Against the Hybrid Interpretation of Kant's Theory of Punishment Mark Pickering Forthcoming in Jahrbuch für Recht und Ethik / Annual Review of Law and Ethics in 2020. This is not the final version. Abstract Immanuel Kant appears to make both retributivist and consequentialist statements about criminal punishment in the Metaphysical Foundations of the Doctrine of Right. In recent decades, some scholars have argued that Kant's theory of criminal punishment is a hybrid of consequentialism and retributivism. B. Sharon Byrd's interpretation is the most influential version of this view. I argue that the textual evidence in favor of the consequentialist side of the hybrid interpretation is weak and the evidence in favor of the retributivist side is non-existent. There are also passages that contradict the interpretation. I conclude that the hybrid interpretation should be abandoned. Abstrakt In sein Werk Metaphysische Anfangsgründe der Rechtslehre scheint es, dass Kant retributivistische und konsequentialistische Aussagen macht. In jüngste Jarhrzehnte, eigne Forscher argumentierte, dass Kants Theorie vom Strafrecht eine Hybride von Konsequentialismus und Retributivismus sei. B. Sharon Byrds Auslegung is die einflussreichste Version dieser Ansicht. Ich argumentiere, dass die textliche Beweise für die konsequenzialistische Seite der hybriden Auslegung schwach sind, und dass die Beweise für die retributivistische Seite bestehen nicht. Es gibt auch Textstellen die die Auslegung widersprechen. Ich schliesse, dass die hybride Auslegung verlassen sein soll. Page 2 of 28 Immanuel Kant's statements about criminal punishment in the Metaphysical Foundations of the Doctrine of Right seem to appeal to both consequentialist and retributivist reasons. 1 For this reason, some scholars have argued that Kant's theory is a particular kind of hybrid of consequentialism and retributivism. 2 I argue that the textual evidence in favor of the consequentialist side of the hybrid interpretation is weak and that the textual evidence in favor of the retributivist side is non-existent. Some of the textual evidence contradicts the interpretation. I conclude that the hybrid interpretation should be abandoned. 1. Kant's apparently contradictory statements on punishment Kant seems to subscribe to both retributivist claims about punishment and consequentialist claims about punishment in the Doctrine of Right. I use the term 'retributivism' to refer to the view that (1) offenders should be punished because they have offended and that (2) the severity of the punishment should be proportional to the severity of the offense. I use the term 'consequentialism' to refer to the view that punishment is either threatened or inflicted for the sake of preventing offenses (e.g. through deterrence, incapacitation, or rehabilitation). 1 Immanuel Kant, Metaphysische Anfangsgründe der Rechtslehre, in: Kants gesammelte Schriften, vol. 6, Berlin: de Gruyter, 1983, 243-450. Citations to Kant's works will be made parenthetically to the volume and page number of this edition. Translations are my own. 2 Thomas E. Hill, "Kant's Anti-Moralistic Strain", Theoria 44, 1978, 131-151; Don E. Scheid, "Kant's Retributivism", Ethics 93, 1983, 262-282; B. Sharon Byrd, "Kant's Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution", Law and Philosophy, 8, 1989, 151-200; B. Sharon Byrd, "Strafgerechtigkeit bei Kant", in: Heinz Lampert/Wilfried Bottke/Anton Rauscher, eds: Gerechtigkeit als Aufgabe, St. Ottilien: EOS Verlag, 1990, 137-158; Nelson Potter, "Kant on Obligation and Motivation in Law and Ethics", Jahrbuch für Recht und Ethik, 2 1994, 95-112; Mark Tunick, "Is Kant a Retributivist?", History of Political Thought, 17, 1996, 60-78; Thomas E. Hill, "Kant on Wrongdoing, Desert, and Punishment", Law and Philosophy, 18, 1999, 407-441; JeanChristoph Merle, "A Kantian Critique of Kant's Theory of Punishment", Law and Philosophy, 19, 2000, 311-338; Andreas Mosbacher, "Kants präventive Straftheorie", Archiv für Rechtsund Sozialphilosophie, 90, 2004, 210-225; B. Sharon Byrd/Joachim Hruschka, Kant's Doctrine of Right: A Commentary, Cambridge: Cambridge University Press, 2010, 264-275. Page 3 of 28 Some of Kant's statements in the Doctrine of Right are retributivist. Kant says "judicial punishment...can never be inflicted merely as a means to promote another good for the offender himself or for civil society, but rather must always only therefore be inflicted because he has offended" (6:331). Kant also says that punishment must be as similar as possible to the offense (what Kant calls the "law of retribution" or ius talionis) (6:332-333). However, Kant makes other statements that seem consequentialist. For example, Kant says that a wrong that cannot be deterred by the threat of punishment should not be punished (6:235-236). B. Sharon Byrd's hybrid interpretation attempts to reconcile the retributivist statements with the consequentialist statements in the following way. Byrd argues that Kant's consequentialist statements regard the justification of the state's threat of punishing offenders and that his retributivist statements regard the justification of carrying out the threatened punishment. More precisely, she argues that the purpose of threats of punishment is to deter potential offenders and that punishment is inflicted in order to act consistently with threats previously made. 3 I call this the "hybrid interpretation." Although other commentators have proposed similar interpretations, Byrd's interpretation is the most influential, most thoroughly worked out, and best supported version. For these reasons, I will focus on her version. I will discuss other commentators when their arguments are relevant. 3 B. Sharon Byrd, "Kant's Theory of Punishment" (op. cit. fn. 2), 156, 183-184, 198-199; B. Sharon Byrd, "Strafgerechtigkeit bei Kant" (op. cit. fn. 2), 151-158; B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 269-270; Don E. Scheid (op. cit. fn. 2), 281; Mark Tunick (op. cit. fn. 2), 75. Potter, Merle, and Mosbacher hold that, according to Kant, punishment is inflicted to prevent crime. Andreas Mosbacher (op. cit. fn. 2), 221-225; Nelson Potter (op. cit. fn. 2), 105-106; Jean-Christophe Merle, (op. cit. fn. 2), 317. Hill holds that punishment is inflicted because the offender deserves to be punished. Thomas E. Hill, "Kant on Wrongdoing" (op. cit. fn. 2), 430-431. Commentators in the second group give no indication that they realize that their position differs from that of the first group, so I will not discuss their version in the body of this paper. Page 4 of 28 I discuss passages from the Doctrine of Right that allegedly support the hybrid interpretation's claim that the only purpose of threatening criminal punishment is to deter offenses in section 2. I argue that these passages provide little support for this claim. In section 3, I argue that no passages from Kant's posthumously published fragments (Reflexionen) or from the lecture notes of his students support the hybrid interpretation. In fact, some passages contradict it. In section 4, I consider whether Kant's claims about the appropriate punishment in four hypothetical scenarios are consistent with the hybrid interpretation. I conclude that two are not and that the rest are not if what Kant says about them is interpreted in the way some proponents of the hybrid interpretation advocate. I argue in section 5 that the retributivist side of the hybrid interpretation has no textual support and ignores Kant's retributivist reasons for punishing offenders. I conclude in section 6 that the hybrid interpretation should be abandoned. 2. Apparently Consequentialist Passages in the Doctrine of Right The hybrid interpretation, as already mentioned, holds that the purpose of the state's threatening punishment is deterring potential offenders and that the purpose of the state's carrying out its threats is the state's acting consistently with its threats. In this section I will discuss the textual evidence from the Doctrine of Right that proponents of the hybrid interpretation have appealed to in order to support the consequentialist part of the interpretation. It will be seen that Kant never says that deterrence is the only reason for threatening punishment. Although Kant distinguishes between threatening punishment and carrying out threats of punishment in one passage, he never distinguishes between a rationale for threatening punishment and one for carrying out threats of punishment. Page 5 of 28 2.1 The purpose of the state and its laws Kant distinguishes ethical legislation from juridical legislation. The former makes the idea of duty itself the motivating force (Triebfeder), and the latter makes something besides the idea of duty the motivating force (6:218-219). 4 The motivating forces of duty in juridical legislation are "the pathological determining grounds of the will of inclinations and disinclinations...because it [juridical legislation] is legislation that should be coercive and not an enticement that is inviting" (6:219). 5 This indicates that Kant believes that the law seeks to motivate compliance by means of an appeal to the disinclinations of people through coercion. As Don Scheid notes, "Kant's talk of incentives certainly implies deterrence." 6 But note that Kant discusses incentives only in connection with juridical legislation in general, not punishment in particular. Even if we take this passage to refer to punishment, it does not say whether it is the threat of punishment or someone actually being punished that provides the incentive. As Scheid says "How, exactly, the notion of coercion is related to Kant's conception of a legal system is not absolutely clear." 7 In another passage, Kant says that "every act is rightful [recht] which or according to whose maxim the freedom of the will of anyone can exist together with everyone's freedom according to a universal law" (6:230). Kant understands unrightful acts to be "a hindrance to freedom according to universal laws" (6:231). Since resisting a hindrance of an effect is a promotion of 4 Don E. Scheid (op. cit. fn. 2), 267; B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 162-163; B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 139-140; Nelson Potter (op. cit. fn. 2), 95-98; Thomas E. Hill, "Kant on Wrongdoing" (op. cit. fn. 2), 429. 5 Don E. Scheid (op. cit. fn. 2), 265-267; B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 185. 6 Don E. Scheid (op. cit. fn. 2), 267. 7 Ibid., 267. Page 6 of 28 that effect, "if a certain use of freedom itself is a hindrance to freedom according to universal laws (i.e. unrightful), then the coercion that is opposed to it, as the hindering of a hindrance to freedom, is consistent with freedom according to universal laws, i.e. rightful" (6:231). 8 According to some commentators, the hindrance that Kant is referring to is the deterrent effect of threats of punishment. 9 These commentators provide no argument, apparently taking it to be obvious. Nelson Potter takes Kant to be referring to the deterrent effects of actual punishment. Potter says "Now the connection between these 'hindrances' and Kant's later, separate discussion of punishment is not explicit." He says that interfering with an attempted offense would count as hindering it. But "The only sort of systematic hindrance Kant ever discusses and regards as basic or important is punishment." 10 He continues: "One might ask how punishment hinders. Once a given rape or burglary has been completed, it can hardly be hindered. The answer, it seems, is that punishment of such acts hinders through deterrence, presumably both specific and general." But Potter ignores alternative ways in which inflicting punishment can hinder crime. Punishment may hinder crime through incapacitating or rehabilitating offenders. 11 Potter is right that the only way of hindering crime that Kant discusses is punishment, but Potter offers no reason for the claim that Kant's view was that it is only through deterrence that punishment hinders crime. These passages indicate that for Kant the purpose of the law is to oppose or hinder hindrances to freedom and that juridical legislation is connected to juridical duty by disinclinations and coercion. None of this means that the only purpose of threats of punishment is to deter offenses. 8 Don E. Scheid (op. cit. fn. 2), 269; B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 170; B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 142, note 23; Nelson Potter (op. cit. fn. 2), 104-105; Thomas E. Hill, "Kant on Wrongdoing" (op. cit. fn. 2), 1999, 429. 9 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 186; Thomas E. Hill, "Kant on Wrongdoing" (op. cit. fn. 2), 430. Hill's claim is qualified: "The main method that Kant discusses for protecting the specified freedom of the individual is to threaten each person with legal sanctions for violating the law." Ibid., 430. 10 Nelson Potter (op. cit. fn. 2), 105. 11 Don E. Scheid (op. cit. fn. 2), 267. Page 7 of 28 Further, Kant does not distinguish between a rationale for threatening punishment as distinguished from a rationale for inflicting punishment. Therefore, such passages are not evidence that Kant believed that deterrence is the rationale for threatening criminal punishment. 2.2 The right of necessity Kant considers the alleged "emergency right" (Nothrecht) or "right of necessity" (ius necessitatis), which is taken to be the right to kill an innocent person in order to save one's own life in an emergency (6:235). Kant discusses the hypothetical example of someone knocking someone else off of a plank in order to avoid drowning after a shipwreck (6:235). 12 Kant says a law that threatens punishment for killing under such circumstances is not valid, making the killing not punishable. 13 There cannot be a criminal law which inflicts death on one who in shipwreck, in the same lethal danger with another, knocks him from the plank on which he has saved himself in order to save himself. This is because the punishment threatened through the law could not be greater than the loss of life of the former. Now such a criminal law cannot have the intended effect at all; because the threat of a harm that is yet uncertain (the death through a judicial judgment) cannot outweigh the fear of a harm that is certain (namely drowning). Therefore the deed of violent self-preservation is to be judged not as inculpable [unsträflich] (inculpabile) but rather only as unpunishable [unstrafbar] (impunibile)" (6:235-236). 14 Kant argues that a hypothetical criminal law which threatens the death penalty for killing in the circumstances described is invalid because no threatened punishment could deter the killing. 12 Readers who think this case is unrealistic are referred to the facts giving rise to R v Dudley and Stephens, (1884) 14 QBD 273 DC. Tom Dudley and Edward Stephens killed and ate Richard Parker in a lifeboat about 20 days after a shipwreck. 13 Cf. Immanuel Kant, On the Saying: Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis, in: Kants gesammelte Schriften, vol. 8, Berlin: de Gruyter, 1983, 300, note. 14 If the threat of execution fails to deter someone attempting to preserve his or her life in an emergency, a lesser threat would also fail to deter someone. Therefore, on Kant's thinking, no punishment at all can be justified in such a case. Jean-Christophe Merle, (op. cit. fn. 2), 314-315. Page 8 of 28 Thus, Kant believed that valid threat of punishment must possibly deter crime. 15 This is consistent with the hybrid interpretation in that it refers specifically to the threat of punishment and its possible deterrent effect as a necessary condition of validity of the threat. Proponents of the hybrid interpretation conclude from the fact that possible deterrence is a necessary condition of the validity of a threat of punishment that the purpose of threats of punishment is to deter crime. 16 For example, Byrd says this passage shows that Kant believes the purpose of punishment is "deterrence or crime prevention," apparently taking the two to be synonymous (and neglecting the distinction between threatening punishment and inflicting punishment). 17 However, Kant's argument in this passage does not mean that deterrence is the only reason for threatening punishment. So, this passage does not establish that Kant thought deterrence was the only rationale for threatening punishment for wrongdoing. Rather, it establishes only that Kant thought it a necessary condition of threatening criminal punishment that the threatened punishment can possibly deter the wrongdoing. This does not mean that it is a sufficient condition and leaves open whether there are other necessary reasons for threatening punishment. So, although Kant is clear that the shipwreck-killing cannot be punished because it could not be prevented by the threat of punishment, it does not follow that the only purpose of threats of punishment is to deter crime. There are reasons to focus on deterrence to the exclusion of other rationales of crime prevention in the context of killing in a shipwreck. In such an emergency, the state cannot prevent wrongdoing in any way besides deterrence. The police cannot interrupt an 15 Jean-Christophe Merle, (op. cit. fn. 2), 314-315. 16 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 189-191; Mark Tunick (op. cit. fn. 2), 64. 17 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 191. Byrd does not neglect the distinction in a later article, though she still equivocates between deterrence and preventing crime. B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 147. Page 9 of 28 attempted killing during a shipwreck. Shipwrecks are so unlikely that future shipwreck-killings almost certainly cannot be prevented by incapacitating or rehabilitating past shipwreck-killers. Thus, wrongs not deterrable because they take place in an emergency are nearly certainly unpreventable by any means except deterrence. 18 So this focus on deterrence may result from the peculiarities of killings in emergencies, not because possible deterrence is a sufficient condition of a valid threat of punishment. It is plausible that there are other necessary conditions of valid threats of punishment, as Byrd shows in a later work. She and her co-author Joachim Hruschka make no mention of Byrd's previous argument and instead argue that since the threat to punish "cannot possibly be effective as a deterrent," it would not be just to punish the wrongdoer. 19 Their thinking seems to be that since the threat could never be successful in persuading someone, carrying out the threat would needlessly harm the wrongdoer. On the interpretation Byrd originally adopted, a threat of punishment that could not deter wrongdoing is not valid because it could not possibly be effective and therefore cannot fulfill its purpose. It is plausible that a valid threat of criminal punishment must be one that both can be effective in deterring potential offenders and one that is just in that potential offenders can comply with it. 20 But if both are necessary conditions, then neither is sufficient. Byrd's abandonment of the former interpretation for the latter is a tacit 18 Merle argues that it is possible to deter shipwreck killings: "If the risk of being caught...is not negligible, is there really nobody who would prefer to be drowned and mourned by others as someone who died tragically, if the alternative were the dishonor of a public condemnation which would possibly or probably be followed by death at any rate?" Jean-Christophe Merle, (op. cit. fn. 2), 314. 19 B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 274-275. 20 Compliance with a law may be impossible or unreasonably difficult for a variety of reasons. A law may be insufficiently public, insufficiently comprehensible, insufficiently clear, self-contradictory, or it may change too frequently. See Lon L. Fuller, The Morality of Law, New Haven: Yale University Press, 1964, 49-51; 63-81. Thus we may conclude that it is a necessary condition of a valid threat of punishment that it be sufficiently public, etc. Page 10 of 28 admission that we need not ascribe to Kant the view that the possible effectiveness of a threat is a sufficient condition of the validity of a threat of punishment. 2.3 Application of the law of retaliation Byrd claims that the following passage shows that Kant cares about the effectiveness of a threat of punishment in deterring offenses. In this passage Kant discusses how to apply the law of retribution to the case of a wealthy person who insults a lower-status person. 21 Kant says "a fine would have no relation at all to the insult because someone who had a lot of money could allow himself this offense sometime if so inclined" (6:332). Kant says that applying the law of retaliation literally in this case would not be appropriate because a wealthy offender inclined to offend in this way would be undeterred by a fine. Instead he says that in cases where the law of retaliation cannot be literally applied, the punishment inflicted on the offender should have the same effect on the sensibility of the offender as the effect the offense had on the sensibility of the victim (6:332). In this case, the appropriate punishment for the wealthy person would be to be forced to publicly apologize to and kiss the hand of the lower-status person he had insulted. This is because the harm to the pride of the offender should match the dishonor done to the victim (6:332). Kant chooses one punishment over another because he believes that the other punishment does not inflict sufficient suffering and that the one punishment does inflict sufficient suffering. The fact that a given punishment would not deter a potential offender is taken to indicate that the punishment would not inflict enough suffering on the offender. Kant apparently presumes that inflicting the punishment that affects the sensibility of the offender in the same way and degree 21 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 192. Page 11 of 28 that the offense affected the sensibility of the victim would deter potential offenders. 22 So, this passage does not support the claim that Kant believed that deterrence is the only rationale for threatening criminal punishment. Instead, it indicates that Kant believed that inflicting punishment in accord with the law of retaliation deters potential offenders. This passage contradicts the hybrid interpretation in two respects. First, Kant indicates that punishment should be inflicted and not merely threatened in order to deter potential offenders. As noted earlier, the hybrid interpretation says that the purpose of threats of punishment is deterrence while punishments are inflicted to avoid making the state's threats of punishment untruthful. Second, Kant believes that punishments that are dictated by the law of retribution will deter potential offenders. According to the hybrid interpretation, the law of retaliation only serves to prevent inflicted punishments from being too severe. 23 2.4 Conclusion While Kant claims that juridical legislation is connected to juridical duty by disinclinations and coercion as well as that the purpose of the law is to oppose or hinder hindrances to freedom, these claims do not entail that the only purpose of threatening punishment is to deter offenses. Kant's argument regarding alleged right to kill another to save oneself in emergencies does not support the hybrid interpretation. Kant's argument regarding the appropriate punishment for a wealthy person who insults a lower-status person does not support the hybrid interpretation but 22 Kant is reported to have made this point explicitly in Feyerabend's lecture notes. Immanuel Kant, Kants Naturrecht gelesen in Winterhalben Jahre 1784, in: Kants gesammelte Schriften, vol. 27, Berlin: de Gruyter, 1983, 1334, 1390-1391. See 3.2 below. 23 Don E. Scheid (op. cit. fn. 2), 272-273; B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 183-184; B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 149-151, 157-158; B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 274. Page 12 of 28 rather contradicts it. In none of these passages does Kant distinguish between one reason for threatening punishment and another for carrying out threats of punishment. 24 Therefore, the apparently consequentialist passages in the Doctrine of Right cited by proponents of the hybrid interpretation provide little support for the hybrid interpretation's claim that the only purpose of threats of criminal punishment is deterring offenses. 3. Reflexionen and the Lecture Notes of Kant's Students Proponents of the hybrid interpretation cite Kant's posthumously published fragments (Reflexionen) and the lecture notes of Kant's students in support of the hybrid interpretation. 25 I argue that Kant's statements in the Reflexionen and those reported by his students do not support the hybrid interpretation. 3.1 Kant's Reflexionen One fragment says "Pragmatic punishments are cautionary [warnend] and apply to the external aspect of action; moral [punishments] apply to a bad disposition [Gesinnung]. Authorities punish pragmatically" (19:132). 26 This fragment shows that Kant considers pragmatic punishments to be intended to deter offenses, and that he considers punishment inflicted by the state to be pragmatic. The statement that "authorities punish pragmatically" is merely a descriptive statement about what authorities believe the purpose of punishment is, not a prescriptive statement about what the justification for punishment is. Additionally, this passage refers only to 24 Cf. Don E. Scheid (op. cit. fn. 2), "Kant's Retributivism," 265. 25 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 183-195; B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 146-147, 151. Cf. Mark Tunick (op. cit. fn. 2), 63, note 12; Andreas Mosbacher (op. cit. fn. 2), 221, 224; B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 266. 26 Immanuel Kant, Reflexionen zur Moralphilosophie, in: Kants gesammelte Schriften, vol. 19, Berlin: de Gruyter, 1983,132. Reflexion 6681. I will abbreviate Reflexion as "R." Andreas Mosbacher (op. cit. fn. 2), 269. Page 13 of 28 inflicting punishment for the sake of deterrence and not to threatening it for the sake of deterrence. Thus, this statement does not support the hybrid interpretation. In some fragments, Kant says that punishment must be just as retributivist punishment, but leaves open whether deserved punishment may be inflicted also for consequentialist reasons. Pragmatic punishments have the intention of merely [bringing about] the external consequence, namely to obtain for everyone what belongs to him; even though they must beforehand be as morally justified, namely as retributive punishments because conscience speaks a judgment to everyone (19:302). 27 One can do no one harm in order to bring advantage to others without him [the offender] deserving it (19:303). 28 All punishment in the state takes place certainly for correction and for an example, but it must first of all be just according to the offense itself, since it is an offense. The offender must not be able to complain of injustice (19:586). 29 In the third passage, Kant describes why the state punishes ("for correction and for an example"), but says that only such punishments as are "just according to the offense" may be inflicted. To say why the state punishes is only descriptive, so Kant is not saying that punishment ought to be inflicted for the sake of rehabilitation and deterrence. In none of these statements does Kant say that the only purpose of threatening punishment is to deter potential offenders. In the following fragments, Kant considers whether it is just to inflict punishment to deter potential offenders. One fragment says, without elaborating, "In pragmatic punishments there is no justice but only prudent punishments" (19:303). 30 This fragment only addresses punishments inflicted to deter potential offenders and not punishments threatened to deter potential offenders. 27 R7283. 28 R7289. 29 R8029. B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 193; Andreas Mosbacher (op. cit. fn. 2), 223. 30 R7286. Page 14 of 28 However, if it is unjust to inflict punishment to deter potential offenders, then it is likely also unjust to threaten such punishments to deter potential offenders. Another fragment addresses when it is just to threaten punishment in order to deter potential offenders: Punishments of threat (preventing the offense) must be greater as the temptation to offend is greater. They are however generally [gemeiniglich] for that reason less just for the individual [but] only congruous with the rights of the [other] citizens. In contrast, they [punishments of threat] can be that much smaller, when the temptation to offend is smaller. Both [cases] regard punishment only as [a] means. If one regards punishment morally according to the absolute worthlessness of humans in this deed, then punishment must be greater or smaller. The temptation [to offend] existed, but it [the punishment] did not have to be threatened as such a thing [an incentive not to offend]. There is here therefore a contradiction between the threat and the moral worthiness to be punished or also [the] punishment [itself] (19:589-590). 31 Here Kant says that the severity of the punishment required to deter someone from offending depends not on the wrongness of the offense but on the degree of temptation to offend to which a prospective offender is subjected. The greater the temptation to offend, the more terrifying the punishment must be in order to deter potential offenders. However, the strength of temptation to offend is irrelevant to the wrongness of the offense. According to Kant, inflicting whatever punishment is required for effective deterrence "generally" requires inflicting punishments more severe than what the offender deserves. This implies that punishments permitted by justice will be generally (i.e. usually) ineffective in deterring potential offenders. This passage deals only with the effectiveness of inflicting punishment in deterring future offenders. Therefore, it does not contradict the hybrid interpretation, which says that punishment 31 R8042. Andreas Mosbacher (op. cit. fn. 2), 224. Page 15 of 28 is only threatened for the sake of deterring crime. 32 However, if it is unjust to threaten punishments that it is unjust to inflict, then most of the state's threatened punishments will not be effective in deterring potential offenders. 33 That would mean that permissible threats of punishment usually do not fulfill their purpose. This would be an odd implication if the hybrid interpretation is correct. 3.2 Student lecture notes Proponents of the hybrid interpretation cite a passage from the notes taken by Gottlieb Bernhard Powalski during one of Kant's courses in 1782-1783 to support the hybrid interpretation. Powalski's notes distinguish between pragmatic punishment and moral punishment. The intentional violation of the law corresponds to punishment, [and] all punishments are either pragmatic or moral. Moral punishments punish moral evil whereas pragmatic punishments serve often only as the means to prevent another evil. Pragmatic punishments have the worth of a means. Moral punishments have an immediate [necessity and] pragmatic punishments have a mediate necessity, all moral punishments are retributive. In politics, punishments have no other necessity except in so far as they serve to prevent [abzuhalten] evil deeds. Intentional wrong fits retributive punishment. A person is punished with death not in order for him to better himself and to serve as an example to others but rather because he has committed an offense (27:150, emphasis added). 34 According to Byrd, the underlined sentence shows that Kant believes that the motivation of the threat of punishment is "clearly deterrent and not retributive." 35 The text's denials regarding retributive punishment ("A person is punished with death not in order for him to better himself and to serve as an example to others") suggest that Kant understands pragmatic punishment as 32 Byrd cites this passage to support her claim that Kant distinguishes between threatening punishment and carrying it out. B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 183 and note 105. 33 Cf. Hill, "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" Jahrbuch für Recht und Ethik / Annual Review of Law and Ethics 5 (1997): 308. 34 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 185; B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 266. Cf. Andreas Mosbacher (op. cit. fn. 2), 221. A similar passage is found in the lecture notes of Georg Ludwig Collins from 1784-1785, and it is cited by Tunick. Immanuel Kant, Vorlesungen über Moralphilosophie, in: Kants gesammelte Schriften, vol. 27, Berlin: de Gruyter, 1983, 286; Mark Tunick (op. cit. fn. 2), 63, note 12. 35 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 185. Page 16 of 28 deterrent or rehabilitative. Additionally, punishment could prevent evil deeds by incapacitating offenders. Further, Byrd and Hruschka are wrong to translate abzuhalten in this passage as "to deter." So there is no reason to take the underlined passage to be referring only to deterrence. In fact, the underlined statement is merely describing the intentions of those who actually inflict punishment. Even if the underlined statement were interpreted as normative, it would contradict what Powalski's notes say in the very next sentence ("Intentional wrong fits retributive punishment"). Further, if the underlined statement were interpreted as normative, it would contradict what Kant says in the Doctrine of Right. Kant denies in the Doctrine of Right that punishment is merely a means to bring about the prevention of crime. There Kant says that one may be punished only because one has offended and that offenders may never be punished merely as means to the ends of another (6:331). Yet the underlined statement from Powalski's notes quoted above says "In politics, punishments have no other necessity except in so far as they serve to prevent evil deeds" (27:150, emphasis added). Thus, proponents of the hybrid interpretation are mistaken in interpreting this passage as referring only to deterrence and they are mistaken in interpreting this passage as being normative. Further, even if the passage were referring to only to deterrence and were normative, it would not support the hybrid interpretation. Recall that, according to the hybrid interpretation, punishment is only threatened for the sake of deterring crime. Punishment is inflicted because it is what the offender deserves. This passage only refers to the purpose of inflicting punishment and does not discuss reasons for threatening punishment. Page 17 of 28 Two passages from notes taken by Gottfried Feyerabend during one of Kant's courses in 1784 contradict the hybrid interpretation. In the first, Feyerabend's notes say that the purpose of punishment is providing public safety and that the punishment that will secure safety is dictated by the law of retaliation: The supreme ruler...must punish in order to provide safety, and he must inflict such punishments that are adequate for the safety of the victim in future cases. He must find that out by means of the law of talion. For example, a thief robs someone of all of his property, so we must take all of his. Because he has frustrated the efforts of others to gain property, we should make it impossible for him to attain property. Therefore we ban him from working, and he is nourished like an animal. In such a way the best safety is attained (27:1390-1391). The notes say that in the case of murder, only the murderer's death secures safety: The highest ruler must provide safety, and this he can do in the case of a murderer in no other way than through his [the murderer's] death. Death is also the most terrifying [punishment] because there all hope ends. In the most terrifying prison the criminal nevertheless has hope and often gets out (27:1391). These passages contradict the hybrid interpretation in two ways. First, the claim is made that the appropriate punishment is both (1) one that secures public safety and (2) is dictated by the law of retaliation. 36 According to the hybrid interpretation, punishments are threatened for the sake of securing public safety by means of deterrence and they are inflicted for the sake of being truthful. Second, the claim is made that punishment should be inflicted in order to prevent crime as well as to conform with the law of retaliation. 3.3 Summary Passages from Kant's Reflexionen and from the lecture notes taken by his students that proponents of hybrid interpretation appeal to do not support the hybrid interpretation. In these sources, Kant never mentions a rationale for threatening punishment that is different from a 36 Kant holds that the law of retaliation demands that murderers be executed (6:332, 333). Page 18 of 28 rationale for inflicting punishment. In fact, we find in the Reflexionen and the student lecture notes Kant saying that punishment should be inflicted in order to prevent crime, which contradicts the hybrid interpretation. Not only do we find no statement of Kant's indicating that he took deterrence to be the only purpose of threatening punishment, but we find a claim that implies that most permissible threats of punishment would be ineffective in deterring future offenses. We also find the claim that the punishment that secures public safety is the one that conforms to the law of retaliation. 4. Kant's Hypothetical Scenarios in the Doctrine of Right Kant discusses two hypothetical scenarios in the Doctrine of Right that raise problems for the hybrid interpretation because Kant's proposed solution or his reasoning contradicts the hybrid interpretation. Two additional scenarios pose problems for proponents of the hybrid interpretation if their interpretation of these scenarios is correct, though I argue that their interpretation of these scenarios is not correct. 4.1 The last murderer Kant says that even if civil society were to dissolve itself, the last murderer in prison would have to be executed first: Even if civil society were to dissolve itself with the consent of all of its members (e.g. the people inhabiting an island were to decide to separate from one another and scatter themselves in all the world), they would have to first execute the last murderer in prison so that everyone is rewarded according to what his deeds are worth so that bloodguilt does not adhere to the people who did not press for this punishment: because they can be viewed as accomplices in this public injury of justice (6:333). Kant emphasizes here that offenders must be punished because they deserved to be punished, even if their punishment would not benefit society. Kant's demand that the last murderer be Page 19 of 28 executed is consistent with the hybrid interpretation in two respects. First, the hybrid interpretation is indifferent to the consequences of carrying out punishment. Second, the hybrid interpretation holds that the state has the duty to carry out its threats for non-consequentialist reasons. Byrd argues that the state's threat to punish offenders is a promise both to society to secure its safety and to punish offenders. According to Byrd, since the moral law forbids breaking promises, the state must follow through on its threats. 37 This interpretation has no textual support. Kant says nothing like this in connection with punishment. Neither of the reasons Kant gives for this judgment has anything to do with carrying out threats. First, the murderer must be executed "so that everyone receives that which his deeds are worth" (6:333). Second, the citizens would be complicit in the murder if they did not execute the murderer (6:333). Byrd ignores Kant's reasons. While Kant's first reason could be understood as following from the law of retaliation, according to the hybrid interpretation the law of retaliation only describes the manner and degree of punishment that the state is inflicting for the sake of acting consistently with its threats. The law of retaliation does not itself require punishment on this view. The hybrid interpretation also cannot accommodate Kant's second reason. Some proponents of the hybrid interpretation have argued that this second reason amounts to the demand of consistency in carrying out threats, but no basis for this interpretation can be found in the text. 38 4.2 Too many murderers 37 B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 151-158. Cf. B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 269-270. 38 Don E. Scheid (op. cit. fn. 2), 281; Mark Tunick (op. cit. fn. 2), 74-75. See section 5 below for further discussion of this view. Among proponents of the hybrid interpretation, only Hill holds that, according to Kant, punishment is inflicted because the offender deserves it. Thomas E. Hill, "Kant on Wrongdoing" (op. cit. fn. 2), 430-431. Page 20 of 28 Kant says that those who order a murder or are complicit in it deserve execution (6:334). However, he says that if the number of murderers and people who are complicit in murder is so great that losing those people could result in the state having no more subjects and dissolving itself, then the sovereign must have the power to assign a lesser sentence to preserve the population (6:334). The commutation is not granted according to public law but rather according to "a decree, that is, an act of royal prerogative [Majestätsrecht] that can be exercised only in individual cases" (6:334). This contradicts the hybrid interpretation. According to the hybrid interpretation, the state must carry out its threats of punishment because to fail to do so would be tantamount to dishonesty. 39 According to Byrd, "crime commission...is a necessary and sufficient condition for the execution of the punishment threatened, and any deviation from this equation...violates the theory of justice." 40 Byrd briefly mentions the too many murderers scenario but wrongly says Kant claims that the offenders should not be punished. 41 Others have argued that inflicting the threatened punishment would frustrate the purpose of the state's existence. 42 Were the state to dissolve, the people would return to the state of nature, where right cannot be secured. This certainly is Kant's view, but this contradicts the hybrid interpretation, which holds that the carrying out of threats of punishment cannot have any connection to the consequences of carrying it out. Proponents of the hybrid interpretation cannot 39 B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 151-158. 40 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 197. 41 Ibid., 196. There she says "Kant gives one example of not punishing the guilty for reasons of expediency in preserving the state." But Kant only proposes commuting the penalty the law imposes, not failing to punish altogether. 42 Don E. Scheid (op. cit. fn. 2), 280-281; Jean-Christophe Merle, (op. cit. fn. 2), 320. Cf. Mark Tunick (op. cit. fn. 2), 76. Page 21 of 28 argue that the threat of punishment is invalid, since from what Kant says there is no reason to believe the offense is undeterrable. He is clear that the law has been broken and that the offenders must be punished. The only question is how to punish the offenders when carrying out the prior threat of punishment would have disastrous consequences. Kant's claim that the state must not carry out the threat and his justification for this claim simply contradict the hybrid interpretation. The only way to save the hybrid interpretation from this claim would be to add an ad hoc exception that threats of punishment should not be carried out if they would destroy the state. 43 However, this would amount to abandoning the hybrid interpretation, according to which threats of punishment must be carried out to avoid the state's being inconsistent and dishonest. 44 4.3 Killings motivated by honor Kant discusses two cases of killing motivated by honor. One case involves an unmarried mother killing her newborn child to avoid dishonor. The other case involves a soldier killing another soldier in a duel who has questioned the former soldier's bravery (6:336). At first, Kant says that these deeds are "worthy of death" but that it "remains doubtful" whether the law may require the death penalty for these killings (6:335-336). The killers are misled (verleitet) in both cases by the feeling of honor (6:336). Kant discusses two reasons for not executing the killers. First, the people in these cases were in the state of nature (6:336). Kant says that society can ignore the killing of a child born out of wedlock because it has entered society illegally and thus is not part of civil society (6:336). He also says that killing someone in a duel is not murder because a duel is public and because the duelists consent to participate (6:336). Second, both killers were placed 43 See Don E. Scheid (op. cit. fn. 2), 280-281; Mark Tunick (op. cit. fn. 2), 76; Jean-Christophe Merle, (op. cit. fn. 2), 320. 44 Merle recognizes this, arguing that the shipwreck passage and the too many murderers passage mean "even the weakest retributive thesis...has no absolute validity but is subject to the realization of his [Kant's] principle of right." Ibid., 321. Page 22 of 28 in the position of either killing someone or suffering a significant harm for which the law has no remedy. The law cannot restore the honor of either the unwed mother or the duelist (6:336). 45 For these reasons, one might think that the killings are not as reprehensible as killing for a dishonorable reason (i.e. murder) and therefore do not merit the death penalty. Some commentators fail to see that the argument discussed above is one that Kant entertains but does not endorse. 46 After Kant has examined the reasons for not executing the mother or the soldier, he writes two dashes and then asks, "What is the right outcome according to criminal justice in both cases?" (6:336). He says that either (1) honor must be satisfied at the cost of being gruesome or lenient or (2) the law must declare the concept of honor as null and void (6:336). Then Kant says "The solution of this knot is: that the categorical imperative of penal justice (the unlawful killing of another must be punished with death) remains." He says "barbarous and uneducated" legislation is responsible for the discrepancy between beliefs about honor held by the people and what honor actually requires (6:336-337). Kant apparently believed that beliefs people hold about honor are the result of laws such as those allowing dueling or criminalizing having a child out of wedlock. 47 According to Kant, such laws explain why the just execution of these killers would be thought unjust by the people (6:337). Despite the appearance of injustice (to eighteenth-century Prussians), Kant nevertheless holds that killings motivated by honor must be punished with the death penalty. 45 Jennifer K. Uleman, "On Kant, Infanticide, and Finding Oneself in a State of Nature", Zeitschrift für philosophische Forschung, 54, 2000, 175-176. 46 J. G. Murphy, "Kant's Theory of Criminal Punishment", in: Retribution, Justice, and Therapy, Dordrecht: Reidel, 1979, 90; Ottfried Höffe, "Vom Strafund Begnadigungsrecht", in: Immanuel Kant, Metaphysische Anfangsgründe der Rechtslehre, Berlin: Akademie, 1999, 226; David Sussman, "Shame and Punishment in Kant's Doctrine of Right" The Philosophical Quarterly, 58, 2008, 303. Jennifer Uleman correctly interprets Kant's remarks on the duelist and the unwed mother. Jennifer K. Uleman (op. cit. fn. 45), 177, 194. 47 See Ibid., 177-180. Page 23 of 28 My interpretation of this passage poses no problem for the hybrid interpretation, though according to the common misinterpretation it contradicts the hybrid interpretation. Byrd seems to think that Kant made an exception because "honor was more highly valued than life," thus tacitly admitting that it contradicts the hybrid interpretation. 48 Mark Tunick says of the unwed mother and the duelist: "Kant would say that their actions should not be regarded as crimes," because the killings were undeterrable. 49 On this view, the duelist and the unwed mother value honor more than life, so it is not possible to deter them from killing by threatening them with execution. However, as Kant said in relation to the shipwreck scenario, threats of punishment that cannot possibly deter the offense are invalid. Tunick's interpretation would not explain why Kant supposedly says that the killings are punishable (though not with the death penalty) despite the supposed fact that the killings were undeterrable (6:336). 5.4 Summary of the textual evidence that contradicts the hybrid interpretation The hybrid interpretation can explain Kant's solution in the last murderer scenario, but not his reasons. It also cannot explain Kant's solution in the too many murderers scenario. It can explain Kant's solution in the scenarios of killings motivated by honor, though not if Kant's solution is misinterpreted. 5. The Retributivist Side of the Hybrid Interpretation The hybrid interpretation rests on the evidence referred to above in 2.1 and 2.2, which I have shown to be weak. A number of passages contradict the hybrid interpretation (see 2.3, 4.1, 4.2 above). This puts proponents of the hybrid interpretation in an untenable position: the 48 B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 200. 49 Mark Tunick (op. cit. fn. 2), 75-76. Page 24 of 28 interpretation has only weak support and it is contradicted by multiple passages. But this is not all. In this section I will argue that the retributivist side of the hybrid interpretation is not supported by the text and that the retributivist passages in the Doctrine of Right contradict the hybrid interpretation. The hybrid interpretation's explanation of why threats of punishment must be inflicted is as follows. Contrary to what Tunick says, both Scheid and Byrd have an explanation for why, according to Kant, the state must punish offenders. 50 According to Scheid, for the state to fail to execute a threat of punishment would be to be inconsistent. 51 According to Byrd, the state must execute its threat to punish offenders because it has the duty to be truthful. 52 The state's threat of punishment is a promise of safety to non-offenders and a promise of punishment to offenders. 53 One has the duty to keep one's promises because to not keep one's promises is to lie. 54 Byrd says, "Because the liar thus always acts contrary to the condition that is constitutive for every society of humans, civil society, understood as the expression of the collective-general will, firstly is not permitted to lie." 55 The state is permitted to threaten punishment because that form of coercion is a justified means of securing public safety, but for the state to deceive contradicts a necessary condition of any society. 56 To not inflict threatened punishment is comparable to 50 Mark Tunick (op. cit. fn. 2), 71. 51 Don E. Scheid (op. cit. fn. 2), 281. 52 B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 152-153. Byrd cites Immanuel Kant, Über ein vermeintes Recht aus Menschenliebe zu lügen, in: Kants gesammelte Schriften, vol. 8, Berlin: de Gruyter, 1983, 428 to support the claim that truthfulness is an unconditional duty. B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 153, note 68. 53 Ibid. (op. cit. fn. 2), 157. 54 Ibid., 152. Byrd cites Immanuel Kant, Grundlegung zur Metaphysik der Sitten, in: Kants gesammelte Schriften, vol. 4, Berlin: de Gruyter, 1983, 403. B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 152, note 66. 55 B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 153. 56 Ibid., 153-154. Page 25 of 28 breaking a promise, and this would amount to using a person merely as a means. 57 This reasoning is quite odd. Since there is no evidence that Kant adopted this view, and since he endorsed other justifications for inflicting punishment, there is no reason to attribute this view to Kant. 58 Byrd and Hruschka cite a passage from the lecture notes taken by Johann Friedrich Vigilantius in one of Kant's courses in 1793 in support of the view that the state would contradict itself if a threat of punishment were not carried out. 59 If there were punishments that could be threatened insincerely by the legislator, it would be the threat of punishment such as, e.g. the theologians assume in the case of eternal divine punishment, [when the threats would] be the means to prevent [abzuhalten] people offending; at the same time however the punishment itself , because the full execution is not thereby connected, at the same time, would be a ruse, which one can never assume (27:554). Contrary to what Byrd and Hruschka say, this does not mean that insincere threats are impermissible. 60 It only means that one may be wrong when one assumes that a threat of punishment is insincere, making it unjustified to assume that any given threat of punishment is insincere. This passage does not support Byrd and Hruschka's claim that Kant believed the state must carry out its threats of punishment in order to avoid contradicting itself. The hybrid interpretation's retributivist side also conflicts with Kant's explanation for why the state must carry out its threats of punishment. Kant gives three reasons for why offenders must be punished. 57 Ibid., 154. 58 Arthur Ripstein objects that the state's failure to carry out its threat of punishment "could only be a personal failing on the part of the sovereign." Arthur Ripstein, "Hindering a Hindrance to Freedom" Jahrbuch für Recht und Ethik, 16, 2008, 248, note 31. 59 B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 268-270. 60 Ibid., 268. Page 26 of 28 First, offenders deserve to be punished. Kant says in his discussion of the last murderer scenario that the offender must be executed "so that everyone receives what his deeds are worth" (6:333). 61 How does one determine what an offense is worth, that is, how does one determine which punishment is required for an offense? Kant says that the only a priori criterion for determining the appropriate punishment is the law of retaliation (6:362-363). 62 It is evident from Kant's examples that the law of retaliation prohibits punishment that is too severe as well as demands that punishment be sufficiently severe (6:331-334). Kant is quite clear when he describes the law of retaliation in terms of "the principle of equality, (the position of the needle on the scales of justice) not to incline more to one side than to the other" (6:332). Despite this clarity, proponents of the hybrid interpretation take the law of retaliation to be only a limit on the severity of punishment. 63 Second, Kant says that if the people do not press for the punishment of an offender, they are complicit in the offense and hence share the guilt: "the last murderer in prison would have to be executed...so that... bloodguilt does not adhere to the people who have not pressed for this punishment: because they can be regarded as accomplices in this public offense against justice" (6:333). Kant does not elaborate on this reasoning. 61 Hill denies that Kant believes that offenders intrinsically deserve to be punished. Thomas E. Hill, "Kant on Wrongdoing" (op. cit. fn. 2), 429. Hill understands desert in this context to refer to the punishment prescribed by the law. Ibid., 434. 62 Scheid claims that Kant makes no attempt to justify the law of retaliation. Don E. Scheid (op. cit. fn. 2), 274. But Kant's claim here is an attempt to justify the law of retaliation. 63 Don E. Scheid (op. cit. fn. 2), 272-273; B. Sharon Byrd, "Kant's Theory of Punishment," (op. cit. fn. 2), 183-184; B. Sharon Byrd, "Strafgerechtigkeit bei Kant," (op. cit. fn. 2), 149-151, 157-158; B. Sharon Byrd/Joachim Hruschka (op. cit. fn. 2), 274. Page 27 of 28 Third, we impute to an offender's reason the demand that offenders be punished (6:334-335). Kant says that an offender is a co-legislator (Mitgesetzgeber) of the laws, is subordinate to the laws, and has chosen a punishable act (6:335). So, it follows from one's beliefs that one must be punished, even if one does not will that oneself be punished. Kant says "it is the pure rightful legislating reason in me" that sets up the criminal law that demands that offenders be punished, but it is "another person...along with all others in a civil union that subordinate themselves to the criminal law" and that is capable of violating it (6:335). Kant calls pure rightful lawfully legislating reason the homo noumenon, and he calls the person who is capable of breaking the law the homo phaenomenon (6:335). So, reason dictates that one assent to the laws, and therefore that offenders must be punished. One chooses to offend, leading to reason's demand that the offender be punished. 64 We can impute this demand to the offender's own reason (homo noumenon), although we must admit that the offender himself (homo phenomenon) will not and actually cannot consent to be punished (6:335). Proponents of the hybrid interpretation do not recognize that these three retributivist rationales that Kant gives for the state punishing offenders conflict with the consistency/truthfulness rationale which Kant that never stated. This is reason enough all on its own to abandon the hybrid interpretation. 6. Conclusion The passages that support the consequentialist side of the hybrid interpretation provide only weak support. Some passages contradict the hybrid interpretation's claim that punishment 64 Cf. Wolfgang Naucke, Kant und die psychologische Zwangstheorie Feuerbachs, Hamburg: Hansischer Gildenverlag/Joachim Heitmann & Co., 1962, 35. Page 28 of 28 should not be carried out for consequentialist reasons. The retributivist side of the hybrid interpretation has no textual support. In fact, the hybrid interpretation ignores Kant's explanation for why offenders should be punished. Therefore, the hybrid interpretation should be abandoned.