Retributivism: Kant’s objections
Yet there are at least two major kinds of objection to Bentham's view, and one of them begins by denying exactly this last claim. This first objection was put very forcefully by Immanuel Kant.
Even if a Civil Society resolved to dissolve itself—as might be supposed in the case of a People inhabiting an island resolved to separate and scatter themselves through the world—the last Murderer lying in prison ought to be executed before that resolution was carried out.
This ought to be done in order that every one may realize the just desert of his deeds.What Kant is saying here is that, quite irrespective of the supposed deterrent effects of punishment, offenders ought to be punished because they deserve to be punished. Unlike Bentham, Kant thinks that punishment is justified not by its consequences but by the fact (and to the degree) that the offender has offended. Any view that says we may punish people only for their offenses is called “ret- ributivism”; such people see punishment as retribution for crime. Kant's position is stronger than this; though he is a retributivist— because he thinks we may not punish the innocent—he also holds that we must punish the guilty.
As I have already said, many people would object to this conclusion. They would do so, in part, on the grounds that it reflected only a primitive desire for revenge on the offender. “Surely,” they would say, “two wrongs don't make a right.” The world is a worse place because Kant's murderer has deprived a person of life, but if our revulsion against murder derives from a belief in the value of human life, how can taking another life improve the situation, except by making other killings less likely?
If we wish to see the force of Kant's view, however, we should consider the second major objection to Bentham's theory. Bentham says that punishment is justified if, on balance, it produces more utility than the disutility it creates.
But if that is the only reason why punishment is justified, then why limit ourselves to trying to punish the guilty? Suppose it turned out that we could deter crime by flogging people at random, or by punishing people we knew to be innocent while claiming, dishonestly, that they were guilty. If the disutility produced in this way were outweighed by the utility produced by the reduction in the crime rate, Bentham's utilitarian principles would lead us to do these things. And, surely, that would be wrong.Let us follow a suggestion made by the philosopher Ted Honderich and call the practice of doing harm to innocent people in order to increase overall utility “victimization.” Kant's first objection to victimization would be that, however much good it did, victimization would be wrong because the victim didn't deserve the punishment.
But he would go on to say that to treat people in this way is to fail to respect their autonomy. To flog victims is to treat them as means to the end of reducing crime; it is to take no account of the fact of their innocence, or of the fact that the crimes we are hoping to prevent are not their fault.
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