Dyde, S. W. “Hegel's Conception of Crime and Punishment.” The Philosophical Review 7, no. 1 (1898): 62. https://doi.org/10.2307/2175548
IT must be premised that in Hegel's Philosophy of Right the will is from the first page to the last the one subject of interpretation. Hegel’s general aim is to present a conception, in which are reconciled the individual will and society, his conclusion in substance being that the individual and the state in separation one from the other are not real but phases in a process of thought. Each, like one half of the bisected human body described by Aristophanes, runs around in hopeless perplexity until it finds its mate. The first decisive step towards this consummation, after the will emerges from the indeterminateness in which anything is possible, is that in which it appears as possessed of rights. Rights, it must be noticed, and not laws or statutes, are the characteristic of this initial stage, since the state, as the administrator of justice, has not as yet appeared above the logical horizon. The individual stands to his rights, and at the sometime respects the rights of others, following pretty much Hobbes’s version of the golden rule, “Do not that to another, which Thorwald’s not have done to thyself." Yet even such an imperfect concord is impossible except upon the basis of a common obligation or general abstract right, which soon takes the more definite form of rights of property and contract. It is abstract right in these special embodiments, together constituting the first realization of the will, which the individual violates when he commits a crime. Crime is a collision of wills, therefore, of such nature as in the first instance to establish right more securely, and ultimately to give rise to a higher will.
Hegel's view of crime and punishment may be gathered from the following extracts. "Violence is a manifestation of will which cancels and supersedes the will visibly manifested" [i.e., in right] (92)."Since violence or force in its very conception destroys itself, its principle is that it must be cancelled by force. Hence it is not only right but necessary that a second exercise of force should annul and supersede the first” (93). "The criminal act is a negation, and punishment ‘is the negation of abnegation"( 97)."Injury exists only as the particular will of the criminal, and to injure this will in its concrete existence is to supersede the crime and to restore right"( 99)."The conception of punishment implies of necessity the judgment that crime, as the product of a negative will, carries with it its own negation or punishment” (101)."Punishment is only the manifestation of crime, the second half, which is necessarily presupposed in the first" (101)."Retribution is the turning back of crime against itself. The criminal's own deed judges itself” (101)." Punishment expresses the criminal's own inherent will, is a visible proof of his freedom, and is his right" (100). "A criminal is honored as rational in the infliction of punishment. The conception and measure of his punishment is deduced from his very act” (100)."Because a community is sure of itself, a crime is always merely a single act of hostility without any foothold” (218)."The right of the subject to know the act as good or evil, legal, or illegal, has the result of lessening or abolishing responsibility in the case of children, imbeciles, and lunatics” (132).
Crime, then, is the violation by the individual of abstract right, and punishment is the inevitable restoration of right. Since the criminal consciously and willfully violates right, he would be treated in a manner unworthy of his real dignity, if he did not receive punishment. Punishment is a just and even holy retribution; the Eumenides must be awakened because they sleep in the temple of Apollo. When the method of punishment, as distinguished from the nature of punishment, is to be decided on, it may be considered whether the punishment should be rather deterrent than reformatory, but these considerations refer to the subjective side of the act and not its essence. Punishment is essentially retributive, and accidentally in addition may be preventive, deterrent, or reformatory, as the special case requires. Further, as the criminal act is a single act of hostility towards a law, understood by the wrong-doer to be right and just, the fixed element in wrong is the conscious violation of right, and the variable elements the specific quality of the violation. Hence the punishment in all cases suits the crime. Of children, imbeciles, and lunatics, however, the acts cannot be crimes since their consciousness of right is either immature or perverted.
Additional light may be thrown upon Hegel's conception from his criticism of the several theories advocated in his day. Of these theories he mentions (a) Klein's, (b) Feuerbach's, (c) Beccaria's and (d) other theories,
(a) Klein's argument (96) is that crime and punishment are both evils, and that it is absurd to correct one evil by a second. Klein looks upon crime as in its essence an injury done to some particular person, and upon punishment as an injury done to the wrongdoer. But in Hegel's thought crime in its real nature does not lie between the injurer and the injured, but between the injurer and the law. The criminal's own sense of right has been violated by himself, and it can be restored only by punishment. As in Klein's view of crime no place is given to right, as the expression of the rational will, he can hardly be said even to have seen the problem, which Hegel was seeking to solve.
(b) Feuerbach claimed that punishment is a menace (99), and that he who disregards the menace must suffer the penalty. Hegel, too, thinks of punishment as the inevitable sequel of crime, although, on the other hand, he finds in punishment not a menace but the necessary completion of the criminal’s deed. Feuerbach would make of man a slave, while Hegel asserts that in punishment the criminal is treated as truly rational.
(c) In Beccaria's view (100), in so far as it is noticed by Hegel capital punishment is unjust, since in the original social contract no man can be supposed to consent to his own death. This statement contains both a view of capital punishment and a general view of crime. In reply to the general view of crime, Hegel held that the question of punishment cannot be referred to an original contract, since contract is not the real basis of society. And yet, from a higher standpoint than that of contract, it may be affirmed that the individual not only consents to his punishment but demands it. Punishment must follow unless we are to treat the individual as a chattel. In reply to Beccaria's opinion of capital punishment, Hegel says that from the standpoint of the state’s security, the life and property of the individual must be counted as subordinate objects, as may be seen in war. Nevertheless, the death penalty should be resorted to rarely, and Beccaria has had good influence in lessening its frequency. It will perhaps be admitted that Hegel's view of crime, resting upon the conception of society as an organic whole, is intrinsically more satisfactory than the theory of Beccaria. His view of capital punishment is an independent matter,
(d) All the promiscuous views of prevention, deterrence, and reformation (99) either merely supplement the essential doctrine that punishment is retribution, or they falsely assume that society exists in order to cherish individuals. If they presuppose retribution, they are legitimate since different methods of punishment may be adopted with different wrongdoers. But, taken by themselves, they accentuate mere personal characteristics of the criminal, and refuse to see the broad fact that the criminal has violated the law, not of the state simply, but of himself as well. With children, imbeciles, and lunatics the case is different, since the law which they in wrongdoing violates not the law of their conscience, and no injustice is done in treating them as falling short of full rationality. When the subjective views are put forward with the purpose, not of supplementing, but of supplanting Hegel's, we cannot hesitate to side with Hegel.
Such is Hegel's conception of crime as a violation of abstract right. When he, in the upward dialectical process, dies from abstract right and reaches the state, he pauses to view crime, not as a violation of right, but as a social phenomenon. But he has little to add and nothing essential even to modify. It is then that he makes an exception in the case of children, imbeciles, and lunatics; it is then that he casually notices danger to the state as an additional aggravation of crime; it is then that he mentions the kingly prerogative of pardon. Crime and punishment remain in the end for Hegel what he declares them to be when he is dealing with abstract right.
The tendency of some modern critics is to say that Hegel’s doctrine of punishment is harsh and mechanical. They are perhaps drawn to one of the subjective theories which Hegel so unceremoniously brushes aside, the theory that punishment is preventive, deterrent, or reformatory, or some combination of the three. The value of the individual, it is declared, has risen, and in Hegel’s view of the state the individual receives scant attention. But so vague a charge, Hegel has in effect replied, has itself to escape the condemnation rightly visited upon all undisciplined enthusiasm, the brew and stew of the heart. If the individual is not to be worshipped as a fetish, he must be visualized in some clear and consistent political conception. Hegel might have answered, further, that a theory of crime on which a wrong-doer is sought to be treated in accordance with his nature as a rational will, on which, further, every effort is made to induce him by confessing his crime to erect himself above himself, cannot without explanation be said to give scant attention to the individual. It is clear, therefore, that the critic of Hegel has to say what he means by the word 'individual.'
As only theories are permitted to come into court, the criticism of Hegel is limited to one of three courses. Basing itself on the general idea that volition is fundamental, it may argue that jurisdiction is not had over the individual by any institution to which he has not expressly yielded obedience; or it may regard conscious volition as a negligible quantity, and consider the individuals simply a meeting-point for innumerable vital and social forces; or, in the third place, it may seek to unify in some way these forces with the individual's volition. To the first of these conceptions Hegel's philosophy of the state, as the gradual realization of the divine will in the realm of human activity, is a substantive and unanswerable, or at least unanswered, criticism. But the second conception has found advocates amongst living sociologists. In his recently published work, The Principles of Sociology, Professor Giddings, counting as unimportant, not merely the difference between Hegel and Beccaria, but even the difference between Hegel and Hobbes, has grouped all these thinkers under the general title of 'subjective.' As distinguished from an objective explanation of social phenomena in terms of race, soil, climate, heredity and historical conditions, “through Grotius, Hobbes, Locke, Hume, Bentham, Berkeley, Kant, and Hegel, there was developed a subjective interpretation in terms of human nature, utility, ethical imperatives and ideals" (pp. 10, 303). Mr. Giddings himself seeks to unify these two interpretations (p. 19), but classes modern sociology, based on the labors of Darwin and Herbert Spencer, as on the whole objective. The objective interpretation" refuses to look upon humanity as outside of the cosmic process and as a law unto itself" (p. 8).
With regard to crime and punishment the objective interpretation of society is found in the tenets of the positive or experimental school of criminal sociology. The position of this school is a direct criticism of the classical school, to which Hegel, as well as Beccaria and Feuerbach, is said to belong. The classical school is believed to be interested in the nature of crime and punishment, while the positive school is interested in the character and treatment of the criminal. Descent, physical nature, and social surroundings are required for this objective interpretation of the criminal. Anthropology becomes the handmaid of criminology, and so also does the whole science of heredity, as well as the science of society. The will of the individual does not altogether cease to be a factor in the act, but it must, it is said, no longer usurp the place of circumstances and conditions. A wrong act cannot be understood as the violent contact of a will with abstract right or law, but only by reference to the whole environment. What interprets a wrong act comes not from law, but from inherited tendencies and physical conditions, from education and the social atmosphere. Hence works on crime are now studded with such phrases as 'criminal manifestations’ of individual and ‘social life,' 'social pathology,’ ‘criminal symptoms,' 'moral degeneration, ‘the natural history of the ‘criminal man,' 'criminal tendencies,’ ‘congenital criminals,’ ‘habitual criminality,’ crime as a ‘social phenomenon,' 'level of criminality,' and so on.
The difference between the classical and the positive school may be illustrated by their treatment of the recidivist, the criminal, that is, who has for the second or third time committed an offence and been sent back to a penal institution. The classical school, looking upon crime as a single isolated act of hostility, regards punishment as a second isolated act, proportionate to the first. It is of no significance in this transaction that the criminal has committed the same offence before, unless the repetition of the act has in some accidental way involved additional violence. "The tribunals of Europe," says M. Prinz, with the enthusiasm of theorists," with the absolute impersonality of modern justice allow their sentences to fall upon unhappy wretches as a tap allows water to fall drop by drop upon the ground." With the experimental school, on the other hand, the offence is subordinate, and the offender is the central fact. When an offence has been committed several times by the same criminal, its quality is altered, and the punishment must vary accordingly. Leniency is not a necessary feature of this scientific treatment of the criminal, any more than it is a characteristic of nature, one writer grimly proposing that in France alone one thousand victims should be the annual hecatomb for the salvation of the body politic.
Is the theory of the positive school an advance upon the view of Hegel? This question is complicated by the necessary connection existing between any specific theory and the whole system of thought to which it belongs, and this connection it is not possible to ignore. Yet if we leave out of view for the time being the fact that Hegel's treatment of crime is only a moment's halting place in the journey towards the completed idea, it must be admitted that to regard crime as the violation of right, though it be understood that the right is by the criminal recognized as right, is inadequate. As crime is never the pure intention l to contravene law, but a realization of some positive impulse or need, it cannot be in its essence a mere negation. It must therefore be valued by reference, not to law alone or the will to break the law, but by the criminal's whole habit of life and action. Further, as the agent is an organism, the act is considered not in its whole extent, but abstractly, if that factor is omitted from the reckoning. “The world's coarse thumb and finger” may not in punishment easily appreciate these imponderable elements, but they nonetheless "swell the man's amount." It is to the credit of the experimental criminologists that they have sought to include these immature instincts and unuttered fancies in their estimate of wrongdoing. They, to use Browning's phrase again, have attempted to discover what the wrongdoer was "worth to God."
On the other hand, if these sociological, psychological and anthropological factors of a criminal act are substituted for volition, a much more fatal oversight has been made ; and there is reason to believe that the positive school has not as a whole avoided the danger. The presence of these factors has gone far toward destroying the individual's responsibility and freedom. The exceedingly minute analysis of the individual has resulted in the almost entire disappearance of the individual. Whence arises a curious anomaly. If responsibility for crime is to be transferred to the state or to nature, why should the so-called wrong doer be punished at all? Why should innocent individuals be sacrificed for the sake of a guilty society or a guilty universe? Attention should plainly be turned towards the regeneration of the state, the succinate spit like Weltering, as Heyse has humorously described it, or even to the mending of the whole creation. If the classical theory, in separating the act from the agent, fastens too exclusively upon volition in its abstract form, the positive theory, on the other hand, overlooks volition. Both views would seem, therefore, to be one-sided.
While from the standpoint of recent speculation the charge of one-sidedness is made with some degree of truth against Hegel, it may need to be modified when we take into consideration the connection which crime in his theory has with his whole system of thought. In accordance with his scheme of development, we must look 'before and after’ if we are to discern the real nature of what is under our eyes. When we look before we find the feelings with which it is the office of psychology to deal; when we look 'after,' we find both the social organism, and, further on still, the absolute reality, neither of which can be realized apart from crime. It is by referring each subordinate reality, including the human will and the state, to a place in the self-realization of the Absolute, that Hegel is able to repel the charge that his social theory is subjective. For Hegel, as for Plato, the state hangs down from the divine.
Into a discussion of Hegel's dialectic, it is here not possible and perhaps not necessary to enter. But it is more than doubtful if an interpretation of his logical process will secure a satisfactory explanation of crime and punishment. When Hegel comes to the social order, he turns again, as has been remarked, to crime, but sees no need of modifying his conception. In spite of the process of development, abstract right is carried over unaltered into the state. Abstract right, which purported to be only a preliminary and abstract stage in the realization of the state, becomes a function of society, without receiving anything from its new surroundings. From the beginning to the end, the state's attitude towards crime is summed up in abstract right. It never occurred to Hegel that the criminal and society were jointly responsible for crime. He never thought that crime was an indication of an imperfect social order. On the contrary it seemed to him to be due to the state's strength and perfection that it might treat crime with greater leniency. When crime is viewed in this way by the state, it cannot hope to fare better at the hands of the Absolute Idea. In fact, the dialectical progress of the Idea has left the whole subject far behind. Like the long journey through the desert of a caravan, its halting places are marked by the remains of inadequate conceptions. If what we call crime does not exist in some modified form in the state or in the Absolute, then the elaborate process of dialectic is so far ineffectual.
As to Hegel, then, the only valid course to pursue is not to attach sociological and anthropological facts to his theory of right and wrong, and in that way to bring into existence a conglomerate of 'subjective' and ' objective,' but to reinterpret the state, so that crime may be seen to be one phase of its action and not merely an act of an individual. Such a plan runs the risk, it is true, of abolishing the individual's guilt, and thereby setting up defective theory of the state and of reality. Rather than s urchin obliteration of the individual, it would be better to fall back on Hegel. But the risk is satisfactorily avoided, when punishments seen to involve a two-fold rectification of the body politic, first, such treatment of the criminal as renders impossible or improbable repetition by him of his act, and, secondly, such treatment of the social order and human nature as will tend to make crime less and less attractive. This view deprives neither the will of the individual nor the social whole of its reality.
The philosophy, into which this view of crime and punishment most naturally fits, is already not only in the air, but to some extent at least on solid ground. This philosophy is not a return to the letter of Hegel, but certainly a return to the spirit of his great conception that in the Absolute Idea everything finds its interpretation. No philosopher who surrenders that conception can rank amongst the world's great thinkers. Yet as recent psychological and anthropological investigations have thrown new light upon the nature of reality, so also must their assistance be invoked in the construction of a more adequate theory of crime and punishment.