Justice is a term that is quite frequently used and preached in the lives of humans as individuals and also as societies and nations.[1] Aristotle observed that man is noblest among all animals and when devoid of law and justice behaves the worst. It is the most cherished goal of human existence. The empire of justice from antiquary attracts conflicting ideas having its own justification.
Though abstract, justice has a great significance for its seekers as that of freedom for the revolutionaries without knowing what it really is. It cannot be defined empirically. It is mostly a subjective concept which depends upon the experience of the individual being.
From a legal perspective, a jurist can explain what the law of land is and follow it would be just. But for Emmanuel Kant law must be metaphysical, derived from reason and they must be universal, certain and well-conditioned.
The concept of Justice must spring from necessity while such necessity is determined by reason. It applies only externally to the practical relationship of one person to another. It applies only to the will of individuals, not its wishes or desires. The Universal Principle of Justice suggests an action to be just must coexist with the freedom of everyone in accordance with universal law.
In the words of Winston Churchill,
“All the great things are simple, and many can be expressed in a single word: freedom, justice, honour, duty, mercy, hope.”[2]
As it all aims at wider interpretation as it’s all subjective and may vary to person to person. The thing which makes it simple also makes it complex. For an Individual to define it is simple but to achieve consistency, in general, makes it complex.
Justice as per Immanuel Kant
“Justice is an aggregate of those conditions under which the will of one person is conjoined with the will of another in accordance with a universal law of freedom”[3]
Immanuel Kant, a German philosopher, dazzled the foundations of western philosophy by his ideals in the late eighteenth and nineteenth century. Philosophy and anthropology were the main areas of his research. His findings had worked and are still working as a thoughtful insight for the upcoming researchers. Kant has emphasized much on the concept of justice. This paper investigates the Kant’s concept of justice but with a different angle. This writing will target Kant’s theory of punishment which according to Kant serves as the basics for a just society. Justice means fair and just, it is a concept of moral righteousness based on the principles of equality and ethics and is hooked with the term punishment, if there is a breach of stated ethics. Justice and punishment are interrelated. For justice to prevail in a society punishment is an essential concept for the violators of justice. Punishment is the infliction or imposition of penalty as retribution for an offence.
According to Kant, retribution is the basis for punishment. Retribution is the payback or more appropriately, it is a fairly deserved penalty. Kant is of the view that wrongdoers are not just deserved to be punished, but they, in fact, must be punished. One, who murders, deserves to die. So, in simple words, the death penalty is retribution. Kent has stressed the idea of justice through the retributive theory of punishment. The simple logic behind Kant’s idea is the fact that it is unfair to punish people for “utilitarian reasons”. Utilitarian justice means looking at the overall welfare of all the relevant individuals. Punishment is a bad treatment but punishing for maximization of welfare is a justified argument. It is justified to punish in order to bring about a positive change in society, regardless of the fact whether the severity of punishment matches the crime or not. Sometimes a soft tilted punishment for a severe crime can bring welfare changes for the whole society. [4]
Kant opposes this idea and based his concept of justice on retribution, payback or in other words, he believes in the principle of an eye for an eye. He regards punishment as a matter of justice. He is of the view that if guilty are not punished, justice is not done. Punishment must always be in response to guilt and if the guilty are not punished the two basics of law that is equality and justice will not be entertained. Kant’s theory of punishment focuses on the principle of equality that is the pain inflicted on the criminals should be equal to the pain inflicted on the victim. He is of the view that if a criminal is punished in order to protect society or set an example (utilitarian justice), it is wrong.
Schools of Retribution theory
There are two ways of looking at this concept of Kant. One school of thought of suggests that it is appropriate and fair to adopt a retributive approach in the society in order to prevail justice because if there is no justice there is, in fact, no society. But, there is another school of thought related to this concept which supports the utilitarian approach as opposed to Kant’s approach. The ultimate goal of justice is to make a better society. Sometimes punishment may also create chaos and unrest in society, though justice is done. Secondly, people need to clearly understand the concept of retribution because they may intermingle the two terms that is revenge and retribution, which can be extremely critical for the sound health of a society.
Holtman argues that Kant’s political philosophy provides a general framework for tackling contemporary ethical and social challenges. “I’m not a historian,” she remarks, “but rather a moral and political philosopher, approaching Kant’s writings from that angle.”[5]
Kant’s Moral Foundation[6]
Where some scholars perceive a tension between Kant’s moral and political writings, Holtman instead sees a close connection. “Kant’s moral theory is the foundation that informs his political theory,” she says. But Holtman is quick to emphasize that Kant’s political philosophy is not a straightforward derivation from the moral philosophy but rather a kind of “construction” therefrom.
In the moral philosophy, Holtman explains, Kant conceives of persons as free moral agents, endowed with the capacity to make decisions independently of external causal forces and their own desires. Such agents are, for Kant, both equal and autonomous: equal in the sense that they each possess the same worth or dignity, and autonomous in that they are capable of self-legislating the moral law, committing themselves to what they recognize as universal, rational constraints on their own action.
Undermined and Underdetermined
But, as Kant recognized, this conception of persons as free, equal, and autonomous moral agents gives rise to complications when the persons in question are human beings. “There are many contexts in which I have to act not only as a rational agent,” explains Holtman, “but as a human rational agent.” Kant’s political theory can be seen as an attempt to grapple with and resolve the complications that arise in applying the moral theory to human agents.
What are these complications? As Holtman elaborates, they include cases in which human rational agents may adopt reasonable, moral principles of action that nonetheless come into conflict with one another, undermining the freedom, equality, and autonomy of other agents. Holtman gives the example of choosing to walk on one or another side of the road: One might reasonably adopt the rule of action that she will always walk on the right-hand side of the road. But, equally reasonably, one might opt to always walk on the left-hand side of the road. “Though each human being has adopted reasonable principles of action,” says Holtman, “it won’t be long until they come smacking into each other.” Holtman describes these kinds of cases—in which equally reasonable rules of action conflict with one another—as instances of underdetermination: each individual human agent simply adopting reasonable rules for their own behaviour fails to ensure, or determine, the moral cohesion of society. These rules, like the individuals adopting them, can quickly come smacking up against one another.[7]
Circumstances of Justices
It’s in these kinds of circumstances that problems of justice arise when one person’s exercising her moral agency undermines the agencies of others. “It’s not good enough for us to simply act on the basis of our moral capacities,” says Holtman, “so we are going to have to find some way of structuring our interactions so we can do the best job we can to mitigate agency being undermined.” For Kant, the task of structuring our interactions in this way falls to political institutions, through which we conceive of our fellow citizens as free, equal, and independent. “In Kant’s political philosophy,” Holtman elaborates, “the legal system is the framework of coordination through which citizens take each other into account in this way. The laws that are morally legitimate for Kant are those under which we could think of ourselves as free, equal, and independent citizens, voting unanimously to commit to them and make them our own.”[8]
Many Ways of Going Right
But how do we construct a legal system under which we conceive of ourselves and others as free, equal, and independent? Contrary to what some scholars think, Holtman maintains that Kant doesn’t provide any definite answers to this question. Kant, according to Holtman, is not so much “laying down the law” as he is illustrating in broad strokes what the law must address. “There might be many ways of going right,” Holtman explains. “Kant is not telling us what the laws should be, but rather what laws have to take into account, namely the things that cause us to come bumping up against each other in the world.”
Holtman’s interpretation sheds light on Kant’s discussion of property and freedom of contract; though often upheld or reviled as an early proponent of property rights, Holtman argues that Kant’s discussion of property and freedom of contract is not an attempt to draw concrete normative conclusions, but rather to explore their conceptual nature. “We need to understand the conceptual nature of property and contract before we can understand the problems to which these things give rise and what kinds of solutions would appropriately take the agency into account,” Holtman explains. “The part of Kant’s writing concerning property and freedom of contract is better to read, not as a libertarian or classical liberal argument, but as a kind of conceptual analysis to get clear on what’s at stake.”[9]
Applying Kant’s Theory Today
Thus, Holtman sees Kant’s political philosophy, not as an attempt to prescribe specific laws, but rather as a general framework of principles for determining what counts as justice. “What counts as justice doesn’t change,” says Holtman, “but how we realize justice will vary over time and in different circumstances.” But how do we realize justice today on the theory of justice Holtman attributes to Kant? It’s a question that Holtman seeks to answer, applying Kant’s theory of justice to issues that Kant himself never considered, such as civic virtue, the prison system, and the death penalty. Applying the general principles of Kant’s theory of justice to these issues, Holtman believes one comes away with a conception that is not antiquated but productive and laudable. Far from a mere artefact of the eighteenth century, Kant’s political writings offer, according to Holtman, an appealing theory for grappling with twenty-first-century problems.
Kant’s concept of Punishment
According to him, “an act defying justice is irreconcilable, judicial punishment can never serve merely as a way to further another good, whether for the wrongdoer himself or for the society, but must always be inflicted on him for the sole reason that he has committed an offence. The law of punishment is a categorical necessary. “Kant gave the following example: even if a community of citizens dissolves with the consent of every member (e.g. the inhabitants of an island decide to separate and spread all over the world), they must first execute the last murderer in the prison so that everyone gets what is his due according to his deeds.[10]
Kant Concept of Right
Kant divided rights into two basic types: innate and acquired. An innate right is a natural right that we are born within the virtue of our rational and volitional nature, or what Kant sometimes called our “humanity.” There is only one basic innate right: the right to freedom. “Freedom (independence from the constraint of another’s a will), insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity”
By “innate” Kant did not mean that the right to freedom is an attribute that we are born with, like fingers, toes, and other physical characteristics that can be observed by the senses. Rather, we know we have rights through the exercise of “pure reason” (or “pure practical reason,” when reason is applied to the realm of human action). When we understand that humans are morally autonomous agents who must choose to be guided by rational moral principles rather than being determined by our desires, we will also understand that freedom is essential to our exercise of moral autonomy, and that to be forced by others to make the choices they think we should make is a fundamental violation of our moral autonomy.
Kant was making another significant point in the passage quoted above. He was attempting to show why the right to freedom does not include the “freedom” to violate the rights of other people. Indeed, to claim any such right is a contradiction in terms. Why? Because the right to freedom is a universal principle that applies to every rational agent, and to defend a supposed “right” to violate rights would undercut this universal principle at its very foundation and ultimately reduce it to absurdity. For Kant (as I explained previously), to claim that I have a right is simultaneous to claim that I have a right to use force in defence of my freedom; in using force in this defensive manner I am attempting to remove “a hindrance or opposition” to my rightful freedom. But to claim a “right” by others to violate my right would be to claim that I have a duty not to enforce my right, and any such claim would destroy what is meant by “a right” in the first place.
When Kant affirmed freedom as the fundamental right of rational agents, we must always keep in mind that he meant a “freedom” that is consistent with his Categorical Imperative, i.e., a right to freedom that can be attributed equally to every individual, a freedom that can be exercised by every person simultaneously without generating conflict. This is why force used to protect our right to freedom is morally justifiable, whereas force used to violate our right to freedom amounts to nothing more than mere “violence.” Any alleged “right” to restrict the legitimate freedom of others would inject an ineradicable conflict into rights theory and is ruled out of court for that reason alone. To forbid, by legal means, the “freedom” to violate rights is, therefore “consistent with freedom according to universal laws [of justice].”
Kant identified three corollaries of his theory of justice.[11]
First, justice is concerned only with external actions by which one person can influence other people, whether directly or indirectly. Second, justice is not concerned with the desires, wishes, or needs of other people. These matters pertain to the voluntary virtues of benevolence and charity, whereas justice is concerned with whether or not we respect the equal freedom of others to live their lives as they see fit. Third, justice is concerned solely with the form of interpersonal relationships, not with their content. Thus if I purchase a commodity from a shopkeeper, justice is satisfied if the form of that relationship is voluntary. Whether the shopkeeper hopes to profit from the transaction, or how much he actually gains—these and similar issues pertain to the content of the transaction and do not fall within the purview of justice.
Kant, as we have seen, attempted to ground justice (as expressed in terms of individual rights) in the moral autonomy of rational agents. This approach distinguished Kant from the many classical liberals who attempted to justify the rules of justice by appealing to their social utility. According to David Hume and similar thinkers, the rules of justice are justified because they are essential to maintaining social order and prosperity—a lesson that we learn from experience. Kant, in stark contrast, appealed neither to social utility nor to experience in his justification of rights and justice. Instead, our basic right to freedom can be justified by pure practical reason without recourse to empirical observations about the social utility of this right. The right to freedom flows logically from our nature as rational, morally autonomous agents. The social benefits that accrue from respecting rights are a consequence, not a primary justification, of our right to freedom of action.
In this respect, Kant’s justification of rights was quite similar to that defended by Ayn Rand. Another similarity may be found in Rand’s statement: “Any alleged ‘right’ of one man, which necessitates the violation of the rights of another, is not and cannot be a right,”[12]
In addition, Rand and Kant agreed that physical force and fraud are the two basic methods by which rights can be violated and that only retaliatory force (force used in defence of rights) is justified. Kant would have agreed wholeheartedly with this characterization of rights by Rand:
Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbours, his rights impose no obligations on them except a negative kind: to abstain from violating his rights. [13]
Of course, these and other similarities between Kant and Rand should not be pushed too far; there are significant differences as well. But one other similarity is worth mentioning, namely, the stress that both philosophers placed on private property rights in external goods. According to Rand, “Without property rights, no other rights are possible.” Kant discussed property rights in more detail than Rand did, and at times his defence may seem convoluted to the modern reader. But the following summary by Howard Williams accurately indicates the importance that Kant attributed to property rights.[14]
Kant comes to identify the institution of the property with freedom because he sees it in a fundamental sense as an extension of the self. An object which is, he argues, my property belongs solely and exclusively to myself, and it is my right to consume or use it in whatever way I please. Indeed, so strongly does the individual feel about his ownership, Kant thinks, that if somebody takes it without his consent they harm the individual just as much as though they had injured his body. From this point of view, the individual has every justification in feeling as upset about the theft of a favourite book as he has about a bruised knee. To threaten the individual’s property, in the sense of its being an extension of the self, prejudices not only his feeling of well-being but also his very existence.[15]
Conclusion
Immanuel Kant distinguished justice from other moral principles by noting that the rules of justice pertain exclusively to external actions and do not depend on virtuous motives for their fulfilment. It is primarily for this reason that only the rules of justice can properly be the subject of human (or “positive”) legislation. We cannot compel others to be virtuous, since virtue presupposes a free act of the will; but we can rightfully compel others to observe the rules of justice and punish those who violate rights.[16]
Now, everything that is unjust is a hindrance to freedom according to universal laws. Coercion, however, is a hindrance or opposition to freedom. Consequently, if a certain use of freedom is itself a hindrance to freedom according to universal laws (that is, is unjust), then the use of coercion to counteract it, inasmuch as it is the preservation of a hindrance to freedom, is consistent with freedom according to universal laws; in other words, this use of coercion is just. It follows by the law of contradiction that justice [a right] is united with the authorization to use coercion against anyone who violates justice [or a right].[17]
A republican and representative State is the ideal State. Only the united will of all can institute legislation. Law is just only when it is at least possible that the whole population should agree to it. Kant was in favour of the separation of powers and was opposed to privileges of birth, an established church and autonomy of corporations. He was in favour of free speech. The function of the State was essentially that of protector and guardian of that law.[18]
[1] Kant, I., & Ladd, J. (1999). Metaphysical elements of justice: part 1 of the metaphysics of morals, Hackett Publishing 2nd edition.p.29
[2] Winston Churchill Quotes. (n.d.). BrainyQuote.com. Retrieved May 10, 2020, from BrainyQuote.com Web site: https://www.brainyquote.com/quotes/winston_churchill_156910
[3] Kant, I., & Ladd, J. (1999). Metaphysical elements of justice: part 1 of the metaphysics of morals, Hackett Publishing 2nd edition.p.30
[4] [4]Mahajan V. D, Jurisprudence and Legal Theory, EBC, Lucknow, 5th edn,2019, page no-612
[5] Kant, I., & Ladd, J. (1999). Metaphysical elements of justice: part 1 of the metaphysics of morals, Hackett Publishing 2nd edition.p.36
[6] Kant, I., & Ladd, J. (1999). Metaphysical elements of justice: part 1 of the metaphysics of morals, Hackett Publishing 2nd edition.p.37
[7] Kant, I., & Ladd, J. (1999). Metaphysical elements of justice: part 1 of the metaphysics of morals, Hackett Publishing 2nd edition.p.37
[8] https://cla.umn.edu/philosophy/news-events/story/kant-s-theory-justice,21/04/20,14:52
[9] https://cla.umn.edu/philosophy/news-events/story/kant-s-theory-justice,21/04/20,14:56
[10] Mahajan V. D, Jurisprudence and Legal Theory, EBC, Lucknow, 5th edn,2019, page no-510
[11] Rand Ayn, The virtue of selfishness: a new concept of egoism, New York singlet publication 2019, pg no-94
[12] Rand Ayn, The virtue of selfishness: a new concept of egoism, New York singlet publication 2019, pg no-96
[13] Rand Ayn, The virtue of selfishness: a new concept of egoism, New York singlet publication 2019, pg no-94
[14] Kant’s Political Philosophy, St. Martin’s Press, 1983, p. 79
[15] https://www.libertarianism.org/columns/immanuel-kants-theory-justice
[16] [16]Mahajan V. D, Jurisprudence and Legal Theory, EBC, Lucknow, 5th edn,2019, page no-512
[17] The Metaphysical Elements of Justice: Part I of the Metaphysics of Morals, trans. John Ladd, Bobbs-Merrill, 1965. pp, 35-6.
[18]Mahajan V. D, Jurisprudence and Legal Theory, EBC, Lucknow, 5th edn,2019, page no-513
