What are some criticisms of Kant's view of Punishment?

Answer 1

Kant says that “only the Law of retribution” (jus talionis) [i.e. “an eye for an eye and a tooth for a tooth”] “can determine exactly the kind and degree of punishment” (p. 97). Is this reasonable?
• Is Kant right that the only proper punishment for stealing is being forced into convict labour, and that the only proper penalty for murder is death?

• Killing the Last Murderer in Prison, and Bloodguilt. One of the most famous passages from the Metaphysics of Morals (from which the ‘Elements of Justice’ is drawn) goes like this (p. 98): “Even if a civil society were to disband itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves throughout the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in the public violation of legal justice.”
What do you make of Kant’s reasoning here? Is he right? What about this concept of ‘bloodguilt’? Should it have any place in Kant’s system? How are we to make sense of it?

• The Case of Too Many Accomplices. On p. 100, Kant says that one case in which the death penalty should not be prosecuted, and this is where there are so many accomplices to a murder that applying the death penalty would bring a danger of dissolving the whole state, and ‘returning to the state of nature’. This is a slightly strange argument, especially as Kant suggests ‘deportation’ as an alternative to death, and as he takes “adversely affecting the feelings of the people by the spectacle of such butchery” into account.
What do you make of it? Does this kind of special provision fit in well with the rest of Kant’s view?

• Maternal Infanticide and Military Duelling. Perhaps the strangest part of Kant’s discussion comes at the end of the passage we’ve been reading (pp.102-103). It is very difficult to know what to make of these cases.
• He describes these two as “two crimes deserving of death with regard to which it still remains doubtful whether legislation is authorized to impose the death penalty. In both these cases the crimes are due to the sense of honour. One involves the honour of womanhood, the other military honour. Both kinds of honour are genuine, and duty requires that they be sought after by every individual in each of the two cases.”

• Kant seems to be saying both that it is, in some sense, right for a mother to kill her illegitimate child (!), and for soldiers to engage in duels in order to bolster their military prestige. Yet, at the same time, he holds that the killings in each case make the killer’s worthy of death, and that the death penalty must be carried out.
• Is there any way of making sense of this part of Kant’s discussion? What do you make of his assertion that “A child born into the world outside marriage is outside the law (for this is [implied in the concept of] marriage), and consequently it is also outside the protection of the law.” Is there any way of giving a sensible construal of what Kant says here, or does he really just go off on a mad tangent at this point?

4. Herbert Morris: ‘Persons and Punishment’
• Interestingly, although Morris is so condemnatory of the ‘therapy system’, he apparently spent most of his adult life engaged in therapy(!). So, one wonders what his psychiatrist would have made of this essay….!

• Morris says that (p.107), “A person has not derived an unfair advantage if he could not have restrained himself or if it is unreasonable to expect him to behave other wise than he did … Punishment in such cases, then, would not equalize but rather cause an unfair distribution of benefits and burdens.” How wide would be the consequences of applying this belief? What would its consequences be?
• Morris tells us that “A person has a right to institutions that respect his choices. Our punishment system does; our therapy system does not.” (p. 110). Is this true? If so, does it really provide us with good reasons for accepting a retributivist account of punishment, rather than a ‘consequentialist’ theory of punishment?
• What do you make of some of Morris’s central criticisms of the ‘therapy system’? Is he fair in assimilating all non-retributivist accounts of punishment to this ‘therapy system’? Is he right that this approach (1) Downgrades the status of humans to that of ‘creatures’?; (2) Undermines the basis for a sense of personal achievement?; (3) Involves a lack of respect for the reasoning and choices of individuals? (p.111). If so, do these provide him with good enough arguments against non-retributivist theories of punishment?
• What does Morris mean when he says that: “When what we do is met with resentment, we are indirectly paid something of a compliment?” Is this true? What, if anything, follows from it?

Answer 2

Some criticisms:

1. His view of Punishment is contradictory to his view of Categorical Imperative.

2. His view of Punishment is based on action, not on reason.

3. His belief of holding a society responsible for someone who is not put to death for another death.

4. His view of not punishing the highest office of a society.


I hope these help! Good luck.

Answer 3

no mercy (Paul Fereabend)