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Is Hegel a Retributivist?

Published online by Cambridge University Press:  23 June 2015

Thom Brooks
Thom Brooks*
Affiliation:
University of Newcastle
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Abstract

Amongst contemporary theorists, the most widespread interpretation of Hegel's theory of punishment is that it is a retributivist theory of annulment, where punishments cancel the performance of crimes. The theory is retributivist insofar as the criminal punished must be demonstrated to be deserving of a punishment that is commensurable in value only to the nature of his crime, rather than to any consequentialist considerations. As Antony Duff says:

[retributivism] justifies punishment in terms not of its contingently beneficial effects but of its intrinsic justice as a response to crime; the justificatory relationship holds between present punishment and past crime, not between present punishment and future effects.

Punishment is given only to persons responsible for committing crime. In addition, the degree of punishment is set in proportion to the relative badness of the precipitating crime. Thus, retributivism can be understood as an individualistic theory because the only relevant factors pertain solely to the individual criminal himself.

The general attraction of Hegel's version of retributivism is that the punishments his theory is thought to endorse are commensurable in value with precipitating crimes, in contrast to the strict equivalence required by Kant's theory of punishment. As a result, Hegel's theory is praised both for being more acceptable to modern readers than Kant's so-called ‘pure retributivism’, as well as for being an ‘emphatically anti-utilitarian’ theory. Despite widespread agreement on these general features, it is hotly contested how exactly we are to understand the way in which punishment cancels crimes, and Hegel's difficult style has only served to make the controversy deeper. For example, Ted Honderich says: ‘A punishment is an annulment, a cancellation or a return to a previous state of affairs … All this, of course, is obscure. It is by Hegel’.

Type
Graduate Essay Prize - Runners-up
Information
Bulletin of the Hegel Society of Great Britain , Volume 25 , Issue 1-2: number 49/50 , 2004 , pp. 113 - 126
Copyright
Copyright © The Hegel Society of Great Britain 2004

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References

Notes

1 For example, see Anderson, Jami L., ‘Annulment Retributivism: A Hegelian Theory of Punishment’, Legal Theory 5 (1999), pp. 363–88CrossRefGoogle Scholar; Brown, Stephen Paul, ‘Punishment and the Restoration of Rights’, Punishment and Society 3 (2001), pp. 485–500 CrossRefGoogle Scholar; Cooper, David E., ‘Hegel's Theory of Punishment’, in Pelczynski, Z., ed., Hegel's Political Philosophy: Problems and Perspectives (Cambridge: Cambridge University Press, 1971), pp. 151–67Google Scholar; Corlett, J. Angelo, ‘Making Sense of Retributivism’, Philosophy 76 (2001), p. 80 n.11CrossRefGoogle Scholar; Cottingham, John, ‘Varieties of Retribution’, Philosophical Quarterly 29 (1979), pp. 244–45CrossRefGoogle Scholar; Dubber, Markus Dirk, ‘Rediscovering Hegel's Theory of Crime and Punishment’, Michigan Law Review 92 (1994), 1577–621, esp. p. 1605 CrossRefGoogle Scholar; Findlay, J. N., Hegel: A Re-examination (London: George Allen & Unwin, 1958), pp. 312–13Google Scholar; Franco, Paul, Hegel's Philosophy of Freedom (New Haven: Yale University Press, 1999), pp. 204–6Google Scholar; Hampton, Jean, ‘The Moral Education Theory of Punishment’, Philosophy and Public Affairs 13 (1987), p. 236 Google Scholar; Hetherington, Andy, ‘The Legitimacy of Capital Punishment in Hegel's Philosophy of Right ’, The Owl of Minerva 27 (1996), pp. 167–74CrossRefGoogle Scholar; Heyman, Steven J., ‘The Legitimacy of Capital Punishment in Hegel's Philosophy of Right A Comment’, The Owl of Minerva 27 (1996), pp. 175–80CrossRefGoogle Scholar; Hinchman, Lewis P., ‘Hegel's Theory of Crime and Punishment’, Review of Politics 44 (1982), p. 524 CrossRefGoogle Scholar; Honderich, Ted, Punishment: The Supposed Justifications (Harmondsworth: Penguin, 1976), pp. 45–48 Google Scholar; Inwood, Michael, A Hegel Dictionary (Oxford: Blackwell, 1992), pp. 232–35Google Scholar; Kasachkoff, Tziporah, ‘Hegel's Retributivist Position on Punishment’, Philosophical Studies (Ireland) 25 (1977), pp. 192–211 CrossRefGoogle Scholar; Marx, Karl, ‘On Capital Punishment’, New York Daily Tribune, 28 February 1853 Google Scholar; Plant, Raymond, Hegel: An Introduction, 2nd ed. (Oxford: Basil Blackwell, 1983), p. 157 Google Scholar; Robert, J. Prichard, S. and Brudner, Alan, ‘Tort Liability for Breach of Statute: A Natural Rights Perspective’, Law and Philosophy 2 (1983), pp. 94–99 CrossRefGoogle Scholar; Primoratz, Igor, Justifying Legal Punishment (Atlantic Highlands: Humanities, 1989), pp. 69–81 Google Scholar; Reiman, Jeffrey, ‘Why the Death Penalty Should Be Abolished in America’, in Pojman, L. and Reiman, J. (eds.), The Death Penalty: For and Against (Lanham: Rowman & Littlefield, 1998), pp. 89–92 Google Scholar; Sher, George, Desert (Princeton: Princeton University Press, 1987), p. 70 Google Scholar; Stillman, Peter G., ‘Hegel's Idea of Punishment’, Journal of the History of Philosophy 14 (1976), pp. 169–82CrossRefGoogle Scholar; Taylor, Charles, Hegel (Cambridge: Cambridge University Press, 1975), p. 429 CrossRefGoogle Scholar; Tunick, Mark, Hegel's Political Philosophy: Interpreting the Practice of Legal Punishment (Princeton: Princeton University Press, 1992)CrossRefGoogle Scholar; Tunick, Mark, Punishment: Theory and Practice (Berkeley: University of California Press, 1992), p. 87 CrossRefGoogle Scholar (calls Hegel ‘[o]ne of the most famous and important retributivists’); Williams, Robert R., Hegel's Ethics of Recognition (Berkeley: University of California Press, 1997), pp. 157–71Google Scholar; Wood, Allen W., Hegel's Ethical Thought (Cambridge: Cambridge University Press, 1990), pp. 108–24CrossRefGoogle Scholar; and Wood, Allen W., ‘Hegel's Ethics’, in Beiser, F., ed., The Cambridge Companion to Hegel (Cambridge: Cambridge University Press, 1993), pp. 220–21Google Scholar.

2 Duff, R. A., Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), pp. 19–20 Google Scholar. See also Michael, Mark. A., ‘Utilitarianism and Retributivism: What's the Difference?’ American Philosophical Quarterly 29 (1992), pp. 173–82Google Scholar.

3 On Kant's theory of punishment, see my ‘Corlett on Kant, Hegel, and Retribution’, Philosophy 76 (2001), pp. 562–73Google Scholar and my ‘Kant's Theory of Punishment’, Utiitas 15 (2003), pp. 206–24Google Scholar.

4 See Hinchman, , ‘Hegel's Theory of Crime and Punishment’, pp. 523–45Google Scholar where he argues that Hegel's views on punishment in abstract right cohere with his earlier writings, in addition to its improvement on Kant's theory.

5 Honderich, , Punishment, p. 45 Google Scholar. Also: ‘To support such claims would require a great deal of argument and clarification. I leave this difficult subject with the observation that no-one has yet given it adequate treatment’, Feinberg, Joel, Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), p. 73 nGoogle Scholar.

6 Hegel, G. W. F., Grundlinien der Philosophie des Rechts, vol. 7, eds. Moldenhauer, Eva and Michel, Karl Markus (Frankfurt am Main: Suhrkamp Verlag, 1970)Google Scholar (hereafter ‘PR’), §§34-104.

7 Cooper, , ‘Hegel's Theory of Punishment’, p. 151 Google Scholar.

8 Cooper does admit of one exception beyond ‘Abstract Right’: that punishment, for Hegel, ‘is “the business of a public authority”, whereas an act of revenge is not the act of anyone with legally constituted authority’, Cooper, , ‘Hegel's Theory of Punishment’, p. 158, cf. p. 159 Google Scholar. While it is true that Hegel does make this case later in the Philosophy of Right (and not in the section ‘Abstract Right’), it nonetheless seems clear that Cooper believes Hegel's full theory of punishment can be extracted entirely from ‘Abstract Right’ barring this qualification. It is worth noting that in ‘Abstract Right’ Hegel does argue that for punishment to be other than revenge there is a need for justice to be made public. (See PR, §§102R, A.)

9 The typical view is stated eloquently by Steinberger: ‘Of course, true punishment, as opposed to mere revenge, only comes on the scene with the advent of Civil Society in which the principles of law have been firmly established (PR, §220). But the full justification for punishment is already present in the section on Abstract Right’, Steinberger, Peter J., Logic and Politics: Hegel's Philosophy of Right (New Haven: Yale University Press, 1988), p. 125 CrossRefGoogle Scholar. Admittedly, Steinberger argues elsewhere: ‘it may be wondered how much of this account is really Hegel, and how much is merely inspired by certain Hegelian insights. I am not as well prepared to answer this question as I would like to be’, Steinberger, Peter J., ‘Hegel on Crime and Punishment’, American Political Science Review 77 (1983), p. 870 CrossRefGoogle Scholar.

10 Findlay, , Hegel, p. 321 Google Scholar. Cf. Cooper, , ‘Hegel's Theory of Punishment’, p. 151 Google Scholar and Stillman, , ‘Hegel's Idea of Punishment’, p. 170 n.5Google Scholar.

11 Stillman, , ‘Hegel's Idea of Punishment’, p. 170 n.5Google Scholar. See Knowles, Dudley, Hegel and the Philosophy of Right (London: Roudedge, 2002), p. 153 Google Scholar.

12 This is hinted at in Knowles, Dudley, ‘Hegel on the Justification of Punishment’, in Williams, R., ed., Beyond Liberalism and Communitarianism: Studies in Hegel's Philosophy of Right (Albany: State University of New York Press, 2001), p. 134 Google Scholar and Knowles, Dudley, Hegel and the Philosophy of Right (London: Routledge, 2002), p. 148 Google Scholar (‘it is hard to see Hegel's account as distinctly retributivist’) (emphasis added).

13 While I would agree with Peter Steinberger that Hegel's theory is not retributive in any traditional sense, Steinberger claims this is so, not because Hegel's theory is non-individualistic, but because it lacks ‘the principle of revenge … without recourse to added utilitarian considerations’, Steinberger, , ‘Hegel on Crime and Punishment’, p. 869 Google Scholar.

14 Wood, , Hegel's Ethical Thought, p. xiii Google Scholar. On the other hand, Peter Steinberger argues that we should consider the Philosophy of Right ‘as governed by, and as an application of, Hegel's philosophical method’, Steinberger, , Logic and Politics, p. ix Google Scholar.

15 My approach has more in common with that of Stephen Houlgate, Henry Richardson, and Wolfgang Schild. Cf. Houlgate, Stephen, ‘Hegel's Ethical Thought’, Bulletin of the Hegel Society of Great Britain (1992), pp. 10–13 Google Scholar; Richardson, Henry S., ‘The Logical Structure of Sitthcbkeit A Reading of Hegel's Philosophy of Right ’, Idealistic Studies 19 (1989), pp. 62–78 CrossRefGoogle Scholar; and Schild, Wolfgang, ‘The Contemporary Relevance of Hegel's Concept of Punishment’, in Pippin, R. B. and Höffe, O., eds., Hegel on Ethics and Politics, trans. Walker, N. (Cambridge: Cambridge University Press, 2004), pp. 150–79CrossRefGoogle Scholar.

In contrast, Mark Tunick argues that Hegel's Philosophy of Right might best be understood as a ‘phenomenological account’ whose method is derived from Hegel's Phenomenology of Spirit. Cf. Tunick, Mark, ‘Hegel's Nonfoundationalism: A Phenomenological Account of the Structure of Philosophy of Right’, History of Philosophy Quarterly 11 (1994), pp. 317–37Google Scholar. Yet, this cannot be true. Hegel's Phenomenology of Spirit is meant to serve as a preface to his larger system of speculative philosophy (of which the Philosophy of Right is but one small part) and not as a part of the system per se. In the Phenomenology Hegel attempts to demonstrate the failure of previous approaches to knowledge in order to point out the need for a new approach altogether, one found in his speculative logic. Indeed, Tunick notes that ‘this phenomenological account, taken on its own as a complete account of Hegel's philosophy of right, flies in the face of … numerous passages' where Hegel clearly states a different self-understanding of how the Philosophy of Right fits into his larger philosophical system. Tunick, , ‘Hegel's Nonfoundationalism’, p. 323 Google Scholar.

16 See PR Preface pp. 9-10, §§4R and 8R. In addition, Harry Brod argues: ‘Any valid interpretation of Hegel's Philosophy of Right must bear in mind that it is an elaboration of §§483-551 of his Philosophy of Spirit, the section designated as “Objective Spirit’”. Brod, Harry, ‘The “Spirit” of Hegelian Politics: Public Opinion and Legislative Debate from Hegel to Habermas’, in Stillman, P., ed., Hegel's Philosophy of Spirit (Albany: State University of New York Press, 1987), p. 124 Google Scholar. Cf. Hartmann, Klaus, ‘Towards a New Systematic Reading of Hegel's Philosophy of Right’, in Pelczynski, Z., ed., The State and Civil Society: Studies in Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1984), p. 117 Google Scholar.

17 Hegel, G. W. F., Hegel's Science of Logic, trans. Miller, A. V. (Amherst: Humanity Books, 1969/1999), p. 37 Google Scholar. For an excellent discussion, see Stern, Robert, ‘Unity and Difference in Hegel's Political Philosophy’, Ratio 2 (1989), pp. 75–88 CrossRefGoogle Scholar.

18 Hegel, G. W. F., The Encyclopaedia Logic: Part I of the Encyclopaedia of Philosophical Sciences with the Zusätzp, trans. Geraets, T. F., Suchting, W. A., and Harris, H. S. (Indianapolis: Hackett, 1991), §99AGoogle Scholar.

19 Hegel, , Science of Logic, p. 71 Google Scholar.

20 PR, §§10, 21.

21 Hegel, Encyclopaedia Logic, §15R. See PR §§2, 31R and Hegel, , Science of Logic, p. 755 Google Scholar.

22 Hegel, , Science of Logic, pp. 514-5, 827 Google Scholar. See Hegel, G. W. F., Phenomenology of Spirit, trans. Miller, A. V. (Oxford: Oxford University Press, 1977), p. 11 Google Scholar.

23 Hegel, , Science of Logic, pp. 198, 414 Google Scholar.

24 PR, §§1, 29.

25 PR, §§2R, 19. The existence of right is presupposed in the Philosophy of Right, having been demonstrated to exist in the previous corresponding sections of the Philosophy of Mind. See PR, §2 and Hegel, G. W. F., Hegel's Philosophy of Mind: Part Three of the Encyclopaedia of the Philosophical Sciences (1830), trans. Wallace, W. and Miller, A. V. (Oxford: Oxford University Press, 1971), §§485-87Google Scholar.

26 PR, §32A.

27 PR, §4.

28 PR, §§4, R, A, 13, A. On the will, see Houlgate, Stephen, ‘The Unity of Theoretical and Practical Spirit in Hegel's Concept of Freedom’, Review of Metaphysics 48 (1995), pp. 859–81Google Scholar.

29 PR, §36.

30 See PR, §§41A, 49R, 55R, 217R.

31 PR, §§51, 57R. See Hegel, Philosophy of Mind, §§483, 491.

32 PR, §71.

33 PR, §78A.

34 PR, §§41 A. See ibid., §§71, R, A.

35 PR, §81A.

36 Hegel, , Phenomenology of Spirit, p. 43 Google Scholar.

37 See Hegel, Philosophy of Mind, §396A. See also PR, §27A: ‘Thus bad actions, for example, are merely subjective’.

38 PR Preface, pp.15, 18-9, §§81, 82. Hegel repeatedly condemns grounding right solely in subjective inclinations. (See PR Preface, 11-12, 15, 17-19, §§2R, 3R, 11, 15R, 17, 18, 25, 26A.)

39 PR, §82.

40 These distinctions correspond to the logical categories of ‘simple negative judgement’, ‘positive infinite judgement’, and ‘negative infinite judgement’, respectively. (See Tunick, , Hegel's Political Philosophy, pp. 26–29 Google Scholar and Hegel, Encyclopaedia Logic, §173A.)

41 PR, §86A.

42 PR, §§87, 88.

43 PR, §95.

44 PR, §101.

45 Hegel, , Science of Logic, p. 107 Google Scholar.

46 PR, §§97A, 99.

47 PR, §101.

48 PR, §101.

49 PR, §100.

50 PR, §100R. See ibid., §99R: ‘In the present discussion, we are solely concerned with the need to cancel crime — not as a source of evil, but as an infringement of right as right’.

51 See Hegel, G. W. F., ‘System of Ethical Life (1802/3)’, in Harris, H. S. and Knox, T. M., eds. and trans., Hegel's System of Ethical Life and First Philosophy of Spirit (Albany: State University of New York Press, 1979), p. 118 Google Scholar: ‘It is laughable to regard everything under the form of this abstraction as legal right; right is something entirely formal, (α) infinite in its variety, and without totality, and (β) without any content in itself.

52 Hegel, G. W. F., The Philosophy of History, trans. Sibree, J. (New York: Dover, 1956), p. 128 Google Scholar.

53 PR, §100R.

54 ‘The problem of the punishment of the innocent pervades all justifications of punishment that are not retributive’. ( Stillman, , ‘Hegel's Idea of Punishment’, p. 177.Google Scholar)

55 PR, §99 A. See Hegel, Encyclopaedia Logic, §121A.

56 PR, §99R.

57 Punishment may also be warranted in instances of deception. See PR, §89A.

58 See Hegel, , ‘System of Ethical Life’, pp. 132, 139–40Google Scholar. Cullen argues: ‘Since violations of this justice are violations of the interests of a particular individual and not the interests of the whole nation, the appropriate sanctions are not vengeance or war but punishment’. ( Cullen, Bernard, Hegel's Social and Political Thought: An Introduction [New York: St. Martin's Press, 1979], p. 61.Google Scholar)

59 Hegel, G. W. F., Lectures on Natural Right and Political Science: The First Philosophy of Right, trans. Stewart, J. Michael and Hodgson, Peter C. (Berkeley: University of California Press, 1995)Google Scholar, §46R and Hegel, Philosophy of Mind, §500.

60 See Hegel, Philosophy of Mind, §531, referring to §500 and PR, §220, referring to §102.

61 A further problem for interpretations of Hegel's theory of punishment that neglect its foundation in speculative logic concerns Hegel's treatment of morality (see PR, §§105-41). One problem with abstract right is that right exists only contingendy at the discretion of private individuals (see PR, §104R). In his section ‘morality’ (die Moralität) which direcdy follows the discussion of ‘abstract right’, Hegel proceeds to develop an account of personal responsibility. This is problematic since in abstract right, ‘it makes no difference what my principle or intention was’, stricdy speaking (PR, §§106A, 113R). Indeed, it is rather odd that most commentators ascribe to Hegel a retributivist view on punishment based almost entirely on Hegel's comments in Abstract Right where no notion of moral responsibility yet exists.

62 For perhaps the best exceptions, see Nicholson, Peter P., ‘Hegel on Crime’, History of Political Thought 3 (1982), pp. 103–21Google Scholar and Schild, Wolfgang, ‘The Contemporary Relevance of Hegel's Concept of Punishment’, pp. 150–79Google Scholar. While different in important respects, my interpretation is indebted to Nicholson's work.

63 ‘The objective actuality of right’ is manifest in ‘the Administration of Justice’ (PR, §210).

64 See also Schild, , ‘The Contemporary Relevance of Hegel's Concept of Punishment’, p. 160 Google Scholar.

65 PR, §101, R.

66 The only exception may be state execution for murderers: ‘although retribution cannot aim to achieve specific equality, this is not the case with murder, which necessarily incurs the death penalty. For since life is the entire compass of existence, the punishment [for murder] cannot consist in a value — since none is equivalent to life — but only in the taking of another life’ (PR, §101A). This passage may be best understood, as I have said elsewhere, by what Hegel should have said: ‘In a sense, it is somewhat of a coincidence that the most severe crime (i.e. murder) — or, at least one of the most severe — is punished by the most severe punishment (i.e. execution). Hegel could then have argued that he is not making any special exceptions in this instance, as he would not be justifying his position on the basis that no punishment other than death would be appropriate for murderers. The equivalence between a murderer and his punishment would then only be in value, not in kind. The biggest drawback to this argument is the fact that Hegel never offers it. If he had, his argument for capital punishment would have been more consistent’. (‘Corlett on Kant, Hegel, and Retribution’, p. 576 n.71.) I remain grateful to Brian O'Connor for suggesting this argument.

67 PR, §96A (emphasis added). See ibid., §214R.

68 PR, §101.

69 PR, §218.

70 PR, §218R.

71 Hegel, Lectures on Natural Right and Political Science, § 114R (emphasis added).

72 PR, §218R.

73 PR, §217. See ibid., §217R: ‘The original, i.e. immediate, modes of acquisition and titles (see §§54ff.) are in fact abandoned in civil society, and occur only as individual accidents or limited moments’.

74 PR, §99.

75 PR, §218R.

76 PR, §101R. Relating to a drunken killer, Peter Steinberger argues that, for Hegel: ‘while perhaps we would not want to punish him for first-degree murder, we would want to punish him for his somewhat lesser but still grave offence’. ( Steinberger, , Logic and Politics, p. 143.Google Scholar) See Nicholson, , ‘Hegel on Crime’, p. 120 Google Scholar who argues that Hegel might punish criminal attempts less than actual offences. In fact, Hegel criticises precisely this view at PR, §§118R, A, 126, R, 135R, 140R, A. Hegel says that ‘to consider such circumstances … is once again to deny the criminal the right and dignity of a human being … However, lack of mental development can justify lesser degrees of punishment, but only if the criminal is a child or insane’ (PR, §132R; Cf. Hegel, Lectures on Natural Right and Political Science, §56, R; Hegel, Philosophy of Mind, §§408A.)

77 My view differs starkly from Stillman's view, which is that ‘the measure of [a criminal's] penalty is also derived from the criminal's act and will. For the penalty is derived from the specific content of the crime itself … Since the punishment fits the crime, the criminal in committing the crime has chosen his punishment’. ( Stillman, , ‘Hegel's Idea of Punishment’, pp. 174–74.Google Scholar)

78 Hegel, Lectures on Natural Right and Political Science, §114R. See PR, §218A.

79 See PR, §§218A, 324-29.

80 PR, §218A.

81 Tunick introduces the term ‘modified retributivism’ to describe Hegel's theory of punishment. Tunick, , Punishment, p. 162 Google Scholar.

82 Tunick, , Punishment, p. 164 Google Scholar.

83 Perhaps I am being unfair to Tunick as it is unclear how committed he is to this position. At rimes he appears to recognise that Hegel's theory is not consistent with retributivism. The reason for this, Tunick claims, is that when Hegel ‘begins to compromise principles, turn consequential t, waver’, it is because ‘[a]pplying theory is hard’. Tunick, , Hegel's Political Philosophy, p. 137 Google Scholar. He later adds: ‘While Hegel's wavering and waffling show how circumscribed the power of his theory is, they are the necessary cost of his willing to be practical, political’ (Ibid., p. 138).

A different approach is suggested by Knowles, who claims that how exactly we equate the value of a criminal's wrongdoing and the value of this wrongdoing's appropriate sanction is not made explicit by Hegel. Knowles says: ‘Hegel has little to say about how judgements of equality are made, how sentences can equate to the criminal's just deserts. This for him is a matter of detail, to be setded at the level of a community's custom and practice’, Knowles, , Hegel and the Philosophy of Right, p. 158 Google Scholar. See Knowles, , ‘Hegel on the Justification of Punishment’, p. 134 Google Scholar. Yet, however we equate the values of crime with punishment, Knowles too seems to admit that retributivism does not sit entirely comfortably with Hegel's full theory of punishment. Thus, for example, Knowles says ‘it is hard to see Hegel's account as distinctly retributivist’ and Hegel's theory ‘does not accomplish its retributivist intent’, Knowles, , ‘Hegel on the Justification of Punishment’, p. 134 Google Scholar.

84 Hegel, , The Philosophy of History, p. 76 Google Scholar.

85 PR, §96R.

86 Hegel, Lectures on Natural Right and Political Science, §45R.

87 See PR, §96R. Elsewhere Hegel criticises China for failing to distinguish ‘in the penal code between higher and lower classes’, The Philosophy of History, p. 130.

88 See Hegel, , The Philosophy of History, pp. 127-31, 212 Google Scholar.

89 See PR, §214R. In addition, Hegel argues that a person's background should be irrelevant to considerations of crime and punishment. (See PR, §209R and Hegel, , The Philosophy of History, pp. 150–51.Google Scholar)

90 See PR, §214R, 227A, 228R and Hegel, Philosophy of Mind, §531.

91 Hegel, Lectures on Natural Right and Political Science, §45R.

92 Ibid., §114.

93 I am grateful to Bob Stern for this point.

94 Hegel, , Science of Logic, p. 465 Google Scholar (emphasis added). See Hegel, G. W. F., Natural Law: The Scientific Ways of Treating Natural Law, Its Place in Moral Philosophy, and Its Relation to the Positive Sciences of Law, trans. Knox, T. M. (Philadelphia: University of Pennsylvania Press, 1975), pp. 60, 92, 120 Google Scholar. It is worth noting that this view of punishment shares a number of similarities with T. H. Green's theory of punishment. (See my ‘T. H. Green's Theory of Punishment’, History of Political Thought 24 (2003), pp. 685–701 Google Scholar and Green, Thomas Hill, Lectures on the Principles of Political Obligation [London: Longmans, 1941], §§176-206.)Google Scholar

95 See Wood, , ‘Reply’, pp. 44–6Google Scholar.

96 This article was presented at the American Philosophical Association-Eastern Division annual meeting, the Political Theory Workshop in the Department of Politics at the University of Sheffield, and the Senior Postgraduate Seminar in the Department of Philosophy at the University of Sheffield. I am most grateful to a number of people for their discussions and helpful comments on earlier drafts, including Gary Browning, James Connelly, John Divers, Fabian Freyenhagen, Stephen Houlgate, Michael Inwood, Duncan Kelly, Judith Lichtenberg, David Merrill, John Skorupski, Mark Tunick, Colin Tyler, Andrew Vincent, and, most especially, Chris Bennett, Dudley Knowles, Dean Moyar, Bob Stern, and Leif Wenar.