Immanuel Kant

Introduction

In 1780, Jeremy Bentham in The Principles of Morals and Legislation wrote: “Education may be distinguished in physical and mental: the education of the body and that of the mind: mental, again, into intellectual and moral – the culture of the understanding and the culture of the affections” (Roby & Dwyer, 1991:74). In 1931, Austin MacCormack, a modern pioneer in the education and socialization of the incarcerated, echoed the same concerns: “The education a man or woman receives, is given to him partly by himself and partly by others; . . . [there is a need] for the education and socialization of the incarcerated . . . for the socially disenfranchised” (p. 74). Yet today, little has changed with over crowded prisons and controversy surrounding correctional obligations: containment of the criminal and reformation through “influencing of will and desire” of the adult prisoner by education as Bentham professed (p. 74). As evidenced by the decline in standards of moral behavior among the regular school population, Correctional Education’s need for moral education and character development that would be both academically sound and appropriate for a pluralistic society is even more obvious and immediate. Giving students/offenders the ability to change perspectives and to empathize with “the other,” whether that “other” differs by sex, race, or culture, i.e., weaning them from a perspective dominated by self-gratification, self-loathing, and dualistic reasoning that leads them into anti-social behavior and criminality, are critical areas of concern for all individuals and organizations that work with the criminal personality. A person of mature character is someone who acts consistently within a set of moral values to which he is freely committed and interactive with in his/her environment. Disciplines that draw from and reflect back on real life are intellectual instruments in understanding values and beliefs and reformulating the understanding of and the habilitation of the criminal mind. Moral reasoning is based on one’s perception of situations, i.e., moral experience – of what elements of a person’s character, past, and social situation influence the way in which he/she “reads” the world. Kant in the Enlightenment held hope that the application of scientific methods to the study of human beings “. . . could be applied to human affairs, . . . that humanity could leave behind the authority of traditional beliefs and inherited rank and improve the conditions of human life by the use of reason” (Stevenson & Haberman, 1998:128). Seemingly, in our haste to conquer the future, we renounce or dismiss the wisdom of our past. Using Kant’s philosophy on morality and reason, I plan to show a strong connection between social situations, discipline, and learning to the increased incidences of deviance and criminality.

“Dare To Know” (Horace Ars poetica; motto adopted in 1736 by the Society of the Friends of Truth, an important circle in the German Enlightenment).

Part 1

Historical Context

Immanuel Kant (1724-1804) was born, spent his entire life, and died in Konigsber, East Prussia. A student of both Lutheran theology and classics who also studied mathematics and physics at the University of Konigsberg (modern Lithuania), Kant was a private tutor for nine years while studying for his doctorate (Zaitchik & Wiehe, 1993:388). His works that saw religious faith as primarily rational moral teaching caused difficulty for Kant among religious and state authorities that tried to restrict his lecturing. Exasperated, he gave up most public teaching (p. 388). It was an alleged subversion of state-approved religion that got Kant into conflict with his political masters (Stevenson & Haberman, 1998:113). Considered to be the most important European philosopher in modern times and the leading thinker of the German Enlightenment, he responded to Hume’s skepticism with the famous remark that he had been “awakened from his dogmatic slumbers,” thereby synthesizing the rationalism of Leibniz with the skepticism of Hume, the two most influential philosophers on Kant’s own philosophy (p. 125). For Kant, every person had to be considered as an end in himself/herself, Enlightenment doctrine of the Rights of Man – encapsulated in his appropriate motto for the Enlightenment, “Dare to Know” (Allison, Columbia.edu,1999).

The Enlightenment and “Age of Reason,” (ca. 1687-1789), marked the advance of science, rationalism, and freedom. It had its roots in France and England but extended throughout Europe and into the New World. In the Renaissance of the fifteen and sixteenth centuries, the literature, arts, and philosophy of the ancient world exerted a new influence on Western thought. The Catholic Church was shattered during the religious Reformation, -- led by Luther and Calvin -- and Protestant churches, movements, and sects developed that appealed to the authority of the Bible or to individual religious experience rather than to the tradition of the institutional Church (Stevenson & Haberman, 1998:111). People learned that the earth was not at the center of the universe; people were creatures of nature like other animals; and their reason was subject to passions and instincts. These new truths represented intellectual advances that enabled people to redefine their responsibilities; discover truth through science; achieve personal happiness in a viable society; and explore the full meanings and limitations, of liberty. These ideas were explored and expressed in different ways in the thought of Hobbes, Spinoza, Hume, Rousseau and many others. Isaac Newton’s discoveries provided convincing evidence that the world was orderly and knowable, and that human societies could be made orderly and rational through the exercise of enlightened reason. Locke’s political thought strongly influenced the drafting of the new American constitution after 1776. Socially progressive thinkers such as Voltaire, Diderot and Condorcet laid the intellectual foundations of the French Revolution of 1789 (p. 111).

Kant’s philosophical career is divided into three periods. The first runs from 1747, the year of his first publication, On the True Estimate of Living Forces, to 1770, when he published his inaugural dissertation, On the Form and Principles of the Sensible and the Intelligible Worlds (Allison, Columbia.edu, 1999). The middle period (1771-80), called the ‘silent decade’ because Kant published virtually nothing, was devoted to the study and reflection that led eventually to the Critique of Pure Reason (Allison, 1999). The third period dates from the publication of the first edition of the Critique in 1781. This was followed by the Prolegomena to any Future Metaphysics (1783), the Groundwork to the Metaphysics of Morals (1785), the Metaphysical Foundations of Natural Science (1786), a second edition of the Critique of Pure Reason (1787), the Critique of Practical Reason (1788), the Critique of Judgement (1790), Religion Within the Limits of Reason Alone (1793), and the Metaphysics of Morals (1797), The Metaphysical Elements of Justice (1797), as well as many important essays on topics in metaphysics, science, morals, legal and political theory, and the philosophy of history. In addition, he published compilations of his lectures on anthropology, logic, and pedagogy. In his last years, he devoted himself to a major revision of some of his basic views on metaphysics and the foundations of science. The work remained uncompleted at his death, but later was edited and published under the title Opus Postumum (Allison, 1999).

Kant’s essays on history paved the way for the more explicitly historical philosophies of Hegel and Marx in the following century. He envisioned the possibility of progress in human history through the gradual emancipation of people from poverty, war, ignorance, and deference to traditional authorities (Stevenson & Haberman, 1998:128). He was a supporter of the French Revolution, although aware of its excesses. At the end of his Anthropology (1798), his hope took an explicitly worldly form – for the progress of humanity in history, despite its propensities for evil. He had a vivid and realistic sense of the dark side of human nature, our potentiality for evil -- which has been amply confirmed since his time. Kantian morality makes judgments intended to guide conduct in actual states of being but does not depend for its goodness upon the realization of some desired state of events. It is not teleological, i.e., driven by expected good results set forth as goals such as wealth, health, or happiness. Our highest good, he says, is acting from duty with respect for the moral law (p. 130).

Many contemporary philosophers philosophize in the tradition of Kant. Perhaps the most influential philosopher who works, broadly speaking, within the Kantian tradition is John Rawls, especially his Theory of Justice (Cambridge: Harvard University Press, 1971). Others include Thomas E. Hill, Jr., Autonomy and Self Respect and Dignity and Practical Reason in Kant’s Moral Theory; Onora O’Neill’s numerous essays collected in her Constructions of Reason and Acting on Principle; and Stephen Darwall’s Impartial Reason and his “Kantian Practical Reason Defended,” Ethics, Vol. 96, No. 1 (October, 1985: 89-99).

Knowledge of the world demands more than just seeing the world..

One must know what to look for. . . Kant

1975 NEA

Part 2

Kant’s Original Theories

Kant is a systematic philosopher who deals with everything from the possibility of knowledge to the nature of beauty. To fully understand his work and be able to fill in the details requires more than this one project could hope to accomplish. Therefore, the emphasis here will be on Kant’s ethical and moral philosophy and their applicability to theories of deviant behavior and the idea of Justice As Fairness. In Kant’s own words then,

If there is any science man really needs, it is the one I teach, of how

to occupy properly that place in creation that is assigned to man, and how to learn from it what one must be in order to be a man. (Christian, 1981:291)

In ethics, Kant argues that good actions must be performed from a sense of duty and that moral law was derived from his categorical imperative: “act only according to the maxim which you at the same time will to be a universal law” (Curzer, 1999:193). People, he says, are independent moral agents with the freedom to choose right actions. As a practical necessity, Kant postulates the existence of God for those who desire (or require) a belief in divinity, so that virtue can be crowned with happiness and immortality, and the pursuit of moral perfection can continue in the afterlife (Stevenson & Haberman, 1998:127). He shows that knowledge a priori is possible because people can perceive the world of space, forms, and causality and, because of the intrinsic nature of the human mind, understand phenomena. As he states, we can know only such appearances as colors, shapes, and sounds, but never the thing-in-itself; true knowledge cannot transcend experience. But we can have reliable knowledge because all minds function the same way. He was an enlightened thinker who felt that every person had to be considered an end in himself/herself (Kant, 1988: 93) – an extension of the Enlightenment doctrine of the Rights of Man.

According to Kant, the defining feature of man’s humanity is his capacity for moral action acquired through the performance of his duties (Donohue, 1999:13). He portrays the moral realm as independent of the natural world, that is, to have morals worth an action must be done from duty as opposed to inclination (Kant, 1988:23). For Kant, the only two kinds of motives are (1) the motive of duty (trying to do what is right because it is right) and (2) the various motives of inclination (trying to do what we are inclined, by our desires and passions, to do) (Curzer 1999:191). Acts motivated solely by duty are said to be done from duty. Acts that are morally right are said to be in accord with duty. People, he says, who resolve to do their duty throughout life have a good will. This unconditional commitment to morality is what makes a person morally good. People whose highest priority is the satisfaction of their inclinations are said to have an evil will (p. 191). Kant says they act right only when it pays and only because it pays. An act has moral worth if and only if the act is evidence of a good will (p. 192).

Further he states, that the origin of the moral law can only be explained by reason and that any other account of moral experience would be inadequate to the task as we must infer from the following passage.

On this account, the justification of moral principles as principles of a

pure reason could be made with sufficient certainty through merely

appealing to the judgement of common sense, since everything empirical which might insinuate itself into our maxims as a determining ground of the will immediately reveals itself through the feeling of enjoyment or pain which necessarily attaches to it in so far as it arouses desire, and pure practical reason immediately refuses to take it as a condition into its principle. (Kant, 1996:95)

Kant rejects pleasure as the impetus for moral action because pleasure in itself is subjective. Therefore, no two people, much less a whole society would ever agree on specific pleasures. By pursuing the analysis of pleasure, Kant suggests a distinction between the higher and lower faculties of desire that are aimed at achieving pleasure (Kant, 1987:43). He acknowledges that human activity is preoccupied with personal gratification, an analysis that lays the groundwork for his account of the role of reason in moral action. Reason, he says, plays this part by formulating propositions that guide man to achieve his desires. These Kant identifies as “subjective principles of volition” (Curzer, 1999:201). In making his case for reason, he explains that reason is not merely a tool of desire or all human action would be causal. The categorical imperative refers to every moral principle as Kant sees it because all moral rules are categorical, that is, if there are any moral rules at all, they must apply to everyone (p. 193). Moral rules, unlike other rules such as prudence or etiquette, are universal and necessary. Because, he says, morality does not depend on the contingent facts about our world, the rules of morality are discoverable through reason alone. The human being’s rational capacity enables him/her to be free to create his/her own desire through the higher faculties of desire (p. 195). The objects of this desire – good and evil – do not exist in nature and are not caused by another phenomenal event. Therefore, good and evil must comprise the categories of freedom whereby rational choice is self-causing. Kant explicitly acknowledges the existence of freely chosen evil that is the expression of this sense of freedom.

But the latter does not render the vicious quality of the will necessary, for this quality is rather the consequence of the freely assumed evil and unchangeable principles. This fact makes it only the more objectionable and culpable. (Kant, 1996:103)

The moral law that prohibits our desires and regulates our conduct, then, must be characterized as a set of duties manifested in our compulsion to reason. Beck (1956) says that Kant’s moral law is problematic in its explanation of how the law “enters into consciousness and makes clear demands on our allegiance” as we confront the phenomenal world, leaving us with an unclear picture of man as a partially rational creature (p. 85). This insoluble problem is identical, he says, with the problem of how a free will is possible. The a priori knowledge we have of the moral law must include not only what the moral law is, but also the knowledge of why it exists.

The moral law determines the will directly and objectively in the judgement of reason. Freedom, the causality of which is determinable merely through the law, consists, however, only in the fact that it limits all inclinations, including self-esteem, to the condition of obedience to its pure law. (Kant, 1990:81)

Respect is the attitude the moral law instills in us, an attitude which provides us with an incentive to act morally. Moral action provides an entrance to the human community that is comprised of autonomous rational beings. In his Critique of Judgement, (1987), Kant suggests that it is morality then which provides the essential conditions for the creation of social life (p. 139). In the Critique of Practical Reason (1996), he stresses a moral disposition as the precursor to successful social life, that is, the intelligible world and the rich possibilities of human achievement are created by our capacity for moral action.

Introduction to the “Doctrine of Right” in Gregor’s and Sullivan’s translation of Kant’s The Metaphysics of Morals (1996), starts off with Kant’s defining the scope of the doctrine including “the sum of those laws for which an external lawgiving is possible” (p.55). He argues that an action can be called “right if it can coexist with everyone’s freedom in accordance with a universal law . . .” (pp. 55-56). He reasons that coercion is justified whenever it is employed “as a hindering of a hindrance to freedom” (p.57), concluding that “Right and authorization to use coercion . . . mean one and the same thing” (p.58). Kant divides his inquiry into Private Right (topics of possession, acquisition, and legal acquisition) and Public Right that examines the notions of state, national, and cosmopolitan rights. Understanding Kant’s direction here becomes a little vague at first, but he moves toward the topic of virtues in which he explains “the capacity and considered resolve to withstand a strong but unjust opponent . . . with respect to what opposes the moral disposition within us” (p. 186). The opponent here is our own inclinations to pursue happiness by fulfilling personal pleasures. Only virtue can lead us to adopt a moral end, that is, to make a free rational choice, in conformity with duty: the coercion made possible through the Right may constrain me “to perform actions that are directed as a means to an end, but I can never be constrained by others to have and end; only I myself can make something my end” (p. 186).

Implications of responsibility for one’s self rather than the freedom to achieve independence from all influences and to do what one wishes seems to be at the heart of Kant’s notion of autonomy (Kant, 1988: 65). He argues that only a rational agent can act on a conception of universal principles by which he takes all rational subjects to be bound. From the Preface of his Groundwork (1998), we have the idea of moral duty is itself the idea of a law by which all rational agents are bound. Kant holds that this moral law has no metaphysical existence independent of autonomous practical reason, but that we realize the moral law through our autonomous, free agency. Kant apparently had faith that unequivocal commitment to his ranking of values in regards to duty and obligations would lead to the deserved happiness of every conscientious person.

Part 3

Kant’s Political Influence

In the Translator’s Introduction to Kant’s The Metaphysical Elements of Justice (1797), Ladd states that the key to Kant’s moral and political philosophy is his conception of the dignity of the individual, and it is this dignity that gives man his intrinsic worth (1965:ix). This dignity, he continues, is the source of man’s innate right to freedom “. . . and from the right to freedom follow all his other rights, specifically his legal and political rights.” Thus Kant is the established philosophical defender of the rights of man, of his equality, and of a republican form of government (p. ix). Kant would likely say that every law implies a lawgiver or legislator; indeed, he conceives of the moral law itself as a kind of law that one gives – that is, legislates – to oneself (his doctrine of autonomy). For Kant, “law” carries the connotation of moral rightness (p. xvi). Justice, Kant says, supplies the a priori principles of possible legislation and that the political authority makes and administers actual external laws in accordance with them, or should do so (p. xviii). The basis of man’s right to liberty is the fact that he is an autonomous moral being, that is, a sovereign lawmaker, as well as a subject to the law (p. xix). Violence is wrong, therefore, because it is an infringement of lawful liberty, the rightful function of the political order is to control violence and thus to protect liberty (p. xix). This political order, or civil society, as Kant calls it, is a necessary condition of the rule of law; the foundation of political authority, then, is man’s innate right to live in peace and freedom . . . which, incidentally, includes his right to have his property secure and guaranteed (p. xix). Coercion that is used to counterbalance violence explains why we can force others to quit the “state of nature,” and the basis of the state’s rights and duty to punish criminals. Kant is very strict about punishment; “no other end, such as deterrence or reformation, is allowed as a justification for punishment” (p. xxi). Hence it is not the function of the state to create rights, but only to enforce them and to adjudicate disputes concerning them (p. xxi).

Model Critique and New Research

. . . the guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement – the social contract in Kant’s The Foundations of the Metaphysics of Morals. They are the principles that free and rational persons concerned to further their own interest would accept in an initial position of equality as defining the fundamental terms of their association . . . principles are to regulate all further agreements; they specify the kinds of social cooperation that can be entered into and the forms of government that can be established. This way of regarding the principles of justice I shall call justice as fairness (emphasis is mine). (Rawls, 1999:10)

John Rawls in A Theory of Justice (1999), develops the conception of justice as fairness behind what he calls a “veil of ignorance,” that is, no one knows himself, his natural abilities, or position in society. This concept is based on the Kantian philosophy: Principle #1 (Liberty Principle) – each person is to have an equal right to the most extensive basic liberty compatible with similar liberty for others (provides for basic and universal respect for persons as a minimum standard for all just institutions); and Principle #2 (Difference Principle) – social and economic inequalities are to be arranged so that they are both: (a) reasonably expected to be to everyone’s advantage and (b) attached to positions and offices open to all (p. 53). The Difference Principle permits the recognition that significant differences between individuals under conditions of liberty will lead to social and economic inequalities. Rawls says that one may regard a theory of justice as describing our sense of justice . . . our moral capacity . . . a set of principles when conjoined to our beliefs and knowledge of the circumstances, would lead us to make these judgments . . . [applying these principles] conscientiously and intelligently. We do not understand our sense of justice until we know in some systematic way covering a wide range of cases what these principles are (p. 41).

Rawls builds into the Original Position that this is a particular ideal of the person, linked to an ideal of a well-ordered society (Daniels, 1989:169-170). In his Dewey Lectures (1980), Rawls elaborates these ideals in his “Kantian interpretation” of justice as fairness, making it clear that all features of the Original Position must be assessed by reference to the “moral powers” ascribed by this ideal of persons (p. 174). People are free in the sense that they have a capacity to adopt and comply with a conception of justice. They are equal in the sense that they have the moral power or capacity to form and revise conceptions of the good (p. 176). Building on Rawls, Nozick (1974) develops an historical entitlement theory of distributive justice that includes an account of the original acquisition of property while Gauthier (1974, 1986) tries to derive an account of distributive justice from rational bargaining – ethical or political philosophical theory construction that takes us beyond Rawlsian scholarship (p. xvi).

Brandt and Dworkin consider other "baseline" issues for rational choice: two distinct questions stem from the stripped-down self and motivation (Daniels, 1989:xix). One involves communitarian approaches to justice (MacIntyre 1981; Sandel 1982; Taylor 1982; Walzer 1983), and the other raises more general worries about individual commitments to morality (Brandt, 1979; Williams, 1981, 1985:20) (as cited in Daniels, 1989:xix). On the communitarian view, the communities in which we are raised constitute us as persons having a particular character and set of values. Daniels (1989) says that Rawls’ free and equal moral agent is not the appropriate idealization of what constitutes us as persons, and it is motivationally unconnected to us. The second, he says, is not committed to the communitarian perspective, but it shares motivational qualms. Critics of Rawls may, then, be rejecting the assumption that society is pluralist in the way Rawls suggests or that pluralist societies are the central case. These critics portray their differences with Rawls as claims that the Original Position fails in the following ways: “ it mistakes what is important about persons for purposes of justice, or it invokes a metaphysically flawed description of persons, or it is motivationally irrelevant” (p. xix).

A second concern with Rawls is his allowance for moral judgments to play an important role in the construction of moral theories and in their justification. Rawls argues (1985) that the justification of theories of justice is really a political and not a metaphysical or epistemological problem (p. xxi). This recent claim seems to be that the ideals of the person and of a well-ordered society, on which justice as fairness depend, are simply part of our liberal political tradition. Rawls does not seem to rule out there being such a thing as moral knowledge or even knowledge of what is just. In A Theory of Justice, Rawls (1971:vii) says that his

Ambitions for the book will be completely realized if it enables one to see more clearly the chief structural features of the alternative conception of justice [to utilitarianism] that is implicit in the contract tradition and points the way to its further elaboration. Of the traditional views, it is this conception, I believe, which best approximates our considered judgments of justice and constitutes the most appropriate moral basis for a democratic society.

Nevertheless, Joshua Cohen (Daniels, 1978:xxvii), argues that we do not get a clear answer about the priority between income and goods like democratic control over the workplace, and it is hard to see how these priorities can be established behind the veil of ignorance (p. xxvi). Daniels (1989) suggests that the Original Position could be a scheme for many possible theories of justice (p. 261). Miller (p. 209) raises questions that suggest that justice may not be the primary virtue of institutions – a claim that has received extensive discussion in recent work on Marx and morality (p. 210). Extensive applications of Rawls’ work in jurisprudence, in the theory of democracy, in international relations, in moral-education, in economics and in other contexts clearly argue for the value of Rawls’ work in current research.

Herbert L. Packer states that the model of the criminal process needed is one that "permits us to recognize explicitly the value choices that underlie the details of the criminal process (Jacoby, 1994:297) . . . [a] process that operates within the framework of contemporary society (i.e., a democratic society) . . . [and in accordance with] minimal agreed limits expressed in the Constitution of the United States . . . [and] with unarticulated assumptions that can be perceived to underlie those limits" (p. 298). He designed two competing models to demonstrate how the administration of criminal justice operates within our society, confronting the tensions underlying the process of the law in which there is a struggle to achieve respect for the rule of law, while maintaining civil rights and liberties.

The first model he introduces is the "Crime Control Model," which places emphasis on the idea that the repression of criminal conduct is by far the most important function of the criminal process. It is basically an affirmative model . . . emphasizing . . . the existence and exercise of official power; its validating authority is ultimately legislative" (p. 309). Packer claims that the failure of law enforcement to bring criminal conduct under tight control causes the breakdown of public order (p. 300). If the laws go unenforced, and it is perceived that the criminal process fails to apprehend or convict, then the public develops a blatant disregard for the threatened legal sanctions and "thence to the disappearance . . . of human freedom [and his diminished liberty] to function as a member of society" (p. 300). This model must produce a high rate of apprehension and conviction with exceedingly limited resources while dealing with large numbers of individuals. It is through the "presumption of guilt" that this model functions.

Packer's second model of the criminal process is called the "Due Process Model," with its ideology resting on the formal strictures of the law. This model points to an insistence on formal, adjudicative, adversary fact-finding processes. This model stresses "the possibility of error" and a low demand for finality (p.303).

Our criminal justice system is based upon the Due Process Model because we are predominantly a "right-oriented" society, and we place little emphasis on finality. The real concern is, however, on how much reliability is compatible with efficiency. Up until this point the concerns have been with protecting the innocent people from being falsely accused or convicted of a crime. This reflects the due process model's intense fear of making mistakes in judgment, but a concern that should not be taken lightly. Because of the impact of the criminal process, maximum efficiency can be equated with maximum tyranny. "The possibility of legal innocence," suggests Packer, "is expanded enormously when the criminal process is viewed as the appropriate forum for correcting its own abuses" (p. 306). The question of morality and utility of the criminal sanction becomes particularly complicated in Due Process

Procedural due process of the law was instilled in our system to prevent court arbitrariness and to enhance a uniform dispensation of justice. Packer emphasizes that the behavior of criminal justice decision-makers is influenced by its administrative structure and by the values of the American culture. These values provide legitimacy and justification for the ways in which criminal behavior is controlled and defendants' cases are judged. Packer states that "the criminal process is an adversary one in which the initiative in invoking relevant rules rests primarily on the parties concerned, the state and the accused" (p. 309). Quoting Professor Paul Bator, Packer articulates the widespread skepticism among the most influential and articulate contemporary leaders of informed opinion. He says, again quoting Bator, that the processes of the criminal law engenders "a peculiar receptivity toward claims of injustice which arise within the traditional structure of the system itself; fundamental disagreement and unease about the very bases of the criminal law has, inevitably, created acute pressure at least to expand and liberalize those of it processes and doctrines which serve to make more tentative its judgments or limit its power" (p. 308). In short, Packer says "doubts about the ends for which power is being exercised create pressure to limit the discretion with which that power is exercised" (p. 308).

Part 4

Current Usage/Popularity Within Criminology

A Theory of Justice was published on the heels of a period of intense political struggle and questioning, a period of serious challenge to liberalism: Civil Rights, Black Liberation movements, and the anti-Vietnam War movement. Controversy will continue by critics on its egalitarian merit, too little concern for other classical notions such as merit or entitlement, or guilt and innocence and the retributive background to the concept of justice (Daniels,1989:xxxvi). It will provide a challenge to those who think that all forms of liberalism are inadequate as well as to possible Marxist objections.

Rawls defends a liberal theory of justice, which focuses on individual freedom, and the responsibility of society to help those who need it. This theory can be applied to justify taxation for welfare programs, universal education and health care as well as the right of individuals to be free from government control of their personal lives. It also gives justification for condemning racism and sexism. The basic idea, Rawls suggests, is that we decide on the principles of justice by considering a hypothetical social contract (referencing Kant), the principles which are to govern the basic structures of society. And in the end, Rawls forces us to see that theories of socialism without a critical moral philosophy are as undesirable as they are impossible (p. xxxvi).

Rawls is not the only contemporary philosopher whose work on ethics and politics has been inspired by Kant. Kant’s impact on moral philosophy remains pervasive and profound. Some of these include Stephen Darwall, Impartial Reason (Ithaca, Cornell University Press, 1983); Alan Donagan, The Theory of Morality (Chicago, University of Chicago Press, 1977); Alan Gewirth, Reason and Morality (Chicago, University of Chicago Press, 1978); Christine M. Korsgaard, The Sources of Normativity (Cambridge, Cambridge University press, 1997); Thomas Nagel, The Possibility of Altruism (Oxford, Clarendon Press, 1970, and Princeton University Press, 1978); and Onora O’Neill, Towards Justice and Virtue (Cambridge, Cambridge University Press, 1996).

Thomas Nagel suggests that there can be no strict separation between ethics and psychology, that is, in order to understand human behavior, one has to understand ethics, in part, because rationality includes ethics; in order to be rational, one has to be ethical. Being bad is irrational (Perring, 1997:1). Clearly he is arguing for a form of moral objectivity, and against moral relativism. "Rationality does not vary from person to person, and neither should morality. . . the ideals of rationality . . . should remain universal" (p. 1). He believes that one common element of morality can be found in simply understanding what it is to be an agent – a person who performs actions. His common element is altruism, and he argues that it is irrational to be selfish (p. 2). Although the details differ, his project is very similar to Kant's. The justification of morality should not depend on whether a person has particular motivations because as Kant believed, lacking such motivation would mean there was no moral obligation to be moral. Certain ethical principles are themselves propositions of motivation and cannot be derived or defined in terms of previously understood motivation. The conception of self is important for both Nagel and Kant. Each person's reason for acting and possible motivations for acting must arise from his own interests and desires and with a conception of oneself as merely one person among others.

Christine Korsgaard, in Kantian fashion, believes that the reasons why an action is right and the reasons why someone commits and action are the same. The possibility of irrationality exists, she says, and that to fail to be motivated by the proper considerations for a variety of reasons cannot be counted as irrational (Cavalier, 1990:379). She argues for Kant's view that we will be motivated to act as the categorical imperative directs, if we are rational. Her Kantian position suggests that the moral law is given to us because we give it to ourselves; the law provides the real reasons for action. For her the will is causal but free, and so it cannot be determined by outside causes (p. 391) but rather free will is the (Kant's) "categorical imperative," that is, to act only on a maxim that we could will to be a law. When you act rationally, Korsgaard states, it is not a matter of your desires interacting with your beliefs. There is something further going on, namely, you choosing what to do. Your choice is a matter of your character as you find your life to be worth living. One's identity often determines one's actions. Furthermore, one has an obligation to not perform actions that would make one feel that one's life was no longer worth living. This identity is not a theoretical construct, but is a practical matter (p. 392).

Communitarians are political theorists who think that the community or society should be prior to the individual. Korsgaard recaps that to be human is to have self-consciousness and thus capable of acting for reasons rather than out of instinct. Human beings "need a practical conception of their own identity . . .[and] since one cannot act without reasons and [the individual's own] humanity is the source of . . . reasons, [one] must endorse [his] own humanity if [he/she] is to act at all" (p. 397). This is her proof that human beings are valuable, at least to themselves.

G.E. Moore, an English Philosopher, writing in the shadow of Utilitarian theory was also greatly concerned with the meaning of "good." He explains in Principia Ethica (1903) that "to assert that a certain line of conduct is, at a given time, absolutely right or obligatory, is obviously to assert that more or less evil will exist in the world, if it be adopted than if anything else be done instead" (Baldwin, 2000:62). Moore believes that many of the disagreements in ethics have arisen due to a failure to distinguish intrinsic from extrinsic value. Some assume that nothing has intrinsic value, which is impossible. Referencing Kant, he says, others assume that what is necessary must have intrinsic value (p. 61).

Rawls and Kant suggest that our principles of justice will be largely independent of our theory of human nature. The only part of the theory of human nature that is relevant is that which can justify our conception of the person. That conception is "a companion moral ideal paired with the ideal of a well-ordered society" (Freeman, 1999:260). What knowledge we have of human nature does justify this conception of the person, and it is hard to imagine that any additional discoveries about human nature could undermine that justification. Rawls points out that it is not people in the real world who are doing the choosing, but rather those in the idealized original position. It is, he continues, assumed that those in the original position are constrained by the requirements of rationality and reasonableness, but are ultimately motivated by their own selfish interests rather than a search for justice itself (p. 261). The argument is that if people in the original position agree on principles to govern their society, then those principles must be fair. Kantian constructivism is reflected in Rawls' social point of view: "It is the publicly shared point of view of citizens in a well-ordered society, and the principles that issue from it are accepted by them as authoritative with regard to the claims of individuals and associations" (p. 263). These principles regulate the basic structure of society, further all citizens' interests, and define the fair terms of social cooperation.

Two profound and fundamental concerns of the operation of the criminal law in a democratic constitutional society are the requirement of proof of mens rea as a basis for criminals' punishment and the guarantees of a jury trial to determine the substantive predicates of criminality. To impose sentences under the United States Sentencing Guidelines require that both of these aspects be recognized, but in order to maintain reason and perspective, blameworthiness must hinge upon a culpable state of mind, and the defendants' punishments must be limited by their culpability. These doctrines of criminal responsibility and the theories that support them are deeply rooted in our legal tradition. Increasing precision in the law of excuses and defenses is partly a cause and partly an effect of the firmness with which the mens rea principle has come to be held. By the middle of the eighteenth century, Blackstone in his Commentaries summarized the English criminal law as

All the several pleas and excuses which protect the committer of a forbidden act from the punishment . . . may be reduced to . . . the want or defect of will. An involuntary act . . . [cannot] induce any guilt: the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human action either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act . . . . [A]s no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise then as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. . . . And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will. (p. 492)

In modern-day theory, the status of mens rea as seen in Katz's statement, "when it comes to attaching a precise meaning to mens rea, courts and writers are in hopeless disagreement" (1987:165-209). Following in the Kantian philosophy, he says, "any theory of criminal punishment leads to a requirement of some kind of mens rea, that is, the deterrent theory is workable only if the culprit has knowledge of the legal sanction; and if a man does not foresee the consequences of his act . . . . The retributive theory presupposes moral guilt; incapacitation supposes social danger; and the reformation aim is out of place if the offender's sense of values is not warped – to punish without reference to the actor's state of mind has no deterrence value and cannot be justified on retributive grounds since the actor is not morally blameworthy. (Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 109 (1962).

While recognizing that legal history shows a continual movement back and forth between extreme solicitude for the general security and extreme solicitude for the individual life, Roscoe Pound in the Introduction to Francis Bowes Sayre’s A Selection of Cases on Criminal Law (1927:xxxiv-xxxvi) described the mens rea principle as fundamental: "Our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong" (1927:494). Bishop reports, "Prompting the act, there must be an evil intent . . . [A]n act and evil intent must combine to constitute a crime" (See Joel Prentiss Bishop on Criminal Law x 291b, 9th ed., 1923:205-06). "Neither in philosophical speculation, nor in religious or moral sentiment," Bishop writes, "would any people in any age allow that a man should be deemed guilty unless his mind was so" (p. 287). Bishop counsels vigilance against erosion of this principle: "The calm judgment of mankind keeps this doctrine among its jewels . . . when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the consciousness that where the mind is pure, he who differs in act from his neighbors does not offend" (p. 289).

Perhaps the most important modern work on criminal culpability is H.L.A. Hart's Punishment and Responsibility (1986:187). In this collection Hart defends the mens rea principle: ". . . the individual's liability to punishment . . . is made by law to depend . . . on certain mental conditions." Hart finds that "[T]here are independent reasons, apart from the question of moral guilt, why a legal system should require a voluntary act as a condition of responsibility" (p. 495). He distinguishes between two 'moral' questions. First is the . . . "legislature, whether enforcement of a given law produces more good than evil. If good outweighs evil, then the law is morally permissible" (p. 495). Second . . . "consideration at the judicial stage, whether the particular person accused should be excused should be excused on account of his/her mental condition because that person 'could not have helped' doing the act and, therefore, punishment would be unjust"

(p. 495). Hart's views follow from society's commitment to individual choice. The existence of the many excuses and culpability requirements in the criminal law allows the individual to exercise choice with respect to violation of the law.

As society continues to shift from punishing moral wrongdoing to "protecting social and public interests," the mens rea principle "is coming to mean, not so much a mind bent on evil-doing as an intent to do that which unduly endangers social or public interests." It may be true that "the criminal law is . . . riddled with exceptions to the [mens rea] principle" and that "the allegedly pervasive principle of mens rea is not pervasive at all" (Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 138 ,1962). Yet, as Packer sees it, this erosion is not decisive in addressing new problems of the criminal law (p. 505).

Conclusion

In observing modern-day culture, the concept of morality seems to be based on a Machiavellian theory, that is, one that discards moral responsibility as the “need” arises. Values and beliefs occur in church while intolerance is practiced in the parking lot. Likewise, matters at work are more often than not quite different from the matters at the company picnic. Laws have been written in a language so that interpretations take the human element out, relieving us of the moral responsibility to assess each individual’s situation and making a just and fair decision. Rousseau stated that “Men always love what is good or what they find good; it is in judging what is good that they go wrong” (Christian, 1981:275). Kant acknowledges what he calls the “frailty” of human nature, our difficulty in doing what we ought to do, and our “impurity” – our tendency to confuse or adulterate moral reasons with other reasons (Steven & Haberman, 1998:123). For Kant, what is (radically) evil are not our naturally given desires. . . but rather what he calls the “depravity of human nature, or the human heart – the freely chosen subordination of duty to inclination, the deliberate preference for one’s own happiness over obligations to other people, insofar as the two conflict (p. 124). I believe that Kant’s categorical imperatives still hold value today. Quoting Will Durant, “After all, when one tries to change institutions without having changed the nature of men, that unchanged nature will soon resurrect those institutions” (Christian, 1981:286). A sense of responsibility and duty should be of immediate concern for everyone.

Kant’s ethics are based upon responsibility as a human being, namely, a human being is duty-bound because he is a human being. To be aware, he says, of one’s rational powers in the exercise of moral duty is paramount. Awareness of existence is sufficient proof of moral law, for morality is simply a formalized definition of what it means to be a rational being.

The events of recent years sharpen interest in examining the justifications for our criminal processes and policies. Retributive theories imbedded in Kant took on a modern guise as the “just deserts” approach in the 1970s was propelled by the alleged excesses and failures of rehabilitative ideals (Maguire et al., 1997:1096). In this approach punishment is justified as the morally appropriate response to crime and should be meted out proportionately to the degree of wrongdoing. The justification for the institution of punishment also incorporates the consequentialist element of needing to deter crime, and without the restraining effect of a system of state punishment, anarchy might ensue (p. 1097). The behavioral premise of desert is that individuals are responsible and predominantly rational decision-makers (p. 1097). The political premise is that all individuals are entitled to equal respect and dignity: an offender deserves punishment, but does not forfeit all right on conviction, and has a right not to be punished disproportionately to the crime committed (p. 1097). In practice, much depends on the evaluation of conduct and traditional social assumptions about crime. In theory, ordinal proportionality requires the creation of a scale of values which can be used to assess the gravity of each type of offense: culpability, together with aggravating and mitigating factors, must then be assimilated into the scale. Lacey (1988) argues that both the general justifying aim of punishment and the principles for distribution of punishment raise questions of individual autonomy and collective welfare, neither of which should be sacrificed entirely at the expense of the other (p. 1100-1101).

What then becomes significant in contemporary society are the important issues about the workings of criminal justice institutions such as police and courts. The practice of legal interpretation takes place within a particular social context and in relation to criminal laws, which are they themselves, the product of a political process, which is surely relevant to their application and enforcement. Practices of punishment take place against the background of prevailing concerns about patterns of criminality about the vitality of social norms thought to be embodied in criminal law, and about the legitimacy of state power. Lacey (1990) states that the construction of the tripartite block itself is a porous one, given that criminal justice practices exist alongside and relate in an intimate, albeit complex way, to a variety of other -- political, economic, moral, religious, educational, familial – normative and sanctioning practices (Maguire, et al., 1997:441). Kelman (1981) also emphasizes the fact that criminal law doctrine evinces no consistent commitment to either a free will or a determinist model of human behavior (p. 441). He further demonstrates the manipulability and indeterminacy of the generally accepted doctrinal framework according to which criminal liability is constructed in terms of three elements: actus reus (conduct), mens rea (fault), and defense (or more accurately, its absence). Enormous diversity among criminal laws are seen in their procedural requirements, their scope, the construction of their subjects and objects, and their assumptions about responsibility. A close analysis of the criminal process reveals a multi-directional process in which both legislature and courts are involved in reflecting, interpreting, and shaping the social attitudes and norms upon which the efficacy and legitimacy of criminal justice depends. The full implication here of thinking about the conditions under which the criminal process might operate in less unjust, undemocratic, and oppressive ways should be realized within a broad set of historical, political, and social questions about the conditions of existence and efficacy of particular doctrinal arrangements. The last third of the twentieth century has witnessed a remarkable transformation in the lives of citizens living in advanced industrial societies. Where there once was a consensus of value, there is now burgeoning pluralism and individualism (p. 480). Featherstone (1985) speaks of a world of mass consumption, choice and preference and the constant stress on immediacy, hedonism, and self-actualization, all of which have had a profound effect on late modern sensibilities (Maguire et al., 1997:491). Young (1998) cites examples of widespread relative deprivation and heightened individualism (Maguire et al., 1997:481). Market forces, he says, generate a more unequal and less meritocratic society while market values encourage an ethos of every person for himself. Together these create a combination that is severely crimogenic (p. 481). Such a process, Young says, is combined with a decline in the forces of informal social control, as communities are disintegrated by social mobility and left to decay as capital finds more profitable areas to invest and develop. Families, Currie (Maguire et al., 1997:492) says, are stressed and fragmented by the decline in communities’ systems of support, the reduction of state support, and more diverse pressures of work. As a result of these factors, a more diversified population through immigration and the mass transit of people has emerged along with an increased diversity of value and debate about what is legitimate and illegitimate behavior. The future need for this diversity and pluralism and the increasing problematic nature of crime and deviance underscore the need for rational, just policies.

Certainly, there is a growing influence of government and government money in shaping criminological work. Policies and politics have conspired to make rational choice theory, the criminological anti-theory, particularly attractive to criminal justice agencies. Rational choice and control theories lay out a series of neat, inexpensive, small-scale, practicable, and non-controversial steps that may be taken to 'do something' about crime – understandably a strong tie to the strings of economics. The traditional application of the mens rea principle is a constitutional democracy founded upon free will. Individual treatment is nearly as fundamental to our system of criminal law as the mens rea principle itself. A "reasonably prudent" defendant can be posited with respect to many crimes, and it may be fair to presume full knowledge of the law and thrust upon him/her the risk of being subject to penalties due to criminal activity, but the issue of standards must be applied. An acceptable way to harmonize mens rea and other fundamental principles with the practical requirement of the law must remain consistent with the trend in the criminal process of increasing specificity and careful delineation of exceptions in handling matters of mens rea.

In his essays on history, Kant argues that theoretical reason can never determine whether mankind is progressing or not. War and the innumerable ghastly ways in which people mistreat one another seem sometimes to be waning, sometimes to be increasing, sometimes simply to go through an endless see-saw of more and less.

But morality requires us to try to bring it about that there is peace in the world, and that the standing form of government is everywhere one in which individual autonomy is publicly acknowledged and respected. We must therefore believe that it is possible to bring this about . . . however slowly . . . and at whatever cost to innumerable individuals throughout countless generations . . . . Thus within the world constituted by theoretical reason, practical reason directs us to form a moral world by imposing moral order on the whole of human society as well as on our individual desires. (Guyer, 1992:332)

To be virtuous, for Kant, is to be worthy of happiness: “And the perfect good requires that happiness be distributed in accordance with virtue” (pp. 110-11). Atheism and meaninglessness in history, he says, threaten to make morality pointless.

. . . we imperfect beings therefore ought to do what we can to bring it about . . . but it seems simply irrational to devote serious effort to bringing about a goal that one believes cannot be brought about. The moral agent, knowing herself required to act in ways that make sense only if certain ends can be achieved finds herself simply taking it that the world must allow the possibility of success. Since attitude is not translatable into theoretical knowledge, the agent cannot have any details about how her effort will help bring about the ends. All that is needed is the confidence that it will. Philosophy helps, Kant thinks, by showing that nothing can prove the attitude unwarranted. (p. 333).

The rightful legislation of pure practical reason categorically demands that we work for perpetual peace

. . . and the constitution which seems most fit for that (perhaps the republicanism of all states separately and together), in order to lead to it and to make an end to the abominable making of war, which has hitherto without exception been the ultimate purpose of . . . all states. And if the complete fulfillment of this intention always remains a pious wish, yet we do not deceive ourselves with the maxim of unremittingly working toward it; for this is duty . . . . One can say that this universal and enduring establishment of peace constitutes not merely a part but the entire final purpose of the theory of right within the limits of reason alone. (x62, 6:354-5 Penal Law)

References

Allison, H.E., Prof. (1999). Biographical Data Immanuel Kant. Available: http://www.columbia.edu/~pjs38/biokant.htm.

Baker, J.F. (1996). The Categorical Imperative In Modern Times. Available: http://members.aye.net/~jfbaker/kant.html.

Curzer, H. (1999). Ethical Theory and Moral Problems. California: Wadsworth Publishing Company.

Daniels, N. (1989). Reading Rawls. Critical Studies on Rawls’ A Theory of Justice. California: Stanford University Press.

Farelly, T.M. (1993). A New Approach to Moral Education: The Integrated Character Education Model. Journal of Correctional Education, 44, 76-85.

Freeman, S. (Eds.). (1999). John Rawls: Collected Papers. Massachusetts: Harvard University Press.

Gehring, T. (1993). Teacher Selection, Moral/Spiritual Education, and Character Formation for Confined Learners. Journal of Correctional Education, 44, 68-74.

Gregor, M. (Eds.). (1997). Groundwork of the Metaphysics of Morals. United Kingdom: Cambridge University Press.

Gregor, M. (Eds.). (1996). The Metaphysics of Morals. United Kingdom: Cambridge University Press.

Guyer, P. (eds.). (1992). The Cambridge Companion to Kant. New York: Cambridge University Press.

Honderich, T. (Eds). 1995). The Oxford Companion To Philosophy. New York: Oxford University Press.

Kant, I. (1998). The Critique of Judgement. (J.C. Meredith, Trans.). Available: http://eserver.org/philosophy/kant/critique-of -judgement.txt. (Original work published in 1790).

Kant, I. (1995). Critique of Pure Reason. (N.K. Smith, Trans.) Available:

http://www.arts.cuhk.edu.hk/Philosophy/Kant/cpr/. (Original work published in 1781).

Kant, I. (1990). Critique of Pure Reason (J..M.D. Meiklejohn, Trans.). New York: Prometheus Books. (Original work published in 1781).

Kant, I. (1965). The Metaphysical Elements of Justice (J. Ladd, Trans.). New York: Macmillan Publishing Company. (Original work published in 1797).

Kant, I. (1998). Religion within the Limits of Reason Alone. (Greene & Hudson, Trans.). Available: http://www.hkbu.edu.hk/~ppp/rbbr/rbbr0.html. (Original work published in 1793).

Maguire, M., Morgan, R., & Reiner, R. ( Eds.). (1997). The Oxford Handbook of Criminology. New York: Clarendon Press – Oxford.

Moore, G. (2000). Principia Ethica. (Revised Ed.). (2000). United Kingdom: Cambridge University Press.

Palmquist, S. (1992). Does Kant Reduce Religion to Morality? Kant-Studien 83:2, 129-148.

Pinckaers, Servais, O.P. (1995). The Sources of Christian Ethics. Washington, D.C.: The Catholic University of America Press.

Rawls, J. (1999). The Law of Peoples. Massachusetts: Harvard University Press.

Rawls, J. (1999). A Theory of Justice (Revised Ed.). Massachusetts: The Belknap Press of Harvard University Press.

Ross, K.L., Ph.D. (1996-1999). The Foundations of Value, Part I, Logical Issues: Justification (quid facti), First Principles, and Socratic Method (after Plato, Aristotle, Hume, Kant, Fries, & Nelson). Available: http://www.friesian.com.

Ross, K.L., Ph.D. (1996-1999). The Foundations of Value, Part II, Epistemological Issues: Justification 9quid juris) and Non-Intuitive Immediate Knowledge (Kant, Fries, & Nelson). Available: http://www.friesian.com.

Ross, K.L., Ph.D. (1996-1999). The Foundations of Value, Part III, Metaphysical Issues: The Theory of the Good. Available: http://www.friesian.com.

Ross, K.L., Ph.D. (1996). Morality, Justice, and Judicial Moralism. Available: http://www.friesian.com/value.htm.

Stevenson, L., & Haberman, D.L. (1998). Ten Theories of Human Nature. New York: Oxford University Press.