From
Immanuel Kant, Science of Right (1790)
Translated by W. Hastie
Translated by W. Hastie
Judicial or juridical punishment (poena
forensis) is to be distinguished from natural punishment (poena naturalis), in
which crime as vice punishes itself, and does not as such come within the
cognizance of the legislator. juridical punishment can never be administered
merely as a means for promoting another good either with regard to the criminal
himself or to civil society, but must in all cases be imposed only because the
individual on whom it is inflicted has committed a crime. For one man ought
never to be dealt with merely as a means subservient to the purpose of another,
nor be mixed up with the subjects of real right. Against such treatment his inborn
personality has a right to protect him, even although he may be condemned to
lose his civil personality. He must first be found guilty and punishable,
before there can be any thought of drawing from his punishment any benefit for
himself or his fellow-citizens. The penal law is a categorical imperative; and
woe to him who creeps through the serpent-windings of utilitarianism to
discover some advantage that may discharge him from the justice of punishment,
or even from the due measure of it, according to the Pharisaic maxim: "It
is better that one man should die than that the whole people should
perish." For if justice and righteousness perish, human life would no
longer have any value in the world. What, then, is to be said of such a
proposal as to keep a criminal alive who has been condemned to death, on his
being given to understand that, if he agreed to certain dangerous experiments
being performed upon him, he would be allowed to survive if he came happily
through them? It is argued that physicians might thus obtain new information
that would be of value to the commonweal. But a court of justice would
repudiate with scorn any proposal of this kind if made to it by the medical
faculty; for justice would cease to be justice, if it were bartered away for any
consideration whatever.
But what is the mode and measure of
punishment which public justice takes as its principle and standard? It is just
the principle of equality, by which the pointer of the scale of justice is made
to incline no more to the one side than the other. It may be rendered by saying
that the undeserved evil which any one commits on another is to be regarded as
perpetrated on himself. Hence it may be said: "If you slander another, you
slander yourself; if you steal from another, you steal from yourself; if you
strike another, you strike yourself; if you kill another, you kill
yourself." This is the right of retaliation (jus talionis); and, properly
understood, it is the only principle which in regulating a public court, as
distinguished from mere private judgement, can definitely assign both the
quality and the quantity of a just penalty. All other standards are wavering
and uncertain; and on account of other considerations involved in them, they
contain no principle conformable to the sentence of pure and strict justice. It
may appear, however, that difference of social status would not admit the
application of the principle of retaliation, which is that of "like with
like." But although the application may not in all cases be possible according
to the letter, yet as regards the effect it may always be attained in practice,
by due regard being given to the disposition and sentiment of the parties in
the higher social sphere. Thus a pecuniary penalty on account of a verbal
injury may have no direct proportion to the injustice of slander; for one who
is wealthy may be able to indulge himself in this offence for his own
gratification. Yet the attack committed on the honour of the party aggrieved
may have its equivalent in the pain inflicted upon the pride of the aggressor,
especially if he is condemned by the judgement of the court, not only to
retract and apologize, but to submit to some meaner ordeal, as kissing the hand
of the injured person. In like manner, if a man of the highest rank has violently
assaulted an innocent citizen of the lower orders, he may be condemned not only
to apologize but to undergo a solitary and painful imprisonment, whereby, in
addition to the discomfort endured, the vanity of the offender would be
painfully affected, and the very shame of his position would constitute an
adequate retaliation after the principle of "like with like." But how
then would we render the statement: "If you steal from another, you steal
from yourself?" In this way, that whoever steals anything makes the
property of all insecure; he therefore robs himself of all security in
property, according to the right of retaliation. Such a one has nothing, and
can acquire nothing, but he has the will to live; and this is only possible by
others supporting him. But as the state should not do this gratuitously, he
must for this purpose yield his powers to the state to be used in penal labour;
and thus he falls for a time, or it may be for life, into a condition of
slavery. But whoever has committed murder, must die. There is, in this case, no
juridical substitute or surrogate, that can be given or taken for the
satisfaction of justice. There is no likeness or proportion between life,
however painful, and death; and therefore there is no equality between the crime
of murder and the retaliation of it but what is judicially accomplished by the
execution of the criminal. His death, however, must be kept free from all
maltreatment that would make the humanity suffering in his person loathsome or
abominable. Even if a civil society resolved to dissolve itself with the
consent of all its members- as might be supposed in the case of a people
inhabiting an island resolving to separate and scatter themselves throughout
the whole world- the last murderer lying in the prison ought to be executed
before the resolution was carried out. This ought to be done in order that
every one may realize the desert of his deeds, and that blood-guiltiness may
not remain upon the people; for otherwise they might all be regarded as participators
in the murder as a public violation of justice.
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Immanuel Kant on Blood
Guilt
[PHOTO SOURCE: http://www.azquotes.com/quote/1082786]
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The equalization of punishment with
crime is therefore only possible by the cognition of the judge extending even
to the penalty of death, according to the right of retaliation. This is
manifest from the fact that it is only thus that a sentence can be pronounced
over all criminals proportionate to their internal wickedness; as may be seen
by considering the case when the punishment of death has to be inflicted, not
on account of a murder, but on account of a political crime that can only be
punished capitally. A hypothetical case, founded on history, will illustrate
this. In the last Scottish rebellion there were various participators in it-
such as Balmerino and others- who believed that in taking part in the rebellion
they were only discharging their duty to the house of Stuart; but there were
also others who were animated only by private motives and interests. Now,
suppose that the judgement of the supreme court regarding them had been this:
that every one should have liberty to choose between the punishment of death or
penal servitude for life. In view of such an alternative, I say that the man of
honour would choose death, and the knave would choose servitude. This would be
the effect of their human nature as it is; for the honourable man values his
honour more highly than even life itself, whereas a knave regards a life,
although covered with shame, as better in his eyes than not to be. The former
is, without gainsaying, less guilty than the other; and they can only be
proportionately punished by death being inflicted equally upon them both; yet
to the one it is a mild punishment when his nobler temperament is taken into
account, whereas it is a hard punishment to the other in view of his baser temperament.
But, on the other hand, were they all equally condemned to penal servitude for
life, the honourable man would be too severely punished, while the other, on
account of his baseness of nature, would be too mildly punished. In the
judgement to be pronounced over a number of criminals united in such a
conspiracy, the best equalizer of punishment and crime in the form of public
justice is death. And besides all this, it has never been heard of that a
criminal condemned to death on account of a murder has complained that the
sentence inflicted on him more than was right and just; and any one would treat
him with scorn if he expressed himself to this effect against it. Otherwise it
would be necessary to admit that, although wrong and injustice are not done to
the criminal by the law, yet the legislative power is not entitled to
administer this mode of punishment; and if it did so, it would be in
contradiction with itself.
However many they may be who have
committed a murder, or have even commanded it, or acted as art and part in it,
they ought all to suffer death; for so justice wills it, in accordance with the
idea of the juridical power, as founded on the universal laws of reason. But
the number of the accomplices (correi) in such a deed might happen to be so
great that the state, in resolving to be without such criminals, would be in
danger of soon also being deprived of subjects. But it will not thus dissolve
itself, neither must it return to the much worse condition of nature, in which
there would be no external justice. Nor, above all, should it deaden the
sensibilities of the people by the spectacle of justice being exhibited in the
mere carnage of a slaughtering bench. In such circumstances the sovereign must
always be allowed to have it in his power to take the part of the judge upon
himself as a case of necessity- and to deliver a judgement which, instead of
the penalty of death, shall assign some other punishment to the criminals and
thereby preserve a multitude of the people. The penalty of deportation is
relevant in this connection. Such a form of judgement cannot be carried out
according to a public law, but only by an authoritative act of the royal
prerogative, and it may only be applied as an act of grace in individual cases.
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Immanuel Kant on an immoral society
[PHOTO SOURCE: http://www.azquotes.com/quote/652808]
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Against these doctrines, the Marquis
Beccaria has given forth a different view. Moved by the compassionate
sentimentality of a humane feeling, he has asserted that all capital punishment
is wrong in itself and unjust. He has put forward this view on the ground that
the penalty of death could not be contained in the original civil contract;
for, in that case, every one of the people would have had to consent to lose
his life if be murdered any of his fellow citizens. But, it is argued, such a
consent is impossible, because no one can thus dispose of his own life. All
this is mere sophistry and perversion of right. No one undergoes punishment
because he has willed to be punished, but because he has willed a punishable
action; for it is in fact no punishment when any one experiences what he wills,
and it is impossible for any one to will to be punished. To say, "I will
to be punished, if I murder any one," can mean nothing more than, "I
submit myself along with all the other citizens to the laws"; and if there
are any criminals among the people, these laws will include penal laws. The
individual who, as a co-legislator, enacts penal law cannot possibly be the
same person who, as a subject, is punished according to the law; for, qua
criminal, he cannot possibly be regarded as having a voice in the legislation,
the legislator being rationally viewed as just and holy. If any one, then,
enact a penal law against himself as a criminal, it must be the pure
juridically law-giving reason (homo noumenon), which subjects him as one
capable of crime, and consequently as another person (homo phenomenon), along
with all the others in the civil union, to this penal law. In other words, it
is not the people taken distributively, but the tribunal of public justice, as
distinct from the criminal, that prescribes capital punishment; and it is not
to be viewed as if the social contract contained the promise of all the
individuals to allow themselves to be punished, thus disposing of themselves
and their lives. For if the right to punish must be grounded upon a promise of
the wrongdoer, whereby he is to be regarded as being willing to be punished, it
ought also to be left to him to find himself deserving of the punishment; and
the criminal would thus be his own judge. The chief error (proton pseudos) of this
sophistry consists in regarding the judgement of the criminal himself,
necessarily determined by his reason, that he is under obligation to undergo
the loss of his life, as a judgement that must be grounded on a resolution of
his will to take it away himself; and thus the execution of the right in
question is represented as united in one and the same person with the
adjudication of the right.
CHECK THESE FOUR PREVIOUS
BLOG POSTS:
1.
IMMANUEL KANT ON THE DEATH PENALTY [ARTICLE ON THE DEATH PENALTY OF THE WEEK]
2. IMMANUEL
KANT’S PRO DEATH PENALTY QUOTE [PRO DEATH PENALTY QUOTE]
3. IMMANUEL
KANT ON BLOOD GUILT [PRO DEATH PENALTY QUOTE]
4. IMMANUEL
KANT ON AN IMMORAL SOCIETY [PRO DEATH PENALTY QUOTE]
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