Lawernce KenemoreDurand Dickerson
Aspects of Law Not Based on Morality
Retributivist theory holds not only that criminal guilt is requiredfor punishment, but that the appropriate type and amount of punishmentis also determined by the crime itself. Traditionally this is theheart of the ancient injunction “an eye for an eye”. Kantsupports this measurement for punishment because all othermeasurements bring into consideration elements besides strict justice(6:332), such as the psychological states of others that would measurethe effectiveness of various possible punishments on deterrence. As aprinciple, retribution grounds but does not specify the exactpunishment. Kant recognizes that “like for like” is notalways possible to the letter, but believes that justice requires thatit be used as the principle for specific judgments of punishment.
Although it is a morality play it is not in the traditional format.
In fact, Kant did believe that the French Revolution was legitimate,and a look at his argument illuminates some of his complexterminology. The French king possessed sovereignty until he convenedthe Estates General as representative of the people, at which timesovereignty “passed to the people” even though the kinghad intended for the assembly to resolve specific problems and thenreturn the reins of power to him (6:341–2). Further, the kingcould not have any power to restrain the actions of the assembly as acondition for it being given the sovereign power, for there can be norestrictions on this sovereign power. This understanding ofsovereignty shows the difference between a rebellion against authorityand peaceful transfer of sovereign power such as an election. In anelection, sovereignty is passed back to the people, so there isnothing wrong with the people replacing the entire government. Withoutan election (or similar method of designating the return ofsovereignty to the people), any action aimed at replacing thegovernment is wrong.