Fichte and the Psychopath: Criminal Justice Turned Upside Down

Abstract

The question is whether the hard incompatiblist or the free will skeptic can make sense of an approach to criminal justice that maintains something like the distinction between punishment and preventive measures. I argue that Fichte's approach, wherein the natural response to any crime is outlawry, and subjection to punishment is an exception to outlawry, rather than the other way around, give us a useful way to look at criminal justice. Instead of seeing preventive measures that follow upon certain excuses (like insanity) as the exception and punishment the default, it is enlightening to see preventive measures, which I take to be our analogue of Fichte's outlawry, to be the default and punishment -- or rather what I call "correction" -- to be the exception. This view of things places limits upon punishment or correction that seem to me to call for a more humane system altogether.

Keywords: criminal justice, punishment, free will, retribution