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PHILOSOPHY PATHWAYS electronic journal

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PHILOSOPHY PATHWAYS                   ISSN 2043-0728

philosophypathways.com/newsletter/

Issue number 84 16th May 2004

CONTENTS

I. 'What is "Modern" in Modern Philosophy?' by Hubertus Fremerey

II. 'Kant - The Death Penalty' by Archil Avaliani

III. A New Format for Ask a Philosopher

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EDITORS NOTE

In this issue, Hubertus Fremerey in a thoughtful and ambitious essay considers the task for philosophy following the Enlightenment, looking at the paradoxes of utopian thinking and the practical, personal and spiritual aspects of 'building a house together'.

Archil Avaliani from Georgia gives a careful exposition of Kant's views on capital punishment, showing why Kant's arguments - even if we do not agree with his conclusions - still demand to be reckoned with today.

It is nearly five years since the Ask a Philosophy service was launched on the internet. The greatly increased volume has necessitated a change of format which I explain below.

Geoffrey Klempner

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I. 'WHAT IS "MODERN" IN MODERN PHILOSOPHY?' BY HUBERTUS FREMEREY

     What is 'modern' in modern philosophy?

      or,

     From the world created by God
     to the world we humans are constructing now.

The Great Transformation

This moment we are living in the third great transformation of the situation of humankind. The first was the transition from pre-human ape to true human existence, when language, art, and religion - in short: CULTURE - began to develop sometimes before 25.000 BC.

The second great transformation was what Jaspers called "Achsenzeit": The time of around 500 BC, when the first great philosophical and theological systems developed in Israel, Greece, India, and China. The common trait of those systems was a first methodical approach to philosophy and science in general and a special concern with social and personal ethics and the human personality, self, and conscience. All great philosophical and religious systems of lasting relevance have been formed in this 6th century BC.

The third great transformation - ours - began "to take off" at about 1750 in Europe and is transforming all other cultures of Asia and Africa just now - partly against their will and resistance. It is a transition from a pre-modern, agrarian society of very slow changes favouring experience and by this honouring old age, to a modern, industrial, rapidly changing sort of culture, favouring daring inventiveness and entrepreneurship and by this valuing youth above old age.

How does philosophy answer to the "Great Transformation"?

The following essay tries to understand modern philosophy since the Enlightenment as an answer to this third great transformation and its challenges. Of course there are many histories of philosophy around, treating those "schools of thought" and important thinkers who are listed in the "contents": Kant and Kantianism, Rousseau and Rousseauism, Hegel and the left and right Hegelians, Marx and the Marxist schools, Comte and Positivism, Freud and the many schools deriving from his work, American Pragmatism, logical Positivism and the Vienna Circle, philosophy of science, philosophy of language, Existentialism, Structuralism, Post-structuralism etc.etc.. But I will not enter any of these, since they all are treated elsewhere well enough.

There has been some really deep thought on the situation of "Modern Man" in world-historic perspective, on "the meaning of progress" and on "the significance of the modern technological worldview". These deeper concerns may be concentrated into one terrible question: If we were granted three wishes by an omnipotent being, WHAT SHOULD WE CALL FOR? This is what I call "the terrible question of utopia". The whole history of modern philosophy since the time of Rousseau and Kant may be seen as a great effort to understand the MEANING of that question.

Why should it be a "terrible" question? If you offer a child three wishes, you should be prepared to reject at least two of them if not all three as absurd. "No more school, always sweeties, lots of money and fun every day!" How do we know that our wishes are of a better quality?

As one author writing on modern SF-dystopias has it "...many modern thinkers have been worried not that utopia cannot be realized, but that it can... Utopia itself (in a special sense of the term) has become the enemy". This is the famous theme of Huxley's Brave New World.

Thus to arrive at a "perfect" world could mean to arrive at a dead end, way behind what man was meant to be in the context of evolution or in any serious philosophical or theological assessment. Was he meant to be the perfect customer or the happy tourist or the happy raver on speed?

If not - what then else was he meant to be? By what argument? This question is haunting all cultural critics of modernity - Nietzsche, Heidegger, Aldous Huxley, Herbert Marcuse, and many others, even the churches: How do we define the MEANING of being a "good" human - good to be taken here not in moral but in a metaphysical sense? Thus "the terrible question of utopia" is very much a philosophical question, not only - and not even in the first line - a mere technical one.

The old "Great Order under God"

To understand the answer we have to understand the problem first, ie. we have to understand the philosophical significance of the Great Transformation. What does it mean?

Newton had shown shortly before 1700 that planetary motions can be explained by simple forces and formulas valid in the same way on the earth and without the need of any magic. While Newton himself still argued in the context of "natural theology" and treated the Law of Gravitation as a proof of Gods eternal wisdom, soon people were content to have the formulas and sent God off over the horizon as the "blind watchmaker" who was not needed anymore even as a "hypothesis". But this had consequences.

As long as Western man lived in the world that God made, he did not need to think how it should be. God the creator in his wisdom knew how to make the world "the best of all possible worlds". But this idea of Leibniz was the first sign of crisis: Doubt crept into the minds of philosophers. This was "The Second Fall": Did God really get it right? Did God exist at all? Could he be a great collective illusion, as Freud had it (cf. "The Future of an Illusion") or "the opium of the masses" in the sense of Feuerbach and Marx? For a short time from about 1650 to 1750 "theological naturalism" (or "natural theology") was a desperate measure to avoid the downfall of the old order of things: Nature as the second revelation of God in his creation was consistent by mathematical formulas describing the "laws of nature", as Newton had shown, and by this seemed immune to confessional struggle. This was Neo-Platonism again, rising from Renaissance-thinking in Quattrocento Italy, including Alchemy and Astrology, but fostering the rise of modern mathematics too. This vision of a great natural order was the gospel of Descartes and Spinoza, of Leibniz and Newton, and it was the gospel of Deism around 1700 and of Shaftesbury. It even was the gospel of Rousseau and of Scottish Enlightenment: Let nature have its way, don't interfere. Humans are stupid. God's wisdom inherent in the ways of nature will get things right in the end. Virtue, senses, and beauty combined praise the great order of God's creation.

The breakdown of the Great Order from around 1750

Then suddenly all came down: God, the Church, the old Order of Estates. There was the order of nature, yes, and there was the order of man, yes, but there was no God to hold them both together as His one creation. God was absent and nature didn't care. Mankind had to find and to go its way all alone. Man had to stand on his own two feet. This was the program of Kant, the program of Enlightenment. When theodicy failed, the vindication of God, anthropodicy had to step in its place.

Man had to take on his responsibility for his doings and for his planning and thinking.

Put differently: Pre-modern thinking, as e.g. the Platonic or the Christian or Islamic one, did assume a great order behind the many disturbing and absurd experiences of human life. Even if we dumb humans do not understand what is happening, God will know. And if there is "Doomsday", then it will be the Doomsday brought about by God "to judge the living and the dead". Then there will be eternal bliss in a "New Heaven and Earth that God made". Thus it's still "Gods wisdom". But if there is no God, then how do we know that man will not spoil his own future by being stupid and arrogant? No God from the background, no "deus ex machina", and no nature will save man from the consequences of his own stupidities and errors. This was new.

The pre-modern view could give comfort even in the most absurd tragedies and sufferings, while the modern view leaves man alone with all disasters that befall him - self imposed or not. Thus consolation is to be had - if at all - from the challenge itself, from the idea that to be grown up should be a cause of pride. This was what Kant tried to say in his famous essay on "What is Enlightenment?" (1784).

This is not ethics. The problem is NOT "How to do things right?" The problem is: "What does it MEAN to do things right, what does it mean to make a good use of our freedom, of the means and ends at our disposal?"

Modern man - that was in essence what Nietzsche found out - has to design and to define himself - and by this he has to define what is "right". Ethics only will tell you how to do something in the right way, e.g., how to build a house, but it does not tell you what house to build and where. Thus ethics will not tell us what future to go for. And since man is not God, since man does not really know what he is doing, I called the question what to do about the future a terrible one.

Two "steps" of the breakdown

The breakdown of the old order proceeded in two steps or turns. During the times of Rousseau and Kant there has been what I call "the subjectivist turn": Since there was no accepted authoritative truth represented by the churches and the old corporative state lead by kings and princes anymore, the new approach to valid truth was the democratic one. In the view of Rousseau and Kant, prepared by the views of Hobbes and Locke and even by the views of Luther and Calvin, the socio-political order is not the traditional well established order of estates instituted by God or nature, but any political order should be founded on the personal agreement of free people thinking and speaking for themselves, defending their cause before the bench of reason embodied in the assembled audience of other "reasonable people". By this principle the "post-Calivinist" Rousseau and the "post-Lutherans" Kant and Hegel defined much of modern democratic thinking, which was "subjectivist" in the sense indicated. In this sense Protestantism was "modern" while Catholicism was not, sticking with authority and order.

And there was a second step of breakdown around 1900, which I call "constructivist turn". While the subjectivist turn reflected the breakdown of the former "objective order" of society as an order represented by the church and the corporative state, the constructivist turn got to the extreme and even dismissed the concept of "the natural" altogether as outdated and meaningless.

What has happened? The concept of "naturalness" does include "made by nature" and "grown naturally". The modern concept set against this around 1900 was "things are made by humans" and "constructed from parts" like a machine. The symbol of constructivism could be a modern space-station made from "modules" as compared to a temple or cathedral "built up from fundaments" or even a tree grown from seeds and roots.

In a similar way music, art, and literature around 1900 began to be "constructed from parts" - from sounds, from colours and patterns, from subjective snippets and flashes of impressions, thoughts, and memories ("stream of consciousness") put together as a collage in a music or a picture or a novel. Even personality - well defined in the times of Goethe - changed to "patchwork personality" assembled from conflicting traits and biographical breaks scarcely hold together by some "will to be". There is nothing like "the true nature" of anything left anymore. The argument that something is "as God wanted it to be" was ridiculed as "ideological". Of course this was a shock for many people - and even is today.

As was to be expected this "constructivist turn" happened in philosophy too when Husserl tried to get rid of all or most of "natural" philosophical concepts and back to the "original experience" in his phenomenology. He too tried to build up the world anew. But likewise did Wittgenstein and the Vienna Circle and Heidegger from different approaches. They all posed the same question: "What are the primary givens and elementary 'facts' from which we then may start to build up 'our world' and our concepts of "person" and "society" anew?" What we call "the natural way of seeing things" may be nothing more than traditional preconceptions, some sort of collective delusions and illusions.

Thus we see a strange paradox: From Protestantism over Montaigne and Descartes and Pascal up to Rousseau and Kant and down to Husserl, Heidegger, and Wittgenstein we have in the Western history of thinking a gradual breakdown of the idea of a "great order of things - man included" as Aristotle and Thomas had depicted this world, and as even Spinoza and Hegel and Schelling tried to defend it with support from Goethe. In the end nothing was left over: No God, no "imperium and sacerdotium", no natural order of things, not even the things themselves. What had been "a world to live in" before had fallen to ruins and rubble and even rubbish. But at the same time this Great Downfall opened the plain for the creative inventiveness and ingenuity of man to build his new house and town for himself. This is the modern condition.

Building the new house of mankind

The ambivalence of the modern human situation was well known even to the Romanticists in the latter days of Hegel and Goethe: While some of them fled into the Roman Church and into dreams of a renewal of the corporative state and its cathedrals and castles, or tried to get hold on "mother nature" and pantheism, others began to see the creative artist and engineer as the new models of man incorporated in the figure of Prometheus, praised by Goethe in the 1770s.

Thus while the old world broke down, the new one already was in the making. This was the attitude of Marxism and of Liberalism and of the new "philosophical Darwinism" in the different readings that Spencer and Nietzsche and Dewey and others suggested. They all turned from asking what the world "is" in any timeless sense to asking what it should be like "in the best interest of mankind". But this of course is not a scientific question in the first line, but essentially a metaphysical one.

It was not only that "the house that God and nature built" and where mankind grew up for millennia now had to be left and replaced by "the house to be built by man himself". More and more another strange possibility began to be realized: that even "the HUMAN that God and nature built" would have to be replaced by "the human to be built by man himself". This possibility - indicated by today's advances in genetic and electronic engineering - once more urges a new metaphysics of man himself.

We have to see the difference here very clearly of the old "natural" metaphysics as compared to the new "artificial" one: The old "natural" metaphysics may be called "the blueprint of the house that God and nature built", which was the blueprint that Aristotle and Thomas, Spinoza and even Hegel wanted to understand. But since "the house that God and nature built" has been left - and possibly for all time - this blueprint has become without value anyway. By this argument "old" metaphysics is dead. But now we need a "new" metaphysics, a blueprint for the house to be built by ourselves. And we need a blueprint for the new human too, for "super-man".

The paradoxes of utopia

First there was a great hope: The hope of Enlightenment-era of improving the lot of mankind by science and technology. Much of this has been achieved. The "standard of living" in modern "Western Industrial States" was unimaginable in the times of Kant and Goethe around 1800.

But then there were causes of great fears and disappointments too: The two World Wars, the Cold War and the Bomb, the possible collapse of global and local ecosystems, caused by an imminent "population bomb" that made world population quadruple over the 20th century from some 1,5 at 1900 to over 6 billion people now.

From the beginning around 1750 there was the permanent struggling of "technocratic optimists" against "humanitarian skeptics" in the Western world, a struggle that is now continued on a global scale in different forms of "clash of culture". And there has been the permanent struggle of socialisms and liberalism that are both legitimate children of "Enlightenment", both trying "to improve the lot of mankind by science and technology", only by following different strategies. These hopes and fears of Enlightenment and Modernity and the arguments supporting socialisms, liberalisms and conservatisms have been central topics of hot philosophical debates since the times of Rousseau and Kant.

One of the great problems of this project of "improvements by science and technology" has been its paradoxical nature: Most modern problems are consequences of just those improvements brought about by "good intentions" and their successes. Thus the prospect of "ecological crash" is a consequence of world-population multiplying fivefold from the times of Kant, from about 1,2 billion then to over 6 billion now and probably arriving at 9-10 billion in 2050. But this "population bomb" was the consequence of good intentions and medical and nutritional progress. Many of our modern ailments are consequences of longevity, which in itself is once more a "progress" brought about by good intentions. In this way every solved problem seems to generate new ones like the chopped heads of a hydra. There are several such paradoxes of progress.

Of course the greatest paradox of all is a growing uneasiness with the concept of progress itself: While there are surely many "improvements", most people if asked directly hesitate to call our time a time of the good life generally. And surely not those "cultural critiques" like Nietzsche or Heidegger or Marcuse and Adorno. So we have to ask why this should be so.

The quest for a "New Cultural Order made by Man"

The most natural idea to realize the great vision of Enlightenment was proposed by Saint-Simon, Fourier, and Comte: Study humans and human societies and institutions in the same "positivist" way as you study the movements of the planets or the behaviour of plants and animals. Marx and Durkheim and Weber as sociologists tried to do just that, and so did historians and ethnologists and political philosophers and economists from about the middle of the 19th century up today: "Don't moralize - analyze!" was the program that Marx and Mises both could subscribe to. But positivism is a dead end. Why?

Animals behave in their "natural habitat" in a way prescribed by their instincts. Humans are not living in any "natural habitat" but in countless "artificial habitats" - material and immaterial ones - called "culture". Every religion or philosophy is such an "immaterial habitat" - a "world". In this sense the history of religions and philosophies is not different from the history of the arts: This is not the history of "progress" but of "different ways of seeing things". The great danger of positivism and scientism is always to end in technocratic and bureaucratic prescriptions. But the idea of the gourmet of "good eating" is quite different from that of the dietician. There is no single "scientific" or "technical" concept of "the good life" anymore than a single "scientific" or "technical" concept of "good art" or "good literature" or "good cooking".

The quest for a "scientific" philosophy is a misunderstanding following from a confusion: The buildings-engineer is not the architect. The buildings-engineer has to apply sciences of statics and stress-analysis and materials etc.. But the architect has to design a house - which is quite a different task. The same applies with philosophy. The analytical philosopher is in this sense a "buildings-engineer applying sciences of statics and stress-analysis and materials" to prevent our philosophical houses from crashing over its inhabitants. But this does not render the work of the architects worthless. We still want to live in wonderful buildings and not in mere social flats and hangars.

Thus when Nietzsche and Heidegger and Wittgenstein reminded us that a good human and a good society are great collective challenges to the creative human mind far above the imagination of any mere technocrat or bureaucrat, they suggested the right answer to the challenge of modernity, to the problem of what to build on the place that had been cleared after the old order of God and kings and nature fell down into rubble: Don't let those technocrats and bureaucrats rush in and take over!

To build a house you need the WILL to build it.

When building "a new house for mankind" we have to take into account first the practical aspect of social and political and economical engineering. We won't give up on good standards of decent living for everybody - including peace and human rights.

Then we have to take into account an interpersonal aspect of mutual love, acceptance and support in the sense of Buber and Levinas and others, since we are social animals and like to talk and cuddle and be together with other nice people and feel regarded then and now.

And surely we have to take into account a spiritual aspect, since humans are spiritual animals asking for meaning and greatness and beauty and not only for material comfort like any pig or cow. As was said before, the future of humankind is a metaphysical challenge, not only a technical one. We are not designing a cowshed.

But why not simply be a happy cow, grazing here and now?

The greatest trait in man is his DISSATISFACTION WITH THE GIVEN. The greatest achievement of religion is to always hold up this dissatisfaction. This is what Plato, St. Augustine and even Marx tried to get across: That there must be a world where things are as they should be and not as they are here and now. This even was what drove Don Quixote and Faust and every great revolutionary.

This means: You always need some tension, some field of force to drive history. There is no movement without some force causing it. There always must be a hunger or a will or a fear or a love. Therefore Plato was right in assuming a "Platonic love" that drives people to ask for truth, for the good, for what is beautiful, or for justice. If there is no such love then people won't care. This is what differentiates humans from animals.

Socialism is not different in principle: The driving force behind socialism is "dissatisfaction with the given" too. But so is the driving force behind liberalism. The true liberal simply hopes that by all those little improvements here and there the world will become a better place eventually. In this way socialism, liberalism, and religion all are driving people by something of great value waiting "transcendent" behind the horizon - a better future of "wealth and social justice", or God.

To build the great house for the future of mankind you need much industry, craftsmanship and daring inventiveness of course, you need the spirit of the pioneering architect. But the force that drives the whole endeavour must be "faith, hope, charity" - and dissatisfaction with the given. In this sense it's not a technical problem to be left to the engineers and managers. And this is what concerns modern philosophy.

NOTE

The above text is about one third of what it should be - or less. Many important topics had to be skipped. And the footnotes alone would be nearly as much text again. I am busy on it. If anybody is interested to have a copy of the extended version then please contact me.

(c) Hubertus Fremerey 2004

E-mail: hubertus@fremerey.net

-=-

II. 'KANT - THE DEATH PENALTY' BY ARCHIL AVALIANI

Introduction

Immanuel Kant, a great philosopher of ethics, formulated one of the first and the most scientific approaches to the death penalty - part of the Categorical Imperative. According to it "society and individuals must act in such a way that you can will that your actions become a universal law for all to follow" (Capital Punishment). Some scientists think, "Kant's approach is actually superficial and fundamentally self-contradictory (Wright, 2000, p.559).

The aim of this paper is to review Kant's approach to the death penalty and to discuss different aspects of his theory. It is not subject of the paper to discuss if Kant's view on the death penalty is morally right or not. Present theories on the death penalty are not analyzed either.

This paper is a close discussion of Kant's death penalty. I will try to understand and review the major aspects of this theory and in conclusion express some of my thoughts on Kant's concept of death penalty.

Kant's Approach on the Death Penalty

Kant's doctrine on crime and capital punishment is stated in his work "Metaphysics of Morals" (Part One), written in 1797. This doctrine is based on and derived from Kant's ethical views that were developed in his work "Criticism of Practical Mind" (1788). That's why it is not accidental that Kant's ideas on crime and death penalty are given in his work that has an ethical nature (Metaphysics of Morals).

Kant starts Metaphysics of Morals with the definition of "crime" and "the right to punish". In his opinion neither a society, nor a state can exist without laws. If there is no law, there is no society and no state. Therefore enforcement of the law, which is the society's foundation, means protection of the society and the state. Thus, any person violating the law loses the right to be a society member, opposes social order and consequently must be deemed guilty and punished. The right to administer punishment is the right of a ruler to make violators and criminals suffer. It is impossible to punish the ruler himself since the authority to administer punishment belongs to him. A ruler can retire due to his crimes but cannot be punished.

Kant's definition of the crime is derived from the above statements. A crime is a violation of social laws i.e. it is committed against the society and therefore subject to punishment. People who observe the society's laws are the society members, while people who commit crimes lose the right to be the society members and must be punished.

Violation of law can be a personal or a social crime. A personal crime is committed against a person. Such crimes are reviewed by a civil court. A crime committed against the society must be reviewed and punished under the criminal code. Kant differentiates private and public crimes: "Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime, or also as a public crime" (Kant, 1996). In his opinion private crimes are such as deceiving a person while selling goods, or abuse of someone's trust etc., while public crimes are coinage offence, theft, fight etc., because these crimes are damaging not just for one person, but the whole society. This does not mean that a private crime is less serious compared to the public one and therefore subject to a lighter punishment. A crime is a crime even though some crimes might be graver than others, but the main difference between personal and social crimes is whether the damage is incurred by one person or the whole society. Even in those cases when a crime is committed against one person, this person has no right to punish the violator. Administration of punishment is always the state's function. If a victim punishes the violator himself, this is no longer deemed to be a punishment but revenge.

The law always provides for punishing violators. If a violation or a crime is unpunished it means that the law is weak. In this case the law cannot administer justice. Weakness of the legal system indicates that the society itself is weak. Law administration is one of the main characteristic features of the state. Its absence means that there is no state. A sentence passed by a court differs from a natural punishment, because in the first case we are dealing with the punishment administration, while in the second - a guilty person punishes himself: "Judicial or juridical punishment is to be distinguished from natural punishment, in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator" (Kant, 1996). The court does not take self-punishment into consideration, because this function must be administered by the state and not a private person, even when the person is guilty himself.

According to Kant punishment is a legal act that definitely has a certain basis. This basis is a crime. If there is no crime there must be no punishment. Punishment of innocent people is a result of a worthless legislation; this means that the legal system is unable to establish guilt and make a differentiation between innocent people and criminals.

An action cannot be considered criminal if there is no corresponding decision made by a jury. The only goal is inflicting a deserved punishment upon a guilty person. A person can not be punished just for sake of the society's benefit i.e. in order to prevent others from committing the same crime. This would mean that a guilty person is treated not as a criminal deserving punishment but as a means to benefit the society, which is inadmissible: "He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens" (Kant, 1996). No one has a right to do so, even the state, because this kind of approach would imply the possibility of punishing an innocent person to prevent him from committing a crime. Even more so, this approach would not require punishment of criminals, because the basis for punishment would be not "crime", but "benefit". The "punishment" concept would lose its meaning if a crime did not serve as a basis for punishment. In this case the punishment would be groundless and nothing else but a denial of justice.

The fact that the goal of punishment is to inflict damage on a criminal makes punishment more like revenge. It means: "eye for eye". This wording can be used to express the concept of fair punishment. Again, this does not imply that punishment is administered for the sake of benefit i.e. in order to teach criminals or the whole society a lesson. Thus a punishment is retribution in a legal form. It must not serve as an instrument to scaring or improve someone, but only to penalize.

A criminal does not realize that the damage inflicted by him on the society is no less harmful for himself as a member of this very society. If you steal from someone, you steal from yourself too; if you beat or kill someone, you harm yourself too. A human being cannot exist outside a society. Therefore harming a society means harming its each and every member. If a person thinks that theft is admissible for him, he must realize that he might become a victim too. This means that if you steal or kill, you establish a precedent and next time it might be you who suffers from the same kind of crime.

The above formula: "eye for eye" is mostly admissible and allows fair punishment, but it is not always acceptable either. E.g. a monetary penalty must not be set as a compensation for an insult, because this way a wealthy person can always insult the poor and pay money. An insulted poor person might even apologize and kiss the offender's hand, because the social position of the poor person is lower. This would not be fair.

Kant absolutely insists on capital punishment of murderers. According to Kant "whoever has committed murder, must die" (Kant, 1996), because no matter how difficult life might be, it is still better than death: "However many they may be who have committed a murder, or have even commanded it, or acted as art and part in it, they ought all to suffer death" (Kant, 1996). A court decision is mandatory for punishing a murderer. A society that does not sentence a murderer to death turns into an accomplice of this crime.

Kant quotes the opinion of an Italian lawyer Beccaria Cesare that nobody has a right to deprive a person of a right to live, therefore death penalty is unjust. Kant sharply criticizes this opinion and calls it "Sophistic". According to Kant it is not clear why a state should not have a right to kill a murderer. He does not accept the argument that nobody would be willing to sign a contract with the state if it included a provision allowing the state to kill him.

In Kant's opinion a death penalty is justified only regarding murder and not any other crime, unless it causes a very substantial damage to the society. It is impossible to allow a situation where a murderer would be entitled to any legal rights and would be able to justify his actions. Kant believes that we cannot possibly replace capital punishment. If the death penalty is abolished what could be used instead? Life imprisonment is an extremely shameful measure, worse that a death penalty. Suppose there are two prisoners sentenced to death. One prefers death and the other is ready to accept shameful life in prison to survive. Whish one of the two is better? Kant thinks that the first: "I say that the man of honor would choose death, and the knave would choose servitude" (Kant, 1996). Based on this logic Kant concludes that by abolishing capital punishment we impose an even more severe punishment which is unfair because a murderer deserves death and not something worse.

A person sentenced to death might agree to allow usage of his body for medical experiments (if he hopes to survive). Such medical experiments might be beneficial to the society, but Kant considers this unacceptable because justice will not be justice if it is sold for a price.

According to Kant there are circumstances when a murderer deserves lighter penalty. E.g. sometimes a mother kills her child to avoid shame; people die fighting a duel to defend their honor etc. In these cases law provides for milder punishment but as the time passes, the society becomes more and more liberated from those indulgences and the principle requiring capital punishment for murderers is still valid.

If a criminal is not punished it means that the society has a controversial nature. This way the society undermines itself. If punishment of an innocent person is a mistake of justice administration, failure to punish a criminal indicates that the absence of justice, which is worse than mistake.

Kant thinks that besides murderers, people who commit lese-majesty also deserve death. Lese-majesty is a crime equal to death, because it might bring very significant misfortune upon each member of society. As an example Kant describes Karl Edward Stuart's unsuccessful attempt to usurp the throne (1745-1746). A lot of people died due to this rebellion, including Lord Balmerino. Of course the rebels did not have the same goals. Some fulfilled their duties towards Stuarts' dynasty, others had some private interests.

A punishment must always correspond to the crime. It is a mistake to impose different punishment for the same crime, even in those cases when the criminal has no honor. E.g. let's get back to the above example when one prisoner prefers death and the other shameful life imprisonment. A death sentence would be an equal punishment for the both, but a life imprisonment will not, because it would be a more severe punishment for the first prisoner, who prefers death. Therefore, when a sentence is passed on rebels a death sentence would be highest measure.

In Kant's opinion for a murderer sentenced to death it is unallowable to appeal for pardon or lighter punishment. If the murderer is pardoned or a lighter punishment is set, the justice will be in a ridiculous condition. Legal authorities have no right to allow such a situation but if they still choose to do so, it means that legal authorities contradict themselves. Legal authorities must not violate justice, arbitrariness regarding justice can not be allowed. A legal system must strictly abide by the law, because observation of laws is an expression of justice.

Kant several times stresses that a murderer shall die by all means. This is required by the justice as an "a priori" established by law: "The categorical imperative of penal justice, that the killing of any person contrary to the law must be punished with death, remains in force" (Kant, 1996). If there are many criminals deserving a death sentence, application of capital punishment becomes impossible because it would lead to a significant decrease of the population number. In this case capital punishment must be replaced with deportation. Even though this measure is not in compliance with the law, the punishment must be executed based on a personal order and be deemed as a specific form of pardon.

A person is punished not because such is his wish, but because he committed an action deserving punishment. If a person is willing to be punished or thinks that he deserves punishment, it is no longer a punishment, since punishment must be related to suffer and pain while a desired punishment no longer causes it.

At the same time, Kant believes that those people who determine the laws must not be involved in any crimes. If something like that happens the person will not be able to fulfill legislative functions. If such a person still carries out the function and passes a sentence on himself, he will have to administer the punishment too. The functions of passing and administering the sentence will be combined in one person.

Kant differentiates two types of crime that deserve capital punishment, but he points out that it is still questionable whether the legal system is authorized to punish such criminals. Both of these crimes are based on honor. I have already discussed these situations earlier. In one case a mother kills her child to avoid shame: in Kant's opinion it is shameful to give birth to an illegal child, so there are certain circumstances that mitigate punishment. The other case is a duel. For a person who has dignity an insult worse than death. During a duel the insulted person risks his life. It means that for him dignity is more precious than life. But the state legislation does not always reflect the principles of honor and dignity i.e. the legislation might not view honor as proper justification for murder: "In all instances the acts are undoubtedly punishable; but they cannot be punished by the supreme power with death" (Kant, 1996). In this situation people might consider the legislation unjust.

Since the relevant punishment for murder is always death, pardon is out of question. It is impossible to pardon a murderer based on the state legislation. Such an action would be in controversy with the public opinion and can cause a conflict between the public and legislation.

According to Kant only the head of the state can have the authority to pardon and only if the insult has been directed against the head of the state himself. It will be a pardon granted by a private person, not provided for in the legislation.

Kant historian Keno Fisher writes, that this last view is neither clear nor correct. It is not clear because firstly Kant is talking about the head of the state but the right to pardon belongs to the executive government. Secondly, insulting the head of the state is the worst possible offence that cannot be pardoned. The head of the state actually has less right to pardon than anyone else. Insulting the head of the state is the same as insulting the state itself. In Fisher's opinion it is not clear why Kant views an insult of the head of the state as a private issue, when a monarch actually personifies the state authority.

According to Kant punishment is the head of the state's function, thus he himself can not be punished. If the head of the state violates the law he must retire (or be forced to retire): "The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him" (Kant, 1996).

Conclusion

In Metaphysics of Morals Kant gave a deep analysis of such concepts as "crime" and "punishment". Both of these concepts have a social nature. The society and state are founded upon certain legal and moral norms and laws violation of which is very harmful for the society. Therefore a violator of these laws must be punished.

Kant is absolutely correct saying that a punishment cannot be assessed from the point of view of its benefit, because then innocent people can also be punished if it is beneficial for the society. This would be unjust.

In my opinion Kant is definitely right to demand capital punishment for murderers. In many countries, including my home country Georgia the death sentence has been replaced with the life sentence. According to Kant this seemingly human act is not human at all. Any person who can feel shame would prefer death to a lifelong imprisonment, while the life of those who have no dignity or shame is worthless. This is briefly Kant's view, which seems to be correct.

But I would like to disagree with the genius philosopher's opinion that the capital punishment cannot be used against the head of the state no matter how guilty he or she is. Kant is convinced that the maximum possible punishment should be resignation. In my opinion the head of the state has the biggest responsibility towards the people and country, therefore in case of treason he must be sentenced to death. Just a resignation would not be enough.

Kant is correct stating that a person must not be punished just because this would be beneficial for the society, because in this case punishment of an innocent person can also be justified. At the same time I would like to disagree with the view that the capital punishment does not have a fostering function. Punishment of a criminal is not just a personal retribution but also a warning to other society members not to commit the same offence. The punishment plays a certain role in influencing the criminal's morals too (of course if it is not a capital punishment). That's why the prisons are also called corrective or reformatory houses.

In general it must be noted that Kant's doctrine on crime and punishment contains many valuable ideas on issues that are widely discussed in the modern world. It is still very useful for contemporary legislators and moralists.

BIBLIOGRAPHY

Asmus (1973) V. Immanuel Kant, Moscow: Nauka, (in Russian).

Capital Punishment, Retrieved on March 24th From: http:---

Fisher, K. (1906). History of New Philosophy, vol. 5, S-Petersburg. (e-book, Russian version), "Electronic version."

Kant, I. (1996). The Metaphysics of Morals, trans. Mary Gregor, New York, Cambridge University press.

Kant, I. The Right of Punishing, Retrieved on April 1st, 2004. From: http:---

Wright, R. (2000) The Death Penalty and the Way We Think Now, Loyola of Los Angeles Law Review, Vol. 33:533, Retrieved on March 15th, 2004 From: http:---

(c) Archil Avaliani 2004

International University Campus 11, Apt 23 76646, Bruchsal Germany

E-mail: aavaliani@acm.org

-=-

III. A NEW FORMAT FOR ASK A PHILOSOPHER

On 29 July 1999, Yonas Hindrarto from Australia submitted the very first question to Ask a Philosopher: "Is there going to be a serious problem regarding the present of evil and the rationality belief in God? Where can I get more information regarding this issue problem of evil?"

Over the first six months that Ask a Philosopher was running, just 80 questions were submitted to the service. In the six months to 30 April 2004 we received 1399 questions - more than a 17-fold increase - reflecting the fact that Ask a Philosopher is now the leading expert site on the internet specializing in philosophy.

To cope with the steep increase in volume, and to provide a more efficient service the format of the questions and answers pages has been changed. The main consideration has been to make the process of editing and coding the questions and answers into HTML less time consuming and also less liable to error. Questions and answers pages will now be updated every week.

At the bottom of the current questions and answers pages you will find links to previous questions and answers pages in the new format. There are also links to the 24 old answers pages and the old questions page, which has now been split up into eight parts.

You will notice an immediate difference to the new questions page. The questions are in their raw state, just as they were submitted. This adds to the charm of the page - as well as making my task a lot easier.

It is difficult to talk about Ask a Philosopher without quoting statistics. The first twenty-four pages of Questions and Answers contain answers to over two thousand questions, totalling over one million words.

In the early days, when I answered all the questions myself, every question received an answer which was posted on the Pathways site. With the dramatic increase in the number of questions, the backlog of unanswered questions has steadily increased to over two thousand - making an average answer rate over the last five years of just 50 per cent. Considering that this is a free service, to have a 50-50 shot at getting an answer is pretty good going. Of course, we would like to do better.

The panel of philosophy graduates and teachers have been doing a great job. There were 42 contributors to Answers pages 23 and 24, including myself. (It is slightly scary to think that is is the answer that the computer Deep Thought gave to 'the meaning of the universe, life and everything' in Douglas Adams' brilliant novel Hitchhiker's Guide to the Galaxy.)

For the record, and to express my grateful thanks, the names of the other recent contributors are: Alison Robertson, Alya Diarova, Anthony Flood, Anthony Kelly, Arthur Brown, Berta Black, Brian Tee, Brian Heva, David Robjant, Douglas Barber, Glyn Hughes, Graham Nutbrown, Henk Tuten, Hubertus Fremerey, Ian Gregory, John Brandon, John Sartoris, Jonathan Ichikawa, Julian Bennett, Jurgen Lawrenz, Katharine Hunt, Kim Boley, Lyn Renwood, Luke Fedoroff, Martin Jenkins, Martin Jenkins, Nuno Hipolito, Natalie Kate, Rachel Browne, Rich Woodward, Richard Craven, Robert Paul, Rudabaga, Ryan Burton, Seamus Mulholland, Steven Ravett Brown, Stuart Burns, Tennessee Leeuwenburg, Tibor Machan, Tim Sprod, Wendy Weidel.

Have a look at the new pages and let me know what you think. If you haven't submitted a question before to Ask a Philosopher, why not have a go? Or if you have expertise to offer - even if it is only in one particular area of philosophy - we can always use extra help in answering questions!

(c) Geoffrey Klempner 2004

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Ask a Philosopher: https:---

PhiloSophos archive: http:---


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