Kant on Why Criminal Offenders Must Be Punished

Abstract

Kant gives what appear to be consequentialist and retributivist reasons for his claim that the state must punish criminal offenders. I argue that Kant's justification is retributivist and not consequentialist. In particular, I argue that Kant's justification is found in his argument that we must attribute to an offender's reason the judgment that she must be punished. I argue that other retributivist interpretations as well as interpretations that prioritize consequentialist reasons have little textual support. I also reconstruct an argument that Kant implies for his claim that ius talionis is the proper criterion for determining the quality and quantity of punishment.

Crime & Punishment: A Rethink

“…While taking this into account by no means implies that we should thoughtlessly surrender ourselves to 'natural' drives and desires (for indeed, these can be controlled, curbed, reflected on, and overcome to varying degrees, depending on their aetiology, context, etc. ), ignoring such instincts would be a foolhardy thing to do, one bound to lead to feelings of 'justice not being done'; a wealth of literature provides evidence that punishment in its own right, rather than its consequents such as deterrence, is demanded by victims of crime (which includes the society at large, their victimhood emanating from the offender's transgression of socially agreed upon rules, that is the Law) (Van Ginneken and Hayes, 2017;Seron et al, 2006;Samuel and Moulds, 1986;Gwin, 2010;Maxfield et al, 1996;Cavender, 1984;Pickering, 2022). While in ancient cultures without sufficiently developed judicial frameworks, the victim or the members of the victim's family were allowed to deliver what they see as justice, the existence of organized, unified, and coherent instruments of justice, prevents the imposition of arbitrarily and unduly harsh punishment and allows for a socially agreed upon hypostatization of normative 'just deserts' (Carlsmith et al, 2002).…”

Crime and Punishment: A Rethink

“…While taking this into account by no means implies that we should thoughtlessly surrender ourselves to "natural" drives and desires (for indeed, these can be controlled, curbed, reflected on, and overcome to varying degrees, depending on their aetiology, context, etc. ), ignoring such instincts would be a foolhardy thing to do and bound to lead to feelings of justice not being done; a wealth of literature provides evidence that punishment in its own right, rather than its consequents such as deterrence, is demanded by the victims of crime (which includes the society at large, its victimhood emanating from the offender's transgression of socially agreed-upon rules, that is, the law) [108][109][110][111][112][113][114]. While in ancient cultures without sufficiently developed judicial frameworks, the victim or the members of the victim's family were allowed to deliver what they see as justice, the existence of organized, unified, and coherent instruments of justice prevents the imposition of arbitrarily and unduly harsh punishment and allows for a socially agreed-upon hypostatization of normative "just deserts" [115].…”