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Five perspectives on holding wrongdoers responsible in Kant

2023; Taylor & Francis; Volume: 32; Issue: 1 Linguagem: Inglês

10.1080/09608788.2023.2224830

1469-3526

Benjamin Vilhauer,

War, Ethics, and Justification

ABSTRACTThe first part of this paper surveys five perspectives in Kant's philosophy on the quantity of retribution to be inflicted on wrongdoers, ordered by two dimensions of difference – whether they are theoretical or practical perspectives, and the quantity of retribution they prescribe: (1) theoretical zero, the perspective of theoretical philosophy; (2) practical infinity, the perspective of God and conscience; (3) practical equality, the perspective of punishment in public law; (4) practical degrees, the perspective we adopt in private relations to others and (5) practical zero, a perspective I argue is entailed by Kant's doctrine of strict right, which is his justification of coercing compliance with public law. Kant acknowledges 1–4 but not 5. The second part draws on Kant's account of the burden of proof in criminal law to argue that Kant is wrong to adopt 3 in responding to criminals, and that we ought to adopt 5 instead.KEYWORDS: Kantretributionpunishmentdoctrine of righttranscendental freedom AcknowledgementsThanks to Matthew Altman, Paul Guyer, Susan Meld Shell, Marcus Willaschek, Allen Wood and the reviewers and editors.Notes1 References to Kant's texts are given by volume and page number of the Academy Edition. Translations are from the Cambridge Edition of the Works of Immanuel Kant. "t" in passages from Kant indicates alteration of the Cambridge translation to reflect my own translation. Abbreviations are as follows. A/B: Critique of Pure Reason. AP: Anthropology from a Pragmatic Point of View, in Kant, Anthropology, 231–429. 2C: Critique of Practical Reason, in Kant, Practical Philosophy, 137–271. 3C: Critique of the Power of Judgment. CE: Collins notes from Kant's Ethics lectures, in Kant, Lectures on Ethics, 37–222. HM: Notes from Kant's Metaphysics lectures by Johann Gottfried von Herder, in Kant, Lectures on Metaphysics, 1–16. MM: The Metaphysics of Morals, in Kant, Practical Philosophy, 363–602. NF: Notes and Fragments. RR: Religion within the Boundaries of Mere Reason, in Kant, Religion, 39–216. TP: On the Common Saying: That May Be Correct in Theory, But It Is of No Use in Practice, in Kant, Practical Philosophy, 273–310. VE: Notes from Kant's Ethics lectures by Johann Friedrich Vigilantius, in Kant, Lectures on Ethics, 249–452. VM: Notes from Kant's Metaphysics lectures by Johann Friedrich Vigilantius, in Kant, Lectures on Metaphysics, 415–506.2 See Palmquist (Comprehensive Commentary, 322) for a different interpretation.3 See Blöser ("Degrees of Responsibility") and Fabbianelli ("Kant's Concept") for helpful discussions.4 This paper's account of this subjectivity largely coincides with Blöser ("Degrees of Responsibility"), though it draws on some different texts.5 Fabbianelli diverges on this point: he writes that Kant thinks the degrees perspective is "only valid for … empirical-psychological reflection" ("Kant's Concept", 209). Blöser ("Degrees of Responsibility") thinks Kant intends the degrees perspective to regulate some actual practices.6 Kant may not mean the same thing by 'frailty' here as he does in the Religion: CE 27:293 says that "frailty consists, not only in its want of moral goodness, but also in the prevalence therein of even the strongest principles and motivations to ill-doing".7 This is closely related to what Marcus Willaschek calls the non-prescriptive character of public law ("Which Imperatives"), though his interpretation differs in some respects from the one presented here.8 Vilhauer ("Kantian Remorse") offers a non-retributive account of conscience.9 Some remarks in this paper are drawn from Vilhauer ("Persons, Punishment" and "Kant's Mature Theory"), which explain this view of punishment in more detail. It has much in common with Dolovich ("Legitimate Punishment"), though Dolovich's account has retributive elements inadmissible in practical zero.