University of Southern California Dissertations and Theses

Annulling Crimes: A Hegelian Theory Of Retribution

(USC Thesis Other)

Annulling Crimes: A Hegelian Theory Of Retribution

PDF

Download a page range

Download transcript

Copy asset link

Request this asset

Transcript (if available)

Content INFORMATION TO USERS
This manuscript has been reproduced from the microfilm master. UMI
films the text directly from the original or copy submitted. Thus, some
thesis and dissertation copies are in typewriter face, while others may
be from any type of computer printer.
The quality of this reproduction is dependent upon the quality of the
copy submitted. Broken or indistinct print, colored or poor quality
illustrations and photographs, print bleedthrough, substandard margins,
and improper alignment can adversely affect reproduction.
In the unlikely event that the author did not send UMI a complete
manuscript and there are missing pages, these will be noted. Also, if
unauthorized copyright material had to be removed, a note will indicate
the deletion.
Oversize materials (e.g., maps, drawings, charts) are reproduced by
sectioning the original, beginning at the upper left-hand comer and
continuing from left to right in equal sections with small overlaps. Each
original is also photographed in one exposure and is included in
reduced form at the back of the book.
Photographs included in the original manuscript have been reproduced
xerographically in this copy. Higher quality 6" x 9" black and white
photographic prints are available for any photographs or illustrations
appearing in this copy for an additional charge. Contact UMI directly
to order.
A Bell & Howell Information Company
300 North Zeeb Road. Ann Arbor. M l 48106-1346 USA
313/761-4700 800/521-0600

ANNULLING CRIMES:
A HEGELIAN THEORY OF RETRIBUTION
by
Jami Lynn Anderson
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(Philosophy)
August 1995
Jami Lynn Anderson
UMI Number: 9617082
UMI Microform 9617082
Copyright 1996, by UMI Company. All rights reserved.
This microform edition is protected against unauthorized
copying under Title 17, United States Code.
UMI
300 North Zeeb Road
Ann Arbor, MI 48103
UNIVERSITY OF SOUTHERN CALIFORNIA
THE GRADUATE SCHOOL
UNIVERSITY PARK
LOS ANGELES, CALIFORNIA 90007
This dissertation, w ritten by
Jami Anderson
under the direction of h..er. Dissertation
Committee, and approved by all its members,
has been presented to and accepted by The
Graduate School, in partial fulfillm ent of re
quirements for the degree of
D O CTO R OF PH ILOSOPH Y
Dean of Graduate Studies
Da .........
DISSERTATION COMMITTEE
Chairperson
Jami Lynn Anderson Sharon Lloyd
ANNULLING CRIMES:
A HEGELIAN THEORY OF RETRIBUTION
Retributivists claim that those who deliberately and freely commit
crimes deserve punishment proportionate to their crime. But Marx
famously claimed that many criminals commit crimes because of social
circumstances like abject poverty and therefore their punishment is
unjust.
I begin by outlining the retributivistic theory dominant in
contemporary philosophical and legal literature, retributivism founded
on social contractarianism. Such a theory has two strategies available
to it to meet the Marxist's challenge: either claim that poverty denies
persons the opportunity to enjoy benefits of social rules that justifies
punishment or excuse the crimes by claiming that social conditions
rendered the crime an unfree act, one failing to warrant punishment. I
conclude that both strategies are unacceptable. The first rests on a
serious misunderstanding of social contractarianism and both fail to
take retributivism seriously enough. I then examine Hegel's theory of
punishment, and my own development of that theory, as a viable
alternative. I develop his justification for retributive punishment,
namely that punishment "annuls crime". Finally I address Hegel's claim
that in order for a crime to be annulled, members of that society must
regard the punitive practices of their society as "valid." The
"rabble", individuals alienated from their society, can only regard
their punishment as "contingent". Hegel does not make it clear how
social practices can have a meaning to some individuals, yet fail to
have that meaning for others. I argue that in order for the social
practice of punishment to function properly (i.e. annul crime), members
of that society must be properly socialized. This socialization process
must include primarily the ongoing experience of interdependent,
economic activities. A necessary feature of this socialization process
is an internalization of the normative systems of one's society, of
which punishment is an integral part. The rabble regard the norms of
their society as shams and therefore necessarily regard their punishment
as a sham.
This Hegelian theory of retributivism explains why we are uneasy
in punishing the rabble and argues compellingly that the punishment of
all crimes is a necessary means to reforming society's injustices.
TABLE OF CONTENTS
Chapter
1. RECIPROCITY-RETRIBUTIVISM .......................... 1
Retributivism Generally Speaking
Reciprocity-Retributivism
A More Virulent Criticism
Strategies Open to Reciprocity-Retributivists
Another Version of Retributivism
2. GENUINE FREEDOM AND COERCION ....................... 27
Genuine Freedom
And Coercion
3. ANNULLING WRONGS ................................... 71
Punishment vs. Revenge
Punishment as Annulment
Annulment-Retributivism is Still Retributivism
4. LEARNING THE MEANING OF PUNISHMENT ................. 108
Identities are Community Dependent
A Human Life is a Life of Interdependent Activities
An Interdependent System is a Normative System
5. THE RABBLE: HAVING NEITHER RIGHTS NOR DUTIES .......... 131
Unemployment and Alienation
Alienation and the "Rabble Mentality"
Punishing the Rabble
Rabble Disposition: Hegel's Analysis
The Other Rabble
Punishment as an Answer to Injustice
ii
CHAPTER 1
RECIPROCITY-RETRIBUTIVISM
Retributivism is regarded by many as an attractive theory of
punishment. Its primary assumption is that persons are responsible
agents and it demands that social practices, like punishment,
acknowledge that agency. But others have criticized retributivism as
being barbaric because it justifies acts of harm motivated by hate, and
have claimed further that it fails to provide an adequate justification
for the infliction of suffering. Retributivists have attempted to meet
these criticisms by recasting retributivism within individualistic,
social contractarian political theories and by arguing that fairness
demands retributivistic punishment. I will argue in this paper that
this attempt to shore up retributivism by allying it with social
contractarian political theories fails. Many crimes are committed by
persons alienated from or oppressed by unjust political institutions,
yet Reciprocity-retributivism claims that such criminals deserve
punishment because fairness requires that they be punished. Such a
claim seems, at least intuitively, perverse.
I will argue that attempts to strengthen retributivism by
appealing to social contractarian political theories ought to be
abandoned. Instead we ought to recast retributivism within a non-social
contractarian political theory. I will suggest that a far more
1
satisfactory theory of retributivism is one modeled after Hegel's theory
of retributivism. Hegel's theory of punishment retains the appealing
aspects of retributivism while providing a compelling analysis of
alienated criminals. Hegel focuses his analysis of alienation on those
who are poverty-stricken and the idle rich. This analysis is too narrow
to meet all of our contemporary philosophical concerns. We need to
develop a theory of punishment to meet the demands of diverse and
conflicting claims, in particular one that meet the demands of race and
gender issues. Although Hegel's theory of punishment as he developed it
cannot meet all of our philosophical concerns, it provides the
theoretical foundation that can be developed to meet our worries.
Before more fully presenting my reasons for preferring a Hegelian
theory of retributivism, we should first look at the theory of
retributivism broadly speaking, and see the motivation for attaching
retributivism to social contractarianism.
Retributivism Generally Speaking
Retributive theories of punishment have had a long and notorious
history. The Judaic law of the Old Testament "Eye for eye, tooth for
tooth, hand for hand, foot for foot" has been understood as a
retributive justification for punishment of crimes.^ Although
retributivism has continued to be part of moral and legal practice, it
has been criticized for many different reasons. Consequentialists,
^Exodus 21:24. Recently this interpretation of the Judaic law
has come under criticism.
2
Bentham being the most noteworthy, have claimed (and continue to claim)
that retributivistic punishment is merely vengeful barbarism dressed up
in fancy clothes. The true purpose of punishment, they say, is to bring
about some specified social good or utility, not to inflict suffering on
the criminal. Retributivists also face criticisms from those who claim
that criminals ought not be inflicted with injury, but instead should be
rehabilitated. Rather than view crimes as intentionally willed wrongs,
we ought to regard them as indications of illness and treat their
perpetrators with an eye to curing them.^ Because retributivists have
modified their doctrine to meet the diverse demands of its critics,
there is not simply one true version of retributivism.
Because there is no definitive version of retributivism, it is
helpful to begin with what Hart refers to as the "crude model" of
retributivism, which captures its essential features.^ This model of
retributivism makes three basic claims. The first claim is that the
2
Bentham writes, "[A]11 punishment is mischief; all punishment
in itself is evil. Upon the principle of utility, if it ought at all to
be admitted, it ought only to be admitted in as far as it promises to
exclude some greater evil." Jeremy Bentham, An Introduction to the
Principles of Moral and Legislation (London: Penguin, 1987), 97. Hobbes
holds a similar view. He writes, "[A]11 evill which is inflicted
without intention, or possibility of disposing the Delinquent, or (by
his example) other men, to obey the Laws, is not Punishment; but an act
of hostility; because without such an end, no hurt done is contained
under that name." Thomas Hobbes, Leviathan (London: Penguin, 1985),
355.
3
Karl Menninger is perhaps the best known advocate of this sort
of view. See his The Crime of Punishment (New York: Viking Press,
1968).
4
H. L. A. Hart, Punishment and Responsibility (Oxford: Clarendon
Press, 1963), 231-237.
3
justification for punishing the wrong-doer rests solely on the
blameworthiness of the offender and the wrongness of the offender's
will. Thus a person may be punished if, and only if, he has willfully
done something wrong. The second claim is that the appropriateness of
the form and degree of punishment comes directly out of the criminal
will: the criminal, in willing the crime, has willed her own punishment.
Thus the punishment must in some way match, or be the equivalent of, the
wrongness of the criminal act.^ We need look no further than to what
the criminal has done to determine what the appropriate punitive
response should be. The third claim is that punishing those who have
willfully done wrong is in itself just. The fact that the criminal has
willfully done wrong is in itself a justification for inflicting him
with harm.
Kant's theory of retributivism makes one further claim than does
the crude model, that is that a failure to punish a crime is to permit
an injustice to exist. Kant writes:
Even if a civil society were to dissolve itself by common agreement
of all its members (for example, if the people inhabitincr an island
decided to separate and disperse themselves around the world), the
last murderer remaining in prison must be executed, so that
everyone will duly receive what his actions are worth and so that
the bloodguilt thereof will not be fixed on the people because they
failed to insist on carrying out the punishment; for if they fail
5
One way to distinguish among various versions of retributivism
is how they attempt to explain the idea of matching the punishment to
the crime. Kant, for example, claims that the "principle of equality"
determines the just measure of punishment. That is, punishment ought to
equal the crime in its severity; the most severe crimes ought to be
dealt the most severe punishments, and the least severe crimes ought to
be dealt the least severe punishments. See Immanual Kant, The
Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge
University Press, 1991), Ak. 331-337.
4
to do so, they may be regarded as accomplices in this public
violation of legal justice. ®
Once it is shown that a person has willfully committed a crime,
punishment, Kant claims, is not only permissible but it is obligatory.
Any retributivistic theory of punishment holds the claims made by the
O
crude model, even if it is intended to address other concerns.
®Immanual Kant, Metaphysical Elements of Justice, trans. John
Ladd (Indianapolis: Bobbs-Merrill, 1965), Ak. 333, emphasis added.
7
Hart refers to Kant's version of retributivism as the "severe
model" (and, rather unkindly, as a "parody of modern retributivism"); he
is referring to the crude model when he refers to retributivism. I
think, instead, that this "severe model" is the canonical version of
retributivism that one finds in Judaic law and is later developed by
Kant and, more fully, by Hegel. It is this version, not Hart's crude
model, that I think of as "retributivism". See Hart's "Postscript:
Responsibility and Retributivism" in Punishment and Responsibility.
Q
Jean Hampton's Moral Education Theory of Punishment is, to my
mind, just such a version of retributivism; it is an attempt to
accommodate a new intuition (in this case, the intuition that something
good for the criminal (not for society generally, as utilitarians have
claimed) ought to come of an act of punishment) while holding firm to
the standardly retributivistic ideas that (1) the criminal acted
wrongfully voluntarily, (2) the punishment must match the crime and (3)
punishment is in itself just. While Hampton does demand that punishment
be intended not merely to inflict injury, but instead to educate or
morally improve the wrongdoer in some way, her theory of punishment is
nonetheless not consequentialist. She claims, for example, that the
form of punishment ought not be lessened if after the crime the
wrongdoer repents immediately or, on the other hand, increased if after
receiving his full sentence he refuses to repent. Her theory makes all
the claims made in the crude model of retributivism. The only
additional claim made, that justified punishment ought to be intended to
educate or reform the criminal, while important to her theory, is not a
foundational claim. It cannot trump any of the more basic
retributivistic claims. Thus while she does not regard her theory as
retributivistic, its basic claims show that it is a version of
retributivism. Jean Hampton, "The Moral Education Theory of
Punishment," Philosophy and Public Affairs 13, no. 3 (Summer 1984): 208-
238.
5
To understand fully the distinction between retributivism and
consequentialist theories of punishment, it is important to distinguish
between the general justifying aim of punishment and the distributive
policy of punishment. Retributivistic theories hold as their general
justifying aim the claim that punishment rights, or corrects, the wrongs
committed by criminals. It is for that reason alone permissible. Many
theories of punishment have as a distributive policy of punishment that
only those who have committed crimes ought to be punished; although this
is a claim made by retributivism, the fact that a theory makes this
claim does not in itself make that theory retributive. A theory could,
for example, claim that fairness requires that only those guilty of
crimes ought to be punished (thus the punishment of the innocent is
never justified). However, this theory could at the same time hold that
the general justification for punishment as a practice is
consequentialist: the general welfare of society or the deterrence of
further crimes or even the improvement of the community, perhaps. Such
a theory of punishment would not thereby be retributivism, despite the
Q
appearance of a retributivistic policy of distribution. Retributivism
does not consider the consequences of the punitive act, either on the
g
H. L. A. Hart uses this distinction to separate retributivism
from consequentialist theories that rely on the retributivistic
distribution policy that we ought only to punish the guilty. Rawls
makes such a distinction between the justifying an act of punishment and
justifying the practice of punishment. John Rawls, "Two Concepts of
Rules", The Philosophical Review, LXIV, no. 1 (1955). Rawls claims that
even if the justification for a particular act of punishment is
retributive, if the general justification for the practice is
consequentialist, that theory of punishment is nonetheless
consequentialist, not retributive.
6
criminal himself or on the society as a whole. Punishment is not
justified by its ability to reform the criminal, deter crime, send
messages or "cure" the criminal; while any of these consequences may
result from the act of punishment, they are wholly contingent. They do
not justify punishment, either as an individual act or as a social
practice, and are for the most part irrelevant.
Reciprocitv-Retributivism
Much of the contemporary philosophical literature written about
retributivism has attempted to meet the criticism that it is a
rationalization for revenge and that it fails to offer a compelling
justification for the infliction of harm. Despite the differences in
the various responses, the theories share one feature: retributivism is
allied with the social contractarian tradition. The argument then is
that the justification for retributive punishment flows naturally from
social contractarian political theories. Thus not only is it reasonable
to claim that wrong-doers merit punishment independent of any
consequentialist concerns, but fairness requires retributive punishment.
Before we can determine the merit of this response, we should look to
see how social contractarianism affects retributivism.
Social contractarian theories are "individualistic" political
theories, consequently, this version of retributivism is developed
within a political theory whose basic assumption is that we can sensibly
regard individuals as wholly separable (or "abstractable") from their
7
society and we ought to view society as an aggregate of such individuals
cooperating for the sake of pursuing their individual interests.
The significance of the individualistic nature of social
contractarianism is often unappreciated. David Gauthier spells out the
ideas implicit in contractarianism in the following passage:
To conceive all social relationships as contractual is to suppose
that men, with their particular human characteristics, are prior to
society... individual human beings not only can, but must, be
understood apart from society. The fundamental characteristics of
men are not products of their social existence...But more than this
is implicit in contractarianism. It would be compatible with the
claim that the individual is prior to society, to suppose
nonetheless that human sociability is itself a natural and
fundamental characteristics of individuals, which expresses itself
directly in social relations among human beings. And this is
denied by contract theory in its insistence upon the essentially
conventional character of society... Society is thus conceived as a
mere instrument for men whose fundamental motivation is presocial,
nonsocial, and fixed."*®
Humans are not essentially altered or fundamentally altered by social
activity or experience. Instead, individuals bring to their social
activities and experiences their interests and direct those experiences
and activities in light of those interests.
Social contractarian theories claim that individuals in a
political community have an obligation to obey the legal system, a
system that is best understood as being a collection of mutually-
11
benefitting rules. In order to enjoy the continued existence of such
*®David Gauthier, "The Social Contract as Ideology", Philosophy
& Public Affairs 6 (Winter 1977): 130-168, especially pages 138-139.
11
The specifications of what those rules are and the reasons
given for why we have an obligation to obey them will vary from theory
to theory. For present purposes, the details of particular social
contractarian theories are irrelevant. Hobbes, for example, claims that
it is because the rules are mutually beneficial that they are binding.
8
a system, each person must follow the rules, refraining from exploiting
the burdens others undertake in following the rules while she benefits
from unilaterally exempting herself. Such a system is fair, it is
claimed, because each person benefits to an equitable degree and each
person is burdened to a equitable degree. Of course the sorts of
"benefits" being discussed here are those that one gets simply from
1 2
being a member of a society regulated by rules. If these rules are
the sort that make it possible for one to realize (for the most part)
one's interests (like rules regulating property ownership do), then one
receives the benefits from that system of rules. Since each person is
similarly advantaged, it follows that each member is equitably
advantaged by such a system, assuming that people are equals. Likewise,
See Leviathan, chapter 21. Locke, on the other hand, claims that the
rules are both binding and mutually beneficial, but their bindingness is
not merely a function of those rules being mutually beneficial. John
Locke, Second Treatise, (New York: Mentor, 1960), chapter 11. What
matters for a discussion of punishment is merely the fact that all
social contractarian theories claim that the rules are mutually
beneficial and are binding.
1 2
Hobbes claims the benefits of the commonwealth are peace and
security, protection of one's person and property, and providing the
freedom from the interference of others. He writes, "The finall Cause,
End, or Designe of men, (who naturally love Liberty, and Dominion over
others,) in the introduction of that restraint upon themselves, (in
which wee see them live in Common-wealths,) is the forsight of their own
preservation, and of a more contented life thereby; that is to say, of
getting themselves out from that miserable condition of Warre..." See
Leviathan, chapter 17. Locke, too, claims that one of the benefits of
the civil state is security. He writes, "But though Men when they enter
into Society, give up the Equality, Liberty, and Executive Power they
had in the State of nature, into the hands of the Society, to be so far
disposed of by the Legislative, as the good of the Society shall
require; yet it being only with an intention in every one the better to
preserve himself his Liberty and Property." See Second Treatise,
chapters 2 and (especially) 9.
9
one is "burdened" in the sense that one is not at liberty to do all that
one desires; since each person is similarly constrained, each member is
equitably burdened by such a system.
Once we have in our theory the assumption that society is an
aggregate of individuals who each freely choose to act on (or refrain
from acting on) their interests, it follows that a crime is a willful
choice not to resist one's temptation to break a social rule that one
1 3
expects others to follow.
If his action remains unpunished, the criminal is free-riding and
will have an unfair advantage over those who have chosen to restrain
themselves and carried the burdens of compliance while he has received
the benefits of non-compliance. The rule-breaker has acted unjustly not
only to his victim, but to every other member of his society. By
committing the crime, the criminal has "broken the contract" he is
obligated to obey, thus fairness requires that the criminal be
1 4
punished. Because the justification for punishment is founded on the
^Unintentional harms are not, on this model, crimes. Thus
animals, young children and mentally incapacitated cannot commit crimes,
though they can, of course, present a danger to the society. Measures
taken to prevent such individuals from harming others (or measures taken
to ensure they are no longer threats) are not, properly speaking, acts
of punishment.
1 4
At this point I should mention that not all social
contractarian political theories have retributivistic theories of
punishment. The Reciprocity-retributivist is borrowing ideas that are
within the social contractarian tradition, but those ideas do not commit
the social contractarian to retributivism. While Locke insists that we
have as a natural right (and, it seems, obligation) to punish those who
harm us, he claims that the purpose of punishment is to deter persons
from committing harms. He writes, "Each Transgression may be punished
to that degree, and with so much Severity as will suffice to make it an
ill bargain to the Offender, give him cause to repent, and terrifie
others from doing the like". See Two Treatises, chapter 2. Thus Locke
1 0
notion of reciprocity I will refer to this version of retributivism as
1 5
Reciprocity-Retributivism.
Herbert Morris famously developed a theory of Reciprocity-
retributivism. He writes:
[I]t is just to punish those who have violated the rules and caused
the unfair distribution of benefits and burdens. A person who
violates the rules has something others have--the benefits of the
system--but by renouncing what others have assumed, the burdens of
self-restraint, he has acquired an unfair advantage. Matters are
not even until this advantage is in some way erased. Another way
of putting it is that he owes something to others, for he has
something that does not rightfully belong to him. Justice--that
is, punishing such individuals--restores the equilibrium of
does not claim, as the retributivist does, that a crime warrants a
proportionate act of punishment. Rather, according to Locke, the act of
punishment that is appropriate is that one that will bring about certain
specified ends: ensuring that the criminal does not profit from his act,
giving the criminal cause to repent and terrifying others. Likewise,
Hobbes, who quite clearly has a social contractarian theory, defines
punishment as a consequentialist (not retributivist) act. He writes, "A
Punishment, is an Evill inflicted by publique Authority, on him that
hath done, or omitted that which is Judged by the same Authority to be a
Transgression of the Law; to the end that the will of men may thereby
the better be disposed to obedience." See Leviathan, chapter 28.
1 5
It is widely claimed that a prominent example of a theory of
retributivism making use of the social contract tradition is Kant's
theory of punishment. However, Kant does not develop his discussions of
punishment in great detail. Fuller accounts of a Kantian version of
retributivism relying on a notion of reciprocity to justify punishment
is developed by such contemporary writers as Jeffrie G. Murphy and James
Sterba. See Murphy's Retribution, Justice and Therapy (Dordrecht:
Reidel, 1979) and Sterba's "Retributive Justice" in Political Theory,
(August 1977). Murphy has since concluded that Kant does not have what
we would want to call a theory of punishment, and, in fact, he claims
that there is enough textual evidence to cast serious doubt on the claim
that Kant's comments on punishment are consistently retributivistic.
Kant is nonetheless regarded by many contemporary thinkers as holding
that retributivism is founded in a notion of reciprocity; whatever
Kant's real views on punishment were, this theory of Reciprocity-
retributivism now has a life of its own independent of Kant's political
writings. For that reason it is worth looking at. See Murphy's "Does
Kant Have a Theory of Punishment?" Columbia Law Review 87 (April 1987):
509-532.
1 1
benefits and burdens by taking from the individual what he owes,
that is, exacting the debt. ®
According to Morris rules establish "spheres of interest immune from
17
interference by others." In committing a crime, the criminal has
taken advantage of the sphere of non-interference that results from the
general obedience to that law. The benefit of theft, for example, is
not the ill-gotten goods acquired from committing the crime, but is
instead the sphere of non-interference resulting from the general
obedience to the rules that he has chosen to violate. Because these are
benefits the criminal received before committing the crime, his crime
creates a debt he owes to others. Punishment "exacts the debt" the
criminal owes and restores the fair equilibrium of benefits and burdens.
Jeffrie Murphy also develops a theory of Reciprocity-
retributivism; he claims the benefit the criminal receives from
violating the rules is his refusal to bear the burdens of self-
restraint. He writes:
If the law is to remain just, it is important to guarantee that
those who disobey it will not gain an unfair advantage over those
who do obey voluntarily. It is important that no man profit from
his own criminal wrongdoing, and a certain kind of "profit" (i.e.
not bearing the burden of self-restraint) is intrinsic to
wrongdoing...And, since [the criminal] derives and voluntarily
accepts benefits from [the rules'] operation, he owes his own
obedience as a debt to his fellow-citizens for their sacrifices in
maintaining them. If he chooses not to sacrifice be exercising
self-restraint and obedience, this is tantamount to his choosing to
^Herbert Morris, "Persons and Punishment," Guilt and Innocence
(Berkeley: University of California Press, 1976), 34.
17Ibid, 36.
1 2
sacrifice in another way--namely, by paying the prescribed
penalty.
The benefit of crime is the advantage one has over others who obey laws
when one refuses to obey those laws. Contrary to Morris, Murphy claims
that these are benefits one receives after committing the crime. Like
Morris, though, Murphy claims that the crime creates a debt the criminal
owes to others, and regards punishment as the necessary means to restore
1 9
the "proper balance between benefit and burden." Further, Murphy
claims, the criminal cannot justly complain about being punished because
such response to his crime is perfectly fair: he has already accepted
the benefits and now he must shoulder the burdens.
Although the details of Morris' and Murphy's versions of
Reciprocity-retributivism differ, both develop their theories of
punishment from the fundamental principles of Reciprocity-retributivism.
These are: criminal laws are characterized as rules that regulate
mutually beneficial, reciprocal behavior; violations of those rules
create an unfair imbalance of benefits and burdens; punishment of the
criminal brings the criminal back to where he was vis-a-vis his victim
20
prior to the crime and punishment is, consequently, fair.
1 8
Murphy, Retribution, Justice, and Therapy, 100.
19Ibid, 100.
20
It may seem from the accounts I have provided of Morris' and
Murphy's versions of Reciprocity-retributivism that there is little of
significance distinguishing the two. However, that is not the case. In
fact, their differing characterizations of the benefits of crime affects
how each are able justify the retributivist claim that the punishment
must be proportionate to the crime. Since my criticism is aimed at
Reciprocity-retributivism broadly, I am ignoring the more interesting
details of each version of this sort of theory of punishment. For a
more detailed analysis of their differences see Richard Burgh's "Do the
1 3
Reciprocity-retributivism is compelling as a theory of punishment
since it seems to capture successfully the most appealing claims of two
separate theories. As a retributive theory, it retains the appealing
claims that the criminal is to be regarded as a responsible agent
capable of freely willing wrongful action, the claim that the punishment
ought to fit the crime (and not, as the utilitarian claims, be viewed
solely as a means to control the criminal and others) and, finally, the
claim that crimes warrant punishment and (consequently) punishment is
itself just. Because this theory of punishment is constructed within
the social contractarian tradition, Reciprocity-retributivism retains
the appealing (and strongly intuitive) claim that society is most
fruitfully regarded as an aggregate of individuals pursuing their
interests, the claim that laws are (ideally, at least) mutually
beneficial rules regulating the behavior of individuals of a society as
well as the claim that crimes are violations of those rules. Finally,
Reciprocity-retributivism seems to have successfully addressed the
criticism launched earlier, that retributivism cannot provide a
compelling non-consequentialist justification for retribution. If we
accept the social contractarian claim that we are cooperating members of
a society obeying a mutually-beneficial system of rules, then it follows
that retributive punishment is a justifiable response to rule-breakers.
Retributive punishment is not only permissible, but fairness requires
that transgressors be so punished.
Guilty Deserve Punishment?" The Journal of Philosophy LXXIX, no. 4
(1982): 193-210.
1 4
A More Virulent Criticism
Although Reciprocity-retributivism has met the criticism that it
cannot provide a compelling non-consequentialist justification for
punishment, allying retributivism with social contractarianism has its
price since it has made retributivism susceptible to an even more
virulent version of the criticism that retribution is unjustified. This
criticism is: many crimes are committed by persons alienated from or
oppressed by unjust political institutions therefore the claim that
21
fairness requires their punishment is unacceptable.
Those who claim that whole classes of individuals are excluded
from or are outside of their own society reject the assumption that
society is properly characterized by individualistic, social
contractarian political theories. I will refer to critics of social
contractarian political theories (for lack of a better term) as
Marxists. Their criticism is that while contractarian theories
correctly claim that all citizens benefit from mutually advantageous
rules, such benefits are minimal. Even with mutually beneficial
institutions in place, such as private property laws, social and
political rules and institutions can alienate and oppress whole classes
of individuals. Those who are alienated are, Marxists claim, citizens
sharing the benefits and burdens of those rules, but are nonetheless not
22
fully integrated members of their own society.
21
Murphy refers to this criticism of Reciprocity-retributivism a
s "the gap between theory and practice." See his Retribution, Justice
and Therapy, 77-81.
22
It may seem that this Marxist objection against Reciprocity-
retributivism can be made profitably only against a Hobbsian or Lockean
1 5
Marxists claim that a society with alienating social policies and
political institutions (sexist or racist property laws, say), will have
(at least) two separate communities. These communities, while they lie
side by side and are formally integrated, are not actively integrated.
The empowered members are in one community, the economically advantaged
or the racially privileged for example, while the alienated individuals
are in the other community, the poverty stricken or the victims of
racial or sexual oppression, say. Both communities are formally
integrated in the sense that all individuals are regarded as citizens
and are held accountable to the laws of that society (in contrast to the
way individuals of different political states are formally separated
because of having different citizenships). Yet they are not actively
integrated because political institutions and policies are to the
advantage of one community, and to the disadvantage of the other.
social contract theory, but not against a Rawlsian one. However, I
think that even the Difference Principle may allow disparities of wealth
that permit alienation. The Difference Principle requires that "social
and economic inequalities are to be arranged so that they are both (a)
to the greatest benefit of the least advantaged and (b) attached to
offices and positions to all under conditions of fair equality and
opportunity." The Difference Principle requires that the distribution
of resources chosen be to the greatest advantage of the least well off
given possible distribution options available. So long as there is a
scarcity of goods, the least well off may still be poor relative to
others in society. So long as his share in the goods is greater than
the least well off would be in any other distribution possible, he is
receiving his fair share of the resources, and his fair share of the
benefits of social cooperation. Whether or not alienation can result
from even a fair distribution of goods will depend entirely on how we
characterize alienation. In Chapter 4 on my dissertation I argue that
alienation, which results from being excluded from one's society's
socialization process, is certainly possible despite a fair distribution
of social goods. See Rawls's A Theory of Justice (Cambridge: Harvard
University Press, 1971), 83.
1 6
Persons who are prevented from actively integrating in their society
cannot, as a result, be regarded as full members of their own society.
Having heard the Marxist's suggestion that the social
contractarian tradition has misdescribed society, we can see how serious
the Marxist's criticism of Reciprocity-retributivism is. Jones, a
member of the alienated class, is held accountable to, and punished for
breaking, the rules that empower individuals of a community to which he
does not belong and alienate members of a community to which he does.
If we accept the Marxist's suggestion that political institutions can
alienate a community such that members of that community are citizens,
yet not full, active members of that society, then we cannot ignore the
peculiarity of the claim that punishing violations of those rules is
legitimate because fairness requires it. Such a justification simply
looks perverse. Thus we are right to feel uneasy about Reciprocity-
retributivism once we question the political theory on which it is
founded.
Marx famously voiced this criticism against theories of
retributive punishment. He wrote:
From the point of view of abstract right, there is only one theory
of punishment which recognizes human dignity in the abstract, and
that is the theory of Kant, especially in the more rigid formula
given it by Hegel. Hegel says: "Punishment is the right of the
criminal. It is an act of his own will. The violation of right
has been proclaimed by the criminal as his own right. His crime is
the negation of right. Punishment is the negation of this
negation, and consequently an affirmation of right, solicited and
forced upon the criminal by himself."
There is no doubt something specious in this formula, inasmuch
as Hegel, instead of looking upon the criminal as the mere object,
the slave of justice, elevates him to the position of a free and
self-determined being. Looking, however, more closely into the
matter, we discover that German Idealism here, as in most other
1 7
instances, has but given transcendental sanction to the rules of
existing society. Is it not a delusion to substitute for the
individual with his real motives, with multifarious social
circumstances pressing upon him, the abstraction of "free will"--
one among the many qualities of man for man himself?...Is there not
a necessity for deeply reflecting upon an alteration of the system
that breeds these crimes, instead of glorifying the hangman who
executes a lot of criminals to make room only for the supply of new
ones?23
Here Marx is not denying that criminals are responsible agents, but is
drawing our attention to the "specious" claim that punishment is
justified despite the fact that the system "breeds" crimes.2^ The
mistake made by Reciprocity-retributivists is in using an idealization
(the theoretical social contract) as the basis for justifying the
infliction of harm on real criminals, individuals who live in a society
structured by rules that are far from ideal.
The Marxist's challenge to Reciprocity-retributivism reveals a
conflict between two central and important intuitions: the
retributivistic intuition that individuals ought to be punished for the
wrongs they willfully commit and the Marxist intuition that alienated
23
Karl Marx, "Capital Punishment", New York Daily Tribune,
February 18, 1853.
24
It is admittedly strange to use a passage to condemn one
version of retributivism in support of another when the passage is
intended to damn both. Ultimately, though, I think Hegel's theory of
punishment, despite its foundation in Abstract Right, fares far better
than does Kant's for precisely the reasons I have been stating in this
chapter: it is developed within a political theory that is by far a more
accurate description of real social relations, in particular those that
hold in an unjust society (one that is racist, sexist, and economically
crippling) such as ours. And although we are still left with a theory
of punishment that demands that criminals be punished, its analysis and
justification for punishment is not simply based on Abstract Right.
1 8
and oppressed individuals fail to be members of their society in a way
such that their punishment is unacceptable.
Strategies Open to Reciprocitv-Retributivists
There are two strategies open to the Reciprocity-retributivist who
wishes to accommodate the Marxist's challenge: she can either claim that
the conditions of poverty to which the alienated person is subjected
prevent him from fairly benefitting from social rules and therefore
punishment is unfair, or she can claim that crimes committed while
subjected to the conditions of poverty are not freely committed actions,
are not in other words crimes, and therefore retributive punishment is
unwarranted. I will argue that neither of these responses is adequate
and consequently we should abandon Reciprocity-retributivism.
If we choose the first strategy, we must argue that since the
criminal is subjected to poverty, she is not a beneficiary of the
mutually beneficial rules regulating society. Although the alienated
person's crime is a violation of those rules, her violation is not an
unfair violation of those rules. Her crime does not advantage her with
respect to the other members of her society, consequently punishment is
unwarranted because no balance of benefits and burdens needs to be
restored.
It is this strategy that Murphy uses to defend his version of
25
Reciprocity-retributivism. He writes:
25
See his "Three Mistakes about Retributivism" from Retribution,
Justice, and Therapy, 77-81 .
Decent men surely want to object to the wanton handing out of
punishments to those who, in a socially uneven community, always
get the short end of the stick. But does not Kant's theory explain
(or at least give good reason) why we do want to object? Just
punishment rests upon reciprocity; and is not one of the most
serious moral problems confronting most existing communities the
absence of such reciprocity, the absence of balance between benefit
and burden? Punishment is unjust in such a setting because it
involves pretending (contrary to fact) that the conditions of
justified punishment are met. Thus could not Kant, given this
theory, easily share the Marxist skepticism about punishing in
certain actual states? I believe that he could.2®
Murphy claims that the Marxist's objection is not an objection against
this theory of punishment. Since such crimes create no imbalance of
benefits and burdens, such crimes require no punitive response.
I find this response uncompelling because I think it rests on a
misunderstanding of social contractarianism. The contractarian claims
that members of a society receive benefits and carry the burdens of
obedience to rules, but earlier we saw that the sorts of benefits the
contractarian refers to are extremely minimal. One is a beneficiary
simply in virtue of being a participant in a system that provides one
the security necessary to pursue one's interests and engage in
cooperative activities. One benefits from property laws, for example,
if one owns very little property, or even none at all. Likewise, in
such a theory one is said to be burdened by those rules even if one's
interests are such that the pursuit of those interests is not hampered
by those rules in any way. Because the sorts of benefits the social
contractarian refers to are so minimal, the strategy of claiming that
since the poverty-stricken criminal fails to benefit in the requisite
26Ibid, 80.
20
way his punishment is unfair is uncompelling. Even a slave (a person
far more oppressed than the sort concerning our Marxist) enjoys even
these minimal benefits. "Common goods" such as a sewage system, public
schooling, emergency medical care and streets may be taken for granted,
but they are significant benefits we enjoy only in virtue of being
members of a society. The Marxist acknowledges that all persons benefit
in this minimal sense, but claims some are nonetheless poverty-stricken
27
or alienated. It is these individuals who indicate the wrongness of
social contractarian justifications of punishment.
There is another reason why I find Murphy's response to the
Marxist's criticism uncompelling: I think it abandons too easily the
retributivist conviction with which we began this project, namely the
belief that moral agents ought to be held accountable for the wrongs
they willfully commit. To the retributivist, the fact that the criminal
has received "the short end of the stick" is, largely, irrelevant. What
seems to be underlying Murphy's claim that such crimes fail to create
imbalances that warrant redressing is the assumption that the crime
27
It is easy to imagine such criticisms being launched against
Hobbes and Locke, but one may think that Rawls' Theory of Justice is
immune to such attacks. (I suspect Murphy thinks it is.) But Rawls'
theory is criticized by feminists who worry that his refusal to have the
two principles of justice regulate the private sphere, the division of
labor within a family, for example, is evidence that his theory will
perpetuate sexism since women who are raised in severely sexist homes
will be disadvantaged in the public sphere. Therefore while a Rawlsian
well-ordered society will ensure that all citizens receive the benefits
and burdens of fair political institutions, it will nonetheless tolerate
the alienation or oppression of women within the home and consequently
the justification of their punishment by reference to fairness is
problematic. See Susan Moller Okin, Justice, Gender, and the Family
(New York: Basic Books, 1989).
21
victimized one who is wealthy, one who consistently gets the long end of
the stick. Such a crime does not obviously create an imbalance because
relations between the two are so uneven to begin with. When the poor
man steals the hubcaps of the wealthy, has he really advantaged himself
relative to his victim? The criminal is, in fact, still worse off
relative to the wealthy man, despite his crime. What could punishment
28
possibly achieve except to make the criminal even more badly off? But
let us change the story somewhat. Suppose our poor man is not out
stealing Rolls-Royce hubcaps, but is instead brutally assaulting his
wife. In such a case the victim of the crime knows what it is for the
man to receive the short end of the stick for she receives it regularly
herself. And now she is suffering what most poor people consistently
suffer: crimes inflicted on them by people who live in their own
communities or even their own homes. While it is still true that the
criminal is the victim of unfair laws, I find this fact simply beside
the point. Tolerating or excusing this crime by referring to the plight
of the criminal is simply to fail to take seriously the wrong he has
28
I think this is the appeal of the Robin Hood legend. Who
doesn't want Robin Hood to get the gold from the wealthy and hand it out
to the poor? Of course he is committing a crime, but we also know that
the wealthy are so comfortable relative to the suffering who receive the
ill-gotten booty, it is simply impossible to take seriously their claim
that they are disadvantaged by the crime and therefore it seems
reasonable to accept Murphy's claim that Robin Hood's punishment is
unjustified. Unfortunately, this intuition simply is not a
contractarian intuition (it is, in my mind, a communitarian or virtue
theory intuition) and attempts to adjust a contractarian theory (or any
theory of punishment based on contractarianism) to accommodate that
intuition, like Murphy's, simply cannot work. Either the intuition is
an ad hoc proviso or the theory ceases to be founded on a social
contract.
22
committed. I think, consequently, any attempt to meet the Marxist's
challenge by refusing to regard as crimes the wrongs committed by the
politically or economically disadvantaged is wrong-headed.
The second strategy is to claim that the social conditions of
poverty prevent persons from freely willing their actions, consequently
their wrongs are not crimes. The wrongs are committed because they are
placed in such extraordinary circumstances and, so goes the argument,
one ought not be held responsible for those actions. While it is
certainly true that freely willed actions warrant retributive
punishment, the actions of the poverty stricken are not freely willed
29
and thus do not warrant punishment.
I do not find this strategy compelling either. If one takes moral
agency seriously, in the way retributivists want to, one cannot shrug
29
Another version of the strategy to accommodate the crimes of
an alienated criminal is to either redescribe his psychological states
or redescribe the action committed so as to justify excuse. Feminist-
Marxists point to our unease in punishing women who assault or kill men
who have battered or emotionally abused them in the manner we ordinarily
punish individuals who commit assault and battery or murder is evidenced
by the invention of syndromes (like "Battered Wife Syndrome" or
Premenstrual Syndrome") and the attempts to categorize the women's
actions as self-defense. If the woman is psychologically debilitated
(as the advocates of the syndromes suggest) then retributivistic
punishment is not justified since she did not willfully commit a crime.
Or, if it is the case that the woman acted in self-defense, she ought
not be punished because her action is excused and does not merit
punishment. Both defenses are ones that Reciprocity-retributivism can
accommodate. The problem with both lines of defense, Feminist-Marxists
claim, is that they are feeble (and uncompelling) attempts to address
the symptoms and wholly ignore the real problem, the unjust and sexist
distributions of power in society. See Feminist Legal Theory
Foundation, ed. D. Kelly Weisberg (Philadelphia: Temple University
Press, 1993) in particular, Catharine A. MacKinnon's "Feminism, Marxism,
Method and the State: An Agenda for Theory," 437-453. Interestingly, we
do not find in our society the use of "syndromes" to excuse crimes
committed by blacks or other members of racially oppressed communities.
23
off the costs of that agency when circumstances are difficult. While it
is certainly true that ignorance, drunkenness, or hypnosis may render
one incapable of freely willed action and thus cause us to consider
excusing the crimes committed while a person is so affected, poverty
does not affect one's moral agency that way. Poverty-stricken people
are still capable of moral actions, both praiseworthy and blameworthy.
If we are to claim that they cannot commit crimes, then we must, if we
are consistent, claim that they cannot be responsible for their heroic
or good actions either. Such a move is dubious and unwarranted. Thus
their crimes ought to be regarded as the actions of a moral agent, and
they ought to be held responsible for them.
If both strategies fail to be satisfactory, the only conclusion
available to us is that both the retributive and Marxist beliefs cannot
be adequately addressed by Reciprocity-retributivism. This failing is,
I believe, serious. Reciprocity-retributivists have not satisfactorily
quieted our concerns because those concerns cannot be addressed by a
theory of retributivism couched in an individualistic, social-
contractarian political theory that justifies punishment by appealing to
fairness.
Another Version of Retributivism
An adequate theory of retributive punishment must do two things.
First, it must provide a reason to punish all crimes committed,
regardless of the social context of the criminal, thus keeping our
retributivist convictions intact. Second, it must remain sensitive to
24
the force of the Marxist's challenge and enable us to identify the
alienated criminal so that we can discover what it is precisely about
her situation that disadvantages her relative to others in her society.
What we ought to do is step back and look at the larger picture.
That is, we ought to view our dissatisfaction with Reciprocity-
retributivism in the face of the Marxist's challenge as evidence that
the individualistic, social contractarian political theories out of
which Reciprocity-retributivism is developed have misdescribed society.
And we should, for that reason, recast retributivism within a non-
contractarian political theory instead. For so long as retributivism is
nestled inside such a political theory it will not have the machinery to
adequately address the phenomenon of alienation.
One notable theory of retributivism that can address the Marxist's
challenge is Hegel's. Hegel's retributivism holds fast to the essential
claims made by retributivists: he claims that individuals ought to be
punished if and only if they have freely willed a wrong, that the
punishment ought to "fit the crime" and that punishment is inherently
just. Hegel also claims that the failure to punish a crime is to permit
an injustice to exist. Punishment is, then, permissible and
30
obligatory. Yet Hegel's theory of punishment is not like Reciprocity-
retributivism, for he specifically intends his political theory to
address issues of alienation. Because Hegel's political theory is not
developed within the social contractarian tradition, his theory of
^Hegel, like Kant, has what Hart calls the "severe" version of
retributivism.
25
retributivism is not founded on an individualistic conception of society
and punishment is not justified as a "fair" response to rule-breakers.
The real purpose of punishment, Hegel argues, is not to redress an
imbalance of benefits and burdens, but to "annul the crime" and to
"validate right".
Because Hegel's theory is specifically designed to deal with
social phenomena that individualistic, contractarian theories cannot, we
should look to Hegel's theory of punishment.
26
CHAPTER 2
GENUINE FREEDOM AND COERCION
We saw in Chapter 1 that what we need is a retributivist theory of
punishment built within a non-social contractarian political theory, a
theory that can better accommodate our retributivistic intuition that
crimes deserve punishment as well as our Marxist intuition that those
criminals alienated from their society need a more convincing
justification for their punishment than an appeal to fairness. In this
chapter I will begin my argument that Hegel's theory of retributivism is
a theory that can accommodate those intuitions. Before addressing
Hegel's theory of punishment directly, we first need to understand the
main ideas motivating Hegel's political theory, then we need to spend
time laying out his concepts of right and wrong. Only then will we be
in a position to appreciate his theory of punishment.
Hegel's political theory, and consequently his theory of
punishment, is founded on two central, connected claims. The first is
that a person is genuinely free when she has realized her will. The
second is that the whole point of human life, our raison d'etre, is to
realize genuine freedom. Appreciating Hegel's notion of genuine freedom
is essential to understanding his theory of punishment for two reasons:
first, it is the central philosophical notion in his political theory
and, second, it departs from traditional notions of freedom in
27
significant ways, and it is these departures from tradition that
ultimately make Hegel's theory of retributivism more satisfactory than
reciprocity-retributivism. It will helpful to begin with a general
discussion of what Hegel means by "genuine freedom." Once we understand
what genuine freedom is we will then be in a position to analyze his
conceptions of rights, wrongs and crimes.
Genuine Freedom...
According to Hegel, to be genuinely free is to not only have the
capacity to be free, but actually to be able to do what one wills. One
is not free if one does not realize, or make real, freedom. In making
this claim Hegel is disregarding a distinction traditionally found in
political theories separating impediments to action that render one
incapable to do something, and limitations of freedom that prevent one
from being at liberty to do something. One way of drawing the
distinction is between external impediments to action and internal ones.
Hobbes draws this distinction nicely:
Liberty, or Freedome, signifieth (properly) the absence of
Opposition; (by Opposition, I mean externall Impediments of
Motion:) and may be applyed no lesse to Irrationall, and Inanimate
creatures, than to Rationall. For whatsoever is so tyed, or
environed, as it cannot move, but within a certain space, which
space is determined by the opposition of some externall body, we
say it hath not Liberty to go further. And so of all living
creatures, whilst they are imprisoned, or restrained, with walls,
or chayns; and of the water whilst it is kept in by banks, or
vessels, that otherwise would spread itself into a larger space, we
use to say, they are not at Liberty, to move in such manner, as
without those externall impediments they would. But when the
1
"Genuine freedom" is also referred to as "absolute freedom" or
"actualized freedom" by Hegel scholars.
28
impediment of motion, is in the constitution of the thing itself,
we use not to say, it wants the Liberty; but the Power to move; as
when a stone lyeth still or a man is fastned to his bed by
Sicknesse.^
External impediments, both those that result from the actions of others
and from natural occurrences, are limitations of freedom. Thus
avalanches that trap one in a cave and another person locking one in a
cellar are such impediments to freedom. "Internal" impediments are
limitations of powers or capacities. Fears, false beliefs, illnesses
and physical disabilities are internal limitations of capacities, but
not limitations of freedom. So, for example, while it is true that if I
am lame I am unable to climb a mountain, I am nonetheless free to climb
it. While my physical inabilities can prevent me from being able to
climb, they do not affect what we ordinarily conceive of as freedom--and
for that reason, I am still free. Suppose, however, I am unable to
climb a mountain, not due to any physical limitations but because
someone has imprisoned me in her cellar. While I possess the ability to
climb that mountain (and, thus am capable of climbing it) I am unfree to
climb it.
If we fail to acknowledge the distinction between one's
limitations of capacities to act, internal impediments, and limitations
of freedom, external impediments, then it seems we must conclude that if
one's capacities are limited, one is less free. Since this seems
counterintuitive, it seems we ought to keep the distinction clear.
Nonetheless, Hegel claims that genuine freedom consists in the activity
2
Hobbes, Leviathan, chapter 21, emphasis added.
29
that fully realizes one's will. Therefore, if one is incapable of
action--whether from limitations of capacity or freedom--one cannot be
genuinely free. Clearly it seems that Hegel is guilty of failing to
acknowledge the distinction between these two sorts of limitations.
What can Hegel mean?
It is easier to understand Hegel's insistence that one is
genuinely free only when one has realized one's will if we keep in mind
that Hegel sees as the point of human existence the realization of
genuine freedom. He writes:
The absolute determination, or if one prefers, the absolute drive,
of the free spirit is to make its freedom into object--to make it
objective both in the sense that this system becomes immediate
actuality. This enables spirit to be for itself, as idea, what the
will is in itself. The abstract concept of the idea of the will is
in general the free will which wills the free will.^
A human cannot be a person, a free thing, according to Hegel, unless she
is able to act as a person, and acting as a person requires realizing
genuine freedom.
Genuine freedom is achieved when one both (1) acts from self
chosen principles (rather than from "arbitrary" drives or desires) and
(2) fully realizes those freely chosen ends. To "act from self-chosen
principles" Hegel has in mind something very much like Kant's idea of
autonomy, that is, of acting only from one's self-legislated laws.
3
G. W. Hegel, Hegel: Elements of the Philosophy of Right, trans.
and ed. Allen Wood (Cambridge: Cambridge University Press, 1991),
section 27. (From now on I will follow Hegel scholars' example and
refer to Philosophy of Right as PR.) Hegel makes this same point more
concisely in his lectures from 1824-1825 when he states, "[OJur vocation
is freedom, which must realize itself, and this realization is right,"
taken from a footnote of Wood's translation of PR, 402.
30
Desires, drives and inclinations are "external" to the will, forces of
nature that are determined and unfree. The free person, however, has a
will independent of such forces. Hegel contrasts an animal, a being
wholly determined by his desires and inclinations, to the free person, a
being "above" those desires. Hegel writes:
The animal, too, has drives, desires, inclination, but it has no
will and must obey its drive if nothing external prevents it. But
the human being, as wholly indeterminate, stands above his drives
and can determine and posit them as his own. The drive is part of
nature, but to posit it in this 'I' depends upon my will....^
And later:
[T]his process whereby the particular is superseded and raised to
the universal is what is called the activity of thought. The self-
consciousness which purifies and raises its object, content, and
end to this universality does so as thought asserting itself in the
will. Here is the point at which it becomes clear that it is only
as thinking intelligence that the will is truly itself and free. ®
The free person does not "get what he wants," merely giving in to the
forces of his desires, nor does she chose among those competing desires
to act on that which is "rational" or prudent, for to do so is to
"relinquish" (to use Hegel's term) my freedom. Rather, the free person
steps above those desires and judges them. She determines their
rightness and worth, not their usefulness or utility.®
^Hegel, PR section 11A.
®Hegel, PR section 21.
®Hegel's point is difficult to see. The following example
should make it a bit clearer. Of course we love our family and friends.
This emotion is a "drive" that is "external" to us, one that comes from
nature. If we were to act on that love simply because to fight it would
be painful to us, we are no different from the tigress who tends to her
young from instinctive maternal drives. However, as a free being, I can
separate myself from that feeling of love, and freely affirm loving
31
But Hegel goes beyond this Kantian notion of acting from freely
chosen, universal principles when he claims that genuine freedom
requires "fully realizing one's ends." Hegel seems to be embracing
something very much like Aristotle's idea of not acting in a way that
causes one to regret one's actions once one has an understanding of
7
their consequences. Were our action to bring about consequences we did
not intend and later regret, we could no longer believe that we acted
freely, but instead regard our action as being constrained or controlled
by circumstances beyond our control. It may be the case that we really
acted on our own freely chosen principles and actually realized our own
freely chosen ends but, perhaps because of the unforeseen actions of
others, our action brought about results contrary to our full
intentions. Since we cannot affirm those consequences, we cannot affirm
that will. Thus we were not genuinely free.
It is probably clear by now that when Hegel speaks of a "will" he
does not mean by that the faculty to which Kant refers as a free will.
For Kant, our failure to realize our will does not affect the will
itself. In a well known passage, Kant makes this point:
Even if, by some especially unfortunate fate or by the niggardly
provision of stepmotherly nature, this will should be wholly
lacking in the power to accomplish its purpose; if with the
greatest effort it should yet achieve nothing, and only the good
actions as being right, and actions worthy of acting on. And it is at
that moment, in freely determining that emotions as good and for that
reason choosing to act on it, that I express my freedom as a person.
7
Kenneth Westphal makes this comparison between Hegel's and
Aristotle's theories. See his "The Basic Context and Structure of
Hegel's The Philosophy of Right," The Cambridge Companion to Hegel
(Cambridge: Cambridge University Press, 1993), 246.
32
will should remain (not, to be sure, as a mere wish but as the
summoning of all the means in our power), yet would it, like a
jewel, still shine by its own light as something which has full
value in itself.®
Our will has full value in itself regardless of its ability to be
realized. For Kant, what it is to be rational is to have the capacity
to will universally, whether or not we ever exercise that will by acting
autonomously. Notice that Kant is preserving the distinction between
having a capacity to act and actually acting: we are free so long as we
have that capacity, actually acting is of little significance.
Hegel does not draw the sharp distinction between the noumenal
will and the phenomenon of the material world that may (or may not)
result from a will as Kant does. For Hegel a "will" is the faculty that
permits free deliberation as well as both the willed action and the
consequences of that action. To say that a person has willed freely is
to say that she has deliberated freely and that she has realized her
will. It is not the case, Hegel claims, "that a human being thinks on
the one hand and wills on the other, and that he has thought in one
Q
pocket and volition in the other." For Hegel, the will is essentially
tied to its actions and consequences. Thus an individual cannot affirm
or disaffirm her deliberation independent of the action (or inaction)
consequent of that deliberation.
When Hegel does discuss Kant's sense of "free will," he refers to
this as the predisposition to will. But he insists that such a will,
O
Kant, Grounding for the Metaphysics of Morals, trans. James W.
Ellington (Indianapolis: Hackett Publishing, 1981), Ak 394.
g
Hegel, PR section 4.
33
merely the deliberative faculty, is not a will at all. He writes, "I do
not merely will--I will something. A will which...wills only the
1 0
abstract universal, wills nothing and is therefore not a will at all."
A will must, for Hegel, be something that is actually engaged in the
material world.
Hegel departs from the ordinary sense of freedom in his insistence
that persons are not merely thinkers and choosers, we are doers.^ We
are capable of turning the possible into the actual. Were we capable of
making decisions only, had we a will whose capacity could be realized
only "in a universal way, i.e. thinkingly," we would not be free in the
fullest sense of the term. For a human to be a fully realized person
she must actually act, she must use her capacity to will in action.
Hegel writes:
Of course the will does possess this capacity [the capacity to
think rationally], and it is of great importance to know that the
human being is free only insofar as he possesses it and avails
himself of it [i.e. uses it] in action.
Freedom consists not in the possibility of being free, but in the
realization of willed action. To fulfill our essential characteristic
as persons it is necessary that we realize our will by affecting the
material world in some way. Hegel is here presenting the claim that
^Hegel, PR section 6.
11
Wood claims that Hegel is following Fichte on this point, who
argues that freedom is a way of acting, and persons are not "beings",
but "doings". See Wood's Hegel's Ethical Thought (New York: Cambridge
University Press, 1990), 39.
1 2
Hegel, Hegel's Logic, trans. William Wallace (Oxford: Oxford
University Press, 1975), section 54A, emphasis mine.
34
humans are, essentially, creatures who realize their nature through
activity, not through deliberation.
Hegel's claims about genuine freedom seem to better capture our
pre-philosophical views about freedom. For in an important sense it
seems we are not free if we cannot realize what we will to do because of
internal impediments or incapacities. In claiming that in order to be a
person one must realize freedom, he captures our intuition that what is
of primary importance to us is what we do, what we accomplish in our
lifetime. Being genuinely free, realizing what we have willed to do, is
what our goal as humans is.
The First Pre-Condition for Genuine Freedom: Self-Awareness
To see how foundational genuine freedom is to Hegel's political
theory, notice that the fundamental commandment of Abstract Right is: Be
1 3
a person and respect others as persons. Being a person, living a life
of a person, requires more than merely having the capacity to will
freely. Primarily, one must have awareness of one's free nature, or in
Hegel's words, one must attain self-consciousness."*^
This need for self-awareness is the most basic drive of a person;
it is the drive for recognition of one's freedom from "the other," the
external world. It is a need to understand not only what sort of being
one is, but to understand what one's place is in the world. Persons are
a part of the material, external world; we are, in fact, wholly
"*^Hegel, PR section 36.
"*^Hegel, PR sections 54-70.
35
dependent on the world for our very existence. But, Hegel claims, we
can only be "at home" in the world when we have self-awareness of
ourselves as cease to regard the world as alien, as "other." Charles
Taylor writes:
What is aimed at is integral expression, a consummation where the
external reality which embodies us and on which we depend is fully
expressive of us and contains nothing alien...[which] can only be
attained when men come to see themselves as emanation of universal
Geist. For it is only then that they will not see the surrounding
universe as a limit, an other. And since man depends on this
surrounding universe, he can never feel integrity as long as it is
seen as other.^
A person cannot use her reason alone to attain self-consciousness. She
cannot, in other words, recognize her freedom "in the abstract" or
"thinkingly." While activity expresses our freedom over external
reality and gives existence to our freedom (we use things, manipulate
them, devour them), such activities fail to provide me with what I need:
awareness that my actions are deliberate and that I am a free being.
The external world cannot provide me with the self-awareness I need
because it is not free. It only provides a very vague, uncertain
awareness of one's freedom. The only being able to provide me with
self-awareness is another free being, another person.^® A person's
1 5
Charles Taylor, Hegel (Cambridge: Cambridge University Press,
1975), 148-149.
” *®Charles Taylor develops this point. He writes, "In the
dialectic of desire, we are faced with foreign objects which we then
destroy and incorporate; what is needed is a reality which will remain,
and yet will annul its own foreignness, in which the subject can
nevertheless find himself. And this he finds in other men in so far as
they recognize him as a human being." See his Hegel, 148-170,
especially 152.
36
freedom, or self-consciousness, "has an existence only through being
1 7
recognized by another self-consciousness."
Once we are recognized and regarded as free beings, we can
acknowledge our own freedom. We can be free and take responsibility for
our actions. Hegel gives an example of a slave who regards himself
truly as a thing owned by his master. Such a person has not "taken
possession of himself"; he declaims his free decisions as being his own
(even those decisions to acquiesce to the abusing master's demands) and
instead regards his decisions and actions as an other's, his master's.
He fails to accept that he is the agent who has so willed, that those
wills are his. Despite his enslavement, the slave is a formally free
being. And because he is a free being, he, and others, ought to regard
him as such. Hegel condemns not only the slave master but the slave
himself. Hegel writes:
[I]f someone is a slave, his own will is responsible, just as the
responsibility lies with the will of a people if that people is
subjugated. Thus the wrong of slavery is the fault not only of
those who enslave or subjugate people, but of the slaves and the
subjugated themselves.^®
He who accepts the position of a slave, he who truly regards himself as
a thing, is as guilty of failing to respect his value as his master.
Both the slave and the master are wrong in the sense that they falsely
regard a person as a thing.
1 7
Taken from a reference to Hegel's lectures of 1819-1820, in
Wood's Hegel's Ethical Thought, 78.
” *®Hegel, PR section 57.
37
The acknowledgment of an other is really mutual recognition.
Since our freedom can only be recognized by other persons, we must
1 9
recognize that those who acknowledge our freedom are persons. In
realizing our own freedom we are implicitly acknowledging that our
capacity to be free is a capacity that others have. While we are
distinct from others in many ways, we are like them in one very
important respect: we are all identically free. Thus, were I to claim
that I am free yet to deny that another person is free, I would be
making a conceptual error and would be failing to fully appreciate in
what freedom consists.
We can already see indications that Hegel's theory is non-
individualistic. Our ability to conceive of ourselves as free beings
requires other persons to regard us as persons. Our very personhood is
dependent on others, and theirs on us. Persons are not, in other words,
individualizable units separable or "abstractable" from other persons.
Were we to abstract ourselves from our community we would lose the
connections to others that make self-awareness of our free nature
possible.
An interesting upshot of Hegel's claim that our capacity to
realize genuine freedom requires the mutual recognition of our freedom
is that it raises the following question: just exactly what sort of
harm, if any, is a person (or, more likely, community of persons)
suffering if the majority refuse to acknowledge them as persons? It
seems that a person systematically denied acknowledgment of her
1®Wood, Hegel's Ethical Thought, 86.
38
personhood would be rendered incapable of sustaining self-awareness of
her own personhood and thus would be incapable of firmly regarding
herself as a person. Likewise, persons systematically denied
acknowledgment of their freedom because of their religion or race would
be affected also. Certainly in our society women and members of
minority races are systematically regarded as incompetents or inferiors.
Given what Hegel has said, such attitudes are not merely offensive (and
incoherent given what personhood is) but extremely injurious since
individuals who cannot conceive of themselves as person cannot be
persons: they cannot regard themselves as responsible agents, cannot
engage in an ethical life. Hegel's account offers a plausible analysis
of the intuition that an individual oppressed by the prejudices held by
the members of her society ceases, in some sense, to be a person.
But what is especially interesting about such situations is that
the victim of racism or sexism is rarely (if ever) regarded as inferior
or incompetent by every individual in a society, and rarely by those who
know her or suffer victimization alongside her. Since any given person
must be recognized and accepted as a person by at least someone, would
Hegel claim that despite the hostile environment racism and sexism
creates, adequate self-awareness is nonetheless possible? This is
certainly an issue Hegel did not address, so speculation is necessary.
What Hegel's theory seems to commit him to saying (and what best
explains the experiences one has in a racist and sexist society such as
this one) is that the recognition one receives from those in one's own
community certainly provides one with the awareness that one is a free,
39
responsible being, yet the ever-present (though sometimes subtle)
message that one is inferior erodes the confidence one has in one's
self-consciousness. There is, then, a misfit between what the oppressed
person knows to be true, that she is a free being, and what she is told
by society. And the message that is more pressing, more formative, is
20
the one telling her that she is inferior. What seems to be necessary,
and what is absent in oppressive societies, is that all are publicly
recognized as persons by the political and social institutions of their
society. If this is so, then we must conclude that victims of
oppression cannot successfully regard themselves as persons, no matter
21
how many fellow sufferers regard them as persons.
In recognizing another's freedom we must recognize the limitations
others create on our freedom; likewise our own freedom creates
limitations on the freedom of others. Allen Wood writes:
As soon as I become aware of other free beings, this volition
naturally leads to a desire that others should not prevent me from
20
The effects of living with conflicting messages will be
developed further in Chapter 5. I will argue that the poverty-stricken
become "the rabble" precisely when they realize that they are formally
free beings yet are denied access to the activities free person in their
society engage in.
21
One feature of the Civil Rights movement of the 60's was the
proliferation of "Pro-Black Attitude" songs and literature. Slogans
like "Say it loud, I'm black and I'm proud", "Black is beautiful" and
the song "Young, Gifted, and Black" are well-known. Yet what is now all
too obvious is that those words, which were clearly intended to give the
black person self-awareness of her personhood, did little to end racism
or end the black person's belief that she is inferior. Because those
who view blacks as inferiors (and refuse to regard them as persons)
failed to change their beliefs, and because the social and political
institutions that reinforced the beliefs that blacks are inferior did
not change, blacks still suffer from the oppression of racism. In
short, the wrong group were saying the words.
40
doing what I fundamentally will to do, hence it expresses itself as
the demand that others should respect my external sphere of
freedom.22
To conceive of oneself as a person one must both demand acknowledgment
of one's own "sphere of freedom" and acknowledge the freedom of others.
Although others provide us certainty of our own freedom they set limits
on our freedom. Since I have a sphere of freedom in virtue of being a
person, other persons likewise have such a sphere of freedom. And since
every time I will an action I am demanding that they acknowledge my
sphere of freedom, I too, must acknowledge theirs. I am acting
unreasonably if I demand freedom and yet do not acknowledge the freedom
others have for I am, insofar as I am a free being, no different from
others. Of course Hegel is not claiming that the demand of
acknowledgment of one's sphere of freedom is explicit. Rather, in every
action we are implicitly demanding that others acknowledge our freedom
and we are implicitly acknowledging others' demand that we respect their
23
freedom when we acknowledge them as being persons.
The Second Pre-Condition for Genuine Freedom: Property
Not only must we be regarded as free by others, we must engage in
the activities that express, or embody, our freedom: we must own
property. It is through the possession of property, our bodies and
22Wood, Hegel's Ethical Thought, 80.
23
Violations of another's sphere of freedom are wrongs. Wrongs
are actions that fail to respect the freedom others have in virtue of
being free beings and as such are violations of abstract right. Wrongs
will be discussed in more detail later in this chapter.
41
external objects, that we fulfill the second pre-condition for realizing
genuine freedom. Hegel writes:
A person, in distinguishing himself from himself, relates himself
to another person, and indeed it is only as owners of property that
the two have existence for each other.
The very concept of freedom as Hegel conceives it necessitates the
possession of things; to conceive of oneself as a person one must think
25
of oneself as having this sphere of freedom. While a person is
necessarily formally free, this freedom counts for nothing unless that
individual possesses property through which she can realize her will.
To realize freedom a person "must translate his freedom into an external
27
sphere in order to exist as idea." Freedom "exists as idea" when it
is actualized in the material world, when a person's freely willed
choices are realized. A person can realize her will only when she has
an external sphere in which to act, and it is property that creates this
external sphere. In Hegel's words, it is "[n]ot until he has property
24
Hegel, PR section 40.
25
Some commentators have claimed that for material creatures
like us the material world is indispensable to freedom. The material
world is "a medium in which our freedom is revealed." See Sibyl
Schwarzenbach, "Rawls, Hegel and Communitarianism," Political Theory 19,
no. 4 (November 1991): 552. Without a material world in which to
realize our deliberations, we could at best be formally free; we could
be only creatures who act "thinkingly," not persons who realize genuine
freedom.
26
Peter Steinberger, Logic and Politics: Hegel's Philosophy of
Right (New Haven: Yale University Press, 1988), 116-124.
27
Hegel, PR section 41.
42
28
does the person exist as reason." Persons exist in the first place as
property owners; it is not that the ownership of property simply makes
it easier for individuals to act freely, but that property is necessary
for persons to be persons.
Using external, material objects gives my freedom existence.
Externalizing our will in things, by forming or altering them, both
presupposes and demonstrates that we have a right to do so; or at least
it makes it clear that the claim that we do not have a right to do so is
29
incoherent. Because a thing has no will of its own, it takes on or
"embodies" the will of the person who takes possession of it. In
expressing our freedom we distinguish ourselves from the world of mere
things. We can alter, use, destroy and consume those things. In so
doing, those things cease to be purposeless objects and instead take on
our purposes and intentions. Those things, Hegel claims, are the
embodiments of our will. This is only possible if the thing is truly a
will-less thing; since it does embody the will of the person that
30
demonstrates that that person rightfully owns that thing.
Because we must realize freedom to be persons, our most
fundamental right--and duty--is to possess property. We see the
necessity of ownership expressed as a duty to possess things as
property. Hegel writes:
28
Hegel, PR section 41 .
29
Alan Ryan, "Hegel on Work, Ownership and Citizenship," The
State and Civil Society, ed. Z. A. Pelczynski (Cambridge: Cambridge
University Press, 1984), 185-187.
^Hegel, PR section 44.
43
[M]y right to a thing is not merely possession, but as possession
by a person it is property, or legal possession, and it is a duty
to possess things as property
It is necessary that one act on one's right to use and take possession
32
of things for it is only in so doing that one can be a person.
Hegel is not claiming that to be a free person it is necessary
that we fulfill basic needs in order to maintain our capacity for
willing and, since material goods are the means to fulfilling those
needs, the possession of those goods is therefore necessary. In fact,
he explicitly disavows such an account. He writes:
A person has as his substantive end the right of putting his will
into any and every thing and thereby making it his, because it has
no such end in itself and derives its destiny and soul from his
will. This is the absolute right of appropriation which man has
over all 'things'....If emphasis is placed on my needs, then the
possession of property appears as a means to their satisfaction,
but the true position is that, from the standpoint of freedom,
property is the first embodiment of freedom and so is in itself a
substantive end.^
Persons, because they are by nature free, have a right to all things.
In so claiming, Hegel explicitly draws a distinction between free beings
31
Hegel, Hegel's Philosophy of Mind, trans. William Wallace
(Oxford: Oxford University Press, 1971), section 486.
32
Hegel is distinguishing his theory of property rights from one
like Hobbes's. For Hobbes, persons in the State of Nature do not
rightfully own things, they merely have things. Hobbes writes, "To this
warre of every man against every man, this is also consequent... that
there be no Propriety, no Dominion, no Mine and Thine distinct; but
onely that to be every man that he can get; and for so long, as he can
keep it." See Hobbes, Leviathan, chapter 13. It is only in a civil
state, Hobbes claims, that persons own things, for it is the sovereign's
rules that establish property rights. For Hegel a person's right to own
things is founded independent of civil society; property rights are
founded in a person's nature as a free being.
33
Hegel, PR section 44-45.
44
and things: all free beings have the right to own any thing, all things
can be rightfully owned by free beings. To deny a free being's right to
any (previously unowned) thing is to make a conceptual error: it is to
deny that that person is free, and is to deny that that object has no
34
will of its own and is unfree.
Legitimate Ownership
The process by which a person comes to own a thing is quite
simple: the first person to take possession of a thing rightfully
possesses that thing. Hegel writes:
That a thing belongs to the person who happens to be the first to
take possession of it is an immediately self-evident and
superfluous determination, because a second party cannot take
possession of what is already the property of someone else."^
This argument is immediately problematic for two reasons: first, it is
circular, and second, it only serves to raise the complicated matter of
what it is to take possession of something. Let us ignore the faulty
34
In many ways, Hegel's and Locke's theories appear quite
similar. Both found rights, property rights in particular, (as well as
the justification to punish wrong-doers) in pre-civil society. For that
reason, the significance of the differences between Locke's and Hegel's
theories is underscored. Locke gives a strictly instrumentalist
justification for the right to own material goods. He writes, "Men,
being once born, have a right to their Preservation, and consequently to
Meat and Drink, and such other things, as Nature affords for their
subsistence." Locke, Second Treatise, chapter 5. For Locke, then,
material goods are the necessary means to fulfilling naturally given
needs and desires. For Hegel, in contrast, property is "the existence
of personality", it is the embodiment of one's personhood. One cannot,
in other words, fully realize what one is unless one owns property.
Hegel, PR section 51.
■^Hegel, PR section 50.
45
reasoning and concentrate on the second matter, taking possession of a
previously unowned object.
Taking possession of a thing is accomplished "partly in the
immediate physical seizure of something, partly in giving it form, and
O / •
partly in merely designating its ownership." An act of seizure evokes
the image of a person grabbing apples off a tree or collecting acorns
from the ground. It implies the complete control and manipulation of an
object. But Hegel is aware that not all seizures are so graphic; we
cannot grasp in our hand a large tract of land or a running river. He
writes:
Taking possession is always incomplete in character. I take
possession of no more than I can touch with my body, but it follows
immediately that external objects extend further that I can
grasp....I take possession of things with my hand, but its reach
can be extended. The hand is a great organ which no animal
possesses, and what I grasp with it can itself become a means of
reaching out further. When I possess something, the understanding
at once concludes that it is not just what I possess immediately
that is mine, but also what is connected with it.^
We can seize not only what is immediately in our hand, but what is
connected to that thing, as well.
There is a distinction between seizing an object and taking
possession of an object. Seizure is incomplete; to take possession of
an object is to grasp it, but is also to willfully mark it, form it or
create it. A person "places [her] will in a thing" and thereby takes
possession of that thing. Once she has done so, her will is "embodied"
^®Hegel, PR section 54.
37
Hegel, PR section 55.
46
in that thing. In Hegel's terms, the quality of being "mine" has
existence; it is not merely an inner idea or belief or the result of
mere deliberation.
Thus rightful ownership of a thing is founded by the will to
possess, and the rightful ownership of a thing requires willful
occupancy of that object. Hegel writes:
Since property is the embodiment of personality, my inward idea and
will that something is to be mine is not enough to make it
property; to secure this end occupancy is requisite. The
embodiment which my willing thereby attains involves its
recognizability by others.
It is the mutually recognizable, external existence of the will that is
the condition constitutive of rightful ownership: property rights are
the mutual recognition of free agents acknowledging the embodiments of
their free will existent in material things. The acknowledgment by
others of my ownership of an object is not simply an acknowledgment of
my de facto possession of that object (as any animal or other unfree
being may do) but instead an acknowledgment that I have will fully--and
therefore right fully--taken possession of that object.
The notion of one's freedom being recognizably embodied in a thing
is developed by Hegel in a discussion distinguishing true possession
39
from the claims of possession made by children. Children frequently
have the "inner idea" that things are theirs. They, especially young
ones, often regard most objects within their reach as their own. Yet
38
Hegel, PR section 51 , emphasis added.
39
Hegel, PR section 51 .
47
these beliefs do not establish legitimate property rights. Thus what
separates a child's (false) belief that that thing is his from an
adult's (correct) belief that he has a right to a thing seems to be,
though Hegel does not say this explicitly, both the adult's capacity to
make declarations that can be recognized and acknowledged by other
persons as a formal will to possess and the adult's capacity to
reciprocate in recognizing the declarations of others. A child's use of
objects is more like an animal's use of objects; since neither can
reciprocate in recognizing the willful declarations of others their
declarations will not be regarded by others as the willed declarations
of a free being.
Earlier we saw that a person (or community of persons) is wronged
if others refuse to recognize her as a person because she will be unable
to properly conceive of herself as a person. Given that property rights
are likewise socially dependent in that they only exist within a system
of mutual recognition and acknowledgment, it seems that individuals who
are regarded as inferiors will likewise fail to be accorded proper
recognition of their property rights. This possibility raises a
question analogous to the one raised earlier: exactly what sort of
wrong, if any, is a person suffering when others refuse to recognize her
property rights? As before, this is not an issue Hegel explicitly
addressed, but it seems possible to construct his position. Certainly
one harm the person suffers when denied recognition as a rightful owner
of property is her resulting inability to regard herself as a being
with rights. And this failure to properly conceive of oneself as a
48
person precludes a person from living the life of a person. But more
seriously still, I think, is the indignity one suffers when something
one has produced or created is regarded as another's. In order to
sustain racist and sexist beliefs, it is vital that a society make
impossible (or denigrate) the accomplishments of those regarded as
inferior. Thus the stories, scientific discoveries and inventions
become the accomplishments of white men, or are regarded as being "on
the fringe."^® The loss of such rightful recognition, the right to
claim one's accomplishments as one's own, is a loss far worse than
theft: it is the loss of one's very being.^
Since working land and forming ideas are methods of creating
property rights, it may seem that it is the "mixing our labor" with
something that it the source of our property right to that thing. But
our labor is not, strictly speaking, the foundation of property rights,
rather labor is a recognizable expression of our will to possess, it is
42
an embodiment of our freedom. For Hegel, labor is not a commodity but
40
Although the truth does occasionally come out later, it is
very difficult to know the accomplishments of women and minorities of
one's own time. The practice of denying the property rights-holdings of
blacks was prevalent in pop music until the late 60s. Many black song
artists never heard their songs on the radio only to see the song (often
in a muted version) go to the top of the charts when recorded by a white
pop group. Little Richard watched Pat Boone's version of his song
"Tutti Frutti" see success his original (and virtually unknown outside
the black community) version never knew.
41
Implicit in the acknowledgment of a theft is the assertion
that that person is a rights holder who has been wronged; while the
losses of theft can be grave, at least others have not lost sight of the
fact that the victim is nonetheless a person!
42
Locke asserts that working land and forming ideas are methods
of creating property rights. Locke writes, "He that is nourished by the
Acorns he pickt up under an Oak, or the Apples he gathered from the
49
an expression of our humanity; it is the recognizable expression of our
43
ability to transform and produce things as only free beings can. An
instrumental view of the value of labor fails to acknowledge the value
of labor as an expression, or embodiment, of human freedom.
A World of Owners and the Ownable
Explicit in Hegel's discussion of rightful ownership is the
distinction he draws between things and persons. Hegel writes, "What is
immediately different from the free spirit is, for the latter and in
itself, the external in general--a thing, something unfree, impersonal,
and without rights.Persons are not things and thus cannot be owned,
45
but all things can be possessed. Using objects--altering, consuming,
Trees in the Wood, has certainly appropriated them to himself. No Body
can deny but the nourishment is his. I ask then, When did they begin to
be his? When he digested? Or when he eat? Or when he boiled? Or when
he brought them home? Or when he picked them up? And 'tis plain, if
the first gathering made them not his, nothing else could. That labour
put a distinction between them and common." The difference between
Locke's and Hegel's views regarding the value of labor is significant.
Locke sees labor as an alienable commodity. Its value is wholly
instrumental; one labors merely to produce or to acquire the means to
purchase the goods one needs and wants. See Locke's Second Treatise,
sections 25-51, especially 25.
43
The significance of Hegel's rejection of the claim that labor
is a properly regarded as a marketable commodity will become clearer
later (in Chapters 4 and 5) in the discussion of work as an embodiment
of one's freedom, as well as the crucial role it plays in our
development as members of our community.
44
Hegel, PR section 42.
45
Unlike Locke, Hegel does not include in his theory of property
rights provisos requiring limits on the acquisition of natural resources
such as that there be no spoilage, or that one leaves "enough and as
good left in common for others." See Locke's Second Treatise, section
27.
50
forming, declaring--are all ways by which a person can take possession
of a thing. Once it is taken possession of, the object is owned until
it is alienated. Alienation is a declaration declaiming the possession
of that thing.
So far we have characterized things as being those objects
external to persons. But such a characterization is misleadingly
incomplete, for Hegel also considers the intellectual abilities, mental
skills, knowledge and ideas of a person as things which are the property
of that person. Ideas one has thought of, insights one has, musical and
literary compositions: these are examples of non-material "objects"
which one can take possession of by "forming." Hegel acknowledges that
it is peculiar to think of one's ideas as things external to oneself for
they seem to have an "inward spiritual nature." However, ideas are also
often the objects of contracts and sold to another, just like ordinary
external things. Since they can be alienated, he concludes that they
46
are properly to be understood as things. Even a person's time, in the
sense of what he devotes to a job or project, since it can be alienated,
47
is an object he possesses.
According to Hegel the most fundamental piece of property owned by
a person is her body. This is an unfortunate way of referring to one's
body for it seems to imply that an injury done to another's body is
analogous to vandalism. But Hegel does not mean to imply that. In
^®Hegel, PR section 43.
47
Hegel, PR section 67.
51
fact, he considers injury done to another's body as a serious wrong.
Hegel writes:
Violence done to my body by others is violence done to me.
Because I feel, contact with or violence to my body touches me
immediately as actual and present. This constitutes the
difference between personal injury and infringement of my external
property; for in the latter, my will does not have this immediate
presence and actuality.
Hegel's is distinguishing between an "immediate" embodiment of a will
and a "mediated" embodiment of a will. One's body is the "immediate"
embodiment of one's will, that is nothing mediates between my will and
the deliberate and purposive use of my body. In other words, I require
no other piece of property to use my body. Other pieces of property are
"mediated" embodiments of my will. Taking possession of and ownership
of pens, books, clothing require the prior use and possession of my
body. The possession of any external piece of property is, therefore,
mediated by my body.
It seems intuitively obvious that harms inflicted against a
person's body are more serious than harms done to material possessions.
One obvious reason for this intuition is the consequentialist one that a
person suffers more from bodily injury than from the loss of material
possessions. While Hegel certainly agrees with this intuition, he
cannot (and does not) give this consequentialist justification. Instead
he claims that the degree to which the willed action denies the that
victim is a free being determines the degree of the wrong committed
against that person. The more immediately the action negates that
^®Hegel, PR section 48, emphasis added.
52
person's will, the more serious the wrong. Wrongs done to a person's
body are complete denials of that person's freedom; theft, on the other
hand, is not. Given that my existence as a person necessitates the
continued operation of this particular body (but does not require the
use of any other particular piece of property--no particular shirt,
apple, or bed is needed), any injury done to this body immediately
coerces me, immediately denies my freedom.
Although we possess our bodies, our right to our body is not like
our right to other external objects because we cannot alienate our body
the way we can other material things. Hegel writes:
Those goods, or rather substantial determinations, which
constitute my own personality and the universal essence of my
self-consciousness are therefore inalienable, and my right to them
is imprescriptible.^®
Of course it is possible to kill ourselves or sell ourselves into
slavery but such actions require the alienation of one's will and
therefore such actions are conceptually incoherent. To alienate our
bodies would be tantamount to denying that we are free agents; it would
be a denial that we are free creatures and are responsible for our
willed actions.5® Such a denial is conceptually flawed: one cannot
49
Hegel, PR section 66.
50Of course permitting another to anesthetize us or allowing
ourselves to be hypnotized are permissible. But such actions, though
they require succumbing to another's will, do not require that we
alienate our will. We surely do not, when we allow the dentist to
anesthetize us to have our wisdom teeth removed, declare that we are no
longer persons and deny responsibility or cease to identify with our
wills or our personality.
53
willfully deny that one is a free being, thus to alienate those features
that constitute one's humanity is wrong.
Property is Privately Owned
Although Hegel has so far established that individuals must own
property to realize full personality, this argument does not in itself
support his claim that property must be privately owned. What Hegel
does claim is that since it is my individual will that uses the object,
this object becomes an integral part of my individual will. It becomes
my individual object. Since my defining characteristic is my free will,
and I must have property to realize my will, I as an individual must
have individuated property. He writes:
Since I give my will existence through property, property must also
have the determination of being this specific entity, of being
mine. This is the important doctrine of the necessity of private
property; and common property, which may by its nature be owned by
separate individuals, takes on the determination of an inherently
dissolvable community in which it is in itself a matter for the
arbitrary will whether or not I retain my share in it.^
Hegel makes a distinction between what we can call "personal property"
and common property. He insists that personal property is privately
owned since the person's individual will is externally existent in that
object. However common property, land or the means of production, say,
may be owned together by separate individuals. But common property in
this sense does not establish communal property rights as we think of
them. Common property is not owned by all in virtue of being members of
51
Hegel, PR section 46.
54
the community, but instead by those individuals who have taken
possession of a share of that property. Those individuals can alienate
their individual share, just as they can any of their privately owned
property. Thus, this "communally" owned property is really privately
owned by more than one individual.
While Hegel explicitly asserts that all ownership is private, he
does not explain why communal ownership in the more traditional sense
(land, say, being owned by all in virtue of being members of that
community) is not possible. But we can infer his argument from his
discussion. Given his criterion for what qualifies as being an act of
taking possession, a community cannot "take possession" of any thing. A
will to possess is an individual will, and an individual will takes
possession of particular things. Since a group cannot will as a group,
a group of individuals cannot take possession of anything as a group.
Therefore communal property is not possible; all property is privately
owned.^
The institutions of private property in civil society are
justified because they make recognizable the possession and ownership of
material goods, not because they secure our rights to things. For Hegel
the stability property laws provide in civil society is by itself an
52
Alternatively, Hegel would reject the suggestion that the
means of production or natural resources (like land) ought to be owned
by no one, and used by all. To assert that land is unownable would be
to deny that persons are free and can rightfully own any thing, or to
deny that land is unfree and can, consequently, be rightfully owned.
Remember, for Hegel, what it is to be free is to have the right to own
any thing. By asserting that persons are free, he is claiming that they
can rightfully own all objects--including the means of production and
scarce resources.
55
53
insufficient justification for such a system. A system of property is
justified because it is an institutionalization of the principles of
right. The laws that regulate property are merely visible, recognizable
54
affirmations of what right requires. The laws are, in other words, a
codification of the concepts of right: that persons are free and have
rights to things, and that all things are ownable.
While the institution of private property in civil society
institutionalizes the mutual recognition of the freedom of persons
(thereby codifying a pre-condition for the realization of genuine
freedom), it creates a serious drawback: it is a system that creates a
class of propertyless individuals. Poverty is a social phenomenon: it
results directly from the operations of an industrialized, capitalistic
civil society. Poor people are unable to acquire property because
private property laws restrict access to the means of sustenance and
production. As a result, they are dependent on the support of others
(from other individuals or from the state).
Hegel's theory of acquisition generates great disparities of
wealth for two reasons. First, there is the contingent fact that
individuals in civil society are unequal in many respects: those with
53
Again we can see a difference between Locke's and Hegel's
theories. For Locke, the sole justification for the institution of
property rights in civil society is consequentialist: it secures
property rights established in the State of Nature.
54
Interestingly Harry Brod argues that Hegel "reverses the
means-ends relationship that obtains between property rights and the
establishment of the state in classical and liberal contractarian
theory". The state does not secure property rights, rather, property
rights secure the stability of the state. See his Hegel's Philosophy of
Politics (Boulder: Westview Press, 1992), 65-66.
56
few talents and skills, those who are mentally disabled and those who
suffer great misfortune are less able to realize genuine freedom than
are others. The unequal distribution of skills and talents among
persons becomes further exaggerated as those with a greater share of
talents acquire an even greater share of goods, which then in turn
allows them to acquire a greater level of education and skill. Second,
property rights are founded on an abstract conception of personhood.
The right to possess all things is founded on the assertion that persons
are equally free beings, that is, they equally have the capacity to will
freely. They are, in other words, equal in the abstract. Hegel denies
that the distributions of wealth that result in civil society ought to
match our equality in the abstract. He writes:
Men are made unequal by nature, where inequality is in its element,
and in civil society the right of particularity is so far from
annulling this natural inequality of skill and resources that it
produces it out of mind and raises it to an inequality of skill and
resources, and even one of moral and intellectual attainment. To
oppose to this right a demand for equality is a folly of the
Understanding which takes as real and rational its abstract
equality and its 'ought-to-be'
To assert "all are equal" in civil society is, quite simply, to speak
falsely. Persons are not equals: they have different capacities,
talents, intellects and temperaments. All of these differences create
undeniable inequalities. Of course all persons are equal in the
abstract (they are all equally formally free). But we do not live "in
the abstract" and to impose this formal feature onto a community of
varied individuals is pointless. Instead, it would be far more sensible
^Hegel, PR section 200.
57
to acknowledge these differences and inequalities and order society in
light of those differences.56
We have, then, a theory of acquisition unlimited by
consequentialist provisos. Any provisos introduced in Abstract Right
designed to off-set the contingent results of the naturally given
inequalities of individuals in civil society either contradict the
assertion that we all equally have the right to possess all (if our
proviso requires that all "leave enough and as good" to allow others the
opportunity to acquire the goods they need) or contradict the claim that
free beings have the right to own all things (if our proviso forbids the
acquisition of natural resources or the means of production to ensure
that all will be able to produce what they need).
...and Coercion
We saw that the very concept of freedom necessitates property
rights. Persons have rights to property in virtue of being persons, not
in virtue of being members of a civil state that has granted them
certain rights. The concept of right flows immediately out of the
concept of genuine freedom, likewise; the concept of wrong flows
56Although at times Hegel seems very pessimistic about the
possibility of eradicating the effects of these inequalities (poverty
resulting from unemployment in particular) he does claim that the state
should ensure that all persons not only have their basic needs met, but
are able, so far as is possible, to participate in public life.
Although it sounds strange to modern ears, Hegel thought it was the job
of the Polizei (police) to meet this need. Wood claims that in Hegel's
day the term Polizeistaat is closer in meaning to our term "welfare
state" than to "police state". See Wood's note in his translation of
Philosophy of Right, 450.
58
immediately out of the notion of genuine freedom. Right and wrong are
founded completely "in the abstract," independent of the civil state.
Wrongs are not wrongs in virtue of being violations of laws in the civil
state but violations of rights persons have in virtue of being free
beings. Hegel writes:
If the particular will is explicitly at variance with the
universal, it assumes a way of looking at things and a volition
which are capricious and fortuitous and comes on the scene in
opposition to the principle of rightness. This is wrong.^
Abstract Right sets limits on what may be done to ourselves and others
in the name of interests and personal goals. Wrongs are "in opposition
58
to" what is right. According to Hegel there are three general
categories of wrong: unintentional wrongs, acts of deception, and
crimes. Although the wrongs differ in degree of seriousness, they are
similar in that all are inconsistent with right.
The first sort wrong is the unintentional contradiction of right;
it is, in other words, a mistake or wrong simpliciter. The falseness of
such a wrong exists "from the point of view of right" but not from the
59
willer's point of view. The mistaken will "acquires the form of a
show" in that it has the appearance of rightness to the wilier, but of
course that rightness is false. Since the wilier does not know that the
will is in violation of right to her her will is coherent; it is right.
®^Hegel, PR section 81 .
^®Hegel, PR sections 83-104.
Hegel, PR section 83.
59
It is this masquerade of rightness that wrongs simpliciter take on that
Hegel refers to as "a show" or "semblance.®®
Such wrongs may result from false beliefs or from being
misinformed. These non-malicious wrongs are violations of posited
right, not abstract right.®"' Hegel writes:
This first kind of wrong [wrong simpliciter] negates only the
particular will, while universal right is respected; it is
consequently the least serious of all wrongs. If I say that a rose
is not red, I nevertheless recognize that it has a colour. I
therefore do not deny the genus, but only the particular colour,
i.e. red. Right is also recognized in this case. Each person
wills what is right, and each is supposed to receive only what is
right; their wrong consists solely in considering that what they
will is right.®^
In property disputes, for example, persons may disagree over who has a
right to use this piece of property or who rightfully owns a certain
stretch of land. But neither denies that land is a thing rightfully
owned or that the other is a person who has property rights. Therefore
neither will is in contradiction to Right. But they do disagree about
which particular person owns that thing. Matters are settled by
investigations into the facts of the matter. While there is a definite
fact of the matter whether or not I own that house, neither state of
affairs is in violation of right in the abstract. Whatever is right is
so in virtue of having been posited as right by processes adopted by my
society.
®®Hegel, PR section 82-86.
®"'Hegel, PR section 82.
C O
Hegel, PR section 86.
60
The second sort of wrong is the intentional contradiction of right
to deceive another; this is fraud. In this type of wrongdoing I create
a semblance or show to deceive another person. Unlike wrongdoers who
commit wrongs unintentionally, deceivers acknowledge right; such
acknowledgment is implicit in their will. (After all, one is not
deceiving another if one is unaware that one is saying something false!)
Hegel writes:
At this level of wrong-doing, the particular will is respected, but
universal rightness is not. In fraud, the particular will is not
infringed, because the party defrauded is saddled with what he is
asked to believe is right. Thus the right which he demands is
posited as something subjective, as a mere show, and it is this
which constitutes fraud...If the other [deceives,] a false disguise
may be given to a thing I acquire, so the contract is right enough
so far as it is an exchange, voluntary on both sides, of this thing
in its immediacy and uniqueness, but still the aspect of
universality is lacking.
Deceivers intentionally posit a wrong as right in an effort to bring
another to believe it to be right. Because the will is right from the
point of view of the person deceived, the deceived agrees to the
contract, or accepts the false promises. It is, strictly speaking, an
agreement, but one that is in opposition to abstract right. For that
reason the deceiver's will is wrong.
With the third sort of wrong-doing, the sort in which we are
primarily interested, there is no attempt to mask falsity as
rightness.®^ This wrong is an overt "coercion" of right; it is a crime.
Hegel writes:
®^Hegel, PR section 87A and 88.
RA
Hegel, PR sections 90-103.
61
[H]ere I will the wrong and make no use of even a show of right.
The other person against whom the crime is committed is not
expected to regard the wrong, which has being in and for itself, as
right. The difference between crime and fraud is that in the
latter, a recognition of right is still present in the form of the
action, and this is correspondingly absent in the case of crime.®®
A crime is an "infringement of right as right" and a "negatively
infinite judgment."®® The criminal's will is negative in that it is a
negation of the freedom of a particular person and, as such, is a
negation of right. It is infinite in that it is not merely a denial of
this or that particular person's right, but is a denial of the very
concept of right. Since the criminal coerces a particular person, she
violates that person's will. But a crime is not merely a denial of the
will of that particular person, it is also a denial of Right per se. It
is likely that the criminal's choice of victim was a matter of
convenience. The criminal chooses the person most easily victimized or,
as with terrorism and vandalism, the identity of the victim nay be
entirely unknown to the criminal. In such cases, the criminal act is
not denying that person's right but he is denying that theft, for
example, is wrong. In extending his will beyond what his rightfully
his, the criminal asserts that he is free to act as he chooses. In
doing so he violates Right.
A crime is the triumph of one will over another will. Remember
that for Hegel, willful actions change reality; not only do persons move
themselves when they act, they move, rearrange and change material
f t * ;
Hegel, PR section 83A.
®®Hegel, PR section 95, emphasis added.
62
objects--acquiring them, transforming them, alienating them. All of
these actions are assertions of power--they are evidence that I am a
free being in control of my body and of my belongings. A crime, too, is
an assertion of power. The criminal, in assaulting his victim, denies
that his victim is a free being and asserts instead that she is a thing,
an object for him to use and manipulate. His will triumphs over hers in
that his will stands as obvious evidence of his control over her. Her
will, on the other hand, is denied; as the victim she has, in a very
obvious way, lost her control over herself.
There are several features of Hegel's analysis of crime that are
significant. First, the criminal regards herself as a person with
rights and implicitly recognizes others as persons. In willing, the
criminal implicitly acknowledges her own personhood and (in doing so)
implicitly acknowledges that others are free beings also (although her
action overtly denies that her victim is a person). Second, the
criminal act is the intentional violation of right. The criminal does
not commit her act accidentally or unwittingly; she commits it
deliberately. She does not intend to do something permissible and only
afterwards realize that her will violated the right; the violation of
right is explicit in her willing. Just as persons do not "act for no
reason," they do not find that they have violated abstract right. They
act deliberately and in so doing they deliberately commit crimes. In
making clear that the criminal regards herself as a free being and that
the crime is a freely willed action, Hegel is laying the foundation for
a complete rejection of a deterrence theory of punishment, and the
63
67
establishment of a thoroughly retributivistic theory of punishment.
Third, Hegel firmly sets his theory in opposition to reciprocity-
retributivism. Remember that reciprocity-retributivism claims that
laws, which are mutually benefitting rules, advantage and burden all
members of civil society equally. Therefor, they conclude, breaking
those rules is unfair because it unfairly advantages the criminal.
Hegel makes no presumption that members of society are mutually
benefitted by obeying rules or that crimes advantage the criminal vis-a-
vis others in his community. Crimes are violations of right; whether
they advantage or disadvantage the criminal is purely a contingent
matter. By denying this fundamental assumption of reciprocity-
retributivism, Hegel is making unavailable to his theory the claim that
punishment is justified because fairness requires it. Hegel is, then,
going to have to find another justification for his version of
retributivism.
Poverty as an Injustice
Earlier we saw that political theories traditionally draw a
distinction between limitations of freedom and limitations of
capacities. These theories typically conclude that the lame person (who
does not have the capacity to climb the mountain) is very much unlike
the able-bodied person who cannot climb the mountain because someone has
imprisoned her: the first has a limited capacity whereas the second has
67
The details of Hegel's theory of punishment will be developed
in Chapter 3.
64
limited freedom. Having looked at Hegel's analysis of wrongs, I think
it would be helpful to readdress this distinction and elaborate on our
earlier claim that Hegel denies, or at least ignores, this distinction.
To begin, let us look at two cases: a person who is the victim of
a theft and a person who is poverty stricken. The first is a
straightforward case of a person whose freedom is limited, or coerced,
by the action of another. Here Hegel's claims accord with those found
in tradition political theories. However to be a person is to realize
genuine freedom. If being poverty stricken has the effect that one
cannot realize genuine freedom, then this person cannot be a person,
strictly speaking, despite the fact that she seems free since no
external impediments or wrongful actions by others limit her freedom.
If she cannot be a person, she cannot realize freedom. Thus both the
£Q
victim of theft and the poverty stricken are unfree.
It appears that Hegel has simply run rough-shod over the
distinction between limitations of capacity and limitations of freedom,
and simply asserted that there is no difference. But to made that
CO
Consider one last case: a person accidentally takes another's
property, a wallet say, believing it to be his own. Hegel would see
this case to be very much like the one whose freedom is limited by an
external impediment, the action of another. This person was not the
victim of a crime but to the extent that she is less able to realize her
will due to the loss of that property she rightfully owns, she is less
free. It is important to see that Hegel does think the wallet taker
committed a wrong. Although his will was not a denial of Right (he does
not deny that there is a system of property rights) nor was it a denial
of the freedom of the other person (he does not deny that the other
person rightfully possesses property), it was a denial of the other
person rightful possession of that particular piece of property. Such a
will, though not criminal, is wrong, albeit unintentional. Hegel, PR
sections 84-86.
65
conclusion would be to ignore a very significant difference between
these two cases: the victim of theft is the victim of crime, whereas the
poverty stricken person is not. No one intentionally violated the poor
person's right; no one coerced her will "in its external existence,"
thus no one negated her freedom. She is not, then, the victim of a
wrong. But she does suffer an injustice--not by any person(s), but
because of the arrangements of the institutions of the society in which
she lives. Poverty, claims Hegel, is always an injustice.
The injustice of poverty is that the poverty stricken person
cannot engage in the activities of property ownership that embody her
freedom and therefore she cannot be regarded by others as a person. She
cannot be a person, and cannot live the life a person ought to live. We
saw that for Hegel the aim of every person is to realize genuine freedom
and that property is the necessary embodiment of that freedom. Because
of the distributions of wealth in the society she is in, the poor person
70
is unable to realize freedom.
®^Hegel states that the problem of remedying poverty is the
question that "agitates and torments modern societies especially."
Hegel, PR section 244A. In Hegel's lectures on the Philosophy of Right
he refers to poverty as indications of a "corrupt civil society." Taken
from a reference to Hegel's lectures of 1819-1820, in Wood's translation
of Philosophy of Right, 454.
70
Although Hegel claims that individuals have a right to
property and that being poverty stricken is an injustice, he advocates a
capitalist economic system (despite its tendency to create unemployment
and poverty) for two reasons: it allows the most individual freedom and
it is a system that requires collective activity (he regards the
division of labor we see in factories as collective activity).
Capitalism is, he seems to conclude, essential to the rational state.
Hegel, PR sections 240-245.
66
What is interesting about Hegel's analysis of genuine freedom (and
consequently of his treatment of these two cases) is that he draws our
attention to their similarity: from the point of view of the person,
neither can realize what they will to do, both are unfree. It is
primarily because Hegel holds that the purpose of a political and
ethical system is to promote the realization of human freedom that what
qualifies as being a limitation of freedom differs from the traditional
view. Consequently, the focus of his political theory is on how society
71
is best organized to permit the realization of genuine freedom.
However, a practical matter is still at hand: while it is clear
that Hegel regards poverty as a social ill that ought to be eradicated
because it is a limitation on individual freedom, what about other
limitations? Suppose one is rather simple-minded. Given this
incapacity, one will be unable to realize one's will of attending the
top medical school or pursuing any intellectually demanding occupation.
The arrangements of social institutions like universities will prevent
such persons from realizing their wills. Is such a limit on one's
freedom an injustice? Is it implicit in Hegel's position that any
limitation of one's freedom resulting from the arrangements of public or
social institutions is a social injustice that ought to be attended to
and eradicated by a just state? If so, then this result would certainly
71
We'll see in Chapter 3 that Hegel's analysis of criminal
punishment is not simply to provide a justification for state inflicted
harm (as it is in most political theories), but to show that it is
through retributive punishment (and punishment only) that a state can
invalidate wrong, revalidate right and, in so doing, serve to further
permit the realization of freedom.
67
trivialize Hegel's claim that poverty is a social injustice that ought
to be (but cannot be) remedied. Hegel does not directly address this
question, but much can be gleaned from his discussion. Again, it is
important to keep one eye on what Hegel sees to be the ultimate goal of
his theory: developing a social system for civil society that promotes
the realization of individual freedom. Given this goal, limitations of
freedom that result from the system that organizes that society will be
injustices--racism, sexism and abject poverty would be such injustices.
Sickness would likewise be a social injustice were it the case that that
society could be organized differently to eliminate those conditions
that create sickness and poor health. However, were such an arrangement
not possible (because the medical knowledge was unavailable, say) it
seems that such conditions would not be injustices but rather merely
limitations of freedom. This is the way we ought to regard the
incapacity to become a brain surgeon--a limitation of freedom but not a
social injustice.
This is the beginning of a very complicated but interesting
discussion. Certainly some diseases and illnesses remain "mere"
incapacities only because the medical field fails to commit research
resources to them. Many diseases which afflict only minorities and
women would certainly be treatable or even curable were society to see
them as worth addressing. My intuition is to regard such limitations of
freedom as injustices analogous to poverty. Thus, the example of the
lame person unable to climb a mountain with which this discussion began
is more complicated than it originally appeared. If this lameness were
68
the result of a disease that could have been prevented had inoculations
been freely distributed, then it certainly seems to be a limitation of
one's freedom which is a socially inflicted wrong. However, were this
lameness the result of an unforeseeable accident and is untreatable (or
being treated the best it can be), then it seems that this lameness,
while still a limitation of freedom, is not an injustice.
Thus while Hegel does not deny that there is a distinction between
limitations of ones capacities and limitations of freedom, this
distinction has little importance in his political theory. Since the
overarching goal of Hegel's political theory is to determine what the
pre-conditions are that permit the realization of, and institutionalize
the mutual recognition of, human freedom, the source of the limitation
of freedom is of secondary importance. In the words of Isaiah Berlin,
"Without the adequate conditions for the use of freedom, what is the
72
good of freedom?"
Conclusion
We know now that the purpose of and justification for political
and social institutions is to publicly codify and validate the
principles of right, namely, genuine freedom. We have seen, too, how
this notion of genuine freedom, of realizing what one wills to do, is
the foundation of Hegel's theory of rightful ownership. The notion of
72
Isaiah Berlin, "Two Concepts of Liberty," Four Essays on
Liberty (Oxford: Oxford University Press, 1969), 124.
69
crime is also founded of this idea: a crime is a coercion of a person's
existent freedom in their property.
At the end of Chapter 1 I claimed that any adequate theory of
punishment does two things: it must keep retributivistic intuitions
intact yet at the same time it must remain sensitive to the force of the
Marxist's challenge. We are now in the position to see if Hegel's
theory of punishment can meet the first requirement. In the next
chapter, I will lay out Hegel's version of retributivism, and analyze
his justification for the retributivistic punishment of all crimes,
regardless of the social context of the criminal. We will see that
Hegel's justification of punishment rests on the claim that punishment,
as a social institution, validates right and therefore ensures the
possibility of realizing genuine freedom. It is to this argument that
we will now turn.
70
CHAPTER 3
ANNULLING WRONGS
Once a crime is committed, punishment, the infliction of injury by
the state is, according to Hegel, both legitimate and necessary. The
criminal will must be negated and right, both generally as well as the
right of the particular victim of the crime, must be validated. And,
Hegel claims, punishment does precisely that: it annuls the crime
thereby revealing the criminal act for what it is, a will "null and
void". (From now on, I will refer to Hegel's version of retributivism
as Annulment-Retributivism.) The point of punishment is not to restore
an imbalance of benefits and burdens or to remove any advantage the
criminal acquired in committing a crime (as reciprocity-retributivists
would have us think). Understanding how Hegel's theory of Annulment-
retributivism differs from Reciprocity-retributivism ultimately depends
on what Hegel means by annulment, so it is vital that we have a thorough
understanding of that concept. But first, let's see how Hegel meets a
challenge posed earlier by consequentialists, that retributivistic
punishment is no different from revenge.
Punishment vs. Revenge
Retributivists have taken great pains to meet a criticism,
typically made by those favoring consequentialist theories of
71
punishment, that claims that retributivism is merely vengeful barbarism
and that, because the theory cannot justify punishment on
consequentialist grounds, the distinction between retributivism and
vigilanteeism is unclear, if not dubious. We saw that Reciprocity-
retributivism appeals to the notion of reciprocity to meet this
challenge, but because Hegel does not build his theory of punishment out
of a social contractarian political theory, he does not have that move
available to him. However, his theory can meet this criticism and his
argument distinguishing punishment from mere revenge is not only elegant
but, I think, compelling.
The criticism we are hoping to meet is the claim that
retributivistic punishment and revenge are indistinguishable. Hegel can
distinguish between punishment and revenge, but appreciating his
argument requires an understanding of an assumption that runs throughout
his political writings, which is that society is non-atomistic. We have
earlier seen indications that Hegel resists the methodology often seen
in social contractarian political theories of analyzing social and
political terms into their smallest units (usually individual people).
Instead, Hegel insists that such a methodology cannot take into account
the "internal relations" that hold between political terms and thus is
bound to describe incorrectly social and political phenomena. The
punishment of crime is an example of such a social phenomenon that
cannot be properly understood by an individualistic (non-atomistic)
methodology. Rather than view the criminal act and punitive act as two
individual (or "abstractable") events, we ought instead to regard them
72
as events internally related to other crimes, other acts of punishment,
as well as to the legal, social and political practices and institutions
of the society in which they occur.
At first it is difficult to see the point of Hegel's rejection of
the individualistic method found in most political theories. It is also
difficult to know even what is being referred to by an "internal
relation between political terms." Therefore it will be helpful first
to get a general understanding of what it is for terms to be internally
related, for then we can look at Hegel's claims specifically.
When we say that a term has the property of being internally
related to another term, we are saying that that property is an
essential feature of the identity of that term. G. E. Moore offers a
definition of internal relations that will serve as a useful starting
point: "I propose to define what is meant by saying that P is internal
to A...as meaning that from the proposition that a thing has not got P,
it follows that it is other than A."1 So to say that a term, A, is
internally related to P is to say that A would have been different from
what it is had it not had P. It would not be A.
We have already seen that when Hegel speaks of a will, he is not
referring merely to the deliberative faculty, but to the actions and
consequences of that deliberation as well. The deliberation is
internally related to the action and resulting consequences. So
whether or not the intended action is realized affects the "identity" of
^G. E. Moore, "External and Internal Relations," Philosophical
Studies (London: Routledge & Kegan Paul Ltd., 1922), 291.
73
that will. Consider two cases. Suppose after much deliberation, I
decide to weed my garden. In the first case I succeed in realizing my
intentions. In the second, because weeding is more difficult and
tedious than I had originally imagined, I give up in frustration. While
it is obvious that in these two cases my actions (and the consequences
of my actions) differ, Hegel further claims that the wills themselves
differ. The actions committed in both cases are internally related to
their respective deliberations, therefore, since the actions (and
consequences) differ, the wills differ. Hegel's refusal to "separate"
the phases of the will is a consequence of his assertion that the
deliberative faculty is internally related to its resulting action and
consequences. To separate off (or abstract away) the "will" and regard
it as an individualizable part, analyzable independent of the actions
and consequences, is to fail to give proper value to the circumstances
the wilier is in and the social role she occupies.
Hegel also claims that persons are internally related to the
social roles they occupy, thus the roles they occupy and the relations
that hold between them and their social context are wholly constitutive
of their identities. Were a person to occupy a different social role,
she would be a different person. Likewise, the actions a person commits
are internally related to the roles that person occupies and thus to the
person herself; she would act differently were she to occupy a different
role. Furthermore, the very meaning and social significance of the
actions I commit depend on the society I am in. It is society that
provides the material resources, culture, education and vocational
74
training necessary for me to act. Society, in other words, provides the
medium of all my willing. Since all I do is internally related to the
social context I am in, my actions can be evaluated meaningfully only in
2
light of that social context.
It should be evident by now that Hegel draws a strict distinction
between what we can regard as the properly human aspects of human
nature, and the merely biological aspects of human nature. We saw that
property rights are firmly founded on our human nature--our capacity to
will freely and be recognized by others as free beings. By founding his
theory on such a distinction, Hegel can ensure that rights are
inalienable and social from the very start. But we saw that doing so
has a drawback, which is that "merely" biological needs are insufficient
to establish property claims; the fact that a person is hungry, for
example, is insufficient to found a property right to the food she
needs. If we keep this distinction between human aspects of our nature
and the biological aspects of our nature in mind, we can make better
sense of Hegel's claim that actions are internally related to their
social context. For the sorts of actions to which Hegel is referring
are not those of a merely biological nature--yawning, digesting,
sleeping--which obviously seem to be fixed across cultures (even across
species). Instead, Hegel is referring to those actions of a human
2
Kenneth Westphal refers to citizens in civil society as "social
practitioners"; their actions are responses to their social context but
that very same social context only exists because they maintain and
promote that context. They are not merely reacting to that context, but
constructing it. See his "The Basic Context and Structure of Hegel's
The Philosophy of Right," The Cambridge Companion to Hegel (Cambridge:
Cambridge University Press, 1993), 236-238.
75
nature: working, planning, producing, designing. These actions are what
they are in virtue of the internal relations they have to society. How
that society evaluates those actions and the role the person occupies
3
who commits them are what give meaning to those actions.
The fact that Hegel is not an atomist in regard to the human self,
social roles and actions, has a significant impact on how he analyzes
punishment and bases his distinction between punishment and mere
revenge. We know that an act of punishment is internally related to the
individual who wills it and to the social practices of that society;
likewise that individual who punishes is internally related to the
social role she occupies. Thus what that act is, how we assess its
appropriateness as a response to the will of another individual, will
depend on not only the will of the criminal, but the social role that
person occupies as well as the legal and social practices of that
society.
In the abstract there is no difference between an act of
punishment and an act of revenge. Both are acts that inflict injury on
a person who had previously committed a wrong will. It is only in a
social context that a distinction between these two actions can be made.
Because of the internal relations that exist in society, the Punisher is
essentially different from the Vigilante. Since the roles they occupy
in society differ, their actions essentially differ.
^Actions regarded as work in one society may be regarded as the
activities of individuals with confused or misguided ideas in another.
Surely our society's refusal to regard prostitution as a job stems more
from a refusal to value such activities rather than from a principled
notion of work.
76
To understand Hegel's point, let us consider two cases and see how
Hegel would analyze them. In the first case, suppose Smith steals what
rightly belongs to Jones. Jones's rights were violated, and Smith has
willfully assumed rights he does not have. Suppose Jones catches Smith
and subjects him to injury. It may seem, given that the justification
for punishment is the negation of the criminal's will, that Jones' act,
which denies Smith's right, nullifies the criminal will and validates
freedom. But has it?
So abstracted it is not possible to determine whether this is
punishment or merely revenge. True punishment, an act committed by the
state in response to a crime, is only possible within a social context.
Punishment depends on the existence of an institution of justice:
impartial judges, a jury system, a recognized and enforced legal system,
say. Such systems cannot exist without individual occupying certain
roles: judges, jury members, legal advisors and interpreters. All these
participants engage in activities that have meaning in virtue of the
existing social system. Thus the verdict and sentence given by the
judge are only intelligible as such when viewed within the context of
4
the whole legal practice. The actions of the punisher who metes out
4
Rawls makes a point similar to Hegel's when discussing rules of
practices in his "Two Concepts of Rules." He argues that such rules are
logically prior to particular cases, that is, that those rules define
the offices, moves and offenses of the practices. He writes, "Now what
is meant by saying that a practice is logically prior to particular
cases is this: given any rule which specifies a form of action (a move),
a particular action which would be taken as falling under this rule
given that there is the practice would not be described as that sort of
action unless there was the practice. In the case of actions specified
by practices it is logically impossible to perform them outside the
stage-setting provided by those practices, for unless there is the
practice, and unless the requisite proprieties are fulfilled, whatever
77
the judge's sentence, too, are only intelligible within this context.
Thus it is only within this social context that their wills can be
viewed as acts of punishment appropriately responding to the will of the
criminal.
It is compatible with Hegel's theory that punishment be handled by
institutions other than impartial judges and a jury by one's peers. The
institutions could be trial by democratic council, church elders, trial
by ordeal or combat. Whatever the system, what is essential is that it
consistently acknowledge crimes as violations of right, and mete out
appropriate punishment in response to those acts. Of course there may
be consequentialist reasons for preferring a system of justice that uses
appointed judges to one that uses trial by ordeal, but neither system is
founded in Abstract Right. Abstract Right requires that the
institutions of punishment be consistent and public, but these are for
conceptual reasons, not consequentialist. To fail to try and punish a
criminal publicly would be, in effect, to fail to acknowledge that her
will was criminal. To punish similar crimes differently would be to
assert that the actions had conceptual differences that merit different
treatment; if no differences exist, different treatment is unwarranted.
one does, whatever movements one makes, will fail to count as a form of
action which the practice specifies. What one does will be described in
some other way." Thus an act of punishment for example, a case Rawls
specifically addresses, is punishment only when done in a way specified
by a rule (or system of rules) of an established and recognized
practice. See "Two Concepts of Rules," 25, emphasis added. Hegel is
claiming this and, of course, much more. Hegel argues that acts of
punishment are (non-individualistic) social phenomenon that are
internally related to the social context in which they occur. An act of
punishment is what it is not simply because it is defined by rules, but
because of the entire social context in which it takes place.
78
We may find that trial by ordeal rarely (if ever) correctly determines
the guilt or innocence of the person being tried and for that reason
choose to reject such an institution.
Compare a second case to the previous one. Here we have a
criminal who is determined to be guilty by a jury, a judge sentences her
to a prison term and state employees make certain that she is imprisoned
for her full term. Such a case is one of true punishment, not mere
revenge: the criminal's will is negated by the wills of others acting
within a publicly recognized legal system. This social context gives
meaning to their wills, meaning that would disappear were that context
lost. Although an act of revenge is a negation of a person's will, it
cannot annul the person's criminal will or validate right. Because the
vigilante will occurs outside of a system of justice, it is merely a
second criminal will that requires invalidation itself.
Although Hegel claims that the meaning of both the criminal will
and the will of the punisher depend on their social context, it is
important to emphasize that the punishment of the criminal is fully
justified in Abstract Right. Hegel is not claiming, as Hobbes does,
that it is only in civil society that one can coherently talk of
property rights and crimes.^ Property rights are firmly grounded in
" ’Hobbes famously said that the State of Nature is a state of war
of "every man against every man." Hobbes writes, "To this warre of
every man against every man, this is also consequent; that nothing can
be Unjust. The notions of Right and Wrong, Justice and Injustice have
there no place. Where there is no common Power, there is no Law: where
no Law, no Injustice... It is consequent also to the same condition, that
there be no Propriety, no Dominion, no Mine and Thine distinct; but
onely that to be every mans that he can get; and for so long as he can
keep it." See his Leviathan, chapter 13.
79
Abstract Right and, thus, violations of those rights are certainly
crimes, even outside of civil society.® Civil society provides a
context in which rules of property and a system of justice are codified
and publicized, and it is only within a system that is recognized as a
system of justice that particular responses to those crimes can annul
the negative will and, thereby, function as punishment.
Thus if we want to discuss the justifiability and appropriateness
of an act of punishment, we must evaluate that act within its social
context. To abstract it from that context or to evaluate the will as
something independent of the wilier or her social situation would be to
remove the meaning from that act. Since both the criminal will and the
will of the punisher are internally related to their social context, to
strip away that context as "irrelevant" or "contingent" would be to
render their wills empty of meaning.
Punishment as Annulment
The annulment of crime is a complex issue because punishment
serves several purposes. Let's begin working through the complexities
by stating the fundamental principle of this theory of punishment. Most
®It is somewhat misleading to refer to actions "outside of civil
society" for, according to Hegel, there are no such actions. Persons
are in a social environment from the very start. Although his political
theory is structured like many social contractarian theories in that it
begins with Abstract Right and ends with Civil Society, Abstract Right
is not really comparable to the States of Nature found in Social
Contractarian political theories like Hobbes', Locke's or Rousseau's or,
most immediately for Hegel, Fichte's. Hegel's main objection to these
social contractarian theories is, ironically, that they found the state
on relations of abstract right, in particular, property relations.
80
simply stated, it is: The annulment of wrong is an educative practice
that is publicly and consistently exercised that validates right (and
invalidates wrong) and functions analogously for all wrongs. I shall
7
break this principle into four parts, and examine each part in turn.
(1) The annulment of wrong is an educative practice...
The annulment of wrong is educative in the sense that punishment
informs members of that society (including, of course, the criminal and
the victim) that the criminal's willful assertion that she is free to
violate another's rights is wrong. Punishment also reasserts what the
proper limits of rightful behavior are. Punishment is a demonstration
of the requirements of that society: in singling out and injuring
criminals, punishment vividly differentiates acceptable action from
unacceptable action and thereby teaches members what the values of that
society are.
Hegel is offering a conceptual reason for punishment: in order for
members of a society to learn "what is done" (and in order the terms
"right" and "wrong," "crime" and "punishment" to have meaning for them),
punishment must intelligibly differentiate criminal wills from non
criminal wills. Punishment is an essential part of the educational
process necessary for learning and understanding right and wrong. Just
as a criminal will is an assertion (albeit a wrongful one), an act of
7
At this point I should make it clear that when I say that this
is the principle of Annulment-retributivism, I am describing the way
punitive practices ought to be in order to be legitimate. Of course
actual practices do not always live up to this standard.
81
punishment is an assertion. It asserts: that act is a crime, it is a
willful wrong that is not tolerated in this society, and our intolerance
is demonstrated by our infliction of injury on the person who asserted
that criminal will. After experiencing punitive practices, members of
that society will regard wills met with punishment as wrongs. in the
face of a new crime they will expect (and demand that it be met with the
appropriate punitive response. And so long as the practice of
punishment demonstratively distinguishes criminal wills from non
criminal wills (by punishing crimes and failing to punish non-crimes),
"crime," "non-crime," "right" and "wrong" are terms that are coherent
and meaningful to the members of that society.
Hegel is not offering a consequentialist justification for
punishment. He is not claiming that by identifying criminal acts as
wrongs society "teaches the criminal a lesson" or "makes an example" of
the criminal for others to see (as deterrent theorists claim the purpose
O
of punishment is). What conclusions the members of that society in
fact draw from an act of punishment will turn out to depend on their
9
relationship to that society. Punishment by itself cannot ensure that
O
When I say that Hegel's theory is educative I do not mean to
imply that his theory is like Jean Hampton's Moral Education Theory of
Punishment. Hampton claims that the purpose of punishment is to teach
and morally reform the criminal. Hegel does not make such a claim;
although punishment certainly may have that effect, that result is
purely contingent.
I will argue in Chapter 4 that in order for one to see an act
of punishment as punishment one must have already internalized the
values of that society and have experience with the punitive practices
of that society. I will argue in Chapter 5 that if one is alienated
from one's society, one will not regard an act of punishment as
punishment.
82
members will learn to identify properly right and wrong, but it is an
essential part of the process of learning right and wrong.
(2) ...that is inflicted publicly and consistently...
It is vital that punishment be a public practice that is
consistently applied. Were punishment inflicted secretly it would not
be possible for members of that society to know that the criminal act is
regarded as such by the state. Suppose a bank teller is killed during a
bank hold-up. The crime has numerous witnesses, the family and friends
of the victim are certainly aware of the teller's murder. Suppose, too,
they know who committed the murder. What if our criminal was tried and
punished secretly--a very small group of people carry out the punishment
and are sworn to secrecy, no records are kept of the proceedings and no
information is leaked to the newspapers. In fact, no one knows that our
murderer was punished. What is the result of this? Is the criminal's
will negated or not? It seems clear that there would be uncertainty in
the minds of those who know of the murder and expect punishment. They
are waiting for the state to deny of the criminal's assertion that he
can rightfully abuse the teller's rights and, as far as they know, no
such denial is made. The only conclusion for them to draw is that the
teller in fact had no such right and that the "murderer" (and now there
is some doubt as to the appropriateness of that term) was correct in
asserting that he can abuse the teller. Imagine, now, that all crimes
are punished secretly. It hardly seems plausible that we could conceive
of ourselves as having rights (or that we could regard violations of
83
what we believe to be our rights as crimes) if we never see violations
of rights denied.
Likewise, were criminal acts punished arbitrarily or randomly,
then the terms "crime" and "punishment" would be dubious indeed. A
coherent conception of "crime" requires that responses to all acts that
we regard as crimes be similar, at least to the extent that the crimes
are then consistently separated from non-criminal acts. Random or
inexplicable injury inflicted by a state cannot be regarded as
punishment, but instead must be regarded as mere harm inflicted by a
whimsical and unjust state. For example, if two murders are similar in
degree of wrong, then the criminals must be punished similarly. If they
are not, if one criminal is sentenced to death and the other given five
years with the possibility of early parole, then those acts are marked
1 0
as two different acts, despite the fact that they are not different.
1 0
This point should be intuitive enough. The judicial system in
the United States is coming under increasing criticism for the differing
treatments of white criminals and black criminals. Blacks consistently
receive harsher sentences, and are punished more often, than are whites
for similar crimes. (Whites serve fewer years in jail for killing
blacks than blacks do for killing whites. Also, blacks serve fewer
years if they kill blacks than if they kill whites.) If blacks are
being punished more harshly for the very same crimes than are whites,
then punishment is not taking place, but something else. That is, the
practice is not serving the educative purpose of marking crimes
according to their degree of seriousness, but instead, it seems, is
marking the crimes committed by blacks as more dangerous than those
committed by whites in virtue of being committed by blacks. While I
cannot hope to correctly interpret the messages behind the practices, I
think Hegel's Annulment-retributivism is a very useful theory for
explaining the wrong of these inconsistent social practices.
84
(3) ...that validates right (and invalidates wrong)...
In marking an act as criminal, punishment both validates right and
invalidates wrong. In Hegel's terms, right becomes "actual" when wrongs
are negated. We saw earlier that a crime is the willful assertion by
the criminal that she can legitimately abuse her victim. So long as the
crime remains unpunished and remains unidentified as a crime, the denial
of the victim's rights remains in effect. The criminal's will creates a
"reality": it establishes her rightful use or, more accurately, abuse of
the victim as well as the rightness of the victim's lack of rights.
Although the criminal will is wrong (the criminal cannot rightfully
abuse another person), the assertion nonetheless a reality that must be
annulled. For so long as the criminal's assertion is not denied
(annulled), she does, in a manner of speaking, have that right. She can
abuse another (and her action has just proven that fact). Punishment
both negates the reality this crime created and acknowledges the
existence of the victim's rights. Again, a failure to punish crime is
an ipso facto validation of the violation of the victim's rights. And
since crime is a denunciation of not only the particular victim's rights
but of Right in general, the state, in punishing crime, is not only
revalidating the right of the particular victim, but of right itself.
(4) that functions analogously for all wrongs.
We saw in chapter 2 that there are three sorts of wrongs: wrongs
simpliciter, acts of fraud and crimes. Although these wrongs differ in
degree of seriousness, they are similar in that they are all
85
"inconsistent with right." Consequently, the correction of all wrongs,
whether it be the correction of a mathematical mistake, a lie or a
criminal act, functions analogously. That is because, very broadly
speaking, all corrections establish that a wrong has been committed and
reaffirm what right is. Hegel writes:
Wrong is a semblance... and through its disappearance, right
acquires the determination of something fixed and valid...Whereas
right previously had only an immediate being, it now becomes actual
as it returns out of its negation; for actuality is that which is
effective and sustains itself in its otherness, whereas the
11
immediate still remains liable to negation.
In this passage Hegel is referring to wrongs generally speaking; right
becomes "actual" and "more effective" when wrongs are negated.
Of course Hegel does not claim that all rights are to be annulled
in the same way, by the same punitive act. Because wrongs vary in
degree of seriousness, it follows that the acts of annulment should vary
to "fit the crime". We do not want pocket-picking to be punished as we
punish murder because pocket-picking is not as serious a wrong as murder
is, and to clearly establish the difference, we must clearly distinguish
our responses.
Similarly, wrongs vary in sort. Therefore we must keep the
practices that annul crimes distinct from those that annul acts of fraud
and unintentional wrongs. Wrongs simpliciter, moreover, seem to require
Hegel, PR section 82A, emphasis added. The point Hegel is
pressing, the relation between actuality and effectiveness, is not as
clear in English as it is in German. Here Wirklichkeit is translated as
"actuality" and wirken as "effective." In German, the conceptual
connection between these two words is more obvious.
86
no injurious response at all, but instead just corrections. Hegel makes
this point in a brief passage:
No penalty attaches to civil and unintentional wrong, for in such
cases I have willed nothing contrary to right. In the case of
deception, however, penalties are introduced, because it is now a
matter of infringements of right.^
The upshot of the claim that all wrongs are annulled analogously is that
we must broaden our understanding of the annulment of wrong and see it
as the correction of any sort of wrong. And the denials of a wrong can
very tremendously, just as the wrongs we can commit vary tremendously.
So far this analysis of Hegel's theory of punishment has been
rather abstract and I think, for the sake of clarity, it will be helpful
to work through the details of a few cases. We need to compare three
different sorts of cases: first, one in which only the criminal knows a
crime has been committed, second, one in which the crime is known, but
the criminal is not, and third, one in which both the crime and the
criminal are known, but the criminal is not punished.
Let's look at the first sort, an unknown crime. Suppose one day a
bank employee realizes how easily she could embezzle funds from customer
accounts. After all, she tells herself, she is the main computer
programmer responsible for writing the program that ensures that
checking account balances properly adjust to credits and charges. All
she would have to do is move small amounts of money from each account
into her own account, until she acquires a tidy sum. Since the amounts
stolen from each individual customer is so small, chance of discovery is
"*^Hegel, PR section 89A.
87
remote. So she puts her plan into action and, as she suspected, no one
notices the losses and she is rich.
What, according to Hegel, are the effects of this crime? Even if
those robbed are unaware of those wrongs and are not injured by the
loss, certainly they were wronged. But the really significant change is
in the sphere of freedom of the criminal. Her crime is the assertion
that she can take another's money. It is an embodiment of her will of
power over other persons. She has power over others she should not
have, power that ought to be denied. And so long as her crime is not
negated, she, in effect, does have that right and she will regard
herself as having that right.
Now let's look at the second sort of case, a known crime but an
unknown criminal. These sorts of crimes are certainly common enough.
Suppose our soon-to-be victim leaves his car in a parking lot before
heading to work. He comes back at the end of his day and discovers his
car is gone. There are no witnesses (or at least none who believe they
saw an act of theft) and no physical evidence. In short, the thief will
not be caught. Again we need to ask, what are the affects of this
crime? As in our last case, the criminal has asserted power over his
victim; his act denies that the car rightfully belongs to another, but
instead is rightfully his to take. Unlike in the last case, police
officers, witnesses and friends of the victim (and, of course, the
victim himself) denounce the criminal's assertion. The all agree that
the act was a crime, that the victim was wronged. However, by
themselves, those denouncements are insufficient to negate the
88
criminal's will and revalidate the rights of the victim. After all, his
car, a piece of property he claims is an embodiment of his will, is
gone. So long as the criminal is not caught and not punished, his
assertion of power over our victim remains in effect.
Let us now look at the last case, one in which the crime is known,
the criminal is known, but the criminal is not punished. Suppose a
famous and very wealthy sports hero kills his wife and a friend of hers.
There is ample physical evidence to give probable cause for arrest so he
is arrested and charged with murder. Despite his motive, lack of alibi
and the overwhelming evidence to tie him to the scene of the crime, the
jury finds him charming and believe his lawyers' claims that he is the
scapegoat of a racist, if not hopelessly negligent, police and judicial
system. He is declared innocent and the crime remains unpunished. In
both this case and the last one, the crime is known. And in both,
punishment does not take place. What is the difference between the
cases? (Why does this case bother us so much more than the other?)
I think we find the difference between the two when we remind
ourselves of Hegel's claim that the practices of public institutions
(like the criminal courts) give meaning to the terms "wrong" and
"crime," meaning far more important for establishing right than spoken
words. Look back at the second case: there the police officers listened
to the complaint of the victim, made a report and promised to do their
best to find the criminal. Admittedly, any efforts are likely to be
futile, but it was acknowledged that a wrong was committed. In this
second case, the same recognition of the wrong occurred, in fact a
89
person was even charged with murder and tried. However, here we also
see how expensive lawyers can bewilder jurors, how the typical person
serving jury duty cannot appreciate the standard of "reasonable doubt,"
and how an American hero can avoid punishment by claiming to be a victim
himself. Any acknowledgment that a wrong was done is outweighed by the
act of acquittal. In claiming him to be innocent, out courts have
sanctioned his acts. This hero can murder, he has clearly asserted his
power over his ex-wife and the judicial system (despite the
prosecution's efforts) has not only failed to annul his criminal will,
it has validated it.
One criticism made against Annulment-retributivism is that this
whole idea of annulling crime is extremely dubious: if to annul
something is to "erase it," then punishment cannot annul crime since
punishment cannot make it the case that the crime did not occur.^ I
think this criticism rests on a fundamental misunderstanding of Hegel's
14
concept of annulment. Hegel does not claim that punishment erases the
1 3
Ted Honderich makes this criticism in Punishment: The Supposed
Justifications (New York: Harcourt, Brace & World, 1969), 35-39. The
criticism usually goes like this: marriages can be annulled (declared
never to have taken place) but nothing can make it the case that a crime
did not occur. Therefore punishment cannot annul crime. It is true
that annulling a marriage is very unlike annulling a crime. Unlike when
two parties divorce, when a marriage is annulled, the two parties have
the rights of persons who were never married--neither can claim alimony
or child support (in fact, until the 50s or so, children of marriages
that were later annulled were thereby declared illegitimate). But of
course a declaration of annulment does not "change the past" either.
Court records will still show the marriage records as well as the
records of annulment. See Homer Clark The Law of Domestic Relations in
the U. S. (St. Paul, Minn.: West Publishing, 1978).
1 4
I think the source of the misunderstanding is the term
"annulment" itself. It is an unfortunate choice of words to translate
"auferheben" (which, literally translated, means to raise up or to bring
90
crime. The past cannot be altered and therefore such a claim is absurd.
To annul a crime is to alter the criminal will so as to reveal that will
for what it is: a will that is contrary to right. What changes is not
the event that took place but the status of that criminal will:
punishment changes a criminal will from an existent assertion of power
to an invalidated statement.
Throughout this analysis of Annulment-retributivism we have
assumed that punishment necessitates the infliction of harm. But at
this point we might question this assumption: after all, if all we are
really doing when we punish is identifying crimes as wrongs it is
unnecessarily barbaric to insist that we mark those acts with injury.
To avoid all the unpleasantness that punishment typically incurs we
might simply prefer that the state make public announcements denouncing
1 5
criminal activities. Our denouncements would identify that a wrong
had been committed and that the victim was improperly treated, but would
not harm the criminal in any way. We would have the publicity and
consistency that Hegel requires without inflicting injury on the
criminals.
A problem with this suggestion is that denouncements cannot annul
crimes. This is because by themselves denouncements do not
out) because to English speakers it implies erasure or removal.
Auferhebung simply does not mean that to German thinkers.
^David Cooper asks this question in "Hegel's Theory of
Punishment," Hegel's Political Philosophy, ed. Z. A. Pelczynski
(Cambridge: Cambridge University Press, 1971). I think Steinberger's
claim that denouncements not only fail to invalidate wrong, but in fact
validate wrongs is correct. See Steinberger's Logic and Politics, 126-
137.
91
differentiate criminal wills from non-criminal wills and therefore
denouncements cannot identify crimes as crimes. To see this point
consider the following series of events. A man kills his wife. Our
denouncer brings the guilty party to a press conference and issues the
following public statement: "John Doe killed his wife Jane Doe. Killing
a person, of course, is a failure to respect that persons rights. Since
Ms. Doe was a person, she was wronged. John Doe does not, contrary to
his willful assertion to the contrary, have the right to kill any
person, including Jane Doe. I hereby declare Ms. Doe's rights valid,
and the criminal will null and void." It seems that we have properly
annulled the crime by identifying it as a wrongful assertion of John
Doe's, and (in doing so) revalidated Jane Doe's rights. But to respond
to a crime with such a denouncement is in fact to respond with two
responses. The first is the explicit statement that "killing is wrong."
This statement draws a distinction between the rightful treatment of a
person and wrongful treatment. The second response is implicit. This
response marks the criminal will as a will like any non-criminal, as a
will that is not punished. This response denies the distinction between
the rightful treatment of a person and wrongful treatment. For
according to this second response both crimes and non-crimes are alike
in that they are to be treated alike: they are actions that are
permitted without punishment.
To make matters worse, we are not simply contradicting ourselves
with two conflicting responses when we merely denounce crime, but we
are, in fact, validating crime. By failing to punish the crime, we are
92
validating the criminal will--despite our overt statement denouncing its
validity. How can this be? Because the decisive mark is our implicit
response, the toleration of the crime and the withholding of a punitive
response. The decision to withhold punishment creates a reality that is
"more real" than is the declaration that denounces that crime.
This idea that there are levels of reality and the failure to
punish a crime creates a reality "more real" than that created by our
verbal announcements admittedly seems strange. Nonetheless I think
there is something very compelling about this idea. It is difficult to
take seriously the assertion that an action is wrong if society does not
demonstratively mark that act as wrong by punishing it--even if it
explicitly denounces that action. It is likewise difficult to take
seriously the assertion that a person has a right not to be physically
assaulted, for example, if society does nothing to demonstratively
acknowledge that right. Mere declarations by legislators are
insufficient; only the punishment of the assaulter will satisfactorily
establish those rights. Many feminists have made this point (though
using other terms) in citing the difficulties women have in protecting
themselves from, and seeking punishment for, physically abusive spouses.
They have argued that although marital rape violates written laws, it is
a practice tolerated by the courts and is, for that reason, a valid
practice in this society. The practices of the courts, their failure to
prosecute or inflict punishment, are "more real" than are the rules that
forbid the actions. Consequently, although the rules state that women
93
have a right not to be abused, so long as those rules are not enforced
with punishment, those rights are not actualized. They are empty words.
Now, the appropriate question at this point is this: why must our
response to the criminal be painful? Admittedly we cannot treat
criminals just like non-criminals, for that surely would make our
insistence that there is an important difference between the two
incoherent. But we have other options available to us. Instead of
imprisoning or fining we could reserve a special set of painless (and
stigma-free) responses to go with our denouncements. Thus we would be
both explicitly and implicitly marking crimes as acts different from
non-criminal acts.
That punishment be painful is an important feature of retributive
theories of punishment. It is, I think, the most essential assumption
of any version of retributivism, an assumption that is not usually
defended with much vigor. One defense of this assumption is that
punishment must eliminate any undeserved advantages the criminal has
accrued in committing the crime. Pain, loss of liberty typically, is
the most effective way to eliminate such advantages.” *® I do not think
this justification, typically made by reciprocity-retributivists, really
captures the true character of retributivism. The problem with this
justification is that it saddles the theory of punishment with a
” * ®Murphy defends such a justification for the infliction of
injury when developing his version of Reciprocity-retributivism. See
his Retribution, Justice and Therapy.
94
1 7
questionable analysis of crime. If Hegel is correct in claiming that
a crime is an assertion of power over another person, then a crime may
advantage the criminal vis-a-vis other members in that society, or it
may not. If the criminal is not advantaged as a result of committing a
crime, then the infliction of injury is undeserved. The possibility
that injuring the criminal may be undeserved makes the painfulness of
punishment a contingent matter--it depends on the particularities of the
crime committed. But that seems to fly in the face of everything
essential to retributivism. If retributivism requires anything, it
requires that punishment be painful. Given these problems with this
justification, we need to look elsewhere to explain Hegel's assumption
that punishment be painful.
Hegel does not explicitly defend this assumption, but I think a
defense can be constructed on his behalf. It is true that reserving a
special set of treatments to use only in response to criminal wills
would both implicitly and explicitly differentiate criminal wills from
non-criminal wills. The problem with such a practice, I think, is that
it would fail to identify the criminal will as a wrong. Members of that
society would know murder, for example, to be different from charity
because acts of charity are rewarded and acts of murder receive a
certain sort of "special treatment." But they would not know that
murder is regarded as a wrong, as an act that deserves disapproval and
righteous indignation. Nor would they regard the "special treatment" as
1 7
See Chapter 1 for a fuller analysis of my criticisms of the
reciprocity-retributivist's misguided analysis of crimes.
95
a declaration of disapproval. They would, in other words, regard the
marking of a criminal will as descriptive, but not normative.
There is another, very closely related, retributivistic idea that
may further help to explain the retributivist's insistence that
punishment be injurious. Retributivists draw a connection between doing
good and being worthy of happiness, and the converse of doing wrong and
1 8
being unworthy of happiness. Kant makes this point explicitly. While
Hegel does not explicitly endorse this claim, it is consistent, I think,
with his theory of punishment. Kant writes:
The sight of a being who is not graced by any touch of a pure and
good will but who enjoys an uninterrupted prosperity can never
delight a rational and impartial spectator. Thus a good will seems
to constitute the indispensable condition of even being worthy of
happiness. ®
A criminal does not deserve happiness. Inflicting injurious punishment
ensures (as well as humans are able to ensure any consequence involving
free persons) that the criminal will not enjoy happiness. What the
criminal does deserve to feel is remorse and shame. These (very
painful) emotions ought to result from the realization that he has
willfully wronged another person. Painful punishment, insofar as it can
cause this realization and bring about those emotions, is what the
criminal deserves.^®
18
Although doing right means one is worthy of happiness, doing
right is no guarantee that one will be happy. Likewise, doing wrong may
bring one happiness, but it may not.
19
Kant, Grounding for the Metaphysics of Morals, Ak. 393.
20
Again, given that criminals are free persons, the
retributivist cannot (and does not) claim that the point of punishment
is to ensure that criminals experience certain feelings. If the
96
These two ideas, that the judgment of a wrong action requires
disapproval and that the criminal deserves to feel remorse, are, I
think, at the very heart of retributivism. They also explain the
retributivists insistence the punishment be painful--even in the face of
the deterrence theorist's objection that the infliction of painful
punishment is pointless (because the criminal is incorrigible or because
she is already guilt-ridden). To the retributivist, the point of
inflicting pain is not to bring about any particular consequence(s),
inflicting pain is simply what it is to respond appropriately to a
criminal will.
Annulment-Retributivism is still Retributivism
Although Hegel's Annulment-retributivism is very different from
the Reciprocity-retributivism discussed in chapter 1, it is
paradigmatically retributivistic in that it has as foundational claims
all the claims mentioned in our earlier discussion of Hart's "crude"
model of retributivism. It might be helpful to list the essential
claims again and see how Hegel would fill out the details of each.
Again, the claims are:
1) A person may be punished if, and only if, he has
willfully done something wrong.
2) The punishment must in some way match, or be the
equivalent of, the wrongness of the criminal act.
3) Punishment is inherently just.
criminal is incorrigible and cannot feel remorse or shame after
experiencing the punishment that fits his crime, we are not free to
continue our punishment until he does feel pain! Nor are we free to
subject his to treatment that is not punishment but that would bring
about shame and remorse (neurosurgery, for example).
97
And, since Hegel's is, to use Hart's terminology, a "severe" version of
retributivism,
4) The failure to punish a crime is to permit an
injustice to exist.
Let's begin with a discussion of what it is to merit punishment
according to Hegel's theory of punishment.
(1) A person may be punished if, and only if, he has willfully done
something wrong.
Hegel has little tolerance for justifications of punishment based
on deterrence or any consequentialist concerns therefore he takes it as
obvious that one cannot punish a person who has not committed a crime.
Not only would punishing the innocent fail to annul anything (since
there is nothing to annul), but that act could not even be conceived of
as punishment. It must instead be viewed as a threat or act of
coercion. And threats or acts of coercion used to prevent or deter
crime are themselves wrongs. Hegel writes:
To what extent is the threat [of punishment] compatible with right?
The threat presupposes that human beings are not free, and seeks to
coerce them through the representation of an evil. But right and
justice must have their seat in freedom and the will, and not in
that lack of freedom at which the threat is directed. To justify
punishment in this way is like raising one's stick at a dog; it
means treating a human being like a dog instead of respecting his
honor and freedom...and any legal codes which may have originated
in this doctrine [of deterrence] consequently have no proper
foundation.^
^Hegel, PR section 99A.
98
A theory of punishment based on deterrence is misguided because it
relies on a false conception of persons because it assumes that persons
are unfree--are, in fact, not persons--and must be treated like animals
and controlled with threats of harm or with offers of reward.
Punishment should not be viewed, as utilitarians do, as an
unfortunate but necessary evil used to control or prevent injurious
human behavior. Theories of punishment primarily intended to deter
crime are "superficial" and are simply beside the point. Hegel writes:
[T]he precise point at issue is wrong and the righting of it. If
you adopt that superficial attitude to punishment, you brush aside
the objective treatment of the righting of wrong, which is the
primary and fundamental attitude in considering crime.^
The purpose of punishment is to right the wrong, not to cure the
criminal, morally improve her or to prevent other crimes. Even if it
turns out that something other than punishment succeeds in accomplishing
these goals (as indoctrination, frontal lobotomies or "brain washing"
may) they are not substitutions for punishment, and punishment would
nonetheless be necessary to right the wrongs that the criminals have
committed. Thus Hegel's theory of punishment rules out the punishment
of innocents, children and mentally incompetent, unintentional or
accidental wrongs and dangerous or socially undesirable non-criminal
acts. Again, though inflicting harms to deter such acts may be
effective, it cannot function as punishment.
77
Hegel, PR section 99.
99
(2) The punishment must in some way match, or be the equivalent of, the
wrongness of the criminal act.
While all crimes are alike in the sense that they are all
violations of another's rights, they differ in the degree to which those
rights are violated. Hegel writes:
It is only the will existent in an object that can suffer injury.
In becoming existent in something, however, the will enters the
sphere of quantitative extension and qualitative characteristics,
and hence varies accordingly. For this reason, it makes a
difference to the objective aspect of crime whether the will so
objectified and its specific quality is injured throughout its
entire extent, and so in the infinity which is equivalent to its
concept (as in murder, slavery, enforced religious observance,
etc.) or whether it is injured only in a single part or in one of
its qualitative characteristics, and if so, in which of these.22
Remember we saw earlier that rightfully owned property is an embodiment
of one's will. We also saw that one's body is an immediate embodiment
of one's will, whereas objects like cars, money or clothing are less
immediate embodiments. Thus the seriousness of a crime will vary to the
degree to which it is a violation of an embodiment of the victim's will:
murder, slavery and enforced religious observance injure the entire
embodiment of the will. Theft, which injures only a part of the will,
differs quantitatively from murder. Thus murder is a more serious crime
than is theft and, consequently, requires stricter punishment.24
23
Hegel, PR section 96, emphasis added.
24
A common criticism made against the retributivist claim that
the punishment much match the crime is that that claim requires that we
rape the rapist, torture the torturer and repeatedly murder the
multiple-murderer. Since such punishments are patently absurd (if not
impossible) the claim is absurd. Murphy defends this claim by pointing
out that no version of retributivism is committed to claiming that we
punish the criminal with the identical act. Murphy writes, "Surely the
principle jus talionis, though requiring likeness of punishment, does
1 00
Crimes are all the same in the sense that they are all violations
of right, hence they must all be treated as crimes and must all be
punished. But since crimes vary in degree, it follows that we must
punish them to varying degrees. To treat them as identical acts, to
respond to each with an identical punishment would be to fail to
recognize them as wrongs of different degrees. To punish crimes
differently is to mark them as being different from one another. And to
25
do so marks a difference in the rights that have been violated.
The particularities of institutions of punishment vary from
society to society reflecting particular socio-historical circumstances.
The fact that Hegel holds that the criminal will is internally related
to its social context explains why he refuses to present an explicit
26
typology of crimes. Because the internal relations that hold in a
society determine what a crime is, different societies may coherently
regard the "same" criminal act quite differently. In our society,
trespassing, entering a person's home uninvited, is a serious wrong.
The trespasser is endangering the homeowner. However, it is easy to
not require exact likeness in all respects. There is no reason in
principle (though there are practical difficulties) against trying to
specify in a general way what the costs in life and labour of certain
kinds of crime might be, and how the costs of punishments might be
calculated, so that retribution could be understood as preventing
criminal profit. And it is certainly possible retributively to rank
punishments so that the most serious punishments are matched with the
most serious offenses." See Murphy's Retribution, Justice, and Therapy,
79.
25
Peter Steinberger, Logic and Politics, 138.
26
See Steinberger's discussion of this point in his Logic and
Politics, 136-139.
imagine a society in which such acts are minor, tolerable wrongs,
corrected with a stern warning or small citation. Such a society is not
mistaken, according to Hegel, it simply values certain pieces of
property differently from us. Likewise, Hegel regards the act of
punishment to be internally related to its social context and therefore
does not claim that any particular punishment is necessarily the
appropriate response to a particular crime. What one society regards as
an act of punishment, another may not. He writes:
How any given crime is to be punished cannot be settled by mere
thinking; positive laws are necessary. But with the advance of
education, opinions about crime become less harsh, and today a
criminal is not so severely punished as he was a hundred years ago.
It is not exactly crimes or punishments which change but the
relation between the two.^
The appropriate punishment for a crime cannot be determined in the
abstract. Thus whether or not the act of punishment is appropriate to
the crime depends on what each society deems as appropriate. So long as
each society clearly and consistently distinguishes types of crimes from
one another by scaling the punishment to "fit the crime" (to fail to do
so would be to fail to adequately acknowledge the conceptual differences
between the varying criminal wills), whatever form the punishment takes,
28
it is appropriate to that crime.
^Hegel, PR section 96A.
28
Some feminists argue that the punishments of crimes against
women--rape, sexual harassment, pornography--are not severe enough to
"match" the crime. In order for those punishments to be just, they
claim, the punishments must match the severity of the crimes committed.
1 02
(3) Punishment is inherently just.
When a rational being violates right, she establishes and gives
external existence to a universal law (a permission to injure another's
body) that only she recognizes. So long as her crime remains
unpunished, her law has existence and the crime is valid. Hegel states:
The sole positive existence which the injury possesses is that it
is the particular will of the criminal. Hence to injure [or
penalize] this particular will as a will determinately existent is
to annul the crime, which otherwise would have been held valid, and
29
to restore the right.
Punishment annuls wrong. Insofar as punishment serves this function, to
revalidate right and invalidate the will of the criminal, it is
legitimate. Since punishment annuls wrong and validates right it is "in
and for itself just."
In freely willing the crime, the criminal freely wills to have an
equivalent injury inflicted on her. It is, in fact, her right to be so
injured. Hegel writes:
The injury [the penalty] which falls on the criminal is not merely
implicitly just--as just, it is eo ipso his implicit will, an
embodiment of his freedom, his right; on the contrary, it is also a
right established within the criminal himself; i.e. in his
objectively embodied will, in his action. The reason for this is
that his action is the action of a rational being and this implies
that it is something universal and that by doing it the criminal
has laid down a law which he has explicitly recognized in his
action and under which in consequence he should be brought as under
his right.
Hegel, PR section 99.
30
Hegel, PR section 100, emphasis Hegel's.
1 03
Not only are we not acting impermissibly when we punish a criminal, we
are fulfilling her right. When she acts, she lays down a "law" that she
recognizes. (Certainly her victim did not recognize or approve of that
law!) In being punished, the criminal is being "honored as a rational
being," not treated as a means to social order or as a dangerous
31
animal. For Hegel, a right is "any existence that is the existence of
the free will," so when he says that a criminal has a right to be
punished, he is saying that in punishing the criminal we are acting in
"the right," her right, that she has established when giving volition to
her criminal will.
The criminal cannot rationally object to being punished for the
act she has committed since in so acting she has explicitly expressed
her approval of such treatment. Of course, she may claim that she
approves of the act of abusing others but not herself. However, such a
will is incoherent. All persons, in so far as they are free beings, are
identical. What she has willed is an assault on the sphere of freedom
of a person, and in doing so she has willed this upon herself. Thus her
crime gives consent to the violation of her own sphere of freedom to the
same degree that she has violated another's.
(4) The failure to punish a crime is to permit an injustice to exist.
Hegel claims that punishment is not only legitimate, it is
necessary. To fail to annul a criminal will is to give validity to that
willful assertion of power over the criminal's victim. Hegel writes:
^Hegel, PR section 100.
1 04
A crime alters something in some way, and the thing has its
existence in this alteration. Yet this existence is a self-
32
contradiction and to that extent is inherently a nullity.
and:
Retribution is inflicted on the criminal and so it has the look of
an alien destiny, not intrinsically his own. Nevertheless
punishment, as we have seen, is only crime made manifest, i.e. is
3 3
the second half which is necessarily presupposed by the first.
Hegel claims both that the criminal will has existence yet is a
"nullity." Although it has existence, it does not have positive
existence because it is self-contradictory. However, the criminal will
cannot be simply ignored as nonsensical or incoherent for it alters
"something in some way." That is to say, the will establishes the
criminal assertion of power as valid and the rights of the victim as
invalid. Punishment is therefore a necessary response to a criminal
will. It is the "second half" of that will, the proper and complete
manifestation of that will that makes vivid the incoherence and
wrongness of the first half and thereby establishes wrong as invalid and
right as valid. Thus right requires that the criminal will be negated.
A criticism made against Hegel's theory of punishment is that
while Hegel has successfully shown that punishment is permissible, he
has not (and cannot) provide a non-consequentialist reason for punishing
34
the criminal. This criticism rests on a misunderstanding of Hegel's
concept of annulment.
33Hegel, PR section 97A.
33Hegel, PR 101 A.
34
Wood makes this criticism against Hegel's theory of
punishment. He writes, "If criminals will their own punishment, as
1 05
We saw that the criminal will is a demonstrative violation of
right. We also saw that so long as crimes remained valid, right is
being denied. Since punishment denies the validity of crimes,
punishment is necessary for the realization of right. People cannot be
persons with rights unless wrong is invalidated and right is validated.
Hegel is not required to resort to a consequentialist justification for
the practice of punishment because his Annulment-retributivism
successfully gives a positive argument for the necessity of punishment,
one that flows directly from his concepts of freedom and right, the
concepts on which his entire political theory is founded.
Conclusion
Although Hegel's theory of punishment is retributivistic, his
Annulment-retributivism is very unlike the Reciprocity-retributivism we
looked at in chapter 1. This is not because Hegel denies any essential
claims of retributivism, but instead because he develops his theory of
punishment to accord with his non-atomistic conception of the human
self, social roles and actions and to accord with his non-social
contractarian political theory. We saw that an act of punishment cannot
be evaluated simply as an individual response to an individual
(wrongful) act, instead it must be viewed as an act within a social
Hegel's theory says, then it follows that the state violates no right of
theirs by punishing them; they are punished in accordance with their own
rational will. It does not follow, however, that the state has acquired
any positive reason to punish them. In particular, it does not follow
that the state in any sense fails to honor a criminal's rational will if
it chooses not to punish the criminal." See his Hegel's Ethical
Thought, 115-118, emphasis added.
1 06
practice. The annulment of a crime is a social practice that is
necessary not because fairness requires it, but because right requires
it.
The claim that punishment marks crime as crime, and thereby
negates wrong and validates right, is still incompletely explained. For
the success of the annulment of wrong depends very much on the social
context of the practice of punishment. In order for the practice to
function as punishment (and not merely as harm inflicted on injurious or
undesirably behavior) that practice must be understood by the members of
that society as a system of punishment. In the next chapter I will
determine the necessary preconditions that must be in place and
functioning properly in order for members of that society to regard the
practice of punishment as punishment. For the question remains: How do
I come to regard the infliction of harm as a part of my society's
institution of punishment?
1 07
CHAPTER 4
LEARNING THE MEANING OF PUNISHMENT
In Chapter 3 we saw that Hegel's Annulment-retributivism
rests on the claim that punishment is a social practice that has
meaning in virtue of the social context in which it takes part. A
member of that society, an "insider, so to speak, will regard the
responding injurious act as punishment, not a contingent harm.
Yet any "outsider" observing an act of punishment will see merely
an injurious act inflicted on a person who previously committed a
likewise injurious act. Why is it that the very same action has
meaning to the insider that is lost on the outsider?
In this chapter I will argue that in order for persons to
regard responses to crimes as punishment, they must have been (and
continue to be) socialized by that society. At the very least,
they must know the punitive practices of their society. But far
more importantly, they must identify with those practices. To
achieve such integration with one's own society, a person must
engage in the activities that instill the society's values. And
the sort of activities that best instill those values are
interdependent activities, in particular those activities done
with members of one's society outside one's circle of family and
friends. The most likely environment for such experiences is the
1 08
workplace. It is at work that one both learns to identify with
right. And it is at work that one encounters regularly the public
invalidation of wrongs (and the public validation of right)
analogous to those we see inflicted by the state in response to
crimes.
Before we can begin to determine how work could provide the
environment for such an important socialization process, we need
first to step back and look at our relationship to society. Hegel
claims that humans are essentially social creatures at home in a
community characterized by group activity.” * For our present
purposes, Hegel's non-atomistic conception of civil society has
three significant implications: first, individuals have identities
in virtue of engaging in activities in a social context, second,
individuals realize a more human life if they participate in
interdependent activities and, third, although all interdependent
activities teach the participants how to be functional members of
that group, activities done with members other than family and
friends best teach the participants how to be functional members
of their society. Let's begin with the first claim.
1Michael 0. Hardimon analyzes this idea of a social being
"at home in the world." He argues that "a modern social world is
a home if and only if it makes it possible for people to actualize
themselves as individuals and as social members." The world is "a
home" if it is possible for people to regard their "social
membership as an "essential part" of their individuality"; the
world is, in other words, not alien or "other." See his Hegel's
Social Philosophy: The Project of Reconciliation (Cambridge:
Cambridge University Press, 1994), 102-109.
1 09
Identities are Community Dependent
2
Our interests are supplied by the society we are in. Our
interests, like our identities, roles and actions, are internally
related to the society we are in. In claiming that our interests
are a reflection of the community we live in, Hegel is denying the
assumption often found in individualistic theories that we are
beings with pre-formed self-conceptions that we bring to our
social activities. We are not, as social contractarians have
argued, individuals who come to the bargaining table with
identities and interests and cooperate in social activity
primarily to satisfy those individual interests and needs.^ Hegel
ridicules such an individualistic conception of society by
referring to it as a "spiritual animal kingdom."^
2
It seems obvious that my interest in being a computer
programmer is wholly dependent on my social context--I could not
possibly have such an interest if I did not live in a society with
computers, regarded computer programming as a job, and so on. But
what about my interest in eating when hungry, surely Hegel must
acknowledge that that is an interest independent of my social
context? Actually, according to Hegel, one's interest in
satisfying hunger (when properly described) is internally related
to one's society. Hegel would deny that one experiences pain by
itself, stripped on any social context. What one experiences is a
pain that we value and remedy--and our valuation of that pain and
our remedy for that pain are actions in a context. What is the
remedy for hunger? Not ants or cockroaches. Bread, a common
enough food, is made by certain methods and those methods are
determined by the society one is in. Objects, actions, desires
and interests all have a meaning determined by the context in
which they exist, and that context is our society.
^See my discussion in Chapter 1 of David Gauthier's claim
that our identities are wholly independent of our social context.
4
Hegel, Phnomenology of Spirit, trans. A. V. Miller
(Oxford: Oxford University Press, 1977), paragraph 1397.
110
According to Hegel, activities are not merely means to ends;
rather their value is that they are evidence of our freedom and
constitutive and formative of our personalities. They transform
our identities and, consequently, our self-conception. To see
Hegel's point, consider how our interests are affected by our
actions. Before we act, we have a certain conception of
ourselves--who we are, our evaluation of our personality, and we
have a set of goals chosen in light that self-conception. It is
with this self-conception that we act: but the activity itself
throws new light on our chosen ends and, as a result, on our self-
conception. Suppose I consider myself a fairly modern woman and
eschew those activities that I regard as being "traditional" for
women. But a friend of mine, who has no such biases, is an avid
knitter and enjoys having an afternoon tea and a talk while
knitting. I, too, like to socialize and for the sake of a
friendly conversation and shared experience, I consent to let her
teach me to knit. Of course, at the outset of this experience I
consider knitting to be the very antithesis of who I am; it is not
something I have done, not something I would ordinarily want to
do--it is not, in other words, "me." However, as I engage in this
activity with my friend and experience it (rather than just
deliberate about it as I had done in the past) I discover much to
my surprise that I enjoy knitting. What is more, I actually come
5
Here Hegel is talking about activities of a human nature,
not those of a biological nature. See Chapter 3 for a further
discussion of this point.
to have an entirely new conception of the activity and of myself.
As I make plans, and then modify those plans in light of
unexpected obstacles, I change. Engaging in this activity
transforms me in a way that mere deliberation about this activity
cannot.® All activities play this role in the formation and
transformation of our identities and of our self-conceptions.
Our connection to our society is further strengthened by the
fact that the very meaning of the activities we engage in depends
7
on the social context in which we engage in them. Briefly,
Hegel's argument is that activities are internally related to the
social context in which they are, thus one's activities can only
be evaluated meaningfully in light of that social context. We
®I should point out that Hegel is not making the claim we
see in Dr. Seuss's Green Eggs and Ham, that in trying something we
will necessarily find that we like it. It was certainly possible
that I could have hated knitting rather than enjoyed it. The
point is instead that it is only in light of actually engaging in
the activity that I can accurately assess it and determine whether
or not I have an interest in engaging in it. And, furthermore, it
is as a doer (in this case a knitter) that I give evidence of my
purposes and decisions. While on the one hand, Hegel's
observations seem self-evident, on the other it is difficult to
know exactly what conclusions we are at liberty to draw from this
argument. Is the fact that I have not engaged in certain
activities by itself sufficient reason to experiment? Can I have
a firm conception of myself as a moral agent if I have never
engaged in certain immoral actions? Hegel is not making the
Sartrean claim that we have no essence and that who we are is
simply the actions we have committed. Rather, the significance of
the point is that it is as a doer that we transform and develop
our identities. Although we are not merely deliberators, I do not
think Hegel would deny that we are capable of morally evaluating
action through deliberation alone.
7
See Chapter 3 for a further discussion of this claim of
Hegel's.
1 1 2
cannot "abstract" an action (or a practice) away from the society
in which it takes place and expect to be able to evaluate it--
whether to determine its ethical worth or simply to determine its
usefulness.
Activities are the way humans express their freedom since
when we act we produce, we alter and transform nature to meet our
needs and purposes (and whims and wishes!). Only free beings can
transform nature to suit their purposes. Humans express their
freedom when transforming the material world by producing an
environment and material goods that suit their interests.
Productive activities best express our freedom and are proof of
our worth and are, consequently, a source of human dignity.
Animals, in contrast, cannot modify their environment to suit
their freely chosen goals and interests. Thus the activities of
animals are not expressions of a free nature and are not worthy of
O
respect or dignity. Think, for instance, how radically different
a person's home is from a bird's nest. A home is genuine evidence
of what its owner is like as a person--the colors, the furniture,
the use she makes of each room--all these features are material
O
Animals do alter their environment. Beavers build dams.
Ants farm seeds and control the humidity and temperature of the
nursery of their colony so the eggs can develop properly.
However, such activities are not freely chosen or engaged in in
light of a self-conception on the part of the beaver or ant. Of
course if it turns out that our beliefs about non-human animals
are false and they are free (as it certainly seems conceivable
with non-human primates), then their activities would have value
as expressions of freely chosen, purposive activities.
1 1 3
expressions the owner's interests and the activities in which she
9
engages.
A Human Life is a Life of Interdependent Activities
Of all the activities we engage in, those that best express
genuine freedom are interdependent activities. In becoming a part
of a group we can more effectively accomplish goals that we cannot
realize alone. But the value of engaging in group activities is
more than the utilitarian one of efficiency. As a member of a
group we learn to work with others. When we must cooperate with
others we must deliberate with others about which practices are
best for us, which best organize our activities or best permit us
to realize the group's interests.^® And in engaging in these
q
I think the fact that we criticize people who let their
homes "go to ruin" is strong evidence that Hegel is on to
something important about humans. Hume is wrong to say that such
criticisms are expressions of aesthetic displeasure. Rather, the
criticism stems from the disapproval of the person who created
that ruin. Rather than be the embodiment of noble and dignified
activities, that home embodies apathy, slovenliness or
uncreativity.
"*®It may seem paradoxical that Hegel denies that a group
can have a will while at the same time claiming that it can,
nonetheless, have needs. I think we can make sense of Hegel's
talk of group interests if we use an example. Individuals need an
education, but no individual gua individual needs a public school
system. However an educational system would meet the needs of the
group. Thus it is in each individual's interest to establish and
maintain that educational system. The status of their individual
willings have not changed. They will as individuals (each
contributing her share of labor to maintain this public resource),
not as a group. Thus it is possible to will individually to meet
group needs and interests. (See Chapter 3 for a discussion of his
argument that because all wills are individuated there can be no
common property in the normal sense of the term.)
114
group activities we are transformed: we come to value the group's
interests and needs and pursue the group's ends for their own
sake. Let's look at these claims more closely.
Humans have numerous and complex material needs. It is
obvious that we can most effectively meet those needs by
establishing a division of labor with others to increase our
productive output. Thus the initial motivation for cooperation
with others is, not surprisingly, to situate oneself to better
meet one's own material needs. In a functionally successful
cooperative, the members see engaging in the activities that
realize group needs as important. (A group in which the members
disbanded to pursue their own individual interests whenever they
pleased cannot be thought of as a group successfully pursuing
group needs.) But since activities that realize group needs are
beneficial to the group primarily, and beneficial to the
individuals only contingently, to succeed as a group the
individuals must learn to see the goals of a group as being prior
to and more important than their individual interests. A feature
of cooperatives with a division of labor that ensures that the
individuals will value group needs is that working with others
brings about our ever increasing dependence on them. Hegel
writes:
The universal and objective aspect of work consists, however,
in that [process of] abstraction which confers a specific
character on means and needs and hence also on production, so
giving rise to the division of labour. Through this
division, the work of the individual becomes simpler, so that
his skill at his abstract work becomes greater, as does the
1 1 5
volume of his output. At the same time, this abstraction of
skill and means makes the dependence and reciprocity of human
beings in the satisfaction of their other needs complete and
entirely necessary. ' 11
Once we engage in a system of reciprocity (which is how Hegel
regards capitalism) our skills become so specialized that we find
that we cannot easily separate from that system and continue to
meet our needs. (At least, we certainly cannot meet them easily.)
Thus, paradoxically, a highly developed division of labor
excellently meets each individual's needs (with each perusing her
own needs indirectly), yet each individual becomes poorly equipped
to meet her own needs directly. The result of this dependence is
that we are forced to switch our focus from our own needs to the
needs of the group (the company or university, say). We quickly
realize that our own success entirely depends on the success of
the group. Thus the needs of the group become, in a very real
sense, my needs. It becomes my aim to show up at work on time, to
work carefully and effectively, to produce a product that others
will want to buy.
Of course after one realizes that the fulfillment of group
needs is the fulfillment of one's own needs, one must also see
that fulfilling group needs fulfills the needs of all the other
members of that group. What is good for oneself is good for all
the others in that group. Hegel writes:
In this dependence and reciprocity of work and the
satisfaction of needs, subjective selfishness turns into a
11 Hegel, PR, section 198, emphasis added.
1 1 6
contribution towards the satisfaction of the needs of
everyone else.^
Through engaging in interdependent activities individuals learn to
how be contributing, responsible members of a group: each learns
how to reconcile her individual interests to the interests of the
group and, in doing so, learns what it is to work for the good of
13
the group.
It may seem from what Hegel has said so far that engaging in
the activities necessary to fulfill group obligations can only
hamper one's freedom and, therefore, engaging in group activities
comes at the cost of realizing freedom. After all, obligations to
fellow employees or family members are usually fulfilled at the
cost of us pursuing our individual interests. And it seems
particularly unlikely that we as individuals are freer in any
ordinary sense of the term when we realize interests we have in
virtue of being a memoer (among thousands, perhaps) of a group.
1 2
Hegel, PR, section 199, emphasis added.
1 3
When I say that one "reconciles" oneself to group
interests I do not mean by that one resigns oneself to those
interests. To say that one is reconciled to the goals of one's
society or work place, for example, is to say that one affirms
those goals. It is a mistake to think that Hegel claims that one
can reconcile oneself to whatever that social practices are in
one's society. In fact, he explicitly denies this. He often
criticizes Greek and Roman life as systems that make
reconciliation impossible. It is because modern, capitalistic
states value individual freedom yet require interdependent
activity that Hegel thinks it is the best economic system for
persons. Hardimon makes the distinction between freely
reconciling oneself to a public practice and resigning oneself to
the practices of one's society in his Hegel's Social Philosophy:
The Project of Reconciliation, chapter 1.
(Does it really seem plausible that the chair of a philosophy
department is freer in attending an important meeting than when he
is home playing with his model trains, his hobby and passion?)
While it is certainly true that there will be conflicts between
our many interests and duties (between our familial and vocational
interests, say), I think Hegel would object to characterizing the
fulfillment of duties we have in virtue of being a member of a
group as activities done at the cost of freedom. Instead, the
sort of freedom one realizes when freely engaging in group
activities is a better, more human, sort of freedom than is
realized when one realizes one's individual interests.” *^
What Hegel is saying sounds initially very strange if not
frightening. It seems that he is saying that in order to be a
properly functioning member of a group we must relinquish all our
individual interests and act only for the sake of that group.^5
But he is not saying this. To see his point, it may be helpful to
think of an example. A family is made up of individuals who each
1 4
This point sounds very much like Rousseau's claim that
we are freer when pursuing the general will than we are when
pursuing our particular will. Rousseau famously writes, "Thus, in
order for the social compact to avoid being an empty formula, it
tacitly entails the commitment--which alone can give force to the
others--that whoever refuses to obey the general will will be
forced to do so by the entire body. This means merely that he
will be forced to be free." Jean-Jacques Rousseau, On the Social
Contract (Indianapolis: Hackett, 1987), chapter 7.
15
It is no wonder that Hegel has often be cited as the
origin of Nazism. To see how inaccurate an assessment of Hegel's
politics this is, see Shlomo Avineri's Hegel's Theory of the
Modern State (Cambridge: Cambridge University Press, 1972).
1 1 8
have personal interests, however, they also have interests in
virtue of being a member of that family. Every family, like every
community, has principles the members try to act on and goals they
try to attain. Were each family member to act only for her
personal interests, it would be an extremely dysfunctional family.
We may even conclude that it is not a family at all, but just
several people living together who just happen to be biologically
related. What it is to become a properly socialized member of
one's family is to learn identify with and value the principles
and goals of one's family.'*® When members of a family act for
group needs or interests, needs or interests they have only in
virtue of being members of that family, they are not only
compromising or setting aside their individual interests. Rather
they are acting on other interests they themselves have, interests
that when realized more fully and completely express the freedom.
Society is a group (like a family) and individuals find that they
have interests in virtue of being members of. And it is precisely
because society is so large and impersonal (unlike families) that
individuals must engage in group activities so they can learn to
identify with and value the principles and goals of that
1 7
community.
" * ®While the analogy between the state and the family has
its limits, I think the point that one learns to become a member
of a family just as one learns to become a member of one's
community is compelling.
1 7
So far I am talking about the nature of groups
generally, not only about just or "well-ordered" communities.
According to Hegel a just civil society is a rational community,
Although a result of engaging in group activities is that we
transform and come to have values and pursue ends we did not
identify with or value before, Hegel does not deny that persons
can freely affirm or disaffirm the principles that regulate the
groups they are in (be that group a family, a circle of friends,
our workplace or our society as a whole). We can, of course, act
and think independent of others and freely disaffirm the values of
that group if we deem them to be unjust or wrong. A person is,
then, independent of her society, yet at the same time a person's
capacity to realize freedom is very much dependent on that
society. Charles Taylor describes well the paradox of the fit
that is, one that best permits the actualization and mutual
recognition of freedom and is organized around principles
consistent with right. Other societies that permit the
actualization of human freedom less completely are nonetheless
"valid" communities if they have customs and laws that its members
believe have the practical effect of realizing freedom. Slavery,
for example, coerces of the free wills of the enslaved. Such an
institution is wrong (enslaving another is clearly a crime) but
may nonetheless be "valid." Hegel writes, "Slavery occurs in the
transitional phase between natural human existence and the truly
ethical condition; it occurs in a world where a wrong is still
right. Here, the wrong is valid, so that the position it occupies
is a necessary one." See Hegel, PR section 57A. The validity of
an institution is independent of its rightness or wrongness; an
institution's validity depends on socio-historical circumstances,
whereas its rightness or wrongness depends on its relation to
Right. Even slave societies, though having institutions clearly
at odds with Right, are nonetheless composed of organic social
institutions with mutually interdependent roles from which its
members acquire social roles and, as a result, identities. The
validity of slavery comes from the confidence the members of that
community have that that institution is the proper one for them.
However, as those members come to realize that such an institution
is at odds with what right requires, it ceases to have validity.
between the independence and dependence of human freedom. He
writes:
The freedom of the bare individual is thus a very
circumscribed and shadowy thing. But what is more, man as a
cultural being only develops a mind and purposes of his own
out of interchange with others; the very aspiration to
individual freedom is nurtured on this interchange, and can
be dulled and perverted by it. So that integral freedom
cannot be attained by an individual alone. It must be shared
in a society which sustains a culture that nurtures it and
institutions which give effect to it. Freedom seems to
require both individual independence and integration into a
larger whole.
I think we can now begin to see why Hegel claims we must learn to
be social beings. We do not come into this world capable of
identifying with group needs or able to reconcile our particular
interests to the interests of the group. While one's individual
needs may be self-evident, group needs certainly are not.
Furthermore, we must come to see those ends as worth pursuing,
even at the cost of our own immediate individual interests.
An Interdependent System is a Normative System
The most significant feature of participating in an
interdependent system with others, for present purposes, is our
experience in the establishment and perpetuation of a system of
norms that regulates the behavior of the members of that group.
All groups require norms to determine what behavior is acceptable
and what is not. A family, for instance, needs normative
1 8
Charles Taylor, Hegel (Cambridge: Cambridge University
Press, 1975), 78.
principles regulating meal times, bathroom use, cleaning and
repair of the house, use of others' belongings, and so on. People
simply cannot live together and realize their family goals if
there are no norms establishing what behavior is expected of its
members, and what behavior is unacceptable by its members.
Once a person sees the good of the group as a worthy end, it
is inevitable that she will regard other members of the group who
contribute towards that end as praiseworthy and those who fail to
1 9
contribute deserving of criticism. She will expect others in
the group to work for the good of the group and disapprove when
they fail to do so. But a normative system requires more than
praise and disapproval. It requires practices that annul wrongs
and validate right. It requires, in other words, punishment.
As we saw in Chapter 3, punitive practices vary tremendously
because of the enormous variety of wrongs persons commit.
Punishments inflicted on family members differ from those
inflicted at work, which are different still from those inflicted
by the state. So far, nothing I have said indicates that the
invalidation of wrongs that takes place by the state in response
to crimes is of greater significance than the invalidation of
1 9
Hegel writes, "The ethical disposition within this
system is therefore that of rectitude and the honor of one's
estate, so that each individual, by a process of self-
determination, makes himself a member of one of the moments of
civil society through his activity, diligence, and skill, and
supports himself in this capacity; and only through this mediation
with the universal does he simultaneously provide for himself and
gain recognition in his own eyes and in the eyes of others."
Hegel, PR section 207.
1 22
wrongs that takes place in the home or among friends. But there
is a difference and it lies in the fact that the normative system
of civil society involves far more people and is less
idiosyncratic than are the systems in families or among friends.
The punitive practices of the state establish "what is done" in
civil society, whereas the punitive practices of my family
establish "what is done" in my family only.
Simply in virtue of being a small group of individuals with
whom we are intimately acquainted, family norms (and the punitive
practices that validate those norms) can appear to the members of
20
that family to be idiosyncratic. Because we know our fellow
family members so well, we cannot help but regard them as the
particular individuals they are, motivated by their particular
idiosyncratic character traits and personality quirks. This will
effect our ability to regard their responses to our wrongs as
punishment rather than the mere infliction of injury. For
example, suppose a teenager lies to her parents. The parents
discover this wrong and punish it by withholding privileges the
teenager normally enjoys (talking on the phone to friends, say)
for a week. The infliction of this punishment is a personal,
intimate act. All the members know each other, and the wrong-doer
may regard her punishment the result of idiosyncratic features of
20
Members of a family may also conclude that normative
principles apply to members of that group only. I may think that
the rule that I always ask before using another's belongings
applies to Andersons only and that non-Andersons do not merit such
consideration.
1 23
her parents. She may convince herself that had she different
parents, she would not have been treated in this way. She may
then conclude that she had not really done anything wrong at all
and that this is not punishment, but instead t..e contingent
infliction of injury by cruel, over-bearing parents. So long as
the teenager regards the injury as contingent rather than a
necessary response to her freely willed wrong, it is not clear
that she will regard the negation of her will as punishment,
rather than simply as the infliction of harm.
We know that a properly socialized member of civil society
not only knows which acts are wrong and which are right, but
regards wrong acts as wrong, and right acts as right.
Furthermore, she regards the infliction of punishment as the
negation of a wrong and not, as our teenager does, as the whims of
a cruel and over-bearing (or perhaps merely idiosyncratic and
unpredictable) state. Learning to identify with the punitive
practices of the state requires that we engage in activities that
take us outside our circle of intimates, and into civil society.
Work activities are the most obvious examples of such activities.
It is at work that one encounters regularly the public
invalidation of wrongs and validation of rights most like those we
see inflicted by the state in response to criminal activity. The
significant result of this educational experience being is that a
person properly socialized through work experiences will regard
1 24
the social practices of her society as being coherent and valid,
not alienating or "other."
Compare the punishment of our teenager to the punishment of
an employee working for a large cooperation. This wrong-doer is
caught falsifying his time-sheet and is fired. While this
punishment identifies the wrong committed as a wrong, and is
inflicted (let us suppose) by a person the wrong-doer knows, this
situation differs from the teenager case in that the environment
is less personal than a family is. Remember we saw that while the
teenager may conclude that lying is wrong, she may also conclude
that her punishment was an act stemming from the particularities
of her parents rather than from the necessary relation of the
wrong she committed and the punishment she received. While it is
possible that our employee come to the same conclusion, it is less
likely. Let's suppose this employee has been with this company
for many years and is well-aware of company rules and practices.
During his years of employment there he has seen many employees
fired for falsifying time-sheets. Those fired have been from
different departments and have been fired by different people.
Consequently our employee cannot (reasonably) conclude that it is
a result of particular person's (idiosyncratic) personality traits
that those who have falsified time-sheets have been fired.
Instead he will see that it is company policy that requires that
they be fired. Company policies are general policies that apply
to all employees working for that company; policies do not change
1 25
21
to accommodate particular individuals. Once he recognizes his
wrongful act as a violation of a company policy, and recognizes
his being fired as the standard response to policy violations of
that level of seriousness, he must see that his punishment is the
necessary--and appropriate--response to his wrong.
Both the punishment of workers and the punishment of family
members are negations of willfully committed wrongs. The
difference lies in how well the practices teach us to be
functional social beings in a civil society. Family practices, in
virtue of applying only to a very small group of individuals
(sometimes as few as two) simply cannot adeguately teach a person
to be a social being in a civil society. Work activities, in
virtue of requiring involvement with a larger group of people,
more adequately teach a person how to be a social being in a civil
society and, consequently, can better teach us to recognize the
infliction of punishment by the state as a necessary and
appropriate response to crime than can family activities.
I think this point applies even if one works with a very
small group of people, or for a family business. Even the
environment in a "mom and pop" store run by a couple who employ
only their children is less personal than their home. As a
21
Family policies, on the other hand, do tend to be
individual specific. Parents may buy an expensive gift for one
child and not another simply because the one wants that thing so
badly. The distribution of resources may, on the other hand,
reflect the health needs or talents of the children. The division
of labor may reflect the particular desires of the members.
1 26
family, they can live by just about any principles they choose (so
long as those principles are not criminal). If the parents choose
to reward rudeness and sloppiness in the home, they may. But as
owners of a business, they have customers who are outside their
family circle and who will judge their work activities (the
customers will judge their standards of pricing and service, and
the cleanliness of the store, for example). And the owners must,
if they want their business to flourish, bend to the demands of
the public: they cannot reward a cashier who bad-mouths customers-
-even if that cashier is their own child on whom they would
ordinarily dote, nor can they reward sloppiness and laziness, even
if they would be indifferent to such behavior in the home.
Let's look at a paradigm case of punishment, a case in which
the criminal is properly socialized and that he regards the
punishment he receives as the negation of his criminal will.
Suppose Joe Schmoe assaults and batters his wife. Joe is not
mentally or psychologically defective in any way, he is a moral
agent capable of freely willed action. Joe was not drunk at the
time, nor was he under the influence of hypnosis. His wrong was
an intentionally willed action for which he is wholly responsible.
And his punishment is the last stage of an educational process Joe
has long participated in. He has long been the recipient of
praise and blame from others for his acts. His right acts were
validated: he received "A"s from his college professors for his
excellent philosophy papers, his friends and family responded to
1 27
his generous acts with smiles of pleasure and words of praise, his
work colleagues responded to his innovative ideas and long hours
at work with pay increases and promotions, the president of the
country responded to his heroism during the war with a medal of
honor. The wrongs he committed were invalidated with the
appropriate acts of punishment. He received "F"s from his college
professors for his woefully confused philosophy papers. And his
family and friends invalidated his countless morally blameworthy
acts: his siblings responded to his lies and deceptions with
shunning, his friends responded to his "off-color" jokes with
frowns of disapproval, and his previous wife responded to his
infidelity with divorce. His current boss responded to that fist-
fight he started in the breakroom with a demotion, and his
previous boss fired him after allegations of sexual harassment
were made against Joe.
Because he has experienced the various punishments that have
annulled the wrongs he has committed, the invalidation of wrong
and validation of right is nothing new to him. Joe himself has
participated and perpetuated this very system. In his family
group, he has punished his children for lying. In his work group
he has criticized his co-workers for arriving at work late or
cutting early. Because he is the recipient of the actions that
mark wrongs as wrongs, and has perpetuated those very practices,
he understands those practices. He sees the acts negated as wrong
1 28
acts. And he understands the infliction of harm in response to
those wrongs as punishment.
And now Joe Schmoe is receiving imprisonment for his crimes
against his current wife. Because he has long been a member of
the socialization process that annuls wrong, he sees his
imprisonment for what it is: the announcement that he committed a
wrong that is not tolerated in civil society, and the annulment of
his criminal will and the validation of right. His punishment is
not a surprise to him; it is, from his point of view, the
necessary response to an act he knows is wrong and expects to be
invalidated.
Conclusion
The value of working with others is the (ongoing) experience
it provides. It is through working that we learn how to be
properly socialized persons. We learn to identify with the values
of that society and to properly "read" the practices that validate
right and invalidate wrong.
In this chapter I hope to have determined at least some of
the features of the socialization process necessary for the
members of a community to become "insiders," that is, members who
understand the meaning of the practices of that society. It
should be obvious that not all individuals who live in a society
are fully socialized members of their community, and Hegel was
well aware of this fact. In the next chapter I want to examine
1 29
this problem, in particular, I want to consider the matter of
punishing the crimes of individuals who are not full members of
their community--either because they are unemployed and poverty-
stricken or because they are not valued members of their society.
Hegel argues that punishment in such cases will negate the
criminal will, but from the criminal's will the punishment will
necessarily be something "contingent." Such individuals are
"outsiders" of their own society. It is to this argument that I
will now turn.
CHAPTER 5
THE RABBLE: HAVING NEITHER RIGHTS NOR DUTIES
This project began with the claim that Reciprocity-retributivism
cannot adequately meet the Marxist's challenge, namely that many who
commit crimes are themselves the victims of injustice and consequently
punishing them is unfair. I ended Chapter 1 with a promissory note
claiming that Hegel's Annulment-retributivism not only provides a
compelling justification for retributivistic punishment that is not
based on the concept of fairness (as Reciprocity-retributivism is), but
also that the theory can provide an insightful analysis of the
punishment of the oppressed and thereby meet the Marxist's challenge.
We have seen that in order for a crime to be annulled, the act of
punishment must take place within a context that gives meaning to that
act. Punishment can only annul crime if the criminal, the victim and
others in that society regard that act as a part of the practice of
punishment. The problem for Hegel's Annulment-retributivism, the
Marxist claims, is that the alienated criminal (the "rabble," to use
Hegel's term) cannot regard his punishment as the appropriate and
necessary response to his crime. Instead, he will regard his punishment
as merely harm and, since punishment cannot annul his wrong, he cannot
be legitimately punished.
1 31
While the Marxist has correctly grasped the problem posed by the
alienated criminal, he has failed to appreciate the subtlety of
Annulment-retributivism. Annulment-retributivism claims that the
punishment of the alienated criminal (like the punishment of any
criminal) is both necessary and justified. To regard the punishment of
the alienated criminal as futile cannot regard his as punishment,
punishing his crime is futile is to fail to see the role punishment
plays in securing and establishing right. While it is the act of
punishment that makes vivid to us the injustices of society (for we are
at that moment presented with the victim of those injustices), it is
punishment that is the foundation of the very method by which we can
begin to eliminate the injustices of our society. We cannot secure
right (including the rights heretofore denied to the alienated) if we
abandon the very institution that secures those rights. I will also
argue that Hegel's analysis of the rabble provides us with the means to
understanding problems such as racism and sexism, problems Hegel himself
never addressed.
Unemployment and Alienation
The economic system that, according to Hegel, provides employment
while at the same time ensuring an interdependent system of activity is
a capitalist system with a developed division of labor. A division of
labor is not simply efficient and effective at producing a surplus of
material goods, but establishes a system of interdependent positions
which, Hegel supposes, provides (nearly) all with work. The more highly
1 32
developed the division of labor, the more specialized the labor is--and
the more dependent (and less skilled) those members of that system are.
This system provides each participant with activities that contribute to
group needs.^ The virtue of capitalism is that each person's needs are
met only by engaging in the interdependent activities of the society; no
one is (economically) completely self-sufficient, and each must work
with others to realize her individual needs. Capitalism provides, then,
an ideal setting for individuals to learn to be social beings who have
internalized the values of their civil society.
However "ideal" capitalism is, it has its problems. One problem
with capitalism is the inevitable push for ever dehumanized labor. And
it seems very unlikely that a highly developed division of labor can
accomplish all that Hegel needs it to. Earlier we saw that work is the
most complete way of occupying a thing and one significant value of work
is that the activities of work are vivid, public expressions of our
freedom. This seems intuitive enough when we consider a small company
marketing a new invention or a collective of farmers transforming a
fallow field into an apple orchard. In both cases each individual has
planned and attended to several or all of the stages that transforms the
material world into an object embodying her human purposes. However it
seems to be stretching the notion of occupancy beyond credibility to
claim that a car assembled in a factory by thousands of workers, each
contributing one menial stage of the process, is occupied by each of
1
Allen Wood, "Hegel and Marxism," Cambridge Companion to Hegel
(Cambridge: Cambridge University Press, 1993), 420.
1 33
those workers. While a division of labor successfully orchestrates the
activities of many individuals, making each interdependent on the other,
when developed to the extent we see in factories, it seems more has been
lost than gained. For if the object produced cannot be occupied by the
workers, because there are too many on them and each individual's
contribution is too minor to constitute true occupancy, then their
activities cease to be work in Hegel's sense and are instead activities
that cannot express their essentially human purposes.
Hegel is aware of the drawbacks of a highly developed division of
labor. Yet he endorses a capitalistic economic system nonetheless. He
writes that "the abstraction of production makes work increasingly
mechanical, so that the human being is eventually able to step aside and
let a machine take his place." It seems unlikely that activities that
could be done by a machine are activities that will allow a human to
realize her essentially human capacities. Thus capitalism creates a
system of mechanized and essentially non-human activities, activities
that--although admittedly requiring interdependence--cannot permit each
individual to express her own freedom.
But capitalism brings another problem to civil society. As Marx
has argued, and Hegel was well aware, capitalism is an economic system
that flourishes when there exists a class of unemployed. Furthermore,
with a highly developed division of labor in place, the working class
is, to a large degree, unskilled. With few skills, it is difficult, if
^Hegel, PR section 198.
1 34
not impossible, for these individuals to secure employment to meet their
most basic needs.
To meet the needs of such individuals, the State could supply its
poor citizens with food stamps, low-income housing and clothing, free
3
medical and dental care. The material needs of such individuals would
be met, so they would not need to work to secure the possessions they
need. But they would nonetheless fail to engage in the activities that
integrate one with others. State provided support is merely a means to
obtain material goods and as such cannot function as a recognizable
embodiment of freedom. Furthermore, to be a "welfare recipient" and to
depend on the support of the state prevents one from engaging in those
activities that place one within the system of interdependence in which
others are engaged. Of course welfare recipients continue to engage in
activities--they continue to be parents, friends, neighbors and continue
to eat, dress and think. But they do not work; that is, they do not
engage in those activities that are recognized by others as those that
give existence to genuine freedom nor are they provided with the
experiences that are requisite to becoming full members of their
society.
Hegel does not think that a state can ensure all individuals full
integration. In an attempt to address these social problems the state
could do a number of things: it could tax the wealthy and use those
^We can further suppose that the state recognizes that
individuals have a right to the material goods necessary to sustain life
and that such support was not a matter of charity, but of fulfilling
obligations to citizens.
135
resources to provide for the needs of the poor. As we saw, this would
only provide them with material goods, not participation with others.
Hegel writes:
If the direct burden [of support] were to fall on the wealthier
class, or if direct means were available in other public
institutions (such as wealthy hospitals, foundations, or
monasteries) to maintain the increasingly impoverished mass at its
normal standard of living, the livelihood of the needy would be
ensured without the mediation of work; this would he contrary to
the principle of civil society and the feeling of self-sufficiency
and honor among its individual members. ^
To address this problem, the state could attempt to provide work for all
members of the society. However, Hegel claims, this would not resolve
the problem but only worsen it. Hegel writes:
Alternatively, their livelihood might be mediated by work (i.e. by
the opportunity to work) which would increase the volume of
production; but it is precisely in overproduction and the lack of
proportionate numbers of consumers who are themselves productive
that the evil consists, and this is merely exacerbated by the two
expedients in question. This shows that, despite an excess in
wealth, civil society is not wealthy enough--!.e. its own distinct
resources are not sufficient--to prevent an excess of poverty and
the formation of a rabble.^
Thus the two solutions available to a capitalistic economic system not
only fail to solve the problem of poverty, but exacerbate it. It seems
Hegel has resigned himself to the belief that in a capitalistic society
there are necessarily individuals who will be put in the situation that
they cannot, because of the way social institutions are organized,
become participating members of their own society.
4
Hegel, PR section 245.
5
Hegel, PR section 245.
1 36
Many of the problems in Hegel's arguments result from dubious
empirical claims that we can easily abandon without doing damage to his
more central claims. We may, for example, wish to reject his claim that
were a government to provide work for the unemployed the resulting
overproduction of goods would jeopardize economic stability. This would
be the case if all work produced a surplus of goods, but this is not
obviously the case. Park maintenance and city clean-up projects, for
example, are activities that seem to fulfill the requirements for work
yet produce no goods that could "glut" the market.
We may, too, wish to reject Hegel's claim that only capitalism
with a highly developed division of labor provides work in an
interdependent system. Given that the more highly developed the
division of labor is the less realistically we can regard the activities
of workers as those which enable them to completely occupy the things
they produce and thereby fully express their freedom, we have even more
reason to reject a capitalistic economic system.**
Alienation and the "Rabble Mentality"
Whatever our final decision about capitalism is, we live in a
capitalistic society and consequently are faced (as Hegel was) with the
problems generated by such a system. One central problem for our
purposes is determining how we should respond to the crimes committed by
®It is not clear that Hegel would prefer capitalism to all other
economic systems; he merely explicitly states that it is an improvement
on slavery and feudal systems since capitalism formally regards all
citizens as free beings.
1 37
those who are poverty-stricken. Hegel was certainly sensitive to the
problems facing the poverty-stricken--not merely the material
conditions, but the emotional effects suffered by those in such a
condition. Let us now turn to that discussion.
Hegel claims that the poor are "are left with the needs of civil
society...[and yet] are more or less deprived of all the advantages of
7
society." They do not have access to health care, cannot meet their
material needs, suffer from inadequate housing and are forced to live in
neighborhoods with higher crime rates than other members of their
society.
But though these material needs created by poverty--hunger, pain,
ill-health--most vividly mark who the poor are, these material needs do
not define poverty. What it is to be poor, according to Hegel, is to
lack the resources for a normal social life and, consequently, depends
entirely upon the society one is in. What is considered to be a
condition of poverty in one society may be considered as a level of
wealth in another.
The tragedy of poverty is that it prohibits a class of individuals
from becoming integrated members of their own society. It is the social
and political disadvantages, not the material disadvantages, the poor
suffer from that prevent them from becoming fully integrated members of
7
Hegel, PR section 241. At this point I should stress that the
point of Hegel's political theory is not to defend capitalism, but
instead to show the principles in such a theory and, consequently, to
reveal to us the principles underlying our own (capitalistic) society.
Hegel is aware of the flaws of capitalism, and his sensitivity of its
flaws is never more apparent than when he is discussing the situation of
those who are oppressed by it.
1 38
their own society. Poverty creates a group of individuals
disenfranchised from political institutions and excluded from engagement
in the social institutions. The poor are unable to acquire vocational
skills necessary for gainful employment and cannot participate in the
political institutions in the way other members of their society can.
Hegel points out that the poor cannot even find solace in the churches.
Since modern bourgeois societies have expectations about dress at
churches, and since the poor cannot afford to meet those requirements,
they are aware of not being welcome there and of being outsiders. Hegel
writes:
The poor are for the most part deprived of the consolation of
religion; they cannot visit church often, because they have no
suitable clothing or must work on Sundays. Further, they must
participate in a worship which is chiefly designed for an educated
audience.®
In particular it is a lack of education that keeps the poor outside of
their own society. Here as well as in Hegel's claim that the poor are
unable "to feel and enjoy the broader freedoms and especially the
intellectual benefits of civil society" we see that it is their lack of
experience, lack of sophistication and lack of knowledge of their own
society's culture that marks them as outsiders. Museums, concerts,
O
Hegel, PR, 453, emphasis added. There is no necessary
connection between modern, capitalistic society and dress norms in
churches. Rather, Hegel is pointing out a divisive and alienating
feature of bourgeois society. The irony of Christian churches in modern
society is that it is a religion for the poor ("Christ said the Gospel
is preached for the poor"), but it is precisely the poor who are cut off
from Sunday service. This same feature certainly exists in the United
States today; poor people are certainly made acutely aware of their
social inferiority at any public event.
139
poetry readings and political demonstrations do not reach the poor
person--what could possibly be in it for him? The poor person has
missed out on the education so necessary for one to understand,
g
appreciate and enjoy social life.
The culminating effect of being excluded from one's own society--
culture, religion, politics--is a sense of alienation. A person becomes
alienated when her views of the validity of the principles of one's
society undertakes a radical change, one ceases to regard those
principles as right, as "the thing to do." Rather, one comes to see
property laws, for example, as invalid and inapplicable to oneself.^®
This sense of alienation cannot occur simply because certain material
conditions hold. Rather, it must be that the poor see themselves as
inferior to and outside of their society because they are below the
acceptable standard of living relative to their society. Thus, so long
as the economic institutions generate an underclass (as Hegel thought
capitalism will), there will be a segment of society that is outside
society.
The poor person realizes that she is cut off from participating in
social and political activities and is denied recognition as a valued
g
Hegel, PR section 243.
^There is another sense of alienation that features
significantly in Hegel's theory, and that is as a necessary and
inevitable step to becoming a fully realized person; one cannot
reconcile oneself to one's society if one has not first recognized that
one is separate from and outside to that society. This paper will not
be concerned with this sense of alienation.
1 40
and respected member. She realizes that her existence does not accord
with her conception of herself as a person. Hegel writes:
The poor is subject to yet another division, a division of emotion
between them and civil society. The poor man feels excluded and
mocked by everyone, and this necessarily gives rise to an inner
indignation. He is conscious of himself as an infinite, free-
being, and thus arises the demand that his external existence
should correspond to this consciousness.'"
An awareness of being separated from and outside of what one regards as
one's proper place causes feelings of indignation and resented, which
are added to the already existing feelings of shame and inferiority.
Ironically, the fact that the poor have this sense of alienation
from their society should not be viewed as an indication that the poor
reject or are unaware of the values of their society. Rather,
alienation is an indication that the members of that society have
successfully internalized and feel identification with the values of
their society. In modern, industrial, capitalistic societies two
central values held by its members are: first, that all persons are free
and equal and, second, that a person gains honor and dignity through the
activities she engages in to support herself. To fail to provide for
oneself and instead to be dependent on others for one's livelihood is to
fail in such a society. Everywhere the poor person goes she is made
acutely aware of her failure to measure up to her society's standards.
It is precisely because the poor have successfully internalized the
values of their society that they are aware of the inferiority of their
"'"'Taken from a reference to Hegel's lectures of 1819-1820, in
Wood's translation of Philosophy of Right, 453.
141
existence. They realize they have failed and that they are not living
the life a person in their society is expected to live.
Once the poor person is driven to this point, Hegel claims, "inner
indignation is necessary." This indignation results when the alienated
correctly grasp two facts: first, that they have a right to the means
necessary for participation in their society and the right to be
regarded as free persons and, second, that their inability to attain
these means results not from right or necessity, but from the contingent
features of civil society. Hegel writes,
In civil society it is not only natural distress against which the
poor man has to struggle. The poor man is opposed not only by
nature, a mere being, but also by my will. The poor man feels as
if he were related to an arbitrary will, to human contingency, and
in the last analysis what makes him indignant is that he is put
into this state of division through arbitrary will.” *2
The poor person is too often dependent on the arbitrary wills of others,
their acts of charity for example. He must rely on the beneficence of
others or on aid from the state; in either case, the poor person's
freedom has no existence. Freedom, for him, is something wholly
contingent, completely dependent on the wills of other beings and on the
contingent events in nature. The poor person will demand that his life
correspond to the life of a free person--he will demand employment, he
will say he has a right to a job, a house, an education--but the poor
person's external existence will not correspond to his demands. He will
not come to live the life of a free person, instead his existence
12Ibid, 453.
142
continues to depend on the arbitrary wills of others thereby
perpetuating his awareness of his unfreedom.
We see the problems of "the culture of poverty" in this country.
Poor people demand work, demand housing and schooling because those are
the features of a proper social life. Yet if given these resources,
they often become indignant, resentful or indifferent. Why? Because
food stamps and low-income housing are "hand outs" from those who are
successful members of their society. The poor, then, correctly realize
that they are still completely dependent on the contingent wills of
others in their society and are, consequently, inferior outsiders.
Poverty and the resulting sense of alienation felt by poor people
is not merely an issue of economic injustice but is primarily a problem
of social integration. Alienated persons cannot be successfully
integrated into their society. This is because they are acutely aware
of their "outsidedness" or "otherness," and this awareness of separation
1 3
and inferiority makes integration impossible.
Burdened with the awareness of being an outsider, the poor person
is ultimately driven to the point where his freedom has no existence.
Because the poor person cannot engage in those activities and thus
cannot give existence to his will, the poor person is not (indeed,
cannot be) free.
How can a person be unfree? All persons, in virtue of having the
capacity to will, are formally free. And surely the poor person owns
1 3
See Harry Brod, Hegel's Philosophy of Politics (Boulder:
Westview Press, 1992), 107-110 for a further discussion of this point.
1 43
something (at the very least, his own body) and engages in some
activities and, therefore, seems sufficiently to embody his will and
ground his freedom. While it is true that all persons own their bodies
and engage in activities, I think nonetheless that Hegel is noticing
something very significant about the poor person's existence: the poor
person cannot willfully assert power over the material world as others
in her society can. A non-poor person's whole existence is filled with
assertions of power ("I own this," "This is mine," "I can do this," and
so on) vividly expressing and embodying her will. The will of the poor
person more often than not is thwarted by their inferior social
position. (They cannot do that, because that is trespassing. They
cannot sleep there, because sleeping on park benches or at the beach is
prohibited. They cannot have that shirt or pair of shoes because they
have no money or credit.) The poor person is unfree because she is
powerless.
Once a class of poverty-stricken individuals is aware that they
are by nature free beings but are, because of the social arrangements in
their society, unfree, they can no longer accept the institutions of
their society as valid. Hegel writes:
When a large mass of people sinks below the level of a certain
standard of living--which automatically regulates itself at the
level necessary for a member of the society in question--that
feeling of right, integrity, and honor which comes from supporting
oneself by one's own activity and work is lost. This leads to the
creation of a rabble....^
And also:
14
Hegel, PR section 244.
144
The rabble's disposition is founded on the fact that everyone has
the right to find his subsistence; insofar as he does not find it
he is poor, but because he has the right to subsistence his poverty
becomes a wrong, an offense against right, and this produces a
dissatisfaction which simultaneously assumes the form of right."*®
Institutions are valid (whether they are just or not) so long as members
of that society believe that they have the effect of permitting the
realization of genuine freedom."*® Once the poor person realizes that
property laws create and sustain their lack of freedom, they can no
longer regard those laws as valid. The rabble correctly regard the laws
of their own society as well as right and freedom as shams. The context
in which they live their lives determines that for them, right and duty
1 7
do not exist. The rabble are, in Hegel's words, "a dangerous ill,
18
because they have neither rights nor duties." They are dangerous,
too, because for them, wrongs are justified. This is a very difficult
point, and understanding will be easier if we first look at how the
status of a person's rights and duties can change in moments of
emergency.
In cases of immediate danger or momentary emergency, persons have
the "right of necessity" to justly commit wrongs. Hegel claims that in
certain instances, as when one's life is in danger, this "right of
1 5
Taken from a references to Hegel's lectures of 1819-1820, in
Wood's Hegel's Ethical Thought, 253.
*®See Chapter 4, fn 17.
1 7
Their rights have "no reality." Taken from a reference to
Hegel's lectures of 1819-1820, in Wood's "Hegel and Marxism," Cambridge
Companion to Hegel, 427.
1 8
Taken from a reference to Hegel's lectures of 1819-1820, from
Wood's Hegel's Ethical Thought, 252.
145
necessity" permits individuals to commit justly what would otherwise be
correctly regarded as an unjustified wrong. He writes:
Life, as the totality of ends, has a right in opposition to
abstract right. If, for example, it can be preserved by stealing a
loaf, this certainly constitutes an infringement of someone's
property, but it would be wrong to regard such an action as common
theft. If someone whose life is in danger were not allowed to take
measures to save himself, he would be destined to forfeit all his
rights; and since he would be deprived of life, his entire freedom
would be negated...consequently, only the necessity of the
immediate present can justify a wrong action, because its omission
would in turn involve committing a wrong--indeed the ultimate
wrong, namely the total negation of the existence of freedom.” *®
Hegel is not denying that stealing a loaf is wrong but is saying that
certain circumstances, the person's having the right of necessity, make
that action a justified wrong.
Normally this right applies only in extraordinary circumstances;
yet for the poor, these conditions hold generally. Because the poor
person's entire existence is below the minimal level acceptable in her
society this right of necessity comes to apply to her entire existence.
Hegel writes:
Earlier we considered the right of necessity as referring to a
momentary need. [In the case of poverty, however], necessity no
longer has this momentary character.^®
Laws that regulate private property, which normally permit the
possibility of the realization of freedom, only serve to secure the poor
person's lack of freedom.
” *®Hegel, PR, section 127A.
20
Taken from a reference to Hegel's lectures of 1819-1820, in
Wood's translation of Philosophy of Right, 454. See also Wood's "Hegel
and Marxism," Cambridge Companion to Hegel, 427.
146
When we speak of ordinary individuals in extraordinary
circumstances (breaking into cabins to get shelter from a snowstorm, for
example) Hegel's point seems intuitive enough. But Hegel is trying to
reconcile two seemingly inconsistent claims. He asserts that the right
of necessity justifies committing wrongs while at the same time refusing
to claim that breaking those laws is right. Theft, a violation of
another's property rights, is always wrong (it is necessarily a coercion
of a person's property right and therefore a violation of abstract
right). Yet for the poor person theft is a justified wrong because to
fail to steal would be a greater wrong, the "ultimate wrong" (if
refusing to steal results in his or, I suppose another's, death). It is
because the poor person is in a state of emergency perpetually (or
"generally") that for him those laws cease to be right, that is, they
cease to be rules that are the codification of abstract right. Hegel
is, ultimately, claiming that although right is completely independent
of civil society, it is the context one is in that determines what one
is justified in doing. If the poor are perpetually in the state of
emergency, then it follows that the wrongs they commit are justified.
Punishing the Rabble
If we have correctly analyzed the disposition of the rabble, and
it is true that the rabble have neither rights nor duties and
(consequently) their wrongs are justified, then Hegel finds himself in a
difficult position. On the one hand, his theory of punishment clearly
requires that all wrongs be negated. Crimes are violations of right,
1 47
thus their wrongness is completely independent of the context in which
they are committed. On the other hand, he has just claimed (or, the
Marxist might say, conceded) that the wrongs committed by the poor are
justified. Surely if that is so, their crimes cannot be legitimately
punished. Can Hegel's theory of Annulment-retributivism resolve this
tension?
Hegel took the problem of punishing the rabble very seriously.
Let's look at what he wrote and see if we can find a satisfactory
resolution to this issue. Hegel writes:
In the emergence of poverty, the power of particularity comes into
existence in opposition to the reality of freedom. That can
produce the negatively infinite judgment of the criminal. Of
course crime can be punished, but this punishment is only
contingent... So on poverty rests the rabble mentality, the
nonrecognition of right.^
We already know what Hegel means when he claims that poverty the
"particularity" opposes the "reality of freedom," thus producing the
"negatively infinite judgment of the criminal." The criminal's needs,
hunger or injury, say, create a right of necessity. This is his
"particularity"; he has the right to steal, no one else. This right,
unlike an ordinary right, is in opposition to freedom; his act of theft
is a violation of the freedom of the person whose property he stole, a
violation of property rights generally. So far Hegel has said nothing
new. But the really intriguing claim is the one Hegel makes next: Of
course crime can be punished, but this punishment is only contingent.
21
Taken from a reference to Hegel's lectures of 1819-1820, in
Wood's Hegel's Ethical Thought, 254.
148
This idea, that the punishment of the rabble is contingent, is the key
to understanding Hegel's whole analysis of the problem of the rabble.
What could it mean for punishment to be "contingent"?
Since Hegel has given us so little to work with, let's come at
this problem from the other side and remind ourselves what it is for
punishment to be necessary. We saw that punishment is the necessary
response to a crime and that it is the "completion" of the criminal
will. The criminal will is by itself null and must be annulled and made
complete. We also saw that in order for punishment to realize its
purpose the criminal must have been sufficiently socialized such that he
will regard that act of punishment as an appropriate response to his
crime. Punishment has two aspects: it is objectively necessary yet its
success is subjectively determined. Punishment is objectively necessary
in that it is a response to an act whose wrongness is determined by its
relation to right, completely independent of any contingent features of
civil society. But punishment can only succeed in invalidating wrong
and validating right if the criminal regards the punishment as the
necessary response to a wrong. While the objective aspect of punishment
will always hold (wrongs are wrongs regardless of what anyone regards
them as, and the negation of those wrongs will always be necessary), the
subjective aspect will not. To the rabble, punishment is a harm
inflicted contingently and serves only to compound indignation and heap
added insult onto already miserable lives.
So can we legitimately punish the rabble or not? According to
Annulment-retributivism, punishment of the rabble is not only
149
legitimate, it is necessary. I think most would see this conclusion as
prima facie evidence that the theory is seriously flawed. But now that
the theory is properly laid out, I think this conclusion is not only not
objectionable, but compelling. The point of punishment is to negate the
wrong the criminal willed: punishment may or may not seem appropriate
from the criminal's point of view. If it does, this is evidence that
the criminal is a properly integrated social being who has internalized
the values of her society. If it does not, this is evidence that the
criminal is not a properly integrated member of her society. Her
failure to integrate may be the result of an injustice such as poverty.
If so, she has suffered a wrong. But the fact that she has suffered
(and perhaps continues to suffer from) a wrong does not change the fact
that she has committed a wrong. The wrong she has willfully committed
must be negated.
Rabble Disposition: Hegel's Analysis
So far the rabble we have discussed are the poverty-stricken, but
members of "the rabble" are not only the abjectly poor, but the idle
rich as well. Hegel writes:
On the one hand, poverty is the ground of the rabble-mentality, the
non-recognition of right; on the other hand, the rabble disposition
also appears where there is wealth. The rich man thinks that he
can buy anything, because he knows himself as the power of the
particularity of self-consciousness. Thus wealth can lead to the
same mockery and shamelessness that we find in the poor rabble.22
22Ibid, 454.
1 50
While Hegel's observation that the idle rich, like the poverty-stricken,
act with complete disregard for laws seems correct, it is not obvious
how two sections of society with such radically different experiences
could have the same disposition. If we conclude that the rabble
mentality is simply a result of being poor, then we cannot explain this
passage. Thus an adequate account of the rabble mentality must explain
how it is that it is a disposition held by both the very poor and the
23
very wealthy.
Despite differences in their lives, both the idle rich and the
poor are alienated from their society because both fail to engage in the
activities that integrate them with others (work, in particular).
Because neither has experienced interdependent activities with others,
neither has learned to act for group needs rather than their individual
needs or ends. Consequently, both the idle rich and the poor are
motivated solely by the desire to gratify their own desires. Because
they have so much money, the idle rich do not need to work with others;
they are not required to constrain their individual (selfish) desires
23
Hardimon claims that Hegel uses the term "the rabble"
sarcastically when he refers to the idle rich and that the term properly
refers to only the poor. While Hegel does predominantly refer to the
poor when he uses the term "Poebel," I think his observation that the
abjectly poor and the idle rich have the same disposition ("Poebelheit")
is insightful. I think analyzing the attitudes of the rich as well as
the poor is useful because it draws our attention to exactly the issue
Hegel is stressing: separation from one's society is not simply the
result of one's material condition, but results when one has failed to
be an integrated member of one's society. I think the fact that we are
less interested in the plight of the wealthy stems not from the fact
that they are not genuinely outside of civil society, but that
tremendous wealth is the source of their separation. See Hardimon's
comments in his Hegel's Social Philosophy: The Project of
Reconciliation, 236-240, especially p. 238, fn. 8.
for the sake of the needs of the group. They may not even feel required
to obey laws. Paying fines means little to them, even the threats of
criminal punishment are inconsequential (particularly when an expensive
lawyer can maneuver through the court system and prevent prison
sentences). This indifference to the consequences of wrong-doing means
that for them, right and wrong are shams--just as they are for the
poverty-stricken. Once the rich fail to see rules that codify right as
defining the limitations of legitimate behavior, they are simply
incapable of regarding punishment as the negation of wrong and the
validation of right. In their eyes, their wrongs are justified and
punishment is simply a contingent, and unpleasant, event.
The Other Rabble
When Hegel discusses the rabble, he predominantly refers to the
poor, with just a handful of references to the idle rich. He does not,
however, discuss those alienated from civil society because of racism or
sexism. Perhaps this is not too surprising, given the society he lived
in. But given the society we live in, a discussion of race and gender
24
Leona Helmsley is a text-book case of a wealthy person with
the rabble mentality. To her mind, her wrong is not a wrong. Paying
taxes is, to quote her now notorious words, for "little people" only,
not her. She apparently also does not regard her punishment as the
appropriate response to her wrong as it was discovered that instead of
serving the hours of community service she was sentenced to, she had
paid others to do her service for her! How can we account for such a
disposition other than by giving Hegel's analysis? She simply does not
see laws as legitimate guides to behavior, but instead regards them as
annoying restrictions that one must cleverly out-maneuver (any sense of
regret she may feel is probably aimed at herself for failing to be
clever enough).
is requisite. It may seem that Hegel's analysis of the rabble, since it
concentrates on the conditions of poverty, is too restrictive to be
useful in a discussion of race or gender. But I think such a conclusion
is unfounded. I think Hegel's analysis of the rabble is very useful
indeed. The rabble mentality is the disposition a person has once she
realizes that the rules or principles regulating her society are shams,
perhaps because they are duplicitous (claiming equality for all, but
providing it for only a select few), or perhaps because they inhibit the
realization of freedom instead of fostering it. The "shamelessness"
that results when one rejects right and freedom as shams is a
consequence of realizing that those laws and principles that tout
freedom and right are the very laws that make one unfree. Surely it
takes no stretch of the imagination to see that a black oppressed by
racist laws or a woman oppressed by the "old boys' network" will come to
those very conclusions: freedom, equality and right are shams, the laws
that profess to safeguard freedom wholly fail to permit the realization
of her freedom (though they very successfully secure the freedom of the
privileged), and (consequently) the institutions of society are invalid.
Once such a change in one's attitude takes place, integration (with the
acceptance of one's society and its values integration requires) is
impossible.
Let's look at a case in which the criminal is strikingly like our
rabble, but is neither poverty stricken nor a member of the idle rich.
Here we have June, a battered housewife who kills her husband while he
sleeps. June has suffered her husband's violent outbursts for years.
1 53
Several times the police came after particularly loud and violent
beatings, but she chose not to press charges and her husband was allowed
to stay at home. She made a half-hearted effort to enter a woman's
shelter but the facilities were hopelessly underfinanced and
understaffed. And besides, she wouldn't be able to pay even the nominal
fee for long, so why make her situation worse? Since her only relatives
live in another state (and feeling shame at finding herself in such a
situation), she chose not to get them involved. Instead, she decided
that she would tolerate the abuse. Until he started abusing her
children, she would not allow that. So she killed him.
She was not surprised when she was arrested. She knew she was
breaking a serious rule. But she cannot regard her imprisonment as a
necessary response, or as a punishment negating a wrong she committed.
Instead, from her point of view it is simply an infliction of injury
similar to all the other injuries she experienced in the past.
June's disposition reveals her to be a member of the rabble. Like
the poor person who steals to stay alive, June claims her crime, the
murder of her husband, was necessary. Just as stealing the loaf of
bread when starving is a justified wrong, killing an abusive spouse is a
justified wrong. Rather than wait in vain for the state or some other
public institution to validate her right to bodily integrity, she
asserts her right herself while at the same time asserting her will over
her husband--she kills him. She even claims she would do it again, were
she so situated.
1 54
What is the source of June's alienation? (Crimes go unpunished
for numerous reasons--the criminal may be entirely unknown, for example.
Why is it that June's situation differs from the person's whose car is
stolen by an unknown thief?) Society has failed to acknowledge June's
right not to be abused in numerous ways. Primarily, her husband's
actions are not regarded as crimes, but instead are thought of as
indications of marital disputes appropriate for the family courts only
(not the criminal courts). Women attempting to prosecute abusive men
2 6
are often chastised by judges for "wasting valuable court time."
There is also the glaring asymmetry in the effort women must exert
to secure their protection from abusive men as compared to the effort
men must exert to protect themselves from muggers or other assailants,
for example. Being accused of mugging a stranger is sufficient cause
for arrest and investigation. Being accused of assaulting a wife is
typically seen by police officers as failing to warrant probable cause
for arrest. Police officers may demand to see "hard evidence" of
26
abuse. And the options that are provided to her (restraining orders)
25
Pamela Nigro Dunn went to Somerville (Massachusetts) District
Court four times in 1986 to seek restraining orders against her
assaultive husband. Judge Paul P. Hefferman denied each of her
requests, calling them "trivial complaints." In March, 1986 he
remarked, "If you want to gnaw on her and she on you, fine, but let's
not do it at taxpayers' expense." In August, 1986 Pamela was stabbed to
death by her husband, Paul Dunn. See Ann Jones, Next Time, She'll Be
Dead (Boston: Beacon Press, 1994), chapter 1 for dozens of other similar
stories.
26
Gayla McKee sued the police officers of Rockwell, Texas for
failing to protect her from an abusive boyfriend, Harry Streetman. She
claimed he had punched her in the abdomen and held her at knife point.
The officers refused to arrest Streetman, refused to take McKee to the
police station to fill out an arrest form (they claimed she was
"inappropriately dressed"), and refused to drive her to her parents'
1 55
are ineffective. Such "restraints," rather than demonstratively mark
(and effectively protect) a woman's right to bodily integrity, instead
tolerate the abuse and leave open the possibility for further abuse.
Additionally, battered women are commonly regarded by police
officers, the courts (and often by members of their own family and
society generally), to be the true source of the trouble. Women who
27
want their husband arrested are seen as "home wreckers." Children and
other family members may blame the women as being the real cause of her
abuse ("If only she just was a better wife he wouldn't have gotten so
angry.")
Lastly, shelters providing places to live away from dangerous men
are inadequate. Shelters are underfunded and understaffed. And there
are far too few to house all the women and children who need security
28
from abusing men. Such shelters also reinforce the belief that the
victim is the source of the problem (after all, she is the one who must
leave home while he is permitted to stay and enjoy its comfort).
home. Instead they left her to walk to a nearby friend's home.
Streetman followed her and attacked her again just after the police
left. The police claimed that because she had "no welt, bruise,
abrasion, cut, skin discoloration, unneat appearance or any other
indication of assault," they saw no reason to arrest him. Apparently
the courts agreed as she lost her suit--despite the fact that no
physical evidence of beating is required by Texas law to give probable
cause for arrest! Ibid, 66.
27
District court Judge Paul H. King of Dorchester, Mass. denied
a woman's request to have her husband barred from her home and claimed,
"I don't believe in breaking up families." Ibid, 66.
^®In 1976, New York City had 1,000 beds for homeless men, 45 for
homeless women. In 1973, Los Angeles had 4,000 beds for homeless men,
30 beds for both women and children. Ibid, 8.
1 56
June's rabble mentality is the result of her realization that
society has wholly failed to secure her rights. Her husband's actions
clearly establish that he has the right to abuse her and clearly
establish that she has no right not to be threatened or assaulted. And
those wrongs have not only not been negated: the actions of police
officers, the courts and member of her own family reinforce those
assertions. Once June realizes her rights are shams, she rejects the
institutions of her society part and parcel. Because punishment is
necessarily a part of the institution establishing right and wrong in
society, June is necessarily rejecting the punitive practices that
establish right. She cannot, consequently, regard her punishment as
anything but a contingent injury.
If Hegel's analysis of the rabble mentality can be correctly
applied to June's case, we have available to us a very useful and
powerful theory that can be used to understand the experiences of many
individuals in this society. For June's rabble mentality is not an
idiosyncratic feature of June, nor is it only the disposition of women
29
victimized by men. The failure to be a full member of one's society
is an experience shared by all women. Women are paid less than men for
similar work. They receive promotions less often. The activities women
29
Though, from the various statistical reports I have read, that
is no small group of individuals. According to one report (dated 1992)
a man kills his wife or girlfriend every 9 days in this country. (In
comparison, in 1989 one women was slain by a husband or boyfriend "only"
every 22 days.) Statistics are notoriously misleading as so many
instances of abuse are unreported, but a dead body is undeniable so I
think these homicide statistics are reliable. The number of women
murdered has risen so drastically that some sociology textbooks now use
the term "femicide." Ibid, 6-7.
1 57
typically engage in, house work, is referred to (pejoratively) as
"women's work," thus demarcating those activities as insignificant,
marginalized activities--not the activities through which one attains
respect, honor and dignity. Through so many subtle (and not so subtle)
ways, women are less free than men and if they realize that fact, they
will regard the institutions that create their lack of freedom as
invalid.
There is another sort of case that I would like to puzzle over
before offering concluding remarks about Annulment-retributivism.
Racism, racist beliefs and practices, are prevalent in this society.
Like women, members of minority races are denied equal protection from
harm, are prevented from exercising the political power white males
enjoy and are regarded by "the powers that be" as inferior and socially
undesirable. Since describing all the ways in which racist practices
alienate individuals would be too time consuming, I will concentrate on
one aspect of racism, the perpetuation of the belief that young, black
men are extremely dangerous and must always be treated as such.^® One
manifestation of this belief is the inordinately numerous negative
experiences young black men suffer at the hands of police officers.
From the rate at which they are pulled over it is clear that in this
society, simply being young, male and black and driving a new car
30
What exactly it is that these young black men are a danger to
is unclear. While many share this belief, it is not a belief often
articulated. Part of the stereotype is that black men are rapists
(threatening the bodily integrity of white women). They are also
assumed to be rebellious (and thus threatening the well-being of society
as a whole).
1 58
warrants suspicion of criminal activity. Security guards suspect black
men running through crowded streets as being criminals fleeing crime
scenes. Clerks watch blacks more attentively, suspecting them of being
thieves. How will a young black man regard himself, and his place in
his society, after experiencing these humiliating accusations simply in
virtue of his skin color? On the one hand he must know that he is
engaging in activities he has every right to engage in: it is his car he
is driving, he has as much right as any person to run through crowded
streets, shopping in expensive stores is also his right as much as it is
anyone's. Yet for him, his right to engage in these activities is not
relevant. What is relevant is his skin color, a feature entirely
irrelevant to right (or so we are told!). If we have correctly
characterized alienation and the rabble mentality, the rage and
indignation our black man feels is the result of his realization that
his rights have no existence in this society. Willed assertions of
right, such as driving one's car, are not regarded as such when
31
committed by him. If he has successfully internalized the value that
"all men are created equal," how can he help but conclude that he is not
a full member of his own society and that for him, right and freedom are
shams? And if this is so, then given the preponderance of racism in
this society, alienation and the rabble mentality are far more prevalent
31
I think what is significant about such incidents is not that
one (bigoted) person expressed her racist beliefs to one black person,
but that the bigots are police officers. If those who are supposed to
uphold and safeguard right cannot see all the members of society as
having equal right to their services, how can the harassed possibly
regard himself as a full member of his society?
1 59
in an unjust society (like ours) then, I think, Hegel would have cared
32
to imagine.
Punishment as an Answer to Injustice
Annulment-retributivism is attractive as a theory of punishment
not because it gives us the answers we want--it very likely may not.
(Remember Murphy claiming that "decent men" surely would not demand the
punishment of the alienated or poverty-stricken?) Rather the theory is
compelling because it focuses our attention of the really important (and
interesting) function punishment plays in our lives, as members of a
family, members of a workforce and members of a society. Punishment is
a necessary part of our moral education--not just the education of the
wrong-doer, but of every rights-bearer in that society. It not only
informs us what right and wrong are (what the limits of legitimate
behavior are), but it secures those rights. Punishment makes it the
case that the victim has rights (whichever right the crime denied) and
that the criminal does not have the right to coerce others.
When faced with the Marxist's criticism, Reciprocity-retributivism
showed its weakness: it claimed that the punishment of the rabble,
because there is no advantage to remove, is pointlessly cruel. It
should be clear by now that punishment of wrongs is far from pointless
(though it may be nonetheless cruel). Annulment-retributivism makes
32
Think for a moment how alienating a phrase like "The only good
Indian is a dead Indian" is, or experiences like browsing through a
souvenir store and seeing a large, wooden mallet labeled "Wife Tamer" or
seeing men walk through malls wearing t-shirts that read "Shut Up,
Bitch."
vivid both the necessity and the awfulness of punishing the alienated:
right requires that all wrongs be negated yet at the same time Hegel
forces us to acknowledge that any act of punishment inflicted on an
individual who fails to regard the institutions of her society as valid
cannot be regarded by that person as punishment. To her, it is simply
an injury.
The Marxist claimed that the existence of the rabble makes evident
to us injustices of our society: racism, sexism, poverty. That is true.
But the Marxist's mistake (and the Reciprocity-retributivists as well)
is her failure to see the role the practice of punishment plays in
remedying that injustice. Punishment, society's institution for
establishing and securing right, is the very mechanism necessary for
ensuring that wrongs are righted. We cannot improve society (and
eliminate any injustices that there are) by abandoning the means
available to us for protecting the rights that are established and
33
secured.
Hegel's Annulment-retributivism is clearly not simply another
version of retributivism. Rather, his theory of punishment has distinct
advantages over traditional versions of retributivism, like Reciprocity-
33
The Annulment-retributivist will acknowledge that the
alienated criminal will benefit little from our reformative efforts.
His crime must be punished. The rabble is very like the incorrigible
teenager: he makes vivid to us our failings as parents and spurs us to
analyze our mistakes and do better with our younger, still teachable
children. But even though we take responsibility for the teenager's
rabble disposition, we must acknowledge that he willfully does wrong and
his wrongs must be negated. The fact that he cannot regard his wrongs
as wrongs or his punishment as punishment does not alter our obligation
to right those wrongs. And we certainly do no one a service by choosing
not to right those wrongs--including the teenager!
1 61
retributivism, because it reframes acts of punishment in a way that
allows us to analyze the actions of a state and the experiences of the
alienated in a more thorough, and more satisfactory way. It also offers
an explanation of a widely shared intuition, that the punishment of the
rabble is evidence that our society is dysfunctional. Hegel forces us
to realize that the solution lies not in tinkering with the punitive
practices but in reforming the broader institutions of that civil
society.
1 62
BIBLIOGRAPHY
Aristotle. Nichomachean Ethics, trans. Terence Irwin. Indianapolis:
Hackett Publishing Company, 1985.
Avineri, Schlomo. Hegel's Theory of the Modern State. Cambridge:
Cambridge University Press, 1972.
Bentham, Jeremy. An Introduction to the Principles of Morals and
Legislation. London: Penguin, 1987.
Berlin, Isaiah. "Two Concepts of Liberty." Four Essays on Liberty.
Oxford: Oxford University Press, 1969.
Brod, Harry. Hegel's Philosophy of Politics. Boulder: Westview Press,
1992.
Burgh, Richard. "Do the Guilty Deserve Punishment?" The Journal of
Philosophy LXXIX, no. 4 (1982): 193-210.
Clark, Homer. The Law of Domestic Relations in the U. S. St. Paul,
Minn.: West Publishing, 1978.
Cooper, David. "Hegel's Theory of Punishment," Hegel's Theory of
Punishment, ed. Z. A. Pelczynski. Cambridge: Cambridge University
Press, 1971.
Gauthier, David. "The Social Contract as Ideology," Philosophy and
Public Affairs 6 (Winter 1977): 130-168.
Hampton, Jean. "The Moral Education Theory of Punishment," Philosophy
and Public Affairs 13, no. 3 (Summer 1984): 208-238.
Hardimon, Michael O. Hegel's Social Philosophy: The Project of
Reconciliation, Cambridge: Cambridge University Press, 1994.
Hart, Herbert L. A. Punishment and Responsibility, Oxford: Clarendon
Press, 1968.
Hegel, G. W. F. Hegel: Elements of the Philosophy of Right, ed. and
trans. Allen Wood. Cambridge: Cambridge Press, 1991.
________. Hegel's Logic, trans. William Wallace. Oxford: Oxford
University Press, 1975.
________. Hegel's Philosophy of Mind, trans. William Wallace. Oxford:
Oxford University Press, 1971.
________. Phenomenology of Spirit, trans. A. V. Miller. Oxford: Oxford
University Press, 1977.
1 63
Hobbes, Thomas. Leviathan, ed. C.B. MacPherson. London: Penguin, 1985.
Honderich, Ted. Punishment: The Supposed Justifications. New York:
Harcourt, Brace & World, 1969.
Jones, Ann. Next Time, She'll be Dead. Boston: Beacon Press, 1994.
Kain, Philip. Marx and Ethics, Oxford: Clarendon Press, 1988.
Kant, I. Grounding for the Metaphysics of Morals, trans. James W.
Ellington. Indianapolis: Hackett Publishing Company, 1981.
________. Lectures on Ethics, trans. Louis Infield. Indianapolis:
Hackett Publishing Company, 1963.
________. The Metaphysics of Morals, trans. Mary Gregor. Cambridge:
Cambridge University Press, 1991.
Locke, John. The Second Treatise of Government. New York: New American
Library, 1960.
Marx, Karl. "Capital Punishment," New York Daily Tribune, 18 February
1853.
Menninger, Karl. The Crime of Punishment. New York: Viking, 1968.
Moore, G. E. Philosophical Studies. London: Routledge & Kegan Paul
Ltd., 1922.
Morris, Herbert. Guilt and Innocence. Berkeley: University of
California Press, 1976.
Murphy, Jeffrie G. "Does Kant Have a Theory of Punishment?" Columbia
Law Review vol. 87 (April 1987): 509-532.
________. Retribution, Justice and Therapy. Dordrecht: Reidel, 1979.
O'Hagen, T. "On Hegel's Critique of Kant's Moral and Political
Philosophy," Hegel's Critique of Kant, ed. Stephen Priest.
Oxford: Oxford University Press, 1987.
Okin, Susan Moller. Justice, Gender, and the Family. New York: Basic
Books, 1989.
Rawls, John. A Theory of Justice. Cambridge, Mass.: Harvard University
Press, 1971.
________. "Two Concepts of Justice," The Philosophical Review vol.
LXIV, no. 1 (1955): 3-32.
1 64
Riedel, Manfred. Between Tradition and Revolution. Cambridge: Cambridge
University Press, 1984.
Rousseau, Jean-Jacques. On the Social Contract. Indianapolis: Hackett,
1987.
Ryan, Alan. "Hegel on Work, Ownership and Citizenship," The State and
Civil Society, ed. Z. A. Pelczynski. Cambridge: Cambridge
University Press, 1984.
Schwarzenbach, Sibyl. "Rawls, Hegel and Communitarianism," Political
Theory 19 no. 4 (November 1991): 550-563.
Steinberger, Peter. Logic and Politics. New Haven: Yale University
Press, 1988.
Taylor, Charles. Hegel. Cambridge: Cambridge University Press, 1975.
Weisberg, D. Kelly. Feminist Legal Theory. Philadelphia: Temple
University Press, 1993.
Westphal, Kenneth. "The Basic Context and Structure of Hegel's The
Philosophy of Right," The Cambridge Companion to Hegel.
Cambridge: Cambridge University Press, 1993.
Wood, Allen. "Hegel and Marxism," The Cambridge Companion to Hegel.
Cambridge: Cambridge University Press, 1993.
Wood, Allen. Hegel's Ethical Thought. Cambridge: Cambridge
University Press, 1990.

Linked assets

University of Southern California Dissertations and Theses

Conceptually similar

PDF

The Politics Of Scientific Inquiry: The Effects Of The Pluralist Paradigm On Comparative Studies Of Free Inquiry (With A Case Study Of The Politics Of American Cancer Research)

PDF

A Comparison Of Female Inmates With And Without Histories Of Prostitution On Selected Psychosocial Variables

PDF

A reappraisal of the concept, potentialities and limitations of fiscal policy in the American economy

PDF

Alternate models of women's health care policy in the United States

PDF

A Critical Examination Of D. M. Armstrong'S Materialistic Theory Of Mind

PDF

Special interest groups and the Lebanese conflict: A survey of attitudes

PDF

The drivers of economic change: Technology, globalization, and demography

PDF

The price of oil and OPEC behavior: A utility maximization model

PDF

Economic and administrative aspects of capital budgeting in municipalities

PDF

She Works Hard For The Money: Consumerism And The Movement Of Housewives Into Wage Work

PDF

Neuropsychological And Psychological Correlates Of Marital Violence In A Clinical Sample

PDF

Charlotte Smith: Life of a novelist, novels of a life

PDF

Analytical Compendium Of Religion-Relevant Jurisprudence Of The United States Supreme Court

PDF

Motivational patterns of administrators, physicians, and chiefs-of-service in a variably structured health maintenance organization

PDF

Greater than the sum of her parts: A multi -axis analysis of Black women and political representation

PDF

A multidimensional analysis of regional integration and cooperation: The case of the Economic Community of West African States

PDF

An Application of the Global Monetarist-Wedge model to post-1973 Chilean economic policies and the effects of these policies on macroeconomic, social and political variables

PDF

Assignments of female correctional officers to United States penitentiaries: Implementation in the Federal Bureau of Prisons.

PDF

Congruence Of Social And Governmental Authority Patterns: Political Cynicism Among Suburban Adolescents

PDF

Economic and political determinants of current account deficits in Greece, Spain and Portugal, 1970-89

Asset Metadata

Creator Anderson, Jami Lynn (author)

Core Title Annulling Crimes: A Hegelian Theory Of Retribution

Degree Doctor of Philosophy

Degree Program Philosophy

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,Philosophy,political science, general,sociology, criminology and penology,women's studies

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Lloyd, Sharon (committee chair), [illegible] (committee member), Dreher, John H. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c20-618423

Unique identifier UC11226905

Identifier 9617082.pdf (filename),usctheses-c20-618423 (legacy record id)

Legacy Identifier 9617082.pdf

Dmrecord 618423

Document Type Dissertation

Rights Anderson, Jami Lynn

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA