Kant's Retributivism

It is what distinguishes a court from private judgment. Kant's own words. Without a principle of measurement, sentencing is arbitrary.

"Like for like" is not literal. Kant is aware that the crime cannot always be reproduced on the criminal, and his own worked cases show him applying the principle in terms of the kind and degree of harm rather than by imitation.

The island

The passage every textbook quotes and few quote correctly. Kant imagines that a civil society resolves to dissolve itself with the consent of all its members, as might be supposed in the case of a people inhabiting an island who resolve to separate and scatter themselves throughout the whole world. Even then, he says, the last murderer lying in the prison ought to be executed before the resolution was carried out.

And the reason, which is the part that is always dropped: this ought to be done in order that every one may realise the desert of his deeds, and that bloodguiltiness may not remain upon the people, for otherwise they might all be regarded as participators in the murder as a public violation of justice.

Why the reason matters. The example is designed to remove every consequentialist consideration at once. The society is dissolving, so nobody will be deterred, nobody protected, and nobody reformed. If punishment is still owed, then its ground cannot be any of those things. And the reason Kant gives is not vengeance but complicity: a community that knowingly leaves a murder unanswered has associated itself with the wrong.

The elements of the theory

Punishment is justified only by desert. Guilt is the necessary and the sufficient condition.

It may never be inflicted merely as a means. Not to deter others, not to protect society, and, importantly, not even to improve the offender, because that too uses the person as material for a purpose.

Proportionality is not a limit but the measure. Other theories treat desert as a ceiling; Kant treats it as the standard that fixes the sentence.

Only the guilty may be punished. Punishing the innocent is not merely inefficient; it is a wrong of a different order, and the theory excludes it absolutely.

Punishment respects the offender. Kant's most counter-intuitive claim, and it earns marks when explained. To punish a person for what they chose is to treat them as a rational being who is answerable for their acts. To treat them instead as a case to be managed, cured or deterred is to treat them as an object acted upon rather than as an agent. On this view the offender has a right to be punished.

The offender wills their own punishment, in a formal sense: in adopting a maxim of action, they willed a principle that, applied universally, licenses the same treatment of themselves.

The criticisms

It is vengeance dressed up. The commonest objection, and the answer is in chapter 460's table: retribution is imposed by a constituted authority, requires guilt, is limited by proportion, and is not personal to any victim. Revenge has none of those features. The two are distinguished by their structure, not by the feelings of the person imposing them.

It cannot measure. The ius talionis works for murder and works badly for fraud, perjury or drunk driving. What is the like for like of an environmental offence? Modern retributivists answer with ordinal proportionality, ranking offences by seriousness and matching them to a scale of penalties, which preserves Kant's insight while abandoning literal equivalence.

It is indifferent to consequences. A theory which requires punishment even where nothing whatever is gained is, to a utilitarian, the deliberate addition of suffering to the world. Bentham's objection at chapter 480 is exactly this.

It ignores what produced the offender. Poverty, coercion and circumstance are given no weight, and desert on Kant's account looks past them to the free choice.

It has been used to justify severity. The theory sets a floor as well as a ceiling, so it obliges punishment as well as limiting it, and it has been invoked for capital punishment more often than against harsh sentencing.

It cannot accommodate mercy. If punishment is owed, a pardon is a failure to do what justice requires.

The theory in Indian law

Indian sentencing law contains Kant's principle and refuses to be governed by it alone, and saying so is a strong close to an answer.

Facts. Bachan Singh v. State of Punjab, (1980) 2 SCC 684. Bachan Singh was convicted under section 302 of the Penal Code of three murders and sentenced to death, and the High Court confirmed the sentence. On his appeal the question was whether the facts found amounted to the special reasons that section 354(3) of the Code of Criminal Procedure 1973 requires before a death sentence may be passed, and a Constitution Bench was constituted to decide whether the death penalty in section 302 and the sentencing procedure in section 354(3) were constitutional.

Held. The Court rejected the challenge to both provisions. It held that for persons convicted of murder life imprisonment is the rule and the death sentence an exception, that a real and abiding concern for the dignity of human life postulates resistance to taking life through the instrumentality of the law, and that this ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. The connected matters were directed to be decided on their individual merits in the light of those guidelines.

Why it matters here. The retributive element survives: the sentence is fixed by what was done, and the gravity of the offence is what can take a case into the rarest category. But desert operates as a ceiling and a threshold rather than as a command, since the Court's rule is a presumption against the maximum. That is retributivism as a limiting principle, which is where most modern systems have arrived and where Kant himself would not have stopped.

A worked example

A man is convicted of culpable homicide. He is sixty three, has no previous conviction, is in poor health, and the family of the deceased has publicly said it does not want him imprisoned. The offence was committed in a sudden quarrel.

A pure Kantian analysis. The question is what he did and what that deserves. His age, his health, the family's wishes and the effect of imprisonment on him are all irrelevant to desert, because none of them changes what was done or the responsibility with which it was done. What is relevant is the gravity of the act, the intention behind it and the culpability of the choice, and the sudden quarrel is relevant precisely because it goes to culpability.

Why the family's forgiveness changes nothing on this theory. The wrong was not only against the family. It was a public violation of justice, and on the island passage's reasoning a community that lets it pass associates itself with it. Forgiveness by a private party cannot discharge a public wrong.

What a Kantian will not do. Increase the sentence to send a message to others in the district, which uses this man as a means. Reduce it because prison is expensive. Extend it until he is reformed, which measures by need rather than by desert.

And what an Indian court actually does. It considers desert first, through the gravity of the offence and the degree of culpability, and then considers the offender: age, health, absence of antecedents, the circumstances of the quarrel, and the possibility of reform. Giasuddin, at chapter 510, holds that a court which never looks at the offender has failed in its statutory duty. So the Indian position is Kantian in its foundation and not Kantian in its execution.

Distinctions that carry marks

What Kant is NOT saying

He is not saying punishment should satisfy the victim. The victim's feelings do not appear in the argument.

He is not saying an eye for an eye literally. He offers a principle of measurement and applies it by kind and degree.

He is not indifferent to the offender's welfare. His objection to reformative punishment is not that reform is bad but that it uses the person as material for an end, and he says the same of deterrence.

The island is not an argument about the death penalty. It is an argument about the ground of punishment, constructed so that no consequence can be doing the work.

Quick revision

1. Two foundations: a person must never be treated merely as a means; and desert is backward looking.
2. The ius talionis: whatever undeserved evil you inflict on another, you inflict on yourself. It is the only principle which, in regulating a public court as distinguished from private judgment, can definitely assign the quality and quantity of punishment.
3. The island: a people dissolving their society must first execute the last murderer lying in the prison, so that everyone realises the desert of his deeds and bloodguiltiness may not remain upon the people.
4. Elements: desert is necessary and sufficient; punishment may never be a mere means, not even for the offender's own improvement; proportion is the measure, not merely a limit; and punishing the innocent is absolutely excluded.
5. The offender has a right to be punished, because to punish is to treat them as a rational agent rather than as an object to be managed.
6. Criticisms: it is said to be vengeance (answered structurally); it cannot measure non-violent offences, answered by ordinal proportionality; it is indifferent to consequences; it ignores circumstance; it obliges severity as well as limiting it; and it has no room for mercy.
7. Bachan Singh, (1980) 2 SCC 684: life imprisonment is the rule and death the exception, in the rarest of rare cases when the alternative is unquestionably foreclosed. Desert as a ceiling and a threshold, not as a command.

Test yourself

1. State Kant's justification of punishment. That juridical punishment can never be administered merely as a means of promoting some other good, whether for the criminal himself or for civil society, but must be imposed in all cases only because the person on whom it falls has committed a crime. Desert is therefore both the necessary and the sufficient condition, the question being what the offender did and not what will follow from punishing them, and consequences may operate only within limits that desert has already fixed.

2. What is the ius talionis, and what work does Kant say it does? It is the right of retaliation, expressed as the principle that whatever undeserved evil you inflict upon another you inflict upon yourself. Kant's claim for it is not about satisfying victims but about measurement: he says it is the only principle which, in regulating a public court as distinguished from mere private judgment, can definitely assign both the quality and the quantity of a just penalty. Without such a principle sentencing has no standard and becomes arbitrary, which is what separates a court from private judgment.

3. Explain the island example and the reason Kant gives. Kant imagines a civil society resolving to dissolve itself with the consent of all its members, as with a people on an island who decide to scatter across the world, and says that even then the last murderer lying in the prison ought to be executed before the resolution is carried out. The reason he gives is that everyone may realise the desert of his deeds and that bloodguiltiness may not remain upon the people, who might otherwise be regarded as participators in the murder as a public violation of justice. The example removes deterrence, protection and reform at once, so whatever justifies the punishment cannot be any of them, and the ground offered is complicity rather than vengeance.

4. "Kant's theory is vengeance in academic dress." Answer the charge. The two differ in structure and not in feeling. Retribution is imposed by a constituted authority, requires proof of guilt, is limited by proportion to the offence, and is not personal to any victim, whose wishes and emotions play no part in Kant's argument at all. Revenge may be inflicted by anybody, needs no guilt, has no limit, and is by definition personal. A person may impose retribution with no desire for it and may feel vengeful without any right to act, which shows the distinction does not lie in the state of mind.

5. How far does Indian sentencing law follow Kant? It adopts the foundation and rejects the conclusion. In Bachan Singh a Constitution Bench upheld section 302 of the Penal Code and section 354(3) of the Code of Criminal Procedure while holding that for murder life imprisonment is the rule and death the exception, to be imposed only in the rarest of rare cases when the alternative option is unquestionably foreclosed. Desert therefore fixes the ceiling and the threshold, but it does not command the maximum, and in Giasuddin the Court held that a sentencing judge who considers only the gravity of the offence and never the offender has failed in the duty the Code imposes.