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100

|98| 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.

Beccaria1 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. |99| 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.

  1. Cesare Beccaria, Dei delitti e delle pene, Livorno 1764 ↩︎

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3 responses to “100”

  1. Hegel (Notes) Avatar
    Hegel (Notes)

    [zu] § 100. Here too the subjective will is present; and this is to be taken into account.
    Punishment, domain of freedom – With his own will
    Not only the concept of the matter, but posited by himself;
    – his subjective will.
    His deed is
    α) violation of the will
    β) he is a rational universal – has established the law.

    [zu § 100 Anm.] Beccaria: I have deposited a part of my natural freedom – for the preservation of my freedom and the freedom of all – over which the others, the state, are to dispose, but not life –
    subjective freedom – without regard to content – today a principle as such – theology too – not truth – whether
    His consent is indeed present – namely in his deed.
    Consent – as this subject –
    To express consent as conviction – morally still different from deed as that of a thinking being – consented to as regards the matter – posited –
    honor, that is, as the will that he had, still has – treated according to its actuality – regard for improvement is a change of the will –
    [below this, in pencil:] This deed – crime α) is null in itself, β) crime has posited as null

  2. Eduard Gans (Additions) Avatar
    Eduard Gans (Additions)

    What Beccaria demands, namely that the human being must give his consent to punishment, is quite correct, but the criminal already gives it through his deed. It is equally the nature of the crime as [it is] the criminal’s own will that the violation proceeding from him be annulled. Nevertheless, this effort of Beccaria’s to have the death penalty abolished has produced beneficial effects. Even though neither Joseph II nor the French have ever been able to carry through its complete abolition, [people] have nevertheless begun to discern what crimes deserve death and what do not. The death penalty has thereby become rarer, as this highest extremity of punishment also deserves.

  3. Hegel (Simple) Avatar
    Hegel (Simple)

    § 100: Punishment is the wrongdoer’s right

    Punishment is just. We have seen that. But it is even more. It is the wrongdoer’s own right.

    How can that be?

    The wrongdoer is a rational human being. What he does has a universal side. A thief says through his deed: “You may take what is not yours.” So he sets up a law. And he himself has recognized this law. So we may apply it to him.

    There is honor in this:

    Whoever grounds punishment in this way honors the wrongdoer. He takes him seriously as a human being who knows what he is doing. It is different if you see him only as a dangerous animal that you must make harmless. Or only as someone you want to deter or reform.

    And the death penalty?

    Beccaria, an Italian legal scholar, denied the state the right to capital punishment. His reason: In the social contract, no one agreed to let others kill him. But the state is not a contract at all; we know that already. Nor does it exist only to protect the life and property of individuals. It is the higher thing. It can even demand that individuals sacrifice their lives.

    And as for consent: The wrongdoer has already given it. Through his deed.

    Still, Beccaria’s efforts had a good effect. People began to ask which crimes deserve death and which do not. Since then, the death penalty has become rarer, as befits this harshest of punishments.

    Summary: Through his deed, the wrongdoer sets up a law that strikes himself. That is why punishment is his own right. In this way, it honors him as a rational human being.

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