Kant and the Morality of Anger
This essay does not comprise a defence of retributive punishment, neither does it imply a rejection of deterrent punishment. The writer suggests that one possible reason for the tendency to advocate punishment of offenders with ever increasing severity can be discovered in the concept of the 'morality of anger'. It is this explanation of the phenomenon that forms the principal burden of the arguments used in this essay.
The salient characteristics of the two theories of punishment, which find expression in English law, will be found below . In the absence of any definitive public policy an unresolved tension exists, which derives from attempts made to reconcile the two theories, with some degree of balance, in sentencing practice. Actual sentences in the English courts are often a compromise between the demands of retribution and deterrence. Any uncertainty that may exist about which theory is being used, in particular circumstances, leads to actions which cannot be completely justified by either theory .
Crime and Punishment in Kant's Civil Society
According to Kant's moral theory an exacting principle of respect for humanity, in the form of the person, can be reconciled with the absolute necessity of punishment, because punishment, within a properly constituted civil society, is a legitimate and necessary response to crime — punishment must comply with the moral law as a 'categorical imperative . Kant's theory of retributive punishment is of particular importance, because it is one of the most coherent and consistent of the retributive theories, and has not lost its relevance in contemporary discussions .
Kant's civil society rest securely on three principles. First, the freedom of the individual as a human being. Second, the equality of each subject in an open, civil society. Third, the independence of each member of that society as a citizen. The basic public or positive law 'defines for everyone that which is permitted and prohibited by right' — the original contract' by which people, as citizens, can be deemed to have consented to the rule of law. Justice is grounded in the unanimous consent of the people .
Kant's concept of the law of retribution' emphasises that ,like is to be exchanged for like in matters of offence and penalty' and, it is important to note, that the actual punishment is not determined by the victim . A legally authorised court, with an elected jury of citizens, justly imposes a penalty only if the reason for that penalty is the crime alone; extraneous considerations are not permitted to influence the court's decision either in matters of guilt or punishment — 'neither the victim of crime, nor any angry neighbour, nor any diffuse 'society, has the authority to punish .
The court does not have carte blanche to do as it pleases, because the offender's inherent personality forbids any infamous forms of treatment.' Punitive...