[lbo-talk] Re: law/retributivism

Jim Farmelant farmelantj at juno.com
Sun Sep 12 08:06:40 PDT 2004


On Sun, 12 Sep 2004 09:37:20 -0400 Ted Winslow <egwinslow at rogers.com> writes:


>
> The passage this is interpreting begins by rejecting arguments for
> punishment that don't recognize "human dignity", i.e. arguments that
>
> treat individuals as means rather than as ends. There is no right
> to
> punish "for the amelioration or intimidation of others?"
>
> The only theory of punishment that does recognize "human dignity" at
>
> least "in the abstract" is "the theory of Kant, especially in the
> more
> rigid formula given to it by Hegel. Hegel says: 'Punishment is the
> right of the criminal. It is an act of his own will. The violation
> of
> right has been proclaimed by the criminal as his own right. His
> crime
> is the negation of right. Punishment is the negation of this
> negation,
> and consequently an affirmation of right, solicited and forced upon
> the
> criminal by himself.'"
>
> The "something specious in this formula" is that it treats the
> criminal
> as "a free and self-determined being." But a "free and
> self-determined
> being" wouldn't commit crimes since, for both Kant and Hegel, such a
>
> being is wholly determined by reason. Consequently, it's a
> "delusion
> to substitute for the individual with his real motives, with
> multifarious social circumstances pressing upon him, the abstraction
> of
> 'free will'--one among the many qualities of man for man himself!"

It seems to me that Kant's defense of retributivism, like most philosophical defenses of retributivism that have appeared since his time, presuppose the existence of a contra-causal free will. Now, for Kant, that was no problem because in such works as *Critique of Practical Reason*, he argued that we had to posit the existence of free will, along with God, and personal immortality, as necessary postulates for the moral life. And to rationalize this even further, he argued that reality can be divided up into a phenomenal realm, which is cognizable, through the senses, and a noumenal realm which consists of things-in-themselves, that exists, forever, beyond the scope of human cognition. Kant located the existence of free will, God, and immortal souls in the noumenal realm of things-in-themselves. Thus, Kant admitted that we could never know for certain that God, free will, and immortality exist but that we could legitimately posit their existence as necessary presuppositions of the moral life.

Now, it seem to Marx that it would have been very problematical for Marx to buy into this defense of retributivism given the fact that he was a materialist. The whole dualism between phenomena and noumena would have been inadmissible for him nor could he accept the notion of a contra-causal free will. But without these presuppositions the defense of retributivism would necessarily collapse. And that seems to be just what he was saying in the New York Herald Tribune article attacking capital punishment.


>
> So the theory fails. It won't justify "retributivism" in any
> society.
> It's "only a metaphysical expression for the old jus talionis: eye
> against eye, tooth against tooth, blood against blood." It's actual
>
> purpose is to give "a transcendental sanction to the rules of
> existing
> society."
>
> Marx doesn't endorse "retributivism as the correct theory of
> punishment
> for a worker's state" and doesn't claim that in capitalism
> "retributivism would still apply without any speciousness to the
> crimes
> of the bourgeoisie."
>
> What he does say is fully consistent with his assumptions about
> human
> being.
>
> Ted
>
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>

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