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Document Details :

Title: Kant en Hegel over straf als vergelding
Author(s): VAN ERP, Herman
Journal: Tijdschrift voor Filosofie
Volume: 78    Issue: 4   Date: 2016   
Pages: 741-775
DOI: 10.2143/TVF.78.4.3203402

Abstract :
The necessity of retaliation is often considered as an irrational relict of religious origin. Both Kant and Hegel, however, defend the concept of retaliation on purely philosophical grounds. This article aims, not to criticize or to amend their theories, but to give an interpretation of them as a consistent whole. The first three sections concern three basic statements of the Kantian theory of punitive justice: a) retaliation is the only legitimate ground of legal punishment; b) it is a categorical imperative that crimes must be punished; c) only the talio-principle supplies an a priori norm for measuring the severity of a punishment. The fourth section considers under which terms Kant accepts other ends of punishment. The fifth and sixth sections make clear that Hegel’s conception of punishment as the negation of a negative will does not reject Kant’s retaliation theory. Hegel emphasizes that it is not reason in general but the verdict of a judge, having considered the particular circumstances, which must determine the proportionality between crime and punishment. Within the ethical sphere of civil society, retaliation takes on the character of the reconciliation of right with itself. Kant and Hegel have no moral problem with the death penalty as a case of retaliation. The last section asks whether modern society has specific moral reasons, compatible with Kantian and Hegelian ethics, to abolish the death penalty as a form of legal punishment.

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