A punição no sistema moral kantiano

Abstract

This work constitutes an investigation about the purpose that Kant assigns to punishment in doctrine of duties and, therefore, analyzes the punitive questions related with doctrine of the Law, with doctrine of the Virtue (Ethic) and with doctrine of the Morals (Moral), well as their relations, at last the Moral, understood like a system composed of principles purely a priori, divides in Ethics and Law. The mentioned investigation begins with presentation of basic notions about the treatment spent for Kant to penalty, so that to explain what the philosopher understands by punitive justice, wrongdoing and punishment, well as present some polemic cases analyzed by him. In sequence, exposes and analyzes, critically, some possible interpretations to the Kantian writers about the punishment. Thereby, talks (i)about pure retributivism in your traditional version e in two sophisticated version, one with application of the notion of real negation and other defending the punishment like a kind of law defined by the criminal’s maxim; (ii)about partial retributivism stems from the perception of two punishment’s faces or of the social moral disapprobation that follows the penalty; (iii)about moral retribution and juridical utilitarism, that separates the punishments moral and juridical; (iv)about special prevention, understood like neutralization and resocialization. As from the verification of problems existents in interpretative possibilities established, proposes a construction of one new interpretation, based on a differentiation of Law, Ethic and Moral and in implications of this last (Moral) in the doctrine of the Law and of the Virtue. A new interpretation, in contrast to the traditional observation purely retributive, defends the existence of a preventive ambit of punishment, whose may be verified even in the book The Metaphysics of Morals, one of the latest works of Kant that would constitute the mature vision of this philosopher. That way, (a)the moral punishment have a merely retributive purpose, (b)there isn’t an ethical punishment, despite the existence of internal self-evaluation process, and (c)the juridical punishment have preventive and retributive finality. The dual purpose of juridical penalty stems from moral justification and its hypothetical necessity, as means to prevent the criminal occurrences. The mentioned purposes of juridical punishment are reached in three moments: (i)when considering the juridical sanction in the abstract that, contained in the criminal law itself intimidates the collectivity; (ii)in the determination, from the judge, of the penalty applicable to that particular case, because the magistrate must sets a retributive sanction, but, within the limits of retribution, must choose a penalty that prevents new crimes; (iii)in the execution of the penalty, since this phase allows that the condemned reeducate themselves and/or serve as an example to others. Finally, presents a subchapter with general clarifications that support the thesis of coherence in Kant writings about punishment.