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99

But the violation which befalls the will that exists in itself (and thus equally this will of the violator as much as of the violated and of all) has, in this will existing in itself as such, no positive existence, any more than in the mere product. For itself, this will existing in itself (right, law in itself) is rather that which does not exist externally, and is to that extent inviolable. Likewise, the violation is, for the particular will of the violated and of the rest, only something negative. The positive existence of the violation exists only as the particular will of the criminal. The violation of this, as of an existent will, is therefore the sublation of the crime, which would otherwise be valid,1 and is the restoration of right.

The theory of punishment is one of the subjects that has fared worst in the positive science of law in more recent times, because in this theory the understanding does not suffice, but it essentially depends on the concept. — If crime and its sublation, which is further determined as punishment, is regarded only as an evil in general, then one can indeed consider it irrational to will an evil merely because another evil is already present (Klein, Grundsätze des peinlichen Rechts, § 9 f.). |97| This superficial character of an evil is presupposed as the first thing in the various theories of punishment — the theory of prevention, deterrence, threat, reform, and so on — and what is supposed to result in opposition to it is determined just as superficially as a good. But it is not merely a matter of an evil, nor of this or that good, but specifically a matter of wrong and of justice. Through those superficial points of view, however, the objective consideration of justice, which is the first and substantial point of view in the case of crime, is set aside, and it follows of itself that the moral point of view, the subjective side of crime, mixed with trivial psychological representations of the stimuli and strength of sensuous impulses against reason, of psychological coercion and influence on representation (as if such were not equally degraded by freedom to something merely contingent), becomes the essential thing. The various considerations that belong to punishment as appearance and its relation to particular consciousness, and that concern its consequences for representation (to deter, to reform, and so on), are in their place — and indeed, chiefly only with respect to the modality of punishment — well worthy of essential consideration, but they presuppose the grounding that punishing, in and for itself, is just. In this discussion, the sole concern is that crime — and indeed not as the production of an evil, but as a violation of right as right — is to be sublated, and then, what the existence is that crime has and that is to be sublated; this is the true evil that is to be removed, and wherein it lies is the essential point; as long as the concepts on this matter are not determinately recognized, confusion must reign in the view of punishment.

  1. Hegel’s Handexemplar. i.e., would have universal existence, for singular being is here universal — for all ↩︎

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5 responses to “99”

  1. Hegel (Natural Right Essay 1802) Avatar
    Hegel (Natural Right Essay 1802)

    Hegel, On the Scientific Ways of Treating Natural Right (Critical Journal of Philosophy, vol. 2, part 2, 1802), p. 449:

    In this its determination, then, punishment is something in itself, truly infinite and something absolute, which thus has its own reverence and its own dread within itself; it comes from freedom, and remains, even as subduing, within freedom. If, on the other hand, punishment is represented as coercion, then it is posited merely as a determinacy and as something utterly finite, carrying no rationality within it, and falls entirely under the common concept of a determinate thing opposed to another, or of a commodity for which something else — namely the crime — is to be purchased; the state, as judicial power, holds a market in determinacies called crimes, which are for sale to it against other determinacies, and the code of laws is the price list.

  2. Hegel (Notes) Avatar
    Hegel (Notes)

    [zu] § 99
    αα) Right ought to be, [ought to] be restored – in itself – against the will of the criminal, and
    ββ) with his will – for the criminal is this contradiction within himself – In appearance –
    α) the violated [party], β) the [breaks off]
    The violation is an existence – an unlawful one – [where] does the violation of right exist as a positive [thing]?
    Right in itself has not been violated
    Wrong is to be annulled; where does it exist – where is it to be found? Its place is the particular will.
    The question, where?, may at first seem strange –
    The particular will of the criminal is the existence of the crime; that particular will is itself to be grasped only as existing, on its bodily side, [in] body and life, external freedom in respect of space – is valid – i.e. [is a] recognized existence (that is, not an external, but a determinate being posited by the will – it is only with such [a thing] that we are concerned: an asserted determinate being in which the will is affirmative – [the] side of the inner – of right).
    All determinations of punishment taken from other matters do not concern the will of the deed, as the will of it – [e.g.] an evil person [is] to be reformed – his general evil will – not his will in this deed, as [it is] this actual will –
    αα) [The] existent will of the criminal – something that the criminal wants to have and keep as his own; – thus if the punishment is a fixed sum of money, and he is willing to let this cost him [something] – and pays it – (the Roman who went about giving the citizens slaps in the face, having a slave follow him with a sack full of asses and letting him pay out the fine on the spot) – [this is] not punishment – punishment must be keenly felt – it [is] already a disgrace to be condemned; – this is as a rule presupposed. – Where expressions [of a contrary will] occur, – [the punishment is] sharpened or converted into another. – It has even happened, in cases of murder, that [the wish was] to lose one’s life – so [that] the death penalty is not felt [as punishment] – thus it has happened that it was converted into imprisonment –
    ββ) [see [the] concluding sentence of § 99 and the handwritten note thereto] would otherwise be valid, i.e. would have universal existence, for singular being is here universal for all –

    [zu § 99 Anm.] Compassion, reform, purpose of the state, particular purposes of society – pale before the question: what does justice require? – All that is good and fine, but different. – Justice perishes, like truth, when everything is treated only in a subjective manner; – arbitrariness, opinion –
    If such things are taken up into the administration of justice as essential, i.e. as fundamental determinations, then the courts pardon; – pardoning is something other than judging; – confusion, muddling.
    Excusing and justifying are two different things.
    It is a matter of justice, that is, of reason – that is, that freedom obtain its [due] existence – not that sensuous impulses etc. be honored, [that] compassion, feeling, be carried out.

  3. Eduard Gans (Additions) Avatar
    Eduard Gans (Additions)

    Feuerbach’s theory of punishment grounds punishment on threat, and holds that if someone, despite this, commits a crime, then the punishment must follow, because the criminal had already known of it beforehand. But how does it stand with the rightfulness of the threat? It presupposes the human being as not free, and seeks to compel by means of the representation of an evil. But right and justice must have their seat in freedom and in the will, and not in the unfreedom to which the threat is addressed. Grounding punishment in this way is as if one raised a stick against a dog, and the human being is treated not according to his honor and freedom, but like a dog. But the threat, which at bottom can so outrage a person that he proves his freedom against it, sets justice entirely aside. Psychological compulsion can relate only to the qualitative and quantitative difference of the crime, not to the nature of the crime itself, and the law-codes that have perhaps arisen from this doctrine have thus lacked their proper foundation.

  4. Cross-reference Avatar
    Cross-reference

    Cross-reference:
    From the reading group’s excursuses (in German), the following belong here:

    The Spirit of Christianity and Its Fate: Punishment and Fate

  5. Hegel (Simple) Avatar
    Hegel (Simple)

    § 99: Where crime lives

    No one can violate right itself. It is not a thing that you can break. It goes on holding, for the wrongdoer, for the victim and for everyone.

    Then where does crime really exist?

    In the will of the wrongdoer. He has willed what must not hold. His will claims: “Right does not hold for me.” That is the real evil. This is where the canceling must begin.

    So to cancel crime means this: to strike this will as it exists in the world. That is punishment. It restores right. Without it, the crime would hold good.

    The common theories:

    Many explain punishment differently. They want it to deter. They want it to prevent future deeds. They want it to reform the wrongdoer. All these theories see crime only as an evil. And they see punishment as a second evil that should bring about some good. Put this way, punishment sounds irrational. Why want an evil only because one is already there?

    But the question is not about evil and usefulness. It is about wrong and justice.

    The threat in particular misses the human being. Whoever threatens punishment treats him like a dog you raise a stick at. He relies on fear instead of freedom.

    Deterrence and reform have their place. They help to decide the kind of punishment. But first it must be clear that punishment is just.

    Summary: Crime lives in the will of the wrongdoer. Punishment strikes this will and so restores right. Its ground is justice, not usefulness.

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