5 - Hegel's “negation of crime”

Summary

The controversial classification of the Hegelian theory of punishment

Unlike in the secondary literature about Kant's theory of punishment, which for a long time served as the model for all retributivist or absolutist theories of penal law, the divergence from the traditional – and often held as being self-evident – retributivist interpretation has quite a long history with regard to the interpreters of Hegel's penal law. Whereas the interpretation of Kant's penal law as being a mixed theory has only come about since the 1980s, Hegel's penal law was very early on regarded by Christian Reinhard Köstlin as a mixed theory, by British Neo-Hegelianism (for instance by Bernard Bosanquet) as being a deterrent theory and by John Ellis McTaggart as being a reform theory. Admittedly, this last interpretation has not prevailed. Even today, there is controversy about whether Hegel is really a retributivist or whether he possibly also adopts general or specific deterrent elements, or whether at the opposite extreme, he is only a theorist of pure deterrence.

Just as in Kantian studies, at this time mixed theories are also predominant in Hegelian studies. Some of the best interpreters – Allen Wood and Georg Mohr, for instance – combine the retributivist interpretation with that of deterrence. According to Mohr, Hegel's theory of punishment delivers “a type of grounding, which was new for that time, for the theory of retribution, which was up to then rather poor in its arguments.”