He has put forward this view on the ground
that the penalty of death could not be contained in the original civil
contract; for, in that case, every one of the people would have had to
consent to lose his life if be murdered any of his fellow citizens.
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, "I
will 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.
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