PART II - PUNISHMENT AS A MEANS OF REHABILITATION

Summary

I will proceed with my reconstruction of what should have been Kant's theory of penal law, had it been derived from Kant's concept of right, through an interpretation of the Fichtean and the Hegelian theory of punishment. Since the degree of punishment that both Fichte and Hegel support (incapacitation and resocialization, as we shall see) is nearly the same, interpreting both authors may seem redundant. Thus one may ask oneself whether treating the more famous of the two, who is at the same time the one often considered as being a retributivist, would not suffice. However, the ways in which they come to this shared conclusion could hardly be more divergent. As we shall see, whereas Fichte begins with the unilateral breaking of the social contract by the criminal and with its consequences (the exclusion from the commonwealth), and then introduces a normative obligation to realize the concept of right, Hegel starts with the validity and the enforcement of law that has to be manifested, without drawing on the figure of exclusion – on the contrary, the criminal does not cease to belong to the commonwealth and to enjoy by the same token respect for his or her human dignity. Whereas Fichte focuses on the fate of the criminal, Hegel takes the validity of the law as the basis for his approach.