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Hegel's Theory of Crime and Punishment

Published online by Cambridge University Press:  05 August 2009

Lewis P. Hinchman
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Extract

In recent times, the issues surrounding crime and punishment have seldom been discussed from the vantage point of political philosophy. Instead, they have tended to become the province of lawyers, psychologists, and specialists in ethics or the philosophy of language. Whatever the merits of their respective contributions may be, such writers usually have assumed that the basic questions of political legitimacy and the state's authority to enforce criminal law have been settled. In effect, they ask: given a state which already possesses a legitimate system of criminal justice, whom should the state punish (if it does at all), why, and under what circumstances?

Type
Research Article
Information
The Review of Politics , Volume 44 , Issue 4 , October 1982 , pp. 523 - 545
Copyright
Copyright © University of Notre Dame 1982

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References

1 See for example the views of Karl Menninger, “Love against Hate,” and Glueck, Sheldon, “Principles of a Rational Penal Code,” in Theories of Punishment, ed. Grupp, Stanley E. (Bloomington, Indiana, 1977), pp. 243–253Google Scholar; 271–92.

2 There are a number of able philosophical defenses of the retributivist viewpoint. The following are especially illuminating: J. D. Mabbott, “Punishment,” in Grupp, Theories of Punishment, pp. 41–56; Armstrong, K. G., “The Retributivist Hits Back,” in The Philosophy of Punishment, ed. Acton, H. B. (London, 1969), pp. 138–158Google Scholar; Hall, Jerome, “Just vs. Unjust Law,” in Contemporary Punishment: Views, Explanations, and Justification, ed. Gerber, and McAnany, (Notre Dame, Indiana, 1972), pp. 49–59Google Scholar.

3 The exception is Gertrude Ezorsky, editor of a recent collection on the subject, who seems to think that Hegel's theories may also be classed a “teleological” (Ezorsky, , ed., Philosophical Perspectives on Punishment [Albany, New York, 1972], p. xii)Google Scholar.

4 Consider the following remark: “A man cannot lay down the right of resisting them that assault him by force to take away his life. … The same may be said of wounds and chains and imprisonment” (Hobbes, Thomas, Leviathan [Indianapolis, Indiana: The Liberal Arts Press, Inc., 1958], p. 112)Google Scholar.

5 Locke, John, The Second Treatise of Civil Government in Two Treatises of Government, ed. Cook, Thomas I. (New York: Hafner Publishing Co., 1964), p. 122Google Scholar.

6 However, Locke notes that individuals do retain the natural right to punish (i.e., enforce the law of nature) when the sovereign cannot enforce it. See Locke, “On the State of War,” in Two Treatises, p. 131.

7 See Rousseau, Jean-Jacques, On the Social Contract, bk. 1, chap. 4 (New York: St. Martin's Press, 1978), p. 49Google Scholar.

8 Ibid., p. 61.

9 Ibid., p. 53.

10 “Whoever refuses to obey the general will shall be constrained to do so by the entire body: which means only that he will be forced to be free” (ibid., p. 55).

11 Immanuel Kant, “Justice and Punishment,” in The Philosophy of Law, part 2 (Ezorsky, Philosophical Perspectives, p. 104).

12 Hegel, Georg W. F., Der Geist des Christentuns und sein Schicksal in Theorie Werkausgabe, ed. Moldenhauer, Eva and Michel, Karl Markus from Hegel's Werke (1832–1845), vol. 1 (Fruehe Schriften); (Frankfurt/Main: Suhrkamp Verlag, 1971), p. 338Google Scholar. My translation.

13 Ibid.

14 Ibid.

15 Ibid., p. 340.

16 Ibid., p. 343.

17 Ibid., p. 346.

18 Ibid.

19 Ibid., p. 345.

20 Ibid.

21 (In the ancient republics) “Everyone is the custom [Sitte], is immediately one with the universal. Everyone knows himself immediately as universal, i.e., he renounces his particularity without knowing his self as such, this self, to be what is essential. The higher diremption is thus that each individual should perfectly return into himself, should know his self as such to be essential, should arrive at this self-will cut off from the existing universal … It is as an individual that he must set the universal free” (Hegel, G. W. F., Jenenser Realphilosophie-Philosophie des Geistes [1805–1806], trans. Wood, Allen in “Hegel's Social Philosophy in the Jena Realphilosophie” (unpublished mss., 1973), p. 8Google Scholar.

22 Ibid., p. 3. See also Hegel's frequent criticisms of the “state of nature” construct and of the postulate that man limits his freedom by becoming a member of the state. For example, see G. W. F. Hegel, Enzyklopaedie der Philosophischen Wissenschqften, vol. 3 in Moldenhauer and Michel, Theorie Werkausgabe, vol. 10, p. 311 (hereafter cited as Enzyklopaedie); and Philosophy of Right, trans. Knox, T. M. (London: Oxford University Press, 1971)Google Scholar; paragraph 71, p. 57.

23 Hegel uses the term element (das Element) in the sense we have in mind when we say “water is the natural element of a fish.” He suggests that man must create a sort of spiritual “element” for himself in which he can live a fully human life. Man moves in this “element” naturally, yet he seems frequently to take it for granted, just as he does the air which he breathes. Hegel hopes to discover the properties of this spiritual “element” and show how it came into being.

24 Hegel, “Social Philosophy in the Jena Realphilosophie, 1804–1805” in Wood, p. 11 (hereafter cited as Realphilosophie, 1804–1805).

25 Ibid., p. 9.

26 Ibid., p. 21.

27 G. W. F. Hegel, “Society and Labor in Hegel's Realphilosophie, 1803–1804,” notes on Volkgeist in Wood, pp. 6–7.

28 Hegel, Realphilosophie, 1804–1805, p. 9.

29 Ibid., p. 5.

30 Hegel, Enzyklopaedie, 3:219, Zusatz.

31 Ibid., p. 226.

32 Ibid., p. 221, Zusatz.

33 “A person must translate his freedom into an external sphere in order to exist as Idea” (Hegel, Philosophy of Right, p. 40).

34 Ibid., pp. 37; 38.

35 Hegel, G. W. F., Die Geschichte der Philosophie in Werke, ed. Michelet, Karl Ludwig (Berlin, 1833), IIIGoogle Scholar: 528. My translation.

36 G. W. F. Hegel, Texte zur Philosophischen Propaedeutik in Nurenberger und Heidelberger Schriften, 1808–1817, vol. 4 of Theorie Werkausgabe, p. 244.

37 Hegel, Philosophy of Right, p. 69.

38 It could be objected that a mentally ill criminal, for example, might be found incapable of exercising his civil rights without that finding jeopardizing anyone else's capacity to have rights. But Hegel would counter that judging degrees of responsibility, mental competence, etc., presupposes that we have developed the concept of responsible behavior already, by contrast to nonresponsible (i.e., animal) behavior. He postpones all discussion of such judgments, accordingly, until the section on “Morality,” when the dialectic of crime and punishment has yielded the notion of responsible behavior.

39 Hegel, Philosophy of Right, pp. 71; 70.