The violation that befalls the criminal is not only just in itself — as just, it is at the same time his will existing in itself, an existence of his freedom, his right — but it is also a right done to the criminal himself, that is, it is posited in his existent will, in his action. For in his action, as that of a rational being, lies the fact that it is something universal, that through it a law is established which he has recognized for himself in it, under which he may therefore be subsumed as under his right.

Beccaria* denied the state the right to capital punishment, as is well known, on the ground that it could not be presumed that the consent of individuals to be killed was contained in the social contract — rather, the opposite must be assumed. But the state is not a contract at all (see § 75), nor is the protection and security of the life and property of individuals as such so unconditionally its substantial essence; rather, it is the higher thing, which itself also lays claim to this life and property and demands their sacrifice. — Furthermore, it is not only the concept of crime, its rationality in and for itself, with or without the consent of individuals, that the state has to make valid, but also the formal rationality, the willing of the individual, lies in the action of the criminal. In the fact that punishment is regarded therein as containing his own right, the criminal is honored as a rational being. — This honor is not accorded to him if the concept and measure of his punishment are not taken from his deed itself; just as little, too, if he is regarded merely as a harmful animal that is to be rendered harmless, or is treated for purposes of deterrence and reform. — Further, with regard to the mode of existence of justice, the form which it has in the state, namely as punishment, is in any case not the only form, and the state is not the conditioning presupposition of justice as such.

* Cesare Beccaria, Dei delitti e della pene, Livorno 1764