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96

Insofar as it is the existent will which alone can be violated, but this will, in its existence, has entered the sphere of a quantitative extent as well as qualitative determinations, and is accordingly variable, it likewise makes a difference for the objective side of crimes whether such existence and its determinacy is violated in its entire extent altogether — thus in the infinity equal to its concept (as in murder, slavery, compulsion in religion, and so on) — or only in respect of a part, and according to which qualitative determination.

|95| The Stoic view, that there is only one virtue and one vice, the Draconian legislation that punishes every crime with death, as well as the crudeness of formal honor, which places infinite personality in every violation, have this in common: that they remain at the abstract thinking of the free will and of personality, and do not take it in its concrete and determinate existence, which it must have as an Idea. — The distinction between robbery and theft relates to the qualitative aspect that in the former, my ego, too, as present consciousness — thus as this subjective infinity — is violated, and personal violence is perpetrated against me. — Some qualitative determinations, such as danger to public security, have their ground in more specifically determined relations, but are also often grasped only by the detour of consequences rather than from the concept of the matter itself — just as a more dangerous crime, in itself, in its immediate character, is a more severe violation with respect to extent or quality. — The subjective moral quality relates to the higher distinction of the extent to which an occurrence and deed is a deed at all, and concerns its subjective nature itself, of which more later.

DE ES

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3 responses to “96”

  1. Hegel (Notes) Avatar
    Hegel (Notes)

    [zu] § 96. The determinacy of crime –
    Determinacy itself is something universal – a middle [term] between the singular and the universal – particularity – value

    [zu § 96 Anm.] Culture will more precisely determine this distinction, [this] value, of crimes – positive legislation – much indeterminacy, doubt –
    Theft, [by] magnitude; but qualitatively: breaking-in, violence – theft from the fields, public trust and security violated more. –
    Change in the view of crimes (infanticide – theft – 5 sous stolen in France, theft, 40 shillings in England) – no longer so deserving of punishment, rather a different view of punishment
    To be sure, crimes too are no longer regarded as seriously – poaching – in England still the highest penalty for it –
    To be sure, the violation is not so severe when society is secure of itself; – the universal so firmly [established] that it is scarcely violated –
    Difference between fraud and crime proper –
    If such a crime goes unpunished, [if] such a thing is permitted to this [person], then society, the security of property within it, is ruined – this concerns an external [matter] – not the inner necessity of punishment –
    Dangerousness. – A crime is α) this single act, β) [has] universality within itself – as later, [this] has a great effect, on this side αα) in external reality: a small piece of wood is set alight, [and] the whole town burns down, ββ) in universality – by means of representation – robbery on the open highway, interruption of communication – forgery of bills of exchange – γγ) [on] the side of the real, [where] the idea is represented as valid in reality: if this goes unpunished, then everyone takes this to be permitted – those who look only to the connection of what is valid in itself, according to what is empirically valid –
    What is valid in the world is right, is right for us, what is valid for others; – equality – precisely a presupposition in the state; – morality stands firm in itself against this validity; or it does not make the individual case into a valid one, i.e. a universally existing one, but confines it to this individual.
    Hence theft among a moral people [is] not so dangerous – not seductive –
    Subjective imputation – [the] condition that robbery, crime, is valid; that is, that the crime is carried out without shame – seductive, and excusing, in that it is valid; – on the contrary, however, [when] carried out with the disposition, the character, [holding] that it is valid, then it must be expressly shown that it is not valid.
    Difference [as to] whether the criminal does it as something valid; what he does is [meant] to be valid; but [what is] valid is [so] as recognized, universally valid.
    Compulsion. See above § 93.

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

    How each and every crime is to be punished cannot be determined by thought alone; positive provisions are necessary for this. Through the advance of culture, however, views concerning crimes become milder, and nowadays one punishes far less harshly than was done a hundred years ago. It is not exactly the crimes or the punishments themselves that change, but their relation.

  3. Hegel (Simple) Avatar
    Hegel (Simple)

    § 96: Not every crime weighs the same

    You can only violate a will that exists in the world. And in the world there are differences. More and less. This and that. That is why crimes also differ in weight.

    Where does the difference lie?

    It depends on what the wrongdoer violates. The whole or only a part? Murder, slavery or compulsion in religion strike the whole person. A theft strikes only a part of his property.

    Three wrong paths:

    The Stoics said: There is only one virtue and one vice. Draco, a lawgiver in ancient Athens, punished every crime with death. And crude honor sees a deadly insult in every small slight. All three make the same mistake. They think of the free will only in the abstract. They do not see that it takes different shapes in the world.

    Robbery or theft?

    A thief takes in secret. A robber takes by force, before my eyes. He strikes not only my property. He strikes me myself, here and now. That is why robbery weighs more.

    What about the danger to everyone?

    Some say: A crime is serious because it threatens public security. That is often true. But this view thinks from the consequences. It is better to think from the matter itself: The more dangerous crime is itself the more serious violation.

    What the wrongdoer knew and wanted also plays a part. We will come to this later.

    Times change:

    How harshly we punish a crime does not follow from thinking alone. The laws decide that. In the past, people hanged petty thieves. Today the courts punish more mildly. The crimes have not become more harmless. But they do less to shake a society that feels secure.

    Summary: Crimes differ in weight, depending on what they violate and how much. Whoever treats all crimes alike thinks too abstractly. The laws set the exact measure of punishment.

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