ULP Law Review : Revista de Direito da ULP, v. 15 n.º 1 (2021)

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Percorrer ULP Law Review : Revista de Direito da ULP, v. 15 n.º 1 (2021) por assunto "CRIME THEORY"

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    Kant on Punishment and Criminal Law – Nine Thesis
    (Edições Universitárias Lusófonas, 2021) Renzikowski, Joachim; FL - Faculty of Law
    Kant is generally regarded as a representative of the theory of retaliation. This position is accused as scientific untenable. Supposedly, the idea of retaliation disregards all social purposes and demands punishment even where it was not necessary for the protection of legal interests. In doing so it would lose its social legitimacy. The state was not entitled to realize the “metaphysical idea of justice”. Finally, the idea of guilt which is to retaliate could not alone bear the punishment, because individual guilt was bound to the existence of a freedom of will. But freedom of will could not be proved which made it unsuitable as the sole foundation for state intervention. This view of Kant’s has been widely held since the “Verabschiedung” of Kant by Ulrich Klug in 1968. However, as will be shown below, it has very little to do with Kant. On the contrary: Kant’s Metaphysics of Morals of 1797 5 contains an already quite sophisticated criminal theory of timeless quality. In order to elaborate on them, however, one must not, as is customary, pick out a few passages, but one must take note of the “whole” doctrine of law, in particular Kant’s statements on subjective law, on the abandonment of the law and on the rule of law. The basic features of Kant’s theory of crime will be presented in the following nine theses, backed up by relevant textual evidence.