| Summary: | 碩士 === 東吳大學 === 法律學系 === 102 === The Kantian retributivism represents a critical turn on the development of theory of punishment. Theories before Kant was regarded by him as lack of respect to the dignity of criminal, for these theories merely take criminals as means toward some kind of good. The Kantian retributivism could correspond to three following theses: 1) all criminals, and only criminals, should be punished; 2) the punishment serves as retribution for the crimes committed; 3) the degree of punishment must be equivalent to the crime in order to show the criminal’s moral demerits. Since Kant did not tell much about the ground of his theory of retribution, we must exam this theory on the ground of Kantian philosophy of law and ethics. Jean-Christophe Merle contends that the Kantian retributivism contradicts to Kantian philosophy of law and ethics, therefore, on the ground of Kantian philosophy, Merle reconstruct a theory according to the categorical imperative, a sort of rehabilitation theory: by committing a crime, the criminal excludes himself out of the commonwealth, loses his civil personality and a state of nature by definition prevails over the relationship between the criminal and the rest of the commonwealth; however, the categorical imperative demands the creation of a legal system, if the establishment of the institutions constitutive of a state of law not be immediately possible, then permissive law demands achievement of it for everyone in the quickest way possible. The criminal law is thus a second order demanding the criminal to reenter the commonwealth, and the only means to that end is termed by Kant in Pedagogy “discipline,” the unilateral coercion upon the criminal. Therefore, only the punishment as rehabilitation is permissible, which at the same time directs toward the criminal himself, regards him as an end with respect to his dignity. In my opinion, there is no legal authority under the state of nature, thus as well as no authority to judge and punish; while the state of law indicates the coexistence of empirical freedoms according to the universal law of equal rights for all legal persons, so that the criminal is in a state of exception under the legal authority. It is necessary to suspend the criminal’s right in order to protect everyone’s equal freedom, including the freedom of the criminal. After denying the moral ground of Kantian retributivism, in the situation that humanity means reason, theory of general deterrence could be one of the rational lawgiving. In the other hand, only Merle’s contention, that is, humanity means human himself, can absolutely prohibit torture and death penalty. This would leads to a sort of theory of specific deterrence in order to fulfill the rehabilitation of the criminal, and a humane penal system.
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