1 - The two Kantian concepts of right

Summary

The retributivist turn

The lex talionis is a rule of distribution for the degree of punishment that is at least as ancient as the biblical verse “Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.” It never really was a self-evident, absolute principle for all punishments that needed no further justification. Plato, along with several major schools of ancient philosophy, adapted that premise formulated by Seneca into the famous sentence “Nemo prudens punit quia peccatum est sed ne peccetur.” It contains two decisive ideas. First, it implies that punishment is an evil. If punishment is to be allowed at all, this evil must be outweighed by the good it brings with it. Secondly, punishment is, as any institution, a means toward the realization of the bonum commune, which is the good that makes all other goods realizable in a sustainable way.

Early modern thought in penal law drew important consequences from these premises. I would like quickly to highlight the commonalities of the early modern theorists of penal law, however significant their divergences from other aspects of law and penal law may be.

First, punishment is a means to obtain compliance with the law from individuals. This is independent of the question whether the purpose of the law is primarily self-conservation, or perhaps the pursuit of happiness (Hobbes), or happiness through the least possible limitation of individual freedoms with an emphasis on the less privileged (Beccaria), or happiness as the greatest happiness of the greatest number (Bentham), or any other form of bonum commune.