90. Since in property my will is embodied in an external thing, it follows that just as far as my will is reflected in that object, I can be attacked in it and placed under external compulsion. Hence my will may be enforced. Violence is done to it, when force is employed in order to obtain some possession or object of desire.
Addition.— In crime, which is wrong in its proper sense, neither right in general nor my personal right is respected. Both the objective and the subjective aspects of right are set at defiance by crime.
91. As a living creature a man may be compelled to do a thing; his physical and other external powers may be brought under the force of another. But the free will cannot be absolutely compelled (§5), but only in so far as it does not withdraw (§7) out of the external, to which it is held fast, or out of the imaginative reproduction of the external. It can only be compelled when it allows itself to be compelled.
92. Since it is only in so far as the will has visible existence that it is the idea and so really free, and its realized existence is the embodiment of freedom, force or violence destroys itself forthwith in its very conception. It is a manifestation of will which cancels and supersedes a manifestation or visible expression of will. Force or violence, therefore, is, according to this abstract treatment of it, devoid of right.
93. Since it in its very conception destroys itself, its principle is that it must be cancelled by violence. Hence it is not only right but necessary that a second exercise of force should annul and supersede the first.
Note.— Violation of a contract through failure to carry out the agreement, or violation of the legal duties toward the family or the state, through action or neglect, is the first violence. It is an exercise of force, if I retain another ’s property, or neglect to do some duty. Force exercised by a teacher upon a pupil, or by any one against incivility and rudeness, seems to be the first act of violence, not caused by any previous display of force. But the merely natural will is of itself a violence to the universal idea of freedom; and against the inroads of the uncivilized will the idea of freedom ought to be protected and made good. Either there must be assumed within the family or state a moral and social atmosphere, against which a crude naturalness is an act of violence, or else there is at first everywhere present a natural condition or state of violence, over which the idea has the right of mastery.
Addition.— In the state there can be heroes no more. They appear only in uncivilized communities. The aim of the hero is right, necessary and in keeping with the state; but he carried it out, as if it was his own private affair. The heroes, who founded states, and introduced marriage and husbandry, did not in this realize a recognized right. These acts issue merely from their particular wills. Yet as they imply the higher right of the idea against a merely natural state of things, their violence is lawful. Little can be effected against the force of nature merely by goodness.
94. Abstract right is a right to use force. A wrong done to this right is a force exercised against my liberty realized in an external thing. The preservation of my realized freedom against force must be itself an external act, and therefore a second force, which removes the first and takes its place.
Note.— To define strict abstract right as the right to use compulsion is to apprehend it as a result, which enters first of all by the roundabout way of wrong.
Addition.— Here may well be observed the difference between right and morality. In morality or the sphere in which I turn back into myself there are also two sides, for in it goodness is for me an end, and in accordance with this idea I must direct my life. Goodness is embodied in my resolution, and I realize it in myself. Yet this resolution is wholly internal, and, as a consequence, is not subject to coercion. The civil laws do not seek to stretch their control over the disposition. In morality I am independent, and the application of external force has no meaning.
95. A first violence, exercised by a free man, and doing injury to the concrete embodiment of freedom, namelv right as right, is crime. Crime is the negative-infinite judgment in its complete sense. It negates not only the particular object of my will, but also the universal or infinite, which is involved in the predicate ‘mine,’ the very capacity for possessing rights; nor does it even utilize my opinion, as in fraud (§88). Here we are in the realm of criminal law.
Note.—The right, to injure which constitutes crime, has indeed so far only the features we have pointed out; and crime has a meaning determined in each case by these special features. But the substance of these forms of right is the universal which remains the same in all its subsequent developments and modifications. So also crime remains the same in accordance with its conception. Hence the phase, noticed in the next paragraph, refers to particular and definite contents, as, e.g., perjury, treason, counterfeiting, forgery, etc.
96. The actualized will, which alone is subject to injury, has, of course, a concrete existence, and varies, therefore, both in quality and in quantity. This variation gives rise to differences in the objective side of crime, which may injure only one side or phase of the will, or again, its whole concrete character and range, as in murder, slavery, and religious persecution.
Note.—The Stoic theory that there is but one virtue and one vice, the Draconian statutes, which punished every crime with death, and the barbarity of the formal code of honour, which found in every injury an unpardonable insult, all in common cling to the abstract view of the free will and personality, and refuse to take them in that concrete and definite realization which they must have, if they are to realize the idea.— Robbery and theft differ in quality, because in robbery personal violence is done to me as an actually present consciousness and as this selfdetermined subject.—Many qualitative phases of crime, as, for instance, an act done against public safety, are determined by definite social relations, and may be deduced from the conception, although they are often made in a roundabout way to depend upon consequences. A crime against public peace is of itself in its own direct composition heavier or lighter according to its extent and quality. The subjective moral quality referring to the higher distinction, as to how far the act is done consciously, will be dealt with later.
Addition.— Thought itself cannot determine how every single crime is to be punished. In many cases the positive features of the act must be considered. By the progress of civilization the estimate of crime becomes milder, to-day the criminal being punished less severely than he was a hundred years ago. It is not exactly that the crime or the punishment has become different but the relation between the two.
97. An injury done to right as right is a positive external fact; yet it is a nullity. This nullity is exposed in the actual negation of the injury and in the realization of right. Right necessarily brings itself to pass by cancelling the injury and assuming its place.
Addition.—By crime something is altered, and exists as so altered. But this existence is the opposite of itself, and so far null. Nullity consists in the usurpation of the place of right. But right, as absolute, is precisely what refuses to be set aside. Hence it is the manifestation of the crime which is intrinsically null, and this nullity is the essential result of all crime. But what is null must manifest itself as such, and make itself known as that which violates itself. The criminal act is not the primary and positive, to which punishment comes as the negative. It is the negative, and punishment is only the negation of a negation. Actual right destroys and replaces injury, thus showing its validity and verifying itself as a necessary factor in reality.
98. Injury, confined merely to external reality or possession of some kind, is detriment or damage to property or wealth. The cancellation of the injury or damage takes, when possible, the form of civic satisfaction or compensation.
Note.— When damage consists in the destruction of something which cannot be restored, compensation must take the form not of a particular object but of the universal quality, namely, value.
99. The injury which befalls the intrinsic or general will, the will, that is, of the injurer, the injured and all others, has just as little positive existence in this general will as in the bare external result. The general will, i.e. right or law, is self-complete, has no external existence at all, and is inviolable. Injury is merely negative also for the particular wills of the injured and others. It exists positively, on the other hand, only as the particular will of the criminal, and to injure this will in its concrete existence is to supersede the crime, which would otherwise be positively established, and to restore right.
Note.— The theory of punishment is one of the matters, which in the modern positive science of right has fared worst. The attempt is made to base this theory upon the understanding, and not, as should be done, upon the conception. If crime and its removal, or, more definitely, punishment, are regarded merely as evil, it might indeed be thought unreasonable to will a second evil merely because one already existed. (Klein, “Grunds. des peinlichen Rechts,” §9 fol.) In the different theories of punishment, that it is preventive, deterrent, reformatory, etc., this superficial notion is taken to be fundamental. In the same superficial way the result of punishment is set down as a good. But here we are not dealing with an evil, and this or that good, but with wrong and justice. In these superficial theories the consideration of justice is set aside, and the moral aspect, the subjective side of crime, is made the essential. Also with the moral view are mingled trivial psychological notions about temptation, and the strength of sensual impulses opposing reason, about psychological compulsion also, and the influences affecting the imagination; it being forgotten that the subjective may freely abase itself to something contingent and unreal. The treatment of punishment in its character as a phenomenon, of its relation to the particular consciousness, of the effect of threats upon the imagination, and of the possibility of reform is of great importance in its proper place, when the method of punishment is to be decided on. But such treatment must assume that punishment is absolutely just. Hence everything turns on the point that in crime it is not the production of evil but the injury of right as right, which must be set aside and overcome. We must ask what that is in crime, whose existence has to be removed. That is the only evil to be set aside, and the essential thing is to determine wherein that evil lies. So long as conceptions are not clear on this point, confusion must reign in the theory of punishment.
Addition.—Feuerbach, in his theory of punishment, considers punishment as a menace, and thinks that if any one disregards the threat and commits a crime, the punishment must follow, since it was already known to the criminal. But is it right to make threats? A threat assumes that a man is not free, and will compel him by vividly presenting a possible evil. Right and justice, however, must have their seat in freedom and in the will, and not in the restriction implied in menace. In this view of punishment it is much the same as when one raises a cane against a dog; a man is not treated in accordance with his dignity and honour, but as a dog. A menace may incite a man to rebellion in order that he may demonstrate his freedom, and therefore sets justice wholly aside. Psychological compulsion may refer to distinctions of quality or quantity in crime, but not to the very nature of crime. Books of law, written in accordance with the principle that punishment is a threat, lack their proper basis.
100. The injury which the criminal experiences is inherently just because it expresses his own inherent will, is a visible proof of his freedom and is his right. But more than that, the injury is a right of the criminal himself, and is implied in his realized will or act. In his act, the act of a rational being, is involved a universal element, which by the act is set up as a law. This law he has recognized in his act, and has consented to be placed under it as under his right.
Note.— Beccaria, as is well known, has denied to the state the right of exacting the death penalty, on the ground that the social contract cannot be supposed to contain the consent of the individual to his own death; rather, as he thought, must the opposite be assumed. To this it must be replied that the state is not a contract (§75), nor, moreover, are the protection and security of the life and property of individuals in their capacity as separate persons, the unconditioned object of the state’s existence. On the contrary, the state is the higher existence, which lays claim to the life and property of the individual, and demands the sacrifice of them.
Not only has the conception of crime, the reasonable essence of it, to be upheld by the state, with or without the consent of the individual, but rationality on its formal side, the side of the individual will, is contained in the act of the criminal. The criminal is honoured as reasonable, because the punishment is regarded as containing his own right. The honour would not be shared by him, if the conception and measure of his punishment were not deduced from his very act. Just as little is he honoured when he is regarded as a hurtful animal, which must be made harmless, or as one who must be terrified or reformed.—Moreover, punishment is not the only embodiment of justice in the state, nor is the state merely the condition or possibility of justice.
Addition.— The desire of Beccaria that men should consent to their own punishment is reasonable, but the criminal has already yielded consent through his act. It is both in the nature of crime and in the criminal’s own will, that the injury caused by him should be superseded. In spite of this Beccaria’s efforts to abolish capital punishment have had good results. Although neither Joseph II nor the French have ever been able to obtain complete abolition of the deathpenalty, still we have begun to see what crimes deserve death and what do not. Capital punishment has thus become less frequent, as indeed should be the case with the extreme penalty of the law.
101. The doing away with crime is retribution, in so far as retribution is in its conception injury of an injury, implying that as crime has a definite qualitative and quantitative context, its negation should be similarly definite. This identity, involved in the very nature of the case, is not literal equality, but equality in the inherent nature of the injury, namely, its value.
Note.— If we were to deduce our definition of punishment, as science usually does, from accepted opinions as to the psychological experiences of consciousness, we could prove that in nations and individuals there is and has been a universal feeling that crime deserves punishment, and that it should be done to the criminal according to his act. Yet the sciences, which have drawn their decisions from universal opinion, the very next moment adopt conclusions at variance with their so-called universal facts of consciousness.
The category of equality has introduced much difficulty into the general notion of retribution. The view that it is just to mete out punishment in proportion to the special context of the crime, of course arises later than the essential relation of punishment to crime. Although, in order to make this essential relation specific, we must look about for other principles than merely the general principle of punishment, yet this general principle remains as it is. And more, the conception itself must contain the basis for special applications of it. The conception, made thus specific, implies of necessity the judgment that crime, as the product of a negative will, carries with it its own negation or punishment. This inner identity is reproduced by the understanding in the sphere of actual reality as equality. The quantitative and qualitative context of crime and its removal belongs to the external region, in which no absolute rule can be laid down (compare §49). In the region of the finite this rule of equality is only a demand which, as it is important to note, the understanding must more and more hold in check. However it goes on ad infinitum, and permits only of a continual approximation.
If we fail to observe the nature of the finite, and cling to absolute equality in matters of detail, there arises first of all the insuperable difficulty of fixing the kind of punishment. To do this satisfactorily psychology would have to reckon with the magnitude of the sensual motives, and also with whatever accompanies them as, e.g., the greater strength of the evil will, or the weakness of the will, or its limited freedom. But that is not the sole difficulty. To adhere obstinately to the equalization of punishment and crime in every case would reduce retribution to an absurdity. It would be necessary to institute a theft in return for theft, robbery for robbery, and to demand an eye for an eye and a tooth for a tooth, although the criminal, as we can easily fancy, might have only one eye or be toothless. For these absurdities, however, the conception is not responsible. They are due to the attempt to equate crime and punishment throughout their minute details. Value, as the inner identity of things specifically different, has already been made use of in connection with contract, and occurs again in the civil prosecution of crime (§95). By it the imagination is transferred from the direct attributes of the object to its universal nature. Since the essential character of crime lies in its infinitude, i.e., in the breach of its own right, mere external details vanish. Equality becomes only a general rule for determining the essential, namely, a man’s real desert, not for deciding the special external penalty. Only when we limit ourselves to equality in the external details are theft and robbery unequal to fine and imprisonment. But from the standpoint of their value and their general capacity to be injuries, they can be equated. To approach as nearly as possible to this equality in value is, as has been remarked, the task of the understanding. If we ignore the relation of crime to its cancellation, and neglect the idea of value, and the possibility of comparing these two in terms of their value, we can see in punishment nothing more than the arbitrary attachment of an evil to an act not permitted (Klein, “Grunds, des peinlichen Rechts,” §9).
Addition.— Retribution is the inner connection and identity of two things which in outward appearance and in external reality are different. Requital seems to be something foreign, and not of right to belong to the criminal. But punishment is only the manifestation of crime, the other half which is necessarily presupposed in the first. Retribution looks like something immoral, like revenge, and may therefore seem to be something personal. But it is the conception, not the personal element, which carries out retribution. Revenge is mine, says God in the Bible, and, when some find in the word re-tribution the idea of a special pleasure for the subjective will, it must be replied that it signifies only the turning back of crime against itself. The Eumenides sleep, but crime wakes them. So it is the criminal’s own deed which judges itself. Although in requital we cannot venture upon equality of details, the case is different with murder, to which death is necessarily due. Life is the total context of one’s existence, and cannot be measured by value. Its punishment, therefore, cannot be measured by value, but must consist in the taking of another life.
102. In the sphere of direct right the suppression of crime takes, in the first instance, the form of revenge. This in its content is just, so far as it is retribution; but in its form it is the act of a subjective will, which may put into any injury an infinite or unpardonable wrong. Hence its justice is a matter of accident, and for others means only private satisfaction. As revenge is only the positive act of a particular will, it is a new injury. Through this contradiction it becomes an infinite process, the insult being inherited without end from generation to generation.
Note.— Wherever crime is punished not as crimina pub-lica but as privata, it still has attached to it a remnant of revenge. This is the state of affairs with the Jews, with the Romans in theft and robbery, and with the English in some special instances. Differing from private revenge is the exercise of revenge by heroes, adventurous knights, and others, all of whom appear when the state is in its infancy.
Addition.— In that condition of society where there are no judges and no laws, punishment always takes the form of revenge. This is defective, as it is the act of a subjective will, and has an inadequate content. Judges are persons, it is true, but they will the universal meaning of the law, and insert into punishment nothing which is not found in the nature of the act. But the injured person, on the other hand, may view the wrong act not in its necessary limits of quality and quantity, but simply as a wrong, and may in requital do what would lead to a new wrong. Amongst uncivilized peoples revenge is undying, as with the Arabs, amongst whom it can be suppressed only by a superior force or by impossibility. In several of our present regulations a trace of revenge survives, as when it is at the option of individuals to bring an injury to trial at court.
103. That the contradiction involved in this way of abolishing crime, and the contradictions found in other cases of wrong (§§86, 89), should be solved, is a demand made by a justice which is freed at once from all subjective interests and limits and from the arbitrariness of power. Justice, therefore, does not revenge but punishes. Here we have in the first instance the demand of a will, which, while particular and subjective, wills the universal as such. But the conception of morality is not simply demanded, but is in the process created.