Byrd KantsTheoryPunishment 1989

Kant's Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution
Author(s): B. Sharon Byrd

Source: Law and Philosophy , Aug., 1989, Vol. 8, No. 2 (Aug., 1989), pp. 151-200
Published by: Springer
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B. SHARON BYRD
KANT'S THEORY OF PUNISHMENT:
DETERRENCE IN ITS THREAT, RETRIBUTION

IN ITS EXECUTION
ABSTRACT. Kant's theory of punishment is commonly

retributive in nature, and indeed much of his discourse
interpretation. Still, it leaves one with certain misgivings
consistency of his position. Perhaps the problem lies not
nor in the senility sometimes claimed to be apparent in the
but rather in a superimposed, modern yet monistic view o
cal considerations tend to show that Kant was discussing no
facets of punishment, each independent but nevertheless
Punishment as a threat was intended to deter crime. It was
civil society to counteract human drives toward violating a
execution, however, the state was limited in its reaction by
justice demanding respect for the individual as an end
some further social goal. This interpretation of Kant's t
maintains consistency from the earliest through the lat
moral, legal, and political philosophy. It provides a good
current economic analyses of crime and punishment. Mo
credits Kant's theory in its clear recognition of the ideals
government.
INTRODUCTION
One of the most well-known passages of Immanuel

physic ofMorals is the following:
Even if a civil society were dissolved through the unanimous

(e.g., if an island society decided to dissolve with its m
themselves over the rest of the earth), the last murderer wi
must be executed so that he experiences what his own deed
bloodguilt does not cling to the society that did not insist
since, if so, it can be seen as having participated in that
justice.'
Kant's works are cited according to Kant's gesammelte Schriften, Preufische

Akademie der Wissenschaften (vols. 1-22), Deutsche Akademie der Wissenschaf-
Law and Philosophy 8: 151-200, 1989.

? 1989 KluwerAcademic Publishers. Printed in the Netherlands.

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152
Sharon Byrd
This and several other parts2 of Kant's theory of criminal law are often
quoted to show that Kant is one of the most vigorous and absolute
supporters of retribution as a reason for punishment.3 It is the purpose
of this article to consider Kant's theory of a criminal legal system and
in particular his treatment of the state's right and duty to inflict
punishment for certain legal violations and the goal this punishment is
to fulfill. It is my thesis that for Kant general deterrence was the
ten zu Berlin (vol. 23), Deutsche Akademie der Wissenschaften zu Berlin/

Akademie der Wissenschaften zu Gottingen (vols. 24-26), Akademie der Wis-
senschaften der DDR/Akademie der Wissenschaften zu G6ttingen (since vol. 27).
All translations of the Kant texts are the author's own.
Selbst wenn sich die biirgerliche Gesellschaft mit aller Glieder Einstimmung
auflosete (z.B. das eine Insel bewohnende Volk beschl6sse auseinander zu
gehen und sich in alle Welt zu zerstreuen), miilte der letzte im Gefangnif
befindliche Morder vorher hingerichtet werden, damit jedermann das wider-
fahre, was seine Thaten werth sind, und die Blutschuld nicht auf dem Volke
hafte, das auf diese Bestrafung nicht gedrungen hat: weil es als Theilnehmer
an dieser offentlichen Verletzung der Gerechtigkeit betrachtet werden kann.
Die Metaphysik der Sitten (The Metaphysic ofMorals) vol. 6 (hereinafter cited as MdS,
6 A.A.) 333.
2 So: what undeserved evil you do to another in society, you do to yourself. If
you insult him, you also insult yourself; if you steal from him, you steal from
yourself; if you hit him, you hit yourself; if you kill him, you kill yourself.
Only the law of retaliation (ius talionis), but of course understood within
the chambers of a court (not in your own private judgment), can determine
the quality and quantity of punishment....
Also: was fir unverschuldetes Ubel du einem Anderen im Volk zufiigst,

das thust, du dir selbst an. Beschimpfst du ihn, so beschimpfst du dich
selbsr, bestiehlst du ihn, so bestiehlst du dich selbst; schlagst du ihn, so
schligst du dich selbsr, todtest du ihn, so t6dtest du dich selbst. Nur das
Wiedervergeltungsrecht (ius talionis) aber, wohl zu verstehen, vor den
Schranken des Gerichts (nicht in deinem Privaturtheil), kann die Qualitat und
Quantitat der Strafe bestimmt angeben ....
Id. at 332, see also id. at 363 where Kant recommends castration as the punish-
ment for rape and pederasty.
See, e.g., H. L. A. Hart, Punishment and Responsibility, pp. 231-32 (1968); E.
Pincoffs, The Rationale of Legal Punishment (1966), J. Murphy, Kant: The Philosophy
of Right (1970). But cf. Murphy, 'Does Kant Have a Theory of Punishment?', 87
Colum. L. Rev. 509 (1987).

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Kant's Theory of Punishment 153
justification for criminal law provisions threatening punishment. Ret-

ribution, on the other hand, was not a goal or reason for punishment
but rather a limitation on the state's right to inflict punishment and
thereby a form of insurance that the individual would not be treated
as a means to some social goal but rather always as an end in himself.
The distinction between the reason for threatening and the reason
for executing punishment has historical roots in the period preceding
and directly following Kant.4 That punishment was threatened to deter
criminal violations is also supported explicitly in much of Kant's work
preceding The Metaphysic of Morals. In addition, punishment as coercive
deterrence follows from the necessary nature of law within Kant's
theory of justice. After a criminal violation has occurred, the focus
shifts from instrumental priorities of general crime prevention to the
just treatment of the individual. Most of Kant's explicit discussion of
criminal law theory in The Metaphysic of Morals is directed toward this
role of punishment.5 The addressee of the criminal provision is no
longer the general public warning it of the consequences of crime, but
now the court as an element of civil society charged with the duty to
execute the punishment threatened. The only just punishment with
respect to the individual is one equal to the severity of the offense
committed. The criminal offender, punished in amount according to
the principle of retribution, can never complain of unfairness.6 More
importantly, the state in its judiciary function, is limited to executing
exactly that punishment. When actually punishing the individual,
therefore, instrumental considerations indicating reasons for more or
less severe punishments are strictly forbidden. The criminal law as
directed to the court is a categorical imperative.7
This article will focus on criminal law as an instance of law in
general. It will show that for Kant law is a means of coercive force
applied to guarantee a necessary minimum of external conditions.8
4See infra notes 105-107 and accompanying text.

5See MdS, 6 A. A. 331-37, 362-63.
6 See infra note 136 and accompanying text.
7 MdS,6AA.331.
8 See infra notes 18-39 and accompanying text.

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154 Sharon Byrd
These external conditions in turn are a prerequisite for universal

external freedom, or the maximum equal freedom for all to pursue
self-adopted goals in the external world.9 The conditions necessary for
this universal freedom are secured through civil society."' This society
is an instrument of securing not only immediate, but more impor-
tantly, abstract extentions of individual freedom. Since any denial of
these extentions of freedom would be internally contradictory, and
since without a civil social order they could not take place, civil
society is an a priori necessarily existing institution. The purpose of
the criminal law is to protect this social order." As a part of law in
general it demands a certain minimum of external conduct. To
encourage obedience to its precepts it uses external coercion in the
form of threatened punishment. Punishment as a threat, used to secure
society and in turn the maximum universal freedom of every member
of that society, is clearly deterrent in nature.'2
Since law requires a minimum of external conduct, it places no
demands on personal attitudes or goals. To the extent the individual
does not act to contradict these minimum demands, he, and all others
united with him in the social order, enjoy a maximum of external
freedom. Civil society, as a means necessary to the end of individual
freedom, however, is strictly limited in its posture toward the indi-
vidual. It may demand only the necessary minimum of external
conduct and may not examine the motives or desires of its members
when judging their interaction.'3 In threatening punishment it is
required to make the threat an effective deterrent, but in light of its
See infra notes 40-58 and accompanying text.

'0 See infra notes 59-93 and accompanying text.
" See infra notes 94-104 and accompanying text.
'3 In defining the concept of law as it relates to obligations, Kant's third
criterium is:
(I)n this reciprocal relationship of choice, the matter of the choice, i.e. the
end that each pursues with the object he desires, is not at all considered, e.g.
it will not be asked whether someone can find an advantage in the wares he
buys from me for his own business dealings or not. Instead one looks only to
the form in the reciprocal relationship of choice to the extent it is regarded

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Kant's Theory ofPunishment 155
subsequent duty to execute the threat in cases of a violation of its

precepts, the punishment must be just with respect to the individual.
The former requirement excludes punishments below the gravity of
the offense committed; the latter excludes those exceeding this level.14
For no reason, such as the good of society or any one of its members,
may the individual be used as a means to an end. Retribution in the
execution of the punishment threatened, therefore, limits society in its
range of possible reactions toward the individual and rounds out one
of the most libertarian of all possible models of social order.'5
To support my claims, in the first section of this article I will
consider the nature of law and its relation to moral precepts generally.
I will show that law has a purely external nature including only those
duties, the fulfillment of which involve phenomenologically observable
acts. In the second section, I will move to Kant's discussion of legisla-
tion, concentrating on distinguishing juridical from ethical obligations.
Since legislation unites a duty with some form of motivation to fulfill
that duty, and since juridical legislation is purely external, it includes
only those external duties that additionally can be motivated exter-
nally. Whether a duty can be motivated externally depends upon
whether it relates to external freedom. The external motivation used
in juridical legislation is coercion, which is inextricably bound to
as free and asks whether the act of one of the two can be united with the
freedom of the other under a universal law.
(I)n diesem wechselseitigen Verhiltnig der Willkiir kommt auch gar nicht die
Materie der Willkiir, d.i. der Zweck, den ein jeder mit dem Object, was er
will, zur Absicht hat, in Betrachtung, zB. es wird nicht gefragt, ob jemand bei
der Waare, die er zu seinem eigenen Handel von mir kauft, auch seinen
Vortheil finden m6ge, oder nicht, sonder nur nach der Form im Verhaltnif
der beiderseitigen Willkiir, sofern sie blof als frei betrachtet wird, und ob
durch die Handlung eines von beiden sich mit der Freiheit des andern nach
einem allgemeinen Gesetze zusammen vereinigen lasse.
MdS, 6 A. A. 230.
14 See Primoratz, 'Partial Retributivism', Archivffir Rechts- und Sozial Philosophie
71 (1985), 373, criticizing Scheid, infra note 55, for failing to account for Kant's
exclusion of punishments below the gravity of the offense committed.

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156 Sharon Byrd
external freedom and Kant's concept of human rights. The relation-

ship between freedom and coercion will be considered in the third
section of this article. Although coercive right and external freedom
provide the justification for self-defense and self-help, they do not
justify the move to a civil social order and the preventive coercion
used to maintain civil society through the criminal law. In the fourth
section, I will give attention to what Kant calls a "synthetic a priori
extention of freedom,"'6 that is possible only through the common
will or civil society, which can bind all to the duties it imposes.
Finally, I will show that the criminal law is necessary to maintain civil
society. As a part of law, it is external and the motivation it unites
with the dutes it demands is an external motivation or the threat of
punishment. The threat of punishment is instrumental in nature and is
employed to deter offenses. When attention is shifted to the just
treatment of the individual, the state is limited in its execution of this
punishment through the principle of retribution. Although at first
glance the initially cited passage seems brutal in its demand, it is a
consequence of an incessant devotion to libertarian values and the
absolute worth of each individual as a moral agent.l7
I. MORAL LAW
The purpose of this section is to distnguish the subjec

from that of ethics in The Metaphysic of Morals. It will be
distinction rests on the difference between the external
in Kantian terminology between the phenomenal
aspects of human behavior. I will show that law within
theory makes requirements only on external behavior
limit only external action and have nothing to do with
motivations of the actor, as does ethics. To understand
however, one must first have a basic concept of Ka
16 MdS, 6A.A247.
17 See Schwarzschild, 'Kantianism on the Death Penalty', (an
Problems), Archiv fur Rechts- und Sozial Philosophie 71 (1985)
whether capital punishment is compatible with Kant's general ph

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human action generally in relationship to duties or imperatives requir-

ing particular human conduct.
The starting point of this inquiry is the freedom of human choice,'8
and its relation to moral law or what Kant calls 'laws of freedom'.
'Choice' is defined by Kant as the ability to act or not to act to bring about
the objects of one's ideas.'9 It is essentially the human executive faculty
and is always tied to the actual ability to achieve the goal toward
which the act is directed. Human choice is not 'pure', which means
that it may execute actions that are motivated by sensual drives as well
as actions motivated by moral considerations. For this reason laws of
freedom, or moral laws, express imperatives to act or not to act that
counter-balance contradicting drives. These imperatives are dictated
through the human 'will' or what Kant also calls 'practical reason'.
The will is the ability to cause or initiate the objects of one's ideas as they
relate to determining human choice to action.20 It is the legislative faculty
and the laws it issues can be followed by the individual in his goal-
18 One major problem in any discussion of Kant in the English language is the
translation of the words 'Wille' and 'Willkir'. Some translators translate 'Wille'
as 'Will' and 'Willkir' as 'will'. Others use the words 'will' and 'choice'. Literally
translated 'Willkiir' means 'arbitrariness' in relation to the ability to decide to act
to bring about an event or not to so act. 'Arbitrariness', however, is rather clumsy
and 'free arbitrariness' to convey 'freedom to act as one chooses' is even worse. I
have opted for 'will' as 'Wille' and 'choice' as 'Willkiir'. See L. W. Beck, A
Commentary on Kant's Critique ofPractical Reason 177, n. 1 (1960).
'9 'Choice' is defined by Kant as follows: "To the extent it (the discretionary
ability to do or not to do) is connected to the awareness of the potential of
one's action to bring about the object (of one's ideas), it is called choice". ("Sofern
es (ein Vermogen nach Belieben zu thun oder zu lassen) mit dem
Bewuftsein des Vermogens seiner Handlung zur Hervorbringung des Objects
verbunden ist, heigt es Willkur ... .") MdS, 6 A.A. 213 (parenthetical
information added to English and German texts).
20 'Will' is defined by Kant as follows: "The will is, therefore, the ability to
desire . . . in relation ... to the determination of choice to action". ("Der Wille
ist also das Begehrungsvermogen, ... in Beziehung ... auf den Bestimmungs-
grund der Willkiir zur Handlung".) Id. The 'ability to desire' (Begehrungsver-
mogen) is defined as "the ability to be the cause of the objects of one's ideas
through one's ideas" ("das Vermogen durch seine Vorstellungen Ursache der
Gegenstande dieser Vorstellungen zu sein"). Id. at 211.

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158 Sharon Byrd
directed behavior. Laws of freedom are discovered through pure prac-

tical reason by subjecting the maxim of a possibly chosen action to the
test of whether it could be a universal law.' Kant's famous categorical
imperative essentially demands that one live according to the provisions
contained in laws of freedom.
The relationship between 'choice' and 'will' and the nature of moral
laws or laws of freedom with respect thereto can be illustrated easily
through one of Kant's own examples, namely that of false promising.
Kant posits the case of an individual who is in need of money and
wants to borrow it although he knows he will not be able to repay the
loan.22 In order to get the money he must promise to pay it back and
the moral issue raised is whether he may make the false promise. The
'object of his idea' as it is caused by his worldly interests is the money
desired and his 'choice' is his ability to act to get that money. If the
maxim of the action, namely making a false promise to get a loan, is
put to the test of whether it can be a universal law, however, one sees
immediately that it could not but "rather that it would necessarily
contradict itself".23 Promises are made to create reliance on some
21 See id. at 214.

22 Grundlegung zur Metaphysik der Sitten (Foundation of the Metaphysic of Morals) vol.
4 (hereinafter cited as GMdS, 4 AA.) 422.
23 I then immediately see that it could never be a universal law of nature and be
consistent but rather would necessarily contradict itself. The universalization
of a law that everyone who believed himself to be in need could promise
whatever he wanted with the intention of not fulfilling it would make
promising, and whatever its purpose may be, impossible. No one would
believe what was promised him but instead would laugh at such an expres-
sion as an empty pretense.
Da sehe ich nun sogleich, dal sie niemals als allgemeines Naturgesetz gelten
und mit sich selbst zusammenstimmen k6nne, sondern sich nothwendig
widersprechen miisse. Denn die Allgemeinheit eines Gesetzes, dafi jeder,
nachdem er in Noth zu sein glaubt, versprechen k6nne, was ihm einfallt, mit
dem Vorsatz, es nicht zu halten, wiirde das Versprechen und den Zweck, den
man damit haben mag, selbst unmoglich machen, indem niemand glauben
wiirde, dagi ihm was versprochen sei, sondem iber alle solche Aui3erung als
eitles Vorgeben lachen wiirde.
Id.

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future occurrence. If false promising is universalized, then no one

would continue to rely on that which is promised and promising
would lose its meaning altogether. The advantage one could attain
through false promising also would vanish since the necessary reliance
would be lacking. False promising, therefore, would result in an
internal contradiction since it depends upon the universalization of its
negation, namely making a promise one intends to fulfill, and for this
reason cannot possibly be thought of as a universal law or a law of
freedom.24 This testing of possible maxims is done by pure practical
reason which also can determine the 'object of the actor's idea' and
thereby his choice through issuing laws or imperatives for the individ-
ual's course of action.
Actions prescribed in laws of freedom are objectively necessary but

subjectively accidental.25 This objective necessity is not a physical
(theoretical), but rather a moral (practical) necessity.26 'You should not
make false promises' then expresses a moral obligation (necessity)27
that must and will be fulfilled if human choice follows the dictates of
practical reason, i.e., if human choice is in accord with human will.
Since human choice, however, is affected not only by reason and the
awareness of these moral obligations but also by mundane wants and
the desire to satisfy them, whether in fact one does not make a false
promise is subjectively accidental.2
24 It is beyond the scope of this article to give extensive treatment to the nature
of the categorical imperative. For an excellent discussion of its meaning, par-
ticularly in The Metaphysic ofMorals, see M. Gregor, Laws ofFreedom (1963).
25 Vorlesungen uber Moralphilosophie (Lectures on Moral Philosophy) Vigilantius,
winter semester 1793, vol. 27.2,1 (hereinafter cited as Lectures (Vigilantius) 27.
2,1 AA) 481-85; MdS, 6 AA. 222.
26 The terms 'theoretical' and 'practical' express the difference between what is
and what should be. Theoretical philosophy deals with the objects of our experi-
ence and is empirical, e.g., physics or chemistry. Practical philosophy deals with
moral law, e.g., moral or legal philosophy, see MdS, 6 AA. 221; Lectures
(Vigilantius) 27.2, 1 A.A. 485; Kritik der reinen Vernunft (Critique of Pure Reason)
vol. 3 (hereinafter cited as KrV, 3 AA.) 421 (B661).
27 "Obligation is the necessity of a free action according to a categorical
imperative of reason." ("Verbindlichkeit ist die Nothwendigkeit einer freien
Handlung unter einem kategorischen Imperativ der Vernunft.") MdS, 6 A.A. 222.
28 Id.

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160 Sharon Byrd
Laws of freedom constitute the class of all a priori recognizable

moral laws, both ethical and juridical. It is this class, therefore, that
Kant first systematically divides to define the subject matter of the
theory of justice and the theory of virtue. This division rests primarily
on the distinction between external and internal, which is continually
drawn in The Metaphysic of Morals. Generally one may say that 'exter-
nal' denotes empirical or phenomenological, whereas 'internal' ideal or
noumenal factors.29 The contrast between external and internal actions
and their correspondence externally and internally with moral law is the
first distinction used by Kant to separate the juridical from the ethical:
These laws of freedom, as opposed to laws of nature, are called moral. If they
are directed only toward mere external actions and their correspondence to the
law, they are called juridical. If in addition, however, they require that they
(the laws) themselves are the reason for the actions, they are ethical. One then
says that the correspondence with the former is the legality, with the latter the
mo r a 1 i t y of the action."'
29 This distinction and its relevance to moral law was commonly accepted long
before Kant's time. Gottfried Achenwall (1719-1772), for example, in his Prolego-
mena Iuris Naturalis curatius et tertium 5 1 (G6ttingen 1767) defines 'external
actions' as those that "can be perceived by other human beings with their
external senses" and 'internal actions' as those "that cannot be so perceived". (". . .
ACTIONES tum EXTERNAS, quae sensu externo aliorum percipi possunt, tur
INTERNAS, quae ita percipi nequeunt"). He continues: "The external actions
occur through a movement of corporal limbs, the internal through the power of
the soul only" ("Istae motu organorum corporis peraguntur, hae sola vi animae").
This and all other translations of Achenwall's Latin text are the author's own
from the German translation thereof by J. Hruschka, (forthconling). Kant was
clearly familiar with Achenwall's work since he held twelve lectures on "Natur-
recht nach Achenwall" between 1767 and 1788, see J. Hruschka, Das deontologische
Sechseck bei Gottfried Achenwall imJahre 1767: zur Geschichte der deontischen Grundbe-
griffe in der Universaljurisprudenz zwischen Suarez und Kant, 43-44, 66 n. 98
(Berichte aus den Sitzungen der Joachim Jungius-Gesellschaft der Wissenschaf-
ten, Jahrgang 4, Nr. 2, 1986). See generally Vorlesungen uber Naturrecht (Lectures on
Natural Law) Feyerabend, vol. 27.2, 2 (hereinafter cited as Lectures (Fcyerabend)
27.2, 2 A.A.).
"' Diese Gesetze der Freiheit heigen zunm Untersclhiede von Naturgesetzen

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Remaining with our example of promises and their fulfillment, one

can say that a juridical law of freedom concerns the actual external
action of fulfilling that which is promised whereas an ethical law of
freedom requires additionally the internal 'action' of adopting the law
as the reason for fulfilling the promise. The external correspondence
of an action to a moral law is its empirical identity to what is pre-
scribed in that law. Internal correspondence, on the other hand,
concerns the actor's reasons or motivations for so acting. An action
corresponds externally with a law requiring that promises be kept, if it
fulfills that which has been promised. If A promises B that he will do
X next Monday, then A's actually doing X on Monday means that A's
actions correspond externally with this moral law. A may fulfill his
promise because he wants to secure continued business relations with
B or merely because he will profit from keeping it. Internal corre-
spondence, however, is given only if A fulfills his promise because he
is required by moral law to do so regardless of whether he will suffer
a loss or make a profit through the transaction. That he is required to
do so by moral law is discoverable through pure practical reason. To
the extent A's personal motivation for acting is dictated by reason, it
necessarily corresponds internally with moral law.
If we now add two more of Kant's definitions to our above con-
siderations we will see that a legal duty is an external action to which
one is obligated:
Obligation is the necessity of a free action under a categorical imperative of

reason.3
moralis ch. So fern sie nur auf bloie auBere Handlungen und deren Gesetz-
miiigkeit gehen, heifen sie juridisch; fordern sie aber auch, dag sie (die
Gesetze) selbst die Bestimmungsgriinde der Handlungen sein sollen, so sind
sie ethisch, und alsdann sagt man: die Obereinstimmung mit den ersteren ist
die Legali tat, die mit den zweiten die Moralitat der Handlung.
MdS, 6 AA. 214; see also Kritik der praktischen Verunft (Critique of Practical Reason)
vol. 5 (hereinafter cited as KpV, 5 AA.) 71-72.
31 See note 27 supra.

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162 Sharon Byrd
Duty is that action to which one is obligated. It is the substance of the obliga-
tion and it can be one and the same duty (with respect to the action) although
we can be bound to do it in different ways.32
From Kant's definition of 'duty' we see in our example of promising

that the duty is the action in fulfillment of that which was promised.
A's promising B that he will do X on Monday means that doing X is
A's duty. As Kant points out, A may be 'bound' in different ways to
do X. Important with respect to legal duties is that they include only
external actions and the 'legality' of the action is its external corre-
spondence with the requirements of juridical (moral) law. To discover
how we are bound to fulfill these duties we must move to a discussion
of legislation.
II. LEGISLATION
All legislation is composed of two elements: a law w

commission (omission) of a certain action objectively
which expresses a duty, and a motivation which subje
actor's reason for choosing to so act with his awarene
which obligates or binds the actor (subjective necessit
32 "Pflicht ist diejenige Handlung, zu welcher jemand ver

also die Materie der Verbindlichkeit, und es kann einerlei Pf
nach) sein, ob wir zwar auf verschiedene Art dazu verbunde
MdS, 6 A.A. 222.
33All legislation (it may require internal or external action

priori through mere reason or through the choice of ano
parts: first, a law, which makes the action that should
necessary, i.e. which makes the action a duty; second a m
subjectively unites the determination of choice to this
requirements of the law ....
Zu aller Gesetzgebung (sie mag nun innere oder aufiere

diese entweder a priori durch bloge Vernunft, oder durch
andern vorschreiben) geh6ren zwei Stucke: erstlich ein G
Handlung, die geschehen soll, objectiv als nothwendig vor
die Handlung zur Pflicht macht, zweitens eine Triebfeder, w

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mentioned,34 moral law expresses objective (moral) necessity, which is

what Kant means here with the expression of a duty to commit (omit)
an action that is objectively necessary. Since the actions required are
subjectively accidental, i.e., the actor may choose to commit them or
not, the second element of legal or ethical legislation is some form of
motivation inducing the actor to fulfill his duty. It will be shown that
juridical legislation includes only external motivations which it unites
with external duties. Which of the external duties can be externally
motivated depends upon the distinction between external and internal
freedom. We will see that only those external duties prohibiting the
limitation of another's external freedom, or what Kant calls 'perfect
duties' to others can be externally motivated. It is this class of duties,
therefore, that is the object of juridical legislation and the motivation
used to bind the actor to the fulfillment of these duties will be an
external motivation.
The law in our example is 'thou shalt keep promises'. It expresses
objective, moral (practical) necessity. The duty it contains is the action
necessary to fulfill that which was promised. A person subject to the
law is 'bound' through some form of motivation to commit the action.
Given any particular duty, he may be bound to it in different ways,
namely ethically or juridically. Legislation, which is the combination
of a duty and a motivation to fulfill that duty, may be the same with
respect to the duties it includes, but is different with respect to the
motivation it combines with these duties.35 Ethical legislation makes
mungsgrund der Willkiir zu dieser Handlung subjectiv mit der Vorstellung

des Gesetzes verknupft....
Id. at 218.
34 See notes 25-28 and accompanying text.
5 All legislation, therefore, (it could be the same with respect to the action it
names as a duty, e.g. the actions could be external in all cases) can still be
different with respect to the motivations.
Alle Gesetzgebung also (sie mag auch in Ansehung der Handlung, die sie zur
Pflicht macht, mit einer anderen iibereinkommen, z.B. die Handlungen

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164 Sharon Byrd
the duty to act identical with the motivation for so acting. Under
ethical legislation one would fulfill one's promises because it is a duty
to do so. Juridical legislation does not include the idea of acting out of
duty within its laws but rather admits other forms of motivation?6
Under juridical legislation one would fulfill one's promises because of
some empirical reason completely separate from the internal sense of
duty, for example because one could be forced to do so.
As has been indicated, external duties are duties the fulfillment of
which can be observed in the phenomenological world. Internal duties
are duties the fulfillment of which cannot be so observed.37 The
fulfillment of external duties is empirically verifiable and can occur
regardless of the actor's reason for acting. The fulfillment of internal
duties, however, can be verified only by examining the actor's reason
for acting or end, since the proper end in turn is considered to be a
duty to adopt.38 External motivations include some form of force or
mogen in allen Fallen aufiere sein) kann doch in Ansehung der Triebfedern
unterschieden sein.
MdS, 6 A.A. 218-19.
36 That (legislation) which calls an action a duty and simultaneously makes this
duty the motivation is ethical. That (legislation), however, which does not
include the latter, but which also allows for a motivation other than the idea
of the duty itself isj uridical.
Diejenige, welche eine Handlung zur Pflicht und diese Pflicht zugleich zur
Triebfeder macht, ist ethisch. Diejenige aber, welche das Letztere nicht im
Gesetze mit einschlieBt, mithin auch eine andere Triebfeder als die Idee der
Pflicht selbst zulait, istj uridisch.
Id. at 219 (parenthetical information added to English translation).

38 Since, however, I also am obligated to adopt something, which lies within the
concepts of practical reason, as an end, namely rather than only the formal
determination of choice (which is contained in law) also to have a material
determination, i.e. to have an end which can be opposed to the end of sensual
drives: this obligation would be the concept of an end which in itself is a
duty. The theory thereof, however, would not belong to law but rather to
ethics, which alone includes self-constraint according to (moral) laws
within its concepts.

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enticement to encourage the fulfillment of the duties to which they are

united. They too are empirical in nature. Internal motivations are the
duties themselves. This distinction also corresponds to the other two
that have been discussed. Although the actor's reason for acting may
not be verifiable empirically it will depend upon either the expectation
of empirical occurrences or upon the mere sense of duty regardless of
what empirical consequences may be expected. If A's reason for ful-
filling his promise to B is A's expectation of future business dealings
with B, then A's motivation for acting is an awaited empirical occur-
rence, or an external motivation. If A's reason for acting is his sense of
duty alone, then his motivation is not empirical and external but
rather dictated by pure practical reason and internal or noumenal.
Since legislation is composed of a duty and a motivation for acting
to fulfill that duty it also may be distinguished as to whether it is
external or internal. Juridical legislation, since it only concerns the
external correspondence of an action with the duty imposed includes
only external duties and the motivation united with these dutes can
be only an external motivation:
The duties according to juridical legislation can be external duties only, since this
legislation does not require that the idea of this duty, which is internal, be in
itself the reason for the actor's determination of choice. Since it, however, does
need a motivation suitable for laws, it can unite only external (motivations) with
the law.39
Dag ich aber auch verbunden bin mir irgend etwas, was in den Begriffen der
praktischen Vernunft liegt, zum Zwecke zu machen, mithin auger dem
formalen Bestimmungsgrunde der Willkiir (wie das Recht dergleichen
enthalt) noch einen materialen, einen Zweck zu haben, der dem Zweck aus
sinnlichen Antrieben entgegengesetzt werden k6nne: dieses wiirde der Begriff
von einem Zweck sein, der an sich selbst Pflicht ist, die Lehre desselben
aber wiirde nicht zu der des Rechts, sondern zur Ethik geh6ren, als welche
allein den Selbstzwang nach (moralischen) Gesetzen in ihrem Begriffe mit
sich fuhrt.
Id. at 381.
39 Die Pflichten nach der rechtlichen Gesetzgebung konnen nur aufere Pflich-
ten sein, weil diese Gesetzgebung nicht verlangt, dab die Idee dieser Pflicht,
welche innerlich ist, fur sich selbst Bestimmungsgrund der Wilkiir des

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166 Sharon Byrd
Since not all of the external duties contained in moral law can be the
object of juridical legislation, the question remaining is which of these
external duties can be motivated externally. The answer to that
question depends upon the distinction between external and internal
freedom:
The freedom to which the former (juridical laws of freedom) are related can be
freedom only in the external exercise of choice; the freedom, however, to which
the latter (ethical laws of freedom) are related can be freedom both in the
external as well as internal exercise of choice, to the extent it is determined
through laws of freedom.40
As Kant tells us, the human faculty of choice develops maxims of

action.41 "A maxim is the subjective principle of action that the
subject makes as a rule for himself (namely, how he wants to act)."42
Since the legality of an action is its external correspondence with a law
of freedom, freedom in the external exercise of choice must be the
actor's freedom to execute a self-adopted maxim in the phenomeno-
logical world according to the requirements of a law of freedom. The
Handelnden sei, und, da sie doch einer fur Gesetze schicklichen Triebfeder
bedarf, nur aufere mit dem Gesetze verbinden kann.
Id. at 219.
40 Die Freiheit, auf die sich die erstern Gesetze beziehen, kann nur die Freiheit
im auBeren Gebrauche, diejenige aber, auf die sich die letztere beziehen, die
Freiheit sowohl im iauBern als innern Gebrauche der Willkiir sein, sofern sie
durch Verunftgesetze bestimmt wird.
Id. at 214. See also id. at 406: "This distinction, on which the principal division of
the theory of morals is based, results from the fact that the concept of
freedom, which is common to both, requires the separation of duties pertaining
to external and internal freedom. The latter are purely ethical." ("Diese
Absonderung, auf welcher auch die Obereintheilung der Sittenlehre iiberhaupt
beruht, grindet sich darauf: dab der Begriff der Freiheit, der jenen beiden
gemein ist, die Eintheilung in die Pflichten der afiueren und inneren
F r e i heit nothwendig macht; von denen die letztern allein ethisch sind.")
4' "Laws proceed from the will, maxims from choice." ("Von dem Willen gehen
die Gesetze aus; von der Willkiir die Maximen.") Id. at 226.
42 "Maxime aber ist das subjective Princip zu handeln, was sich das Subject
selbst zur Regel macht (wie es namlich handeln will)." Id. at 225.

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reason why the actor wants to execute the particular action, namely
his motive or end, is irrelevant to external freedom and external or
juridical legislation. An action that corresponds externally with a
moral (juridical) law of freedom can be committed on the basis of one
of many possibly adopted maxims.43 The morality of an action, on the
other hand, is the additional internal correspondence of the actor's
subjectively adopted maxim with a law of freedom. Freedom in the
internal exercise of choice then must be the actor's freedom to adopt
the duty expressed in a law of freedom as his subjective principle of
action.
At this point one can say that Kant has differentiated law from
ethics on an external-internal basis according to the types of duties,
their legislation, or the motivation attached therewith, and the actor's
freedom that is affected by these two branches of moral law. We
know that all legal duties will be external duties. The fulfillment of
legal duties is empirically verifiable since it depends only on the
external correspondence of the actor's deed with the requirements
stated in the legal obligation. The performance of these duties can be
juridically motivated only externally, that is through something other
than the actor's internal regard for the law. Finally, the freedom to
which they are related can be only the actor's external realization of
his personally defined goal-directed behavior.
While this differentiation provides us with a necessary characteristic
of all legal duties, their legislation and the type of freedom to which
they relate, seen individually it does not sufficiently determine the
class of duties that will be included within Kant's theory of law. One
43 The principle that makes certain actions duties is a practical law. The actor's
rule that he adopts for subjective reasons as his principle is called his maxim.
Therefore, for one and the same law still the actor's maxims can be very
different.
Der Grundsatz, welcher gewisse Handlungen zur Pflicht macht, ist ein
praktisches Gesetz. Die Regel des Handelnden, die er sich selbst aus sub-
jectiven Grinden zum Princip macht, heifit seine Maxime; daher bei einerlei
Gesetzen doch die Maximen der Handelnden sehr verschieden sein k6nnen.
Id. at 225.

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168 Sharon Byrd
notable exception to the external duty characteristic of juridical legis-

lation is the duty of charity to others. Although it is an external duty,
it cannot be the object of a legal obligation.44 Taken together, how-
ever, they do sufficiently define the range of legal duties. If we con-
sider Kant's classification of duties generally as perfect and imperfect
on the one hand and duties to others and to ourselves on the other,
there are four groups of possible duties: (1) perfect duties to others,
e.g., prohibition against homicide, (2) perfect duties to oneself, e.g.,
prohibition against suicide, (3) imperfect duties to others, e.g., duty of
charity, (4) imperfect duties to oneself, e.g., duty to strive toward self-
perfection.45 The requirement that legal duties be external, excludes
only group (4) from the range of possible juridical obligation since at
least certain aspects of self-perfection are not empirically verifiable.
Adding the requirement that the external duty be externally motivated
additionally excludes group (2) since an actor seriously seeking self-
destruction cannot be persuaded to abandon the plan permanently
through any external motivation. Finally, adding the stipulation that
the freedom to which the duty relate be external freedom, excludes
the duty of charity to others. Although this duty is external and could
conceivably be externally motivated46 it does not relate to external
freedom. An external act of charity may reveal the actor's internal
freedom from egotistical motives, but his lack of charity does nothing
to interfere with the external freedom of the needy since it does not
interfere with goal-directed behavior but rather fails to assist in
expanding the range of possible goal-directedness. This latter point
needs some clarification. Kant defines 'choice' as the ability to bring
about the object of one's self-defined desires through one's actions.47
The lack of this ability makes what otherwise would be 'choice'
merely a 'wish'. Thus my desire to be at the top of Mt. Everest is a
'wish' unless I have some means of attaining my goal. If someone
44 See id. at 220.

45 See id. at 240.
46 Under the German Penal Code (StGB) 5 323c it is a criminal offense not to
render aid under certain specified circumstances. In the United States some state
codes also impose a general duty to render aid, see P. Robinson, Criminal Law
Defenses ? 86(c)(2)(G) (1984 & Supp. 1986).
47 See MdS, 6 A.A. 213 and supra note 19 and accompanying text.

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offers to fly me to the top, then my 'wish' becomes 'choice', namely I

can get on the plane or not. The offer to fly thereby expands upon my
possibility of choice. The refusal to fly, however, does not limit my
choice since I had no choice to begin with.
We are left with class (1), or perfect duties to others as the class of a
priori recognizable duties that can be the object of juridical legislation,
and thereby externally motivated. As will be shown in section III, the
fulfillment of these duties can be demanded or forcefully coerced by
all those with whom one comes in contact. Since freedom is the
central theme of Kant's moral philosophy and coercion is a limitation
on freedom, the right to use it must be justified. Its justification
revolves around the concept of legal 'right' and provides us with a
structural minimum of human interaction as it necessarily must exist
in the state of nature.
III. LEGAL RIGHT: FREEDOM AND COERCION
Freedom, as the central, unique characteristic of rational b

basis of human rights:
Freedom (independence from another's forceful exercise of cho

extent it can co-exist with everyone else's freedom under a univer
only original right with which every human is endowed by vir
humanity48
Since all individuals have a right to exercise free choice to the extent
they do not interfere with another's freedom of choice, "(a)ny action is
right, if through it or according to its maxim the freedom of choice
of one can co-exist with everyone's freedom under a universal law".49
48 Freileit (Unabhingigkeit von eines Anderen nothigender Willkiir), sofern

sie mit jedes Anderen Freiheit nach einem allgemeinen Gesetz zusammen
bestehen kann, ist dieses einzige, urspriingliche, jedem Menschen kraft seiner
Menschheit zustehende Recht.
MdS, 6 AA. 237.

49 "Eine jede Handlung ist recht, die oder nach deren Maxime die Freiheit der
Willkiir eines jeden mit jedermanns Freiheit nach einem allgemeinen Gesetze
zusammen bestehen kann." Id. at 230.

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170 Sharon Byrd
Contrarily, an action is wrong if it hinders any rightful exercise of

choice since it, by definition, cannot co-exist with the freedom of all
under universal law:
If then my action or generally my condition can co-exist with the freedom of

everyone under a universal law, one who hinders me thereby does me wrong;
since this hindrance (this limitation) can not exist with freedom under universal
laws.50
Finally, and most importanty for Kant's theory of law, an action

which hinders a wrongful action is right. This last step is justified by
Kant through the principle of contradiction in analogy to cause and
effect relationships:
It follows: if a certain exercise of freedom is itself a hindrance of freedom under

universal laws (i.e., wrong) then the force, which is employed against it, as a
limitation on a hindrance of freedom, is harmonious with freedom under
universal laws, i.e., right:.. ..5
50 Wenn also meine Handlung, oder iiberhaupt mein Zustand mit der Freiheit
von jedermann nach einem allgemeinen Gesetze zusammen bestehen kann, so
thut der mir Unrecht, der mich daran hinderr, denn dieses Hindernig (dieser
Widerstand) kann mit der Freiheit nach allgemeinen Gesetzen nicht bestehen.
Id. at 230-31.
51 Folglich: wenn ein gewisser Gebrauch der Freiheit selbst ein HinderniL der
Freiheit nach allgemeinen Gesetzen (d.i. unrecht) ist, so ist der Zwang, der
diesem entgegengesetzt wird, als Verhinderung eines Hindernisses der
Freiheit mit der Freiheit nach allgemeinen Gesetzen zusammen stimmend,
d.i. recht:....
Id.at 231
The resistance, employed against the hindrance of an effect, is a furtherance

of this effect and is harmonious with it. Now everything that is wrong is a
hindrance of freedom under universal laws; coercion, however, is also a
hindrance or resistance opposed to freedom ... (A)ccording to the principle
of contradiction a power is simultaneously connected with every right to
coerce him who violates that right.
Der Widerstand, der dem Hindernisse einer Wirkung entgegengesetzt wird,

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Human choice, revealed in goal-directed action, can be the cause of

some phenomenological effect. As long as the actor's choice does not
result in a violation of another's freedom, the effect, namely his act, is
right. Any limitation on this effect is wrong (not-right) and a limita-
tion on this limitation, since it furthers the effect, is right (not(not-
right)). Every right, therefore, is accompanied by the authority to exert
coercion to the extent necessary to enforce the right or to hinder any
interference therewith. This concept of right is known a priori and
follows through an analysis of the concept of freedom.5 Since one's
right to the free exercise of choice is also a right to repel any limita-
tion thereon, Kant defines 'right', in the strict sense, as coercion
necessarily harmonious and reciprocal with everyone's freedom. This
definition is a construction of the concept of right, similar to a
geometrical construction employed to discover truths about mathe-
matical concepts, in analogy to the free movement of physical bodies
according to the laws of the equality of action and reaction.53
ist eine Beforderung dieser Wirkung und stimmt mit ihr zusammen. Nun ist
alles, was unrecht ist, ein Hindernil der Freiheit nach allgemeinen Gesetzen:
der Zwang aber ist ein Hindernig oder Widerstand, der der Freiheit ge-
schieht ... (M)ithin ist mit dem Rechte zugleich eine Befugnii, den, der
ihm Abbruch thut, zu zwingen, nach dem Satze des Widerspruchs verknipft.
Id. The principle of contradiction is: "No thing can have a contradictory pre-
dicate . ..". ("Keinem Dinge kommt cin Pradicat zu, welches ihm widcrspricht
. .".) KrV, 3 A.A. 141 (B190).
52 See MdS, 6 A.A. 232, 396.
53 The law of coercion, which is necessarily harmonious and reciprocal with

everyone's freedom under the principle of universal freedom is similar to the
cons t r u c tion of the concept of right, i.e. the representation of it in a pure
concept a priori under analogy to the possibility of the free movement of
bodies under the law of the equality of action and reaction.
Das Gesetz eines mit jedermanns Freiheit nothwendig zusammenstimmenden

wechselseitigen Zwanges unter dem Princip der allgemeinen Freiheit ist
gleichsam die Construction jenes Begriffs, d.i. Darstellung desselben in ein-
er reinen Anschauung a priori, nach der Analogie der Moglichkeit freier
Bcwcgungen der K6rpcr untcr dem Gcsctzc der Glcichheit der Wirkung
und Gegenwirkung.
Id. at 232.

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172 Sharon Byrd
In Kant's Introduction to the Theory ofJustice,54 he establishes an almost

mathematical relationship of equality between external freedom and
external coercion. It is founded on the idea of the double negation of a
cause and effect relationship and through the necessary equality of
effect and counter-effect in the free movement of physical bodies. His
insistence on exact equality has two consequences in addition to
equating coercion and freedom. First, if the coercion exerted against a
forceful limitation on freedom is too great, then it is no longer
compatible but rather itself a limitation on freedom, or wrong.
Second, if the coercion is too small, then although not wrong it is
ineffective in nullifying the limitation on freedom and the net result is
still a reduction of freedom.
It is important to realize that at this stage of argumentation, Kant is
still discussing the state of nature and not civil society.55 As Kant
points out, one need not think of 'right' as being composed of two
parts, namely an obligation and the authority of he who obligates to
coerce adherence thereto. Instead, one can see the concept of 'right'
directly in the connection between universal, alternating coercion and
freedom.56 Kant, therefore, is considering natural rights and not rights
dependent on positive law. In addition, since freedom is the original
right of humanity and since the concept of right as coercion follows
through analysis of the concept of freedom, coercive right is also
original to man. It cannot, therefore, depend on the existence of a civil
society.57 The coercion justified here is that used in self-defense or, in
Kant's example of a creditor forcing a debtor to pay back his loan, in
self-help cases. It is the direct defense of one's rights. Although it
could be seen to be deterrent, since everyone's right to exercise this
type of defense clearly will discourage some infringements, it is not
54 See id. at 231-33.

55 Contrarily, Scheid, Kant's Retributivism, Ethics 93, 262, 267, 269 (1983); I.
Kant, The Metaphysical Elements ofJustice at xxi of the translator's introduction, (J.
Ladd translation 1965).
56 See MdS, 6 A.A. 232.
57 See Vorarbeiten zu Die Metaphysic der Sitten (Preparatory Studies to the Metaphysic of
Morals) vol. 23 (hereinafter cited as Preparatory Studies, 23 A.A.) 219 where Kant
points out that the principle of all propositions on innate right is analytic.

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primarily a prospective threat. The coercion justified is also not

vindictive. It may be employed to maintain a right but not to revenge
a violation of right. Indeed, Kant rejects personal revenge both in his
theory of justice and of virtue.58 Any after-the-fact reaction to a
violation of right is reserved to the supreme law maker, namely to
God in a state of nature or to the head of state in a civil society. To
find the basis for the right to punish then, one must consider the role
of government within Kantian legal theory.
IV. CIVIL SOCIETY
Kant's move to a civil society is justified through th

possession'. Ideal as opposed to real possession is p
detention. Although something may be mine if I am
hand (real possession with detention), Kant argues th
mine when I am not holding it in my hand (ideal po
detention). The juridically relevant aspect of possess
one causes the possessor by using the object witho
Kant's argument begins60 by postulating the possibi
possession of an external object: "It is possible to ha
external object of my choice as mine; i.e., a maxim
object of choice must become per se (objectively
58 See MdS, 6 AA. 332, 460; Vorlesungen uber Moral Philosoph

Philosophy) vol. 27.1, Collins, Moralphilosophie, 237-473 (h
Lectures (Collins) 27.1 AA.) 435.
59 "The legal mine (meum iuris) is that with which I am so
thereof by another without my consent would injure me
Meine (meum iuris) ist dasjenige, womit ich so verbu
Gebrauch, den ein Anderer ohne meine Einwilligung von h
mich ladiren wirde") MdS, 6 AA. 245.
60 See id. at 246. The exact ordering of the sections in Kant's
recently been called into question by Bernd Ludwig, Der P
Postulats der praktischen Vernunft innerhalb der Paragraphe
Rechtslehre, Rechtsphilosophie der AuJklarung infra note 86 at
edition of the Theory of Justice, Metaphysische Anfangsgrund
Ludwig ed. 1986). That 5 6 contains an inappropriate text (
first noticed by W. Buchda, Das Privatrecht Kants 36-37 (disser

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174 Sharon Byrd
nullius), if the maxim were law, is wrong".6' A postulate is the state-

ment of a condition that is necessary for another known and necessary
truth.62 The postulate being a necessary condition for a known truth,
it also is known to be necessarily true. The necessary truth here is
freedom of human choice. Since an individual is physically (empiri-
cally) capable of using external objects63 and since possession is the
"subjective condition of the possibility of use","4 an individual must be
able to possess the object in order to use it. If possession is legally
impossible, meaning it cannot coexist with the freedom of everyone
under a universal law, then free choice would deprive itself of free-
dom by making a usable object unusable. Freedom, without possession,
would contradict itself. Possession, therefore, must be objectively
possible as an a priori condition of practical reason.6" Possession,
however, is the right to obligate others to refrain from using that
possessed. Since this right does not follow through analysis from the
concept of right (justice), it is an a priori expansion of practical reason
or a synthetic a priori proposition."6
61 "Es ist m6glich, einen jeden augem Gegenstand meiner Willkur als das Meine
zu haben; d.i.: eine Maxime, nach welcher, wenn sie Gesetz wiirde, ein Gegen-
stand der Willkiir an sich (objectiv) herrenlos (res nullius) werden miifte, ist
rechtswidrig." MdS, 6 A.A. 246.
62 See KrV, 3 AA. 421 (B661-2). A postulate is the consequent of an implica-
tion in cases in which the antecedent is true. If the antecedent here is 'freedom
of choice' and the consequent 'external possession' then 'external possession' is a
necessary condition for 'freedom of choice'. If 'freedom of choice' is known to be
true a priori, then one may postulate 'external possession'. See also KpV, 5 A.A
122: "(A) postulate of pure practical reason (is) ... a theoretical proposition,
which as such cannot be proved, to the extent it is necessarily connected to an a
priori unconditionally valid practical law" (parentheses omitted from original).
("(E)in Postulat der reinen praktischen Verunft (worunter ich einen
theoretischen, als solchen aber nicht erweislichen Satz verstehe, so fern er
einem a priori unbedingt geltenden praktischen Gesetze unzertrennlich
anhangt)."
63 See MdS, 6 A.A. 246.
64 Id. at 245: "subjective Bedingung der M6glichkeit des Gebrauchs . .".
65 Id.at 246.
66 Id. at 247.

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Kant continues to give an 'exposition',67 'definition',68 and 'deduc-

tion'69 of external possession. In his exposition, he differentiates
between 'internal mine' and 'external mine'. Internal mine is freedom
and it is violated if one deprives me of the actual physical (empirical)
possession of an object, for example grabbing an apple out of my
hand. External mine, however, is that which belongs to me without it
being in my physical possession. An injury to something that is
externally mine is an injury to me even though I have separated
myself voluntarily from the object, e.g., taking the apple without my
consent. From the exposition follows the nominal definition of external
mine as that for which any hindrance of my use is a violation of
my freedom.70 This definition corresponds to physical possession of
67 An exposition is an incomplete definition of a concept. Although it lists

necessary characteristics, it can never be known to be exhaustive. See KrV, 3 AA.
478-79 (B756-58).
68 See, generally, Logik (Jasche) vol. 9 (hereinafter cited as Logic (iische) 9 A.A.)
140-45; "A definition is a sufficiently clear and precise concept ...". ("Eine
Definition ist ein zureichend deutlicher und abgemessener Begriff ..."), id. at
140.
69 A concept intended for pure use a priori requires a deduction, which, if it

explains how such a concept relates a priori to an object, is a transcendental (as
opposed to empirical) deduction. See KrV, 3 A.A. 99-100 (B 17).
70 The nominal definition, i.e. that which is sufficient merely to differ-

entiate the object from all others and which follows from a complete and
definite exposition of the concept, would be: the external mine is that
which is external to me and the hindrance of my indiscriminate use thereof
would be an injury (interference with my freedom that can co-exist with the
freedom of everyone under a universal law of freedom).
Die Namenerklarung, d.i. diejenige, welche bloL zur Unterscheidung

des Objects von allen andern zureicht und aus einer vollstindigen und
bestimmten Exposition des Begriffs hervorgeht, wiirde sein: Das aiuere
Meine ist dasjenige aufer mir, an dessen mir beliebigen Gebrauch mich zu
hindern Lasion (Abbruch an meiner Freiheit, die mit der Freiheit von
Jedermann nach einem allgemeinen Gesetze zusammen bestehen kann) sein
wuirde.
MdS, 6 AA. 248-49.

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176 Sharon Byrd
external objects. The real definition of the external mine, which is

sufficient for its deduction, is that for which any hindrance of my use
injures me even though I am not physically in possession of the
object.71 This definition corresponds to ideal possession of an external
object. In the deduction of the external (noumenal) mine, Kant points
out that all juridical propositions are a priori propositions of reason.
Empirical possession is an analytic a priori juridical proposition since it
says no more than what follows from the concept of right, namely
that grabbing the apple out of my hand hinders me in an act that
can, and must be able to,72 coexist with everyone's freedom. Ideal
(noumenal) possession, however, is a synthetic a priori juridical proposi-
tion,73 since it extends beyond the concept of right as co-existing,
interacting freedom by making possession without detention a neces-
sary constituent of external possession.74 Since a transcendental deduc-
ton is an explanation of how concepts can relate a priori to objects,75
Kant is showing how noumenal possession necessarily is related to the
idea of possession in general and thereby to freedom and the theory of
justice. Accordingly he argues: "Since if it is necessary to act according
71 The real definition of this concept, however, i.e., that which is sufficient
for the deduction thereof (recognition of the possibility of the object) is as
follows: the external mine is that for which disturbance of my use of it would
be injury even though I am not in possession of it ....
Die Sacherklarung dieses Begriffs aber, d.i. die, welche auch zur Deduc-
tion desselben (der Erkenntnif der M6glichkeit des Gegenstandes) zureicht,
lautet nun so: Das aufere Meine ist dasjenige, in dessen Gebrauch mich zu
storen Lasion sein wiirde, ob ich gleich nicht im Besitz desselben ...
bin.
id. at 249.
2 See id. at 246, and supra note 65 and accompanying text.
73 See supra note 66 and accompanying text.
74 "(S)ince it (ideal possession) posits nonphysical possession as necessary to the
concept of the external mine and thine it is synthetic .. .". ("(W)eil er einen
Besitz auch ohne Inhabung als nothwendig zum Begriffe des augeren Mein und
Dein statuirt, so ist er synthetisch, ...") MdS, 6 A.A. 250 (parenthetical text
added to English translation).
75 See supra note 69.

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to that legal proposition (the postulate of legal possession), then tht

noumenal condition (of pure legal possession) also must be possible".76
Once Kant has established the necessity of noumenal possession77
he analyses the claim: 'this external object is mine' as universally valid
legislation78 since it places an obligation on all others, which they did
not have in its absence, to refrain from using the object claimed.79
Since the legislation is universally valid, such a claim can be made
only with the recognition that one is similarly bound to refrain from
using the external objects that another claims to be his. Conversely, I
am not bound to refrain from using another's claimed possessions
unless he also gives me security that he will not use mine.80 Unless the
reciprocity of the obligation that is implicit in the idea of universally
valid legislation, or a priori and thereby necessary propositions of
justice, is secured, then any attempt to obligate another would be a
one-sided restriction on his freedom8' and in violation of the general
theory of justice.82 This security can be guaranteed only in a civil
society which is the "collective-universal (common), and powerful will
that binds everyone.. ." 83. From this recognition follows:
If it must be juridically possible to have an external object as one's own, it also

must be permissible for one to force every other, with whom one comes in
conflict over the possession of such an object, to move together with oneself to a
civil social order.84
76 "Denn wenn es nothwendig ist, nach jenem Rechtsgrundsatz zu handeln, so

mug auch die intelligibele Bedingung (eines blog rechtlichen Besitzes) m6glich
sein." MdS, 6 A.A. 252 (first parenthetical phrase added to English translation).
77 Since nothing within a metaphysic may be accidental and dependent on
empirical factors, it is clear why Kant must move away from physical to ideal
possession. The move, however, is more difficult to justify since it is not clear
from an analysis of either freedom or right (justice).
78 MdS, 6 AA. 253.
9 Id. at 247, 253.
80 Id. at 255-56.
81 Id. at 256.
82 See id. at 230 and supra note 49.
83 MdS, 6 A.A. 256: "ein jeden anderen verbindender, mithin collectiv allge-
meiner (gemeinsamer) und machthabender Wille. . .".
84 Wenn es rechtlich m6glich sein muf, einen aufleren Gegenstand als das Seine

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178 Sharon Byrd
The transition from the state of nature to civil society has its parallel
in the Kantian conceptual contrasts, 'provisional-peremptory', 'com-
mutative-distributive' and in the Ulpian formulas cited by Kant'8
'neminem laede' (do no one wrong) and 'suum cuique tribue' (give each
his own). All of these parallels show the relationship between lability
and stability. The provisional-peremptory relationship is similar to that
drawn in the Critique of Pure Reason86 between problematic and
apodictic judgments, the former representing the possible and the
latter the necessary. In a state of nature, "possession in anticipation and
preparation for such a state (civil society), which can be founded only
on a law of the common will, that is which corresponds to the
possibility of the latter, is provisional - legal possession".87
Once the move has been made from the state of nature to civil
society, possession, which must be possible, is secured or necessary
(peremptory), ".. possession, which is found in such a real state (law
of common will or civil society) would be peremptory possession".88
The best discussion of commutative and distributive justice is found
in Gottfried Feyerabend's lecture notes taken from Kant's lectures in
1784 on natural law according to Gottfried Achenwall.89 Here the
terms are defined: "Commutative justice is right as recognized by
zu haben: so mug es auch dem Subject erlaubt sein, jeden Anderen, mit dem
es zum Streit des Mein und Dein iiber ein solches Object kommt, zu
n othigen, mit ihm zusammen in eine biirgerliche Verfassung zu treten.
Id. See also Briefwechsel (Correspondence) 1789-94, vol. 11.2 (hereinafter cited as
Correspondence, 11.2 A.A.) 399; Lectures (Feyerabend) 27.2, 2 AA. 1337.
85 MdS, 6 AA. 236-37.
86 See KrV, 3 A.A. 89-90 (B100-101); R. Brandt, 'Das Erlaubnisgesetz, oder:
Vernunft und Geschichte in Kants Rechtslehre', Rechtsphilosophie der Aufklarung
(R. Brandt ed. 1982) 233, 247, citing also KrV, 3 A.A 489-90 (B776).
87 "Ein Besitz in Erwartung und Vorbereitung eines solchen Zustandes, der
allein auf einem Gesetz des gemeinsamen Willens gegriindet werden kann,
der also zu der Moglichkeit des Letzteren zusammenstimmt, ist ein
provisorisch-rechtlicher Besitz . .". MdS, 6 AA. 256-57.
88 "(D)erjenige, der in einem solchen wirklichen Zustande angetroffen wird,
ein peremtorischer Besitz sein wiirde." Id. at 257 (parenthetical phrase added
to English translation).
89 See Lectures (Feyerabend) 27.2, 2 AA. 1337.

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everyone from reason, distributive from the judgment of a third about

right which also must be valid for me".90 Rights under commutative
justice, in a state of nature, are negative under the principle 'neminem
laede'. Only through distributive justice are these natural rights secured
and positive rights, such as the right to acquire property, possible.
Distributive justice gives effect9' to commutative justice through
legislation backed by force. Since the legislation is an expression of the
common will, the force exerted to secure rights acquired thereunder is
also an expression of that common will or rightful force.2 The
principle 'suum cuique tribue' is interpreted by Kant to mean 'secure
each his own' since one cannot give another that which is his. This
principle is immanent to distributive justice and provides the reason
for the duty to move from the state of nature to civil society. Through
civil society one can acquire further rights by obligating others under
the idea of a common will. Since acquisition is essential to possession,
and possession to freedom, civil society is necessary for the expansion
and security of freedom as it relates to human interaction. Any refusal
to move from the state of nature to civil society or any violation of
the common will, since that violation represents a return to the state
of nature, is in itself wrong.93
The whole purpose of civil society in Kantian theory is to acquire
and secure rights. The foundation for acquisition is the synthetic a
priori extension of practical reason which tells us what must be true if
we proceed from the initial assumption of individual freedom. This
logical extension, however, states merely that possession and acquisi-
tion are possible but not that any particular individual has a claim
to a certain object of choice. The actual decision must be made under
the authority of the common will which legislates, and enforces its
90 "Justitia commutativa ist das Recht, was ein jeder aus seinem Verstande selbst
erkennt, distributiva wo auch eines 3ten Urtheil uber Recht bei mir giiltig seyn
mui. Id. at 1337.
9' See also MdS, 6 AA. 460.
92 "Gesetz mug Gewalt haben, und Gewalt dessen, dessen Willen zugleich ein
Gesetz ist, ist rechtmaiige Gewalt." Lectures (Feyerabend) 27.2, 2 AA. 1337.
93 See supra note 84; Lectures (Feyerabend) 27.2, 2 AA. 1337-38.

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180 Sharon Byrd
laws through force. This latter capacity of the common will gives
security for natural rights, namely the internal mine or freedom to the
extent it is compatible with like freedom for all, and for acquired
rights, namely the external mine or freedom in its synthetic a priori
extention.
V. CRIMINAL LAW
Before emerging into Kantian criminal legal theory, i

to review the steps already taken to define what law
what its function can be in an organized civil society. E
law, as opposed to ethics, is external or phenomena
contains are external requiring or forbidding certain em
able behavior. Whether the actor corresponds to the re
of respect for the law or out of self-interest is juridic
For this reason, any motivation attached to the duties
fulfillment must also be external. It is intended to gu
compliance and not to persuade the actor that he ought
because it is the right thing to do.94 The freedom rel
duties is external freedom. The law affects only the a
goal-directed behavior as it relates to the external beh
individuals. To the extent an action does not restrict an
freedom, it is juridically permissible even though the
vated to act by sensual interests and thus is not necess
ethically good conduct.
Every individual, as a moral agent with intrinsic va
with one natural right, namely freedom. To the extent
his freedom externally95 does not violate another's ri
freedom, he may not be restricted in any way. At the
no longer is an expression of freedom that can co
94 As Fletcher, 'Law and Morality: A Kantian Perspective',

(1987), 533, 534, points out, the Kantian system does not legislate
95 Exercising internal freedom, i.e., freeing oneself of sensual
for action, presumably cannot interfere with another indivi
external freedom.

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181
Kant's Theory of Punishment
freedom of all under universal law. Any external coercion, that

counteracts this infringement restores freedom and is necessarily com-
patible with the freedom of all. The force justified, which limits goal-
directed behavior, is direct and immediate. It is not revenging, not
prophylactic and can occur in the state of nature. It does not suffice to
secure rights. It, therefore, cannot be the basis of society's right to
punish criminal law violations.96
Society's right to punish criminal violations lies in its duty to secure
rights or in its duty, as an expression of the common will, to maintain
itself. Since one can force every other with whom one comes in
contact to leave the state of nature and move to civil society, by the
same reasoning one can also prevent anyone from leaving civil society
and returning to the state of nature. Kant refers to commutative
justice in the state of nature as the 'conditon of war'.97 In moving
from the state of nature to civil society one subjects oneself to the
common will which legislates and judges. Its judgments are enforce-
able through legitimate force to secure the rights it decides upon.98
Only distributive justice in civil society can maintain peace and
universal freedom.
Crimes are violations of law that "make the actor incapable of being
a citizen".99 Only public crimes are criminally punishable,'00 and
public crimes are those that endanger the security of society.'0' Kant
differentates public from private crimes on the basis of the voluntari-
96 Of course the effect/counter-effect argument can be used on any level since

it is a logical or scientific argument of the form not (not a) - a, but the reason
for an individual's right to exercise self-defense is not the same as the reason for
the state's right to punish. In fact, one needs no reason for the right to exercise
self-defense since it is nothing else but exercising external freedom compatible
with like freedom for all. The state is not 'free', and in punishing it is not
exercising an 'inborn right'. See also Lectures (Feyerabend) 27.2,2 AA. 1390: "The
injured person has a right to defend himself but not to punish" ("Der laesus hat
Recht sich zu vertheidigen, aber nicht zu strafen").
97 See Lectures (Feyerabend) 27.2, 2 AA. 1381, 1390.
98 See id. at 1382.
99 MdS, 6 A.A. 331.
100 Id.
'10 See Lectures (Feyerabend) 27.2, 2 A.A. 1390.

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182 Sharon Byrd
ness of interaction of individual rights. Fraud in business dealings

"under the open eye""'2 of the victim is a private crime whereas
larceny is public. This distinction may seem strange in a modern
society in which fraud perhaps is considered to be a more serious
offense than simple theft.'03 Within the Kantian system, however, it is
consistent. Larceny denies the validity of my claim of right to an
external object. The thief takes the apple, so to speak, when it is not in
my immediate control. Kant's justification for civil society, however,
lies, exactly in the security one gains through the common will for
one's rights in situations in which one is not in a position to defend
them: "Something external, however, would be mine only if I can
assume it possible that I still can be injured through someone else's
use of a thing of which I am not in (physical) possession".104 In
cases of fraud in which the victim chooses his own business partner,
he has reason to be alert to the actions of the other individual and can
enforce his rights in a court of law. Fraud is the violation of a
particular business relationship between two individuals. In cases of
larceny the victim could be anyone. The thief then creates a situation
of general insecurity as to property rights because anyone could have
been damaged by his deed. Since civil society is necessary to guarantee
those rights that require common agreement, as opposed to the
agreement of particular individuals each seeking his own gain, any
violation of those rights represents a contradiction of the common will
or a violation of the civil social order and a return to the state of
102 See MdS, 6 A.A. 331; Lectures (Feyerabend) 27.2,2 1390: "Fraud is delictum
privatum, since I must not enter into relations with the actor, but larceny is
publicum". ("Der Betrug ist delictum privatum, well ich nicht nothig habe, mich mit
einem einzulassen, aber Diebstahl publicum.")
"'0 See, e.g., Naucke, 'Die Reichweite des Vergeltungsstrafrechts bei Kant',
Schleswig-Holsteinische Anzeigen 1964, 203, 208-09, who suggests that Kant meant
to include only larceny of large amounts within the category of public offenses.
1)4 "Erwas Auferes aber wiirde nur dann das Meine sein, wenn ich annehmen
darf, es sei m6glich, dab ich durch den Gebrauch, den ein anderer von einer
Sache macht, in deren Besitz ich doch nicht bin, gleichwohl doch ladirt
werden k6nne." MdS, 6 A.A. 245 (parenthetical phrase added to the English
translation).

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nature. Another way of describing a crime then would be any action

the maxim of which is in contradiction to the common will or to
one's own will as a legislator of universally valid principles of action.
The sole purpose of the criminal law is to protect this common will or
civil society.
If the purpose of the criminal law is to provide security for the
common will, a retributive theory of punishment seems somewhat out
of place. Retribution always occurs after-the-fact and thereby presup-
poses the commission of a crime. Once the crime has been committed,
one can no longer speak of security from the criminal violation. A
theory of criminal law directed toward security must see the function
of punishment in deterrence. Still, Kant very clearly includes retribu-
tion within his system of criminal law. The resolution of this apparent
contradiction lies in the distinction between the threat and the execu-
tion of punishment.'?0 This distinction has its parallel in the difference
between conduct and decision rules. Rules of behavior are conduct
rules for those who must act accordingly and decision rules for those
who judge another's behavior.'06 Similarly punishment is threatened to
induce compliance with criminal law norms or to deter violations, but
105 Scheid, supra note 55, is the only one, to the extent of my knowledge, who
attempts to explain the apparent contradiction in Kant's writings on punishment
by differentiating between two different punishment issues. Scheid relies on
H.LA. Hart's distinction between the general justifying aim of punishment and
the distribution of punishment. He argues that Kant is only a 'partial' as opposed
to a 'thoroughgoing' retributivist since although distribution should proceed
according to a retributivist principle, the general justifying aim is deterrence. The
distinction between the threat of punishment and the execution of punishment
seems mcre satisfactory since it has historical roots in Kant's time and since
'threat' and 'execution' seem to fit better in Kant's system. See Reflexionen iber
Moral- & Rechtsphilosophie (Reflections on Moral and Legal Philosophy) vol. 19
(hereinafter cited as Reflections, 19 A.A.) 590: "Here, therefore, there exists a
conflict between the threat and the moral culpability or-also punishment" ("Es
ist also hier ein Wiederstreit zwischen der Androhung und der moralischen
Strafwiirdigkeit oder auch Bestrafung").
1"' Dan-Cohen, 'Decision Rules and Conduct Rules: On Acoustic Separation in
Criminal Law', Harv. L. Rev. 97 (1984), 625; G. Fletcher, Rethinking Criminal Law
491-92 (1978).

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184
Sharon Byrd
is executed according to the demands of justice stated in the principle

of retribution, because the actor violated the norm.
The distinction between punishment as a threat used actively to bind
an individual to the rules of conduct and the execution of punishment
as a response to a breach of one's obligation was made both before and
immediately following Kant's critical philosophy."'7 It is the thesis of
this article that in light of this distinction apparent contradictions in
Kant's theory of criminal law disappear revealing that its purpose was
to secure individual rights through threatening punishment to deter
their violation. Retribution was a means of control not only that the
threat of punishment would be effective but primarily that the in-
dividual would not be treated merely as a means to the social goal of
deterrence in its execution. This distinction has certain moral and
practical appeal. In threatening punishment, the addressee of the threat
is general. An individual need feel 'restricted' only if he is considering
violating the law, and even then until he violates it the threat remains
anonymous. The mere threat of punishment, in the absence of its
execution, cannot be a form of 'using' an individual as a means,
although it could be effective in persuading an individual not to
violate another's rights. When one considers executing the punishment
threatened, the focus shifts to the individual whose freedom in fact will
be violated through the punishment. The concern changes from what
will be effective generally to what is permissible with respect to the
individual, a moral agent with infinite value. This thesis is supported
both by The Metaphysic of Morals, which is often seen as aberrational to
Kant's previous writings, and by his earlier discussions of criminal law.
1. DETERRENCE THROUGH THE THREAT OF PUNISHMENT
As has been pointed out,"08 the distinction betwe

internal is central to Kant's classification of the jurid
107 See Hruschka, 'Strafe und Strafrecht bei Achenwall - z

Feuerbach's psychologischer Zwangstheorie', Juristen Zeitu
(1987) discussing the distinction as made by Gottfried Ach
and PaulJohann Anselm von Feuerbach (1775-1833).

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particular, legislation is juridical not only because it contains external

duties, which ethics also includes, but more so because the motivation
attached to the duty is external. Individuals are tempted for a variety
of reasons to disobey the law.109 To encourage compliance, legislation
includes some form of motivation which can be imagined as counter-
acting the temptation. Kant points out that juridical legislation, which
does not include the internal motivation of acting out of duty, attaches
a motivation of aversion to the violation of these duties since it must
be coercive and not inviting.10 "Fear and hope are merely meant
to counteract the tendencies that are opposed to the law and its
obedience"."' In the case of public offenses or crimes, this motivation
is the threat of punishment and since it is intended as a motivation to
obey the law it is clearly deterrent and not retributive: "For public
policy, punishments have no other necessity than to prevent evil
acts.1 12
'10 If such were not the case, we would not need the law. "If I assume human
nature to be just, i.e., such that it does not have the intent to injure another, and
further that all humans have a single interpretation of justice and the same good
wills, then the civil state would be unnecessary." ("Nehme ich die Natur des
Menschen an als gerecht, d:i: als eine solche, die nicht die Absicht hitte,
jemanden zu laediren, setze ich, dagi alle Menschen einerlei Einsichten im Recht
und einerlei guten Willen hitten, so ware status civilis nicht n6thig.") Lectures
(Feyerabend) 27.2, 2 A. 1381.
"I0 "(T)he pathological determinations of choice (consist) of attraction and
aversion, of which the latter must be used, since it (law) is legislation that should
be coercive and not temptation that is inviting." ("(V)on den pathologischen
Bestmmungsgriinden der Willkiir der Neigungen und Abneigungen und unter
diesen von denen der letzteren Art hergenommen sein miissen, weil es eine
Gesetzgebung, welche n6thigend, nicht eine Anlockung, die einladend ist, sein
soil.") MdS, 6 AA. 219 (parenthetical phrases added to English translation). See
also Lectures (Feyerabend) 27.2,2 AA. 1390: "The evil that is attached to a
violation of law is punishment . .". ("Das Uebel, das mit der Uebertretung des
Gesetzes verbunden ist, ist Strafe . .".
"' "Furcht und Hofnung sind blof den Neigungen entgegengesetzt, die dem
Gesetz und der Befolgung dessen zuwider sind." Lectures (Feyerabend) 27.2, 2
AA. 1331.
112 "In der Politic haben die Strafen keine andre Nothwendigkeit als so fern sie
dienen b6se Thaten abzuhalten." Vorlesungen uber Moral Philosophie (Lectures on Moral
Philosophy) Vol. 27.1. Powalski, Praktische Philosophie, 91-235 (hereinafter cited as
Lectures (Powalski) 27.1 AA) 150.

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186 Sharon Byrd
The conception of 'right as reciprocal coercion', which follows from

Kant's idea of generally coexisting and thereby self-limiting free-
dom,l13 also supports the thesis that the threat of punishment is
intended to deter crime. In the state of nature, one may use force
rightfully to ward off any wrongful interference with one's freedom or
to force another to do that which is rightfully owed. While this
concept of right is the basis of self-defense and self-help in the state of
nature, it has its parallel in the state's right to exert coercion in a civil
society.14 One can see the parallel between coercion in the state of
nature and in civil society in the relationship between self-defense and
empirical possession on the one side and punishment and ideal posses-
sion on the other. A violation of empirical possession is a direct viola-
tion of another's freedom and the coercion justified to defend this
freedom is self-defense or direct immediate force. A violation of ideal
possession, or possession without detention, is a violation of an exten-
sion of freedom that can exist only through common agreement. The
coercion justified to defend this extension of freedom is that necessary
to maintain security through civil society. Since the state is formed to
guarantee security, the coercion it may exert is not limited to respond-
ing to an immediate threat. In fact it should create a situation in
13 See MdS, 6 A.A. 230-33 and Lectures (Feyerabend) 27.2, 2 A.A. 1335.
"4 Coercion is a hindrance to freedom that is possible under universal laws. A

hindrance of the hindrance of universal freedom, furthers universal freedom
and is therefore just. Every injury is coercion, hindrance of freedom, and the
counter-coercion is therefore just. If someone violates my rights, does not
fulfill his obligation, does not compensate for damage done to me, I can
coerce him with force. ... In the civil state that happens through legal
procedures, in the state of nature through war.
Der Zwang ist Hindernif der Freiheit, die nach allgemeinen Gesetzen
moglich ist. Eine Hindernif der Hindernif der allgemeinen Freiheit,
bef'rdert die allgemeine Freiheit, ist also recht. Jede laesio ist ein Zwang,
Hindernif der Freiheit, und Gegenzwang ist also recht. Wenn jemand
meinen Rechten Abbruch thut, seine Obligatio nicht erfillt, mir einen
zugefiigten Schaden nicht erstattet, kann ich ihn mit Gewalt zwingen.... In
Statu civili geschieht das durch den Prozegi, in Statu naturali bello durch
Krieg.
Lectures (Feyerabend) 27.2, 2 A.A. 1372.

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which its members are free of danger from one another so that self-
defense is unnecessary. For society, the threat of punishment is the
coercion used prophylactically to prevent wrongful interferences with
individual freedom.115 In moving to civil society, one gives up the
force with which one could coerce the other116 in exchange for the
security guaranteed.
On the right to exercise self-defense, Kant compares the duty to use
the mildest means available to ward off an attack on one's own life
both in the state of nature and in civil society. In the state of nature,
this duty is ethical but not juridical. In civil society, however, the duty
is juridical except in cases in which the weaker response is not certain
to ward off the attack or the attack is against the life of the self-
defender.ll7 Kant's reasoning concerning a law requiring moderation
115 Every punishment is coercion, but not every coercion is punishment. Punish-
ment is coercion that is under the authority of laws. Every wrong is worthy
of punishment. Punishment is a violation of someone's freedom. I put him in
a situation in which he did not want to be, since acts that resist a contradic-
tion of universal freedom, further universal freedom. For this reason it is
necessary, and every law of freedom is a penal law.
Alle Strafe ist Zwang, aber nicht jeder Zwang ist Strafe. Strafe ist Zwang, der
unter der Auctoritaet eines Gesetzes ist. Jedes Unrecht ist strafwiirdig. Strafe
ist Abbruch der Freiheit jemandes. Ich setze ihn in einen Zustand, worin er
nicht hat seyn wollen, denn Handlungen, die der allgemeinen Freiheit
widerstreiten, widerstehen, heiit, die allgemeine Freiheit befordern. Daher ist
es nothwendig, undjedes Gesetz der Freiheit ist ein Strafgesetz.
Id. at 1333.
116 Id. at 1390: "... and give up your force with which you could coerce
the other" ("... und gieb deine Gewalt auf, womit du den andern zwingen
k6nntest").
117 The lawyers believe that the individual in a state of nature must moderate
himself to that which is necessary for the defense, i.e., moderation of inno-
cent defense. That means simply that unless necessary I should not use the
most extreme violence when a lesser degree is required. According to ethical
laws, that is correct. According to strict law, I can never be bound thereby
when someone threatens to kill me. In a state of nature, I am not bound to
use a milder means and, therefore, moderation of innocent defense is not
applicable. But in a civil state it is since the state can demand security of care

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188 Sharon Byrd
when it is not certain to save one's life is interesting since it reveals the
nature of the relationship between social coercion through law and
protection: "(S)uch a law would be unjust, since if the state cannot
protect me, it also cannot command me. The state can obligate me
because it gives me protection. It prohibits me from using force,
because it promises to secure me from the force of another"."8 The
state provides this security through punishment: "It must punish in
order to maintain security and it must provide for those punishments
that correspond to the security of the victim in future cases . ."."9
After discussing the general relationship between 'right' and 'coer-
cion', Kant considers two areas of law that are not susceptible to such
from me. If, however, my life is in danger the state cannot require modera-
tion from me through law since (1) the greatest punishments the state can
give are not as great as the ill fate I presently have. The law, therefore,
cannot hold me back. Such a law would be absurd.
Die Juristen glauben, der Mensch miisse im statu naturali sich soweit
magiigen, als es eben zur Defension reicht: d.i. Moderamen inculpatae tutelae.
Das bedeutet blol, daf ich nicht ohne Noth die auBerste Violenz brauchen
soll, wenn ein geringer Grad n6thig ist. Nach ethischen Gesetzen ist das
richtig. Nachm jure stricto kann ich dadurch nie verbunden werden, wenn
einer mir den Tod droht, ihm das anzuthun. Im jure naturae bin ich nicht
verbunden, ein gelinderes Mittel zu brauchen, daher gilt hier moderamen
inculpatae tutelae nicht. Aber im statu civili findts statt, denn der Staat kann
von mir einen Erhaltungsbiirgen fordern. Wenn aber mein Leben selbst wol
m6glich, aber ungewif ist, so kann der Staat gar nicht das Gesetz geben,
mich denn zu moderiren, denn (1) die gro6ten Strafen, die der Staat geben
kann, sind nicht grofer als die Uebel, die ich gegenwartig habe. Das Gesetz
kann mich daher davon nicht abhalten. Ein solch Gesetz ware absurd.
Id. at 1374.
118 "(E)in solch Gesetz ware ungerecht, denn da der Staat mich da nicht
vertheidigen kann, so kann er mir auch nichts befehlen. Daher kann mir der
Staat gebiethen, weil er mir Schutz giebt. Er verbiethet mir Gewalt, weil er mir
verspricht, mich gegen die Gewalt eines ander sicher zu stellen." Id. In such
cases the duty to use the mildest means available is a duty of virtue. See MdS, 6
A.A. 235.
19 "Er mug strafen, um Sicherheit zu verschaffen, und da mug er solche Strafen
machen, die der Sicherheit des laesi in kinftigen Fallen angemessen sind.. ".
Lectures (Feyerabend) 27.2, 2 A.A. 1390.

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analysis, namely equity which he calls 'right' without 'coercion' 20 and

more importantly here, necessity which is 'coercion' without 'right'.'2'
Kant rejects the claim that one has a 'right' in cases of necessity to kill
another to avoid an imminent and certain danger of losing one's own
life. In this passage, Kant clearly distinguishes between the threat of
punishment and the execution of punishment: "It is clear that this
claim is not to be understood objectively according to what a law
requires, but rather only subjectively as the sentence would be pro-
nounced before the court".122 In cases of necessity, no criminal law can
threaten the death penalty for killing to save one's own life since:
(T)he punishment threatened by the law cannot be greater than the loss of life
threatened. Such a criminal law can never have the intended effect since the
threat with an evil that is uncertain (death penalty through court judgment)
cannot outweigh the fear of an evil that is certain (namely drowning).'23
Since the threat of punishment, or the motivation attached to the duty
120 See MdS, 6 A.A. 234-35.

121 Id. at 235-36
122 "Es ist klar: da6 diese Behauptung nicht objectiv, nach dem, was ein Gesetz
vorschreiben, sondern blof subjectiv, wie vor Gericht die Sentenz gefillt werden
wiirde, zu verstehen sei." Id. at 235.
123 (D)ie durchs Gesetz angedrohte Strafe konnte doch nicht gr6oer sein, als die
des Verlusts des Lebens des ersteren. Nun kann ein solches Strafgesetz die
beabsichtigte Wirkung gar nicht haben; denn die Bedrohung mit einem
(bel, was noch ungewi ist, (dem Tode durch den richterlichen Ausspruch)
kann die Furcht vor dem Obel, was gewif ist, (namlich dem Ersaufen) nicht
iiberwiegen.
Id. Although in this passage Kant refers to punishments greater than the harm
done by the criminal actor, his theory is based on the equality of harm and
punishment. "What type and what degree of punishment, however, is it that
public justice uses as a principle and for orientation? None other than the
principle of equality (as the pointer on the scales of justice) in not leaning more
to the one side than to the other." ("Welche Art aber und welcher Grad der
Bestrafung ist es, welche die 6ffentliche Gerechtigkeit sich zum Princip und
Richtmage macht? Kein anderes, als das Princip der Gleichheit, (im Stande des
Ziingleins an der Wage der Gerechtigkeit) sich nicht mehr auf die cine, als auf
die andere Seite hinzuneigen." Id. at 332.

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190 Sharon Byrd
not to kill another human being necessarily can never outweigh the
fear of immediate death, or the motivation through sensual drives that
oppose the motivation given to follow the law, the court may not pass
and execute judgment. Essentially because the threat is a priori
ineffective, the execution of the punishment threatened is impermis-
sible.124 This passage is often cited to show that Kant distinguished
between justifications and excuses as defenses for criminal acts, which
indeed seems to be the case.l25 The passage continues: "Thus the act of
violent self-preservation is to be judged not as not wrongful
(inculpabile) but only as not punishable (impunibile), and this
subjective impunity, through the astonishing confusion of legal
scholars, is held to be objective (according to law)".126 This distinc-
tion, however, corresponds exactly to the problem raised by Kant
concerning the execution of an ineffective threat of punishment. All
commonly recognized excuses incorporate circumstances in which
either the actor is incapable of being motivated by the law because of
some personal defect, e.g., insanity, or the motivation to violate the
law because of some intervening factor is greater than the punishment
threatened, e.g., duress.127 In these cases, society is necessarily ineffec-
124 The only other exception to executing a threatened punishment I am aware

of is the similar case of self-defense in which the law cannot require the
defender to use the mildest means available if they are not certain to be effective,
see Lectures (Feyerabend) 27.2,2 A.A. 1374 and supra notes 117-118 and
accompanying text.
125 See also MdS, 6 AA. 228.
126 "Also ist die That der gewaltthitigen Selbsterhaltung nicht etwa als unstraf-
lich (inculpabile), sondern nur als unstrafbar (impunibile) zu beurtheilen, und
diese subjective Straflosigkeit wird durch eine wunderliche Verwechselung von
den Rechtslehrern fir eine objective (Gesetzmaiiigkeit) gehalten." Id. at 235-
36.
127 Of course one could argue that in all cases in which the actor in fact violated
the law, the motivation to violate it was greater than the motivation not to
violate it. A consideration of Kant's method of calculating efective punishments,
however, see infra notes 132-140 and accompanying text, shows this argument
to be wrong. An effective threat of punishment is one that is by definition equal
to the motivation to violate the law involved. Only in special circumstances is it
impossible to attain this equality, namely when the greatest possible penalty is

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tive in its duty to guarantee security and, therefore, cannot execute

the threat employed. Again, these examples show that Kant does not
anchor society's right to punish in retribution but rather in deterrence
or crime prevention. If retribution were the reason for having criminal
law sanctions, the question of whether the punishment threatened
could be effective in certain cases would be irrelevant.
Only offenses committed intentionally are crimes and punishable
under the criminal law.'28 Although a retributive theory of just deserts
also would have reason to distinguish between intentional and negli-
gent conduct, Kant's reasoning is instrumental. Since the purpose of
threatening punishment is to persuade the actor to abandon his intent
to harm another, it cannot be effective in cases in which the actor is
negligent, since here he has no intent to harm.'29 Although one may
demand that the negligent actor compensate for the damage he has
caused, one may not use punishment in cases in which it serves no
purpose. "Mere rights without the intention of gaining security that
are directed toward supressing another, are unjust,. ."..30 In answer to
the question of the appropriate treatment of negligent offenders, Kant
states: "If one chooses to call that which is intended to improve the
injurer 'punishment', then he who has negligenty harmed another
must be punished. Corrective punishments are clearly milder."'31
If punishment is threatened to deter crime, how much punishment
is appropriate? The answer to this question lies in Kant's equation of a
hindrance to a hindrance of freedom and freedom, and indirectly in
not as great as the counter-motivation, as in the necessity cases, or when some

third force intervenes and overtrumps the motivation provided in the law, as in
the duress cases.
128 See MdS, 6 AA 224, 331.
129 See Lectures (Feyerabend) 27.2,2 A.A. 1373 where, although considering the
state of nature, Kant discusses why negligent actors cannot be deterred from an
'intent' to harm.
13' "Blofe Rechte ohne Absicht der Sicherheit, und die zum Untergange des
andern abziehlen, ist ungerecht. ..". Id.
'3' "Will man dies Strafe nennen, was auch nur die Absicht hat, den laedentem
zu bessern, so mufi auch der, der culpa laedirt, gestraft werden. Die corrective
Strafen sind offenbar gelinder." Id. at 1379.

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192 Sharon Byrd
the principle of retribution. In The Metaphysic of Morals, Kant gives the

example of verbal insult132 and its proper punishment. Although Kant
uses the retributive principle in arguing for punishment in accordance
with the crime committed, clearly the effectiveness of the punishment
threat in deterring the crime is of concern to him: "So, a monetary
fine, for example, for verbal injury is not in proportion to the insult
since one who has much money can afford to commit the ofense once for
pleasure.. .."33 The threat of punishment must be a drive that coun-
teracts the drive to commit an offense'34 or a hindrance equal to the
hindrance of freedom represented by that offense. If the hindrance
(punishment) is less than the offense then it is not effective in coun-
teracting the limitation on freedom inherent to the crime. Society then
fails in its duty to secure rights and one could question in such cases
whether the offender can be punished at all.'35 The principle of
13' MdS, 6 A.A. 332-33. Verbal insult is a public crime for Kant. The right to a
good name is an "... inborn external, although ideal mine or thine that is
attached to the subject as a person .. ." ("ein angebornes auieres, obzwar blof
ideales Mein oder Dein, was dem Subject als einer Person anhangt, von deren
Natur .. ."). Id. at 295. The individual is born with the right to freedom which
includes the quality of being unstained, see id. at 237-38. That insult is a public
rather than private offense follows from the involuntariness of the relationship
between victim and offender and in the interchangeability of the victim, see
notes 100-104 and accompanying text.
"33 "So hat zB. Geldstrafe wegen einer Verbalinjurie gar kein Verhalmifi zur
Beleidigung, denn der des Geldes viel hat, kann diese sich wohl einmal zur Lust
erlauben.. .". MdS, 6 AA. 332 (emphasis added in the English translation).
134 Kant in discussing a wine merchant who mixes sugar with the wine to make
a higher profit states: "He will not be able to be coerced through thinking of the
law or moral way since he is convinced of its opposite. He, therefore, must be
coerced pathologically. It must be coercion which is of equal force to his maxim
of self-interest and which destroys his motivation to contaminate the wine. -
One lets him fear the most exact control, one punishes him." ("Durch Vorstel-
lung des Gesetzes oder durch den moralischen Weg wird er nicht gezwungen
werden k6nnen, weil er vom Gegentheil iiberzeugt ist. Er muf also pathologisch
gezwungen werden. Es wird ein Zwang n6thig seyn, der seiner maxime des
Eigennutzes das Gegengewicht halt und seine Triebfeder zum Verfalschen des
Weins zerst6rt. - Man lasse ihn die genaueste Controlle firchten, man strafe
ihn.") Lectures (Vigilantius) 27.2, 1 A.A. 522.
'3 See supra notes 121-127 and accompanying text.

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retribution, in that it dictates like punishments for like offenses,

insures that the motivation not to violate the law, as contained in the
punishment threat, will have the force necessary to deter criminal
violations.
2. JUSTICE THROUGH THE PRINCIPLE OF RETRIBUTION
The more important role of the retributive principle, however, is to

guarantee that the individual be treated justly. In threatening punish-
ment society is concerned with deterring crime, but the threat is made
with the knowledge that it will be executed against the offender. An
excessive threat of punishment may be very effective, but not only
would it be a hindrance greater than the hindrance to freedom
represented by the offense and thereby itself a hindrance to freedom,
but its execution would be unjust to the individual actor. "All state
punishment occurs for correction and example, but above all it must
be just with respect to the crime only, quia peccatum est. The criminal
must not be able to complain of injustice." 36
An example of what would not be permissible under Kant's theory
of justice is provided by the economic analysis of crime prevention. It
has been suggested that punishment should be equal to the damage
caused by the crime divided by the probability of detection.'37 This
formula would lead to punishment in excess of the severity of the
offense in all cases in which the probability of detection were less than
100 percent. Not only would such punishment be a hindrance to
freedom in itself under Kant's formula of effect and counter-effect,
but to the extent it is excessive it would be using the individual caught
merely as a means to the social goal of reducing crime. To explain the
latter defect, one must contrast the case of repetitious criminal
behavior with that of the one-time offender. The best argument for
the economic analysis approach can be made with the professional
36 "Alle Strafe im Staat geschieht wohl zur correction und zum Exempel, aber
sie mui allererst um des Verbrechens an sich selbst willen gerecht seyn, quia
peccatum est. Der Verbrecher mul nicht iiber Unrecht klagen ktnnen." Reflec-
tions, 19 A.A. 586.
137 See the discussion in R. Nozick, Anarchy, State, and Utopia 59-63.

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194 Sharon Byrd
criminal. Let us assume that the probability of detecting bank robbery

is 10 percent and the average gain from a robbery is $100. If the
penalty for bank robbery is a $100 fine, the robber will have an
expected average gain of $90 per robbery. Assuming the probability of
detection remains constant, it will be profitable for him to rob, and if
he is a professional robber he will continue to do so, until the penalty
is raised to $1000.138 It would seem that the only adequate motivation
the state could attach to the duty not to rob banks would be a $1000
fine. If all individuals who rob banks actually do commit 10 robberies,
make an average gain of $100 per robbery, and get caught once, the
penalty arguably would seem fair, even from a Kantian point of view.
If anyone exists, however, who robs only once and gets caught
immediately, the penalty of $1000 can be defended by reference to the
general state goal of reducing crime but not by any arguments of
individual justice. In these cases the amount of punishment in excess
of the past gains of the bank robber are imposed not because that
much punishment is equivalent to the motivation needed to deter the
individual actor but because that much punishment is necessary to set
an example for other potential bank robbers. That is not a possible
solution under Kantian criminal law doctrine because it involves using
one individual merely as a means to some independent end: "Every
exemplary punishment is unjust, if it is not just as vindictive punish-
ment. I cannot use an individual as a means, since he always has the
value of an end .... Punishment that is too severe as vindication, is
unjust ... as correction".'39 Since by definition the state cannot know
how many undetected robberies the defendant in any particular crimi-
nal case has already committed, every case would be a potential
example of excessive punishment.
Clearly a difference exists between providing a motivation for each
138 I also am assuming that the costs of planning and carrying out the robbery
are zero. Although this assumption is unrealistic, it does not affect the analysis.
39 "Jede poena exemplaris ist ungerecht, wenn sie nicht als poena vindicativa
gerecht ist. Einen Menschen kann ich nicht als ein Mittel gebrauchen, denn er
hat immer den Werth eines Zwecks.... Die Strafe die als vindicativa zu hart ist,
die ist als correctiva ungerecht." Lectures (Powalski) 27.1 A.A. 150.

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individual not to commit a particular offense through threatening

punishment that is equivalent to the damage represented in the
offense and using one individual as an example to dissuade others
from committing the crime. For Kant the former is the society's duty
as securer of individual rights. The latter is merely a method of
compensating for society's failure to fulfill its duty to execute the
threatened punishment in some cases because of inefficiencies in the
detection of crime. The only possible cure for these deficiencies under
Kantian analysis would be improving the probability of punishment execu-
tion but not raising the punishment threatened: "One may do no evil
to a person, who is not deserving of that evil, in order to gain
advantage for others".'40 For Kant the principle of retribution, there-
fore, is relevant in determining what type of punishment is suitable to
deter each individual from committing a particular offense and more
importantly to guarantee that the amount of punishment imposed will
be neither lesser nor greater than the severity of the offense com-
mitted.
In the section on criminal law in The Metaphysic of Morals, Kant

repeatedly insists on justice as an absolute ideal that cannot be
sacrificed even for the 'benefit' of the criminal actor: "Criminal
punishment (poena forensis) ... can never be imposed as a means to
further another good, either for the criminal defendant himself or
for civil society but instead must be executed only because he
committed the offense ...".14' In this discussion, which can be
seen as the specific application of the general theory of law and justice,
Kant no longer considers the threat of punishment but rather the
execution of the threatened punishment.
Justice in the execution of punishment demands both that the actor
be guilty of the offense charged and that if he is guilty the punish-
140 "Man kann niemandem uibels thun, der es nicht selbst verschuldet hat, um
andern Vortheil zu schaffen." Reflections, 19 A.A. 303.
141 "Richterliche Strafe (poenaforensis) ... kann niemals bloL als Mittel ein
anderes Gute zu befordern fur den Verbrecher selbst, oder fur die burgerliche
Gesellschaft, sondern mug jederzeit nur darum wider ihn verhangt werden, weil
er verbrocben hat.. .". MdS, 6 AA. 331.

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196 Sharon Byrd
ment be executed as threatened. The reason for executing a threatened

punishment must be the commission of the crime and not some other
social goal: "He first must be found guilty before thought may be
given to deriving any benefit for himself or his fellow citizens".142
Here the focus has shifted from the effectiveness of the threat of
punishment and society's duty to prevent crime to the just treatment of
the individual in the execution of punishment. For Kant no social goal
can exceed the value of one individual "since the individual can never
be used merely as a means to another's ends and mixed with the
objects of property law, against which his inborn personality protects
him, even though he may be sentenced to lose his personality as a
citizen".'43 The individual's innate freedom as a responsible moral
agent protects.him absolutely from any social interference regardless
of the value it could have for the rest of society. Although Kant gives
one example of not punishing the guilty for reasons of expediency in
preserving the state,'44 he totally rejects punishing the innocent for
such reasons. The commission of the-crime is also sufficient reason for
society to execute the punishment threatened: "The criminal law is a
categorical imperative ...".145 This statement must be construed as
referring to the judge as a part of civil society and not to the defen-
dant in a criminal case. It would not make sense if interpreted as
applying to the defendant who has already violated its commandment.
In addition the sentence continues: ". . . and woe to him who creaks
through the snakey paths of the theory of happiness in order to
discover some advantage promised therein that would relieve him of the
punishment or even a degree thereof...".'46 Here it is clear that Kant
142 "Er mug vorher strafbar befunden sein, ehe noch daran gedacht wird, aus
dieser Strafe einigen Nutzen fur ihn selbst oder seine Mitbiirger zu ziehen." Id.
143 "(D)enn der Mensch kann nie blol als Mittel zu den Absichten eines
Anderen gehandhabt und unter die Gegenstande des Sachenrechts gemengt
werden, wowider ihn seine angebore Pers6nlichkeit schiitzt, ob er gleich die
biirgerliche einzubiilen gar wohl verurtheilt werden kann." Id.
44 See id. at 334 where Kant discusses the state's situation of necessity.
45 "Das Strafgesetz ist ein kategorischer Imperativ .. .". Id. at 331.
'46 "(U)nd wehe dem! welcher die Schlangenwindungen der Glickseligkeitslehre

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is referring not to the command not to steal, for example, but rather
to the command to punish one who does steal. Again any advantage
that could be gained for society generally, such as using the guilty for
medical experimentation, cannot be a consideration when deciding
upon the just treatment of the individual.147 The individual as a moral
agent retains his integrity and infinite value even though he may lose
the right to remain a member of civil society, and justice cannot be
bought "since justice ends when it gives itself up for a price".148
Crime commission, for Kant, then is a necessary and sufficient
condition for the execution of the punishment threatened,'49 and any
deviation from this equation, since it would contradict "a priori based
law",'"" and therefore be purely accidental and empirical, violates the
theory of justice. Retribution in the execution of punishment insures
both that only those who are guilty, of committing a criminal offense
will be punished and that all those, assuming that the threat of punish-
ment was a priori valid,'51 will be punished as threatened. In both of
these cases, the only reason for deviating from the categorical impera-
tive contained in the criminal law would be the possibility of using
the individual as a means to some other social goal. Punishing the
innocent and not punishing the guilty are both suspect under Kant's
theory of criminal law and excluded as possible solutions through the
principle of retribution.
durchkriecht, um etwas aufzufinden, was durch den Vortheil, den es verspricht,

ihn von der Strafe, oder auch nur einem Grade derselben entbinde ...". Id.
(emphasis added in the English translation).
147 See id. at 332.
148 "(D)enn die Gerechtigkeit hort auf eine zu sein, wenn sie sich fur irgend
einen Preis weggiebt." Id.
'49 See A. Feuerbach, Lehrbuch des gemeinen in Deutschland giiltigen peinlichen Rechts
20 (1801) citing three subordinate basic principles, namely (1) nulla poena sine lege,
(2) nulla poena sine crimine and (3) nullum crimen sine poena legali. Principles (2) and
(3) insure identity between the set of criminally punishable acts, i.e., acts placed
under the threat of punishment according to principle (1), and the set of acts
actually punished according to law.
15" MdS, 6 tA. 334.
,5' See supra note 124.

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198 Sharon Byrd
CONCLUSION
If we return to the originally quoted passage on e

prisoner sentenced to death before dissolving society
inhuman as it may sound, it is the consequence o
conviction to libertarian values and individual worth
ally, and particularly the criminal law, as an instr
power, is meant to maintain a condition of the g
possible for each individual to the extent that that f
exist with like freedom for all. "Law is, therefore
conditions under which the choice of one can be united with the
choice of another according to a universal law of freedom".'52 The
content of an individual's choice is irrelevant for the law, which is
necessary to maintain a minimum of external conditions. The individ-
ual is free to pursue whatever goals he may select with the sole
limitation that his external conduct may not limit another's freedom
to pursue his own self-adopted goals.153
Civil society is an a priori necessary institution for the purpose of
securing individual rights. It has value only as a means of guaranteeing
personal freedom. For this reason, any individual may force all others
to move with him from the state of nature to a civil society. The
criminal law is an instrument to preserve civil society and any crime is
a violation of that society or the common will and represents a return
to the state of nature. To maintain security, criminal legislation
includes an external motivation, namely the threat of punishment, to
persuade the individual actor not to violate its commandments. In
threatening punishment, society is required to provide sufficient moti-
vation to deter the particular offense. Criminal provisions, as addressed
to the actor, are deterrent in nature and intended to provide a motiva-
tion not to violate the law, which counter-balances any personal drives
favoring its violation.
Criminal provisions, as addressed to the judiciary, are categorical
152 "Das Recht ist also der Inbegriff der Bedingungen, unter denen die Willkiir
des einen mit der Willkiir des andern nach einem allgemeinen Gesetze der
Freiheit zusammen vereinigt werden kann." MdS, 6 A.A. 230.
153 Id. See supra note 13.

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199
Kant's Theory ofPunishment
imperatives. The judiciary, as a social institution, is limited in executing

punishment to exactly that punishment that has been threatened. Re-
tribution in the execution of punishment secures justice with respect to
the individual. Once fair warning has been given of the consequences
of criminal violations, assuming the motivation provided through the
threat of punishment could have been an effective counter-drive to
the desire to commit the violation, the judiciary is bound to impose
no more nor no less than that threatened. Any deviation from the
criminal provision as a categorical imperative addressed to the judge is
suspect. If the threat was valid, then society is bound to fulfill its
mandate. No considerations, such as the good of society or of any
individual may affect the just treatment of the offender.
Several aspects of Kant's island society example at first seem
puzzling. Why, if the criminal law is intended to protect civil society,
is it necessary to execute its mandates when that society is dissolving
anyway, particularly with such an extreme punishment as the death
penalty? It is important to realize that the island society is not
returning to the state of nature. Kant expressly includes the stipulation
that its members leave the island and scatter themselves over the face of
the earth. They do not remain together in a nonsocial union or state of
nature. If that were the case, then the duty to execute the last murderer
in fact could not exist. By returning to the state of nature, the societal
members would be contradicting the dictates of reason and regressing
to a condition of war. The criminal law, which is meant to maintain
civil society, cannot be employed when this society is being abrogated
but rather only to avoid its abrogation. Its use contemporaneously with
a decision to return to the state of nature is self-contradictory.
In Kant's example, however, the civil society is maintained until its
further existence is no longer possible. As a result of the dissolution no
individual's choice can conflict with that of another individual and no
one remains to obligate under the common will. Before it can dissolve,
however, it must fulfill all of its already existing duties. These duties
include the categorical imperative of punishment execution. The fact
that the punishment included in the example is the death penalty,
admittedly makes the issue more difficult to manage, particularly for
those of us opposed to such a penalty. If one considers a society's
national debt, for example, the argument that it must be repaid before

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200 Sharon Byrd
the society may dissolve permissibly is intuitively persuasive. That

someone must be executed is not so persuasive.
In The Metaphysic of Morals, Kant is looking for necessary truths that
do not depend on the values existing in any particular society.'54 At
the time Kant was writing, or at least for Kant personally, honor was
more highly valued than life. The honest man faced with the choice of
death or life imprisonment, so Kant thought, would choose death, the
rogue imprisonment.155 The mother of an illegitimate child, who kills
that child out of shame or the military man, who engages in a duel to
prove he is not a coward as claimed by his opponent, both present
cases for Kant in which executing the death penalty for wrongful
killings contradicts the more highly valued sense of honor preserved
by the deed.'56 Important in Kant's example of an island society is not
the particular punishment threatened, which is a value decision, but
the social duty to execute whatever punishment legitimately was
threatened before that society dissolves. This duty stems from the total
denial of social power to waver from the categorical imperative of
punishment execution. Any deviation whatsoever is suspect since it
represents an abrogation of an exactly defined and very limited range
of society's possible treatment of the individual.*
'54 See GMdS, 4 A.A. 389: "(T)he basis of an obligation must not be sought in
the nature of humans nor in the circumstances of the world in which they exist
but rather only a priori in concepts of pure reason ..." ("(D)er Grund der
Verbindlichkeit hier nicht in der Natur des Menschen, oder den Umstanden in
der Welt, darin er gesetzt ist, gesucht werden miisse, sondern a priori lediglich in
Begriffen der reinen Vernunft. .").
155 MdS, 6 A.A. 333-34.
156 Id. at 335-37.
* Academic Assistant to Professor Joachim Hruschka, Friedrich-Alexander
University, Erlangen-Niirnberg, West Germany. BA. 1969, Smith College; J.D.
1972, University of California, Los Angeles; 1972, Alexander von Humboldt
Fellowship; LL.M. 1987, Columbia University. This article was submitted in
partial fulfillment of the requirements for the degree of Doctor of the Science of
Law, in the Faculty of Law, Columbia University. I am particularly indebted to
Professor Meir Dan-Cohen, Professor George P. Fletcher, Professor Kent R.
Greenawalt, Professor Joachim Hruschka, Privatdozent Jan C. Joerden, and
Professor Andrzej Rapaczynski for their intellectual contributions and assistance
during the preparation of this article. I would also like to thank Patrick Gavigan,
Kamiar Khajavi and Gregory Silverman for their comments, critique and wit.

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Kant's Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution

Author(s): B. Sharon Byrd

Stable URL: https://www.jstor.org/stable/3504694

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KANT'S THEORY OF PUNISHMENT:

DETERRENCE IN ITS THREAT, RETRIBUTION

ABSTRACT. Kant's theory of punishment is commonly

One of the most well-known passages of Immanuel

Even if a civil society were dissolved through the unanimous

Kant's works are cited according to Kant's gesammelte Schriften, Preufische

Law and Philosophy 8: 151-200, 1989.

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ten zu Berlin (vol. 23), Deutsche Akademie der Wissenschaften zu Berlin/

Also: was fir unverschuldetes Ubel du einem Anderen im Volk zufiigst,

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justification for criminal law provisions threatening punishment. Ret-

4See infra notes 105-107 and accompanying text.

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These external conditions in turn are a prerequisite for universal

See infra notes 40-58 and accompanying text.

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subsequent duty to execute the threat in cases of a violation of its

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external freedom and Kant's concept of human rights. The relation-

The purpose of this section is to distnguish the subjec

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human action generally in relationship to duties or imperatives requir-

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directed behavior. Laws of freedom are discovered through pure prac-

21 See id. at 214.

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future occurrence. If false promising is universalized, then no one

Actions prescribed in laws of freedom are objectively necessary but

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Laws of freedom constitute the class of all a priori recognizable

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Remaining with our example of promises and their fulfillment, one

Obligation is the necessity of a free action under a categorical imperative of

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From Kant's definition of 'duty' we see in our example of promising

All legislation is composed of two elements: a law w

32 "Pflicht ist diejenige Handlung, zu welcher jemand ver

33All legislation (it may require internal or external action

Zu aller Gesetzgebung (sie mag nun innere oder aufiere

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mentioned,34 moral law expresses objective (moral) necessity, which is

mungsgrund der Willkiir zu dieser Handlung subjectiv mit der Vorstellung

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MdS, 6 A.A. 218-19.

Id. at 219 (parenthetical information added to English translation).

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enticement to encourage the fulfillment of the duties to which they are

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As Kant tells us, the human faculty of choice develops maxims of

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notable exception to the external duty characteristic of juridical legis-

44 See id. at 220.

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offers to fly me to the top, then my 'wish' becomes 'choice', namely I

III. LEGAL RIGHT: FREEDOM AND COERCION

Freedom, as the central, unique characteristic of rational b

Freedom (independence from another's forceful exercise of cho