Contemporary
opponents of capital punishment often appeal to a Kantian conception of human
dignity, which they suppose naturally entails such opposition. And it might seem like advocacy of the death
penalty would have to reflect something closer to Hobbes’s grim realpolitik. Yet when we consider the actual views of
Hobbes and Kant themselves on the
matter of capital punishment, we find that something closer to the opposite is
the case – Kant being enthusiastically (indeed excessively) favorable to
capital punishment, and Hobbes, if not utterly opposed to it, at least
significantly more negative about it.
This is no
accident, for each of these positions on the death penalty in fact fits quite
naturally with the premises from which Kant and Hobbes respectively derive them. And this, I submit, teaches us something
about the conception of human beings that modern opponents of capital
punishment – and indeed many citizens of modern Western liberal democratic
societies in general – are really operating with, at least implicitly. Modern people like to think of themselves as
cuddly Kantians, when they are in fact closer to coldhearted Hobbesians. And their hostility to capital punishment
reflects, not a robust conception of justice but, on the contrary, an aversion
to such a conception.
Hobbes on the death penalty
For Hobbes,
the state of nature is essentially a state of amorality. Everyone has a perfect liberty to do what he
likes, not because there is some moral imperative on everyone to allow others
to do so, but on the contrary because there are no moral imperatives at
all. If you find your bliss in writing
poetry by moonlight, you are perfectly free to do that. And if some other person finds his bliss in
beating up people who write poetry by moonlight, he is perfectly free to do that. There is no objective fact of the matter about
what either you or he ought to
prefer, but merely facts about what you and he do in fact prefer, and such individual preferences are bound often
to be at cross purposes.
This, of
course, is why for Hobbes the state of nature is “a war of all against all,”
with life inevitably “solitary, poor, nasty, brutish, and short.” It is to avoid this frightful situation that
rational individuals will, in Hobbes’s view, agree to leave the state of nature
by giving up their liberty to do whatever they wish and consenting to being
ruled by a sovereign. It is only at this
point that rules of morality come into being, and they are essentially just
whatever laws the sovereign decrees. But
they are binding on individuals only because they have consented to being
governed by them.
Now, Hobbes
famously draws an absolutist political conclusion from this, but what is
relevant for present purposes is this.
For Hobbes, the default position is liberty to do whatever one likes;
what makes it rational to give up some of that liberty is that, otherwise, one
would lose all of one’s liberty in
slavery or death; and we are obligated to follow rules that limit liberty only
insofar as we consent to them.
That brings
us to what Hobbes says about capital punishment. Unsurprisingly, given his absolutism, Hobbes
does not deny that the sovereign may resort to capital punishment in order to
uphold the law. Interestingly, however,
this does not for Hobbes entail any obligation on the part of the condemned
criminal to go along with such a punishment.
In chapter 21 of Leviathan,
Hobbes writes:
Covenants, not to defend a man’s own
body, are void. Therefore, if the sovereign
command a man (though justly condemned) to kill, wound, or maim himself; or not
to resist those that assault him; or to abstain from the use of food, air,
medicine, or any other thing, without which he cannot live; yet hath that man
the liberty to disobey…
In case a great many men together
have already resisted the sovereign power unjustly, or committed some capital
crime, for which every one of them expecteth death, whether have they not the
liberty then to join together, and assist, and defend one another? Certainly they have: for they but defend
their lives, which the guilty man may as well do, as the innocent. There was indeed injustice in the first
breach of their duty; their bearing of arms subsequent to it, though it be to
maintain what they have done, is no new unjust act. And if it be only to defend their persons, it
is not unjust at all.
This makes sense
given Hobbes’s account of the basis of morality. If the default position is liberty to do
whatever I want to do, and I can lose this liberty only insofar as I consent to losing it – and if I can rationally consent to losing it only
because I would face death otherwise – then it is clear why Hobbes would
conclude that I cannot lose my liberty to preserve my own life, not even if I
consent to doing so. For, again, it is
precisely the desire to preserve my
life that is the only reason I could rationally consent to give up any liberty
at all.
As Leo
Strauss remarks in Natural Right and
History, this introduces a tension into Hobbes’s system. If it would in some cases be just for the
sovereign to punish me with death, how could I justly resist? Or if I can always justly resist, how can it
be just for the sovereign ever to inflict such a punishment? As Strauss writes, “this conflict was solved
in the spirit,if
against the letter, of Hobbes by Beccaria, who inferred from the absolute
primacy of the right of self-preservation the necessity of abolishing capital
punishment” (p. 197). Hobbes’s account
of morality in fact entails this abolitionist position even if he only got
halfway to it himself.
Strauss
makes another crucial observation.
Hobbes’s account only works if death is indeed the worst fate
possible. But “in many cases the fear of
violent death prove[s] to be a weaker force than the fear of hell fire or the
fear of God” (p. 198). Naturally, such
fear could change the whole calculation even for those in Hobbes’s state of
nature. Perhaps, if people feared God
and damnation most of all, they would resist the sovereign far beyond what
Hobbes would allow, choosing to risk offending the state rather than to risk
offending God. Or perhaps, in a
penitential spirit, they would submit even to punishments like enslavement and
execution, looking forward to a reward in the hereafter.
To make his
account of morality and politics work, then, Hobbes requires a social context
that is secularist rather than otherworldly in its basic orientation. For only in such a context can the fear of
death be more vivid than the fear of eternal damnation, and thus do the work
Hobbes needs for it to do. As Strauss
writes:
The whole scheme suggested by Hobbes
requires for its operation the weakening or, rather, the elimination of the
fear of invisible powers. It requires
such a radical change of orientation as can be brought about only by the
disenchantment of the world… Hobbes’s is the first doctrine that necessarily
and unmistakably points to a thoroughly ‘enlightened’, i.e., a-religious or
atheistic society as the solution of the social or political problem.
(p. 198)
In short, Hobbes’s
system of ethics and political philosophy entails an abolitionist position on
capital punishment because of its radical individualism and secularism. In particular, it holds that limitations on
the individual’s freedom to do whatever he wants are justifiable only if he
consents to them, and that no individual could consent to being executed
because death is worst of all fates.
Kant on capital punishment
Kant takes
the fundamental principle of morality to lie in what he calls the categorical imperative, the second
formulation of which is: “Act in such a way that you always treat humanity,
whether in your own person or in that of any other, never simply as a means,
but always at the same time as an end.” The
idea here is that human beings, as rational beings possessing intellects and
free will, have by nature a kind of autonomy or self-determination that
non-human animals, plants, and inorganic things do not. When we treat human beings as nothing more
than resources for the realization of our own ends (the way we might treat a
sub-rational being of one of the kinds mentioned) we thereby fail to deal with
them in a way that is appropriate given their nature. This formulation of the categorical
imperative is thus taken to give expression to the idea of the special dignity of the human person, and of the
special respect we owe such persons
given their dignity.
Now, in
recent decades this notion of “the dignity of the human person” has been
deployed, especially in certain Catholic contexts, to criticize capital
punishment, harsh and humiliating punishments more generally, and the idea that
retribution is the central function of punishment. Interestingly, though, Kant himself drew
exactly the opposite of these conclusions, at every point.
Hence,
consider his treatment of the topic of punishment in The Metaphysical Elements of Justice. In the name of respect for persons, many
today suggest that retribution is not an appropriate motivation for any punishment,
and that instead it can only be inflicted if it is needed to protect society or
to promote the rehabilitation of the offender.
But here is what Kant says:
Judicial punishment can never be used
merely as a means to promote some other good for the criminal himself or for
civil society, but instead it must in all cases be imposed on him only on the
ground that he has committed a crime; for a human being can never be
manipulated merely as a means to the purposes of someone else and can never be
confused with the objects of the Law of things.
His innate personality [that is, his right as a person] protects him
against such treatment, even though he may indeed be condemned to lose his
civil personality. He must first be
found to be deserving of punishment before any consideration is given to the
utility of this punishment for himself or for his fellow citizens. The law concerning punishment is a
categorical imperative, and woe to him who rummages around in the winding paths
of a theory of happiness looking for some advantage to be gained by releasing
the criminal from punishment or by reducing the amount of it.
(p. 100, Ladd
translation)
Note first
of all that Kant argues here that to punish someone merely for the good of
society (which would include protecting it from him) or even for the sake of
some utility it may afford him (which would include rehabilitation) violates
the categorical imperative, because it treats him merely as a means rather than
as an end in himself. The only motive
for punishment that respects his nature as a person is the motive of simply
giving him what he deserves – in other words, retribution – and only with that
motivation first in place can any thought be given to what might promote the
good of society or of the offender.
So far, this
is just the traditional understanding of the purposes of punishment, and
corresponds to traditional Catholic teaching from Genesis to Thomas Aquinas to
the Catechism, at least as Pope St. John Paul II left it. (See By
Man Shall His Blood Be Shed, my book co-written with Joseph
Bessette, for a refutation of the claim that John Paul II changed Catholic
teaching in this respect.) But Kant’s
position is even more austere than that, ruling out considerations of mercy
that in Catholic teaching balance out considerations of justice. For Kant’s view is not merely that, when we punish, we must have retribution
in mind first and foremost. He holds
that we must punish an offender. In his view, respect for human dignity not
only allows the state to inflict on a
criminal his just deserts but requires the
state to do so. And he takes this to
follow precisely from the fact that respect for persons – which includes
holding them responsible, and thus worthy of punishment, for the bad things
they do – is a categorical
imperative, commanding unconditionally.
Exactly what
kinds of punishments must be inflicted?
Kant answers as follows:
Any undeserved evil that you inflict
on someone else among the people is one that you do to yourself. If you vilify him, you vilify yourself; if you
steal from him, you steal from yourself; if you kill him, you kill
yourself. Only the Law of retribution
(jus talionis) can determine exactly the kind and degree of punishment... [This
is] the retributive principle of returning like for like. (p. 101)
This is
sometimes referred to as the principle of
proportionality, and here too Kant’s position corresponds to traditional
Catholic teaching from the Old Testament to the Catechism of John Paul II. For example, echoing Kant’s point that it is
ultimately the offender who inflicts on himself whatever he does to others,
Pope Pius XII taught:
Even when it is a question of the
execution of a condemned man, the State does not dispose of the individual’s
right to life. In this case it is
reserved to the public power to deprive the condemned person of the enjoyment
of life in expiation of his crime when, by his crime, he has already disposed
himself of his right to live.
Here too,
though, Kant goes further than the traditional view. It is not merely that proportionality gives
us a criterion for determining what punishment to inflict whenever we do
punish. It is that we must, as far as we are able, return like
for like. He notes, for example, that
“the imposition of a fine for a verbal injury has no proportionality to the
original injury” (p. 101). Instead, he
says:
The humiliation of the pride of such
an offendercomes much closer to equaling an
injury done to the honor of the person offended; thus the judgment and Law
might requirethe offender, not only to make a
public apology to the offended person, but also at the same time to kiss his
hand, even though he be socially inferior.
Similarly, if a man of a higher classhas violently attacked
an innocent citizen who is socially inferior to him, he may be condemned, not
only to apologize, but to undergo solitary and painful confinement, because by
this means, in addition to the discomfort suffered, the pride of the offender
will be painfully affected, and thus his humiliation will compensate for the
offense as like for like. (pp. 101-2)
Notice that
here too, Kant draws precisely the opposite lesson from human dignity that many
today who appeal to it do. It is often
claimed today that it is contrary to human dignity to inflict harsh or
humiliating punishments. But as Kant
argues, in reality, if the offender has himself treated others in a harsh or
humiliating manner, then he deserves such treatment in return, and inflicting
it on him thus respects his dignity
as a person precisely by holding him responsible as a free and rational agent.
For this
reason, Kant even argues that justice requires that, as part of their
punishment, thieves must be forced to labor (p. 102). For they have stolen from others, and if,
while in prison, they are fed and sheltered at state expense, this only compounds
their unjust taking of resources that rightfully belong to others. Hence, while it is widely taken for granted
today that penal servitude is contrary to a Kantian respect for persons, Kant
himself argued that respect for the dignity of persons requires penal servitude if
the offender has done something to merit it.
(Here again, Kant goes beyond what became standard Catholic teaching,
which holds that while penal servitude can for the reasons Kant gives be
justifiable in theory, in practice it should not be used, because
it has a tendency to degenerate into chattel slavery, which is intrinsically
immoral.)
This brings
us at last to Kant’s position on capital punishment. He writes:
If, however, he has committed a
murder, he must die. In this case, there
is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death
and remaining alive even under the most miserable conditions, and consequently
there is also no equality between the crime and the retribution unless the
criminal is judicially condemned and put to death. But the death of the criminal must be kept
entirely free of any maltreatment that would make an abomination of the
humanity residing in the person suffering it.
Even if a civil society were to dissolve itself by common agreement of
all its members (for example, if the people inhabiting an island decided to
separate and disperse themselves around the world), the last murderer remaining
in prison must first be executed, so that everyone will duly receive what his
actions are worth and so that the bloodguilt thereof will not be fixed on the
people because they failed to insist on carrying out the punishment; for if
they fail to do so, they may be regarded as accomplices in this public
violation of legal justice. (p. 102)
In endorsing
the idea that the principle of proportionality justifies executing those who
are guilty of murder, Kant is, once again, echoing traditional Catholic teaching. But here too he goes well beyond it by
insisting that the moral law not only allows,
but requires, the execution of
murderers.
Kant adds
some further remarks that reinforce how radically different his position is
from that of Hobbes. Suppose for the
sake of argument that the law were to allow a murderer to opt, instead of the
death penalty, for the lesser punishment of penal servitude. Kant comments:
I say that a man of honor would
choose death and that the knave would choose servitude. This is implied by the nature of human
character, because the first recognizes something that he prizes more highly
than life itself, namely, honor, whereas the second thinks that a life covered with disgrace is still better than not being
alive at all (animam
praeferre pudori). The first is without doubt less deserving of
punishment than the other. (p. 103)
For Hobbes,
death is the worst thing that can happen to us; for Kant, dishonor is worse
still. For Hobbes, reason tells the
offender facing execution to do what he can to avoid it; for Kant, reason tells
the offender to accept execution, precisely because, as a free and rational
agent, he has done something to deserve it.
For Hobbes, there is no injustice in resisting execution, even though the
offender has done something to deserve it; for Kant, for a murderer to resist
execution only makes him even more deserving
of it.
Unquestionably,
here too Kant, though going beyond what traditional Catholic teaching strictly
requires, is much closer to it than Hobbes is.
Consider, for example, the Good Thief, who while dying on his cross said
to his fellow criminal that “we are punished justly, for we are getting what
our deeds deserve” (Luke 23:41) – and to whom Christ went on to promise paradise. Or consider the original 1992 version of the Catechism of the Catholic Church
promulgated by Pope St. John Paul II, which, after reaffirming the legitimacy
in principle of the death penalty for sufficiently grave crimes, goes on to say
that “when his punishment is voluntarily accepted by the offender, it takes on
the value of expiation” (2266).
Hobbesians in Kantian drag
As I’ve
said, many today, especially in Catholic circles, claim that the notion of
human dignity put at the center of modern moral philosophy by Kant requires
softening the traditional approach to punishment, and capital punishment in
particular. Yet, ironically, Kant
himself essentially argued that respect for human dignity requires taking a harsher approach than the traditional
one. Of course, one could try to argue
that Kant was wrong, and that respect for human dignity does in fact require
moving away from the traditional view. But
as Bessette and I show in our book, none of the arguments to this effect that
have been offered succeeds.
Moreover, to
the extent that they emphasize the unique awfulness of death and the way
punishment affronts the freedom of the offender, contemporary abolitionist
arguments are much closer in spirit to Hobbes than to Kant. The rhetoric
may often be Kantian, but the substance
is Hobbesian.
And that is a second irony, when the abolitionists in question are Catholic. For Hobbes was, of course, a great enemy of the Catholic Church, which, in Leviathan, he portrayed as the chief agent in what he called the “kingdom of darkness.” The moderns simply cannot give Catholic modernizers what they want. Kant cannot do so, because his view on matters of punishment is more traditional than modern. And Hobbes cannot do so, because while his position is modern, it is the opposite of Catholic.