Kant on wrongdoing, desert, and punishment

Law and Philosophy

Volumn 18, Issue 4, 1999, Pages 407-441

  Hill Jr , Thomas E ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

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EID: 0033479999     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505232     Document Type: Article

References (88)

1. My own project for some time has been to see how far Kant's basic moral theory, properly understood and modified as necessary, can be made plausible as at least a candidate for serious consideration in contemporary philosophical discussions. This requires, I think, sympathetic reconstruction and extension of certain core Kantian ideas but also critically abandoning some of Kant's ideas on particular issues that prove to be untenable and unwarranted by Kant's more basic theory.
2. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 256.
3. See Immanuel Kant, The Metaphysics of Morals, trans. by Mary Gregor (Cambridge: Cambridge University Press, 1996), hereafter abbreviated MM, pp. 147-156 [6: 383-394] and 198-218 [6: 448-474]. Bracketed numbers refer to the standard Prussian Academy edition, volume and pages.
4. See Immanuel Kant, The Metaphysics of Morals, trans. by Mary Gregor (Cambridge: Cambridge University Press, 1996), hereafter abbreviated MM, pp. 147-156 [6: 383-394] and 198-218 [6: 448-474]. Bracketed numbers refer to the standard Prussian Academy edition, volume and pages.
5. MM, pp. 20-22 [6: 218-221].
6. See Kant's Perpetual Peace in Hans Reiss, ed., Kant: Political Writings (Cambridge: Cambridge University Press, 2nd ed., 1991), pp. 112-123.
7. See, for example, MM, pp. 104-110 [6: 331-337].
8. MM, pp. 160-161 [400-401] and 188-189 [438-440]; and Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), hereafter abbreviated CPrR, pp. 82-83 [98-99], and Religion Within the Limits of Reason Alone, eds., T. M. Greene and H. H. Hudson (New York: Harper and Row, 1960), pp. 71-72, 135-136, 173-175; Lectures on Ethics, ed. by Peter Heath and J. B. Schneewind (Cambridge: Cambridge University Press, 1997), pp. 88-89 [27: 297-298] and 130-135 [27: 351-357].
9. MM, pp. 160-161 [400-401] and 188-189 [438-440]; and Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), hereafter abbreviated CPrR, pp. 82-83 [98-99], and Religion Within the Limits of Reason Alone, eds., T. M. Greene and H. H. Hudson (New York: Harper and Row, 1960), pp. 71-72, 135-136, 173-175; Lectures on Ethics, ed. by Peter Heath and J. B. Schneewind (Cambridge: Cambridge University Press, 1997), pp. 88-89 [27: 297-298] and 130-135 [27: 351-357].
10. MM, pp. 160-161 [400-401] and 188-189 [438-440]; and Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), hereafter abbreviated CPrR, pp. 82-83 [98-99], and Religion Within the Limits of Reason Alone, eds., T. M. Greene and H. H. Hudson (New York: Harper and Row, 1960), pp. 71-72, 135-136, 173-175; Lectures on Ethics, ed. by Peter Heath and J. B. Schneewind (Cambridge: Cambridge University Press, 1997), pp. 88-89 [27: 297-298] and 130-135 [27: 351-357].
11. MM, pp. 160-161 [400-401] and 188-189 [438-440]; and Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), hereafter abbreviated CPrR, pp. 82-83 [98-99], and Religion Within the Limits of Reason Alone, eds., T. M. Greene and H. H. Hudson (New York: Harper and Row, 1960), pp. 71-72, 135-136, 173-175; Lectures on Ethics, ed. by Peter Heath and J. B. Schneewind (Cambridge: Cambridge University Press, 1997), pp. 88-89 [27: 297-298] and 130-135 [27: 351-357].
12. MM, pp. 160-161 [400-401] and 188-189 [438-440]; and Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), hereafter abbreviated CPrR, pp. 82-83 [98-99], and Religion Within the Limits of Reason Alone, eds., T. M. Greene and H. H. Hudson (New York: Harper and Row, 1960), pp. 71-72, 135-136, 173-175; Lectures on Ethics, ed. by Peter Heath and J. B. Schneewind (Cambridge: Cambridge University Press, 1997), pp. 88-89 [27: 297-298] and 130-135 [27: 351-357].
13. This has been argued by several scholars in recent years. See B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy 8(2) (1989), pp. 151-200; Don E. Scheid, "Kant's Retributivism," Ethics 93 (1983), pp. 262-282; Sarah Holtman, "Toward Social Reform: Kant's Penal Theory Reinterpreted," Utilitas 9 (1997), pp. 3-21; Thomas E. Hill, Jr., "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" in Jahrbuch fur Recht und Ethik: Annual Review of Law and Ethics 5 (1997), pp. 291-314. For other interpretations see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" in Jeffrie Murphy, ed., Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland: D. Reidel, 1979), pp. 82- 92, and "Does Kant have a Theory of Punishment?" Columbia Law Review 87(3) (1987), pp. 509-532, and Samuel Fleischacker, "Kant's Theory of Punishment" in Howard L. Williams, ed., Essays on Kant's Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 191-212.
14. This has been argued by several scholars in recent years. See B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy 8(2) (1989), pp. 151-200; Don E. Scheid, "Kant's Retributivism," Ethics 93 (1983), pp. 262-282; Sarah Holtman, "Toward Social Reform: Kant's Penal Theory Reinterpreted," Utilitas 9 (1997), pp. 3-21; Thomas E. Hill, Jr., "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" in Jahrbuch fur Recht und Ethik: Annual Review of Law and Ethics 5 (1997), pp. 291-314. For other interpretations see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" in Jeffrie Murphy, ed., Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland: D. Reidel, 1979), pp. 82- 92, and "Does Kant have a Theory of Punishment?" Columbia Law Review 87(3) (1987), pp. 509-532, and Samuel Fleischacker, "Kant's Theory of Punishment" in Howard L. Williams, ed., Essays on Kant's Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 191-212.
15. This has been argued by several scholars in recent years. See B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy 8(2) (1989), pp. 151-200; Don E. Scheid, "Kant's Retributivism," Ethics 93 (1983), pp. 262-282; Sarah Holtman, "Toward Social Reform: Kant's Penal Theory Reinterpreted," Utilitas 9 (1997), pp. 3-21; Thomas E. Hill, Jr., "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" in Jahrbuch fur Recht und Ethik: Annual Review of Law and Ethics 5 (1997), pp. 291-314. For other interpretations see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" in Jeffrie Murphy, ed., Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland: D. Reidel, 1979), pp. 82- 92, and "Does Kant have a Theory of Punishment?" Columbia Law Review 87(3) (1987), pp. 509-532, and Samuel Fleischacker, "Kant's Theory of Punishment" in Howard L. Williams, ed., Essays on Kant's Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 191-212.
16. This has been argued by several scholars in recent years. See B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy 8(2) (1989), pp. 151-200; Don E. Scheid, "Kant's Retributivism," Ethics 93 (1983), pp. 262-282; Sarah Holtman, "Toward Social Reform: Kant's Penal Theory Reinterpreted," Utilitas 9 (1997), pp. 3-21; Thomas E. Hill, Jr., "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" in Jahrbuch fur Recht und Ethik: Annual Review of Law and Ethics 5 (1997), pp. 291-314. For other interpretations see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" in Jeffrie Murphy, ed., Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland: D. Reidel, 1979), pp. 82- 92, and "Does Kant have a Theory of Punishment?" Columbia Law Review 87(3) (1987), pp. 509-532, and Samuel Fleischacker, "Kant's Theory of Punishment" in Howard L. Williams, ed., Essays on Kant's Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 191-212.
17. This has been argued by several scholars in recent years. See B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy 8(2) (1989), pp. 151-200; Don E. Scheid, "Kant's Retributivism," Ethics 93 (1983), pp. 262-282; Sarah Holtman, "Toward Social Reform: Kant's Penal Theory Reinterpreted," Utilitas 9 (1997), pp. 3-21; Thomas E. Hill, Jr., "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" in Jahrbuch fur Recht und Ethik: Annual Review of Law and Ethics 5 (1997), pp. 291-314. For other interpretations see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" in Jeffrie Murphy, ed., Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland: D. Reidel, 1979), pp. 82-92, and "Does Kant have a Theory of Punishment?" Columbia Law Review 87(3) (1987), pp. 509-532, and Samuel Fleischacker, "Kant's Theory of Punishment" in Howard L. Williams, ed., Essays on Kant's Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 191-212.
18. This has been argued by several scholars in recent years. See B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy 8(2) (1989), pp. 151-200; Don E. Scheid, "Kant's Retributivism," Ethics 93 (1983), pp. 262-282; Sarah Holtman, "Toward Social Reform: Kant's Penal Theory Reinterpreted," Utilitas 9 (1997), pp. 3-21; Thomas E. Hill, Jr., "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" in Jahrbuch fur Recht und Ethik: Annual Review of Law and Ethics 5 (1997), pp. 291-314. For other interpretations see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" in Jeffrie Murphy, ed., Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland: D. Reidel, 1979), pp. 82- 92, and "Does Kant have a Theory of Punishment?" Columbia Law Review 87(3) (1987), pp. 509-532, and Samuel Fleischacker, "Kant's Theory of Punishment" in Howard L. Williams, ed., Essays on Kant's Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 191-212.
19. This has been argued by several scholars in recent years. See B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in its Threat, Retribution in its Execution," Law and Philosophy 8(2) (1989), pp. 151-200; Don E. Scheid, "Kant's Retributivism," Ethics 93 (1983), pp. 262-282; Sarah Holtman, "Toward Social Reform: Kant's Penal Theory Reinterpreted," Utilitas 9 (1997), pp. 3-21; Thomas E. Hill, Jr., "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" in Jahrbuch fur Recht und Ethik: Annual Review of Law and Ethics 5 (1997), pp. 291-314. For other interpretations see Jeffrie Murphy, "Kant's Theory of Criminal Punishment" in Jeffrie Murphy, ed., Retribution, Justice and Therapy: Essays in the Philosophy of Law (Dordrecht, Holland: D. Reidel, 1979), pp. 82- 92, and "Does Kant have a Theory of Punishment?" Columbia Law Review 87(3) (1987), pp. 509-532, and Samuel Fleischacker, "Kant's Theory of Punishment" in Howard L. Williams, ed., Essays on Kant's Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 191-212.
20. Here I use the term "suffering" broadly as a stand-in for a variety of terms that mark subtle distinctions that are important in some other contexts (e.g. "pain," "discomfort," "misery," "trouble," "harm," "deprivation," etc.) The connotation of undergoing unwelcome experiences passively is perhaps typically apt in discussions of punishment, but, as Morris points out, experiencing pain is not always suffering pain, for example, if (as in masochism) one is not disposed to avoid the pain. For this reason, though I shall often continue to use the term "suffering" in a broad sense, those who welcome the painful experience of guilt feelings as an inseparable aspect of a process of reform and restoration of relations may not, strictly speaking, be suffering the pangs of guilt. Herbert Morris, "Guilt and Suffering," Philosophy East & West 21(4) (1971), pp. 89-110.
21. Utilitarianism now comes in many varieties, but my remarks here, I believe, apply to most familiar versions.
22. When I say that someone aware of doing wrong is "liable to suffer" I mean more than the trivial point that if various, perhaps accidental, circumstances occur something may cause the person to suffer. The point is, rather, that the person is in a condition that makes the ensuing suffering what is an expected, normal, realization of a disposition inherent in the recognition. Thus the utilitarian's answer to the first question, strictly speaking, is "no, there is no such liability in wrongdoing, or even in recognition of one's wrongdoing, there is only a contingent 'likelihood' given favorable social conditions."
23. A modest version would say merely that there is some reason, apart from the consequences, for us to bring it about that wrongdoers suffer. This seems to be W. D. Ross's view, for the prima facie duty of justice, as he presents it, is a duty to promote the proportionality of virtue and happiness. W. D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930), ch. 2.
24. By "retributive policies" I mean such principles as that only the guilty ought to be punished, that all the guilty ought to be punished, that the severity of the punishment should be proportionate to the crime, and that the punishment should "fit" the crime in kind, as in "an eye for an eye" and "he who kills must die." An obvious example of a mixed theory would be one that held several of these policies quite firmly but tried to justify doing so by appeal to utilitarian concerns, e.g. their value for deterrence, satisfaction of victims, etc. I shall argue that Kant, with regard to judicial punishment, holds a mixed theory, though he is far from a utilitarian in his account of what justifies legal practices and policies.
25. The distinction between the rules of a practice and what justifies having the practice was made prominent in John Rawls' "Two Concepts of Rules," The Philosophical Review 64 (1955), pp. 3-32. H.L.A. Hart famously employed the distinction in his essays on punishment, e.g. Punishment and Responsibility (Oxford: Oxford University Press, 1968). The distinction is also important in essays on Kant's theory of punishment, e.g. in the articles of Byrd and Scheid previously cited, and in Herbert Morris's classic essay, "Persons and Punishment," The Monist (1968), pp. 31-63.
26. The distinction between the rules of a practice and what justifies having the practice was made prominent in John Rawls' "Two Concepts of Rules," The Philosophical Review 64 (1955), pp. 3-32. H.L.A. Hart famously employed the distinction in his essays on punishment, e.g. Punishment and Responsibility (Oxford: Oxford University Press, 1968). The distinction is also important in essays on Kant's theory of punishment, e.g. in the articles of Byrd and Scheid previously cited, and in Herbert Morris's classic essay, "Persons and Punishment," The Monist (1968), pp. 31-63.
27. The distinction between the rules of a practice and what justifies having the practice was made prominent in John Rawls' "Two Concepts of Rules," The Philosophical Review 64 (1955), pp. 3-32. H.L.A. Hart famously employed the distinction in his essays on punishment, e.g. Punishment and Responsibility (Oxford: Oxford University Press, 1968). The distinction is also important in essays on Kant's theory of punishment, e.g. in the articles of Byrd and Scheid previously cited, and in Herbert Morris's classic essay, "Persons and Punishment," The Monist (1968), pp. 31-63.
28. As Gerald Postema has pointed out to me, there are significant distinctions that a fuller discussion would need to take into account. For example, advocates of the nonpractical version might have different grounds for rejecting the reason-giving implications that the terms "good in itself", "fitting," and "reasonably to be wished" ordinarily have for us. Most obviously, it might be thought that, due to human imperfection, we lack the knowledge and power required for us to have the authority, or standing, to judge and punish wrongdoers in proportionate to their inner moral qualities. Alternatively, it might be held assessments of what we have reason to do are fundamentally distinct from, and partially independent of evaluations of states of affairs as (intrinsically) good, or fitting, in the sense that they are (in themselves) reasonably to be wished for. Thus, apart from our limitations of knowledge and power, Kant might have embraced the proportionate suffering of wrongdoers, as he did the success of the French Revolution, as an outcome that good people can reasonably hope for without his thereby implying that these are causes to which he, and others, have reason to contribute. This is an implausible view, I think, because of its initial assumption that suffering proportionate to wrongdoing is in itself "to be wished" and not because "to be wished" implies "reasons to seek." There are complex issues here, however, that I cannot pursue now.
29. A person's faith, hopes, and wishes about what God ("fittingly") will do may, of course, have an indirect influence on the person's conduct. The crucial point is that the belief that "God has reasons to make the wicked suffer" does not license us to "help" in the project.
30. See, for example, Kant's Lectures on Ethics, pp. 79 [27: 287], 309 [27: 553], CPrR, pp. 34-35 [5: 37-38], 53 [5: 61], 84 [5: 1099-1100], and 103-110 [5: 124-132]; Religion within the Limits of Reason Alone, pp. 63, 67, 107, 117.
31. See, for example, Kant's Lectures on Ethics, pp. 79 [27: 287], 309 [27: 553], CPrR, pp. 34-35 [5: 37-38], 53 [5: 61], 84 [5: 1099-1100], and 103-110 [5: 124-132]; Religion within the Limits of Reason Alone, pp. 63, 67, 107, 117.
32. See, for example, Kant's Lectures on Ethics, pp. 79 [27: 287], 309 [27: 553], CPrR, pp. 34-35 [5: 37-38], 53 [5: 61], 84 [5: 1099-1100], and 103-110 [5: 124-132]; Religion within the Limits of Reason Alone, pp. 63, 67, 107, 117.
33. Throughout my discussion I mean "wrongdoing" in an ordinary sense, broad enough to include many morally objectionable acts that are not crimes. In his philosophy of law (the Rechtslehre) Kant uses terms translated as "right" (recht) and "wrong" (unrecht) in a narrower sense, implying legal enforceability. Thus, in this narrower sense, we would not call an act wrong (unrecht) unless convinced that it is a kind that persons can be justifiably coerced to avoid. This, however, leaves open the question what makes acts wrong in the sense that implies justifiability of coercion, for example, whether this depends on contingent facts as it does under utilitarianism.
34. MM, pp. 11-22 [6: 211-221]. For a fuller explanation, see "Kant's Theory of Practical Reason," in my Dignity and Practical Reason in Kant's Moral Theory (Ithaca: Cornell University Press, 1992), hereafter DPrR, pp. 123-146.
35. MM, pp. 11-22 [6: 211-221]. For a fuller explanation, see "Kant's Theory of Practical Reason," in my Dignity and Practical Reason in Kant's Moral Theory (Ithaca: Cornell University Press, 1992), hereafter DPrR, pp. 123-146.
36. MM, pp. 11-22 [6: 211-221]. For a fuller explanation, see "Kant's Theory of Practical Reason," in my Dignity and Practical Reason in Kant's Moral Theory (Ithaca: Cornell University Press, 1992), hereafter DPrR, pp. 123-146.
37. Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), hereafter abbreviated as G, pp. 56-66 [4: 450-463].
38. Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997), hereafter abbreviated as G, pp. 56-66 [4: 450-463].
39. G, pp. 37-44 [4: 428-437].
40. G, pp. 39-40 [4: 431-432].
41. G, pp. 41-43 [4: 433-437]. For interpretative comments, see DPrR, pp. 58- 66, 226-250.
42. G, pp. 41-43 [4: 433-437]. For interpretative comments, see DPrR, pp. 58-66, 226-250.
43. MM, pp. 150-156 [6: 386-394].
44. I argue for this in "Happiness and Human Flourishing," Social Philosophy and Policy 16(1) (1999), pp. 143-175.
45. MM, pp. 221ff [6: 477ff]; also Immanuel Kant, Education (Ann Arbor: The University of Michigan Press, 1960), pp. 83-121.
46. MM, pp. 221ff [6: 477ff]; also Immanuel Kant, Education (Ann Arbor: The University of Michigan Press, 1960), pp. 83-121.
47. Kant suggests that the duty to promote the happiness of others leads to an indirect duty to be concerned with their moral well-being insofar as their doing wrong will lead them to suffer pangs of conscience. Beneficence also should lead us to want to prevent others from wrongfully interfering with the happiness of others, but the basic end here is the (permissible) happiness of those who would be harmed, not the moral goodness of those who would wrongfully harm them. MM, pp. 156 [6: 393-394].
48. Our failure could be with respect to satisfying an "indirectly ethical" duty to obey the law, but, if so, we are concerned with it here as a moral offense, not merely as a legal one.
49. See, for example, Herbert Morris, "Guilt and Suffering" and "A Paternalistic Theory of Punishment," American Philosophical Quarterly 18(4) (1981), pp. 263-271, reprinted in Jeffrie G. Murphy, ed., Punishment and Rehabilitation, Third edition (Belmont, CA: Wadsworth Publishing Co., 1995), pp. 154-168.
50. See, for example, Herbert Morris, "Guilt and Suffering" and "A Paternalistic Theory of Punishment," American Philosophical Quarterly 18(4) (1981), pp. 263-271, reprinted in Jeffrie G. Murphy, ed., Punishment and Rehabilitation, Third edition (Belmont, CA: Wadsworth Publishing Co., 1995), pp. 154-168.
51. The following points are not intended as criticisms of utilitarianism, for the resources of subtle variations of utilitarianism are plentiful and the points in question are themselves open to reasonable controversy.
52. MM, 130 [6: 362], CPrR, pp. 34-35 [5: 37-38].
53. MM, 130 [6: 362], CPrR, pp. 34-35 [5: 37-38].
54. For Kant's distinction between legal offenses and merely "ethical" failings, see MM, pp. 23-25 [6: 229-231], 31-32 [6: 239], 145-148 [6: 380-383].
55. G, p. 7 [4: 393].
56. ibid.
57. This interpretation is developed at more length in my essay "Is a Good Will Overrated?" in Midwest Studies in Philosophy: Moral Concepts XX (1996), pp. 299-317.
58. MM, pp. 223-225 [6: 380-482].
59. MM, p. 224 [481].
60. CPrR, pp. 103-110 [5: 123-132].
61. CPrR 93 [5: 110-11].
62. Ibid.
63. See Stephen Engstrom, "The Concept of the Highest Good in Kant's Moral Theory," Philosophy and Phenomenological Research 52 (1992), pp. 747-780, and Andrews Reath, "Two Conceptions of the Highest Good in Kant," Journal of the History of Philosophy 26 (1988), pp. 593-619.
64. See Stephen Engstrom, "The Concept of the Highest Good in Kant's Moral Theory," Philosophy and Phenomenological Research 52 (1992), pp. 747-780, and Andrews Reath, "Two Conceptions of the Highest Good in Kant," Journal of the History of Philosophy 26 (1988), pp. 593-619.
65. That is, the basic general principles of duty are not so restricted. (For text citations, see DPrR, pp. 176-195.) This point, of course, is compatible with the common sense idea that, in particular contexts, one's estimate of the goodness or evil of others' deeds and motives will make some difference to how one judges, from basic principles, that one should treat them.
66. I limit my discussion here to Kant's main discussion of punishment in The Metaphysics of Morals. Kant comments occasionally on punishment elsewhere. See, for example, CPrR, pp. 34-35 [5: 37-38] and 53 [5: 61] and Lectures on Ethics, pp. 80 [27: 286], 307-312 [27: 551-558], 284-285 [27: 552], and 181 [27: 418]. These texts are not without ambiguity, but the Lectures clearly assign a deterrence role to state punishment. Both, however, contain suggestions of the intrinsic desert thesis as at least appropriate for a Being of infinite wisdom and power.
67. I limit my discussion here to Kant's main discussion of punishment in The Metaphysics of Morals. Kant comments occasionally on punishment elsewhere. See, for example, CPrR, pp. 34-35 [5: 37-38] and 53 [5: 61] and Lectures on Ethics, pp. 80 [27: 286], 307-312 [27: 551-558], 284-285 [27: 552], and 181 [27: 418]. These texts are not without ambiguity, but the Lectures clearly assign a deterrence role to state punishment. Both, however, contain suggestions of the intrinsic desert thesis as at least appropriate for a Being of infinite wisdom and power.
68. MM, pp. 20-22 [6: 218-221].
69. MM, pp. 24-25 [6: 230-231]; see also Sharon Byrd, op. cit.
70. MM, pp. 24-25 [6: 230-231]; see also Sharon Byrd, op. cit.
71. MM, pp. 04-09 [6: 331-337].
72. MM, pp. 106 [6: 333], 130 [6: 362-363], 209-210 [6: 462-464].
73. MM, pp. 105 [331].
74. MM, pp. 105 [332].
75. Ibid.
76. MM, p. 106 [333].
77. MM, pp. 106-107 [333-334].
78. Note that Mary Gregor translates "strafbar" here as "deserving," which misleadingly favors the idea that punishment is for inner desert. (A page earlier, MM 106 [332], she had rendered "strafbar" as "punishable," thereby avoiding the misleading connotation in others' translations.) In the same paragraph about the Scottish rebels, she renders "inneren Bösartigkeit" as "inner wickedness," which is clearly a deep moral quality of will, whereas the term naturally and more consistently can be rendered as "inner maliciousness," which could be a trait of character imputed on empirical evidence. Although Kant held that we cannot know for certain what a person's maxims are and especially whether a person has a good will or not, it would be a mistake, I think, to suppose that everything he refers to as "inner" in a person is inaccessible and so cannot be attributed on the basis of empirical evidence.
79. MM, pp. 19-20 [6: 228], 106 [6: 332-333].
80. Kant describes two cases in which he apparently regarded the motive of "honor" as a mitigating factor, at least in our imperfect world: the woman who kills her illegitimate baby and the soldier who kills another in a duel. MM, pp. 108-109 [6: 335-337].
81. This is a main theme of "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" See note 8.
82. The Kantian moral legislative perspective is the moral point of view that is relevant to deliberations and debates about what more specific moral principles should govern various aspects of life. Attempts to interpret and reconstruct a Kantian account of this vary considerably. My partial attempts to characterize it are in DPrR, ch. 2, pp. 58-66, ch. 10, pp. 196-225, and ch. 11, pp. 226-250, and several essays in Respect, Pluralism, and Justice: A Kantian Perspective (Oxford University Press, forthcoming).
83. The Kantian moral legislative perspective is the moral point of view that is relevant to deliberations and debates about what more specific moral principles should govern various aspects of life. Attempts to interpret and reconstruct a Kantian account of this vary considerably. My partial attempts to characterize it are in DPrR, ch. 2, pp. 58-66, ch. 10, pp. 196-225, and ch. 11, pp. 226-250, and several essays in Respect, Pluralism, and Justice: A Kantian Perspective (Oxford University Press, forthcoming).
84. For example, Herbert Morris, "A Paternalistic Theory of Punishment" and Joel Feinberg, "The Expressive Function of Punishment," in The Monist (1965), pp. 397-423, reprinted in his Doing and Deserving (Princeton, NJ: Princeton University Press, 1970), pp. 95-118.
85. For example, Herbert Morris, "A Paternalistic Theory of Punishment" and Joel Feinberg, "The Expressive Function of Punishment," in The Monist (1965), pp. 397-423, reprinted in his Doing and Deserving (Princeton, NJ: Princeton University Press, 1970), pp. 95-118.
86. For example, Herbert Morris, "A Paternalistic Theory of Punishment" and Joel Feinberg, "The Expressive Function of Punishment," in The Monist (1965), pp. 397-423, reprinted in his Doing and Deserving (Princeton, NJ: Princeton University Press, 1970), pp. 95-118.
87. I develop this theme in "Punishment, Conscience, and Moral Worth," The Southern Journal of Philosophy XXXVI, Supplement (1997), pp. 51-71.
88. I am grateful for the support of the Social Philosophy and Policy Center at Bowling Green University while completing this essay. Participants in discussions at Bowling Green and Santa Clara Universities offered helpful comments, and I want especially to thank Bernard Boxill, Sarah Holtman, Jeffrie Murphy, and Gerald Postema for their help and encouragement on this and other projects.