ISTANBUL TECHNICAL UNIVERSITY INSTITUTE OF ART & SOCIAL SCIENCES POLITICAL STUDIES M.A. PROGRAM STD 611E Political Philosophy in the 19th Century: Hegel and Marx HEGEL'S VIEW OF PUNISHMENT Final Paper by Dilek Zehra Çetinkaya 419151004 Instructor: Dr. Jan Kandiyali 1 Hegel's view of Punishment Abstract: The thoughts on crime and punishment by Hegel are playing a major role both in the book, The Philosophy of Right, written in 1820 and in all of the discussions on crime and punishment. This paper aims to argue that he is having, in the book, coherent and persuasive justification for punishment. I am planning to defend Hegel's punishment as a valid argument by answering three major questions, what crime and punishment is for Hegel, why restoration of rights necessary is and lastly what he has on his mind for the content of punishment by explaining retributivism both on Hegel and on Marx. Key Words: Hegel; Crime; Punishment; Retribution; Marx Introduction George Wilhelm Friedrich Hegel (1770-1831) is one of the philosophers of German Idealism. Theories on crime and punishment, that are, in the book Elements of the Philosophy of Right, was written in 1820, based on this lectures on Heidelberg. He is giving his mature arguments on legal, moral social, and political philosophy on this book. Text starts with argumentation of free will on abstract right, and continues with property rights and contract; moral life, family life, state and history. Whoever violates the rights of others in civil society, is doing wrong and that wrong must be cancelled and then whole crime and punishment chapter start. The main arguments, I will be using and defending today, is crime must be punished because it is a right of the criminal to be punished and; punishment have to come from the crime itself. Crime and punishment issues are the most misused issues by the state in authoritarian sense. Rulers are tent to use these as power demonstration. In my opinion, Hegel prevents them from doing those. He is valuing humans for being human. Humans must be punished and that punishment must come from the crime itself because humans are rational beings and they must be honored. 2 What is Crime and Punishment for Hegel? At the beginning of the Abstract Right, Hegel started with persons having property and then making contract to protect them. When a person desires to have something unfairly that is already claimed by another person as property, and then, that person takes that property no matter what, by violating another's right, this is Wrong. (§82) Moreover, when that person rejects another's capacity of having rights by depriving him of that property which is stated as freedom and right in the Abstract right, this is Crime. Crime includes a coercion on a victim's will so it is negation of the freedom of the person's will. Simply, for Hegel, crime is denial of rights and interference to negation of rights. (Hegel, 1991)(§90) "Punishment is the dialectical overcoming of crime." (Steinberger, 1983, s. 859) Therefore, we can say that punishment theory could only be understood by Hegelian dialectic. Hegel gave importance to right of having property that is a role in improvement of freedom. For Hegel, the Will, by definition, is free. So, where is people, there is freedom. However, guilty person is denying victim's freedom and right to have a property by stealing his property and also, at the same time, criminal is denying entirely the right to have property. (§95) Shortly, criminal is saying us there is not such a thing a right to have property by violating that right. That means, for criminal, only possessions could be possible. We should accept crime is very complex on Hegel; it is not only an attack and also includes limitations to the other person's ability and capacity to live his/her freedom. To largely define his idea on crime, he is describing "infringement of right as right" and "negatively infinite judgment" that we will talk about them later (§95, 97) Clearly, we need to do something to correct what crime violates. For Hegel, punishment is doing that job that is erasing the crime to restore the rights. It is negation of negation, but only could be possible if punishment aims only protect freedom and right; not the deterrence that we will discuss on it when we talk about kinds of punishment and; what Hegel expected from punishment. Why is Restoration of Rights Necessary? Cancellation of a crime is required, not optional. If not, negating rights would be accepted as valid. Because all persons are equal in abstract right, all of them can lose their right just because of excusing the crime and also because all persons are equal, who is committed crime have to have his/her crime cancelled. Therefore, cancellation is a must. Before the restoration of rights, Hegel emphasis the importance of adjudication and afterwards the compensation connected to measure of the crime. (§98) Is it possible to measure certainly both the violation to rights 3 and people capacity to understand the rights? Moreover, law is not something that can be harmed because it has external existence. So, how could we understand the size of infringement of rights? "The positive existence of the injury consists solely in the particular will of the criminal"(§99) so, there is a criminal will that is denying victim as a human being. Therefore, "Punishment, coercion against the will of the criminal, is necessary for the restoration of the rules of right." (§99) What I understood from here is, the harm that was given against to the criminal is cancellation of crime and restoration of right. I find this thesis defensible and; Cooper finds a conceptual connection between crime and punishment; but Steinberger cannot. (Cooper, 1971) (Steinberger, 1983) If we return the part of adjudication, if the right is violated, the person who violated is not punished -even if it is available to apply punishment- it must be accepted that what the criminal did is not guilty. If the crime is take over property of others, it means we are accepting those possessions belong to criminal now. How Hegel is giving that theory is 'would otherwise be regarded as valid' (§99) However, if guilty person is punished and then, the right is restored, not only victim but also victim's rights are protected. Much later in the book, Hegel stated, "it would be impossible for society to leave a crime unpunished - since the crime would then be posited as rights" (§218A) and I find it very plausible. Knowles is asking the question of "Does this argument advance a conceptual claim?" (Knowles, 2002) For Hegel, it is clear that, punishment with justice against infringement of right is not the matter of definition. So, I am asking is this really necessary to confront the methodology of Hegel? Knowles is favor of Cooper on the conceptual analysis. We may ask here, is public judgment of crime enough on the grounds of restoration of rights. Punishment is necessary; it means it is justifiable to the person who has respect to the rights as freedom. We can find more about this argument in his ideas on Civil Society and the administration of justice in it. Punishment is only legitimate and justifiable if and only if institutions of civil society in it to have public recognition of rights. Rights, in Abstract Rights, firstly explained in a universal sense, second, written in understandable sense and lastly, distributed in public. (§§ 209-229) So in the light of this argument, can we see Hegel as retributivist? Restoration of right in Hegel is public function. He will later explain it with 'the genuine reconciliation of right with itself'(§220) The rules are for people, known by people, valid for people and they are here for the protection of people. We cannot say that Hegel's aim is not only restoration of right because it is. 4 Until now, for the restoration of right part, I have explained legitimacy of punishment but I have not enter the main issue for me in Hegelian restoration of right is 'punishment is the right for the criminal' argument. In the part, §100, Hegel says that, what is done to the criminal for the restoration of crime is just in itself and also right for criminal himself/herself. That right is in his/her existent will and in his/her action. The criminal is accepted as rational being; s/he formed the rights, and s/he recognized them. Firstly, how would be harm on criminal possible to be just in itself? For Hegel, punishment is applying the right. Criminals are human beings and they can understand and respect the right. Therefore, punishment is a right of criminal and criminal like every other person must be punished. Criminals, are aware of the consequences of what have they done like every other person, know what other people would react to his/her crime, would react with punishment if another person commit that crime. Those are the definition of that person being rational. Shortly, criminals cannot resist the punishment because they would do counter to them. How Hegel call it is 'negative infinite judgment' as Knowles says, ' denying the victim's capacity for rights.' The criminals are also right holders so they must be honored as a rational being. (§100R) Briefly, negation of crime as negation is not the best option but doing nothing is the worst. The main duty of punitive authority is to find the best way to negate the crime but we will be talking more on this topic in the next section. How punishment issue takes place in the ethical life and civil society, because clearly, we need state to execute them. In administration of state that is in the civil society section- he is opening the punishment issue. In the Abstract right section, punishment is more like about practice but in the civil society section, he approaches the punishment issue more philosophically. Moreover, he mentions institutional situation of punishment; and what we can face in practice while executing punishment. Crime in this section is seen as rejection of principles of civil society that exist to protect our rights. Knowles claims that if Hegel did not remove the state issues from contract, he could easily have punishment argument that makes sense. (Knowles, 2002, s. 153) Nevertheless, as we can clearly see, Hegel examined rights on the ground of rational principles as he said "rationality in and for itself which the state must enforce with or without the consent of individuals" and this could be actualized with "the formal rationality of the individual's volition". (§100)Therefore, what about the universality of what the criminal did; that is a thing we can only talk when only criminal accept. Did Hegel have mistake by confusing hypothetical contract with actual consent? Because, is it possible to criminals have no idea what they are doing is wrong or legitimacy of punishment against violation? Knowles says, 5 then we cannot defense that criminals accept the punishment in advance. However, I claimed that, even if it is hypothetical contract not actual consent, Hegel still gave many convincing premises to the argument of "criminals accept the punishment in advance" such as rationality of human being. One-step ahead from this is the argument of him on punishment is the right of the criminal. Even if the criminals have rejected the being human of the victims, criminals too are human beings, so we have to behave them as it is. He says, "Honored as rational being. - He is denied this honor if the concept and criterion of his punishment are not derived from his own act." (§100R) Therefore, there is no way to think us the punishment cannot come from the crime itself. If punishment does not come from the crime itself, it means punishment does not care about cancel the crime in the sake of justice as it is in non-retributivist theories. As we come to the issue the nullity, criminal acts are null firstly because 'it attempts to do what cannot be done; secondly because, 'coercing the right that cannot be coerced'(§91) and lastly, because 'it tries to violate universal will. (§99) Wood claims these are not the reason criminal acts are null, (Wood, 1990, s. 112) Wood also criticizing Hegel because he is claiming that criminal acts are self-destructive so they are null. (§92) When somebody coerces other by violating him/her rights former's will negate the latter one's will, where is the self-destructive on it? I do not agree with Wood, force and coercion is self-destructive because they are the expressions of will that negates the existence of a will. Therefore, force and coercion are contrary to right. Last point I want to mention is criminal's consenting to be punished. We are giving consent to be punished long before we commit crime. Hegel states, "When I commit crime, I set up a law making it permissible for others to violate my right to the same extent that my crime violates the right of its victim." (§100) As Stillman uses a note from the version of The Philosophy of Rights edited by Knox, "the verdict of his peers is the verdict of the criminal's own" (Stillman, 1975, s. 175) As a result, crime must be punished otherwise doing it becomes valid; therefore punishment restores the rights. As we understand from those we talked is the main reason to punish is to prevent criminal acts in the society. Crime is negation of right and punishment is actuality of that right because it is correcting the wrong. In §97A, it is stated that punishment is negation of the negation. 6 How should be the punishment? Being just requires people to be punished if s/he is criminal and Hegel claims it is criminal's right to be punished. Crime is pain and also punishment is pain. That means, for the punishment, to be able to use injury on another person it needs some justification. For the question of 'how should be the punishment', Mctaggart starts to answer with the four ways of justification of punishment. (McTaggart, 1972) The first is vindictive theory. It means we must make the person suffer whoever did something wrong; regardless it brings us at the end good or bad. Second way of punishment is deterrent one that could seem desirable to cut the wrongdoings in the society. It contains make people fear and whoever wants to commit that crime will reconsider it. In the first two, our justification aim only is possible with punishment. First one requires to make really unhappy the criminal and second one includes only preventing the next one to do the same with frightening. Next two have features that could be useful in another sense. Third one has some ways to prevent our specific criminals to commit a new crime. For instance, that person cannot steal or cannot kill again while s/he is in prison. Last one is that we can call it rehabilitation of that criminal. We can say Hegel support first one but not exactly, he has on his mind something different. Clearly, he is criticizing 'punishment as prevention, as a deterrent, a threat, a corrective'(§99A) Even Hegel accept punishment sometimes can have those features but none of them could be the main purposes of the punishment. However, I am persuaded that Hegel does not have significant intention to defend vindictive theory of punishment. I can come with this idea with he is supporting that in punishment, criminals must be treated as human being, they must be honored as human beings. I will talk about it later on retribution part but briefly, Hegel cannot be deterrent because according to him, that theory treats people like treating to animals. We can say that, he is refusing the punishment to have deterrent features. That idea sees punishment as necessary evil to serve utilitarian theories. He says, "the precise point at issue is wrong and the righting of it. If you adopt the superficial attitude to punishment, you brush aside the objective treatment of the righting of wrong, which is primary and fundamental attitude in considering crime." (§99R) Therefore, cancellation of crime and restore the right are the only important issues on punishment. The method of punishment of Hegel is that criminal is doing something wrong and denies the moral rights. Punishment is enforcing pain on the criminal because he has done it. With this way, he is forced to recognize the rights that he denied while he commits crime. 7 What is then the proper way of punishment for Hegel? What should punishment look like? Punishment must be fit to the crime; it should come from his criminal actions. (§100) Crimes are same on the ground of contains violation of rights but they are all different, so punishment for each must be different and proper to them. What Stillman understands from here is if punishment fits the crime, and criminals were aware before the crime and it means they have chosen their punishment. (Stillman, 1975, s. 175) It seems easy to say retribution will work for the sake of how to find proper punishment; but how Hegel draws the theory with argument and premises. Clearly, Hegel does not support eye for an eye retribution -that I will explain retribution more on next part-. This kind of retribution to punish the criminal is so far away from humanity. So, how should be the punishment, it should be away from certain equality to the crime and it should have equality of value. All crimes are different in any sense so we need to think about it first before 'immediate execution'. It provides us to differentiate crimes. Hegel mentions that different seriousness level comes from 'the quantitative extension and qualitative determinations'(§96R) of the negations of rights. What we should not forget is not only crime but also punishment is injuries and 'as injuries, they are comparable.'(§101R) Knowles criticizing Hegel for not to talk much about how we can judge this equality (Knowles, 2002, s. 158) but my answer is Hegel is talking less about it because it depends on where you live, when you live. However, there is something definite, that is, crimes that are more serious must be punished by the ways of punishment that is more serious. In addition to this, "a criminal code cannot be valid for every age."(§218A) To summarize, retributivist approaches to the punishment demand equality with crime. Question here is how to measure this equality? Although consequentalist theory picks what brings more good; retributivist theory is independent from the end. However, do I have to pay equal to how much I have stolen? What we should do if compensation is not available? We did examine with Hegel the old saying 'eye for an eye' and he does not mention any definite equation. It must be equal on value just like he says ' Crime and punishment should be regarded as equivalent in more abstract sense, in their value' (§101) and lastly, we cannot find this value-equivalence only by thinking for ourselves, 'positive laws are necessary.'(§96A) Retribution on Hegel vs. Retribution on Marx Punishment is social practice of executing pain in reply to the crime. Punishment must be done by punitive authorities because clearly you have done something wrong that is accepted as wrong by the authorities. That means, you as a private person cannot punish people just because s/he has 8 done something wrong to you. Doing something just because in response to wrongdoing is retributive concept of punishment. Practice and justification are two different concepts. People are accepted that mostly what they are looking for is good consequences. Maybe, with beneficial influence on criminals, maybe with deterrent features, maybe with moral education, it could be possible that society is being satisfied by enforcing punishment. If people guard some expectations like those, they cannot be accepted as retributivist. People who concerned how to justify practice of punishment could seem like retributivist according to Allen Wood. (Wood, 1990, s. 108) What justice want is having a harm on criminals. It is also possible that retributivism could have good consequences but it does not mean retributivism is a consequentalist approach of the punishment. What retributivism denying is to have first purpose as good results while justifying punishment. The main important issue according to retributivist is to give some harm on the person who makes something wrong. According to Wood, Hegel is genuinely a retributivist. (p.109) Hegel is denying all approaches that are trying to justify punishment just because it has good consequences. The main purpose is 'that crime is to be cancelled, not as the production of an evil, but as the violation of the right as right." (§99R) Therefore, punishment is negation of crime and it is in and for itself. The term, punishment, is belonging to abstract right in Hegel because punishment is an answer to crimes that are violations of abstract right. (§81) Crime involves coercion that is insult for person's free will and; gives harm to the person's free will knowingly; therefore, crime 'violates the right as right(§95) If cancellation is crime is executed by not punitive authorities but by a private person, it is revenge for Hegel that I will explain it detailed further. Revenge is itself a new crime and it requires its cancellation. Therefore, revenge causes revenge circulation repeatedly. Only it arrives its end when public authority gives the punishment with universal acceptance. Moreover, there is an issue that Hegel calls crime as null because punishment is violation of violation just like crime does harm knowingly. Punishment of the criminals is again a crime because the criminal is eventually is a person who has right to have property and freedom himself/herself. I thought it was a good idea to talk briefly about Marx account of retribution because as we know Marx is considered as young or leftist Hegelian, so it would be interesting to see his ideas through Hegel's. Marx is saying, "What right have you to punish me for the amelioration or intimidation of others?" (Marx, 1853) However, Jefrrie Murphy claims, in his article, just like Hegel, Marx also sees punishment as a right of the criminal. Moreover, not like Hegel, he is also looking for is it possible us to have a good result from the 9 punishment. He is also interested in what is just to do, even if he is escaping to use 'justice' as a word and a term because he believes, those terms belongs to the bourgeois society. (Murphy, 1995, s. 6) We can say that, Marx also sees retributivism as only justifiable way of punishment. In some societies, retributivism is seems inapplicable because retributivism functions to give us a 'transcendental sanction' as Marx says. In those societies, moral justifiable theories of punishment become inapplicable. Therefore, those societies are having lack to punish in regard of moral rights. However, the main issue in Marx is how any person is having a right to punish me by applying coercion on me. Eventually, we are living in a society that has features of deception and inequalities. According to Knowles, retribution could be clearly explained in two concepts. First one is 'general justifying aim' of punishment. Second one is 'appropriate measures of punishment' (eye for an eye) (Knowles, 2002, s. 154) Of course, I am clear that Hegel is following the first way of retribution. Most of the time, he is comparing his ideas with the non-retributivist theories especially consequentialists' those are in favor of seeing punishment 'as prevention, as a deterrent, a threat, a corrective. 'These people are using punishment as evil to have good result; and criminals are been using to create good. Right here, Hegel criticizing Feuerbach 'treating a human being like a dog instead of respecting his honor and freedom.'(§99A) Hegel totally disagrees to use a human being as a means to something different even if for the good purposes. It was one of my motivations to defend Hegel's view of punishment, that I will explain it further in the conclusion part, to put it briefly, he is giving importance to the high honor of human being. To summarize, consequentialist approach is not treating human being as rational being because they are using criminals for their expected-well-ended purposes and they are denying to see criminals too as right holder. We have discussed two arguments of Hegel so far, restoration of right and punishment as right of criminal. He is giving final image to his idea of punishment later in the civil society section. We must accept that punishment belongs to the punitive authorities of civil society because pursuing punishment is not something matter of private persons, if so, it will be revenge, he says in §102, revenge also just in itself but its form as private is not just. When a person is harmed, he will be given his right to prosecute to the legal authorities and those legal authorities take over the right to cancellation of crime. Revenge would be personal and it could lead another crime but not punishment; on the other hand, legal authorities take over the case and they turn it to the punishment. 'no act of revenge is justified'(§220) 10 Conclusion I find the theory of punishment that is presented by Hegel as respectful to human being as the most honorable of the creatures. Without including pure authority, without moving away from humanity in civil society, having punishment without making it power demonstration; Hegel only aims to have punitive system to only punish the crime to ensure the society is surviving. Therefore, I will explain lastly, what I take out from all these arguments. Firstly, Hegel's view of punishment is not totally retributivist in traditional sense. Another is, what blame or charge the criminals is their selves, their criminal actions, not another or not anything else. Their actions make them available to the punishment. Second is, after looking at all the other topics in the book, the theory of punishment is not abstract or metaphysical; he is giving us materials to able us understand, he is justifying what he says. All premises will follow if we are deal them coherently. 5.6.17 11 References Cooper, D. E. (1971). Hegel's Theory of Punishment. In Pelczynski, Hegel's Political Philosophy (p. 151167). Hegel, G. (1991). The Elements of Philosophy of Right. Cambridge University Press. Hinchman, L. P. (1982). Hegel's Theory of Crime and Punishment. Review of Politics, 523-545. Knowles, D. (2002). Routledge Philosophy Guidebook to Hegel and the Philosophy of Right. Taylor&Francis. Marx, K. (1853). Capital Punishment. New York Daily Tribune, https://www.marxists.org/archive/marx/works/1853/02/18.htm. McTaggart, J. E. (1972). Hegel's Theory of Punishment. In G. Ezorsky, Philosophical Perspective on Punishment (p. 479-502). State University of New York Press. Morris, H. (1999). Persons and Punishment. In J. 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