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The Place of Punishment in Kant's Rechtslehre

Published online by Cambridge University Press:  27 September 2011

Paul Gorner
Paul Gorner
Affiliation:
University of Aberdeen
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Extract

If Kant had never written the section of the Rechtslehre on punishment we would still have known from the Critique of Practical Reason that he held a strongly retributive view of punishment. But it is not a view which we could have inferred from the rest of the Rechtslehre. Despite its intuitive appeal, Kant's justification of judicial punishment simply does not fit the account of right he gives in the Rechtslehre. According to this account the only justification for coercion is that it constitutes a ‘hindering of a hindrance’ to freedom. But there is no way in which this requires punishment to be retributive.

Type
Articles
Information
Kantian Review , Volume 4 , March 2000 , pp. 121 - 130
Copyright
Copyright © Kantian Review 2000

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References

Notes

1 In his valuable article ‘Does Kant have a theory of punishment?’, Columbia Law Review, 87 (1987), Jeffrey G. Murphy argued that, if Kant had never written his Rechtslehre, or if the manuscript had been lost, we would not have expected him to hold the severely retributivist views on punishment expressed in that work. To support this claim he assembles a collection of quotations on punishment from writings other than the Rechtslehre. However, he includes nothing from the Critique of Practical Reason. I find this strange because Kant would regard this as his definitive work in practical philosophy and because it contains a substantial passage on punishment. The view expressed there is, it seems to me, unambiguously retributivist. My concern is solely with the question of the consistency of the retributivism expressed in the Rechtslehre with the theory of right elaborated in that same work.

2 This article is a revised version of a paper given at the annual meeting of the UK Kant Society in April 1998 at the University of Aberdeen.

3 Critique of Practical Reason, 5: 38; 39. All references to Kant's writings cite the Akademie edition and an English translation, in that order. The quotation uses Lewis White Beck's translation of the Critique of Practical Reason (Indianapolis: Bobbs-Merrill, 1956).Google Scholar

4 Cf. Höffe, Otfried, Immanuel Kant (Munich: Beck, 1992), p. 238.Google Scholar

5 Metaphysics of Morals, 6: 331; 105. References to the English trans, are to The Metaphysics of Morals, tr. Gregor, Mary G. (Cambridge: Cambridge University Press, 1991).Google Scholar

6 Höffe, , Immanuel Kant, pp. 238–9.Google Scholar

7 Metaphysics of Morals, 6:331; 105.

8 Ibid., 6:333; 106.

9 Ibid., 6:334; 107.

10 Ibid., 6:335, 108.

11 Ibid., 6:230; 24.

12 Ibid., 6:230; 24.

13 Cf. Kersting, Wolfgang, Wohlgeordnete Freiheit: Immanuel Kants Rechts- und Staatsphilosophie (Frankfurt: Suhrkamp, 1993), pp. 202–3.Google Scholar

14 Metaphysics of Morals, 6:246; 41.

15 Ibid.

16 Ibid., 6:231; 25.

17 Ibid., 6:232; 25.

18 Shell, Susan Meld, ‘Kant on punishment’, Kantian Review, 1 (1997), 116.Google Scholar

19 Ibid.

20 Ibid., p. 118.

21 Ibid., p. 120.