My motivations for noding this are twofold. First, I thought it might fit the general spirit of noding one's homework. Second, I read a couple of other really good essay-length pieces on Hegel (by frankdeluxe and Cabin Fever) and thought I might as well throw my hat into the ring. Hegel was (and still is) a massively influential philosopher, but he's a little underrepresented on Everything, perhaps because his writing is about as inpenetrable as it gets when it comes to continental philosophy..and that's pretty impenetrable.

This is an entirely academic essay, and is probably of no use to someone who's not already somewhat familiar with the subject, or philosophy in general. I still have some serious reservations about noding it for precisely this reason. I mean, I can't really de-technicalise the language, because that goes against everything I was taught in the rigorously analytic department where I studied. I'll try and node some more introductory philosophical topics in future. For now though, I'll just trouble the waters with this and see how it goes. It might well appeal to people with a general interest in what the nature and justification of punishment is in modern society.

So apologies if it just gives you a headache. I know it gave me one when I originally wrote it, and when I went to node it. I found that this eased the throbbing somewhat.

Also, if you are unfortunate enough to have been set a homework assignment on Hegel and punishment, please don't just rip this off. I mean, I won't hunt you down in the dead of night or anything, but you should read the original Hegel. And try the books in the bibliography. Some of them are dead good! (especially the Knowles and the Beiser :) They're all written by people that know what they're talking about much better than I do.

Yes, even Peter Singer.

On some central elements of Hegel's retributive theory of punishment

Hegel's theory of punishment is dense and various interpretations of it exist. Some of these fail to provide a full account of the role or ambitions of his theory. In particular, Hegel's assertion of punishment as a right posited for and in the criminal himself is problematic, and some accounts stop short of full engagement with this aspect of the theory. It is, therefore, on this aspect of the theory, and the arguments that stem from it, that I wish to focus. I will argue that punishment as the right of the criminal is central to understanding Hegel's intentions for his theory – that punishment serves, for him, a key role in establishing the existential nature of rights; without it, rights are meaningless. This notion is difficult, and at first glance may suggest an almost paradoxical existential situation. If correctly understood though, with some cashing out of the distinction between subjectivity and objectivity, and with explanation of how Hegel's account of punishment bridges the gap between his broader theories of abstract right and of civil society, it becomes possible to see how punishment is necessary to complete his account of right, and how it thus ties into his general aim of providing a political philosophy that serves to explain the dynamic, historical functioning of society. Whilst there has been much exegetical hand-wringing over the extent to which Hegel's theory of punishment can be described (as he himself wishes) as retributivist, I feel that this issue is largely a terminological one. It is to be settled by reference to whatever coherent argument we can extract from Hegel in the first place, and as this latter is the goal of this essay, the degree of retributivism in Hegel will not be addressed herein.

I take the purpose of Hegel's theory of punishment to be that of filling in a gap in his broader theory of rights, that if left unattended, would result in the presence of a logical misstep. Such a reading has proponents in the literature such as David Cooper (of whose argument, more below). It is easy, however, to find accounts of the theory of punishment that do not deal with Hegel in these terms. Allen Wood, for example, offers an reduction of Hegel's theory to the following claim:

When I violate the right of another, the rational meaning of my act is that I renounce my own claim on the right I violate (or on an equivalent right). When I am punished, the state infringes on (what would otherwise be) my right, but it does me no injustice because I have forfeited this right through an act of my own will.¹

Such a reading amounts to little more than an excuse (as opposed to prudential reason) for vengeance, and in this, it does capture an important aspect of punishment. As Wood points out though, on these terms alone, Hegel's theory seems weak; it fails to offer an account of why punishment should be exacted. As such, Wood suggests recourse to consequentialist considerations in order to complete the picture. I believe, however, that on further examination, the inadequacy will be shown to rest largely with the limitation of the interpretation, rather than with the theory as originally propounded.

The inadequacy of such readings of Hegel is understandable as, on first reading, there do seem to be genuine and substantial puzzles in his account of how punishment is where “coercion is annulled by coercion”, where this former is the crime in question.² First, it is not clear what Hegel means when talking about punishment as the “annulment” of crime. As Cooper has pointed out, many of Hegel's detractors (most prominently Stanley Benn and Richard Peters) have been quick to denounce him on this point, given that it is not obvious how a wrong, as manifest in a physical act (damage of property or personal integrity, for example) can, literally, be undone.³

Cooper himself offers a rebuttal to such misunderstanding. He summarises his argument succinctly: “If it is important that men have legal rights, it is important that there be punishment – for without the latter, there could not, logically, be the former.”⁴ He goes on:

The crime was, in intention, a demonstration that the victim has no rights. But the victim did have these rights, and so there never was such a thing as the demonstration that he did not have them. So, to speak of annulling the crime is to speak of whatever it is that establishes that the victim did have those rights which were implicitly denied by the criminal. What establishes this, of course, is punishment.⁵

It thus follows logically that, for rights to have meaning, they must be enforced. This still leaves us with a problem, though. Right and crime seem to possess a bizarre negative existential status, where the crime exists only as the negation of the right, but the right can only be seen to exist by virtue of the negation of the crime. Thus, if an act is committed in violation of a particular rights claim, and that claim is not upheld, we seem forced to conclude that the right was not a right in the first place, and thus, that no wrongdoing has occurred. If we conceive of a situation where the majority of rights claims were to go unenforced, then it would seem that right would break down altogether, yet simultaneously, this would be ethically unproblematic, as those rights that seem to have been lost were never truly rights in the first place. Furthermore, Hegel is explicit in his claim that the will in itself is that which “has no external existence and which for that reason cannot be injured” (§98). This would seem to resemble a contradiction, unless Hegel can find something beyond the explanation he gives in terms of mere abstract right to ground his account of punishment.

At §100, Hegel writes: “For his action is the action of a rational being and this implies that it is something universal”. This is important. For Hegel the criminal is, by definition, rational and his action thus serves as “negatively infinite judgement” upon the universal will (§95). Common rationality is necessary in order that the criminal count as a criminal. His rationality entails that that the right he is violating is one that he claims for himself; it is a right that is constituent of his own personhood, and that of every other rational agent in his community. In this sense, as his punishment follows from his crime, thus it is his right, as rational. As such, Hegel leaves no conceptual space for a rational agent who does not lay claim to the right that they are violating, and who might thus challenge the legitimacy of their punishment by refuting the notion that they have set up a law under which they themselves should be subsumed. Such an agent would be irrational or psychopathic and, presumably, be treated from a practical, rather than an ethical standpoint.⁶

Some common rationality is also necessary for objective will as manifest in the regime of rights to exist in the first place; if there were no common rationality between members of a community, right would be purely subjective, and thus Anerkanntsein, or social recognition, of a given violation of a rights claim could not be spoken of as problematic, there being no objective standard by which to to attribute any non-particular legitimacy to that claim in the first place.⁷

At §93, Hegel also wishes to ground his explanation of right as actualised through punishment in civil society. Where wrong is taken to be an act of coercion against right, Hegel says the “Idea of freedom” is to be protected from coercion by the “uncivilized will”, and this can be done because “an ethical institution has already been established in family or government”. This is important, for otherwise Hegel falls victim to a criticism made of him by Stephen Paul Brown, which has parallels to the argument of Benn and Peters. Whilst Brown concedes that Hegel is right to hold that if crimes go unattended, the victim's right is held worthless, he claims that Hegel fails to establish why injuring the will of the criminal should serve to reverse this situation. Brown accuses Hegel of jumping to the conclusion that punishment is appropriate action, in lieu of doing nothing, “down to the historical contingency that punishment has been the orthodox response to crime”.⁸ What Brown precisely fails to understand is that it is just because punishment has historically played this role that it must serve the vital function in the mechanism by which public institutions reaffirm right in the face of crime. Brown's argument only holds water in a historical vacuum.

Any existential puzzle concerning crime and right is thus shown to be based on too casual a reading of the text. A distinction must be drawn between right in itself and right “when it is posited [gesetzt] in its objective existence, i.e. when thinking makes it determinate for consciousness and makes it known as what is right and valid” (§211). This allows us to begin addressing the question Hegel poses at §99: “what that positive existence is which crime possesses and which must be annulled; it is this existence which is the real evil to be removed, and the essential point is the question of where it lies”. If punishment is to go beyond mere revenge, and address this “real evil” it will do so via the medium of civil legal institutions:

[..] the injured universal now comes on the scene, and this has its proper actuality in the court of law. It takes over the pursuit and the penalizing of crime, and this pursuit consequently ceases to be the subjective and contingent retribution of revenge and is transformed into the genuine reconciliation of right with itself, i.e. into punishment. (§220)

Such observation gives further weight to the critique Dudley Knowles provides. He accuses Hegel's theory of falling short of its stated aim, because it offers a justification (the criminal's depriving himself of the right to complain) for punishment that we would never wish to serve as motivating reason for the state. Knowles argues that this mistake could be solved by adoption of something akin to a hypothetical contract argument for the exaction of punishment, whereby individuals submit implicitly that, should they commit a crime, they will accept their punishment, as a “guarantee of good faith in the principles of rights from those others who avow them”.⁹ He believes Hegel fails to adopt such an argument due to a confusion that leads him to believe that because “the criminal may not in fact recognize the principles of right or the legitimacy of his punishment for violations, that he cannot be supposed to have actually contracted to accept punishment”.¹⁰ As Knowles points out, this is a misreading on Hegel's part of what a hypothetical contract model would entail theoretically. Beyond this, though, from the above, it would seem that Hegel's theory of punishment, as integral to rights, demands reliance on a notion of consensus of rational agents, and thus something along the lines of a hypothetical contract argument would be very much aligned with the essence Hegel's theory as it already stands.

As Knowles also points out, it is the role of civil institutions to make transparent and explicit the demands that rights make upon the members of the community. Such knowledge is gained only through civil society, and not through understanding of abstract right alone. This notion then helps us understand how rights and their administration through punishment can be understood as dynamic, in line with Hegel's broader historical approach to his political philosophy. As Knowles illustrates, where the law exists but is not enforced, the right is indeterminate, and thus ineffective. Going beyond this, as in Knowles' case of the de facto decriminalisation of homosexuality in Scotland, where the indeterminacy is by design, this merely represents a shift in the dynamic of the regime of rights, tracking changes over time in the rights claims community members wish to make as discrete individuals.¹¹ This ties directly the demand that we understand Hegel's philosophy of right within the context of his philosophy of history, and in accordance with empirical observation, rather than as applied to some static or possible world. Where the law comes to be at odds with the right, because the right has shifted, the law will first become meaningless, and second, eventually be removed from the statute books. Thus at §212 Hegel explains:

In being posited [as law], right acquires determinate existence. Into such existence there may enter the contingency of self-will and other particular circumstances; hence there may be a discrepancy between the content of the law and what is right in itself.

Thus, we understand the role that punishment, or lack thereof, plays in the establishment of right in society. It is crucial to note at this stage that very many intermediate steps in Hegel's argument have been left untreated. It is beyond the scope of this essay to explain how it is that a community of rational agents come together to create the institutions of civil society. This is the concern of much of the rest of the Philosophy of Right, and Hegel's account of morality and ethical life.

So, in summary, we unpick the difficulty in understanding what Hegel means when he talks of punishment as “coercion annulled by coercion”, by analysing the logical dependence of rights upon their enforcement. Furthermore, his account of punishment is shown to be integral to his account of rights; the one cannot be regarded as complete with out the other. If Hegel's account is to make sense, it is important that we understand the distinction between objective and subjective will, and how crime can be regarded as damaging to each in turn. This is only possible if we come to realise that his account of punishment serves as a link in the chain of argument between his theory of abstract right and that of civil society. The latter feeds back to give us an understanding of how the former is to be maintained (and indeed, what it is that is being maintained) in the face of the challenge posed by wrongdoing in the form of crime. The crucial point is that we are only to be furnished with understanding of Hegel's theory of punishment if we treat it not in isolation, but take it as part of a large system of inter-connected philosophies – of right, of society, and of history. There are puzzles along the way, but they are just that – puzzles – and if studied at length, their solutions come into focus.

Endnotes

1. Wood, 221.
2. Hegel, §93. All references are to the 2008 edition of the Knox translation of the Philosophy of Right
3. Cooper, 160.
4. Ibid., 163.
5. Ibid., 164.
6. NB: It is important to note that this is denial after the fact. There may be a situation where an agent has unknowingly violated universal right, but upon being shown that this is indeed what they have done, concedes that they were in the wrong. Such cases fall under Hegel's notion of 'non-malicious wrong', dealt with at §85.
7. Cf. Lawrenz, 158.
8. Brown, 495.
9. Knowles (2002), 151.
10. Ibid., 153.
11. Ibid., 146.

Bibliography

• Hegel, G.W.F, Outlines of the Philosophy of Right (T.M. Knox translation, revised by Stephen Houlgate) (Oxford: Oxford University Press, 2008)
  
  
  
• Beiser, Frederick, Hegel (London: Routledge, 2005)
  
  
• Benn, S.I., “An Approach to the Problems of Punishment” in Philosophy 33, 127 (1958), 325-341
  
  
• Brown, Stephen Paul, “Punishment and the Restoration of Rights” in Punishment & Society 3 (2001), 485-500
  
  
• Cooper, David E., “Hegel's theory of punishment” in Z.A. Pelczynski (ed.), Hegel's Political Philosophy: problems and perspectives (Cambridge: Cambridge University Press, 1971), 151-167
  
  
• Cottingham, John, “Varieties of Retribution” in The Philosophical Quarterly 29, 116 (1979)
  
  
• Knowles, Dudley, “Hegel on the Justification of Punishment” in Robert R. Williams (ed.), Beyond Liberalism and Communitarianism (New York: State University of New York Press, 2001), 125-145
  
  
• Knowles, Dudley, Hegel and the Philosophy of Right (London: Routledge, 2002)
  
  
• Lawrenz, Jürgen, “Hegel, Recognition And Rights: ‘Anerkennung’ As A Gridline Of The Philosophy Of Rights” in Cosmos & History: The Journal of Natural and Social Philosophy 3, 2-3 (2007), 153-169
  
  
• Singer, Peter, Hegel (Oxford: Oxford University Press, 1983)
  
  
• Stillman, Peter G., “Hegel's Idea of Punishment" in Journal of the History of Philosophy 14, 2 (1976), 169-182
  
  
• Taylor, Charles, Hegel (Cambridge: Cambridge University Press, 1975)
  
  
• Westphal, Kenneth, “The basic context and structure of Hegel's Philosophy of Right” in Frederick Beiser (ed.), The Cambridge Companion to Hegel (Cambridge: Cambridge University Press, 1993), 234-269
  
  
• Wood, Allen, “Hegel's ethics” in Frederick Beiser (ed.), The Cambridge Companion to Hegel (Cambridge: Cambridge University Press, 1993), 211-233