Hobbes and Kant on capital punishment

Thomas Hobbes and Immanuel Kant both had an enormous formative influence on modern moral and political philosophy, and on liberalism in particular.  But their approaches are very different.  Hobbes begins with what strikes the average reader as a base and depressing conception of what individual human beings are like in their natural state, and sees society arising out of an act of cold, calculating self-interest.  Kant, by contrast, seems committed to a lofty and inspiring conception of human beings, and regards society as grounded in a respect for the dignity of persons.

Contemporary opponents of capital punishment often appeal to a Kantian conception of human dignity, which they suppose naturally entails such opposition.  And it might seem like advocacy of the death penalty would have to reflect something closer to Hobbes’s grim realpolitik.  Yet when we consider the actual views of Hobbes and Kant themselves on the matter of capital punishment, we find that something closer to the opposite is the case – Kant being enthusiastically (indeed excessively) favorable to capital punishment, and Hobbes, if not utterly opposed to it, at least significantly more negative about it.

This is no accident, for each of these positions on the death penalty in fact fits quite naturally with the premises from which Kant and Hobbes respectively derive them.  And this, I submit, teaches us something about the conception of human beings that modern opponents of capital punishment – and indeed many citizens of modern Western liberal democratic societies in general – are really operating with, at least implicitly.  Modern people like to think of themselves as cuddly Kantians, when they are in fact closer to coldhearted Hobbesians.  And their hostility to capital punishment reflects, not a robust conception of justice but, on the contrary, an aversion to such a conception. 

Hobbes on the death penalty

For Hobbes, the state of nature is essentially a state of amorality.  Everyone has a perfect liberty to do what he likes, not because there is some moral imperative on everyone to allow others to do so, but on the contrary because there are no moral imperatives at all.  If you find your bliss in writing poetry by moonlight, you are perfectly free to do that.  And if some other person finds his bliss in beating up people who write poetry by moonlight, he is perfectly free to do that.  There is no objective fact of the matter about what either you or he ought to prefer, but merely facts about what you and he do in fact prefer, and such individual preferences are bound often to be at cross purposes. 

This, of course, is why for Hobbes the state of nature is “a war of all against all,” with life inevitably “solitary, poor, nasty, brutish, and short.”  It is to avoid this frightful situation that rational individuals will, in Hobbes’s view, agree to leave the state of nature by giving up their liberty to do whatever they wish and consenting to being ruled by a sovereign.  It is only at this point that rules of morality come into being, and they are essentially just whatever laws the sovereign decrees.  But they are binding on individuals only because they have consented to being governed by them.

Now, Hobbes famously draws an absolutist political conclusion from this, but what is relevant for present purposes is this.  For Hobbes, the default position is liberty to do whatever one likes; what makes it rational to give up some of that liberty is that, otherwise, one would lose all of one’s liberty in slavery or death; and we are obligated to follow rules that limit liberty only insofar as we consent to them.

That brings us to what Hobbes says about capital punishment.  Unsurprisingly, given his absolutism, Hobbes does not deny that the sovereign may resort to capital punishment in order to uphold the law.  Interestingly, however, this does not for Hobbes entail any obligation on the part of the condemned criminal to go along with such a punishment.  In chapter 21 of Leviathan, Hobbes writes:

Covenants, not to defend a man’s own body, are void.  Therefore, if the sovereign command a man (though justly condemned) to kill, wound, or maim himself; or not to resist those that assault him; or to abstain from the use of food, air, medicine, or any other thing, without which he cannot live; yet hath that man the liberty to disobey…

In case a great many men together have already resisted the sovereign power unjustly, or committed some capital crime, for which every one of them expecteth death, whether have they not the liberty then to join together, and assist, and defend one another?  Certainly they have: for they but defend their lives, which the guilty man may as well do, as the innocent.  There was indeed injustice in the first breach of their duty; their bearing of arms subsequent to it, though it be to maintain what they have done, is no new unjust act.  And if it be only to defend their persons, it is not unjust at all.

This makes sense given Hobbes’s account of the basis of morality.  If the default position is liberty to do whatever I want to do, and I can lose this liberty only insofar as I consent to losing it – and if I can rationally consent to losing it only because I would face death otherwise – then it is clear why Hobbes would conclude that I cannot lose my liberty to preserve my own life, not even if I consent to doing so.  For, again, it is precisely the desire to preserve my life that is the only reason I could rationally consent to give up any liberty at all.

As Leo Strauss remarks in Natural Right and History, this introduces a tension into Hobbes’s system.  If it would in some cases be just for the sovereign to punish me with death, how could I justly resist?  Or if I can always justly resist, how can it be just for the sovereign ever to inflict such a punishment?  As Strauss writes, “this conflict was solved in the spirit, if against the letter, of Hobbes by Beccaria, who inferred from the absolute primacy of the right of self-preservation the necessity of abolishing capital punishment” (p. 197).  Hobbes’s account of morality in fact entails this abolitionist position even if he only got halfway to it himself.

Strauss makes another crucial observation.  Hobbes’s account only works if death is indeed the worst fate possible.  But “in many cases the fear of violent death prove[s] to be a weaker force than the fear of hell fire or the fear of God” (p. 198).  Naturally, such fear could change the whole calculation even for those in Hobbes’s state of nature.  Perhaps, if people feared God and damnation most of all, they would resist the sovereign far beyond what Hobbes would allow, choosing to risk offending the state rather than to risk offending God.  Or perhaps, in a penitential spirit, they would submit even to punishments like enslavement and execution, looking forward to a reward in the hereafter.

To make his account of morality and politics work, then, Hobbes requires a social context that is secularist rather than otherworldly in its basic orientation.  For only in such a context can the fear of death be more vivid than the fear of eternal damnation, and thus do the work Hobbes needs for it to do.  As Strauss writes:

The whole scheme suggested by Hobbes requires for its operation the weakening or, rather, the elimination of the fear of invisible powers.  It requires such a radical change of orientation as can be brought about only by the disenchantment of the world… Hobbes’s is the first doctrine that necessarily and unmistakably points to a thoroughly ‘enlightened’, i.e., a-religious or atheistic society as the solution of the social or political problem.  (p. 198)

In short, Hobbes’s system of ethics and political philosophy entails an abolitionist position on capital punishment because of its radical individualism and secularism.  In particular, it holds that limitations on the individual’s freedom to do whatever he wants are justifiable only if he consents to them, and that no individual could consent to being executed because death is worst of all fates.

Kant on capital punishment

Kant takes the fundamental principle of morality to lie in what he calls the categorical imperative, the second formulation of which is: “Act in such a way that you always treat humanity, whether in your own person or in that of any other, never simply as a means, but always at the same time as an end.”  The idea here is that human beings, as rational beings possessing intellects and free will, have by nature a kind of autonomy or self-determination that non-human animals, plants, and inorganic things do not.  When we treat human beings as nothing more than resources for the realization of our own ends (the way we might treat a sub-rational being of one of the kinds mentioned) we thereby fail to deal with them in a way that is appropriate given their nature.  This formulation of the categorical imperative is thus taken to give expression to the idea of the special dignity of the human person, and of the special respect we owe such persons given their dignity.

Now, in recent decades this notion of “the dignity of the human person” has been deployed, especially in certain Catholic contexts, to criticize capital punishment, harsh and humiliating punishments more generally, and the idea that retribution is the central function of punishment.  Interestingly, though, Kant himself drew exactly the opposite of these conclusions, at every point. 

Hence, consider his treatment of the topic of punishment in The Metaphysical Elements of Justice.  In the name of respect for persons, many today suggest that retribution is not an appropriate motivation for any punishment, and that instead it can only be inflicted if it is needed to protect society or to promote the rehabilitation of the offender.  But here is what Kant says:

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 and can never be confused with the objects of the Law of things.  His innate personality [that is, his right as a person] protects him against such treatment, even though he may indeed be condemned to lose his civil personality.  He must first be found to be deserving of punishment before any consideration is given to the utility of this punishment for himself or for his fellow citizens.  The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it.  (p. 100, Ladd translation)

Note first of all that Kant argues here that to punish someone merely for the good of society (which would include protecting it from him) or even for the sake of some utility it may afford him (which would include rehabilitation) violates the categorical imperative, because it treats him merely as a means rather than as an end in himself.  The only motive for punishment that respects his nature as a person is the motive of simply giving him what he deserves – in other words, retribution – and only with that motivation first in place can any thought be given to what might promote the good of society or of the offender.

So far, this is just the traditional understanding of the purposes of punishment, and corresponds to traditional Catholic teaching from Genesis to Thomas Aquinas to the Catechism, at least as Pope St. John Paul II left it.  (See By Man Shall His Blood Be Shed, my book co-written with Joseph Bessette, for a refutation of the claim that John Paul II changed Catholic teaching in this respect.)  But Kant’s position is even more austere than that, ruling out considerations of mercy that in Catholic teaching balance out considerations of justice.  For Kant’s view is not merely that, when we punish, we must have retribution in mind first and foremost.  He holds that we must punish an offender.  In his view, respect for human dignity not only allows the state to inflict on a criminal his just deserts but requires the state to do so.  And he takes this to follow precisely from the fact that respect for persons – which includes holding them responsible, and thus worthy of punishment, for the bad things they do – is a categorical imperative, commanding unconditionally. 

Exactly what kinds of punishments must be inflicted?  Kant answers as follows:

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; if you kill him, you kill yourself.  Only the Law of retribution (jus talionis) can determine exactly the kind and degree of punishment... [This is] the retributive principle of returning like for like. (p. 101)

This is sometimes referred to as the principle of proportionality, and here too Kant’s position corresponds to traditional Catholic teaching from the Old Testament to the Catechism of John Paul II.  For example, echoing Kant’s point that it is ultimately the offender who inflicts on himself whatever he does to others, Pope Pius XII taught:

Even when it is a question of the execution of a condemned man, the State does not dispose of the individual’s right to life.  In this case it is reserved to the public power to deprive the condemned person of the enjoyment of life in expiation of his crime when, by his crime, he has already disposed himself of his right to live.

Here too, though, Kant goes further than the traditional view.  It is not merely that proportionality gives us a criterion for determining what punishment to inflict whenever we do punish.  It is that we must, as far as we are able, return like for like.  He notes, for example, that “the imposition of a fine for a verbal injury has no proportionality to the original injury” (p. 101).  Instead, he says:

The humiliation of the pride of such an offender comes much closer to equaling an injury done to the honor of the person offended; thus the judgment and Law might require the offender, not only to make a public apology to the offended person, but also at the same time to kiss his hand, even though he be socially inferior.  Similarly, if a man of a higher class has violently attacked an innocent citizen who is socially inferior to him, he may be condemned, not only to apologize, but to undergo solitary and painful confinement, because by this means, in addition to the discomfort suffered, the pride of the offender will be painfully affected, and thus his humiliation will compensate for the offense as like for like. (pp. 101-2)

Notice that here too, Kant draws precisely the opposite lesson from human dignity that many today who appeal to it do.  It is often claimed today that it is contrary to human dignity to inflict harsh or humiliating punishments.  But as Kant argues, in reality, if the offender has himself treated others in a harsh or humiliating manner, then he deserves such treatment in return, and inflicting it on him thus respects his dignity as a person precisely by holding him responsible as a free and rational agent. 

For this reason, Kant even argues that justice requires that, as part of their punishment, thieves must be forced to labor (p. 102).  For they have stolen from others, and if, while in prison, they are fed and sheltered at state expense, this only compounds their unjust taking of resources that rightfully belong to others.  Hence, while it is widely taken for granted today that penal servitude is contrary to a Kantian respect for persons, Kant himself argued that respect for the dignity of persons requires penal servitude if the offender has done something to merit it.  (Here again, Kant goes beyond what became standard Catholic teaching, which holds that while penal servitude can for the reasons Kant gives be justifiable in theory, in practice it should not be used, because it has a tendency to degenerate into chattel slavery, which is intrinsically immoral.)

This brings us at last to Kant’s position on capital punishment.  He writes:

If, however, he has committed a murder, he must die.  In this case, there is no substitute that will satisfy the requirements of legal justice.  There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is also no equality between the crime and the retribution unless the criminal is judicially condemned and put to death.  But the death of the criminal must be kept entirely free of any maltreatment that would make an abomination of the humanity residing in the person suffering it.  Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice. (p. 102)

In endorsing the idea that the principle of proportionality justifies executing those who are guilty of murder, Kant is, once again, echoing traditional Catholic teaching.  But here too he goes well beyond it by insisting that the moral law not only allows, but requires, the execution of murderers. 

Kant adds some further remarks that reinforce how radically different his position is from that of Hobbes.  Suppose for the sake of argument that the law were to allow a murderer to opt, instead of the death penalty, for the lesser punishment of penal servitude.  Kant comments:

I say that a man of honor would choose death and that the knave would choose servitude.  This is implied by the nature of human character, because the first recognizes something that he prizes more highly than life itself, namely, honor, whereas the second thinks that a life covered with disgrace is still better than not being alive at all (animam praeferre pudori).  The first is without doubt less deserving of punishment than the other. (p. 103)

For Hobbes, death is the worst thing that can happen to us; for Kant, dishonor is worse still.  For Hobbes, reason tells the offender facing execution to do what he can to avoid it; for Kant, reason tells the offender to accept execution, precisely because, as a free and rational agent, he has done something to deserve it.  For Hobbes, there is no injustice in resisting execution, even though the offender has done something to deserve it; for Kant, for a murderer to resist execution only makes him even more deserving of it.

Unquestionably, here too Kant, though going beyond what traditional Catholic teaching strictly requires, is much closer to it than Hobbes is.  Consider, for example, the Good Thief, who while dying on his cross said to his fellow criminal that “we are punished justly, for we are getting what our deeds deserve” (Luke 23:41) – and to whom Christ went on to promise paradise.  Or consider the original 1992 version of the Catechism of the Catholic Church promulgated by Pope St. John Paul II, which, after reaffirming the legitimacy in principle of the death penalty for sufficiently grave crimes, goes on to say that “when his punishment is voluntarily accepted by the offender, it takes on the value of expiation” (2266).

Hobbesians in Kantian drag

As I’ve said, many today, especially in Catholic circles, claim that the notion of human dignity put at the center of modern moral philosophy by Kant requires softening the traditional approach to punishment, and capital punishment in particular.  Yet, ironically, Kant himself essentially argued that respect for human dignity requires taking a harsher approach than the traditional one.  Of course, one could try to argue that Kant was wrong, and that respect for human dignity does in fact require moving away from the traditional view.  But as Bessette and I show in our book, none of the arguments to this effect that have been offered succeeds.

Moreover, to the extent that they emphasize the unique awfulness of death and the way punishment affronts the freedom of the offender, contemporary abolitionist arguments are much closer in spirit to Hobbes than to Kant.  The rhetoric may often be Kantian, but the substance is Hobbesian.

And that is a second irony, when the abolitionists in question are Catholic.  For Hobbes was, of course, a great enemy of the Catholic Church, which, in Leviathan, he portrayed as the chief agent in what he called the “kingdom of darkness.”  The moderns simply cannot give Catholic modernizers what they want.  Kant cannot do so, because his view on matters of punishment is more traditional than modern.  And Hobbes cannot do so, because while his position is modern, it is the opposite of Catholic.