Aveek Bhattarcharya wonders how deontologists can justify any criminal justice system:
It is a consequence of imperfect human institutions that the police and courts will make mistakes, and wrongly convict innocent people. This is more or less inevitable and predictable. A famous legal principle is that it is “better that ten guilty persons escape than that one innocent suffer.” But how can it be justified for even a single innocent to suffer? The deontologists who condemn consequentialism for countenancing the possibility of punishing the innocent are (presumably) willing to defend a justice system that does exactly that – punish the innocent.
I think the problem may go even deeper than this. For Kantians, at least, if your foundational principle is the absolute wrongness of coercing anybody in any circumstance – whether that be through capital punishment or imprisonment – then it looks like all forms of punishment, which no doubt go against the offender’s will, are necessarily violations of the respect owed to them as humans. So all states, which by definition are coercive institutions, fail to obey the categorical imperative.
This is one of the reasons why Kant’s ethics is so fascinating. On the one hand, I think the thought that it is our humanity – our ability to set ends and decide what to do – really is enticing as a core ethical fact from which liberalism and all sorts of appealing rights can be derived. And yet at the same time, it seems that the source of those very rights also paralyses us into a useless, Gandhian pacifism incapable of standing up against evil.
There’s a chance I’m making a simple error on this one. I’d have to read more literature on the topic of Kant and coercion (an example here) to develop these thoughts more fully (and I definitely intend to). Kant himself, after all, undoubtedly thought the legitimacy of capital punishment – indeed, it’s necessity – could be derived from his moral framework. Hence the famous dictum demanding that if the world is to end tomorrow, all the murderers are to be hung tonight. But Kant was notoriously bad at deriving substantive conclusions from his more general moral principles, which goes some way to explaining his obsessive focus on sexual ethics intense enough to rival the modern Catholic Church. I imagine Aveek is right, though, to think this is a real problem, and it probably is so in a way even greater than he thought.