Kant The Death Penalty
by Archil Avaliani
Immanuel Kant, a great philosopher of ethics, formulated one of the first and the most scientific approaches to the death penalty part of the Categorical Imperative. According to it "society and individuals must act in such a way that you can will that your actions become a universal law for all to follow" (Capital Punishment). Some scientists think, "Kant's approach is actually superficial and fundamentally self-contradictory (Wright, 2000, p.559).
The aim of this paper is to review Kant's approach to the death penalty and to discuss different aspects of his theory. It is not subject of the paper to discuss if Kant's view on the death penalty is morally right or not. Present theories on the death penalty are not analyzed either.
This paper is a close discussion of Kant's death penalty. I will try to understand and review the major aspects of this theory and in conclusion express some of my thoughts on Kant's concept of death penalty.
Kant's Approach on the Death Penalty
Kant's doctrine on crime and capital punishment is stated in his work "Metaphysics of Morals" (Part One), written in 1797. This doctrine is based on and derived from Kant's ethical views that were developed in his work "Criticism of Practical Mind" (1788). That's why it is not accidental that Kant's ideas on crime and death penalty are given in his work that has an ethical nature (Metaphysics of Morals).
Kant starts Metaphysics of Morals with the definition of "crime" and "the right to punish". In his opinion neither a society, nor a state can exist without laws. If there is no law, there is no society and no state. Therefore enforcement of the law, which is the society's foundation, means protection of the society and the state. Thus, any person violating the law loses the right to be a society member, opposes social order and consequently must be deemed guilty and punished. The right to administer punishment is the right of a ruler to make violators and criminals suffer. It is impossible to punish the ruler himself since the authority to administer punishment belongs to him. A ruler can retire due to his crimes but cannot be punished.
Kant's definition of the crime is derived from the above statements. A crime is a violation of social laws i.e. it is committed against the society and therefore subject to punishment. People who observe the society's laws are the society members, while people who commit crimes lose the right to be the society members and must be punished.
Violation of law can be a personal or a social crime. A personal crime is committed against a person. Such crimes are reviewed by a civil court. A crime committed against the society must be reviewed and punished under the criminal code. Kant differentiates private and public crimes: "Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime, or also as a public crime" (Kant, 1996). In his opinion private crimes are such as deceiving a person while selling goods, or abuse of someone's trust etc., while public crimes are coinage offence, theft, fight etc., because these crimes are damaging not just for one person, but the whole society. This does not mean that a private crime is less serious compared to the public one and therefore subject to a lighter punishment. A crime is a crime even though some crimes might be graver than others, but the main difference between personal and social crimes is whether the damage is incurred by one person or the whole society. Even in those cases when a crime is committed against one person, this person has no right to punish the violator. Administration of punishment is always the state's function. If a victim punishes the violator himself, this is no longer deemed to be a punishment but revenge.
The law always provides for punishing violators. If a violation or a crime is unpunished it means that the law is weak. In this case the law cannot administer justice. Weakness of the legal system indicates that the society itself is weak. Law administration is one of the main characteristic features of the state. Its absence means that there is no state. A sentence passed by a court differs from a natural punishment, because in the first case we are dealing with the punishment administration, while in the second a guilty person punishes himself: "Judicial or juridical punishment is to be distinguished from natural punishment, in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator" (Kant, 1996). The court does not take self-punishment into consideration, because this function must be administered by the state and not a private person, even when the person is guilty himself.
According to Kant punishment is a legal act that definitely has a certain basis. This basis is a crime. If there is no crime there must be no punishment. Punishment of innocent people is a result of a worthless legislation; this means that the legal system is unable to establish guilt and make a differentiation between innocent people and criminals.
An action cannot be considered criminal if there is no corresponding decision made by a jury. The only goal is inflicting a deserved punishment upon a guilty person. A person can not be punished just for sake of the society's benefit i.e. in order to prevent others from committing the same crime. This would mean that a guilty person is treated not as a criminal deserving punishment but as a means to benefit the society, which is inadmissible: "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" (Kant, 1996). No one has a right to do so, even the state, because this kind of approach would imply the possibility of punishing an innocent person to prevent him from committing a crime. Even more so, this approach would not require punishment of criminals, because the basis for punishment would be not "crime", but "benefit". The "punishment" concept would lose its meaning if a crime did not serve as a basis for punishment. In this case the punishment would be groundless and nothing else but a denial of justice.
The fact that the goal of punishment is to inflict damage on a criminal makes punishment more like revenge. It means: "eye for eye". This wording can be used to express the concept of fair punishment. Again, this does not imply that punishment is administered for the sake of benefit i.e. in order to teach criminals or the whole society a lesson. Thus a punishment is retribution in a legal form. It must not serve as an instrument to scaring or improve someone, but only to penalize.
A criminal does not realize that the damage inflicted by him on the society is no less harmful for himself as a member of this very society. If you steal from someone, you steal from yourself too; if you beat or kill someone, you harm yourself too. A human being cannot exist outside a society. Therefore harming a society means harming its each and every member. If a person thinks that theft is admissible for him, he must realize that he might become a victim too. This means that if you steal or kill, you establish a precedent and next time it might be you who suffers from the same kind of crime.
The above formula: "eye for eye" is mostly admissible and allows fair punishment, but it is not always acceptable either. E.g. a monetary penalty must not be set as a compensation for an insult, because this way a wealthy person can always insult the poor and pay money. An insulted poor person might even apologize and kiss the offender's hand, because the social position of the poor person is lower. This would not be fair.
Kant absolutely insists on capital punishment of murderers. According to Kant "whoever has committed murder, must die" (Kant, 1996), because no matter how difficult life might be, it is still better than death: "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" (Kant, 1996). A court decision is mandatory for punishing a murderer. A society that does not sentence a murderer to death turns into an accomplice of this crime.
Kant quotes the opinion of an Italian lawyer Beccaria Cesare that nobody has a right to deprive a person of a right to live, therefore death penalty is unjust. Kant sharply criticizes this opinion and calls it "Sophistic". According to Kant it is not clear why a state should not have a right to kill a murderer. He does not accept the argument that nobody would be willing to sign a contract with the state if it included a provision allowing the state to kill him.
In Kant's opinion a death penalty is justified only regarding murder and not any other crime, unless it causes a very substantial damage to the society. It is impossible to allow a situation where a murderer would be entitled to any legal rights and would be able to justify his actions. Kant believes that we cannot possibly replace capital punishment. If the death penalty is abolished what could be used instead? Life imprisonment is an extremely shameful measure, worse that a death penalty. Suppose there are two prisoners sentenced to death. One prefers death and the other is ready to accept shameful life in prison to survive. Whish one of the two is better? Kant thinks that the first: "I say that the man of honor would choose death, and the knave would choose servitude" (Kant, 1996). Based on this logic Kant concludes that by abolishing capital punishment we impose an even more severe punishment which is unfair because a murderer deserves death and not something worse.
A person sentenced to death might agree to allow usage of his body for medical experiments (if he hopes to survive). Such medical experiments might be beneficial to the society, but Kant considers this unacceptable because justice will not be justice if it is sold for a price.
According to Kant there are circumstances when a murderer deserves lighter penalty. E.g. sometimes a mother kills her child to avoid shame; people die fighting a duel to defend their honor etc. In these cases law provides for milder punishment but as the time passes, the society becomes more and more liberated from those indulgences and the principle requiring capital punishment for murderers is still valid.
If a criminal is not punished it means that the society has a controversial nature. This way the society undermines itself. If punishment of an innocent person is a mistake of justice administration, failure to punish a criminal indicates that the absence of justice, which is worse than mistake.
Kant thinks that besides murderers, people who commit lese-majesty also deserve death. Lese-majesty is a crime equal to death, because it might bring very significant misfortune upon each member of society. As an example Kant describes Karl Edward Stuart's unsuccessful attempt to usurp the throne (1745-1746). A lot of people died due to this rebellion, including Lord Balmerino. Of course the rebels did not have the same goals. Some fulfilled their duties towards Stuarts' dynasty, others had some private interests.
A punishment must always correspond to the crime. It is a mistake to impose different punishment for the same crime, even in those cases when the criminal has no honor. E.g. let's get back to the above example when one prisoner prefers death and the other shameful life imprisonment. A death sentence would be an equal punishment for the both, but a life imprisonment will not, because it would be a more severe punishment for the first prisoner, who prefers death. Therefore, when a sentence is passed on rebels a death sentence would be highest measure.
In Kant's opinion for a murderer sentenced to death it is unallowable to appeal for pardon or lighter punishment. If the murderer is pardoned or a lighter punishment is set, the justice will be in a ridiculous condition. Legal authorities have no right to allow such a situation but if they still choose to do so, it means that legal authorities contradict themselves. Legal authorities must not violate justice, arbitrariness regarding justice can not be allowed. A legal system must strictly abide by the law, because observation of laws is an expression of justice.
Kant several times stresses that a murderer shall die by all means. This is required by the justice as an "a priori" established by law: "The categorical imperative of penal justice, that the killing of any person contrary to the law must be punished with death, remains in force" (Kant, 1996). If there are many criminals deserving a death sentence, application of capital punishment becomes impossible because it would lead to a significant decrease of the population number. In this case capital punishment must be replaced with deportation. Even though this measure is not in compliance with the law, the punishment must be executed based on a personal order and be deemed as a specific form of pardon.
A person is punished not because such is his wish, but because he committed an action deserving punishment. If a person is willing to be punished or thinks that he deserves punishment, it is no longer a punishment, since punishment must be related to suffer and pain while a desired punishment no longer causes it.
At the same time, Kant believes that those people who determine the laws must not be involved in any crimes. If something like that happens the person will not be able to fulfill legislative functions. If such a person still carries out the function and passes a sentence on himself, he will have to administer the punishment too. The functions of passing and administering the sentence will be combined in one person.
Kant differentiates two types of crime that deserve capital punishment, but he points out that it is still questionable whether the legal system is authorized to punish such criminals. Both of these crimes are based on honor. I have already discussed these situations earlier. In one case a mother kills her child to avoid shame: in Kant's opinion it is shameful to give birth to an illegal child, so there are certain circumstances that mitigate punishment. The other case is a duel. For a person who has dignity an insult worse than death. During a duel the insulted person risks his life. It means that for him dignity is more precious than life. But the state legislation does not always reflect the principles of honor and dignity i.e. the legislation might not view honor as proper justification for murder: "In all instances the acts are undoubtedly punishable; but they cannot be punished by the supreme power with death" (Kant, 1996). In this situation people might consider the legislation unjust.
Since the relevant punishment for murder is always death, pardon is out of question. It is impossible to pardon a murderer based on the state legislation. Such an action would be in controversy with the public opinion and can cause a conflict between the public and legislation.
According to Kant only the head of the state can have the authority to pardon and only if the insult has been directed against the head of the state himself. It will be a pardon granted by a private person, not provided for in the legislation.
Kant historian Keno Fisher writes, that this last view is neither clear nor correct. It is not clear because firstly Kant is talking about the head of the state but the right to pardon belongs to the executive government. Secondly, insulting the head of the state is the worst possible offence that cannot be pardoned. The head of the state actually has less right to pardon than anyone else. Insulting the head of the state is the same as insulting the state itself. In Fisher's opinion it is not clear why Kant views an insult of the head of the state as a private issue, when a monarch actually personifies the state authority.
According to Kant punishment is the head of the state's function, thus he himself can not be punished. If the head of the state violates the law he must retire (or be forced to retire): "The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him" (Kant, 1996).
In Metaphysics of Morals Kant gave a deep analysis of such concepts as "crime" and "punishment". Both of these concepts have a social nature. The society and state are founded upon certain legal and moral norms and laws violation of which is very harmful for the society. Therefore a violator of these laws must be punished.
Kant is absolutely correct saying that a punishment cannot be assessed from the point of view of its benefit, because then innocent people can also be punished if it is beneficial for the society. This would be unjust.
In my opinion Kant is definitely right to demand capital punishment for murderers. In many countries, including my home country Georgia the death sentence has been replaced with the life sentence. According to Kant this seemingly human act is not human at all. Any person who can feel shame would prefer death to a lifelong imprisonment, while the life of those who have no dignity or shame is worthless. This is briefly Kant's view, which seems to be correct.
But I would like to disagree with the genius philosopher's opinion that the capital punishment cannot be used against the head of the state no matter how guilty he or she is. Kant is convinced that the maximum possible punishment should be resignation. In my opinion the head of the state has the biggest responsibility towards the people and country, therefore in case of treason he must be sentenced to death. Just a resignation would not be enough.
Kant is correct stating that a person must not be punished just because this would be beneficial for the society, because in this case punishment of an innocent person can also be justified. At the same time I would like to disagree with the view that the capital punishment does not have a fostering function. Punishment of a criminal is not just a personal retribution but also a warning to other society members not to commit the same offence. The punishment plays a certain role in influencing the criminal's morals too (of course if it is not a capital punishment). That's why the prisons are also called corrective or reformatory houses.
In general it must be noted that Kant's doctrine on crime and punishment contains many valuable ideas on issues that are widely discussed in the modern world. It is still very useful for contemporary legislators and moralists.
Asmus (1973) V. Immanuel Kant, Moscow: Nauka, (in Russian).
Capital Punishment, Retrieved on March 24th From: http://www.digitaltermpapers.com/termpapers/Legal_Issues/Capital_punishment_misc10.shtml
Fisher, K. (1906). History of New Philosophy, vol. 5, S-Petersburg. (e-book, Russian version), "Electronic version."
Kant, I. (1996). The Metaphysics of Morals, trans. Mary Gregor, New York, Cambridge University press.
Kant, I. The Right of Punishing, Retrieved on April 1st, 2004. From: http://w1.155.telia.com/~u15525046/ny_sida_9.htm
Wright, R. (2000) The Death Penalty and the Way We Think Now, Loyola of Los Angeles Law Review, Vol. 33:533, Retrieved on March 15th, 2004 From: http://llr.lls.edu/volumes/v33-issue2/wright.pdf
© Archil Avaliani 2004