Abstract
This chapter has two parts, the first of which is exegesis and exposition, and the second where Vilhauer offer a reconstructive Kantian theory of punishment based on the notion of choosing the principles of punishment in the Rawlsian original position. He argues that we can get a distinctively Kantian theory if we focus on the idea of a Kantian social contract for punishment. Kantians ought to accept that we would rationally consent to universalizable principles of punishment. If we think Rawls is right that original position deliberation gives us a helpful model of how to identify universalizable principles, then we can get Kantian principles of punishment by choosing them in the original position.
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Notes
- 1.
For a helpful discussion of this point, see Allen W. Wood, Kantian Ethics (Cambridge: Cambridge University Press, 2008), 85.
- 2.
The details of Kant’s explanation of establishing a condition of right appeal to acquired rights to property (MM 6:312), but this appears to be an expository matter rather than a necessary feature of his argument, and I think it obscures its basic structure.
- 3.
This point is emphasized in Don E. Scheid, “Kant’s Retributivism,” Ethics 93, no. 2 (Jan. 1983): 262–82.
- 4.
For the view that retributivism can be “constructed” along these lines, see Susan Meld Shell, “Kant on Punishment,” Kantian Review 1 (March 1997): 115–35; and Jane Johnson, “Revisiting Kantian Retributivism to Construct a Justification of Punishment,” Criminal Law and Philosophy 2, no. 3 (Oct. 2008): 291–307. For the view that it cannot, see Paul Gorner, “The Place of Punishment in Kant’s Rechtslehre,” Kantian Review 4 (March 2000): 121–30.
- 5.
This explanation of the consequentialist principle’s contribution to Kant’s justification of punishment is related to, but distinct from, explanations by some recent scholars that draw on Rawls’s distinction between justifying a practice and justifying actions based on rules internal to the practice. See John Rawls, “Two Concepts of Rules,” Philosophical Review 64 (1955): 3–32. Their notion is that, for Kant, consequentialism explains why it is morally appropriate to have a practice of punishment, and retributivism regulates the rules internal to the practice. But since Kant’s notion of the duty to coerce provides no guidance about means, it has no necessary connection to punishment, and it therefore cannot provide what H. L. A. Hart calls the “general justifying aim” of punishment in any sense in which it does not also provide the general justifying aim of ticklebots (Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed. [Oxford: Oxford University Press, 2008]). For versions of this approach, see B. Sharon Byrd, “Kant’s Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution,” Law and Philosophy 8, no. 2 (Feb. 1989): 151–200; and Thomas E. Hill, Human Welfare and Moral Worth: Kantian Perspectives (Oxford: Oxford University Press, 2002). For a critique, see Allen W. Wood, “Punishment, Retribution, and the Coercive Enforcement of Right,” in Kant’s “Metaphysics of Morals”: A Critical Guide, ed. Lara Denis (Cambridge: Cambridge University Press, 2010), 111–29.
- 6.
See Wood, “Punishment, Retribution, and the Coercive Enforcement of Right,” 121.
- 7.
Jean-Christophe Merle also emphasizes the importance of respect for persons, in “A Kantian Critique of Kant’s Theory of Punishment,” Law and Philosophy 19, no. 3 (May 2000): 311–38.
- 8.
Matthew Altman also addresses the limits of Kant’s response to Beccaria – he argues that even if murderers deserve to die, the fact that we cannot be sure we will not be wrongfully accused of murder gives us reason to exclude capital punishment from the social contract. See Matthew C. Altman, “Subjecting Ourselves to Capital Punishment,” in Kant and Applied Ethics: The Uses and Limits of Kant’s Practical Philosophy (Malden, Mass.: Wiley-Blackwell, 2011), 117–38.
- 9.
John Rawls, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, 1999), 215–17.
- 10.
Here I draw on a longer discussion of this approach to punishment, in Benjamin Vilhauer, “Punishment, Persons, and Free Will Skepticism,” Philosophical Studies 62, no. 2 (Jan. 2013): 143–63. Sharon Dolovich proposes a similar approach, but not in the context of free will skepticism. See Dolovich, “Legitimate Punishment in Liberal Democracy,” Buffalo Law Review 7, no. 2 (Jan. 2004): 314–29.
- 11.
This point is central to the objection developed in Dimitri Landa, “On the Possibility of Kantian Retributivism,” Utilitas 21, no. 3 (Sept. 2009): 276–96.
- 12.
Rawls, Theory of Justice, 130–38.
- 13.
See A. M. Quinton, “On Punishment,” Analysis 14, no. 6 (June 1954): 133–42; and more recently, Wood, Kantian Ethics, 208.
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Vilhauer, B. (2017). Kant’s Mature Theory of Punishment, and a First Critique Ideal Abolitionist Alternative. In: Altman, M. (eds) The Palgrave Kant Handbook. Palgrave Handbooks in German Idealism. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-54656-2_27
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