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Hegel and the Justification of Real-world Penal Sanctions

Published online by Cambridge University Press:  02 February 2016

Antje du Bois-Pedain
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Abstract

This article revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 29 , Issue 1 , February 2016 , pp. 37 - 70
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Copyright © Canadian Journal of Law and Jurisprudence 2016 

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References

1. JL Mackie, “Morality and the Retributive Emotions” (1982) 1:1 Criminal Justice Ethics 3 at 3. I use the term as designating the view that one ought to punish an offender simply because such punishment is called for, and deserved, as a response to his crime, quite irrespective of any positive effects of his punishment.

2. See, e.g., Jami L Anderson, “Annulment Retributivism: a Hegelian theory of punishment” (1999) 5:4 Legal Theory 363 and the examples given by Thom Brooks, “Is Hegel a retributivist?” (2004) 25:1-2 Hegel Bulletin 113.

3. See Brudner, Alan, Punishment and Freedom. A Liberal Theory of Penal Justice (Oxford: Oxford University Press, 2009).Google Scholar

4. Alice Ristroph, “When Freedom Isn’t Free” (2011) 14:3 New Crim L Rev 468 (see especially 469-72). The criticism that Hegel’s justification of punishment doesn’t hold water in a world in which “criminal punishment … has devastating impacts on families and communities” and in which “no one wants to be locked up” (ibid at 469) is far from new (see, e.g., Ossip K Flechtheim, Hegel’s Strafrechtstheorie (Berlin: Duncker & Humblot, 1975). Reprint ed (first published 1936)). Michael Köhler points out that some of this criticism is easily deflected by relying on Hegel’s right of subjectivity, which contains the argumentative resources to reject subjectivity-destroying punishments (see also section IV below). He then contends that a sustainable challenge to Hegel’s core justification of punishment as self-willed in the context of an order of freedom constituted by a system of mutual recognition, would have to rely on and develop the notion of alienation. The argument would have to be that (many) real life criminals stand outside the system of mutual recognition such that a justification of punishment that relies on their membership in that system does not address them at all. Michael Köhler, “Strafbegründung im konkreten Rechtsverhältnis: Die Aufhebung der abstrakten Straftheorie am Leitfaden der hegelschen Rechtsphilosophie” in Wilfried Küper, Ingeborg Puppe & Jörg Trenckhoff, eds, Festschrift für Karl Lackner zum 70. Geburtstag am 18. Februar 1987 (Berlin and New York: De Gruyter) 11 at 13-14.

5. The labels “objective” and “subjective” justification of punishment are widely used in the discussion of Hegel’s theory of punishment. In this usage, punishment’s “objective” justification relates to the notion that punishment is needed to manifest the nullity of the crime, and hence to uphold a system of right. Punishment’s “subjective” justification is its justification, in relation to the offender’s freedom, as willed by him. See Ossip K Flechtheim, “Die Funktion der Strafe in der Rechtstheorie Hegels” in Ossip K Flechtheim, ed, Von Hegel zu Kelsen: Rechtstheoretische Aufsätze (Berlin: Duncker & Humblot, 1963) 9 at 17; Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, NJ: Humanities Press,1989) at 71-78.

6. See, e.g., Ted Honderich, Punishment: The Supposed Justifications (Harmondsworth: Penguin, 1976) at 45.

7. These are equally the starting points for Brudner’s Hegelian reconstruction and justification of penal law: see Brudner, supra note 3 at 2, 15-16.

8. A different question is whether Hegel even needs to provide both an objective and a subjective justification. Günther Jakobs, “Der Zweck der Vergeltung. Eine Untersuchung anhand der Straftheorie Hegels” in Leonidas Kotsalis, ed, Festschrift für Nikolaos K. Androulakis (Athens: Ekdoseis Ant. N. Sakkoula, 2003) 251 at 262 suggests that an “objective justification” of punishment takes priority, obviating the need to provide a separate “subjective justification”, which must in any event be subordinate to an objective one since: “How could a punishment that is not already legitimated on some other ground, be legitimated by dint of being ‘willed’ by the criminal himself?” [my translation]. Alan W Norrie, Law, Ideology and Punishment. Retrieval and Critique of the Liberal Ideal of Criminal Justice (Dordrecht/Boston/London: Kluwer, 1991) at 65 takes the opposite view that the subjective justification takes priority: “punishment of the individual is justified by reference to the individual, and not some extraneous source (society in general, the rights of others)” and it is “from the point of view of the criminal [that] it is necessary to annul the wrong” (at 75) [emphasis original]—though he later clarifies that the justification of state punishment must introduce further elements, since “State punishment entails not only that the criminal is put to rights with himself, but also that the laws of the state … are … re-affirmed”, such that “State punishment unifies both social and individual right and is both subjectively and objectively just” (at 76). Jean-Christophe Merle, German Idealism and the Concept of Punishment (Cambridge: Cambridge University Press, 2009) at 115 also questions whether Hegel needs to provide both an objective and a subjective justification of punishment.

9. GWF Hegel, The Encyclopaedia Logic: Part I of the Encyclopaedia of Philosophical Sciences with the Zusätze, translated by FF Geraets, WA Suchting & H Harris (Indianapolis: Hackett, 1830/1991) § 2 at 24. (I follow general usage in citing Hegel’s work with reference to the paragraph numbers of his exposition.)

10. Thom Brooks, Hegel’s Political Philosophy: A Systematic Reading of the Philosophy of Right (Edinburgh: Edinburgh University Press, 2007) at 16. In what follows, I draw heavily on Chapter 1 of Brooks’ explanation of Hegel’s philosophical method. For a fuller description of Hegel’s method, see Emil Angehrn, Freiheit und System bei Hegel (Berlin and New York: De Gruyter, 1977).

11. Hegel would probably put this point slightly differently, avoiding the “should” and replacing it with “must” (compare, for instance, Hegel’s formulation that the rational “must come about” in GWF Hegel, Lectures on Natural Right and Political Science. The First Philosophy of Right, transcribed by Peter Wannenmann, ed Staff of the Hegel Archives, translated by J Michael Stewart & Peter C Hodgson (Oxford: Oxford University Press, 1817-18/2012) § 134 at 242). This has to do with Hegel’s particular notion of the “ought”, which can be described as a conception of normative necessity. Again, this is connected to Hegel’s conception of philosophical task and method; as Wolfgang Schild explains, Hegel sets out to “understand the practice which comes before the theoretical construction, and on which the theory builds” and thus develops the kind of “theory that does not see itself as the final word on an issue but as providing a theoretically informed grasp of practice” (Wolfgang Schild, “Sittlichkeit als politische Gesinnung des Staatszutrauens” in (1988) Hegel-Jahrbuch 158 at 160 [my translation]).

12. Cf Alan Patten, Hegel’s Idea of Freedom (Oxford: Oxford University Press, 1999) at 107: “Hegel’s … strategy …is… to determine what a community must be like if it is to be successful in fulfilling its function of developing and sustaining free agency.” Norrie, supra note 8 at 65-66 remarks that “the strength and importance of Hegel’s theory of punishment lies in a philosophical method which avoids the gap between reason and reality”—although he later goes on to argue that Hegel achieves this only “by using reason to filter out all the recalcitrant elements” in reality, and that this amounts to “a kind of intellectual double-glazing” that overcomes “the gap between theory and practice … within philosophy, but only by transposing it outwith philosophy” at 80 [emphasis original].

13. GWF Hegel, Elements of the Philosophy of Right, ed by Allen W Wood, translated by HB Nisbet (Cambridge: Cambridge University Press, 1821/1991). All subsequent citations to this work follow the translation in this edition. Citations are given without page references to the numbered paragraph which is cited [PR]. These paragraphs are usually followed by indented sections of Hegel’s published text that, unlike the main paragraphs, were not read to students during the lectures. I cite these with the supplementary indication “Remark”. Subsequent editors have then included further annotations which were drawn from the lecture notes of students. I cite these with the supplementary indication “Addition”. Unless otherwise indicated, the emphases in the quotations are Hegel’s own.

14. Alan Brudner, “A Reply to Critics of Punishment and Freedom” (2011) 14:3 New Crim L Rev 495 at 499. What Brudner terms “the most comprehensive conception of freedom” is, in Hegel’s terminology, the “idea” of freedom. Patten explains Hegel’s usage as follows: “The ‘idea’ (Idee) of x, for Hegel, is defined as the ‘concept’ (Begriff) of x together with the ‘actualization’ (Verwirklichung) or ‘objectivity’ (Objektivität) of that concept.” Patten, supra note 12 at 3 n6.

15. See, generally, Stefan Mertens, Die juridische Vermittlung des Sozialen (Würzburg: Königshausen & Neumann, 2008). For a somewhat different but compatible exposition of Hegel’s method in the Philosophy of Right, compare Patten, supra note 12 at 134-35.

16. This is by now a widely accepted point among Hegel’s interpreters. For those who make it explicitly, see, e.g., Benno Zabel “Die Vernunft des Leviathan” in Andreas von Hirsch, Kurt Seelmann & Ulfrid Neumann, eds, Strafe—Warum? Gegenwärtige Strafbegründungen im Lichte von Hegels Straftheorie (Baden-Baden: Nomos, 2011) 121 at 151; Thom Brooks, “Hegel and the unified theory of punishment” in Thom Brooks, ed, Hegel’s Philosophy of Right (London: Blackwell, 2012) 103 at 108-16; Norrie, supra note 8 at 76.

17. Merle, supra note 8, stresses that, for Hegel, “the absurdity lies not in an erroneous, literal determination, but rather in the axiom that ‘what the criminal has done should also happen to him’, and therefore in the specific equality or in talion law in contrast to the Hegelian principle of the negation of the negation” (at 122). Hegel would therefore reject as misconceived Waldron’s 1992 attempt (Jeremy Waldron, “Lex Talionis” (1992) 34:1 Arizona L Rev 25) to salvage the talionic principle by having the sanction mirror the distinctive empirical quality of the wrongful act (its coerciveness, fraudulence, etc.).

18. See further Reyburn, Hugh A, The Ethical Theory of Hegel. A Study of the Philosophy of Right (Oxford: Clarendon Press, 1921) at26–27.Google Scholar

19. On Hegel’s view of the reality of freedom consisting in the will giving itself an external existence, see Reyburn, ibid at 147.

20. See Patten, supra note 12 at 130-33, 144 ff.

21. See also Peter Stillman, “Hegel’s Idea of Punishment” (1976) 14 J History Philosophy 169 at 171: “In a sense, [the offender’s act] is an assertion, by a person living in a world of persons, that persons do not exist.”

22. Wolfgang Schild, “Hegel’s Theorie der Strafrechtsinstitutionen” in Andreas von Hirsch, Kurt Seelmann & Ulfrid Neumann, eds, Strafe—Warum? Gegenwärtige Strafbegründungen im Lichte von Hegels Straftheorie (Baden-Baden: Nomos, 2011) 97 at 106 [my translation]. Anderson, supra note 2, intriguingly compares the manifestation of the nullity of crime through punishment with the grading of a student paper: the grade manifests the paper’s worth in the same way that punishment manifests the crime’s nullity (at 378-80). She then rightly stresses that “annulment” signifies a conceptual relation between punishment and crime, not a material one. Hence, the notion of annulment does not turn Hegel into a closet utilitarian concerned with counteractions that “undo” the effects of crime (at 380-82). See also Norrie, supra note 8 at 66-68 (arguing that interpretations that make Hegel out as a veiled utilitarian rest on unfamiliarity with Hegel’s philosophical method).

23. The quotations in the text are sentences and sentence fragments from Günther Jakobs, Staatliche Strafe: Bedeutung und Zweck (Paderborn: Verlag Ferdinand Schöningh, 2004) at 27 [my translation], which are cited here in a different order from how they appear in Jakobs’ original text.

24. Patten, supra note 12 at 183: “A subject, in Hegel’s technical sense …, is an agent who conceives of himself not only as independent of his given situation but also as a bearer of certain ends and purposes that are distinctly his own.”

25. Cf also Jane Johnson, “Hegel on punishment: a more sophisticated retributivism” in Mark D White, ed, Retributivism. Essays on Theory and Policy (Oxford: Oxford University Press, 2011) 146 at 161: “revenge attains justice, if at all, only by chance”.

26. For further discussion of Hegel’s concept of revenge and the movement from revenge to punishment, see Reyburn, supra note 18 at 152; Stillman, supra note 21 at 173 and Diethelm Klesczewski, Die Rolle der Strafe in Hegels Theorie der bürgerlichen Gesellschaft. Eine systematische Analyse des Verbrechens- und Strafbegriffs in Hegels Grundlinien der Philosophie des Rechts (Berlin: Duncker & Humblot, 1991) at 232-39, 246-51.

27. See further Stillman, supra note 21 at 173. It is worth drawing attention to the advancement that Hegel’s argument contains over Locke’s exposition of the “natural executive right to punish”, whose exercise in a pre-institutional state of nature is in some respects comparable to the pre-institutionalised response to crime that Hegel refers to as “revenge”. If Hegel’s analysis of revenge is correct, it suggests that the exercise of a Lockean right to punish necessarily involves pre-institutional agents in punishment’s first contradiction (that, if we punish in exercise of this right, the form of the punishment will constitute a fresh violation of the punished person’s right). Hegel thereby demonstrates (contra Locke) that the institutionalisation of punishment is not merely an instrumental but a moral necessity.

28. See also Klesczewski, supra note 26 at 249-50.

29. On the process of the “formalisation of revenge” which falls into the emergence of states/public authority, see Klesczewski, ibid at 255-59, Antje du Bois-Pedain, “Von der ‘moralischen Wollust des Strafens’ oder: Strafgewalt ohne Staatsgewalt aus hegelianischer Sicht” in Andreas von Hirsch, Kurt Seelmann & Ulfrid Neumann, eds, Strafe—Warum? Gegenwärtige Strafbegründungen im Lichte von Hegels Straftheorie (Baden-Baden: Nomos, 2011) 205 at 217-18, and Reyburn, supra note 18 at 152-53.

30. Brooks, supra note 16 at 116.

31. Cf Johnson, supra note 25 at 158-59.

32. Hegel, supra note 11.

33. This is argued at greater length in Du Bois-Pedain, supra note 29 at 219-21.

34. Daniel McDermott, “The Duty to Punish and Legitimate Government” (1999) 7:2 J Political Philosophy 147.

35. The argument in this paragraph is developed at greater length in Du Bois-Pedain, supra note 29. Schild has described the minimal state that evolves first in civil society as “the external law-enforcing state of civil society” [my translation] (Wolfgang Schild, “Verbrechen und Strafe in der Rechtsphilosophie Hegels und seiner ‘Schule’ im 19. Jahrhundert” (2003) Zeitschrift für Rechtsphilosophie 30 at 35). The discussion of the functions of the Hegelian state in the text is inspired by Stefan Koslowski, “Hegel als Theoretiker der bürgerlichen Gesellschaft und des modernen Staates?” (2008) 94 Archiv für Rechts- und Sozialphilosophie 86.

36. Patten, supra note 12 at 123.

37. Brooks, supra note 16 at 104. See also Wolfgang Schild, “The Contemporary Relevance of Hegel’s Concept of Punishment” in Robert B Pippin & Otfried Höffe, eds, Hegel on Ethics and Politics (Cambridge: Cambridge University Press, 2004) 150, who speaks of an “integrated unified theory”. See further Jean-Christophe Merle, “Was ist Hegels Straftheorie?” (2003) 11 Jahrbuch für Recht und Ethik—Annual Review of Law and Ethics 145 at 176 (arguing that in Hegel’s theory, punishment aims at “the restoration of a legal community that includes the criminal too” and “[g]eneral prevention, retributivism, betterment, etc. are subordinated to this … aim and are, insofar, integrated in Hegel’s theory in a secondary role”).

38. Brooks, supra note 16 at 114.

39. Brudner, supra note 3 at 2.

40. Ibid.

41. Ibid at 45, cf “[T]o the thinking Agent, punishment conceived as by nature an external threat is an affront to dignity, for, like any threat to freedom, it treats agents as manipulable objects rather than as ends. Though the thinking Agent will concede that … disincentives to wrongdoing are needed for some or even most, it will not allow that punishment be conceived essentially in this way; for if it is, then punishment is incompatible with its freedom” [emphasis original].

42. Knowles, Dudley, “Hegel on the Justification of Punishment” in Williams, Robert R, ed, Beyond Liberalism and Communitarianism: Studies in Hegel’s Philosophy of Right (Albany: State University of New York Press, 2001) 125 at 126.Google Scholar

43. As Reyburn, supra note 18 at 128-29, explains in the context of his discussion of property, personality is a deliberately reductive concept: “Personality as such does not exist in its … nakedness. What exists as a person is always more than a person, and is constituted both by particular ends and by more concrete universals which are not explicit in personality itself.”

44. Georg Mohr, “Unrecht und Strafe (§§ 82-104, 214, 218-220)” in Ludwig Siep, ed, Klassiker Auslegen. G.W.F. Hegel, Grundlinien der Philosophie des Rechts (Berlin: Oldenbourg Akademieverlag, 1997) 95 at 119 quotes Hegel as observing, in his 1819/20 lectures, that “savage punishments only embitter the soul and, instead of discouraging crime, serve as an invitation to its commission.”

45. On conscience’s “inadequate judgmental structure”, see Dean Moyar, Hegel’s Conscience (Oxford: Oxford University Press, 2011) at 137. See also Will Dudley, Hegel, Nietzsche and Philosophy: Thinking Freedom (Cambridge: Cambridge University Press, 2002) at 53 (noting that “the logical limitations of judgment … limit the moral will”, thereby preventing it from “being the actuality of freedom”).

46. Compare Zabel, supra note 16 at 135-36.

47. Paolo Becchi, “Die Strafe als Versöhnung und die Strafzwecke bei Hegel. Ein kritischer Überblick” in Andreas von Hirsch, Kurt Seelmann & Ulfrid Neumann, eds, Strafe—Warum? Gegenwärtige Strafbegründungen im Lichte von Hegels Straftheorie (Baden-Baden: Nomos, 2011) 87 at 95.

48. Brooks, supra note 16 at 115.

49. Schild explores this possibility when he investigates the basis for the “trust” which, according to Hegel, individuals must be able to place in the state and its institutions. See Schild, supra note 11 at 165-67.

50. It is therefore perhaps unsurprising that Knowles, supra note 42 at 126, concludes that Hegel’s theory requires a contractarian supplement or “fix”.

51. Empirically, one might question the assumption that a defendant recognises himself in the jury. Jessica Jacobson, Gillian Hunter & Amy Kirby, Inside Crown Court: Personal Experiences and Questions of Legitimacy (Bristol: Policy Press, 2015) at 179 who conducted an extensive interview study in English Crown Courts, note “a considerable degree of mistrust towards juries by defendants”.

52. In recent years, jurors’ conduct has increasingly given rise to “contempt of court” proceedings against jurors (for discussion and examples, see ATH Smith, “Repositioning the Law of Contempt: the Criminal Justice and Courts Act 2015” [2015] CrimLR 845). Such cases only scratch the surface of juror prejudice, irrationality and intellectual limitations affecting the quality of jury deliberations and decisions. I thank Mark Reiff for prompting me to clarify this point.

53. Johnson, supra note 25 at 160.

54. Kurt Seelmann, “Does Punishment Honour the Offender?” in AP Simester, Antje du Bois-Pedain & Ulfrid Neumann, eds, Liberal Criminal Theory: Essays for Andreas von Hirsch (Oxford: Hart, 2014) 111 at 113-14 carefully retraces the Kantian line.

55. Ibid at 115.

56. Ibid.

57. Ibid.

58. Ibid at 117.

59. Ibid.

60. Ibid at 118.

61. Ibid.

62. See ibid for an exploration of this similarity between Hegelian-Idealist and modern censure-based justifications of punishment, such as the theory developed in Andrew von Hirsch, Censure and Sanctions (Oxford: Oxford University Press, 1993).

63. Ristroph, supra note 4 at 470.

64. Ibid at 471.

65. Peter Ramsay raised this point in discussion with me.

66. This is suggested by handwritten notes Hegel made on his lecture manuscript, where he insists that there is no punishment in the case of the “Roman who wanders about, smacking other citizens, with his slave following him with a sack of money from which the criminal fine is paid immediately”, or in the case of the person who commits murder because he wishes to be hanged for it (to punish him, Hegel suggests, we need to convert his punishment into imprisonment). See GWF Hegel, Grundlinien der Philosophie des Rechts, ed by Eva Moldenhauer & Karl M Michel, 6th ed (Frankfurt/Main: Suhrkamp, 1821/2000) at 189 [my translation].

67. I owe this point to Miriam Gur-Arye.

68. Ristroph, supra note 4 at 472.

69. Seelmann, supra note 54 at 115.

70. See Schild, supra note 22 at 103. See also Brudner, supra note 3; Merle, supra note 8 at 133.

71. Schild, supra note 22 at 106. Jakobs, supra note 23 at 26, suggests that the infliction of the pain of punishment, for Hegel, has not primarily a deterrent dimension (as for other theorists) but a symbolic dimension: it makes the incompatibility of what the offender has done with an order of freedom manifest. As such, he argues that some degree of hardship is, from a Hegelian perspective, indispensable: “The pain of punishment serves to reinforce the validity of the norm at the cognitive level; this is the purpose of punishment whereas the negation of the negation of [the norm’s] validity by the criminal is [punishment’s] concept.” Jakobs, ibid at 29 [my translation].

72. This point is made by Ulfrid Neumann, “Anfragen an Hegels Straftheorie aus ‘nachmetaphysischer’ Sicht” in Andreas von Hirsch, Kurt Seelmann & Ulfrid Neumann, eds, Strafe—Warum? Gegenwärtige Strafbegründungen im Lichte von Hegels Straftheorie (Baden-Baden: Nomos, 2011) 159 at 164.

73. Johnson, supra note 25 at 160.

74. For many philosophers outside the Hegelian framework, harm is an essential element of the notion of punishment. See, e.g., David Boonin, The Problem of Punishment (Cambridge: Cambridge University Press, 2008) at 6; Joel Feinberg, Doing and Deserving. Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970) at 67.

75. I thank Jeremy Horder for pressing me to explain the status of fines in Hegel’s theory.

76. The “beneficium competentiae” refers to “certain provisions deriving from Roman law, [which ensured that] a debtor or unsuccessful defendant in a civil action could not be required to pay more than his means permitted (…); for example, he could not be deprived of the tools necessary to ply his trade.” (Hegel, supra note 13, editorial note 2 to § 127 at 425). Wolfgang Schild, “Hegel’s Lehre vom Notrecht” in Vittorio Hösle, ed, Die Rechtsphilosophie des deutschen Idealismus (Hamburg: Meiner, 1989) 146 at 153 points out that, as an institution of positive law, the “beneficium competentiae” belongs to the sphere of civil society.

77. Eduard Gans, Naturrecht und Universalgeschichte. Vorlesungen nach G.W.F. Hegel, ed by Johann Braun (Tübingen: Mohr, 1833/2005) at 118 [my translation].

78. See, e.g., Brandon Hogan, From Punishment to Recognition: Toward a Hegelian Theory of Criminal Justice (PhD thesis, University of Pittsburgh, 2014) (http://d-scholarship.pitt.edu/20354/) and Britta Caspers,“Schuld” im Kontext der Handlungslehre Hegels (Hamburg: Felix Weiner, 2012).

79. Gans, supra note 77 at 118.

80. I thank Matt Kramer for suggesting that I clarify this point.

81. Some modern commentators dismiss the remark quoted in the text on the basis that it was not included by Hegel in his published text but is taken from the lecture notes of his students (see, e.g., Markus Dirk Dubber, “Rediscovering Hegel’s Theory of Crime and Punishment” (1994) 92 Mich L Rev 1577). If this reasoning is meant to throw into doubt that Hegel really did make this point in his lectures, then the argument is weak. The same point already appears in Wannenmann’s notes, taken during 1817-18 (LNR, § 113); there can in my view be little doubt that Hegel regularly made this point in his lectures. That Hegel was nevertheless uncomfortable with the death penalty is borne out by the fragment discussed below.

82. Similar to Zabel, supra note 16 at 147 (suggesting that the field of normative communication that Hegel establishes through the connections between the will of socially embedded actors provides the foundation and the logic for determining the ground and measure of punishment).

83. Seelmann, supra note 54 at 115.

84. In this sub-section, I draw heavily on JM Bernstein’s masterful discussion of the dynamics of conscience (in JM Bernstein, “Confession and Forgiveness: Hegel’s Poetics of Action” in Richard Eldridge, ed, Beyond Representation: Philosophy and Poetic Imagination (Cambridge: Cambridge University Press, 1996) 34). I thank Liat Levanon for our long discussion of Bernstein’s work, which has greatly influenced the argument in this section.

85. Ibid at 52.

86. See ibid at 39-41, 44-46 for the claims of conscience. In an attempt to capture Hegel’s usage, Bernstein defines an act of conscience as “any non-routine, significant human action” (at 36). The quotation of § 667 of the Philosophy of Spirit in the text appears in Bernstein, ibid at 48.

87. Ibid at 61.

88. Ibid [emphasis original].

89. Ibid at 62.

90. Ibid at 61.

91. I thank Liat Levanon for suggesting this point to me.

92. Ibid at 57.

93. Ibid at 58.

94. Rainer Schäfer, Was Freiheit zu Recht macht: Manuale des Politischen (Berlin and New York: De Gruyter, 2014) at 286-87.

95. Ibid, with references from Hegel’s writings.

96. Cf also PR, § 219 (Remark): “The administration of justice [whatever its historical origins, which may well lie in patriarchal relationship, or in coercion] should be regarded as both a duty and a right on the part of public authority, and as a right, it is not the least dependent on whether individuals choose to entrust it to an authority or not.”

97. Emmanuel Melissaris, “Toward a Political Theory of Criminal Law: a critical Rawlsian account” (2012) 15:1 New Crim L Rev 122 at 139.

98. Johnson, supra note 25 at 160. For Jakobs, the maintenance (or affirmation) of the validity of the “negated” norm is the essential structural function of punishment for Hegel: “With this [negation of the negation], the normative order of society is reaffirmed: a movement/sequence has been performed that accords neither with a ‘punitur, que peccetur’ nor with a ‘punitur, quia peccatum est’: the gaze is forward-looking, as with the ‘ne peccetur’, but the point is not the prevention of further crime—a project which, taken seriously, is in many respects a totalitarian one—but the preservation of the validity of the norms.” Jakobs, supra note 23 at 26 [my translation].

99. I owe the expression “life-trashing sentences” to Simon Hallsworth, who used it to refer to life sentences with long minimum terms of imprisonment imposed on young men for participation in gang violence. I mean by this expression a sentence which, while intended to be restricted in the impact it has on a prisoner’s future, makes it very difficult, if not impossible, for prisoners to retain their identity, given that this is strongly linked to a biographically coherent life-course.

100. This may well be one (not frequently perceived) reason why the innocence campaigns in the US have undermined the perceived legitimacy of the death penalty more than any argument about how the death penalty is unjustifiable even when imposed on the guilty.

101. All quotations in this paragraph are taken from “Fragment No 13 on ‘Public Capital Punishment’” in GWF Hegel, Miscellaneous Writing, ed by Jon Stewart, various translators (Evanston: Northwestern University Press, 1785-1831/2002) at 100-01.

102. Admittedly, this may be no more than a hunch on Hegel’s part. That it may not be far off its mark is suggested, to my mind at least, by Pillsbury’s description of his reaction upon being told, years after he followed the trial as an observer, of the execution of a prisoner who had been sentenced to death for such egregious physical violence against his four small children that he had killed two of them and caused lasting injuries to a third. During the sentencing hearing the man’s own history of victimisation at the hands of his parents was thematised, but the death penalty was imposed on him nonetheless. Pillsbury writes that, when his wife rang him to say the man had been executed, he was “surprised by my own reaction. I felt hollow and sick. I was certain [this man] deserved severe punishment, but not death. I could not say exactly why, though.” Pillsbury, Samuel H, Judging Evil. Rethinking the Law of Murder and Manslaughter (New York: New York University Press, 1998) at viii.Google Scholar

103. Hegel’s concern here appears to be also with the dishonour involved in being subjected to certain forms of punishment. In his lectures given in 1817-18, he discusses executions in the context of demeaning punishments, and approves neither of hangings nor of the guillotine (LNR, § 113).