By: Eduard Gans (Additions)

Eduard Gans (Additions) — Wed, 29 May 1833 13:24:45 +0000

Retribution is the inner connection and the identity of two determinations that appear as different and also have a different external existence in relation to one another. When the criminal is repaid, this has the appearance of an alien determination that does not belong to him; but punishment is, as we have seen, only the manifestation of the crime, that is, the other half which the one necessarily presupposes. What retribution has against it at first is that it appears as something immoral, as revenge, and that it can thus pass for something personal. But it is not the personal element but the concept itself that carries out retribution. “Vengeance is mine,” says God in the Bible, and if one wanted to associate with the word retribution the notion of some particular caprice of the subjective will, it must be said that it means only the reversal of the very shape of the crime turned against itself. The Eumenides sleep, but the crime awakens them, and so it is the deed itself that asserts itself. Now if in retribution one cannot proceed by specific equality, this is nevertheless different in the case of murder, for which the death penalty necessarily applies. For since life is the whole compass of existence, the punishment cannot consist in some value—since none exists for it—but again only in the deprivation of life.

By: Hegel (Notes)

Hegel (Notes) — Mon, 16 Dec 1822 08:06:32 +0000

[zu] § 101. Common sense[:] as he has done, so shall it be done to him.
The jurists could no longer get by with common sense; – it would indeed be right, if only it could be demonstrated, comprehended –
As he has done, so shall it be done to him, – inner connection – in universality, reason – that [is what is contained] in the preceding §
Retribution expresses this. Page in the preceding §.
α) As he has done, so shall it be done to him – being posited – it is his will, his law. What he has done becomes a power hostile to him, – he has aroused it – the Eumenides sleep – only then step forth – summoned. It is his own deed that asserts itself against him — the universal, to which he is now the particular – previously he subsumed another under it – now he is subsumed under it. This is not how he meant it – but done as reason, as will – he did not reckon his particularity as particularity – a reversal against him.
This argumentum ad hominem – from his own principles, arguments –
Only apparent – subjective particular side – therefore not in itself –
β) Ad hominem – but is it so in itself?
Namely
α) crime is a positive will, a violation of freedom – this one lets pass in his own sense – but in itself it is precisely the opposite – he is punished from the same principle – the only difference being that it is turned against him – negatively; – a negative comes upon his will –
formally, that his deed [becomes a] universal rule, and that he is subsumed under it – this connection, this bond appears as something external. – In itself the content is positive – the deed – reversal in negative form – appearance.
But
β) in itself, already from the first the action is null – acid, alkali – the one is already in itself neutral, so too this.
Universality of determinacy in man – what he has done is to be kept determinate – this extent of nullity is to be manifested.
(Retribution as something personal [is] immoral – only the law should punish … )

[zu § 101 Anm.] Moral side – guilt – freedom, willing as the inner [aspect] of the action – its scope in this regard belongs there –
[in the margin:] α) is appearance on account of [?] opposition – αα) positive deed, will, ββ) negative afterward, through something else, coming upon him.

Comments on: 101

By: Eduard Gans (Additions)

By: Hegel (Notes)