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Stuart Hopkins

Kant and the Morality of Anger

Immanuel Kant, 1724-1804

Rubric: This essay explores and explains a modern tendency to 'stretch' or 'distort' the Kantian concept of retributive punishment to such an extent that it embraces concomitant notions of requital,, 'retaliation', 'reprisal', 'reciprocation', 'revenge', and even 'anger'.

Introduction

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 [1]. 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 [2].

— o O o —

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 [3]. 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 [4].

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 [5].

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 [6]. 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 [7].

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 action must not depend upon some other person's arbitrary decision, because the criminal as a person and, following conviction, still remains an object of respect, and cannot be used by anyone merely as a means to another end [8].

Departures from legally determined punishments are impermissible, and Kant's reason for this is that the penal law reflects, and is integrated into, the moral law, as a 'categorical imperative.' Kant informs us that the primary purpose of punishment is the 'suppression' of crime and, accordingly, the only rule for achieving that end, that can be discovered a priori, is the law of retribution.' This implies that punishment actually has a deterrent or redemptive element, but that is only an obiter or incidental effect, and therefore plays only a subordinate role in Kant's theory [9].

Kant's argument is that only the offender may be punished, and then only because he has committed a crime, and for no other reason. This stands in opposition to those common practices of preventative, or deterrent, or exemplary punishment; sanctions against the criminal which are believed to be conducive to the of benefit of the civil community. An offender must be found to be punishable before any assessment of benefit to the citizen or community is taken into consideration, because the punishment of the innocent is inherently a gross injustice. According to Kant the universal concept of retribution has priority over any and all consequential effects.

This rule is followed, and the crime suppressed, only when the convicted offender draws the evil deed back to himself, as a punishment, and when he suffers that which according to the penal law he has inflicted on others., Penalties are defined in the penal law, to which the offender is subject, and therefore they are invariant. It would, therefore, be morally wrong if those penalties were not to be inflicted on the offender in response to his crime.

Kant's general proposition is that of the 'equality of crime and punishment', which he illustrates by means of analogy. He likens justice to 'none other than the principle of equality in the movement of the pointer of the scales of justice.' However he does not argue explicitly for his 'principle of equality' and, if we examine his observations with respect to the punishments for robbery or rebellion against the state, then these seem to be implausible or unconvincing, because they seem to be overdrawn or unnecessarily harsh. And also because they do not make any allowance for extenuating or mitigating circumstances, or for irrational actions, initiated by government, which serve to negate the social contract.

But these inconsistencies or aberrations should not be allowed to discredit Kant's principle of equality, which can be defended in the following terms. The offender, through his or her offence, infringes the law to which he has willingly consented, and to which he or she willingly submits as a member of the civil community. The offence also negates the offender's obligations under the terms of the social contract, which he or she has a specific obligation to respect and honour. Those obligations derive from the guarantee of freedom, which is the principal advantage of the social contract. What justifies the offender's punishment is the fact that he has violated a contractually fixed law, or has contravened a just distribution of rights and duties. What justifies one punishment, rather than another, is the extent or scope of the offender's violation of the law, and the extent or scope of the harm inflicted on the victim.

The offender in committing a criminal act is in a sense inflicting a harm upon himself, because if his offensive act became universal it would fracture the social contract, which is instituted to protect the freedom of all citizens, and would therefore lead to the disintegration of the civil community. In effect, by committing a crime and violating the law, the offender forfeits his civil personality. Therefore, according to Kant's principle of equality, the punishment should consist in a loss to the offender equal to, or in keeping with, the loss or harm suffered by the victim. A relation, other than one based on equality, would be arbitrary. Kant's principle of equality between crime and punishment, and therefore the concept of retribution, can be justified in these terms [10].

The morality of anger

The following is a brief exposition of the principal arguments, used by Walter Berns, in his essay entitled 'The Morality of Anger'. This essay is primarily concerned with a justification of capital punishment, but clearly has critical implications in a wider context. The morality of anger has its source in the acknowledgement of a supposition that some crimes are perceived to be so heinous that the severest punishment is morally necessary — and nothing less than the severest will suffice. We punish criminals principally to 'pay them back', he claims, and the worst of them should be banished or executed as a moral imperative. Hence, Berns's dictum has universal application to crimes of that character, and capital crimes in particular.

The 'liberal intelligentsia,, it is claimed, are morally wrong in their belief that the severest punishment of all — execution or death — is wrong in itself because it is a 'cruel and unusual' punishment." Surely we do not expect to be able to rehabilitate the most heinous criminals? We desire to punish them in order to pay them back. We believe that murderers must pay for their crimes with their lives, and we also think that we may legitimately exact that payment, because we are also their victims, and because we live in the world they have violated. By punishing them we demonstrate that the laws form a bond between the citizens of the commonwealth and that we, as citizens, are not simply isolated individuals, each pursuing his own selfish interests — living, one with another, merely on the basis of some contract of permissive tolerance. We must come to the realisation that it is morally right to be angry with criminals and to express that anger publicly and officially, which may demand that the worst of them must suffer the ultimate penalty.

Berns goes on to say, that those who are concerned with civil liberties, and who are therefore usually opponents of capital punishment, do not understand that this is so. They say that to execute a criminal, who is guilty of a capital crime, is to deny his or her human dignity, and they also say that the death penalty serves no useful purpose. They are essentially selfish men, distrustful of passion, who do not understand the relationship between anger and justice. The expression and the manifestation of anger originates in a criminal act that is seen to be intrinsically wrong and therefore unjust. One of the causes of anger resides in the notion that men are responsible for their actions, as free agents, and should therefore be held directly responsible for what they actually do and the harm they cause.

The constitution of the state should be worthy of veneration by morally sensitive men. This is especially important in a democratic commonwealth that gives laws to itself, because if we assume that laws are merely the product of one's own will, then that inevitably leads to the conclusion that the only considerations that inform and guide the law are those of self-interest. This concept is only one remove from lawlessness, and a commonwealth of men motivated only by self-interest will soon perish. The criminal law must possess an intrinsic dignity, beyond that possessed by mere statutory enactment, or self-interested calculations. The most powerful means we have to stimulate that dignity is to authorise it to impose the ultimate penalty, whenever or wherever that is justified by the nature of the crime. The criminal law must be made to inspire or command 'profound respect, or reverential fear. I It must remind us of the moral order, which alone enables us to live as human beings.

Punishment arises out of the demand for justice, and justice is demanded by angry, morally indignant men. The purpose of justice is to satisfy anger and indignation and, thereby, to promote obedience to the law. It is the principle of self-interest that denies the moral basis of that anger and indignation. A people that is not angry with criminals will not be able to deter crime. To exclude anger from the human community is to concentrate all the passions in a 'self-interest of the meanest sort', and such a commonwealth would not be fit for human habitation.

Response and Conclusion

In his essay Berns captures one of the crucial problems associated with a legally and culturally imbedded concept that punishment of an offender is just, because it ensures that he — the offender — 'pays a debt to society.' The punishment is right, it is claimed, because 'he owes it, or because 'he deserves it. t There is therefore a strong implication that 'punishment brings satisfactions to others.' Punishment can, therefore, be seen to satisfy the desires of those who have suffered consequential harm as a result of crime. But there is also a strong implication that the punishment of offenders satisfies much more diffuse desires for punishment that exist within our civil communities. To ignore this aspect of retributive punishment, and the associated concept of desert, is to ignore what has given force to the theory of retribution [12].

We have seen that the Kantian theory respects the autonomy and the integrity of the person, and prohibits the arbitrary infliction of cruel and unusual punishment. Kant's theory encapsulates retribution as the sole determinant of punishment. The notion that punishment should express the collective anger of the community, or the anger of the individual, negates his formulation of the moral law — the categorical imperative. Punitive action must be informed by reason and the moral law, free of any subjective desires and preferences, and leaves no space for the expression of collective or individual anger.

If punishment were to be inflicted in an attempt to placate or redress the anger of the victim, or the collective anger of the community, then decisions concerning punishment would become grounded in notions of vengeance or retaliation. Such notions are in direct contradiction to Kant's theory because judgements, in the context of punishment, are to be made rationally and dispassionately and only by a properly elected jury in an authorised court — in compliance with the criminal and the moral law — which instructs us to treat a person as an end and not merely as a means. Cruel and unusual punishment, as the product of anger, is therefore prohibited, because that would fail to respect the dignity and personhood of the offender, and cannot be shown to enhance the personhood of the victim.

Retributive punishment, within the framework of Kant's theory, is not an act of individual or collective revenge or retaliation, but an act that ensures that like is to be exchanged for like in matters of offence and penalty. Respect for the autonomy, equality and independence of the person, as subject and citizen, are vital elements in Kant's criminal and moral law, and prohibit the expression of anger which might lead to exemplary and cruel punishment. Therefore, it is not morally permissible to set the severity of punishment at a level sufficient to satisfy the desires of the victim of the crime, or to satisfy the sentiments of anger and grievance, because this would offend against one of Kant's cardinal moral principles — the principle of respect for the person — the second formulation of the categorical imperative.

The morality of anger, prima facie, lacks clarity and is incompatible with the basic tenets implicit in Kant's theory of retributive punishment — or indeed in any other coherent and consistent theory of retribution. In addition to this incompatibility, the morality of anger carries with it an uncertainty in application, and it is difficult to see how it would be to the advantage of justice, or the integrity of the person as offender or victim, to accept anger as a moral concept. Anger is essentially a transient emotional state, and is not normally sustained for any length of time. Experience teaches us that the victim's resentment of a perceived harm gradually recedes and, indeed, cannot be maintained over an extended period. That is something we recognize in the human condition. Although introspection may exaggerate or intensify anger for a limited period, anger and grievances gradually fade away, reason reasserts itself, and we return to a normal state of mental equilibrium.

To punish offenders, to a greater of lesser extent, on the basis of a transient emotional reaction to an actual or perceived harm, would almost certainly lead to inconsistencies in punishment, and would therefore offend against the principle of equality of treatment. As we have seen it is a principle of Kant's law of retribution that like is to be exchanged for like in matters of offence and penalty. How are we to determine the intensity of individual or collective anger, and which of the two is to assume primary importance? Indeed, is either individual or collective anger amenable to measurement in any true meaning of that term? Berns does not volunteer an answer to these questions, but they would surely need to be answered if anger were to be taken into consideration as a determinant of the severity of punishment.

In his essay Berns clearly states, in one passage, that the anger, pain, and pleasure of the victim are all interrelated. His claim is that the pleasure of the victim arises out of an expectation or anticipation of the infliction of revenge on an offender who is thought to deserve it. Berns defends the morality of anger on the basis that the victim obtains, from the expectation or anticipation of the act of punishment, a kind of vicarious pleasure, or desire satisfaction, that he would not otherwise achieve. Hence, he advocates a morality in which the offender's pain provides the victim with a psychological pleasure, through the expectation or contemplation of punishment, of which pain is a consequent. As we have seen it is a cardinal principle, in Kant's philosophy, that punishment is not to be determined by the victim, or some other person's arbitrary decision, and that irrational or extraneous considerations are not to be permitted to influence the determination of punishment — or its severity.

Hence, Berns has departed, quite radically, from the concept of retribution because, as we now see, one of the themes underlying the morality of anger is desire satisfaction.' The victim wishes to see the offender punished for his crime ?perhaps to an extent that the offence does not necessarily justify — and it is this feature of Berns, argument, in particular, that serves to highlight the tendency to which the opening paragraph of this essay makes reference.


Notes

[1] The retributive theory. Stated in the simplest terms the retributive theory assumes that the criminal obtains a gain G, at little cost to himself, as the beneficial product of his offence. Now let us assume that R, the retribution deserved, is equal to r x H; where H is a measure of the seriousness of the harm, and r (in the range 0 to 1) indicates the offender's responsibility for H. Usually the gain from the offence approximates to the harm inflicted on the victim and hence, R will be close to G and therefore, prima facie, there should be a near equivalence between R and H.

Because retributive theories of punishment, on retributive grounds, often set an 'upper limit' to the penalty that may be imposed on the offender, these theories seem to allow failures of deterrence. The retributive theory militates against inappropriately severe punishment, for a particular crime, even if severity would deter further crime and therefore reduce suffering. (Brown & Richards, p.76) Kantian retributive punishment is not to act as a deterrent — even though there may be a deterrent effect — that is not its purpose, and Kant warns us against the 'serpent wandering of utilitarianism.' The deterrence theory, Kant claims, degrades a man to a mere tool of society, and deprives him of his unalienable dignity and is therefore unjust. (Hoffe, 1994, p.188)

The deterrence theory. Again, simply stated, the deterrence theory specifies that the penalty for a crime should be set at a level that is only just sufficient to deter commission of the offence. But this provides only limited guidance unless we know to what extent the commission of the offence is to be deterred. In practice, a careful balance needs to be struck between a penalty that would eliminate the crime altogether, which would therefore be unacceptable high, and a penalty which, being unacceptably low, would have little or no deterrent effect. Deterrence theories of the utilitarian kind endeavour to establish a state of equality between the criminals suffering, as a consequence of his punishment, with the degree of unhappiness the crime creates for the victim. The two states of unhappiness are given the same weight in calculating a socially acceptable optimum value.

For a clear and extended explanation of the two theories reference should be made to Robert Nozick's Anarchy, State and Utopia, Oxford 1984, pp. 59-63.

[2] Brown & Richards, 1986, p.73

[3] The Formulation of the Categorical Imperative:

Formula I Act only on the maxim through which you can at the same time will that it should become a universal law. Formula Ia Act as if the maxim of your action were to become through your will a universal law of nature.

Formula II So act as to use humanity, both in your own person and in the person of every other, always at the same time as anend, never simply as a means.

Formula III So act that your will can regard itself at the same time as making universal law through its maxim.

Formula Illa So act as if you were always through your maxims a law making member in a universal kingdom of ends. (Paton, 1947, p.129)

[4] Hoffe, 1994, p.187

[5] 'the power of the state to put the law into effect is irresistible, and no rightfully established commonwealth can exist without a force of this kind to suppress all internal resistance. For such resistance would be dictated by a maxim which, if it became general, would destroy the whole civil constitution and put an end to the only state in which men can possess rights ... It thus follows that all resistance to the supreme legislative power, all incitements of the subjects to the violent expression of discontent, all defiance which breaks out into rebellion, is the greatest and most punishable crime in the commonwealth, for it destroys its very foundations. This prohibition is absolute.' (Kant Theory and Practice, quoted in Sorell, 1987, pp. 142-143)

[6] 'Pressures to involve victims in sentencing should, however, be resisted. Most victims will lack knowledge of either options available to the court or the wider policy considerations which must be considered in sentencing, which is supposed to reflect the moral suffering by violation of societal rules and the personal responsibility and the moral guilt of the offender. Any large increase in victims, rights in sentencing might destroy this relationship; interference with the objective decision of the sentencers; and blur the difference between civil wrong and crime., (Morgan, Winkle and Williams, 1995, p.315) Quoted by David Downes, Professor of Social Administration, London School of Economics, The Howard Journal Vol 36 No. 1, February 1997, pp. 1-13

[7] Hoffe, 1994, p.189

[8] ibid., p.190

[9] ibid., p.190

[10] Kant argues in a famous passage: '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 ... He must first of all be found to be deserving of punishment before any consideration is given of the utility of his punishment for himself or his fellow citizens. I (The Metaphysical Elements of Justice, Indianapolis 1965, p.331)

[11] If a punishment is unusually severe, if there is a strong possibility that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some lesser punishment, then the continued infliction of that punishment violates the command of the clause [Eighth Amendment] that the State may not inflict inhuman and uncivilised punishments upon those convicted of crimes.' (Justice William Brennan's opinion in the, United States Supreme Court decision in Furman v Georgia, 1972, quoted in Sorell, p.110)

[12] Honderich, 1989, p.28


Bibliography

Berns, W The Morality of Anger New York 1979 Printed in The Open University, Supplementary Material: A Third Level Course 'Life and Death I, 1987, pp. 5-8

Bradley, F H Moral Studies Bristol 1990, pp. 24-30

Brown, Stuart Richards, Janet Radcliffe Introduction to Philosophy An Arts Foundation Course The Open University 1986, Units 13-15 pp. 68-76

Feinberg, Joel Harmless Wrong Doing, The Moral Limits of the Criminal Law Oxford 1988, pp. 159-165

Guyer, Paul (Ed.) The Cambridge Companion to Kant Cambridge 1992, Essay 10, 'Autonomy, obligation and virtue: An overview of Kant's moral philosophy', pp.309-341, also Essay 11, 'Politics, freedom and order: Kant's political philosophy,, pp.342-366

Hoffe, Otfried Immanuel Kant New York 1994

Honderich, T Punishment, The Supposed Justifications Oxford 1989, pp. 208-237

Paton, H J The Categorical Imperative London 1947

Rawls, John A Theory of Justice Oxford 1972 pp. 251-257

Singer, Peter A Companion to Ethics Oxford 1993 Essay 32, 'Crime and Punishment', C L Ten pp. 366-372

Sorell, Tom Moral Theory and Capital Punishment Oxford 1987

Walker, Nigel Why Punish? Oxford 1991