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An affair of honor and the darkness of hell

Notes on Immanuel Kant, The Philosophy of Law (1796)

There are, however, two crimes worthy of death, in respect of which it still remains doubtful whether the Legislature have the Right to deal with them capitally.

And since they cannot be dealt with “capitally,” they cannot, on Kantian terms, quite be seen as murder.

It is the sentiment of Honour that induces their perpetration. The one originates in a regard for womanly Honour, the other in a regard for military Honour; and in both cases there is a genuine feeling of honour incumbent on the individuals as a Duty. The former is the Crime of Maternal Infanticide (infanticidium maternale); the latter is the Crime of Killing a fellow-soldier in a Duel (Commilitonicidium). Now Legislation cannot take away the shame of an illegitimate birth, nor wipe off the stain attaching from a suspicion of cowardice, to an officer who does not resist an act that would bring him into contempt, by an effort of his own that is superior to the fear of death.

Hamilton-Burr duelWhy does “cowardice” loom so large in his pantheon of raisons d’être? And not in hers? Or does it? Is it called by another name? It is not quite “honor.” That word is a generous but feeble attempt to fit a masculine obsession with justification in one’s own eyes and in those of others to her case. (Dr. Johnson’s suggestion that honor means “chastity” to a woman captures only the external aspect of the idea, which may explain why Virginia Woolf limited the shock of one of her female characters on hearing of its compromise to only ten minutes.)

Hence it appears that in such circumstances, the individuals concerned are remitted to the State of Nature; and their acts in both cases must be called Homicide, and not Murder, which involves evil intent (homicidium dolosum).

Kant is right here to sense, however imperfectly, that maternal infanticide cannot fall within the purview of what we normally term “murder.”

In all instances the acts are undoubtedly punishable; but they cannot be punished by the Supreme Power with death.

Infanticide in the GangesThey may indeed be acts of some enormity but not of a sort that our institutions can fully comprehend with requisite understanding. Not only are they not capital acts, it is difficult to see how they might call for external punishment to any degree. The moral here should be to manage their conditions, to regulate the forces that drive them. Retribution is singularly inappropriate. They are related to suicide and, notwithstanding Kant’s contorted views on that subject, they reveal the seams of a moral fabric woven from two threads. Kant implicitly identified the two threads (masculine and feminine) without, it seems, fully realizing their significance.

An illegitimate child comes into the world outside of the Law which properly regulates Marriage, and it is thus born beyond the pale or constitutional protection of the Law. Such a child is introduced, as it were, like prohibited goods, into the Commonwealth, and as it has no legal right to existence in this way, its destruction might also be ignored; nor can the shame of the mother when her unmarried confinement is known, be removed by any legal ordinance. [Kant seems to acknowledge the legal embarrassment.] A subordinate Officer, again, on whom an insult is inflicted, sees himself compelled by the public opinion of his associates to obtain satisfaction; and, as in the state of Nature, the punishment of the offender can only be effected by a Duel, in which his own life is exposed to danger, and not by means of the Law in a Court of Justice. The Duel is therefore adopted as the means of demonstrating his courage as that characteristic upon which the Honour of his profession essentially rests; and this is done even if it should issue in the killing of his adversary. But as such a result takes place publicly and under consent of both parties, although it may be done unwillingly, it cannot properly be called Murder (homicidium dolosum).—What then is the Right in both cases as relating to Criminal Justice? Penal Justice is here in fact brought into great straits, having apparently either to declare the notion of Honour, which is certainly no mere fancy here, to be nothing in the eye of the Law, or to exempt the crime from its due punishment; and thus it would become either remiss or cruel. The knot thus tied is to be resolved in the following way. The Categorical Imperative of Penal Justice, that the killing of any person contrary to the Law must be punished with death, remains in force; but the Legislation itself and the Civil Constitution generally, so long as they are still barbarous and incomplete, are at fault. And this is the reason why the subjective motive-principles of Honour among the People, do not coincide with the standards which are objectively conformable to another purpose; so that the public Justice issuing from the State becomes Injustice relatively to that which is upheld among the People themselves.

[We are directed to see Supplementary Explanations, V., below]

V. Addition to the Explanation of the Conceptions of Penal Right.

The mere idea of a political Constitution among men involves the conception of a punitive Justice as belonging to the supreme Power. The only question, then, is to consider whether the legislator may be indifferent to the modes of punishment, if they are only available as means for the removal of crime, regarded as a violation of the Security of property in the State; or whether he must also have regard to respect for the Humanity in the person of the criminal, as related to the species; and if this latter alternative holds, whether he is to be guided by pure principles of Right, taking the jus talionis as in form the only à priori idea and determining principle of Penal Right, rather than any generalization from experience as to the remedial measures most effective for his purpose. But if this is so, it will then be asked how he would proceed in the case of crimes which do not admit of the application of this Principle of Retaliation, as being either impossible in itself, or as in the circumstances involving the perpetration of a penal offence against Humanity generally. Such, in particular, are the relations of rape, pæderasty, and bestiality. The former two would have to be punished by castration (after the manner of the white or black eunuchs in a seraglio), and the last by expulsion for ever from civil society, because the individual has made himself unworthy of human relations. Per quod quis peccat per idem punitur et idem. These crimes are called unnatural, because they are committed against all that is essential to Humanity. To punish them by arbitrary penalties, is literally opposed to the conception of a penal Justice. But even then the criminal cannot complain that wrong is done to him, since his own evil deed draws the punishment upon himself; and he only experiences what is in accordance with the spirit, if not the letter, of the penal Law which he has broken in his relation to others.

Every punishment implies something that is rightly degrading to the feeling of honour of the party condemned.

An abortion cannot be punished because no woman could feel that her honor as a woman would suffer more degradation or humiliation by the punishment than she should have already suffered in giving up the child—had she any conception of “honor” at all. [Editor’s note: Luno quite deliberately fails to draw a distinction between abortion and infanticide.]

For it contains a mere one-sided compulsion. Thus his dignity as a citizen is suspended, at least in a particular instance, by his being subjected to an external obligation of duty, to which he may not oppose resistance on his side. Men of rank and wealth, when mulcted in a fine, feel the humiliation of being compelled to bend under the will of an inferior in position, more than the loss of the money.

Why it is sometimes suggested that certain prominent white collar criminals do not require the same harsh sort of treatment usually in store for street miscreants, other things, such as the suffering they cause, being equal, for example. So Kant is saying that punishment needn’t follow quite so slavishly on the crime as per quod quis peccat per idem punitur et idem might suggest.

Punitive Justice (justitia punitiva), in which the ground of the penalty is moral (quia peccatum est), must be distinguished from punitive Expediency, the foundation of which is merely pragmatic (ne peccetur) as being grounded upon the experience of what operates most effectively to prevent crime. It has consequently an entirely distinct place (locus justi) in the topical arrangement of the juridical conceptions. It is neither the conception of what is conducible to a certain effect (conducibilis), nor even that of the pure Honestum, which must be properly placed in Ethics.

The suggestion is that consequentialist considerations may have a role in precisely these cases where pure ethics is at an impasse. But utility is not, as retribution is, bound by pain-inducing remedies. Action of some sort may be called for—public policy may demand it, but not punishment, per se. Utilitarianism is, properly speaking, not an ethical theory, but a strategy for deploying the props of moral theatre (a concept that implies an audience), and here, for once, it threatens to be useful.

But there is something else going on here that is more specifically related to maternal infanticide: still another level of misapplication. Even Kant must sense that the existential content of the situation for a woman in these circumstances is beyond the ken of any masculine conception of justice or morality.

Andrea Yates (Reuters)Andrea Yates drowned her five children in 2001, believing she was saving them from hell. She probably was. The legal system, after first convicting her, later found her not guilty by virtue of insanity. Whatever the validity of postpartum depression or other insanity defenses, the point here is that the taking of life by a woman* is not on the same moral plane as when it is done by a man. The system groans under the weight of the pretence that it is.

[*Editor’s note: Luno argues the general claim, extending beyond infanticide, elsewhere. It is, of course, legal fallout from his overarching theory of moral bifurcation. See also Mommy has a licence to kill, Kant said so and all posts under abortion.]

Posted by luno in motherhood, philosophy and sex, abortion, sex differences, Utilitarianism, Deontology, Kant (Thursday December 21, 2006 at 12:41 pm)
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