Analysis of The Retributive Theory of Punishment by Immanuel Kant - Coursework Example

Analysis of “The Retributive Theory of Punishment” by Immanuel Kant The word crime or baddeed is not a new in dictionaries, but have been present since the creation of this world. People in different eras and time had have been committing crimes and are sometimes successful in escaping punishment or are sometimes unfortunate enough to be captured and treated as warranted. As governments and laws have been changing hands, criteria for punishment have also evolved with the passage of time as the definition of crime is also expanding. On the other hand, the word that arises between crime and punishment is justification. How is it possible to justify a punishment concerning a particular type of crime? The answer and other aspects revolving around this question will be discussed with the help of the article by Kant, where he expounds on the retributive nature of punishment. According to Kant, a person should be punished just because he committed a crime, so is this statement universally correct? Or are there any alternatives that can propound the essence of the meaning behind this statement, without being rigid. Thus this paper is set to discuss the contradiction between Kant’s ethical and political philosophy, legal and political theory concerning punishment and Kant’s incomprehension of deterrence theory of punishment. Starting with the first thesis, this talk about the ethical and political philosophy of Kant and why they seem to be at war. As stated in his article that “the penal law is a categorical imperative” (Kant, 2005), which means that punishment is something that is needed by the categorical imperative and is also related with the obtrusive or arguable intention of the criminal. This concept gives people of the notion that the ethical philosophy of Kant can be seen in his legal philosophy, which is not true very much (Hill, 1997). In addition to this, the ethical side of Kant proposes that the motivation and intention of the wrong doer should be considered when any consequences are to be judged. For instance, if a person committed crime such as murder, so before punishing him his intention, motivation and circumstances should be examined, maybe he committed the act to defend him/herself is not a suitable candidate to be hanged. Howbeit, in his article Kant provides that anybody who ever has violated or distorted the rights of other and had been a source for immoral conduct in the society is to be punished, in order to restore discipline in the society. Kant also goes as far as to state that punishing the offender is not only a right of society, but their duty as well and failure to do so will result only in guilt for the community (Byrd, 1989). Hence, due to this contradiction in Kant article, the idea of his legal and ethical philosophy is bound to be futile. The second thesis explores the reason behind Kant extreme choice of retributive theory. Upon reading the article it is very clear that the justification which Kant offers for the choice of punishment is to eliminate the possibilities of other people committing crime and eradicating those hurdles that are plays as hindrance for the freedom of the people residing in the society (Fletcher, 1999). He also believes that if criminals will not be punished as befitted, then the whole human race will be perished, therefore all those who take part in committing a wrong deeds needs to be punished, as he states “It is better that one man should die than that the whole people should perish”. Another justification given by Kant for his choice of punishment is the Universal Principle of Right, which is also the basis of his legal philosophy and supports the concept of valuing freedom above all. Furthermore, the reason behind his justification is that the society needs to be a civil one and hence, things which ensure this step are correct and always welcomed. He further argues that the fabrication of a civil society can only be possible when the rights of the people are being given and not violated (Rychlak, 1990), so this again allows the retributive theory of punishment under the public law. In addition to this, the state of nature, as described by Kant is where there is no authority to see whether anyone’s right is being distorted or not and this is one of the reason why Kant call state of nature as ‘devoid of justice’. Anyhow, Kant backs up his theory of punishment by stating that if the wrong doers and the criminals will not be punished, then the to-be-civil society will once again convert to a nature of state as a result of no judge to punish those who transgress other’s rights and freedom (Byrd, 1989), According to my opinion, this part of argument of Kant is correct to some extent that if the punishment will not be given to the deserving one, there is more than a possibility that the law of the society will be largely disturbed and any semblance of discipline and equality in the society will vanish. Similarly, Kant’s theory of retaliation is also a sound reason to support his retributive theory of punishment, as it states that if a person tries to breach the freedom or right of another person, he only breaches his own right and freedom. For instance, he writes 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. Nonetheless, there are critiques who have taken the task of exploring some defaults in the works of Kant and interestingly their criticisms are not so invalid. For instance, Jean-Christophe Merle in his book “A Kantian Critique of Kants Theory of Punishment” points out that there is inconsistency in Kant’s work: where at one point he talks about punishment form ethical philosophy and at another point take the stand of legal philosophy, as a result there are many contradiction in his work (Merle, 2000). The third thesis scrutinizes the Kant’s way of disagreeing with the deterrence theory of punishment. The theory in question says that the reason behind people restraining to commit crime is because of some kind of moral obligation, rather than the fear of getting caught and being punished. Similarly, this theory claims that another reason for people to not commit crime is that they acknowledge that the punishment for not obeying the law is and will be definite and acute. As Kant continuously outline two facet of punishments, both are very restrictive and superimposed, he is unable to realize the true essence of the word punishment. Punishment is carried out to 1) make the criminal realize that he had violated a law and done something wrong and 2) to deter the future crimes in the society and the deterrence theory does exactly that. However, the reason behind Kant’s indifference to this theory is that in his opinion deterrence theory treats punishment as a mean to eliminate future crime from the society, instead of treating it as an end in form of homage to an individual suffering. Howbeit, in my opinion this approach of Kant towards deterrence theory is not appropriate, because even if we scare people into not committing crime as a result of evoking fear of punishment on them, we still cannot improvise their intentions or motivate them to wake moral sense in them. To sum up the above context it can be said that Kant’s theory of retributive punishment does have credibility and basis and covers legal and political philosophy, he is still unable to differentiate his ethical and legal philosophy and keep his arguments consistent. Moreover, his negligence towards deterrence theory of punishment makes his reasons sound superimposed, high handed and very rigid. Where on one side it is easy to agree that Kant’s approach to punishment can help achieve a civil society, there on another side it is also easy to claim that his approach may be able to deter people from committing crime, but their intensions and moral senses will not be improved, which, among the aforementioned things is more crucial. Works Cited Byrd, Sharon. "Kants theory of punishment: Deterrence in its threat, retribution in its execution." Law and Philosophy 8.2 (1989): 151-200. Fletcher, George P. "The place of victims in the theory of retribution." Buffalo Criminal Law Review 3.1 (1999): 51-63. Hill, Thomas E. Kant on punishment: a coherent mix of deterrence and retribution. 1997. Kant, Immanuel. "The Retributive Theory of Punishment." White, James E. Contemporary Moral Problems. Cengage Learning, 2005. 210-212. Merle, Jean-Christophe. "A Kantian Critique of Kants Theory of Punishment." Law and Philosophy 19.3 (2000): 311-338. Rychlak, Ronald J. "Societys Moral Right to Punish: A Further Exploration of the Denunciation Theory of Punishment." Tul. L. Rev (1990): 299. Read More