EQUIDADE, DIREITO DE NECESSIDADE E TEORIA PENAL EM KANT

Abstract

This article examines the context of Kantian theory concerning the concepts of equity and the right of necessity, addressing how Kant's legal formalism impacts criminal justice and the relationship between morality and legality. The objective is to analyze how Kant conceives these "doubtful rights" and the implications of his formalist approach, which prioritizes the rigid application of the law over moral principles in concrete cases. The methodology follows an analysis across three main axes: i) the Kantian distinction between morality and legality, emphasizing the differentiation between ethical and legal legislation; ii) the problem of applying strict law versus broad law, in which Kant considers equity and the right of necessity as categories that cannot be legally enforced; and iii) the analysis of Kantian penal theory, focusing on the principle of retaliation and the coherence between crime and punishment, including the death penalty. The results indicate that, although Kant recognizes the moral value of these rights, he limits their applicability in positive law, highlighting the tensions and limitations of Kantian formalism in dealing with the complexity of concrete cases.