Content area
Full Text
In the Metaphysics of Morals Kant clearly, and indeed ardently, upholds the state's right to impose the death penalty in accordance with the law of retribution (ius talionis). The "principle of equality" as between crime and punishment demands that those who wrongfully kill another should be put to death, for, in having inflicted such an evil upon another, the murderer has effectively killed himself.1 Kant is quite emphatic on this point: those who have committed murder "must die". Here, he argues, "there is no substitute that will satisfy justice", for there "is no similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer [...]".2 The jms talionis is, for Kant, the basic principle and measure in accordance with which criminal justice functions. Since the ius talionis entails a strict equality between crime and punishment, Kant's insistence that only the death penalty serves as the appropriate response to murder (or to any other equally egregious crime) is fairly straightforward.
What remains unclear however is whether judicial killing, even in accordance with the law of retribution, could ever be rightful in the Kantian framework. I would pose the following question in this respect: could practical reason, in its external aspect as the general or universal will, sanction without contradiction the killing, i.e., deliberate execution, of a human being under any circumstances? Or, put differently, could a legislator, bound by the principle of right and the idea of the original contract, frame a law that mandates the execution of certain criminals?3 I would answer these questions in the negative. Put simply, practical reason, as self-legislating will (Wille), cannot posit its own annihilation without contradiction.
This principle is found in Kant's arguments regarding the irrationality of suicide. Practical reason, as it governs the subject internally, cannot sanction the annihilation of the conditions of its own instantiation, namely its embodiment in the physical person. But there is no immediate application of this principle to the death penalty, and Kant obviously did not see an underlying connection between the proscription on suicide and the illegitimacy of the death penalty. Indeed, he would likely deny that there is such a connection to be...