PART III - RETRIBUTIVIST INHUMANITY

Summary

The theory of retaliation is not only incompatible with the concept of right of Kantian philosophy (see Part i) and of German idealism (see Part ii). Contrary to Kant's claims, it even proves itself to be a theory that respects the dignity in the criminal's person less than the alternatives of deterrence. Most radically, Nietzsche excludes the concern for human dignity both in the citizen's and in the criminal's person from being a motive and a plausible aim of retributive punishment. According to Nietzsche, the idea of retaliation allows no room for the necessary internalization and reflection out of which alone bad conscience and remorse in the criminal as well as humane interaction with society could arise (see Chapter 6).

In a deliberate move away from retributivism, I have made a plea in Part ii from the standpoint of a combination of specific deterrence and rehabilitation for a type of interaction that respects human dignity even with the most hardened and inhumane of criminals, that is, with those who have perpetrated crimes against humanity. Claus Roxin believes he raises a decisive objection against the “conception of specific deterrence” by accusing it of not wishing to accept its final consequences:

The decisive example is at the moment the concentration camp murderer by whom some innumerable number of innocent human beings were killed due to sadistic motives. These murderers are living today mostly inconspicuously and socially integrated, so they are not in need of “rehabilitation.” Also, the danger of recidivism from which they must be deterred and from which we must be secured, does not exist with them. Should they really remain unpunished because of that?