by Mikel Van Dyken
In this essay I will summarise Immanuel Kant’s positions on the death penalty as a justified form of punishment and on our categorical duty “to respect every other [human being],” critically evaluating if these views are coherent.[i] I will argue that capital punishment cannot coexist with a universal duty of respect for human beings and that comparable punishments which do not involve death should be used instead. I will do so by using Kant’s concept of “disgraceful punishments that dishonour humanity itself” to demonstrate that the death penalty denies human beings the respect they are owed.[ii]
To begin, I turn to Kant’s position on punishment. He considers just punishment to be strictly retributive, done only in response to a crime and for no other reason.[iii] While this does mean that no criminal can avoid punishment, even if they could provide a great service to society, it also precludes punishment from being done as a public good, such as unjustly punishing an innocent person for the sake of deterring crime.[iv] As this is dictated by a “law of retribution,” it follows that the extent and type of punishment should be equal to the crime that was committed: “whatever undeserved evil you inflict upon another… [is what] you inflict upon yourself.”[v] This is justified by the universality of the categorical imperative.[vi] Kant argues that when someone takes part in a “civil union” governed by penal law, one’s judgment, their inner reason, leads them to consent to a system of public justice where they may be held accountable by others.[vii] While punishment can be comparable so long as it is in proportion to the crime in certain cases, because “there is no similarity between life… and death,” the only acceptable punishment for murder is death.[viii] Therefore, Kant considers the death penalty to be justified.
In Kant’s principle of retribution, there exists a caveat preventing especially cruel forms of punishment. In his discussion of respect in “The Doctrine of Virtue” he argues that since “every human being has a legitimate claim to respect from his fellow human beings,” even when regarding a “vicious man” whose actions make “himself unworthy of it,” that “there can be disgraceful punishments that dishonour humanity itself” which should be prohibited.[ix] By proposing this, Kant is implementing an ‘upper limit’ of sorts for how disgraceful a punishment can be, where retributive punishment is justified, up until the point of dishonouring humanity.[x] It is in this principle that I believe Kant’s insistence on capital punishment being justified comes into contradiction. These disgraceful punishments can dishonour humanity by “[making] a spectator [feel] shame at belonging to a species that can be treated [in a disgraceful] way.”[xi] As such, Kant accepts that some forms of the death penalty are unacceptable, like in his example of “having [a criminal] torn by dogs.”[xii] However, it is important to consider the historical context that he was writing in; in Europe at the time, “public beheading followed by a post-mortem violation of the dead criminal body,” often in the form of “punitive dissection,” was the commonly accepted form of capital punishment.[xiii] I find that at least, this form of punishment, which Kant would have been referring to when he wrote about the death penalty, can comfortably be considered as something that would dishonour humanity through making spectators feel ashamed. This admittedly does not demonstrate that the death penalty in itself is entirely disgraceful, perhaps it could ideally be done without spectators in an automated and unknown process so that nobody would feel shame. However, I find this to be a valuable first step in demonstrating that Kant’s views on punishment and respect may not be entirely consistent.
It is in Kant’s notion of a minimum amount of respect that all human beings are owed that I consider the death penalty to be categorically immoral in itself. He specifies that certain punishments can be deemed unacceptable because they violate the respect, the “recognition of [their] dignity,” that anybody deserves on account of being a human being.[xiv] This type of respect is also directly connected to another’s identity as a human being; denying that which makes one a human being, an end in themselves, is a violation of our duty to respect them.[xv] Contained in this idea of a human being for Kant, is one who possesses the connected faculties for reason and freedom, imbuing in them the moral law and a will to follow it.[xvi] Therefore, denying that a human being has these faculties is failing to give them their deserved respect.[xvii] Kant argues that any supposition that claims a human being is incapable of improvement inherently violates their owed respect since it would deny that they possess the will, given by their reason, to act according to the moral law and to improve.[xviii] This premise is conflictual with the notion of capital punishment and poses a serious categorical problem for Kant’s justification for it.[xix] Deciding that someone should be killed, even in the context of punishment, demonstrates a certain finality that denies their ability to improve and therefore, their moral worth as a human being.[xx] As such, any form of the death penalty is necessarily a “disgraceful [punishment] that [dishonours] humanity itself” because it denies that a human being possesses the freedom and reason to improve by following the moral law, thus violating the respect they are owed.[xxi]
One prominent counterargument to my view stems from the beginning of the same passage in which Kant condemns the denial of someone’s capacity to improve; he states that our respect for others creates in us “a duty to respect a human being even in the logical use of his reason.”[xxii] This argument would assert that since the principle of retribution is based on the idea that a criminal consents to being accountable to legal punishment in a civil state, their use of reason in deciding to consent to this is being respected when they are sentenced to retributive execution.[xxiii] However, I believe that this is conflating the notions of respecting one’s reason and the respect owed to someone as a human being; the latter may include the former but is distinct from it. Kant demonstrates these to be separable when he introduces the concept of unacceptable punishments; if the respect owed to people was referring only to their logical use of reason when consenting to a system of equal retributive punishment, then there would be no violation of respect in retributive punishments such as quartering.[xxiv] Although one’s “logical use of his reason” may be respected through strict retributive punishment such as the death penalty, the concept of unacceptable punishments demonstrates that it is entirely permissible to overrule this consideration in favour of respecting one’s dignity as a human being.[xxv] Therefore, I do not find this counterargument to be convincing.
Before concluding this essay, I return to Kant’s claim that “if [someone]… has committed murder he must die” due to the incomparableness of murder to any non-death punishment.[xxvi] However, he also identifies that there exist unacceptable punishments worse than the death penalty that are not death, such as “cutting off [one’s] nose and ears.”[xxvii] Given this, we can assume there exists a spectrum of severity in non-death punishments, from those that are worse than death to no punishment at all. Therefore, there would exist a non-death punishment that is comparable to, and can be substituted for, capital punishment, such as an extended prison sentence. I consider that these punishments, which would not violate respect in the same way as capital punishment, should be used in place of it.
In this essay I have argued that Kant’s notions of respect and the permissibility of capital punishment are contradictory. Since the death penalty denies criminals the respect they are owed as humans, like other punishments that “dishonour humanity,” it should be considered unacceptable.[xxviii] It would therefore be more justified to use comparable punishments that are not the death penalty to better fulfil our duty to respect others.
Mikel is currently concluding his second year of studying advanced humanities with an extended major in philosophy and intends to conduct further postgraduate study in this field. Within the larger discipline of philosophy, he is primarily interested in phenomenology, political philosophy, and the relation between them: how our conceptions of the human condition affect how political systems ought to be constructed. Outside of philosophy, Mikel enjoys walking and kayaking to watch our Australian wildlife in their natural habitats.
ENDNOTES
[i] Immanuel Kant, “The Metaphysics of Morals (1797),” in Practical Philosophy (Cambridge: Cambridge University Press, 1996), 6: 462, https://doi.org/10.1017/CBO9780511813306.013.
[ii] Kant, “Metaphysics of Morals,” 6: 463.
[iii] Kant, “Metaphysics of Morals,” 6: 331.
[iv] Kant, “Metaphysics of Morals,” 6: 332; Thomas E Hill Jr, “Punishment, Conscience, and Moral Worth,” The Southern Journal of Philosophy 36, no. S1 (1998): 53, https://doi.org/10.1111/j.2041-6962.1998.tb01778.x.
[v] Kant, “Metaphysics of Morals,” 6: 332; Benjamin S Yost, “Kant’s Justification of the Death Penalty Reconsidered,” Kantian Review 15, no. 2 (2010): 19, https://doi.org/10.1017/S1369415400002417.
[vi] Kant, “Metaphysics of Morals,” 6: 331.
[vii] Kant, “Metaphysics of Morals,” 6: 335.
[viii] Kant, “Metaphysics of Morals,” 6: 333.
[ix] Kant, “Metaphysics of Morals,” 6: 462, 6: 463.
[x] Yost, “Kant’s Justification of the Death Penalty,” 10.
[xi] Kant, “Metaphysics of Morals,” 6: 463.
[xii] Kant, “Metaphysics of Morals,” 6: 463.
[xiii] Richard Ward, “Introduction,” in A Global History of Execution and the Criminal Corpse (Basingstoke: Springer Nature, 2015), 7-9, https://doi.org/10.1057/9781137444011.
[xiv] Kant, “Metaphysics of Morals,” 6: 462, 6: 463.
[xv] Kant, “Metaphysics of Morals,” 6:450, 6: 462.
[xvi] Immanuel Kant, “Groundwork of The Metaphysics of Morals (1785),” in Practical Philosophy (Cambridge: Cambridge University Press, 1996), 4: 413, https://doi.org/10.1017/CBO9780511813306.007; Kant, “Metaphysics of Morals,” 6: 403, 6: 463.
[xvii] Kant, “Metaphysics of Morals,” 6: 463-464.
[xviii] Kant, “Metaphysics of Morals,” 6: 463-464; Kant, “Groundwork,” 4: 413.
[xix] Marguerite La Caze, “Derrida: Opposing Death Penalties,” Derrida Today 2, no. 2 (2009): 191, https://doi.org/10.3366/E1754850009000529.
[xx] Kant, “Metaphysics of Morals,” 6: 463-464; La Caze, “Derrida,” 191.
[xxi] Kant, “Metaphysics of Morals,” 6: 463.
[xxii] Kant, “Metaphysics of Morals,” 6: 463.
[xxiii] Kant, “Metaphysics of Morals,” 6: 335.
[xxiv] Kant, “Metaphysics of Morals,” 6: 335, 6: 463.
[xxv] Kant, “Metaphysics of Morals,” 6: 462, 6: 463.
[xxvi] Kant, “Metaphysics of Morals,” 6: 333.
[xxvii] Kant, “Metaphysics of Morals,” 6: 463.
[xxviii] Kant, “Metaphysics of Morals,” 6: 463.
WORKS CITED
Hill Jr, Thomas E. “Punishment, Conscience, and Moral Worth.” The Southern Journal of Philosophy 36, no. S1 (1998): 51–71. https://doi.org/10.1111/j.2041-6962.1998.tb01778.x.
Kant, Immanuel. “Groundwork of The Metaphysics of Morals (1785).” In Practical Philosophy, 37–108. Cambridge: Cambridge University Press, 1996. https://doi.org/10.1017/CBO9780511813306.007.
Kant, Immanuel. “The Metaphysics of Morals (1797).” In Practical Philosophy, 353–604. Cambridge: Cambridge University Press, 1996. https://doi.org/10.1017/CBO9780511813306.013.
La Caze, Marguerite. “Derrida: Opposing Death Penalties.” Derrida Today 2, no. 2 (2009): 186–99. https://doi.org/10.3366/E1754850009000529.
Ward, Richard. “Introduction.” In A Global History of Execution and the Criminal Corpse, 1-36. Basingstoke: Springer Nature, 2015. https://doi.org/10.1057/9781137444011.
Yost, Benjamin S. “Kant’s Justification of the Death Penalty Reconsidered.” Kantian Review 15, no. 2 (2010): 1–27. https://doi.org/10.1017/S1369415400002417.
EXORDIUM 