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.

KEYWORDS:

• Punishment
• Fichte
• rights
• humanity

Notes

1 See, for example, Rousseau’s claim that “to renounce one's freedom is to renounce one's quality as a man  … Such a renunciation is incompatible with the nature of man” (SC 1.4.6).

2 See Lazzari, “Eine Fessel, die nicht schmerzt und nicht sehr hindert”.

3 See Renaut, Le système du droit.

4 See Merle, German Idealism and the Concept of Punishment, 100.

5 As when he states that “at the basis of all voluntarily chosen reciprocal interaction among free beings there lies an original and necessary reciprocal interaction among them, which is this: the free being, by his mere presence in the sensible world, compels every other free being, without qualification, to recognize him as a person” (GA I/3: 384; FNR 79).

6 Fichte suggests that legal recognition itself is made possible by recognition of another person as a human being or rational being as such: “I become a rational being – actually, not merely potentially – only by being made into one; if the other rational being’s action did not occur, I would never have become rational” (GA I/3: 375; FNR 69). Viewed genetically, the ways of attaining the relevant form of self-consciousness include education (Erziehung), which Fichte mentions in connection with how a human being “becomes a human being only among human beings” (GA I/3: 347–8; FNR 37). Once self-consciousness has been achieved, however, the individual concerned can decide whether or not he or she wishes to remain a member of the community in which he or she first encounters him- or herself as a rational being through the recognition accorded to him or her by at least one other human being. Moreover, a single instance of mutual recognition might be sufficient to achieve the relevant form of self-conscious. Indeed, Fichte himself suggests that it could be a one-off matter: “But that, even after self-consciousness has been posited, rational beings must continue to influence the subject of self-consciousness in a rational manner, is not thereby posited, and cannot be derived without using the very consistency that is to be proven as the ground of the proof” (GA I/3: 385; FNR 81).

7 Robespierre, “Sur le jugement du roi”, 122.