10.1080/09608788.2020.1828030

Crime, contract and humanity : Fichte's theory of punishment

Abstract

I argue that two aims can be detected in Fichte’s theory of punishment: a technical aim that concerns adopting the appropriate means of punishing the criminal with a view to ensuring public security and an aim that suggests respect for the criminal’s humanity, namely reform. There is shown to be a tension between these two aims in that the state’s right to punish presupposes the criminal’s loss of humanity defined in terms of his or her freedom. The source of this tension can be traced back to Fichte’s contractual explanation of the state’s right to punish, rather than to some inconsistency on his part. Fichte argues that the criminal should, if possible, be granted the opportunity to reform him or herself, allowing him or her to re-enact the ‘civil contract’ and thereby become again a rights-bearing legal entity. Ultimately, however, the criminal’s humanity, in so far as it has any legal standing, is something that remains within the state’s power to grant or deny him or her according to whether or not it judges that the technical aim of punishment can be achieved, as I show with reference to the example of a criminal with a ‘formally bad’ will

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oai:wrap.warwick.ac.uk:142025Last time updated on 10/5/2020

This paper was published in Warwick Research Archives Portal Repository.

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