{"id":903107,"date":"2026-09-17T15:37:21","date_gmt":"2026-09-17T13:37:21","guid":{"rendered":"https:\/\/grundlinien.de\/?page_id=903107"},"modified":"2026-09-17T15:37:22","modified_gmt":"2026-09-17T13:37:22","slug":"is-hegels-theory-of-punishment-still-of-use","status":"publish","type":"page","link":"https:\/\/grundlinien.de\/en\/is-hegels-theory-of-punishment-still-of-use\/","title":{"rendered":"Is Hegel\u2019s theory of punishment still of use?"},"content":{"rendered":"\n

In brief:<\/strong> As a complete theory of punishment, hardly. As an objection to every other theory of punishment, undiminished. Hegel\u2019s argument is not \u201eretribution is just\u201c, but: whoever grounds punishment in its usefulness has not answered the question of its justice but skipped it \u2013 and treats the offender as a means.<\/p>\n\n\n\n

What Hegel denies<\/h2>\n\n\n\n

He does not take apart the penal theories of his day \u2013 deterrence, prevention, reform \u2013 one by one, but attacks their common presupposition: that punishment is an evil<\/em> which has to be justified by some benefit.<\/p>\n\n\n\n

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But it is not merely a matter of an evil, nor of this or that good, but specifically a matter of wrong<\/em> and of justice<\/em>.<\/p>\nGroundlines, \u00a7 99<\/a> note<\/cite><\/blockquote>\n\n\n\n

This does not dispose of the purposes of deterrence and reform. Hegel expressly grants them their place \u2013 \u201echiefly only with respect to the modality<\/em> of punishment\u201c \u2013 but they presuppose something they cannot themselves supply: \u201ethat punishing, in and for itself, is just<\/em>\u201c. Whoever replaces the question of the justification of punishing with its purpose has not answered it.<\/p>\n\n\n\n

The positive thought: punishment as the criminal\u2019s own right<\/h2>\n\n\n\n

The most famous and most quoted sentence of the book stands in \u00a7 100<\/a> note:<\/p>\n\n\n\n

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In the fact that punishment is regarded therein as containing his own right<\/em>, the criminal is honored<\/em> as a rational being. \u2013 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.<\/p>\nGroundlines, \u00a7 100<\/a> note<\/cite><\/blockquote>\n\n\n\n

This sounds cynical and is not. The thought: whoever acts sets up something universal in his action \u2013 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<\/em> 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\u2019s purposes.<\/p>\n\n\n\n

Retribution \u2013 but not the lex talionis<\/em><\/h2>\n\n\n\n

Hegel calls punishment \u201eretribution\u201c, but expressly rejects specific equality:<\/p>\n\n\n\n

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This identity, resting on the concept, is however not the equality<\/em> in the specific character, but in the in itself<\/em> existing character of the violation \u2013 according to its value<\/em>.<\/p>\nGroundlines, \u00a7 101<\/a><\/cite><\/blockquote>\n\n\n\n

\u201eTheft for theft, robbery for robbery, eye for eye, tooth for tooth\u201c he takes to be easily refuted \u2013 if only because a one-eyed offender is poorly made to pay with an eye. What is to be equal is the value<\/em> of the violation, and determining it falls, according to \u00a7 101<\/a> and \u00a7 214<\/a>, into the sphere of the finite in any case: it remains a demand which \u201eproceeds into infinity and admits only an approximation<\/em>, one that is perennial\u201c.<\/p>\n\n\n\n

The surprising consequence: leniency<\/h2>\n\n\n\n

One expects severity from an absolute theory of punishment. In \u00a7 218<\/a> the opposite comes out. The more secure a society is of itself, the smaller the external importance of the single deed becomes \u2013 and the more leniently it may punish:<\/p>\n\n\n\n

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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.<\/p>\nGroundlines, \u00a7 218<\/a> note<\/cite><\/blockquote>\n\n\n\n

That is a historically relativised range of punishment on an absolute ground of punishment \u2013 and thus almost exactly the construction with which present-day criminal law works.<\/p>\n\n\n\n

What no longer carries<\/h2>\n\n\n\n

Three objections remain standing. First: the step from \u201ethe crime is in itself null\u201c to \u201etherefore the state must inflict\u201c is asserted more briefly than it is grounded. Second: Hegel grounds that<\/em> punishment may be imposed, not how much<\/em> \u2013 and in \u00a7 214<\/a> he hands the genuinely painful question over to the discretion of the court. Third: in \u00a7 100<\/a> note he holds capital punishment admissible against Beccaria, and the argument with which he defends it \u2013 that the state is \u201ethe higher thing, which itself also lays claim to this life and property and demands their sacrifice\u201c \u2013 is the very one against which one would otherwise wish to defend him.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Sources.<\/strong> Groundlines \u00a7 90<\/a>\u2013\u00a7 103<\/a> (coercion and crime), in particular \u00a7 97<\/a>, \u00a7 99<\/a> note (critique of the relative theories; the polemic is aimed at Ernst Ferdinand Klein, Grunds\u00e4tze des peinlichen Rechts<\/em>), \u00a7 100<\/a> note (the criminal\u2019s honour; against Beccaria, Dei delitti e delle pene<\/em>, 1764), \u00a7 101<\/a> and note (value instead of specific equality), \u00a7 218<\/a> and note (leniency). \u2013 Further \u00a7 132<\/a> on the right of the subjective will, from which present-day doctrines of mistake and culpability draw their motive. \u2013 In the glossary: Wrong and Punishment<\/a>. \u2013 Literature.<\/strong> Kurt Seelmann, \u201eHegels Straftheorie in seinen \u201aGrundlinien der Philosophie des Rechts\u2018\u201c, Juristische Schulung<\/em> 1979; Michael Pawlik, Person, Subjekt, B\u00fcrger. Zur Legitimation von Strafe<\/em>, Berlin 2004; Ludwig Siep (ed.), Klassiker Auslegen<\/em>, Berlin 1997.<\/p>\n\n\n\n