Wood, pp. 124, 128.
130. See below, Sections 5.2.1, 5.2.2 and Seelmann, Wechselseitige Anerkennung and
Versuch einer Legitimation.
131. PhR 285.
142
143
144
If one separates deed and action in an abstract way then this leads one
to break down (Zersplitterung) the consequences [for penal law]
minutely.141 With this, though, the possibility of retaliation for the
criminal action disappears in the judgment of common sense, and
only the deed can be retaliated for: Guilt or innocence in relation to
evils and of evils to guilt. Suffering in general, punishment amongst
it as well, on the whole as a consequence of the action or also not.142
If the principle of retaliation only relates to the deed then it cannot
perceive the subjective aspect and abstracts the criminal will, without
which there is no crime, but instead only an evil.
The principle of retaliation cannot be regarded, therefore, as being
justification of punishment, but as in Fichte143 is rather justified
only as a means to the end of punishment. As an external, superficial
principle, the principle of retaliation is especially suited, though, to be
understandable to the criminal: retaliation places an external, immediate identity between the crime and the punishment; this identity is
immediate because it does not operate through the concepts of right
and of law as well as through their necessary validity. Instead, this
immediate identity only relates to the material consequences of the
criminals deed for the victim and to the material consequences for
138.
139.
140.
141.
142.
143.
145
PART III
RETRIBUTIVIST INHUMANITY
147
148
retributivist inhumanity
6
NIETZSCHE AND PUNISHMENT
WITHOUT REMORSE
Kant does not consider that the aim of punishment is to arouse bad
conscience, and thus the criminals remorse as well. If punishment
were to be imposed in the service of such an aim, it would not occur
as Kant requires merely because the criminal broke the law, but
instead in order that a certain situation might come about. Since the
arousing of bad conscience or remorse seems to be a minimalistic aim,
which has moreover a clear reference to the criminals dignity, some
interpreters of Kant develop a conception of retributive punishment
directed toward this aim.1 If one proceeds under the assumption that
retributive punishment especially respects the criminals human dignity and that it can generate as Hegel points out (see Section 5.5)
even in the simplest mind a connection between crime and punishment, then one can expect the criminals remorse from retributive
punishment.
It is Nietzsche who best shows us that such a justification is not
self-evident but instead very problematic. Nietzsches polemic
writing On the genealogy of morality (1887) opposes such a moralizing
conception of retaliation and of punishment. From Nietzsches perspective, retaliation does not stem from concern for human dignity
in the criminals person but instead in the victims and other human
beings active Schadenfreude. Also, the expiation of punishment cannot
possibly be an inducement to moral conversion, but rather
strengthens the criminals felonious will. It is punishment that is
directed toward deterrence which proves to be the more humane
option of penal law.
1. Cf. chapters 9 and 11 of Thomas E. Hill, Human welfare and moral worth: Kantian
perspectives (Oxford: Clarendon Press, 2002).
149
150
retributivist inhumanity
151
The conclusion from this, we will have to remember later on, is that
impartiality is impossible.
8. WuL i, 880. Daniel Breazeale, Philosophy and truth: selections from Nietzsches Notebooks of
the early 1870s (Atlantic Highlands, NJ: Humanities Press, 1979), pp. 7997.
9. GdM ii 8. Genealogy of morality, ed. Ansell-Pearson, p. 50.
10. GdM ii 8. Genealogy of morality, ed. Ansell-Pearson, p. 50.
11. Cf. Henning Ottmann, Philosophie und Politik bei Nietzsche (Berlin: De Gruyter, 1987), p. 131.
12. Part 1, chapter 15 of Thomas Hobbes, Leviathan, ed. A. R. Walter (Cambridge:
Cambridge University Press, 1904), p. 102.
152
retributivist inhumanity
153
16.
17.
18.
19.
GdM ii 9. Genealogy of morality, ed. Ansell-Pearson, p. 50. Also, cf. GdM ii 5f (pp. 436).
GdM ii 9. Genealogy of morality, ed. Ansell-Pearson, p. 50. Also, cf. GdM ii 3 (pp. 412).
GdM ii 9. Genealogy of morality, ed. Ansell-Pearson, pp. 501.
Cf. especially GdM ii 3. Genealogy of morality, ed. Ansell-Pearson, pp. 412.
154
retributivist inhumanity
the criminal away from itself; only thereafter can any kind of
hostile act . . . be perpetrated on him.20
It is still unclear whose anger is directed with cruelty toward the
criminal. Nietzsche merely writes: The anger of the injured creditor,
the community, makes him return to the savage and outlawed state
(the logic of expulsion) and now any kind of hostile act can be
perpetrated on him (the logic of infliction of suffering). The latter
formulation is vague, just like the following and last lines of Essay ii 9.
Does it concern two logical moments of public punishment or two actors
of punishment?
Either, the commonwealth initially expels the criminal (the first
moment) and then handles him or her with cruelty like a defenseless
enemy, whereupon one can imagine all kinds of dishonour and
torture (second moment). Or, the state (the first actor) expels the criminal and the individual citizens (the second actor) perpetrate all manner
of cruelties on the criminal one might name this as a modern
equivalent of lynch mob justice.
The more plausible answer certainly lies in the middle of these. The
commonwealth perpetrates these cruelties because the criminal has
been excluded and because the individual citizens are angry and
demand cruelties.
The difference between the commonwealth as such and the sum of
its members reaches its clear expression at first in the second period of
punishment. There Nietzsche writes: the wrongdoer is no longer
deprived of peace and cast out, nor can the general public vent their
anger on him with the same lack of constraint.21 The decision
whether the criminal should be expelled from the community or
can remain is decided by the anger of the community as such that
is, by the ruler and not by the general anger (allgemeine Zorn) of the
masses. In the first period, the ruler decides for the expulsion.
Whether the ruler carries out the cruelties in person or simply allows
them, whereupon they would be then carried out by the crowd, is
actually not the core issue: in both cases the general anger dictates the
punishment not the ruler and his or her anger. The general anger is
reactive, though: it is a ressentiment that results from powerlessness.22
In this case, powerlessness results assumedly from the impossibility of
20. GdM ii 9. Genealogy of morality, ed. Ansell-Pearson, p. 50.
21. GdM ii 10. Genealogy of morality, ed. Ansell-Pearson, p. 51.
22. Cf. GdM ii 5. Genealogy of morality, ed. Ansell-Pearson, pp. 43ff.
155
For this reason Nietzsche is here in agreement with Hegel punishments can be milder. Nowadays one would essentially interpret the
danger and the risk of collapse as Hegel does in } 218 of his Elements of
the philosophy of right: the more stable the state, the less the risk that a
crime incites further crimes and, hence, makes a stricter general
deterrence necessary. Unlike with Hegel, however, with Nietzsche this
23.
24.
25.
26.
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retributivist inhumanity
is not what the concern is; rather, the concern is about the risk that a
criminal might agitate the entire society or might bring about civil
war. In which case is this a lesser risk? Perhaps it is less if the quantity
and the gravity of the crimes are held as being so low or the citizens
safety and trust are so high that the crimes are not perceived as being
a direct threat by the majority of the population. This is even more
probable, though, if the state possesses, in a stable manner, the real
monopoly on violence, which makes it possible for the state successfully to resist the anger of its citizens. This may be the definition of
a states grow[ing] in power.
The state puts the criminal under its protection against the general
anger, in order that the crime be totally acquittable and then truly
acquitted. Unlike an enemy, with whom one remains unreconciled
even after his or her defeat and death, public punishment should
provide for either the complete expunction or the complete acquittability of the debt contracted by the crime. In this regard, three
aspects matter.
First, the state must see to it that the wrongdoer is isolated from his
deed.27 The consequence resulting from this is that, unlike an
enemy, the criminal is not to be destroyed. In this manner, the criminal
cannot be reduced to his or her crime, and can later become again a
member of the commonwealth. Yet one should not forget the fact that
Nietzsche would in no way endorse this development. For he writes in
Essay i 13 that there is no being behind the deed . . . the doer is
invented as an afterthought, the doing is everything. Were one to
cite, as Michel Foucault did, a phrase from the French philosopher and
politician Gabriel de Mably as being the criterion for modern penal law,
in contrast to the pre-modern penal law that says punishment . . .
should strike the soul rather than the body then Nietzsche more
distinctly stands on the side of pre-modern penal law.28
Secondly, an equivalent has to be found for a deed isolated in this
way, or, more exactly, multiple equivalents have to be found29 each
one probably determined by the gravity of the deed. The equivalent,
therefore, can only be an illusion; (public) punishment can only be
27. GdM ii 10. Genealogy of morality, ed. Ansell-Pearson, p. 51.
28. Michel Foucault, Discipline and punish: the birth of the prison, trans. Alan Sheridan, second
edition (New York: Random House, 1995), p. 16. The original quotation is taken from
Gabriel de Mably, De la legislation, in uvres comple`tes (12 vols., London, 1789), vol. 9,
p. 326, and reads: Que le chatiment . . . frappe lame plutot que le corps.
29. GdM ii 10. Genealogy of morality, ed. Ansell-Pearson, pp. 512.
157
30. Cf., for instance, in RL } 49e, Ak vi:331ff. Practical philosophy, ed. Gregor, pp. 4725.
Also, see above, Chapters 13.
31. GdM ii 5. Genealogy of morality, ed. Ansell-Pearson, p. 45.
32. GdM ii 10. Genealogy of morality, ed. Ansell-Pearson, pp. 512.
158
retributivist inhumanity
Not only in the contemporary debate over penal law does impunity
hardly count as a serious option.35 Also, those authors who are
not supporters of maximizing general deterrence being an aim of
33. GdM ii 10. Genealogy of morality, ed. Ansell-Pearson, p. 51.
34. GdM ii 11. Genealogy of morality, ed. Ansell-Pearson, p. 54.
35. For an exception, see Hermann Bianchi, Abolition: assensus and sanctuary, in
Alexander R. Duff and David Garland (eds.), A reader on punishment (Oxford:
Oxford University Press, 1994), pp. 33651.
159
160
retributivist inhumanity
less powerful are both the criminal and his or her victim] . . . to
reach a settlement amongst themselves.38 In fact, only in the
second and third periods can a compromise be reached between
the interest of the criminal (impunity) and the interest of the victim
(a bellicose, informal cruelty).
With these lines of text, Nietzsche seems to see impunity as being the
logical conclusion of justice or acquittability, and therefore not as
being a deviation from strict justice. For Nietzsche speaks expressly
not of sublimation, but of the [self-cancellation] of justice (emphasis
mine). One would rather expect that mercy would be designated as
being an extrinsic cancellation of justice, being beyond justice, and
thus as it is according to Nietzsche himself, being beyond the law
( Jenseits des Rechts).40
Nietzsches charge against justice is that it seeks acquittal of debt
while nevertheless allowing those unable to pay to escape punishment.
There are at least two ways to understand this. Either, one sees the
turning of a blind eye to those who are insolvent pertaining merely to
the fourth period, that is, to absolute impunity. But then the charge of
self-cancellation is incomprehensible. Or, one understands it in such a
way that the turning of a blind eye indeed completely unfolds in the
fourth period, though it was already therefore, from the outset
present in the second and third periods. In this respect, even public
38. GdM ii 8. Genealogy of morality, ed. Ansell-Pearson, p. 50.
39. GdM ii 10. Genealogy of morality, ed. Ansell-Pearson, pp. 512. Translators note: in the
translation, Aufhebung is rendered as sublimation, but in the Nietzschean sense, as in
the Hegelian context, rendering it as suppression, cancellation or sublation
might prevent any confusion.
40. GdM ii 10. Genealogy of morality, ed. Ansell-Pearson, p. 52.
161
41.
42.
43.
44.
162
retributivist inhumanity
45.
46.
47.
48.
163
164
retributivist inhumanity
165
remains just even towards someone who has wronged him . . . well,
that is a piece of perfection, the highest form of mastery to be had on
earth.57 In so doing, however, three basic aspects should not be
overlooked. First, Nietzsche is referring in no case to justice, but
instead to the just man. Secondly, the sentence is formulated hypothetically (If it actually happens . . .), and its condition is not fulfilled
since it is something which we would be wise not to expect and
should certainly find difficult to believe.58 Furthermore, Nietzsche
never takes an idealistic position such as that: Nietzsche categorically
disapproves of any idea whatsoever. Thirdly, the just character of a
human being who stands the closest to justice does not stem from his
or her appreciation for justice. The human who stands close to justice
is only a hundred paces nearer to justice than the man who reacts.59
Only in so far as he or she is the active, aggressive, overreaching man
[or woman] is this person close to justice. Therefore, he or she is
primarily powerful and aggressive, and only secondarily just.
We have already given the explanation for this. For Nietzsche,
justice is a means to power. A justice that is an autonomous end or
that is a value simply does not exist in Nietzsches thought.
GdM ii
GdM ii
GdM ii
GdM ii
GdM ii
GdM ii
166
retributivist inhumanity
167
168
retributivist inhumanity
It only begs the question whether one may even speak of a public
punishment under these conditions. Provided that the criminal is
punished not by private citizens for example, in the form of a
lynching, which, incidentally, displays more anger than joy but
instead by the state, one could, however, finally speak of a public
punishment without at the same time approving of Nietzsches view.
What does Nietzsches amoral view show us about public punishment as a feast of cruelty? Nietzsches argument seems bipartite and
two-sided. On the one hand, he has recourse to the classical justification of punishability: the criminal did not comply with the reciprocity
that is fundamental to the commonwealth, and he or she attacked
the commonwealth; thus, the criminal is no longer able to be a
normal member of the commonwealth. On the other hand, in
Nietzsches conception, the further classical premise is lacking that
the criminal being a human being can acquit his or her crime, that is,
again become a member of society after the expiation of the crime
(not only the theories of rehabilitation but also the theories of
67. GdM ii 6. Genealogy of morality, ed. Ansell-Pearson, p. 46.
169
170
retributivist inhumanity
7
WHAT IS THE PURPOSE
OF PUNISHING CRIMES
AGAINST HUMANITY?
171
172
retributivist inhumanity
173
174
retributivist inhumanity
175
intention at the time, murder would most likely have been subject to
the statute of limitations. In Austria, there is no statute of limitations
for murder, but there is a dramatic reduction of the amount of
punishment should the case be brought twenty years after the execution of the crime.5
4. The exclusion of crimes against humanity from the statute of
limitations is often considered as being morally justifiable by the
monstrousness that all crimes against humanity pose. This monstrousness is usually considered as implying two consequences. First, it
implies that those who commit crimes against humanity are supposed
to be monsters who deserve extraordinary punishment. Secondly, it
implies that the monstrousness that crimes against humanity represent should remain unforgettable, because guilt is allegedly incommensurable. Thus, it is held that punishment should have an
expressive function, that is, that it should represent an expression of
the inextinguishable, most deep-seated abhorrence of all humankind.
In this view, no punishment can fully fit the crime, when the crime is a
crime against humanity, yet an extraordinary punishment can at least
be regarded as an expression of the inextinguishable guilt of the
criminals. The monstrousness of some crimes against humanity, as
well as the impossibility of finding any commensurable punishment to
fit the gravity of the crime, is often employed as the justification for
the existence of the legal category of crimes against humanity, and
it implies not only the exclusion of the statute of limitations (as
mentioned in the first point), but also the elements mentioned in
the first and second points, though interpreting them in a peculiar
way. Indeed, the absence of the usual precisely codified sanction
structure (the second point) is explained in this context as the manifestation of the fact that the crime is so monstrous that it lies beyond
the reach of the sanctions in ordinary penal law and of any quantitative scale of guilt and amount of punishment. But what about point
one, that is, about the political significance of crimes against humanity
as it is treated by the argument that the monstrousness of crimes
warrants sanctions above those against conventional crimes? Those
who explain the specificity of crimes against humanity as resulting
from their monstrousness do not emphasize the endangerment of the
public institutions brought about by the commission of the crime;
5. Austrian Penal Code (Strafgesetzbuch), Sec. 6, Art. 57(1). See May, Crimes against
humanity, p. 216.
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retributivist inhumanity
rather, they emphasize that committing the crime is a moral evil, that
is, the alleged inability of the criminal ever to belong again to the
political community under the rule of law.
177
178
retributivist inhumanity
179
the preceding leader so that the crimes the earlier government committed can be strictly outlawed. But, in general, the condemnation is short
and a pardon is rapidly granted.9 If necessary, a punishment may be
added to some period of ineligibility for office. The old adage states that
most of the time in politics punishment is either death (the second
characterization) or a short prison term (the third characterization).
It is interesting to note that in positive international law none of
these three options is available to a tribunal such as those of the
former Yugoslavia, of Rwanda or of the ICC. Capital punishment has
been abolished by a significant proportion of the members of the UN,
as well as by the ICC in The Hague, and no exception is made for
crimes against humanity unlike the exception made for the statute
of limitations; the gravest crimes against humanity carry no greater
sanctions than the worst instances of first-degree murder. After the
Nuremberg and the Tokyo trials, capital sentences were no longer
passed by an international criminal court. Were capital sentences
allowed to be passed, most Western democracies would not participate
in those trials, because most of them are expressly prohibited from
extraditing to a court that can pass capital sentences even in cases
of crimes against humanity. Banishment is not an option because
the Universal Declaration of Human Rights (Article 9), the European
Convention on Human Rights (Article 7(1)) and the Final Act of
the Conference on Security and Cooperation in Europe (Helsinki
Accords of 1975, Principle 10) guarantee an individuals access to
his or her own country at all times. Admittedly, were the criminal
leader to be judged by an international court, rather than by a domestic jurisdiction of the country of which he or she is a national, the
sanction would then probably be carried out outside the country,
which may be considered as de facto banishment. Finally, the sanction
for the leaders of crimes against humanity cannot be a short-term
sentence, but must be either a life sentence or a long period of time in
prison. Two astounding points come to light when all of the aforementioned is considered as a whole:
1 The punishment for crimes against humanity radically diverges
from the traditional punishment of crimes against legal and against
9. An amnesty may even be a necessary means with which to ensure a just peace; see
Michael P. Scharf, Justice vs. peace, in Sarah B. Sewall and Carl Kaysen (eds.), The
United States and the International Criminal Court: national security and international law
(Lanham, Md.: Rowman and Littlefield, 2000), pp. 21336 (p. 189).
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retributivist inhumanity
181
Gestapo, has not been systematically punished, only the gravest cases
being prosecuted. The sanctions enforced on a few executants can be
really efficient neither from the point of view of specific deterrence
(a few isolated individuals alone are not able to rebuild the criminal
organizations to which they belonged), nor from the point of view
of general deterrence (were the probability to be sentenced extremely
low, the deterrence effect would not be sufficient to justify such
measures). A much more efficient solution, from the point of view of
general deterrence, would be a massive punishment of all executants,
were it possible at all.
If such a massive punishment would meet with resistance from
the criminal who was indicted and sentenced, that would threaten
the existence and stability of the state under the rule of law, and if the
kind of very limited moderate punishment that I have described
would allow it to restore the state institutions to the rule of law, all
theories of punishments, whether deterrent or retributive, would
prefer the latter option. However, there is a quintessential difference
between deterrent and retributive theories with respect to this solution. A retributive theory of punishment considers it as an exception
made to the law, which can be made only in order to protect the
existence of the law in a situation in which the enforcement of the law
is not possible. In the Doctrine of right, Kant evokes the situation in
which the number of accomplices involved in a homicide is so great
that the state, in order to have no such criminals in it, could soon find
itself without subjects; and . . . the state still does not want to dissolve,
that is, to pass over into the state of nature, which is far worse, because
there is no external justice at all in it.11 According to Kant, who,
at this point, undoubtedly belongs to the retributivist school, the
malefactor in such a situation should be sentenced to a mitigated
sentence, yet not through the letter of the law, but instead through
a decree of pardon issued by the monarch. For a theory of deterrence,
these more lenient punishments provide no exception to the law of
criminal justice, but are instead part of it, because penal law must, as
its sole purpose, ensure the enforcement of the rule of law as quickly
as possible. In this regard, once the danger has passed that the
malefactor who committed crimes against humanity might regain
power under normal rule of law, the probability of recidivism will
disappear. The probability of recidivism is much lower than with other
11. RL Ak vi:334. Practical philosophy, ed. Gregor, p. 475.
182
retributivist inhumanity
183
but it does not necessarily mean making a plea for the lifting of the
finding of guilt, as demonstrated by the Commission for Truth and
Reconciliation, a body that was intended to establish the facts but not
to make any condemnations.13 However, I suspect that a certain
amount of time in prison would have been necessary to rehabilitate
some very serious criminals of the apartheid era because they hold the
most firmly rooted convictions. I will confine myself only to forwarding the thesis that in cases of crimes against humanity the conventional prescriptive period should never be exceeded, but instead even
reduced.
184
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evils and perversions, but to protect society, that is, the rights of the
citizens. This implies that penal law amounts to a means to restore the
rule of law between all persons including the criminals as quickly
and as efficiently as possible.
If we were now to formulate the retributivist objection to my repugnant conclusion in the guise of a classical criticism, we should say
that the retributivist would postulate that crimes against humanity
are deserving of severer punishment than similar crimes not barring
widespread and systematic attacks14 committed pursuant to or in
furtherance of a State or organizational policy to commit such attack.15
However, I see several serious difficulties with such a view being utilized
as a justification for disregarding the statute of limitations.
1 Were we to compare a homicide committed within the framework
of crimes against humanity with an ordinary homicide perpetrated on the individual level, we would be hard pressed to postulate
the former as being more deserving of severer punishment. Yet,
should a campaign of discriminatory, forced sterilization be punished more severely than, say, an ordinary first-degree murder? The
answer is not at all obvious.
2 Should a crime against humanity consisting of a massive extermination of human beings utilizing industrial methods be punished
more severely than a conventional first-degree murder? Were the
latter already punished by a life sentence, I see only a death sentence, or more likely a long and public torture, as a severer punishment. Yet, would that not constitute in itself a crime against
humanity? The letter and the spirit of international law punishing
crimes against humanity are clearly not shaping its course toward
such extreme punishments. (For this reason I disagree with Larry
May, who sees proportionality as requiring restraint in punishment
in relation to emotional factors: I see it, on the contrary, as
heading in the same direction.)16
3 Retributivism is not compatible with the lack of an outline of the
traditional sanction structure in Articles 7 and 25 of the Rome Statute.
One may object to my repugnant conclusion stating that penal law
should not offend popular sentiment. Allowing Adolf Hitler refuge in
14. Rome Statute, Art. 7.1.
15. Rome Statute, Art. 7.2.
16. May, Crimes against humanity, p. 215.
185
186
retributivist inhumanity
CONCLUSION
188
conclusion
conclusion
189
190
conclusion
conclusion
191
answer to that question. Not the question: What is the basis of moral
blameworthiness? The traditional multiplicity of culpability conditions,
motives, mitigations, aggravations, and so on, answers that question. How
about the question: What is a necessary condition for tort liability? Now,
that is more like it.1
1. Joel Feinberg, Problems at the roots of law: essays in legal and political theory (Oxford: Oxford
University Press, 2003), p. 100.
2. Cf. ZeF Ak viii:366. Practical philosophy, ed. Gregor, p. 355.
3. Cf. Book 2, Chapter 1, ii.2 of Hugo Grotius, The rights of war and peace, ed. Richard Tuck
(3 vols., Indianapolis: Liberty Fund, Inc., 2005), pp. 3956.
192
conclusion
Even though Kant had the material claims of the warring parties
in mind in this passage, this remark certainly also applies in the realm
of penal law. Even in the Doctrine of right, Kant recommends the same
strategy for (civil) peace on the national level, as the following repeatedly cited passage shows:
Accordingly, every murderer anyone who commits murder, orders
it, or is an accomplice in it must suffer death; this is what justice, as
the idea of judicial authority, wills in accordance with universal laws that
are grounded a priori. If, however, the number of accomplices (correi)
4. ZeF Ak viii:344f. Practical philosophy, ed. Gregor, p. 317.
conclusion
193
Here abiding by the law is set aside in favor of preserving civil peace for
the very reason of preserving it, because civil peace is the sole prerequisite for a state of law in which laws can be issued and enforced.
This problem, to which retributivism is exposed within the Kantian
philosophy of right, is actually related, thirdly, to a fundamental
problem: retributivism is not compatible with an important principle
of the Kantian philosophy of right, that is, with the permissive law
(see Sections 2.4 and 4.4). The permissive law allows an exception
to be made to laws implementation, so long as this exception only
concerns what has occurred up to then and not that which either is
occurring in the present or will occur in the future. Such an exception
should provide for the peaceful establishment of a state of law where
the application of the law to the existing situation would lead to
regression to the state of nature or into civil war. However, the implementation of the law in the present and in the future is not allowed to
be postponed ad calendas graecas,6 but instead should occur in the
most direct way possible.7 Now, Kant defines right as being the sum
of the conditions under which the choice of one can be united with
the choice of another in accordance with a universal law of freedom,8
by which the power of choice (Willkur) of all human beings therefore, also of the criminal is meant. Thus, if there is in fact a way
enabling one to reintegrate the criminal into society in the most direct
5. RL Ak vi:334. Practical philosophy, ed. Gregor, p. 475.
6. ZeF Ak viii:344f. Practical philosophy, ed. Gregor, p. 321.
7. Cf. RL Ak vi:247. Practical philosophy, ed. Gregor, pp. 4012. Also, cf. Reinhard Brandt,
Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kants Rechtslehre, in Brandt
(ed.), Rechtsphilosophie der Aufklarung (Berlin: De Gruyter, 1982), pp. 23385.
8. RL Ak vi:230. Practical philosophy, ed. Gregor, p. 387.
194
conclusion
way, then this way is commanded. If this way actually exists at all, then
it is, per definitionem, rehabilitative punishment.
The categorical imperative of right consists not only in an ideal
legal system, but also in the steps that are necessary for either the
establishment or the reestablishment of this legal system. Writings
such as Toward perpetual peace and Idea for a universal history with a
cosmopolitan purpose belong to the latter dimension of the categorical
imperative of right. Even though } 49e devoted to penal law is an
editorial section of the Doctrine of right, which has to do primarily with
the ideal legal system, and therefore with the first dimension, penal
law can be categorized into the second dimension.
In this respect, Gustav Radbruchs dichotomy between right as a
realm of justice in compensation (commutative justice) and an extralegal realm of distributive justice and social utility is to be resolutely
rejected.9 Penal law, which incontrovertibly constitutes an essential
component of right, pertains neither to commutative justice nor to
corrective justice. The former presupposes the agreement of all
parties over the conditions and the items of the trade. Be it only for
this reason, punishment cannot rest on commutative justice. Not even
retributivism can be described as a trade. Eye for eye, tooth for
tooth10 or the retribution of what one merits does not mean
trading eyes or teeth, or trading the deserts of a human being for
the infliction of evils by another human being. Now, the return to the
status quo ante pertains to corrective justice. However, how can the status
quo ante of a murder victim be reestablished even to a small extent?
In this respect, Cesare Beccarias rhetorical question is irrefutable:
Can the wailings of a wretch, perhaps, undo what has been done
and turn back the clock?11 The punishment, rather, has to do with
distributive justice, because it assures every human being of integration
or of reintegration into the commonwealth regardless of his or her
achievements or actions up to then for the simple reason that every
human being as a being capable of reason has an innate, unforfeitable
right to such.
9. Cf. Gustav Radbruch, Rechtsphilosophie, ed. Erik Wolf, seventh edition (Stuttgart:
K. F. Koehler, 1970), p. 265.
10. Lev. 24:20 (KJV).
11. Chapter 12, entitled The purpose of punishment, in Cesare Beccaria, On crimes and
punishments, in Beccaria, On crimes and punishments and other writings, ed. Richard
Bellamy, trans. Richard Davies (Cambridge: Cambridge University Press, 1995), p. 31.
conclusion
195
Fourthly, the categorical legal imperative of integration or reintegration into the commonwealth likewise derives a deeper grounding
in the Kantian foundation of morality, namely in the empirical circumstances of the exercise of autonomy in a limited being capable of
reason who can also act against his or her duty, irrationally. On the
one hand, a human being should bear the responsibility for his or her
actions because he or she has freedom of action. On the other hand,
the consequences of actions carried out in the past should not lead to
the consequence that a person can no longer act freely in the future.
These two dimensions do not limit one another. The consequences of
the actions hitherto done are limited by the commandment that
requires treating every human being as a being capable of reason with
an inalienable freedom of action. Now, this inalienable freedom of
action is not limited by the consequences of past actions. Rather, it is
limited by the same inalienable freedom of action of the other human
beings. It is only for this reason that the Kantian concept of right is an
object of the categorical imperative, which we may also term the
categorical imperative of right, to borrow Otfried Hoffes
expression.12
We therefore find a twofold hierarchization of moral goods that
can collide with one another. First, the commonwealth would receive
precedence over individual freedom in the case of a collision, which
is why it is allowed provisionally either to limit or to suspend the
freedom of the criminal. Secondly, in the case of a collision, individual
freedom receives precedence over the consequences, which the
actions of individuals should otherwise imply; this is why crime should
be forgiven by society with consideration for the first priority, that is,
with consideration for the security of the commonwealth in the most
direct manner possible.13
At the center of the Kantian idea of autonomy, under the guidance
of which we always ought to act and to which, therefore, the legal
system is subject, is the forward-looking project of the full
12. Cf. chapter 5 in Otfried Hoffe, Categorical principles of law: a counterpoint to modernity
(University Park: Pennsylvania State University Press, 2002).
13. This very arrangement of priority holds equally, by the way, for other realms in the
Kantian doctrine of right, for example property: cf. Jean-Christophe Merle (ed.),
Eigentumsrecht, in Merle (ed.), Johann Gottlieb Fichte: Grundlage des Naturrechts
(Berlin: De Gruyter, 2001), pp. 15972; and Section 2.3 in Jean-Christophe Merle,
Justice et progre`s: contribution a` une doctrine du droit economique et social (Paris: Presses
Universitaires de France, 1997).
196
conclusion
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INDEX
204
index
example, deterrence through, 93, 95,
104, 138
exclusion from society, 94, 96, 99, 100,
1023, 105, 1534, 167;
see also banishment
expiation contract, 94, 99, 102
expressivism, 72, 175
Feinberg, Joel, 191
Feuerbach, Anselm, 2, 142
Fichte, Johann Gottlieb, 14, 42, 83,
85106, 11618, 134, 144, 153,
178, 188
Fichtelberg, Aaron, 178
Flechtheim, Ossip K., 108, 11113
Fletcher, George P., 167
force, 1324
forgiveness, 78, 81
Forster, Wolfgang, 105, 106
Foucault, Michel, 1, 156
freedom of action, 195
freedom of the will, 35, 624, 65
Garapon, Antoine, 173
goal of punishment, 723, 162, 164,
165, 189, 191
Grotius, Hugo, 19, 21, 191
Grundgesetz (German Basic Law), 176
Guillarme, Bertrand, 111
guilt, 150, 175, 183, 191
Gutmann, Amy, 185
Hampton, Jean, 72, 127
happiness, 55, 756, 778, 80
harm principle, 37
Hart, H. L. A., 70, 73, 82
Hassemer, Winfried, 4, 5, 10, 107
Hegel, Georg Wilhelm Friedrich, 10,
13, 14, 42, 83, 85, 105, 10745,
149, 155, 164, 188
highest good, 55, 756, 90
Hill, Thomas E., 44, 55, 72, 80, 149
Hitler, Adolf, 182, 184
Hobbes, Thomas, 2, 18, 19, 1512
Hoffe, Otfried, 4, 6, 25, 34, 44, 51, 56,
107, 108, 195
Hohfeld, Wesley Newcomb, 92
Holtman, Sarah, 44
Honderich, Ted, 108
Honneth, Axel, 126
Hosle, Vittorio, 42
Hufeland, Gottlieb, 26
humanity, crime against, see crime
against humanity
humanity as an end in itself, 323, 40,
46, 61, 64, 93, 119
humiliation, 157
205
206
index
responsibility, 67, 13
ressentiment, 154, 161
restoration of right, 112, 113, 1278, 194
retaliation, 6, 72, 90, 112, 115, 117, 1201,
1257, 141, 1434
retribution, 6, 8, 49, 507, 74, 92, 127,
141, 161
retributivism, 2, 34, 6, 7, 214, 43, 517,
72, 812, 110, 119, 141, 143, 147,
181, 183, 192
revenge, 56, 78, 812, 114, 1256, 135,
137, 1612, 163; see also vengeance
Ricur, Paul, 5
right, concept of, 857, 89, 90, 97, 99,
101, 116, 1445
right of necessity, 46, 52, 94, 193
Ripstein, Arthur, 80, 108, 139
Rosen, Fred, 3, 74
Roxin, Claus, 7, 9, 11, 12, 13, 107, 1478
savage, 67
Scala, Klaus, 108
Schadenfreude, 149
Scharf, Michael P., 179
Scheid, Don E., 44, 51
Schild, Wolfgang, 108
Schmalz, Theodor, 26
Schopenhauer, Arthur, 2, 107
Schroth, Ulrich, 6, 9
Schwarzschild, Steven S., 59
security, public, 95, 140, 1579, 190,
191, 195
Seelmann, Kurt, 108, 111, 11617, 141
self-defense, right of, 91, 137, 191
Seneca, 17, 73
Shue, Henry, 2
Sidgwick, Henry, 17, 20, 23
slavery, 56, 601, 66, 95
social contract, 85, 94, 102
Sorell, Tom, 60
sovereign, 91
state of nature, 52, 53, 57, 589, 101,
154, 181, 193
statute of limitation, 1745, 1846, 189
Stillman, Peter G., 108
suffering, see torture
suicide, 37, 59, 61
talion law, 17, 1920, 213, 512,
567, 87, 956, 101, 113, 1212,
127, 142
teleology, 3941, 65
Thompson, Dennis, 185
threat of punishment, deterrence
through, 2, 468, 70, 934, 98,
1045, 119
Tokyo, tribunal of, 171, 179
index
torture, 1, 5, 20, 48, 96, 106, 128,
1523, 154, 157, 163, 166, 1689,
184, 185, 186
Tunick, Mark, 108
tyrannicide, 176
universalization, 56
usefulness, 99, 1001
utilitarianism, 18, 44, 51, 68, 100
van den Haag, Ernest, 2
Vattel, Emer de, 191
vengeance, 767
victim, 9, 81, 92, 127, 130, 137, 155,
157, 15960, 162, 163, 171, 173,
186, 190, 194
207
virtue, 746, 77
Voltaire, 170
war: civil, 156, 159, 193; international,
1912; see also peace, civil
Wellman, Christopher H., 186
wickedness, inner, 43, 55, 734, 75,
76, 778, 79, 80, 101, 102, 122,
176, 184, 1901
Willascheck, Marcus, 34
Wolf, Jean-Claude, 55, 107
Wolff, Christian, 2, 39
Wood, Allen W., 36, 1089, 114
worthiness of punishment, 73, 812
Zaczyk, Rainer, 93