In a previous post, I responded to commenter Dudley Sharp‘s citation of a quote purporting to be from Immanuel Kant in support of the death penalty:

“If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death….A society that is not willing to demand a life of somebody who has taken somebody else’s life is simply immoral.”

Not being a philosopher but having read and thought a bit about Kant on my own, I doubted the provenance of the quote. In fact, it turns out it is from Kant’s Metaphysics of Morals. Kant did indeed believe in and argue for the morality of capital punishment.

This in itself, of course, does not solve the matter. Just because Kant thought the death penalty was moral doesn’t mean it is, in fact, so.  But I want to take the argument seriously and consider it in terms of Kant’s ethics as a whole as I understand them. Again, I’m not trained as a philosopher, as is probably apparent to anyone who wondered why I doubted the original quote was from Kant. But bear with me. This is an important and useful line of thought with respect to justice generally. And by all means, if you think my reasoning is wrong, please explain why in the comments section of this post.

I’m coming back to this subject after a hiatus of several months because I’ve been reading Michael Sandel’s book Justice, based on his popular Harvard lecture course. I’ve just read his chapter on Kantian ethics, which reminded me of my own discussion of Kant. He’s very good, Sandel, at making such a complicated subject accessible. It’s worth watching the sixth lecture in the course if you’re interested in these ideas, especially if you find Kant intimidating, which is perfectly natural. For convenience, I’ve embedded the video below.  (It’s about 55 minutes long.)

I’ll try to summarize what I’ve learned from Sandel so we can get to the heart of the matter quickly. In essence, Kant argues that humans are capable of reason and, therefore, are owed respect from other humans as a right. He acknowledges that we are also animal, subject to “inclinations” and appetites that impinge on our freedom to act rationally. To act morally, for Kant, is to act “autonomously,” which is to say, as free agents obeying the laws of reason rather than as slaves to our passions. As reasoning creatures, we are capable of acting, and therefore have a “duty” to act, autonomously; as animals, we act  “heteronomously” (Kant’s coinage), prey to forces beyond our control, to peer pressure and suggestion, as well as to our unconscious desires, impulses, prejudices and inclinations.

As animals, our actions are contingent to situations: I’m hungry, I see an apple, I take the apple and eat it.  Kant argues that at our most basic level of operation, we act on these “hypothetical imperatives.”  (“If I’m hungry, I will eat an apple.”) This is a perfectly fine way of acting. It helps us survive. But for Kant, acting on hypothetical imperatives  is not a “moral” way of acting. Neither is it moral to “do good” if the action is motivated by a hypothetical imperative. (“If I help this person, others will think well of me.”) For Kant, the only moral action is one that can be applied categorically, i.e., universally, in all situations as a law, without respect to one’s personal benefit. (“I will help this person because she is a human being and all human beings are owed respect.”)

Sandel very helpfully schematizes Kant’s ethics as a two-sided track of contrasts: on the one side, human being as rational being; on the other, human being as animal.  The scheme looks like this:

Contrast 1 (morality):    duty vs. inclination

Contrast 2 (freedom):    autonomy vs. heteronomy

Contrast 3 (reason):        categorical vs. hypothetical imperative

There’s a fourth contrast of “standpoints”– “intelligible” vs.  “sensible”–but we don’t need to go into them here to focus on the implications of these ethics for capital punishment. They only deepen Kant’s point about the free agency of the moral actor, as compared to the unconscious slavery of the typical person following his inclinations.

Kant is considered a sort of founding father of universal human rights, and it’s not hard to see why. Perhaps his fundamental axiom is that all human beings are capable of reason, therefore, all human beings are owed dignity and respect. They must be treated, not as a means to an end, but as ends in themselves. Depriving a human of her rights, on Kant’s view,  is neither rational nor moral because doing so cannot be justified categorically. There must always be a contingent, hypothetical imperative for depriving a human of her rights. If I lie to her, then I’m not respecting her humanity. I’m using her to further whatever agenda I have that I believe she will obstruct if she knows the truth. I have a duty to tell her the truth, even if I think she will use that truth for purposes that are not moral.

Sandel says that, according to Kantian ethics, it is not moral to lie to a murderer to prevent him from knowing where his prey is. It is, however, moral to deceive with a partial truth. (“I saw your potential victim somewhere else two hours ago.”) But the point is, we have a categorical imperative to be truthful to each other. All humans have a right to be told the truth, even murderers.  Similarly, Kant argues that all humans have a duty to live morally and a right to be left to live. Suicide is immoral, on Kant’s view, because it violates this categorical imperative. The suicide is a surrender to the need to end the pain of living, but according to Kant, this is an abjuration of the duty to live a moral life.

So why does Kant believe it’s not the society that kills murderers but the one that seems to  follow the categorical imperative not to deprive even murderers of life that is “immoral?” I don’t have a good answer for that, though I’ve seen one bizarre explication on another website, the notes to a class on ethics taught by Dan Gaskill at California State University Sacramento:

Wouldn’t the same kind of reasoning that prohibits suicide also prohibit killing a criminal?

Not according to Kant.  Criminal actions, like any other actions, are associated with maxims.  The maxims of criminal actions (theft, assault, etc.) are ones that endorse harming or otherwise violating the autonomy of others.  For example, I will rob you when I have the opportunity to do so in order to promote my own interests.  As rational agents, people who act on these maxims are endorsing them as universal law.  They are saying, in effect, this is how people ought to be treated….

[T]he second formulation of the [categorical imperative] tells us that we ought to treat others always as ends, and never merely as means.  By punishing a criminal, we are respecting his ends, because we are treating him in the way that he thinks people ought to be treated.  Thus, we are not punishing him for our own benefit (nor for his benefit), but because it is in accordance with the principles that he has endorsed through his actions.  For Kant, this would be a way of “sharing in his ends”….

“Of course,” the notes point out, “the Kantian justification for punishment hinges on the assumption that the punished actually chose their actions autonomously, using their own rationality.  It depends, in other words, on the assumption that they were moral agents when they acted.  If they were not moral agents; if instead, they were like wild animals, or they were insane, then Kant’s reasoning would not apply.”

And I have to add that this “loophole,” if you will, in the categorical imperative seems like a wild stretch to me to make Kant’s belief in the justness of the death penalty (based, perhaps, on his Christian beliefs, which may have been similar to the theological ones Dudley Sharp cites in tandem with the Kant quote), to make it seem rational rather than merely an inclination. Is it moral for any given person to kill a murderer, or is that just the state’s imperative? Does one have a duty to kill a murderer? Does one have a duty to punish any miscreant by “sharing in his ends?” If it’s immoral to lie to a murderer but moral to kill one, in other words, would it be moral to lie to a liar?

Sandel, incidentally, doesn’t address these questions in Justice (at least not in the chapter on Kant). It’s clear he admires Kant’s ethics, particularly as they relate to questions of human freedom and moral agency. Does he see the same hole I see here?

Again, I would appreciate some more perspectives on this. Help me out here! Please comment below or drop me line: cpierson@tragicfarce.com