In brief: As a complete theory of punishment, hardly. As an objection to every other theory of punishment, undiminished. Hegel’s argument is not „retribution is just“, but: whoever grounds punishment in its usefulness has not answered the question of its justice but skipped it – and treats the offender as a means.
What Hegel denies
He does not take apart the penal theories of his day – deterrence, prevention, reform – one by one, but attacks their common presupposition: that punishment is an evil which has to be justified by some benefit.
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.
Groundlines, § 99 note
This does not dispose of the purposes of deterrence and reform. Hegel expressly grants them their place – „chiefly only with respect to the modality of punishment“ – but they presuppose something they cannot themselves supply: „that punishing, in and for itself, is just“. Whoever replaces the question of the justification of punishing with its purpose has not answered it.
The positive thought: punishment as the criminal’s own right
The most famous and most quoted sentence of the book stands in § 100 note:
In the fact that punishment is regarded therein as containing his own right, the criminal is honored as a rational being. – This honor is not accorded to him if the concept and measure of his punishment are not taken from his deed itself; just as little, too, if he is regarded merely as a harmful animal that is to be rendered harmless, or is treated for purposes of deterrence and reform.
Groundlines, § 100 note
This sounds cynical and is not. The thought: whoever acts sets up something universal in his action – a law he has recognised for himself. To treat him according to it means taking him at his word. To improve him instead, or to use him as a warning to others, means not taking him at his word. It is the same thought that German constitutional law later derives from human dignity: that the offender must not be the mere object of the state’s purposes.
Retribution – but not the lex talionis
Hegel calls punishment „retribution“, but expressly rejects specific equality:
This identity, resting on the concept, is however not the equality in the specific character, but in the in itself existing character of the violation – according to its value.
Groundlines, § 101
„Theft for theft, robbery for robbery, eye for eye, tooth for tooth“ he takes to be easily refuted – if only because a one-eyed offender is poorly made to pay with an eye. What is to be equal is the value of the violation, and determining it falls, according to § 101 and § 214, into the sphere of the finite in any case: it remains a demand which „proceeds into infinity and admits only an approximation, one that is perennial“.
The surprising consequence: leniency
One expects severity from an absolute theory of punishment. In § 218 the opposite comes out. The more secure a society is of itself, the smaller the external importance of the single deed becomes – and the more leniently it may punish:
The point of view of danger to civil society, while it seems to aggravate crimes, is rather what has chiefly diminished their punishment. A penal code therefore belongs, chiefly, to its own time, and to the condition of civil society within that time.
Groundlines, § 218 note
That is a historically relativised range of punishment on an absolute ground of punishment – and thus almost exactly the construction with which present-day criminal law works.
What no longer carries
Three objections remain standing. First: the step from „the crime is in itself null“ to „therefore the state must inflict“ is asserted more briefly than it is grounded. Second: Hegel grounds that punishment may be imposed, not how much – and in § 214 he hands the genuinely painful question over to the discretion of the court. Third: in § 100 note he holds capital punishment admissible against Beccaria, and the argument with which he defends it – that the state is „the higher thing, which itself also lays claim to this life and property and demands their sacrifice“ – is the very one against which one would otherwise wish to defend him.
What has survived is the objection. Every theory of punishment that makes the offender the means to an end has since had to explain why that is not a wrong. Hegel reversed that burden of proof.
Sources. Groundlines § 90–§ 103 (coercion and crime), in particular § 97, § 99 note (critique of the relative theories; the polemic is aimed at Ernst Ferdinand Klein, Grundsätze des peinlichen Rechts), § 100 note (the criminal’s honour; against Beccaria, Dei delitti e delle pene, 1764), § 101 and note (value instead of specific equality), § 218 and note (leniency). – Further § 132 on the right of the subjective will, from which present-day doctrines of mistake and culpability draw their motive. – In the glossary: Wrong and Punishment. – Literature. Kurt Seelmann, „Hegels Straftheorie in seinen ‚Grundlinien der Philosophie des Rechts‘“, Juristische Schulung 1979; Michael Pawlik, Person, Subjekt, Bürger. Zur Legitimation von Strafe, Berlin 2004; Ludwig Siep (ed.), Klassiker Auslegen, Berlin 1997.