Two Theories of Retributive Punishment: Immanuel Kant and Thomas Aquinas Author(s): Peter Koritansky
Source: History of Philosophy Quarterly, Vol. 22, No. 4 (Oct., 2005), pp. 319-338
Published by: University of Illinois Press on behalf of North American Philosophical Publications Stable URL: http://www.jstor.org/stable/27745035 .
Accessed: 21/06/2014 14:34
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
.
University of Illinois Press and North American Philosophical Publications are collaborating with JSTOR to
digitize, preserve and extend access to History of Philosophy Quarterly.
TWO THEORIES OF RETRIBUTIVE PUNISHMENT: IMMANUEL KANT AND
THOMAS AQUINAS
Peter Koritansky I
In
the contemporary debate over the ultimate rationale of punishment, two positions are predominant: utilitarianism and retributivism. The debate, unfortunately, has been inconclusive and the two sides have come to something of an impasse. The reason for this, it seems, has to do with the fact that retributivists have mainly based their position upon the penology of Immanuel Kant. Fortunately, a more compelling, moderate, and reasonable account of retribution is given by Thomas Aquinas. To show this, it will be first necessary to explain Kantian retributivism, continue by explaining Aquinas's understanding of punishment, and conclude by observing where the Thomistic understanding of retribution is noticeably superior to that of Kant.
II
Kant's understanding of punishment is most clearly stated in part one of his Metaphysik der Sitten, entitled the Metaphysische Anfangsgrunde der Rechtslehre (hereafter, the Rechtslehre). The first time punishment
is brought up in this work is during Kant's discussion of coercion, which he argues is justifiably carried out against anyone who violates
the "universal principle of right" (UPR), Kant's legal analogue to his well-known moral principle, the categorical imperative. According to
the UPR, "any action is right if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law."1 Coercion is therefore justified because it attempts to ensure that the UPR is not violated by inflicting harm on those who
319
encroach upon the freedom of others. Thus understood, legal coercion
"counteracts" violations of right by turning those violations back upon the criminals who perpetrate them. Even though coercion infringes upon the freedom of the criminal, it does not itself violate the UPR precisely because of this counteracting function. In Kant's terse language, "re
sistance that counteracts the hindering of an effect promotes this effect and is consistent with it."2
To be sure, therefore, Kant's penology is based on his recognition that punishment, in the form of legal coercion, is necessary to promote the freedom of those living under the regime responsible for punishing.
Interestingly, however, this necessity constitutes neither punishment's primary function nor its morally justifying purpose. Rather than promot
ing freedom, punishment is primarily intended by Kant to re-establish justice. It is in explaining this latter function that Kant famously calls judicial punishment a "categorical imperative," thus implying that it must be carried out, not for the sake of further political goals dictated
by human nature or natural desire, but simply because of a categori cal obligation, discovered by pure reason, to punish criminals. Kant explains as follows:
Punishment by a court (poena forensis) . . . can never be inflicted merely as a means to promote some other good for the criminal him
self or for civil society. It must always be inflicted upon him because he has committed a crime. For a human being can never be treated merely as a means to the purposes of another or be put among the
objects of rights to things: his innate personality protects him from this, even though he can be condemned to lose his civil personality.
He must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens. The law of punishment is a categorical
imperative, and woe to him who crawls through the windings of eudai monism in order to discover something that releases the criminal from
punishment or even reduces its amount by the advantage it promises, in accordance with the pharisaical saying, "It is better for one man to die that for an entire people to perish." For if justice goes, there is no
longer any value in human beings' living on the earth . . . for justice ceases to be justice if it can be bought at any price whatsoever.3
Two primary observations must be made with respect to the above passage. The first is what might be described as an exclusive focus upon the crime committed by a transgressor of the law rather than upon that transgressor's personal culpability or psychological motivation. As Kant explained earlier in the Rechtslehre, the concept of right pertains to actions only in their external manifestation.4 Political justice, thus un derstood, is neither concerned with virtue nor the internal motivations
of just or unjust actions. In contrast to the requirements of morality, whether a man pays his debt from reverence for the law or from fear
of punishment should make no difference to the state. In fact, to force someone to adopt justice as his motive is itself unjust, since it interferes with his freedom to adopt whatever motive he pleases, so long as the
external action proceeding from that motive does not interfere with anyone else's freedom. In Kant's words, "for anyone can be free so long as I do not impair his freedom by my external action, even though I am quite indifferent to his freedom or would like in my heart to infringe upon it. That I make it my maxim to act rightly is a demand that eth
ics [rather than legal justice] makes on me."5 This restriction of legal justice to external actions explains Kant's relative indifference to the psychological motivation of criminals. Just as it falls outside the law's
jurisdiction to require that law-abidingness be fulfilled with morally praiseworthy motives, it also falls outside that jurisdiction to punish certain criminals more severely for the same crimes because of a more reprehensible motive. It may seem strange that Kant both restricts legal authorities to a consideration of the criminal's external act while also
insisting that criminals get what they deserve. On this score, however, Kant should not be accused of any inconsistency. The idea of criminal
desert, which entitles the state to carry out judicial punishment, is not the same as the idea of moral desert, or the amount of happiness (or unhappiness) a person deserves by virtue of his/her inner character.6 The former concept is simply a matter of the state's responsibility to match the criminal's crime with an appropriate penalty while the latter
concept pertains to matters entirely outside of the state's (and perhaps any human being's) authority. By restricting judicial punishment to criminal desert Kant rules out not only the state's discrimination be tween more or less morally acceptable motives for criminal acts but also any alleged prerogative the state may claim to punish inherently non-criminal moral offences.
Secondly, we must consider Kant's invocation of the categorical im perative in the above passage. This may seem strange after considering his earlier remarks to the effect that morality and legal justice must not be confused. As we consider Kant's theory of punishment more fully, however, we see that the separation between morality and the law has only to do with not punishing those who fall short of morality's "internal"
requirements. It does not mean that legal authorities are beyond moral reproach or that they do not have moral obligations. The formulation of the categorical imperative Kant has in mind is primarily that which for bids one from using other persons as mere means to one's own subjective
ends.7 Since criminals who voluntarily break the laws of society are no less persons, the law of morality forbids punishing them for utilitarian
reasons. Of course, it may sometimes happen that what utility requires and what justice requires coincide. If this is the case, presumably, the legal authority punishing from utilitarian motives commits only a moral offense rather than a legal injustice. If governed by the principle of util ity as a matter of public policy, however, it will not be long before some criminals are punished far less or far more than they deserve. As Kant emphatically insists, therefore, no competing utilitarian motive should be allowed to encroach upon the retributive motive. Lawmakers and judges may hope for beneficial utilitarian consequences from criminal punishment, but they must never punish criminals for the sake of such consequences. In response to those who would accuse his retributivism as a disguise for vengeance and cruelty, Kant would likely reply that his understanding of punishment actually protects criminals by demand
ing that those punished be given no less, but also no more, than what they deserve before any thought is given to the felicitous side-effects that society may gain from their punishment. Furthermore, since the categorical imperative is directly opposed to anything carried out from impulse or natural inclination, punishing from hatred or desire for re venge also violates morality by linking punishment with a hypothetical
imperative. The will to punish, if moral, must be from nothing more than a recognition of a criminal's desert and must be motivated solely by the cold calculation of what justice requires. Under Kant's rationale,
to punish from the impulse of vengeance or hatred is no more justifiable than to punish from a desire to maximize utility.
This, however, cannot be considered an exhaustive account of what Kant means when he asserts that judicial punishment is a categorical
imperative. The reason for this has to do with the very nature of the categorical imperative itself. In addition to being a restriction upon how we treat persons, the categorical imperative also involves a posi tive obligation. To say that punishment is a categorical imperative is not just to say that we are forbidden to punish from immoral motives, but also that we must punish. If a society is remiss in punishing, it fails to fulfill its obligations of justice no less than if someone were to be remiss in paying his monetary debts. If punishment is deserved,
society is categorically obliged to carry it out, Kant insists, even if no good consequences will follow. Kant states this categorical obligation
in unambiguous terms.
Even if a civil society were to be dissolved by the consent of all its members (e.g., if a people inhabiting an island decided to separate
and disperse throughout the world), the last murderer remaining in prison would first have to be executed, so that each has done to him what his seeds deserve and blood guilt does not cling to the people for
not having insisted upon this punishment, for otherwise the people can be regarded as collaborators in this public violation of justice.8 How do we know how severe a punishment must be? Kant answers this question in perfect stride, confidently appealing to the lex talionis as the only reliable guide:
What kind and what degree of punishment does public legal justice adopt as its principle and standard? None other that the principle of equality (illustrated by the pointer on the scales of justice), that is, the principle of not treating one side more favorably than the other.
Accordingly, 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. Only
the Law of Retribution (jus talionis) can determine exactly the kind and degree of punishment."9
To be sure, Kant's formulation of retributivism constitutes an impres sively assertive and consistent alternative to consequentialist theories of punishment.10 Especially by his insistence upon the concept of criminal desert, he seems to recapture something essential to the very notion of punishment that was lost by those who would look upon punishing as nothing but a kind of social hygiene. Kant reminds us that the reason utilitarianism seems to justify the punishing of criminals far less or far more than they deserve (or even punishing the innocent) is that the concept of criminal desert is simply absent from utilitarianism.
Even though Kant must be credited with successfully reintroducing the concept of desert, however, there remain some great difficulties to be overcome. I shall focus upon three of these difficulties in particular, all of which have been pointed out by other (mostly utilitarian) critics of Kantian penology.
One common complaint of this theory of punishment is simply that it is too rigid. Kant's emphatic assertion that an exact degree of retribu tion be inflicted upon criminals leaves little or no room to promote those other goods punishment can secure. Granted that by punishing strictly for therapeutic reasons one may fail to acknowledge a criminal's genu ine culpability, granted that an over-concern with deterrence may use the criminal as a means to an end, should a judge really be forbidden to punish more or less than what the lex talionis specifically requires?
Even if the infliction of suffering upon a criminal could ever be exactly matched with the crime he committed, should civil society insist that
retribution be carried out even if doing so would result in great harm to the community?11 This is certainly what the teaching that punishment is a categorical imperative suggests. Kant's strict adherence to the lex talionis, and his insistence that the only legitimate basis for punish
ing someone is "the fact that he has committed a crime," also prevents judges from considering the possibility that one criminal may be more culpable than another who commits the same crime. In the Rechtslehre, as we have seen, Kant makes it very clear that legal justice, applying only to the external, must be blind to a criminal's motives, thus eliminat
ing the chance for judges to punish someone more severely for a more condemnable motive or to have mercy upon someone because of a less condemnable motive.12 Such details are reserved for the realm of eth
ics, not political justice. For the same reason, the strict teaching that punishment is a categorical obligation seems to preclude the legitimacy of mercy altogether. What is mercy, if not that by which one decides to
inflict less punishment than what strict legal justice requires? Perfectly following Kant's teaching, the moment one shows mercy is the moment
it ceases to be worthwhile for men to remain alive on the earth.
The second problem has to do with the impossibility and/or undesir ability of imposing the lex talionis in every situation. For a crime like murder, the lex talionis may be reliable, as it would surely require the
death penalty. But what about crimes like perjury, hijacking, kidnap ping, or rape? The problem is that the lex talionis requires that one must adhere not only to a standard of equal justice, but also to a kind of poetic justice. Even when Kant comes across crimes for which inflicting
the lex talionis would be impossible, he still suggests one should make sure that the criminal suffers, not just the same degree, but also the same kind of evil he inflicted.13 Kant fails to provide a detailed account of exactly how far we should take the lex talionis, but the problems with taking it as literally as possible are glaring. Should a civilized society be comfortable with sentencing rapists to be raped just as it sentences murderers to be executed? Should public funds be used to pay the sal
ary of those responsible for carrying out these ghastly punishments?
Strictly speaking, the death penalty for a man who slowly dismembers someone until his victim finally dies would be too lenient according to a literal interpretation of the lex talionis. Perhaps Kant would qualify his argument by saying that a perfectly equal retribution should be
abandoned if it requires society to inflict gruesome suffering upon its criminals. Surely, the moral and psychological integrity of citizens is more important than insisting upon the kind of poetic exactness that the
lex talionis requires. And yet, if Kant were to make this concession, does he not admit that realizing the exact equality of justice can be sacrificed for other non-retributive goods like the moral integrity and/or psychologi cal Wellness of those responsible for punishing? If, however, we could deviate from the lex talionis for the sake of these non-retributive goods, why not also for others like rehabilitation or deterrence? Unfortunately, Kant leaves these questions unanswered.
Finally, Kant's retributivism simply fails to provide an ultimate ratio nale for society's obligation to punish its criminals. This problem pertains less to the prohibition against treating criminals as a mere means to the ends of the state. In question is the more fundamental difficulty of providing a genuinely retributivist answer to the question: Why demand
retribution at all? Even though Kant is quite effective in showing how exclusive attention to utilitarian goals may result in travesties of justice, he does not provide an explanation as to why retributive justice must be sought. If the obligation to punish really is a categorical imperative,
the solution to this difficulty must be sought within the parameters of pure reason. Even if one agrees with Kant that pure reason is the only reliable guide to discovering the moral law, however, how can pure reason derive a categorical obligation to punish criminals in the same way that it derives, say, the categorical prohibition against lying? After a criminal has been made to suffer at the hands of the regime against which he committed his crime, how is that regime better off? Has it
gained something? Simply to say that it has gained justice seems ter ribly inadequate. What formulation of the categorical imperative leads to this punitive obligation? In light of the fact that Kant does not provide the solutions to these difficulties, let us hasten to Thomas Aquinas in search of a theory of punishment that may prove more compelling than that of Kant as well as that of utilitarianism.
Ill
The first point to note about Aquinas's approach to punitive matters is his teaching that punishment is an act of law. Thus understood, punish ment is a legitimate method of securing that for which all law (human
or divine) exists, namely, the common good. As we turn to a more spe cific discussion of human affairs later within the so-called "Treatise on Law" in the Summa Theologiae, we find that Aquinas explains his more
political understanding of the common good with direct reference to the institution of punishment. As he explains, most people have a strong enough natural inclination to the life of virtue that parental discipline, which consists primarily in the form of admonitions, suffices for their moral and social development. As he continues,
Since some are found to be so insolent and prone to vice, who are not easily moved by words, it was necessary that such people be restrained from evil by force and fear, in order that, at least, they might desist from evildoing, and leave others in peace, and that they themselves, by being habituated in this way, might eventually be brought to do willingly what before they did from fear, and thus become virtuous.
Now this kind of training, which compels through fear of punishment,
is the discipline of law. For this reason it was necessary for the peace and virtue of men that laws be established.14
We may gather from this discussion that two primary elements of the common good for which human law is responsible are peace (pax) and virtue (virtus). By peace, Aquinas primarily seems to mean bodily safety and freedom from the unprovoked aggression of others. By virtue, he later makes clear that human laws have jurisdiction, not over "all
the acts of every virtue," but only those actions of a particularly public nature.15 There is no clear indication as to whether peace or virtue is primary (if either of them). What is clear, however, is that each is equally dependent upon some form of legal coercion, which Aquinas calls
"punishment" (poena). Unlike Hobbes, who would later argue that fear and force are necessary to restrain human beings by their very nature, Aquinas here argues that such measures are only for the few depraved
souls whose recalcitrance and wicked habits are too strong for the non legal discipline of paternal training.
Upon careful study of this "Treatise on Law," however, we find that these goals of peace and virtue do not exhaust the common good of a political society. In a later discussion, Aquinas further adds that legal authorities are entrusted with the preservation of "justice."16 In that passage, Aquinas seems to be referring to a more specific way in which
justice is said to be a goal of human legislation, which is not reducible to either of the political goods mentioned thus far. Beyond the security of peace, and even beyond the development of virtuous citizens, the law should seek to preserve justice as a certain kind of fairness (aequitas).
Aquinas's favorite example of this particular form of justice is a simple exchange of goods. One person provides a good or service to another that has a certain monetary value and the recipient owes back that amount of money or some pre-established good or service of equal value.
An essential characteristic of this third goal of human law is equality, or the fact that, once justice has been established, all persons involved are somehow back upon equal terms with one another. Again, to secure justice in this way is different from instilling the virtue of justice. It is one thing to ensure that everyone is just as a firm result of habitua tion, and another to ensure simply that that justice is done. As Aquinas explains, this reestablishment of the equality of justice is punishment's primary function. In other words, punishment considered "under the aspect of punishment"17 is an essentially retributive measure taken to restore justice by inflicting something contrary to the will of a criminal.
For Aquinas, this is punishment's nature, and is the reason why, strictly speaking, punishment is never inflicted without some prior voluntary transgression on the part of the one punished.18 As an act of law, of course, punishment is not restricted to establishing justice. According to
Aquinas, the other goals associated with securing peace and inculcating virtue (perhaps conceivable under the term "rehabilitation") are of con
siderable importance. Nor is the decision to secure these other goods, as Kant would suggest, sub-moral. It is both necessary and praiseworthy
for judges to inflict punishment to obtain these non-retributive aspects of the common good and thus to use the institution of punishment for those things emphasized by utilitarians. The term that Aquinas uses to describe such non-retributive penal measures is "medicinal punish ment," which is, as the name suggests, inflicted for that sake of healing
the criminal's soul or repairing a kind of rupture in the social fabric that either caused or resulted from the crime committed.19
But what of punishment considered in its primary retributive sense? Obviously, it is not sufficient simply for Aquinas to assert that punishment's nature is retributive, or that the restoration of justice is punishment's primary objective. This, of course, was the problem with Kant's articulation of punishment. What is it, precisely, about human
affairs that requires criminals to suffer for their crimes? What is the basis for this moral imperative?
If we turn to Aquinas's treatment of the issue, we find that he would also criticize the Kantian position for its inability to provide a meaningful reference point that could determine the human obligation to punish. Un like Kant, who limits himself to pure reason, Aquinas appeals to natural inclination and the natural law that natural inclination expresses. Even to those familiar with Thomistic principles, this argument is admittedly quite strange and requires some interpretation if we are to see its merit and superiority to the Kantian teaching. In defending his position that
there even is such a thing as a debt of punishment caused by sinful and/or criminal behavior, Aquinas says the following:
It has passed from natural things to human affairs that if one thing rises up against another, it suffers some detriment from [that against which
it rose]. For we see in natural things that when one contrary supervenes, the other acts more vehemently. . . . Thus we find that the natural in clination of man is to repress those who rise up against him."20
Aquinas leaves it to us to speculate as to what the natural desire to repress those who rise up against the community exactly is. The fact that he says this desire has "passed from natural things to human affairs" seems to indicate that such a desire is not entirely rational, or that it has roots in the sub-rational life of the human soul. The ex ample Aquinas uses to illustrate a contrary force "supervening more vehemently" is indeed a puzzling one, namely, the fact that "hot water freezes more rapidly."21 The point seems to be that nature displays a kind of immediate resistance to repression. Another example might be
the tendency a horse has to raise its head in resistance to having its reins pulled down, a natural tendency that does not occur without this contrary force. Whatever the most appropriate example for this may be, one can see that Aquinas's teaching on punishment differs from its Kantian counterpart in an important respect, namely, in that his view
of retribution, derived from natural inclination, is clearly based on what Kant would call a hypothetical imperative. In this way, Aquinas avoids one enormous problem facing Kant: i.e., the problem of explaining why punishment can be described as a good at all. We know it is good, ac cording to Aquinas, because, like all natural goods, we are naturally
inclined to desire it.22
If this teaching solves one problem, however, it seems to create another. If natural inclination is the measure of punishment's moral
legitimacy, does this mean that the proper amount of punishment is simply determined by the amount of rage felt against a criminal or the
intensity with which the victim longs to see his assailant suffer? As the Thomist accuses the Kantian of pulling a moral "ought" out of thin air, the Kantian no doubt accuses the Thomist of deriving an "ought" from an "is." Does the Thomistic position really entail the assertion that we ought to punish simply because we want to, and to the degree to which we want, no matter how ghastly that degree may be? Is retribution (as Aquinas explains it) merely a dressed up version of vengeance as so many utilitarians argue?
Aquinas would understandably deny this accusation. The fact that punishment is legitimized by our natural inclination to punish does not mean that we are permitted to punish as severely as our passions compel us, or that natural inclination should determine punishment independently of reason. Nowhere is this clearer than in Aquinas's dis cussion of anger. Noticing that anger always involves a punitive desire for revenge, Aquinas explains that
[i]f one desires that revenge is taken according to the order of reason, the desire of anger is laudable.. . . However, if one desires the taking of vengeance in any way contrary to the order of reason, for instance if he desire the punishment of one who has not deserved it, or beyond his deserts . . . then the desire of anger will be corrupt.23
Thus understood, the just desert of a criminal is not simply deter mined by the passions that those around him happen to harbor (as Aquinas's earlier reference to natural inclination may have suggested).
In fact, those passions themselves are judged according to a higher stan dard, which Aquinas here calls the "order of reason." This is not to say, however, that passions like vengeance are irrelevant to the execution
of punitive justice, or even that punitive justice could be effectively and
reliably carried out by humans in the absence of passion. Aquinas only suggests that the natural inclination to punish is determined according to something higher than by a mere consultation of the emotions. Reason, perhaps acting alongside passion, recognizes that punitive justice is a good and is then inclined to pursue it. Properly channeled, it does not
long for the suffering of the criminal for its own sake, but for the equal ity of justice that will be restored by that suffering. An analogy from concupiscence is perhaps helpful. Human beings are affected by sexual desires and are moved by those sexual desires to pursue a real human good, namely, procreation. That one is moved by a sexual passion does not exclude the possibility of recognizing the good of children with the practical intellect. Passion assists reason and moves the agent toward
this good in accordance with the order of reason. Of course, passion often leads reason astray, influencing one to act out of accord with that order while making the agent unmindful of the good to which the sexual passions are ultimately directed. In the same way, anger can cause hu man beings to desire punishment for others while losing sight of the
natural good to which our anger should be directed and from which our anger derives meaning. In Aquinas's view, just as sexual desire pro vides additional support to the rational judgment that procreation is a real good that ought to be pursued, anger provides additional support to the rational judgment that an injustice has been done and that the perpetrator ofthat injustice ought to be punished. Both desires become
sinful and disordered when they boil over causing us to lose sight of the higher standard of these naturally predetermined ends, ends which are
recognized by the practical intellect. The fact that Aquinas appeals to such a standard in his discussion of anger shows that he understands the difference between retributive punishment and mere vengeance.
This, however, raises a further question. If anger is not the stan dard to which reason looks to determine the existence and degree of a criminal's culpability, what exactly is the standard? According to Aqui nas, the answer is equality. Like all forms of justice, punitive justice depends upon the restoration of some ruptured equality, a restoration that can only occur if the criminal undergoes something "contrary to his will." This may sound like the lex talionis all over again, but it is actually much different. Aquinas never suggests that a criminal must endure the same kind of evil that he inflicted. Punitive justice, in other words, need not be poetic justice as the lex talionis requires. What is
necessary is that the criminal's will be humbled by the degree to which it was indulged in the commission of his crime. This is what reason is naturally inclined to pursue and what it recognizes as good, and is why Aquinas constantly reminds us that punishment must be "contrary to
the will" of the one who receives it.24
To say, though, that punishment's primary function is to restore the equality of justice naturally causes one to think of it as simply another form of legal compensation similar to the payment of a monetary debt.
Although there are similarities between punishment and such acts of recompense, however, Aquinas insists that the two must be distin guished if the nature of punishment is to be understood. To grasp fully
the Thomistic understanding of punishment, we must explore this distinction more carefully.
In the Summa Theologiae, Aquinas asserts that punishment is an act of commutative justice. One can only understand the full significance of this claim, however, if one first comes to terms with the act of commuta tive justice Aquinas calls "restitution" (restitutio). According to Aquinas, restitution restores an equality to the relationship between two private
individuals by returning some good to the person from whom that good (or some other good of equal value) was taken. Although restitution can be commanded by a judge or someone holding political authority, it is, properly speaking, the act of a private individual, and it presupposes
that what rightfully belongs to one person is in the possession of another bound by justice to restore it.
To pay restitution seems to be nothing other than to reinstate some one in the possession or dominion of what belongs to him, so that in restitution the equality of justice is attended by the payment of one thing for another, which pertains to commutative justice. Hence resti tution is an act of commutative justice, as when one person has what belongs to another, either with his consent, as in a loan or deposit, or against his will, as in robbery or theft.25
Restitution, according to Aquinas, can apply to either of the two kinds of commutations that Aquinas labels broadly as "voluntary" and
"involuntary." Voluntary commutations simply involve an agreement between two parties who voluntarily make some sort of exchange in which restitution is required. Any sale or purchase involving money
or barter may be considered a voluntary commutation, as well as the exchanges that take place when one person agrees to hold the goods of another as a deposit, or for some use, as when one borrows a tool or piece of equipment for agriculture.26 The second type of commutations falling under the act of justice that Aquinas calls "restitution" are
"involuntary commutations." Like voluntary commutations, this other broad subdivision of commutative justice involves a "taking," and an obligation to restore, just as much as its "voluntary" counterpart. In the case of involuntary commutations, however, that original act of taking is done without right and, as its name reveals, without the consent of the one from whom something is taken.27
There are two kinds of restitution, therefore, because there are two kinds of taking, which are distinguished according to whether or not the
person from whom something is taken is a willing party in the transac tion and whether or not the taker is justified in his taking. Now it seems that, in either case, justice is easily determined by calculating the value of the thing taken and recognizing that the same thing, or something else of equal value (depending upon the stipulations of the agreement?if there was an agreement), be returned. As Aquinas continues to elaborate upon commutative justice, however, we discover that the equality that
commutative justice requires, and which acts of restitution restore, is not always this simple, but sometimes requires additional payment.
The clearest example of this phenomenon can be seen in lending. If one person transfers possession of his house to another by way of renting it
to him, it is insufficient for the renter simply to restore the house after he is through using it. For justice to be preserved in such a commutation,
the renter must not only restore the house, but also pay an additional fee for the use of the house. The reason for this is that the owner must be compensated for the time he was without possession (though he main
tained ownership) of his house, during which time he could have used it for himself or rented it to someone else. If only the house is returned, the owner will have unfairly lost something, and the one to whom the house was rented will have gained an unfair advantage contrary to the
equality that justice requires must exist between them.
As Aquinas explains, the same principle holds for involuntary com mutations. For instance, if one man destroys the property of another through some act of negligence, he is bound by commutative justice to pay restitution to the one whose property was lost. This is a somewhat different case than other kinds of commutations primarily because the one bound to make restitution has not "taken" in the same way as one who borrows or steals. More specifically, he has not gained anything
from the man whose property he negligently destroyed, and yet he is still bound to pay restitution because he has unjustly caused someone else to suffer loss. This principle also applies to unjust acts against another's person, such as assault or murder. By striking someone, one does not gain in the same ostensible way that one gains by borrowing money, renting a house, or making a deposit. Still, because suffering a
bodily harm can be rightly construed as suffering a kind of loss, the one who inflicts that harm is seen as "taking" something from his victim,
"though he gain nothing thereby," and is therefore bound to restore (through some commensurate act of restitution) what was lost. This is why, for injurious acts of taking, it is insufficient merely to restore the object taken. If a man plunders my house, the equality of justice is not reestablished if he simply returns what he originally stole. He must
also pay compensation on account of his unjust act, or as Aquinas says, on account of "the taking."28 As an act of commutative justice, this ad ditional payment corresponds to the additional payment of rent for the use of a house or for the compensation owed to the victim of assault. It
is a compensation made by one private individual to another.
Now, according to Aquinas, even this additional payment due to the victim of robbery, or the compensation due to the victim of assault, is quite distinct from the debt of punishment. For the criminal is "bound to pay compensation for the loss incurred . . . and in addition he must be punished for the injustice committed."29 This allows us to see the principal difference between punishment and restitution. On one hand, restitution is made when one private individual owes something to an other private individual. The debt owed inheres in the person obliged to pay, and by failing to pay his debt (to render someone his due) he com mits an act of injustice. Punishment, on the other hand, is not something
that takes place between individuals, but is rather owed to an individual criminal by the whole community of which he is a part and against which he has committed his crime. Strictly speaking, punishment is a political act, and an act of law that must be carried out by the community or by some vicar thereof.30 One cannot be rightly considered unjust, therefore, for "failing to be punished." The responsibility of punishing rests with the community, and if it fails to punish, then it will commit the injus tice, not the criminal. Aquinas would be uncomfortable, therefore, with the expression that, through punishment, a criminal "pays his debt to society." To speak of punishment in this way is to confuse it with restitu tion.31 The debt of punishment is owed to the criminal and inheres only in him who is responsible for punishing. Properly speaking, a criminal does not pay anything or anyone as he is punished, but rather is paid what he deserves by the community.
The good being sought in judicial punishment is, again, a certain kind of equality between the offender and the rest of society that cannot be realized otherwise than through punishment. Some have explained this teaching by pointing out that crime has the effect of giving the criminals a certain "unfair advantage" over society that is not simply reducible to the ill-effects of injustice upon a victim.32 This term, "unfair advan tage," must be understood very carefully. If used to describe Aquinas's teaching, it should have nothing to do with any power or control that a criminal gains over his fellow citizens. Likewise, it is not a matter of any restitution he may owe as a result of his crime. It is rather a kind of social disparity in the favor of the criminal that exists simply because he overstepped the boundaries within which other law-abiding citizens
remained. Inseparable from this teaching is Aquinas's recognition that living in an organized and civilized society requires a certain amount
of restraint upon the wills of all those living under the protection and authority of the law, and, thus, those who voluntarily break the law do so by virtue of an "over-indulgence" of their wills.33 Even once the crimi nal pays restitution for the losses suffered by his victim, and even if he
feels genuine remorse for his crime and is rehabilitated, the disparity in his favor that he gained over the rest of society cannot be removed until he is made to suffer something against his will to counter-act his willful injustice. Again, the advantage gained through crime is not so much an advantage gained over a particular victim (as seen especially
in cases of certain victimless crimes) but rather against the rest of the law-abiding citizenry who have shown the necessary restraint.
Although this may seem like a dressed up legitimization of organized vengeance, Aquinas would stress that his teaching has nothing to do with blind retaliation. The loss inflicted upon criminals can and should
be motivated by nothing more than a concern for fairness. Conceived in this way, it is perfectly consistent with love for the criminal (though justice may still be upheld if such love is absent), who is not being harmed for the sake of making him a worse person or reducing his chances for ultimate happiness, but rather as a necessary condition for fairness to be upheld. No one with a genuine concern for justice can accept a state of affairs whereby crime is merely not advantageous, as would be the case if criminals were merely required to pay restitution. Crime must be disadvantageous for the criminal, something that can only be real ized fairly if the over-indulgence of a criminal's will be repressed in the same degree of severity by which it was indulged. If a man robs my house and terrorizes my family, that over-indulgence cannot be suf ficiently addressed if he is simply forced to return what he stole along with an additional payment of compensation. With such a payment, I may receive what is owed to me as a victim, but my political community
continues to suffer from a social disturbance until the criminal's will is humbled through the infliction of some kind of loss. Again, the desire
for this loss need not be motivated by a hatred for the criminal, but is properly the result of a recognition that one of society's principal goods cannot be maintained without the infliction of such loss.
IV
The above discussion of Aquinas's understanding of criminal justice must now be applied to showing how that understanding solves the problems Kantian retributivism is unable to solve. Let us begin by discussing the
problems with Kant's over-reliance upon the lex talionis. As we noticed, to insist upon this sort of exactness only ends up forcing punishment to exhibit a possibly cruel and unobtainable version of poetic justice.
Aquinas's theory of punishment avoids this problem in two ways. First,
Aquinas is not committed to realizing the equality of justice at all costs.
For Kant, inflicting more or less than what the lex talionis requires is gravely immoral and unjust, since it sacrifices a moral imperative for the sake of a sub-moral, utilitarian, or hypothetically commanded goal (such as deterrence or rehabilitation). For Aquinas, however, the goals of rehabilitation, deterrence, and the protection of society are morally significant goals of punishment just as retribution is, even if retribu tion is the primary goal that gives punishment its defining character.
Whether or not this is what Kant intended, conceiving punishment as a categorical imperative would require criminals to be punished in exact accord with their crimes even if doing so would be gravely harmful to society. This is not necessarily the case if one understands retribution, as Aquinas does, to be merely the primary goal of punishment. To se cure non-retributive goods or to prevent non-retributive disasters, legal authorities may presumably exceed or fall short of the exact degree of punishment due. This, of course, does not give legal authorities license to punish with exclusive, or even primary, focus upon rehabilitation or deterrence. Retribution is still the primary good. It does, however, give them the freedom to mete out punishment according to a wider and richer conception of the common good that includes the full scope of benefits that punishment can successfully provide. As Aquinas explains
in a revealing passage, "punishments that are inflicted in the present life either by God or by man do not always correspond to the gravity of fault, for sometimes a lesser fault is punished with a graver punishment temporarily in order that a great danger be avoided; for punishments in the present life are used a medicines."34 Again, this does not mean that grave political injustices can be tolerated so long as the goods of deterrence or rehabilitation require them. The retributive nature of punishment forbids Aquinas from going that far. Yet, even though the nature of punishment itself is retributive as opposed to medicinal, hu man legislators are sometimes more obliged to focus upon "medicine"
as their goal. Prudent political authorities must punish with the whole public good in view, assigning appropriate penalties to criminals in
light of the various constraints caused by their (at times) competing responsibilities and the limitations of their human condition.
Aquinas is also immune to the problems with the lex talionis because of his emphasis upon the will of the criminal being punished. The es sential requirement of Thomistic retribution is that criminals experience a loss commensurate with the degree to which they indulged their wills beyond the boundaries of legality. As we noticed, Kant's focus was en tirely upon the criminal's external act (or the "crime"), taking little or nothing of the criminal's mens rea into consideration. This is not the case for Aquinas, whose central requirement for equal retribution is only
that criminals suffer the same degree as that which they contravened by the inordinate act of their wills. What criminals deserve, in other words, is determined by estimating the seriousness of the criminal act and is realized by imposing a correspondingly serious penalty within the parameters of a reasonable determination of what will place the crimi nal back upon equal terms with the rest of the law abiding citizenry.35 Under Thomistic principles, therefore, punishment need not conform to the impossible demand that criminals receive a punishment exactly equal in severity and kind with the harm inflicted by their crimes.
Aquinas's theory of punishment, thus, also provides a basis for politi cal mercy that Kantian penology lacks. For Kant, there is no room for mercy because justice demands an exactitude in punishing from which
one must never deviate. On the other hand, Aquinas's understanding of punishment does provide a way to conceive of mercy and to defend it as praiseworthy. If the goal of punishment is to redress the inequality caused by the over-indulgence of the criminal will, the focus must be on that inordinate act of willing rather than upon the external action on which Kant focuses. Some crimes, however, are committed less vol untarily than others, and thus involve less of an overindulgence of the will. Under this principle, therefore, the law can impose more lenient
penalties for crimes committed less voluntarily (and therefore less cul pably). Even though such crimes may have caused great harm, their punishments need not be as severe or (what amounts to the same thing) as "contrary to the will" of the ones who commit them. This does not mean that the criminal is freed from making reparation in accordance with the damage done through his criminal behavior (even though the
debt of punishment is reduced, commutative justice still requires him to pay restitution for damages). It does mean, however, that the law may consider morally relevant psychological information that Kant forbids
it to consider. Whether a criminal's culpability is reduced through igno rance, passion, or something else, the law should mercifully recognize the reduced volition of the criminal in question and respond with lesser punishments. But this can only be achieved if one adheres to Thomistic
(rather than Kantian) principles, understanding punishment as nec essary to redress the criminal's inordinate will rather than simply to match his crime.
We are finally in a position to see that Aquinas provides the ultimate justification and rationale for punishment that Kant fails to provide.
WTiile effectively arguing that utilitarianism results in ignoring jus tice, Kant falls short of explaining exactly how retributivism answers the question of why society should punish at all. Calling punishment a categorical imperative suggests that this rationale is to be found somewhere in pure reason, and yet Kant never explains just how pure
reason reaches this conclusion. Aquinas, on the other hand, makes clear that restoring the equality of justice is a matter of inflicting something contrary to the criminal's will in order to redress the criminal's act that consisted precisely in inordinate willing. The state of affairs whereby everyone is upon equal terms with one another is a real good, something that human beings naturally desire, and it is from this natural desire that punishment may be recognized as a good and natural aspect of civil society. Because Kant forbids desire and natural inclination from providing a basis for punishment (and for morality in general), he is simply forced to assert that punishment somehow provides its own ba sis, an argument that lies open to the obvious criticism that his defense of retribution is ultimately question begging. Rather than attempting to preserve justice by forbidding punishment from looking forward to future goods, Aquinas recognizes that the equality of justice is a future good, as central to the common good as safety, health, or virtue. This
is precisely what utilitarianism has failed to recognize and what Kant has failed to articulate.
Walsh University
NOTES
1. Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cam bridge: Cambridge University Press, 1996), pp. 6: 230.
2. Ibid., pp. 6: 231.
3. Ibid., pp. 6: 331-332.
4. Ibid., pp. 6: 231.
5. Ibid.
6. For an excellent analysis of this distinction, see Thomas E. Hill, "Kant on Wrongdoing, Desert, and Punishment," Law and Philosophy, vol. 18 (1999),
pp. 423-428.
7. Immanuel Kant, Groundwork of the Metaphysics of Morals, pp. 4:
429.
8. Rechtslehre, pp. 6: 333.
9. Ibid., pp. 6: 332.
10. There are some who have suggested that Kant's penology is actually not as retributive as traditionally thought. For these arguments, see Don Sheid,
"Kant's Retributivism," Ethics, vol. 93 (1983); and Sharon Byrd, "Kant's Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution," Law and
Philosophy, vol. 8 (1989). For a defense of the traditional interpretation in light of Sheid's and Byrd's observations, see Mark Tunick, "Is Kant a Retributivist?"
History of Political Thought, vol. 17 (1996).
11. Kant does seem to cave in on this point when adhering to the lex talionis would result in the greatest harm, namely, leaving the state with no subjects and causing it to slip back into the state of nature. Even though this is only tolerated in the most extreme situation, Kant does curiously seem to contradict the immediate implication of his assertion that punishment is a categorical imperative, i.e., that equal punishment must be rendered at all costs. Such is
Kant's inconsistency on this question.
12. Kant does make a remark that seems to contradict this central thesis of his punitive theory when he states that two criminals committing treason may be deserving of different punishments if some of them acted from a misplaced patriotism while others acted merely for personal gain. In deciding between
the death penalty and sentencing the criminals to convict labor, a judge should sentence them all to death even though the patriot deserves more leniency than the self-interested scoundrel. Since the death penalty is the more honorable of the two punishments, a judge should reward the patriots with what they would consider the more desirable penalty and treat the scoundrels more harshly by giving them what they would consider the less desirable penalty. In both cases, says Kant, the death penalty would be most fitting. Even though Kant recommends the same punishment for criminals with varying degrees of guilt, therefore, he does seem to suggest that those varying degrees can be taken into consideration by legal authorities. In order to preserve the consistency between Kant's patriot example and his broader claims about the limits of judicial authority, Thomas Hill offers a plausible interpretation. As he suggests, Kant only implies that in the case of the patriot and the scoundrel the same punish ment (death) for the same crime (treason) intuitively coheres with what each man seems to deserve on account of his psychological motivation. According to Hill, however, this does not imply that Kant believes judges should actually
take such psychological motivations into account in deciding upon appropriate punishments ("Kant on Wrongdoing, Desert, and Punishment," pp. 436-437).
This interpretation is bolstered by Kant's strict adherence to his principles in the very next paragraph of the Rechtslehre, where he again appears to disre gard as irrelevant anything but the external action of the crime by asserting that the penalty for murder must always be death, which is what "the idea of judicial authority wills in accordance with universal laws that are grounded a priori." No exceptions to this are admitted on the basis of mitigating moral or psychological circumstances (6: 334).
13. For example, Kant argues that simply fining someone from the upper class for verbally insulting someone from the lower class would be inappropri ate. Instead one should look for a punishment that imitates the humiliation suffered by the victim as much as possible. Kant's recommendation is forcing the upper classman to kiss the hand of the one he insulted, since being forced to do so would degrade him just as his insult degraded the one who suffered that insult (6: 332).
14. Summa Theologiae, edita cura et studio Instituti Studiorum Medieva lium Ottaviensis (1953); Prima Secundae (I-II), q. 95, a. 1. All translations of
Thomas Aquinas are my own.
15. ST, I-II, 96, 3.
16. I-II, 96, 3.
17. II-II, 108, 4 ("secundum rationem poenae").
18. Cf. De Malo, q. 1, a. 4.
19. According to Aquinas, medicinal punishment need not be understood as medicine for the criminal himself, but may exercise its healing effect on the wider community through deterrence. Cf. I-II, 87, 8, ad 2.
20. I-II, 87, 1.
21. Ibid.
22. Cf. I-II, 94, 2.
23. II-II, 158, 2.
24. See, for instance, ST, la. 48, 5; I-II, 87, 2.
25. II-II. 62, 1.
26. II-II. 61, 3.
27. Ibid.
28. II-II, 62, 6.
29. Italics added.
30. I-II, 21, 3 and I-II, 92, 2, ad 3.
31. For another helpful articulation of the difference between punishment and restitution, see John Finnis, Aquinas: Moral, Political, and Legal Theory
(Oxford: Oxford University Press, 1998), pp. 211-212.
32. See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 262-263. It is noteworthy, however, that Finnis does not use
this expression in a more contemporary treatment of punishment found in
"Retribution: Punishment's Formative Aim," The American Journal of Juris prudence, vol. 44 (1999), pp. 91-103.
33. I-II, 87, 6.
34. De Malo, 2, 10, ad 4.
35. It is important to note that Aquinas's concern is with redressing the inordinate act of the criminal's will. Just as Aquinas goes beyond Kant by considering more than the external act, though, he does not go so far as to recommend that criminal justice should have anything to do with a criminals' overall character. That would be considerably more difficult to determine than
the volition of a single criminal act, not to mention, in Aquinas's view, quite
beside the point in reestablishing the equality of justice.
