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\title{Philosophy and Public Affairs, Paper \#4}
\author{Greg Hudson}
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Thesis: Bentham's and Kant's claims give similar conditions on
punishment for it to be appropriate, but the ways in which Bentham and
Kant would justify their claims are very different.
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In this essay, I will discuss the similarities and differences between
Bentham's statement that punishment should not be admitted in cases
where ``there has never been any mischief''\footnote{Jeremy Bentham,
{\em An Introduction to the Principles of Morals and Legislation},
excerpted in Jeffrie G. Murphy, ed., {\em Punishment and
Rehabilitation}.  2nd ed.  Belmont: Wadsworth, 1985.  p. 58.} and
Kant's statement that punishment should be inflicted on a criminal
``only {\em because he has comitted a crime}''\footnote{Immanuel Kant,
``On the Right to Punish and to Grant Clemency'', {\em The Metaphysics
of Morals}, tr. Mary Gregor, Cambridge University Press: New York,
1991.  (Originally Published 1797.)  p. 140}.  I will also contrast
the way Bentham and Kant would justify their claims.

The claims are both negative positions.  In context, both claims state
when it is inappropriate to punish a person, not when a person should
be punished.  We could comply with either claim (although not with the
general theories of either Bentham or Kant) by punishing no one at
all.

Both claims depend on the actions of the person to be punished.  We
should not punish someone who has committed no action at all,
according to both claims, even if that person has morally incorrect
beliefs.

The claims differ somewhat in terms of what actions they state are
necessary for punishment.  Bentham requires that some mischief be
done---that is, the person must have caused some decrease in the
overall utility.  Kant requires that the person have ``committed a
crime''---in particular, a public crime.  Kant defines public crimes
as acts which ``endanger the commonwealth'' and which arise ``from a
{\em violent} character''\footnote{Kant, ``On the Right to Punish and
to Grant Clemency'', p. 140}.  For example, Bentham and Kant might
differ over whether a failed attempt at robbery warrants punishment:
Bentham might say that no mischief was done, and thus the case is
unmeet for punishment, while Kant might say that a failed attempt at
robbery arises from a violent character as much as a successful
attempt, and that a crime was therefore committed.

The claims also differ in that Bentham's claim is simply that a
certain condition is necessary for punishment to be appropriate, while
Kant's claim demands that the {\em reason} for punishment must be that
the criminal has committed a crime.  To Kant, our intentions in
punishing someone are important, whereas to Bentham, it is only the
consequences of our punishing someone that are important.

The biggest difference between the claims is in the arguments Bentham
and Kant would use to justify them.  Bentham would say that his claim
is true because there can be no increase in utility from punishing a
person who has not caused any mischief: when you punish someone who
has not caused any mischief, you are not preventing that person from
causing mischief, nor convincing that person that he or she should not
cause mischief, nor deterring others from causing
mischief\footnote{Bentham, footnote to p. 58}.

Kant would say that his claim is true because punishing a person who
has not committed a crime would be using that person as a means.  Kant
states that ``his innate personality protects him from
this,''\footnote{Kant, ``On the Right to Punish and to Grant
Clemency,'' pp. 140--141}; that is, his innate personality marks him
as an end in himself\footnote{Immanuel Kant, ``Transition from Popular
Metaphysics to a Metaphysics of Morals.''  {\em Grounding for the
Metaphysics of Morals}, tr. James W. Ellington, Hackett Publishing
Company: Indianapolis, 1983.  (Originally Published 1785), p. 35}.
Even if the person had committed a crime (``even though he can be
condemned to lose his civil personality''\footnote{Kant, ``On the
Right to Punish and to Grant Clemency,'' p.  141}), we can only punish
him because he has committed a crime (and not, for instance, to deter
others), because he still retains his innate personality and must
still be treated as an end in himself, not as a means.

The fundamental difference between Kant's justification and Bentham's
is that while Bentham does not use the concept of desert at all, Kant
demands that we punish only people who deserve it, and only because
they deserve it.  Kant could justify this by the argument above, or by
using the categorical imperative, which states that we should only act
according to maxims which we can will to be universal law.  If I
punish someone for a reason other than that person's guilt, then I am
willing I may be punished for some reason other than my guilt,
something I cannot will.

In fact, the two arguments are equivalent, because Kant derives the
categorical imperative from the principle that rationality marks
people as ends and not as means\footnote{Kant, ``Transition from
Popular Metaphysics to a Metaphysics of Morals'', p. 35}.  It is
because I cannot treat an individual as a means that I cannot punish
him for reasons other than his guilt without willing that I myself may
be punished for reasons other than my guilt.

We have seen that Bentham's and Kant's claims are similar at a surface
level, but that their justifications are very different.
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