The Online Library of Liberty

A project of Liberty Fund, Inc.

• Associate Editors
• Editorial
• Bibliographic Essay: Forrest Mcdonald, a Founding Father's Library
• Bibliographic Essay: Murray N. Rothbard, Modern Historians Confront the American Revolution
• I: Paradigms of Freedom
• Conflicting Paradigms
• Paradigms As Procrustes' Bed
• Interest and Ambition
• Thesis and Antithesis
• Freedom and Authority
• Sin and Society
• Autonomy and Authority
• Virtue and Status
• Utility and Progress
• Diversity and Equality
• II: Nonspontaneous Order
• State Vs Society
• The Therapeutic State
• Order and Elites
• Order and Virtue
• Self-perfection
• Socialism and Freedom
• Market Socialism
• Centralism Vs Decentralism
• Voluntary Servitude
• Authority and Obedience
• Social Control
• Power and Ideology
• Hegemony
• III: Spontaneous Order
• Freedom and Knowledge
• The Case For Government
• The Case Against Government
• Community Vs. State
• State and Morality
• Freedom and Creativity
• Order Without State
• IV: Individual and Social Good
• The Right to Privacy
• Autonomy and Psychiatry
• Personal Choice
• Individuals, Groups, and States
• Social Dynamics
• Social Engineering
• Individuals and Groups
• Personal Vs. Social Goods
• Individual Rationality
• Self-interest and Social Good
• Self-interest Vs. Slavery
• Art and Autonomy
• Radical Individualism
• V: Ethics, Rights, and Freedom
• Objective Values
• Natural Law
• Preambles to Freedom
• Social Sciences and Values
• Reason and Change
• Reason and Choice
• Economics and Values
• Legal Naturalism
• Justice As Restitution
• Justice As Punishment
• Rights and Contract
• Virtue In the Market
• Justice Under Capitalism
• Profits and Choice
• Social Framework and Prosperity
• Ecology and Rights
• Business' Social Ethics
• VI: Equality
• Problems With Inequality
• Equality, Power, and Values
• Unequal Income
• Equal Opportunity
• Equal Liberty
• Equality of Condition
• The Egalitarian State
• Sexual Equality
• VII: Power
• Empire, Equality, and Envy
• Imperial Presidency
• Empire and Inflation
• Watergate As a Symptom of Empire
• The Pragmatic Presidency
• “absolute Power” and Corruption
• VIII: Planning Vs. Choice
• Origins of Planning
• Bureaucratic Growth
• Prediction and Control
• Government Planning
• Government Experts
• Useless Usury Laws
• Wartime Regulation
• Government Inflation
• Neomercantilism
• Compulsory Schooling
• Planning In Nonprofit Agencies
• Private Capital and Education
• Choice and Spontaneous Order

Justice as Punishment

Stillman, Peter

• Vassar College

“Hegel's Idea of Punishment.” Journal of the History of Philosophy (USA), 14 (1976): 169–182.

In his Philosophy of Right (1821) Hegel expounds his retributive theory of punishment. Crime, in this view, attempts both to coerce a “person” (i.e., in Hegelian terminology, the abstraction of man, denoting his free will and “abstract rights”), and to negate his rights. He finds crime contradictory inasmuch as it involves one “person's” free will negating the free will and rights of another abstract “person.” Essentially, this attempts to negate the existence of personhood. One person's free will thus denies the existence of the quality enabling him to commit his crime.

Since the injury inflicted by crime amounts to a negation (the denial of rights), only one way remains to annul the injury: to negate the negation and annul the crime. Crime (using Hegelian terminology) is conceptually a “nullity.” Morally, it is contradictory; we must thus also render it a nullity in the objective world. To nullify the crime, we must punish the criminal. If we did not punish the criminal, we would validate the implicit denial of rights that the crime signifies. This does not amount to “an eye for an eye.” The point is that the coercion of punishment should “equal” the coercion of crime.

Hegel's retributive view of punishment intends to respect the criminal's dignity. The criminal has a Hegelian right to receive punishment. Hegel reasoned that each person has a duty to exercise his rights; otherwise he is not free. Our duty to punish the criminal mirrors his own right to receive punishment. Without punishment, the criminal loses his position as a person with rights. Furthermore, the criminal implicitly consents to his punishment. The criminal's action has denied that persons have rights. Punishment visits that denial on the criminal himself.

Because a person both has a “right” to punishment and has “consented” to it, retribution alone fully respects the criminal as a Hegelian person. The alternative penal theories of deterrence and reform fall far short of that ideal. Deterrence mistreats criminals like animals who are motivated to behave solely by threats. Reform measures mistreat criminals as merely potential persons who must be transformed into persons. Furthermore, retribution alone concerns itself with justice and desert. Because it alone fits the punishment to the crime. Deterrence and reform regard only future effects or deterring unsavory behavior. Thus these two alternatives to retribution may not impose penalties commensurate to the crime. Seeking to improve the criminal or to instill fear of committing future crimes, deterrence and reform may countenance excessively harsh and cruel sanctions. Recoiling against the barbarous penalties of his age, Hegel intended retribution to soften punishments.

Hegel did not see suffering as the aim of punishment; he intended to deprive the criminal of the rights which the criminal forfeited in violating others' rights. In contrast, deterrence and reform theories of penology inflict punishment with no connection to what the criminal actually did. This punishment treats the criminal as a thing devoid of rights and autonomy. Without retribution we treat the criminal in terms of an external goal unrelated to him (deterrence and reform), rather than in terms of his free will and choice.