Kant e il diritto di punire

The Kantian theory of the right to punish is often interpreted in a retributivist sense, as founded on the moral necessity of the link between physical evil and guilt. Such an interpretation confuses two questions which, in the eighteenth-century discussion on the right to punish, were dealt with in various joint ways: the question of the foundation of the right to punish - if, why, and on the basis of what to punish - and that of the criterion of distribution and determination of punishment - when and how to punish.

This essay defends the thesis that Kant supported a utilitarian theory of the foundation of criminal law and a retributivist theory of the criterion for determining penalties. The thesis that the foundation of the right to punish is to be found in moral retribution is not only not endorsed by Kant, but is irreconcilable with the distinction between law and ethics, as he proposes it. Indeed, the right to punish distinguishes law from ethics, as penalties are for Kant the instrument that produces the legal motive, that is, the means of constraint that, in the legal sphere, procures obedience to the laws The faculty of punishing therefore coincides for Kant with the possibility of creating a juridical motive and is therefore founded in a utilitarian way, if by this we mean - as is customary and as Kant also intended - ne peccetur.

As for the determination of the penalty, Kant supported a retributivist theory. The principle of retribution fulfills the task, in the Kantian penal doctrine, of determining who and when should be punished, while a specific retributivist principle, the ius talionis, fixes the quality and quantity of penalties: regardless of what legitimizes the existence of laws penalties, the imposition of the penalty must be subjected to criteria of justice, established as a barrier against any possible arbitrariness.