Commentary on the Philosophy of Right, Chapter 19
Punishment
Punishment is the negation of the negation (§ 97 f.). This presupposes a distinction that Hegel fixes, in the Logic, by way of an image: “Mechanism, too, produces something, but not as an end, rather as blind chance; its beginning is not the beginning and ground of this activity — as, for example, when a stone falling from a roof strikes someone dead.”[1] The stone produces a corpse, but nothing in its falling is directed toward that outcome. Only where a will has posited the outcome does will stand against will — and only then does the logic of punishment apply. A dead man is not yet a murder. [KF] Crime is not merely an evil that brings about another evil in turn — it is null in itself, because a will that violates freedom thereby annuls the very principle from which it lives. Punishment only brings this nullity to appearance.[2]
From this follows Hegel’s best-known and most misunderstood thesis: punishment honors the criminal (§ 100, Remark). In the lectures this is stated even more sharply than in the printed text. If one makes reform or deterrence the determining ground of punishment, then the criminal is “not honored as a human being”; if, however, he is regarded as a willing being, then he is granted “his honor as a human being,” for the will is “the highest determination in which he can be regarded” — precisely because he himself has held it to be his essential determination. Hegel sums it up: “As a man acts, so he is.”[3] Wannenmann records the same figure from the other side: the criminal finds himself in punishment, is with himself, and punishment is therefore “something self-contained; the matter is settled with it.”[4]
This is the opposite of all theories of prevention and reform, and the objection to them is not a moral one but a logical one: whoever punishes in order to deter treats a human being as a means to another’s end — and thus according to precisely the structure of external purposiveness developed in II.2.
How punishment is to be measured Hegel determines by way of retribution (§ 101). Here, too, the lectures are more precise. Hegel there calls retribution an “argumentum ad hominem” — an argument that strikes someone with his own premises: “in that the law which the individual person has given in his crime now turns against him and now refutes him.”[5] Whoever steals thereby practically declares that property need not be respected. Punishment takes him at his word and applies the proposition to himself. It is not the judge who refutes the thief — the thief refutes himself.
Hegel explicitly guards against the most obvious misunderstanding: it would be wrong to picture retribution as an eye for an eye — as though the thief must have taken from him what he took, or the one who struck must suffer what he did. Retribution rests, rather, “on the equality of value.”[6] What is compared is not the deed and the punishment in kind, but their weight. That this weight is hard to determine Hegel concedes — but it is the same difficulty that exists in exchange, and no one concludes from it that exchange is therefore impossible.
With this, however, abstract right has reached its limit (§ 102). Within abstract right, punishment becomes revenge: the injured party strikes back, and the one now struck strikes in turn — a spiral that right cannot end from within itself. Wannenmann notes where the difference lies: in retribution as revenge, a subjective will enters in, and then “the progression of revenge goes on into infinity.” As soon as, by contrast, the law is the ground, “the injured party is not meant to be satisfied.”[7] Right must pass out of the hands of the person affected and into those of a universal authority.
IV. Morality — The Will Within Itself
Ibid., Transcript by Good, lecture course 1817: GW 23.1, p. 135. ↩︎
This determination is not first a matter of the philosophy of right but of logic. In the 1828 lectures on Logic, Hegel explains the law of appearance — “if something is thus, then something else is; one cannot be without the other” — precisely by way of this case: crime is “the negation of the rational will,” something null in and for itself, and punishment is “the manifested act as nullity”; hence “in a determination of the crime lies the punishment, which appears as another state. That is law” (GW 23.2, p. 507 f.). It is not the judge who links deed and punishment; the link lies in the deed itself. This also settles why a deterrence theory misses this structure. Cf. Die Erscheinung. ↩︎
Transcript Anonymus (Kiel), lecture course 1821/22, on § 100: GW 26.2, p. 648. ↩︎
Transcript Wannenmann, lecture course 1817/18: GW 26.1, p. 127. ↩︎
Transcript Anonymus (Kiel), lecture course 1821/22, on § 101: GW 26.2, p. 76. ↩︎
Transcript Wannenmann, lecture course 1817/18: GW 26.1, p. 50. Hegel there uses the juridical term talion for retribution in kind; it does not occur in the printed text of the Grundlinien. ↩︎
Transcript Wannenmann, lecture course 1817/18: GW 26.1, p. 126 f. What is needed is a higher authority that is not merely external power but inward insight. With this, abstract right presses beyond itself toward morality. ↩︎