Shortcomings of Lex Talionis

German philosopher, Immanuel Kant, is arguably one of the most important and most widely read philosophers of morality.  However, this popularity and merit does not come without challenges in his arguments.  Two central ideas in Kant's moral philosophy are the Principle of Humanity and Lex Talionis, the theory used when prescribing justice. The principle of humanity, in short, claims it is morally obligatory to treat others never as merely an object, but rather always with respect for humanity, or anything capable of autonomy and reason.  Kant argues that humanity is infinitely valuable.  Lex talionis, on the other hand, is the law of retaliation.  Broadly, it "tells us to treat criminals as they have treated their victims" (Shafer-Landau 182). In other words, it is the eye-for-an-eye principle.  In this post, I will argue that Kant's principle of humanity and lex talionis are contradictory of each other's core principles.

To bring context to these abstract principles, consider a recent shooting in Georgia.  In this incident, the police chief of Peachtree City, Georgia claimed he accidentally shot his wife.  The timeline of the incident goes as follows: police chief McCollom went to bed New Year's Eve after consuming both alcohol and sleep medication.  He was then awoken by his dogs barking.  He got out of bed with his 9mm gun to check the house for intruders.  After determining the house was clear, he returned to bed and placed his gun under the sheets with him.  McCollom then awoke again to a gunshot that struck his wife leaving her paralyzed. Police and forensics declared that there was clear evidence that the incident was accidental.  McCollom will likely be charged with a misdemeanor of reckless conduct.

So, how might Kant deal with police chief McCollom.  According to lex talionis, it is McCollom's just deserts that he be shot in the side with a gun rendering him paralyzed.  Our gut tells us that this is an incredibly harsh punishment especially for a, while clearly reckless, accidental incident.  Lex tells us that a criminal must suffer in the same way as the victim in order to sympathize with the victim's unnecessary pain; however, it seems as though intent should play a part in this decision beings how the intent of an action is determined by a rational and autonomous decision.  If there was no intent to harm his wife, ought McCollom be punished for his lack of rationality in bringing the gun to bed rather than the accidental outcome? Lex tells us otherwise.  This proposed treatment of McCollom is contradictory to the principle of humanity claiming we ought to treat others with respect for humanity.  Shooting an unintentional criminal seems to go against the principle of humanity.  Kant justifies lex by arguing, "such punishment treats a criminal as an end, and thus with the respect he deserves, because it treats him as a rational and autonomous person" (Shafer-Landau 182).  However, as stated above, the crime was not the direct product of a rational and autonomous decision, thus McCollom ought not be punished as lex talionis prescribes.

Another clear issue with the practical implications of lex is how the state ought to deal with this type of punishment.  If the state were to adopt a lex theory of punishment, it would be necessary for the state to hire professional killers, shooters, rapists, etc.  While this is clearly problematic in a practical sense, it is also problematic for the theory of lex.  Kant does not give us a way to deal with executing this type of punishment.  If I were to shoot McCollom in the side in punishment for the crime he has committed, I have now just committed the same crime.  How are we supposed to deal with those that deliver the punishment to the criminals? Are these "punishers" excused from morality?  Are the punishers morally obligated to commit crimes in order to deliver justice? Or, on the contrary, or these punishers now guilty of the same crime thus subject to their own lex talionis? Lex implies that we use criminals as merely a means to obtaining justice. It seems as though lex sets us up for a never ending chain of crime and punishment.

http://www.cnn.com/2015/03/11/us/georgia-police-chief-wife-shooting/index.html