What is the Kantian theory

Kant's criminal theory in "Metaphysical Beginnings of Legal Doctrine"

Table of Contents

1 Introduction

2. The purpose of the punishment: Kant's tator-oriented theory of punishment
2.1. Offender orientation, goal orientation, result orientation: On the systematics of criminal theory
2.2. A reason for Kant's (pure) tator orientation
2.3. Approaches to other criminal theories in Kant

3. The sentence: Kant's justification of the right of retaliation (ius talionis)
3.1. Definition of ius talionis
3.2. Justification of the ius talionis

4. Conclusion

5. Bibliography

1 Introduction

“And whoever injures his neighbor should be done to him as he has done, shame for shame, eye and eye, tooth for tooth; as he has injured a person, so one should do him again ”(Lev 24,19f.)

This famous sentence from the Old Testament vividly illustrates the understanding of law of the early Israelite people. The huge progress in legal history that was made with the penal laws in the books of Moses is not in doubt today. Nevertheless, one has of course moved away from this archaic understanding of punishment, which regards punishment as simple retribution for the criminal. The punishment in today's constitutional state no longer has anything to do with the primitive laws of the Old Testament, and this development is unanimously seen as positive.

In contrast, it is astonishing when one of the most important thinkers of all time, the philosopher Immanuel Kant, presented a criminal theory at the end of the 18th century that was as radical as the legal understanding of the Old Testament. In its Metaphysics of Morals, Part 1: Metaphysical Foundations of Legal Doctrine (hereinafter Legal theory) Kant propagates a criminal law that is aimed solely at the retaliation of the crime and rejects any purpose of the punishment that goes beyond this, such as rehabilitation of the perpetrator or deterrence. In addition, the Old Testament principle of “an eye for an eye, a tooth for a tooth” is adopted by Kant: As a penalty, he stipulates that the perpetrator should suffer exactly what he has committed.

The fact that the probably greatest philosopher in history advocates such a theory has not only provoked a lack of understanding, but of course also aroused critical reactions: "Hardly any part of Kant's practical philosophy has been received as critically as his theory of punishment." (Schmitz 2001, 99) . The fact that Kant's criminal theory sounds so counter-intuitive should not be a reason to ignore it, but rather to take a closer look at it. That should be done in this work. The question that should stand in the foreground is first of all what assertions Kant makes in the first place. Without this most important step, you will hardly be able to subject your theory to objective analysis and criticism. Building on this, the aim is to examine how Kant's criminal theory can be justified, how it has been interpreted, and how it can be criticized (although the latter point will only play a subordinate role).

The biggest problem with studying Kant's theory of punishment is that he wrote so little about it. The relevant section in the Jurisprudence comprises only a few pages, which are mainly filled with examples, exceptions and detailed regulations. The essential points of Kant's criminal theory can be found in a few sentences. Because of this scarcity of material, the following investigation will largely be carried out in discussion with other performers. For a better overview, Kant's theory of punishment is divided into two elements: on the one hand, the purpose of the punishment and, on the other hand, the degree of punishment (also Höffe 1999, 214). The former relates to Kant's answer to the question of why punishment should be applied in the first place. The latter means the principle that Kant wants to underlie the sentencing in the concrete case.

2. The purpose of the punishment: Kant's tator-oriented theory of punishment

2.1. Offender orientation, goal orientation, result orientation: On the systematics of criminal theory

Before we can begin to explain Kant's criminal theory in detail, some preliminary deliberations are necessary. The following is based on the terminology of Heinz-Gerd Schmitz (Schmitz 2001). Otfried Höffe uses an identical system, albeit with different names (Höffe 1992).

According to Schmitz, there are three components of every action: the actor, the actual execution of the action, and the result of the action (cf. Schmitz 2001, 36). Punishment is always a reaction to a (punishable) act, and therefore there are also three possibilities to which part of the act the punishment can be linked: It can be perpetrator-oriented, tator-oriented or result-oriented.

With the perpetrator orientation, Schmitz means the criminal theory which is also referred to as "rehabilitation theory" (Höffe 1992, 266); her aim is to heal the perpetrator as a person in need of therapy, even “sick” (Schmitz 2001, 74) and thus to rehabilitate them. The tator-oriented criminal theory, also known as the "retribution theory" (Höffe 1992, 265), imposes the punishment solely because a punishable act was committed; it is in no way concerned with "the perpetrator and his motives" (Schmitz 2001, 35). Schmitz expresses the third criminal theory somewhat misleadingly as a result-oriented criminal theory; this is simply the “theory of deterrence” (Höffe 1992, 265): The punisher worries that the act will lead to imitation. In order to prevent this, a kind of "causal nexus" is established with the punishment (Schmitz 2001, 43): One shows the potential imitators that the act is not worthwhile, since it will inevitably have negative consequences for the perpetrator.

Finally, the concept of union theory is important. This is understood to be a combination of two of the theories just described. In every unification theory, one punitive approach is to be seen as dominant, and the other as subordinate (cf. Schmitz 2001, 90f.).

These preliminary deliberations on penal theory are necessary because, although there is broad consensus in research that Kant can be regarded as the “retaliatory theorist par excellence” (Byrd / Hruschka 2007, 957) - that he represents a tator-oriented penal theory - there are nonetheless dissenting voices who believe they recognize approaches to other penal theories in Kant. This is discussed in detail below.

2.2. A reason for Kant's (pure) tator orientation

At the beginning of the chapter on criminal law, Kant formulates his tator-oriented criminal theory unequivocally: "Judicial punishment (poena forensis), derived from the natural (poena naturalis), by which vice punishes itself and to which the legislature takes no account, different, can never be used merely as a means to promote another good, for the criminal himself or for civil society, but must at all times only be against him for that reason imposed for having committed a crime; because man can never be used merely as a means to the intentions of another, against which his innate personality protects him, although he can be condemned to forfeit the bourgeois personality. "(MdS VI, 331)1. This sentence already contains all the essentials that can be said about Kant's theory of the purpose of punishment.

First of all, it is noteworthy that Kant explicitly names the other two theories of punishment in the sentence, and at the same time rejects them: punishment should not serve to “promote another good, for the criminal himself or for civil society”. That is, punishment should not serve the purpose of bringing any benefit to the perpetrator (perpetrator-oriented criminal theory) or to society (result-oriented criminal theory). Punishment has to take place solely because “he has violated” - the punishment has to react to the act and nothing more. From the sentence it follows that Kant only advocates a tator-oriented theory of punishment and rejects other approaches.

The semicolon in the middle of the sentence is followed by a justification for the tator-oriented criminal theory: “[T] he man can never be used merely as a means to the intentions of another.” This justification is in itself incomprehensible if one considers the context of Does not include Kant's philosophy. According to the unanimous research opinion (cf. e.g. Schmitz 2001, 110), Kant refers here to the fourth formulation of the categorical imperative in his basis on the metaphysics of ethics (hereinafter Foundation): “Act in such a way that you use humanity, both in your person and in the person of everyone else, at all times as an end, never just as a means.” (GMS IV, 429).

The logical connection between the fourth formulation of the categorical imperative and the tator-oriented criminal theory is not as simple as it appears at first glance. Anyone who reads the formulations carefully will notice that there is a decisive difference between the two quotations (for the following cf. Chroust 1942): The categorical imperative dictates that humanity should “at all times at the same time as an end, never merely as a means ”; In the chapter on criminal law, on the other hand, it says that punishment can “never be just a means, but must anytime only “Be imposed because of the act (cf. Chroust 1942, 601). In criminal theory it is therefore excluded that the punishment is used as a means, while this is permitted in the formulation of the categorical imperative on the condition that the person at the same time treated as an end in itself.

This discrepancy discovered by Anton-Hermann Chroust is important in several ways. First of all, the categorical imperative cannot simply be used to derive the tator-oriented penalty theory2. It can also be concluded that Kant's formulation, punishment, is allowed No way being merely a means for another good, at the same time constituting a reason why the tator-oriented criminal theory cannot be expanded to include other approaches, that is, why Kant does not advocate a theory of unification.

If one were to transfer the fourth formulation of the categorical imperative to punishment, one could formulate: The perpetrator should always be used as an end, never just as a means. The wording refers to the fact that the second part of the sentence can be fulfilled if the first is fulfilled. One could therefore develop a criminal theory in which the tator-oriented approach is dominated (in order to appreciate the perpetrator as an end in itself), but at the same time another approach, namely either the perpetrator or the result-oriented, is viewed as subordinate (whereby the perpetrator which is also used as a means, which is legitimate according to the formulation). But since Kant's justification of the tator-oriented criminal theory is not based on the categorical imperative, but, as has been shown, uses a different formulation that excludes the use of the perpetrator as a means, a theory of unification is not permissible: the punishment must and may occur because of the offense In no case instrumentalize the perpetrator for any other purpose (cf. Chroust 1942, 604).

At this point, a brief addition to what has just been said should be cited. Following the longer sentence on criminal law quoted at the beginning of the chapter, Kant writes: "The criminal law is a categorical imperative." (MdS VI, 331). This formulation can be interpreted in various ways3But what is important in this context is that the sentence - if one can derive the definition of a categorical imperative from the Foundation observed - at the same time it is directly equivalent to the statement that the punishment should only be imposed because of the act and not for the sake of any other purpose.

In the Foundation Kant determines the difference between hypothetical and categorical imperatives. The hypothetical imperatives "present the practical necessity of a possible action as a means to something else that one wants (or at least it is possible that one wants to achieve)" (GMS IV, 414). Hypothetical imperatives then dictate an action if one wants to achieve a certain purpose. The required action represents the means to achieve this end.

Categorical imperatives are defined differently by Kant: “The categorical imperative would be that which presented an action as being for itself, without reference to any other purpose, as being objectively necessary” (ibid.). The categorical imperative lacks the means-ends relation that is characteristic of hypothetical imperatives. He commands an action for its own sake, without any purpose being achieved. What does it mean when Kant writes that the criminal law is a categorical imperative? Obviously nothing else than what has already been pointed out above as Kant's opinion: the punishment is to be carried out solely because a punishable act has been committed; it should serve no purpose, either for the perpetrator or for society.

The main result of this chapter is that Kant, at least according to the quotations given so far, advocates a purely tator-oriented criminal theory and rejects other punitive purposes, including those in the form of a theory of unification. Should it become apparent in the following that there are approaches to deviating criminal theories in other places, one would have to accuse Kant of contradicting himself.

2.3. Approaches to other criminal theories in Kant

Almost no interpreter denies that Kant's theory of punishment is dominant. There are exceptions, however: One is an essay by B. Sharon Byrd and Joachim Hruschka (Byrd / Hruschka 2007), who see the punitive purpose of deterrence as dominant in Kant.


1 All Kant quotations are quoted from the Kant edition of the Prussian Academy of Sciences (Berlin 1900ff.). The abbreviations and the editions used can be found in the bibliography.

2 The exact derivation of Kant's penal theory will no longer play a role in this work in the following. Useful discussions on this subject can be found in Enderlein 1985.

3 Byrd and Hruschka, for example, interpret the sentence legally and rewrite it as follows: "If an offense formulated by a law is met, then punishment is categorically required!" (Byrd / Hruschka 2007, 961).

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