Austin Sarat


Punishment, as Nietzsche reminds us, makes us who we are and constitutes us as particular kinds of subjects The subject constituted by punishment is watchful, on guard, fearful, even if never directly subject to the particular pains of state-imposed punishment. One of the primary achievements of punishment, to use Nietzsche's vivid phrase, "is to breed an animal with the right to make promises," that is, to induce in us a sense of responsibility, a desire and an ability to properly discharge our responsibilities. Dutiful individuals, guiltridden, morally burdened - these are the creatures that punishment demands, creatures worthy of being punished.

Punishment constitutes subjectivity through the complex juridical mechanisms that put it in motion, as well as the moral tenets and legal doctrines that legitimate it. Here too, we can see the centrality of responsibility. The state will only punish responsible agents,

persons whose "deviant" acts can be said to be a product of consciousness and will, persons who "could have done otherwise." As Blackstone put it, "to constitute a crime against human laws, there must be, first, a vicious will, and, secondly, an unlawful act consequent upon such vicious will." Thus, the apparatus of punishment depends upon a modernist subject and a conception of the will that represses or forgets its "uncertain, divided, and opaque" character.