Wednesday, January 25, 2006

The right to be punished

A quote is hidden (Read...) below, from Dubber's description of Hegel's theory in 16 Law & Hist Rev 113, "The right to be punished". I am pretty sure that in one of Plato's dialogues, the Phaedo I believe, Plato says basically the same thing--that the criminal wants to be punished, and has acted so his punishment is the logical entailment of his act. This seems like the germ of Hegel's insight, of course worked out with more pomp and germanicity by Mr. Hegel. (Click on "Read..." to see more)
Although both Fichte and Kant had previously postulated a right to be punished, it was Hegel who built his theory of
punishment on that right. His account, however, added little to the principle of self--government captured in the Kantian
categorical imperative. n15 It appears in the first section of the Philosophy of Right, Abstract Right, where Hegel worked
out the theory of law that Kant had outlined in the Rechtslehre. n16

For Kant, to be free meant to be autonomous, that is, both to be governed by no one else's rules (no mere means to
another's end) and to be governed by one's own rules (not willkurlich). n17 It was the great hope (and the assumption)
of Kant, and the Enlightenment more generally, that the distinction between these two sets of rules would become
meaningless. The relevant community would expand beyond parochial boundaries to include all rational beings who were
governed by rational rules that were both their own and those of every other member of the community.

The community of criminal punishment in particular was to be an aspirational community of rational persons.
The great humanitarian core of Kant's and Hegel's philosophy of punishment lay in the demand to treat offenders as
identical to their judges because they shared the same baseline formal rationality. That rationality Kant had defined as the
universalizability of one's acts. n18 Similarly, to the Hegel of Abstract Right, rationality meant "self--conscious [*118]
universality." n19 Thus, to treat an offender (or for that matter any other person) as rational meant to assume that his acts
followed norms that could be applied to every other rational being. n20
According to Hegel, the offender's right to punishment arose from the application of the norm governing his criminal
act to every rational being, including himself. n21 Punishing him thus treated the offender as rational in two senses:
first, by assuming the universalizability of his act, and, second, by applying the universalized norm to him as a rational
person. But, as Hegel saw it, the norm governing the offender's criminal act was merely the violation of a universal norm
manifesting the "neminem laede" of Kantian legal theory, that is, a norm safeguarding the autonomy of the immediate
victim of the crime and all other rational persons. To apply this violation of a universal norm to the offender as though it
were itself a universal norm meant to beat the norm at its own game, to call its bluff, so to speak.

When all was said and done, the authority of the law had been reaffirmed (by confidently ignoring the pernicious
substance of the norm governing the criminal act and treating it abstractly as but one instance of a universalizable norm),
and so had the offender's rationality. Punishment, the violation of the universal norm also protecting the autonomy of the
offender as a rational person, had affirmed the offender's autonomy as a rational person. The paradox of punishment lay
in the affirmation of the offender's autonomy by his autonomous deprivation of that autonomy. In Hegelian terms, the
negation of right that is punishment had exposed the negation of right that is crime as fleeting and had thereby reaffirmed
right. n22 Two wrongs had made a right, which, in Hegel's words, was also the offender's right because it governed all
rational beings and therefore also the offender. n23

Thus, according to Hegel, the offender's right to punishment emerges as another manifestation of the principle of
autonomy. In the condensed phrase of the English Hegelian J. D. Mabbott, "retribution is the agent's own act." n24 As the
objective applicability of penal norms to the offender reflected his autonomy as a rational person, so did their subjective
application to a particular offender. If the offender did not confess and thereby recognize the application of a given penal
norm to himself as an actual reflection of his rationality, the [*119] jury as a reflection of the "criminal's soul" could
ensure at least an indirect self--application of the norm. n25 Finally, even the penal norm itself was to be grounded in
the offender's autonomy by assigning its definition to representatives of the state community, to which the offender also
belonged. n26

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