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,* 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, note 46). 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.

* [Handwritten:] i.e., would have universal existence, for singular being is here universal — for all