Hegel's Idea of Punishment

Abstract

Hegel's Idea of Punishment* PETER G. STILLMAN THAT HEGEL EXPOUNDED a justification of punishment is clear. The type, logic, and details of his justification, however, are less clear.1 But Hegel's theory can be understood as a theory of punishment which is logical and coherent and which, as well, has some interesting implications. Thus, some of Hegel's ideas may be worth re-introducing into the current and continuing debate on punishment and its justification. Furthermore , HegeFs theory yields some important perspectives on the tenor of Hegel's general political philosophy. One problem immediately facing a commentary on Hegel is the definition of the dialectical setting of the subject under consideration. Hegel propounds his theory of punishment primarily in his Philosophy oJ Right,~ where punishment is treated at the end of the first part, entitled "Abstract Right." As its title implies, "Abstract Right" considers rights--and humans--not in their fullness but abstractly. The human actors in "Abstract Right" are persons, which for Hegel is a technical term: a person is but an abstraction from man. A person has human free will, in the form of "arbitrary" or "particular" free will, the will that can will whatever it wants to, the will to---as Locke says--"do or forbear doing any particular action according [to] the actual preference * This article has benefited from the comments and criticisms of individuals too numerous to list. I should like especially to thank the many faculty and students of political science and philosophy at Vassar College who aided---or tried to aid--me in clarifying my thoughts and presentation; in addition, I appreciate the comments and questions I received when an earlier version of this article was presented at the Northeastern Political Science Association Meeting on 9 November 1973. 1 The best treatments of Hegel's views on punishment are Hugh A. Reyburn, The Ethical Theory oJ Hegel (Oxford: Oxford University Press, 1967 [1921]) and David E. Cooper, "Hegel's Theory of Punishment," in Z. A. Pelczynski, ed., Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1971). Cooper's chapter is especially valuable, because it discusses the question of the "general iustifying aim" of the institution of punishment. Both treatments, however, are incomplete at important points. Two points of language usage should be mentioned. First, "theory," "justification," and "philosophy" of punishment are used synonymously. Secondly, "deterrence," "deterrent theory (or justification)," "deterrent punishment," and "punishment justified by deterrence" are used synonymously, to mean "punishment justified by deterrence," an ungainly phrase; a similar usage obtains with "retributive," "utilitarian," "reformative," and "corrective." 2 G. W. F. Hegel, Philosophy of Right [1821], trans. T. M. Knox (Oxford: Oxford University Press, 1945); Hegel, Grundlinien der Philosophie des Rechts, ed. Johannes Hoffmeister, 5th ed. (Hamburg: Felix Meiner, 1955). In conformity to the sensible continental practice, citations to the Philosophy of Right are placed in parentheses in the text, and are according to section (not page) number; where the material cited is from the main text of the section, the section number alone is given; where it is from the "remarks" Hegel added to the text, the section number is followed by "R"; where it is from the "additions" which later editors appended to posthumous editions by collating student lecture notes, the section number is followed by "A." Hegel wrote marginal comments in his own copy; these, untranslated by Knox, are cited by the page number of the German edition, preceded by Hoffmeister'sname. [169] 170 HISTORY OF PHILOSOPHY in the mind.''~ He also has "particularity": certain characteristics---like height and age, impulses and desires---which can identify him and provide "springs for action," but over which he and his arbitrary willhave no control (35), beyond the ability to choose arbitrarily among given impulses and desires. As humans with an arbitrary will, unselfconscious actions, and choices motivated purely by the "last appetite in deliberating," small children have much the same characteristics as persons.4 Because his is only an arbitrary will, the person has no moral intentions, no consciousness of what is right, no concern with welfare, no institutions, no interpersonal life except that of contract. Thus, questions of morality, intention, and welfare never arise for the person and...