Stillman - Hegel's Idea of Punishment

Hegel's Idea of Punishment

Stillman, Peter G.

Journal of the History of Philosophy, Volume 14, Number 2, April 1976,pp. 169-182 (Article)

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Hegel's Idea of Punishment*

PETER G. STILLMAN

THAT HEGEL EXPOUNDED a justification of punishment is clear. The type, logic, and details of his justification, however, are less clear. 1 But Hegel's theory can be under- stood as a theory of punishment which is logical and coherent and which, as well, has some interesting implications. Thus, some of Hegel's ideas may be worth re-introducing into the current and continuing debate on punishment and its justification. Further- more, HegeFs theory yields some important perspectives on the tenor of Hegel's general political philosophy.

One problem immediately facing a commentary on Hegel is the definition of the dialectical setting of the subject under consideration. Hegel propounds his theory of punishment primarily in his Philosophy oJ Right, ~ where punishment is treated at the end of the first part, entitled "Abstract Right." As its title implies, "Abstract Right" considers r ights--and humans- -not in their fullness but abstractly. The human actors in "Abstract Right" are persons, which for Hegel is a technical term: a person is but an abstraction from man. A person has human free will, in the form of "arbitrary" or "particular" free will, the will that can will whatever it wants to, the will to---as Locke says - -"do or forbear doing any particular action according [to] the actual preference

* This article has benefited from the comments and criticisms of individuals too numerous to list. I should like especially to thank the many faculty and students of political science and philosophy at Vassar College who aided---or tried to aid--me in clarifying my thoughts and presentation; in addition, I appreciate the comments and questions I received when an earlier version of this article was presented at the Northeastern Political Science Association Meeting on 9 November 1973.

1 The best treatments of Hegel's views on punishment are Hugh A. Reyburn, The Ethical Theory oJ Hegel (Oxford: Oxford University Press, 1967 [1921]) and David E. Cooper, "Hegel's Theory of Punishment," in Z. A. Pelczynski, ed., Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1971). Cooper's chapter is especially valuable, because it discusses the question of the "general iustifying aim" of the institution of punishment. Both treatments, however, are incomplete at important points.

Two points of language usage should be mentioned. First, "theory," "justification," and "philosophy" of punishment are used synonymously. Secondly, "deterrence," "deterrent theory (or justification)," "deterrent punishment," and "punishment justified by deterrence" are used synonymously, to mean "punishment justified by deterrence," an ungainly phrase; a similar usage obtains with "retributive," "utilitarian," "reformative," and "corrective."

2 G. W. F. Hegel, Philosophy of Right [1821], trans. T. M. Knox (Oxford: Oxford University Press, 1945); Hegel, Grundlinien der Philosophie des Rechts, ed. Johannes Hoffmeister, 5th ed. (Hamburg: Felix Meiner, 1955). In conformity to the sensible continental practice, citations to the Philosophy of Right are placed in parentheses in the text, and are according to section (not page) number; where the material cited is from the main text of the section, the section number alone is given; where it is from the "remarks" Hegel added to the text, the section number is followed by "R"; where it is from the "additions" which later editors appended to posthumous editions by collating student lecture notes, the section number is followed by "A." Hegel wrote marginal comments in his own copy; these, untranslated by Knox, are cited by the page number of the German edition, preceded by Hoffmeister's name.

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170 HISTORY OF PHILOSOPHY

in the mind. ''~ He also has "particularity": certain characteristics---like height and age, impulses and desires---which can identify him and provide "springs for action," but over which he and his arbitrary will have no control (35), beyond the ability to choose arbitrarily among given impulses and desires. As humans with an arbitrary will, un- selfconscious actions, and choices motivated purely by the "last appetite in deliberating," small children have much the same characteristics as persons. 4 Because his is only an arbitrary will, the person has no moral intentions, no consciousness of what is right, no concern with welfare, no institutions, no interpersonal life except that of contract. Thus, questions of morality, intention, and welfare never arise for the person and are beyond the bounds of "Abstract Right" and Hegel's primary discussion of pnnisb-ment. 5 Similar- ly, because the arbitrary will has no control over particularity, questions about this desire or that piece of property do not arise; the only aspects of importance are the will and the rights which it claims. Thus, for instance, a person may have a desire to possess a piece of meat to satisfy his need for food; but, in "Abstract Right," the "true and right factor in possession" is the person's free will dalming a thing (in this case his will claiming the meat) and therefore making it his property and the embodiment of his freedom (45). These abstractions are of course a logical fiction, existing in an equally fictitious pre-political condition, in which the person is shown to have the rights to property, fife, and liberty (45, 52R, 57). "Abstract Right" is, in short, a condition not dissimilar to the state of nature of Locke and the eighteenth century, except that its beings are not natural men but abstract persons, with not natural rights but abstract fights. 6

I. In the opening sections of "Abstract Right," persons claim property and make contracts. In the third section, "Wrong," a person wants something which is already owned as property but does not want to obtain it by making a fair contract involving goods of equal value. The person, therefore, just takes the property, or hits the other person, in violation of the other's fights. This is crime, where the criminal negates the victim's right to the particular property stolen and also denies the victim's capacity for rights in general by depriving him forcibly of a property which embodies his rights and freedom. Crime involves the coercing of the innocent person's will and therefore the

s John Locke, An Essay Concerning Human Understanding, Book II, Chap. XXI, Sr 15. See also, e.g., Thomas Hobbes, Leviathan, Chap. 6.

4 It must be noted, however, that development in Hegel's philosophical texts is logical, not historical or psychological--however much the three parts of the Philosophy o/Right coincide with Jean Piaget's development of The Moral Judgment o/the Child (New York: The Free Press of Glencoe, 1948 [1932]).

5 Thus, for instance, Mabbott is wrong almost prima/acie when he asserts that Hegel maintains that the "essential connection" is between punishment and "moral or social wrongdoing" (J. D. Mabbott, "Punishment," Mind, XLVIII, 190 [April, 1939], 154), for neither morality nor society yet exist at the level of abstract rights, where Hegel primarily discusses puninhment. Hegel does introduce further, non-abstract right aspects of punishment later--a law code, somo concern with intention, pardon, crimes against the state, and a system for the administration of justice---but these produce only minor additions and no essential changes to the theory of punishment at abstract right--except, of course, to make the abstract into the concrete and existent.

e For discussions of the part, "Abstract Right," see my "Hegel's Critique of Liberal Rights," American Political Science Review, LXVIII, 4 (December, 1974), and Joachim Ritter, "Person und Eigentum" [1961], in his Metaphysik und Politik (Frankfurt am Main: Suhrkamp, 1969) and (in French) as "Personne et Propritt6 selon Hegel," Archives de Philosophie, XXXI, 2 (April-June, 1968), 179-201. Ritter does not deal with the section on wrong and its annulment.

HEGEL ON PUNISHMENT 171

denial (or negation) of the freedom and fights of the victim's will. The will can be coerced simply because it exists in property in order to manifest its freedom; in crime, the victim's will, coerced, is deprived of the embodiment of its freedom (91). On the level of fights, then, crime is a denial of rights and in effect an attempt to negate rights.

It might be noted that Hegel is aware that few criminals consciously commit crime in order to deny the rights of others. A person who is very hungry may steal from a rich person, not in order to deny that rich person's rights, but in order to survive. But intentions and particular circumstances have no relevance in terms of abstract rights. The "true and right factor" must relate not to intentions or particularity but to the will and to rights; what matters is the will of the criminal person denying the rights of the victim.

Hegel's idea of crime as a negation, which must be annulled, derives from the self- contradictory will of the crime. The coercion of crime shows itself to be "directly self- destructive," because the coercion shows itself to be an expression of a person's will (the criminal's) which negates the property and freedom of a person's will (the victim's) (92). For the criminal committing the crime is, after all, a free person (an unthinking animal cannot commit a crime); as a free person, he participates in the universality of personality, the free will. By coercing, of his own free will, another person's free will, the criminal is denying not only that particular person's free will, but also the free will of that person as a person, i.e., of all persons. For all persons are equal in terms of what essentially defies them as persons: their free will and rights; "in respect of their personality persons are equal," indeed "identical" (49R; Hotfaneister, 333). To attack the free will and rights of any person is therefore to deny that all persons (including the criminal, who is a person) have free will and rights (Hoffmeister, 367). Crime, then, is a contradictory, directly self-destructive act, in that it is the will of a free person which negates the existence of free personality, free will, and right. 7

A crime is a self-contradictory assertion; it is also an incorrect assertion. By committing a crime, the criminal person asserts that no persons--not the criminal, nor the victim, nor any other person--have fights. In a sense, it is an assertion, by a person living in a world of persons, that persons do not exist. But this assertion is not correct: persons with rights do exist, and indeed both criminal and victim remain as persons with rights before, during, and after the crime. That persons with rights exist is evident from either a logical or an historical point of view. In terms of logic, persons earned and actualized their rights to life, liberty, and property in the prior sections of "Abstract Right"; these earned rights exist, and, as logically prior to the criminal's assertion, show his denial of rights to be inaccurate. Similarly, but in historical rather than logical terms, the historical development of Western Europe has produced men who have "an ever- present sense that they are not and cannot be slaves; if they are made slaves, if the decision as regards their property rests with an arbitrary w i l l . . , they would find the very substance of their life outraged. ''s The historical development of the fight to life,

7 Cooper misses the point when he argues that the self-contradictory behavior is merely inconsistent: "even if it is inconsistent, why should it be punished? No doubt inconsistent be- haviour should be brought to the attention of the agent--this might be the job of a psychoanalyst --but I do not see how inconsistency per se merits punishment" ("Hegel's Theory of Punish- ment," pp. 160-161). Cooper ignores the universality of the person and of the rights of persons, the "equality (identity) of men in terms of personality." (Hoffmeister, 333); identity means that what is true for one person is true for all (71). Also, since there are no intentions nor morality nor society, there are no psychoanalysts in "Abstract Right."

s G. W. F. Hegel, Philosophy of Mind, trans. William WaUaee (Oxford: Oxford University Press, 1894 [first published as Enzyklogiidie (1830)]), See. 482R.


liberty, and property is both prior to a contemporary crime and stronger than any isolated person's crime; thus, in historical terms, the criminal's denial of fights is inaccurate.

The crime, as a self-contradictory, inaccurate assertion, is "inherently . . . nothing at all" (97). This does not mean that Hegel thought that the results of crime---the injured person, the stolen property---did not exist; he was well aware that "the infringement of right as right [crime] is something that happens and has positive existence in the external world" (97). "A crime alters something in some way, and the thing has its existence in this alteration" (97A). Furthermore, what has been done in the world of existence cannot be undone, although restitution of equivalent value may be sought in a civil suit (98). It is not in terms of particular existents in the external world, but in terms of right that Hegel means that crime is nothing at all.

Conceptually crime is nothing at all; it does not exist; as a contradictory and incorrect assertion about rights, it disappears as it is made. But, as Hegel emphasizes, that which is conceptual must be realized in existence as well; this essence of crime as null must be actualized in the objective world. "The manifestation of [crime's] nullity is the appear- ance . . . . in the external world, of the annihilation of the infringement," the annulling of crime (97). What is in substance null is thus also annulled in the world of existence.

In order for crime to be annulled, its positive existence must be negated. But the injury of crime, from the point of view of the injured persons and of other persons, is only something negative--a denial of rights; "the sole positive existence which the injury [the crime] possesses is that it is the particular will of the criminal" (99). Thus, to injure the particular will of the criminal is to negate the negation of right, to annul the crime, and to restore the right; with the injury of the particular will of the criminal, the positive existence of the crime no longer exists, the infringement of right is annulled, and right is restored. Conceptually, crime is nothing at all; with the annulment of crime in the objective world, crime's nullity is manifest. Criminals are punished in order to ratify in the objective world the truth within the conceptual world: that crime is null.

Thus, in civil society, where abstract rights become concrete by being posited as laws and where men are still equal in respect to their personality, crime is the breaking of the law and implicitly the assertion that the law does not exist as right and binding. But the laws continue to exist, to protect men (including the criminal), and to guide human behavior; the criminal's assertion thus remains self-contradictory and wrong, and crime is a nullity in terms of law. To punish the criminal is simply to indicate, in the world of existence, what is true in the actuality of laws: the nullity of the act.

To annul the crime is not optional; it is required. Otherwise, the crime and its implicit denial of rights--would be held as valid (99). In abstract right, if the rights of one person are allowed to be negated by crime, then--since persons are equal in rights--all persons lose their rights. In general, even outside the Hegelian context, it holds that, when rights are not enforced and denials of them not refuted, the fights fall into disuse and disappear; rights thus must be enforced and upheld by annulling wrong. And, since all persons are equal, persons who are criminals must all have their crimes annulled; ~ so it is necessary that all crimes be annulled.

Hegel justifies annulment of crime in retributive terms. The justification of the penalty involved in the retribution is determined in proportion to the offense: "since as existent

9 This is the principle of equality under law. When mercy is advisable, pardon is possible (282).


a crime is something determinate in its scope both qualitatively and quantitatively [e.g., one stolen car, theft of $1,000], its negation as existent is similarly determinate" (101). But this lex talionis does not mean literally an "eye for an eye"; rather, the crime and its annulment are essentially both coercions of right, and are equivalent as coercions; "the two injuries [the crime and its annulment] are equal in respect to their implicit character, i.e. in respect of their 'value' "(101).

Hegel's discussion of crime and its annulment maintains philosophical rigor by care- fully avoiding the use of the term "punishment" in the text (though not in the informal supplementary remarks intended for general readers nor in his lectures for students). For the annulment of crime takes many forms. In the sphere of abstract right, and in general where there are neither laws nor magistrates, annulment is revenge. Revenge, however, is an unsatisfactory form of annulment, because it is carried out by an interested party whose status as judge and whose judgment itself are arbitrary, especially to the supposed criminal. "Hence revenge . . . becomes a new transgression" (102). "Amongst uncivilized peoples, revenge is deathless; amongst the Arabs, for instance, it can be checked only by superior force or by the impossibility of its satisfaction" (102A).

Because the agent is both interested and arbitrary, "no act of revenge is justified" (220). Since crime is a negation of what is universally right, the negation of the negation and the restoration of right should not be performed by the particular arbitrary will of a particular arbitrary person; to begin a cycle of revenge is certainly not right. The medieval knight--disinterested but arbitrary and irregular--is only a small improvement. Modem societies, therefore, transform annulment from revenge to punishment, which is carried out in civil society. With the administration of justice, abstract right becomes existent and determinate as positive law--uniform, known to all, and not arbitrary (211; 215). Laws are applied to particular crimes by a court of justice. The court is disinterested and motivated by the right: "instead of the injured party, the injured universal [right] now comes on the scene . . . . in the court of law" (220), which applies the law "without the subjective feeling of private interest" (219). From its disinterested application of uniform law, the court gains an authority the single revenging individual lacks (220). Thus, the court "takes over the pursuit and the avenging of crime, and this pursuit consequently ceases to be the subjective and contingent retribution of revenge and is transformed into the genuine reconciliation of right with itself, i.e. into punishment" (220). The question of the criminal's intent is now a subsidiary part of the process (132R) and, in order to deal with cases where there are severe extenuating circumstances, the chief of state has the privilege of pardon (282). In short, in modem civil society annulment takes the form of punishment, which is uniform, disinterested, and authoritative.

II. Hegel's justification of punishment and penalties is retributive. As retributive, it is, on the surface at least, not humane nor Liberal nor modem. For the standard Liberal and modem justifications are utilitarian, usually focusing upon reforming the criminal and preventing future crime. But Hegel rejected utilitarian justifications of punishment and approved the implications of retribution for what are basically liberal and humane reasons. In the context of crime and punishment, a context in which men are frequently regarded at best as children and more commonly as animals, Hegel stresses that the criminal is a rational being who must therefore he treated as a rational being; that the


criminal is a person and therefore a subject, 1~ and must be the subject and not the object of the free will; and, consequently, that even when a criminal, the person has worth and dignity.

Even though he has denied the rights of personality, even though he has committed an unright act, the criminal is treated as a subject. He is the subject of his punishment - -h is is a self-determined punishment--in many ways. In the first place, the punishment itself is the criminal's right; the punishment "as jus t . . , is eo ipso his implicit will, an embodiment of his freedom, his right" (100). It is his "implicit [not, obviously, his explicit] will" and therefore his right that he be punished for the same reason that the crime is a nullity: since it is the free will of one person denying the existence of the free will of another person, in an area where what applies to one applies to all. Thus, if the criminal is to be a person with rights, his unright act must be manifested as null by his punishment. By being punished, he----as well as all other persons--is re-established as a person with rights; only if the criminal has the right to his own punishment does he have the rights of a person, n Hegel's attitude here is shared by at least one prisoner, who asserted that "to punish a man is to treat him as an equal. To be punished for an offence against rules is a sane man's right."12

Not only does the criminal have the right to be punished; but also he implicitly consents to the punishment and sees it as just. As a rational being whose actions thus imply universal laws, his criminal act has "laid down a l a w . . , under w h i c h . . , he should be brought as under his right . . . . a right established within the criminal hlm~elf, i.e. in his objectively embodied will" (I00). The criminal's action, as the action of a rational being, is implicitly universal; thus, the criminal is to be brought under the law that he himself laid down in his unright act, namely, that the free will can be coerced and thus the criminal can be subjected to retribution. Although "retribution is inflicted on the criminal and so it has the look of an alien destiny" (102A), nonetheless the very act of the criminal already establishes for himself the law that produces his retribution. In the crime the criminal asserts that persons have no rights; in retribution the criminal's assertion is applied to himself.

For the criminal, to be punished is his right, to which he consents; the measure of his penalty is also derived from the criminal's act and will. For the penalty is derived from the specific content of the crime itself. This derivation, or relation of crime to

lo "Subject" in the German sense of the word. As T. H. Green pointed out, English and German are almost opposite in their usage of "subject" and "object." "By the 'subject' of fights [a German] would mean the person exercising them or to whom they belong; by 'object' that in respect of which the rights are exercised. The piece of land or goods which I own is the 'object' of the right of property"; I am the subject with rights. See T. H. Green, Lectures on the Principles ol Politcial Obligation, See. 234. Frequently "possessor" or "author" is an adequate synonym for (the German) "subject."

11 It is sometimes asserted, against Hegel, that "a right which cannot be escaped is an odd right" (Ted Honderich, Punishment: The Supposed lustifications [Baltimore, Maryland: Penguin Books, 1971 (1969)], p. 50). This criticism probably misunderstands "rights" in general; it certainly misses slightly the point of Hegelian abstract rights. For the rights of "Abstract Right" must be exercised; each person has the duty to exercise his rights. For instance, each person must own property, or else he does not exist as free; therefore, the right to property is in fact a duty to property (49; 49A). Similarly with the right to life (57) and with contract (71): what is a right is a duty (see also Hegel, Philosophy of Mind, Sec. 486). Thus, the right to puni.*hment is a duty to punishment. In order to be a person and free, one must be punished when one has done wrong; to preserve the rights of the person, all the righa;----including the right to punish- merit--must be exercised as duties.

12 W. F. R. Macarmey, Walls Have Mouths, quoted by Mabbott, "Punishment," p. 158.


punishment, is lacking in many theories of punishment, including "the Stoic view that there is only one virtue and one vice, the laws of Draeo which prescribe death as a punishment for every offense, the crude formal code of Honour [of chivalry] which takes any insult as an insult against the infinity of personality" (96R). It is also lacking in many modem reformatory theories which suggest incarceration until cure, which raises the possibility that a minor theft would put a person in prison for life if he were not judged cured of his insanity. For Hegel, however, the measure of the penalty is the specific coercion of right in the crime; the crime and the penalty are equal "in respect of their 'value' " (101). Since the punishment fits the crime, the criminal in committing the crime has chosen his punishment.

Further, the criminal continues to be the subject of his punishment in civil society, with its publicly-known law and established courts of justice. In this sphere, the annulment of wrong explicitly becomes punishment, and punishment "is the reconciliation of the criminal with himself, i.e. with the law known by him as his own and as valid for him and his protection; when this law is executed upon him, he himself finds in this process the satisfaction of justice and nothing save his own act" (220). In the actual process of the trial, the subjectivity of the criminal is preserved, most especially by jury trial, advocated by Hegel. The judge of course is the legal expert; but the determination of the facts of the case must derive from the criminal.

The demand, commonly made in German law, that a criminal should confess his guilt, has this to be said for it, that the right of self-consciousness thereby attains a measure of satisfaction; consciousness must chime in with the judge's sentence, and it is only when the criminal has confessed that the iudgment loses its alien character so far as he is concerned. (227A)

The problem here is of course that the criminal may lie, and iustice be jeopardized. But,

if, on the other hand, the subjective conviction of the judge is to hold good [i.e., if the judge decides on the facts] some hardship is once more involved, because the accused is no longer being treated as a free man. Now, the middle term between these extremes is trial by jury, which meets the demand that the declaration of guilt or innocence shall spring from the soul of the accused. (227A)

As Knox notes, "the verdict of his peers is the verdict of the criminal's o w n . . , reason because reason is universal and so common to them and to him alike. ''13

The criminal is of course being treated as a rational being when he is the subject of his punishment; thus, "by being punished he is honoured as a rational being" (100R). For Hegel, other justifications of punishment like deterrence and reform--are in fact defective because they fail to treat the criminal as a rational person. To attempt to deter crime by threat and to justify punishment as deterrent is to liken punishment "to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with the

xa Knox, note, in Hegel, Philosophy o[ Right, p. 275 n. Thus, Hegel approved of the ancient Athenian practice whereby the accused, found guilty, proposed his own sentence; "it was implied in the guilty person's constituting himself his own judge, that he submitted himself to the decision of the court and acknowledged hims.olf to be guilty." Since the accuser also proposed a sentence, this practice also had the advantage of allowing the guilty party to propose a mitigated penalty without a formal appeal---"an excellent provision in Athenian law, testifying to its humanity." See G. W. F. Hegel, Lectures on the History of Philosophy, trans. E. $. Haldane (London: Routledge & Kegan Paul, 1955 [1892-1896]), I, 440--441.

176 H I S T O R Y O F P H I L O S O P H Y

freedom and respect due him as a man ''14 (99A). Likewise, the reformatory justification treats the criminal as only a potentially rational being, as only a potential person, whom the reform will make into an actual person. The criminal, as only a potential person, is not a person, but a child or an animal in this theory. In short, the criminal is not treated as a rational being "if he is treated either as a harmful animal who has to be made harmless, or with a view to deterring and reforming him" (100R). Both deterrent and reformatory justifications are seriously defective because they degrade men; only retribution treats the criminal as rational. For Hegel, even the criminal is a person, to be treated and respected as a person.

Hegel's theory of punishment treats a criminal as a person, a subject, a rational being with worth and dignity, who has a right to punishment, consents to his punishment, and is the author of his penalty; Hegel's retributive justification, in short, treats the person with more dignity than do the more common corrective---deterrent or re- fo rmat ive - -modem and liberal theories. TM I t also indicates both Hegel's concern with right and justice, and--s t range as it may seem to those who associate retribution, and especially the lex talionis, with cruel ty--his humanitarian attitude toward penalties.

Hegel argues that only the retributive justification is concerned with the questions of justice and desert. Making no distinction between the deterrent and the reformatory, Hegel notes, of the Chinese, that "they undergo corrective rather than retributive punishment, as children among us; for corrective punishment aims as improvement, while the retributive involves veritable imputation of guilt. ''x6 He who is innocent can be punished, if correction is the goal; in China "'if [even an adult] son complains of injustice done to him by his f a t h e r . . , he receives a hundred blows with a bamboo, and

14 Cooper notes that, in this sentence, "the important word is 'respect'." To respect a person "is to suppose that he regards punishment not as that which prevents him from committing a crime, but as that which he will deserve if he does commit it" ("Hegel's Theory of Punishment," pp. 155-156). But Cooper also admits that, in terms of deterrence diminishing and retribution allowing freedom, "I fail to see this point." But it exists. Hegel argues that, with threat, "the deterring principle is only fear of punishment, not the consciousness of wrong; for reflection upon the nature of the act itself is n o t . . , presupposed" by deterrence (G. W. F. Hegel, Vorlesungen iiber die Philosophie der Weltgeschichte, ed. G. Lasson, 2nd ed. [Hamburg: Felix Meiner, 1968 (1923)], pp. 307-308; see G. W. F. Hegel, The Philosophy of History, trans. J. Sibree [New York: Dover, 1955 (1858)], p. 128). With deterrence, one obeys because it is the law; with retribution, one obeys because one has "reflected on the nature of the act" and of fight, and thus is self-conscious in making one's free decisions. For Hegel, this self-consciousness of the moral outlook is an essential part of freedom. When one obeys a deterring law, one obeys with one's arbitrary freedom, not doing the illegal thing for the same reason that the dog runs from the stick; but when one obeys a retributive law, one obeys because self-conscious reflection has led one to see that the law is right and moral and thus worthy of obedience, not because of the stick, but because it is right; this obedience is not forced, but free; and the person, in a retributive system, is free. (It might be noted that this self-conscious reflection is the beginning of morality; the logical transition from strict abstract fight to morality takes place through crime and its annulment, as the person becomes conscious of what is fight and therefore what he ought to do [Hoffmeister, 359].)

t5 It might be noted that there are some utilitarian benefits to the person as a result of Hegel's retributive theory: since retribution is for an unfight act, a person who has not committed a wrong cannot be punished, even if such punishment may reform him or deter others; since penalties are based on retribution, there is at least an upper limit (which varies historically) to the severity of punishment, a limit lacking both in reformatory punishments, which may produce a lifetime in intensive psychiatric care as the punishment for a small theft, and in deterrent justifications---for surely a public horsewhipping would deter illegal parking more effectively than a mailed-in two dollar fine.

a6 Philosophie der Weltgeschichte, p. 307; see Philosophy ot History, p. 128.


is banished for three years, if he is in the right; if not, he is strangled. ''17 The problem of the punishment of the innocent pervades all justifications of punishment that are not retributive. Indeed, only retributive justifications are concerned with justice:

To give punishment [the] superficial character of an evil is, amongst the various theories of punishment, the fundamental presupposition of those which regard it as a preventive, a deterrent, a threat, as reformative, &c., and what on these theories is supposed to result from punishment is characterized equally superficially as a good. But it is not merely a question of this evil or of this, that, or the other good; the precise point at issue is wrong and the righting of it. If you adopt that superficial attitude to punishment, you brush aside the objective treatment of the righting of wrong, which is the primary and fundamental attitude in considering crime. (99R)

The major point of weakness in the other theories is that they all "presuppose as their foundation the fact that punishment is inherently and actually just" (99R), a presupposition which only retribution can make explicit. TM The reformatory and deterrent justifications rely on punishment to have a future effect, o~ improving or preventing behavior; they have no connection, directly, with the crime. Only retribution--by annulling wrongs, by coercing the criminal in order to restore and uphold rights--relates punishment to the crime and to rights, and therefore to iustice and to desert.

For Hegel, retribution centers on the question of justice and desert in a way that no other justification of punishment can; so does his retributive system of penalties. Hegel rejects the traditional lex taUonis:

It is easy e n o u g h . . , to exhibit the retributive character of punishment as an absurdity (theft for theft, robbery for robbery, an eye for an eye, a tooth for a tooth---and then you can go on to suppose that the criminal has only one eye or no teeth). But the concept has nothing to do with this absurdity, for which indeed the introduction of this specific equality is solely to blame. 0 01R)

The essence of crime has to do not with the specific injury or theft but with the coercion of rights; the retribution, then, need only be an equivalent coercion of rights, not the same particular coercion. It is not the empirical identity of an eye for an eye, it is the abstract, mental, universal identity of value that is important. Thus, the penalty is one "deserved" by the criminal. Lacking a retributive theory of penalties with its notion of the intimate connection between crime and penalty leaves the way open for criminals being "reformed" according to the reformers' judgments on the criminal's current behavior and opinions, rather than on the degree of severity of the crime; a murderer may be freed in a year, the thief of a loaf of bread may need a life-long cure. Reforma- tion judges the criminal according to his inward, subjective motivations; and, for Hegel at least, "the law of the l a n d . . , cannot possibly wish to reach as far as a man's dis- position, because, so far as his moral convictions are concerned, he exists for himself alone" (95A). Similarly, the deterrent theory--particularly when practiced in an eco- nomical way---can easily treat equals unequally as well as cruelly: of a hundred thieves, it is necessary ferociously to beat only one----or a decade or a dozen in order to instill fear. Deterrence judges the criminal according to a completely external standard, the

1T Philosophie der Weltgeschichte, p. 306; see Philosophy of History, pp. 128-129. is This assertion has finally been made in the contemporary world, e.g., by Mabbott, "Pun-

ishment," and K. G. Armstrong, "The Retributivist Hits Back," Mind, LXX, 280 (October, 1961), 471---490.


result of his being punished on others; and, for Hegel, this is to treat the criminal as a thing, without rights and autonomy. Only with a retributive system of penalties must there be justice and desert.

As secondary considerations, Hegel includes other factors in determining penalties. The retributive system of penalties expresses the equivalences of penalties to crimes by a maximum and minimum "value" and frequently permits different types or "modes" (e.g., a fine, a jail term) of penalties (214R). In determining the correct particular sentence, the judge is of course bound by the legal equivalences of retribution; but he must also examine other factors:

The various considerations [of the intention of the criminal and the circumstances of the crime] which are relevant to punishment as a phenomenon and to the bearing it has on the particular consciousness, and which concern its effects (deterrent, reformative, &c.) on the imagination, are an essential topic for examination . . . especially in connexion with modes of punishment. (99R)

Thus, severity should be influenced by, for instance, the degree of premeditation; and the type of penalty should be affected by utilitarian requirements, of deterrence or reform. In Hegel's retributive system, the equivalences set limits---of severity and type --within which the judge, considering many factors, must choose the particular penalty that is both just and utilitarian (214R).

But the retributive system of penalties not only provides justice and desert; it is also the framework within which Hegel argues for humanitarian punishments in an age in which penalties were generally harsh. TM For Hegel does not see the equivalency of value as rigid; there is no Platonic form stating which penalty must follow which crime. Indeed, the exact specification of penalties is not even a matter for philosophy and philosophers; "how any given crime is to be punished cannot be settled by mere thinking; positive laws are necessary" (96A). These positive laws will change as the attitude of the society changes: "With the advance of education [and culture], opinions about crime become less harsh, and to-day a criminal is not so severely punished as he was a hundred years ago" (96A). Thus, for instance, the death penalty is used with declining frequency (101A) and corporal punishments have been eliminated in Europe because of their de- grading implications. 2~

In the modem state, where education and culture are highly developed, almost all penalties have been lessened; and the more stable and secure the modem state, the more mild punishments ought to be. While societies may not leave crimes unpunished,

still since society is sure of itself, a crime must always be something id iosyncrat ic . . . something unstable and exceptional. The very stability of society gives crime the status of something purely subjective which seems to be the product rather of natural impulse than of prudent will . . . . The commission of crime is something so feeble that its annulment must be commensurable with its feebleness. (218A)

19 "Until the 1820s [in Britain], hanging was the penalty for over 200 offences ranging from murder to stealing goods worth over five shillings (only 27/- at today's [1969] values)" and piekpoeketing (Tom Tickell, Prisons: Time and Punishment [London: The Economist, 1969], p. 1). In general for Britain, see Leon Radzinowicz, A History ol English Criminal Law, Vol. I, The Movement for Re]orm, 1750-1833 (London: Stevens and Sons, 1948), esp. Chaps. 1, 16, and 18, and Appendices 1 and 5.

20 Philosophie der Weltgeschichte, p. 307; Philosophy o/History, p. 128.


Hegel does support capital punishment for capital crime: "The reason here is that since life is the full compass of a man's existence, the punishment here cannot simply consist in a value, for none is great enough, but can consist only in taking away a second life" (101A). But he favors limiting the use of capital punishment; he notes that Beccaria's attempt "to have capital punishment abolished has had beneficial effects" by making it rarer, "as in fact should be the case with the most extreme punishment" (100A). Hegel's system of penalties, then, is retributive; but, since it is based on equivalent value and not on empirical duplication, Hegel sees it as amenable to utilitarian considerations in practice and to a general progress of leniency as education and culture developed and society became internally strong.

In sum, Hegel's theory of punishment and of penalties is retributive. But in essence punishment is retributive so that right and justice may be established; in essence penalties are retributive and based on equal value so that equity may reign. In the common liberal and--self-styled--progressive and humanitarian justifications, matters of right, justice, and equity are overlooked; and also absent are the liberal and humane implications of Hegelian retribution: the dignity, value, and rights of the person. Hegel's retributive justification aims at maintaining human dignity and human rights, within the framework of a progressively more humane penalty system, and at the same time establishing justice and equity.

III. Hegel's discussion of punishment is but a small portion of his philosophy, even of his political philosophy. Yet philosophies of punishment probably provide some in- dications of the general tenor of the philosophy as a whole21 To the extent that they do, it seems clear that at least the possibility can be raised that Hegel's Philosophy of Right as a whole reflects some of the implications of its discussion of punishment: a

certain humanitarianism or humaneness; a concern with justice and equity; and a concern with the individual as an individual and as a subject of his rights and actions.

Two further implications may be briefly raised. It was asserted at the beginning of this article that Hegel develops the rights of men to life, liberty, and property; he then moves to a discussion of punishment. Locke sets roughly the same path in the Second Treatise. But there is a major difference between Locke (and the liberal tradition in general) and Hegel in what their political theories consider after punishment. Locke moves quickly to a discussion of the state; z~ Hegel moves directly into the development of morality (105-141), and then a discussion of the family (158-181) and civil society (182-256), before he finally gets to the state (260-329). The difference comes because Hegel wants to develop explicitly important aspects of social and political life which (depending on one's interpretation of the liberal tradition from Locke to Mill) many liberals either ignored or assumed. Hegel develops explicitly the attitudes and institutions whereby man develops to civilized maturity from being the abstract person (or the natural man) having only arbitrary free will and no individual character; whereas Locke jumps from the natural man with his arbitrary will to a civil state which makes laws but otherwise

m For this thought carried to a--perhaps accurate--extreme, see Gertrude Himmelfarb, "The Haunted House of Jeremy Bentham," in Richard Herr and Harold T. Parker, exls., Ideas in History (Durham, North Carolina: Duke University Press, 1965).

22 See John Locke, The Second Treatise of Government, Chaps. rI-IV, esp. Secs. 4-8, 13, and 20-23.


lets man's arbitrary will have full play. ~ Hegel, however, is surely correct in his argument that men plucked from the state of nature would not be able to constitute and maintain a Lockean state; ~4 in other words, Locke assumes (or ignores) all those institutions and ways by which the natural man (or the natural child) becomes a civilized man capable of functioning well in the civil society of the Second Treatise. lVftll, in On Liberty, usually considered the classic defense of arbitrary freedom or "freedom from," is explicit in assuming--and then ignoring--the institutions and attitudes which make men civilized; On Liberty simply applies to the few advanced European countries where civilization can be assumed; other countries are lucky if they are ruled by a Charlemagne or the East India Company. 2'~ Hegel, on the other hand, spends much----one might say all----of the Philosophy ol Right dealing not only with the political order and arbitrary freedom, but also with those various attitudes (like morality) and those various institutions (like the family and the pluralistic group [255]) through which men fully develop themselves and their freedom, culture, and individuality so that they become men who can give reasoned consent to a reasonable political order and who are mature enough to be able to exercise their freedom.

Hegel's philosophy of punishment is primarily located in the part on "Abstract Right." But annulment is made concrete as punishment through the administration of justice in civil society. At the pre-political level of abstract rights, the question of the system of the administration of justice does not arise in the Philosophy ot Right; not until the discussion of civil society is the legal and judicial system explained. Neverthe- less, the major criteria for that system have become apparent in the discussion of crime and its annulment. The essence of the criminal act, for Hegel, is the destruction of rights. Punishment is for the infringing of rights, as expressed explicitly, i.e., in laws (211). Questions of morality are secondary; criminal law should not be concerned with the opinions of morality of the criminal--with his supposed "tendency" or "high probabil- ity" to commit crimes, nor with his private opinions (95A).

Punishment should involve consenting criminals. In order for a criminal to understand and consent to the administration of justice, the laws must be public, not only as published but as knowable (and known) by the citizens and they must be perceivable (and perceived) as reasonable laws (228R). Similarly, the court system must be one where the criminal: can have trust in the proceedings (most likely because they are public and open, not secret [224]); can know that all are treated equally, as presons, and that none

28 Locke, Second Treatise, See. 22. Interpretations of Locke on the question of freedom are numerous; the interpretation given is a literal--some would say superficial--one, in which the only "development" that freedom undergoes is to become sophisticated arbitrary freedom--for Locke's rationality is that of the "Industrious and Rational" (See. 34) in the sense of economic rationality, where the arbitrary free will is calculating enough to postpone an immediate saris- faction to have a larger future satisfaction. See also Adam Smith's praise of a "natural course of things" and "natural liberty": Wealth ot Nations, e.g., "Introduction" and Book IV, Chap. 5, "Digression on the Corn Trade."

24 See esp. Philosophy o/Mind, Sec. 502R; History o/Philosophy, III, 317-319. 2n John Stuart Mill, On Liberty (New York: Library of Liberal Arts, 1956 [1859]), Chap. I,

p. 14. In fairness to Mill, it must he noted that his other works consider morality, the family, the economic order, and the state (the topics of the Philosophy o] Right); On Liberty can be interpreted as a pure defense of "freedom from" only by abstracting it from Mill's total work. This illegitimate abstraction has been made by some contemporary defenders of "freedom from"; for an effective, indeed devastating criticism of their position, see the excellent but overlooked article by R. N. Berki, "Political Freedom and Hegelian Metaphysics," Political Studies, XVI, 3 (September, 1968), 365-383.


escape because of, for instance, noble rank (221); and is able to see himself--or that reflection of himself, his peers--as the author of a just decision of guilt and a just penalty (228). Thus, based on the discussion of crime and its annulment in "Abstract Right," Hegel's principles for the administration of justice more resemble the best contemporary ideals than early nineteenth-century practice. 2~ In at least one major area of political organization, Hegel is clearly liberal and progressive.

IV. Hegel's theory of punishment can be used to indicate some possible tendencies in Hegel's political thought; it can also be used to give some insights into the philosophy of punishment. Much of Hegel's theory has been argued, in slightly different ways, by many others: the case for retributive punishment on the grounds of justice and personal rights, for instance, while still an uncommon argument, has been made both by Kant and--sporadically--by some twentieth-century philosophers, a7 But Hegel does have some unique or rare insights into punishment and its implications.

First, retribution, rather than deterrence or reform, is probably the only justification of punishment wherein civil disobedience is respected. While deterrence tries to prevent civil disobedience, and reform tries to change the disobedient's ideas, retribution treats the disobedient "with the freedom and respect due him as a man," the freedom (not to determine but) to argue and assert what ought to be. Further, only retribution meets the disobedient on the level at which the disobedient is arguing: the level of law and right, rather than the level of enforcement and efficiency. With deterrence and reform, the disobedient is to be changed; with retribution, at least the clash is a conflict of right versus right, an argument of moral opinion versus the state's law which is or should be based on right, a rational dialogue between the disobedient and the judicial branch of the state. 2s

Secondly, executive pardon or mercy is at least logically more consistent with retribution than with deterrence or reform. All justifications can of course permit pardon and mercy when there has been a miscarriage of justice; but only retribution allows for mercy in the strict sense of releasing the criminal from what is validly required of him. Pardon tends to undermine deterrence, by making penalties uncertain and in some cases--unlikely; pardon does undermine reform, by removing the criminal from the grasp of his benefactors. In utilitarian theories it is the penalty that deters or reforms; to lessen or eliminate the penalty through pardon is to lessen or eliminate deterrence and reform, and, consequently, mercy turns out to be a disservice to society or the criminal. But, with retribution, the remission of the penalty means only that annulment is not fully actualized. For the guilty verdict by the court establishes the nullity of the crime and the majesty of the law; "the law stands and the pardoned man remains a criminal as before" (282A). With retribution the finding of guilt and assertion of crimln-

ae For instance, Hegel advocated jury trials---which Prussia lacked--and codified laws-- which England lacked; he asserted that "a man counts as a man in virtue of his manhood alone, not because he is a Jew, Catholic, Protestant, German, Italian, &c." (209R), a principle rejected by the many countries which placed legal disabilities on these and similar groups.

~7 See esp. the articles by Mabbott and Armstrong cited above. Anyone who still doubts the immense inhumanity implicit in utilitarian punishment should see Stanley Kubrick's "A Clock- work Orange" (film, 1971).

as For an example, see History of Philosophy, I, 446--447; conflict and disobedience can also occur when a citizen thinks that a positive law does not reflect the principles of the Philosophy ot Right.


ality can suf~ee, without the penalty, in those rare cases of executive clemency. A con- tradiction in utilitarian theories, mercy is consistent with retributive theory.

Thirdly, punishment should not be regarded as the rendering of evil for evil, nor (therefore) is the essence of punishment suffering (99R). 29 Hegel's conceptualization is that punishment is the coercion of the free will of the criminal---e.g., a deprivation of the criminal's right to liberty--in return for the criminal's depriving another of rights. Thus, a person who without breaking the law commits a moral evil or causes emotional suffering should not be punished. Punishment is not inflicted on one who causes evil or suffering; it is inflicted on one who has denied rights by breaking the laws. And, furthermore, the infliction of punishment is not the infliction of evil or suffering, although certainly prisoners do suffer. Rather, punishment is the deprivation of rights---in modern societies, usually the deprivation of the right to property (a fine) or of the right to liberty for a time (a prison sentence). Most prisoners, it might be noted, would probably agree with Hegel; they would prefer to be out of prison, free, even if it meant a harder life with more suffering, than to have an easier life in prison, g~

Finally, while retributive justifications of punishment are finding some contemporary supporters, almost no one has re-raised the lex talionis, al Certainly in its primitive and even Kantian versions, it is harsh; but Hegel's conception of equality of value, changing over time, and with the mode of penalty determined by utilitarian considerations, miti- gates or eliminates the problem of harshness. Positively, the retributive justification of penalties has the same virtues that are asserted for retributive punishment: justice, equity, and concern with the individual. As philosophers come to see the virtues of retributive punishment along Hegelian lines, perhaps some may argue, with Hegel, for a just and equitable penalty system where the penalty fits the crime.

Vassar College

~9 To define punishment as "an evil of suffering inflicted because of an evil of action" is a common and durable view; see, e.g., Grotius, De lure Belli ac Pacia, Libri Tres, Bk. II, Chap. 20, See. 1; Ieremy Bentham, Principles of Morals and Legislation, Chap. XIII, See. 1; The American Scholar, XXXX, 4 (Autumn 1971), cover.

z0 See Mabbott, "Punishment," pp. 158-159, and Tickell, Prisons, p. 24. zl A tentative beginning, however, has been made in Armstrong, "The Retributivist Hits

Back."

Stillman - Hegel's Idea of Punishment

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