第49章

But, it is argued, such a consent is impossible, because no one can thus dispose of his own life.All this is mere sophistry and perversion of right.No one undergoes punishment because he has willed to be punished, but because he has willed a punishable action; for it is in fact no punishment when any one experiences what he wills, and it is impossible for any one to will to be punished.To say, "Iwill to be punished, if I murder any one," can mean nothing more than, "I submit myself along with all the other citizens to the laws"; and if there are any criminals among the people, these laws will include penal laws.The individual who, as a co-legislator, enacts penal law cannot possibly be the same person who, as a subject, is punished according to the law; for, qua criminal, he cannot possibly be regarded as having a voice in the legislation, the legislator being rationally viewed as just and holy.If any one, then, enact a penal law against himself as a criminal, it must be the pure juridically law-giving reason (homo noumenon), which subjects him as one capable of crime, and consequently as another person (homo phenomenon), along with all the others in the civil union, to this penal law.In other words, it is not the people taken distributively, but the tribunal of public justice, as distinct from the criminal, that prescribes capital punishment; and it is not to be viewed as if the social contract contained the promise of all the individuals to allow themselves to be punished, thus disposing of themselves and their lives.For if the right to punish must be grounded upon a promise of the wrongdoer, whereby he is to be regarded as being willing to be punished, it ought also to be left to him to find himself deserving of the punishment; and the criminal would thus be his own judge.The chief error (proton pseudos) of this sophistry consists in regarding the judgement of the criminal himself, necessarily determined by his reason, that he is under obligation to undergo the loss of his life, as a judgement that must be grounded on a resolution of his will to take it away himself; and thus the execution of the right in question is represented as united in one and the same person with the adjudication of the right.

There are, however, two crimes worthy of death, in respect of which it still remains doubtful whether the legislature have the right to deal with them capitally.It is the sentiment of honour that induces their perpetration.The one originates in a regard for womanly honour, the other in a regard for military honour; and in both cases there is a genuine feeling of honour incumbent on the individuals as a duty.The former is the crime of maternal infanticide (infanticidium maternale); the latter is the crime of killing a fellow-soldier in a duel (commilitonicidium).Now legislation cannot take away the shame of an illegitimate birth, nor wipe off the stain attaching from a suspicion of cowardice, to an officer who does not resist an act that would bring him into contempt, by an effort of his own that is superior to the fear of death.Hence it appears that, in such circumstances, the individuals concerned are remitted to the state of nature; and their acts in both cases must be called homicide, and not murder, which involves evil intent (homicidium dolosum).In all instances the acts are undoubtedly punishable; but they cannot be punished by the supreme power with death.An illegitimate child comes into the world outside of the law which properly regulates marriage, and it is thus born beyond the pale or constitutional protection of the law.Such a child is introduced, as it were, like prohibited goods, into the commonwealth, and as it has no legal right to existence in this way, its destruction might also be ignored;nor can the shame of the mother, when her unmarried confinement is known, be removed by any legal ordinance.A subordinate officer, again, on whom an insult is inflicted, sees himself compelled by the public opinion of his associates to obtain satisfaction; and, as in the state of nature, the punishment of the offender can only be effected by a duel, in which his own life is exposed to danger, and not by means of the law in a court of justice.The duel is therefore adopted as the means of demonstrating his courage as that characteristic upon which the honour of his profession essentially rests; and this is done even if it should issue in the killing of his adversary.But as such a result takes place publicly and under the consent of both parties, although it may be done unwillingly, it cannot properly be called murder (homicidium dolosum).What then is the right in both cases as relating to criminal justice? Penal justice is here in fact brought into great straits, having apparently either to declare the notion of honour, which is certainly no mere fancy here, to 'be nothing in the eye of the law, or to exempt the crime from its due punishment; and thus it would become either remiss or cruel.The knot thus tied is to be resolved in the following way.

The categorical imperative of penal justice, that the killing of any person contrary to the law must be punished with death, remains in force; but the legislation itself and the civil constitution generally, so long as they are still barbarous and incomplete, are at fault.And this is the reason why the subjective motive-principles of honour among the people do not coincide with the standards which are objectively conformable to another purpose; so that the public justice issuing from the state becomes injustice relatively to that which is upheld among the people themselves.

II.The Right of Pardoning.