grundlinien.de

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.

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

Comments

2 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) by means of universality in 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 [what is] 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.

Leave a Reply