Justificação da pena a partir de Kant
FREIRE, Leonardo Oliveira. Justificação da pena a partir de Kant. 2015. 179f. Tese (Doutorado em Filosofia) - Centro de Ciências Humanas, Letras e Artes, Universidade Federal do Rio Grande do Norte, Natal, 2015.
Freire, Leonardo Oliveira
The dissertation main concern is with Kant´s theory of punishment in his Doctrine of Right, especially his justification for the right to charge (i.e., to attribute crime) and punish (i.e., to impose a penalty sentence). Yet, opposing to interpreters and critics for whom the idea retribution is crucial for Kant´s theory but disputable we advocate that his theory involves three essential criteria to punish, viz. crime retribution, crime prevention and social rehabilitation (except in case of capital penalty), and that only the third justifies imposing a criminal penalty, while the first and second are complementary to the right to punish. This perspective takes imposition of penalty as prima facie criterion for retribution, while (special and general) prevention and rehabilitation are taken as constitutive criteria of the right to punish, viz. rehabilitation in implementing the temporary deprivation of freedom and prevention as element of coercion (which for Kant is implied by Right as such). Thus, we hold, first, that from the perspective of Kant´s theory punishment involves much more than mere retribution, and second, that retribution, prevention and rehabilitation are not necessarily incompatible each other. Accordingly, chapter one deals with Kat´s theory of criminal law in his Metaphysics of Morals, § 49, Section E, "The right to punish and grant clemency." First we discuss the concept of retribution and analyze the grounds for supporting justified punishment. Then, we argue that the limitation of the offender´s freedom is supported by reason in restoring reciprocal external freedom. In the second chapter we discuss other punishment theories and explain how Kant develops a theory that is not restricted to retributionism. Thus, we present a reinterpretation of Kant´s global theory of ius puniendi and defend that freedom is the actual foundation for punishment. Moreover, we dialogue with some contemporary interpreters, especially Jean Christoph Merle, a severe critic of retribution and enthusiastic advocate of rehabilitation, and hold that the rational coherence of Kant´s theory about capital punishment does not imply eliminating the acceptance of specific punishment in other cases aimed at rehabilitation. In the third and last chapter we discuss the possibility of temporary deprivation of freedom as mean of rehabilitation aiming at moral improvement. We also discuss improvement through the process of education, as well as the possibility of biotech moral improvement within the current and future criminal enforcement system. In the end we present a summary and highlight the main points of our research that justify rationally Kant´s theory of the right to punish as we understand it.