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.

摘要

我认为，在费希特的惩罚理论中可以发现两个目标：一个是技术目标，涉及采用适当的惩罚罪犯的手段以确保公共安全，另一个目标是尊重罪犯的人性，即改革。这两个目标之间显示出一种紧张关系，因为国家惩罚的权利以罪犯丧失人性为前提，该丧失是根据他或她的自由来定义的。这种紧张的根源可以追溯到费希特对国家惩罚权的合同解释，而不是他的一些不一致之处。费希特认为，如果可能的话，应该给予罪犯改造自己的机会，允许他或她重新制定“民事合同”，从而再次成为一个享有权利的法律实体。然而，最终，