Punishment 'In the Realm of Finite Things': Hegel and the Justification of Real-World Penal Sanctions

Abstract

This paper revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

Keywords: Hegel, Philosophy of Right, retributivism, subjective justification of punishment, penal minimalism, suffering, death penalty