Freedom·Reason·Justice

As one of the representatives of german idealism, Hegel’s theory of crime and punishment plays an important role in the history of the philosophy of law, and also brings a profound impact on the theory and practice of criminal law of later generations. It is generally believed that: in terms of the theory of crime, Hegel insists objectivist stance and acknowledges the free will of criminals; in terms of the theory of punishment, Hegel is an absolute legal retributivist and takes the Wiedervergeltung of law as the only justification of punishment; in terms of the theory of responsibility, Hegel as well as other representatives of Classic Criminal Theory agrees that the ground of criminal responsibility is the moral obligation that one should take responsibility for himself. However, the common argument for the claim that Hegel’s theory of punishment belongs to retributivism is being questioned. Moreover, as early as the beginning of this century there were some scholars who proposed the idea that Hegel offers “a single, conherent theory of punishment that brings together retributivist, deterrent and rehabilitative elements without substantial conflict”(Brooks, 2007). The query of academics and the idea of Brooks prompted the author back to Hegel’s text and reinvestigate his theory of crime and punishment. The result of the author’s investigation is in line with the idea of Brooks. Hegel overcomes the external contradiction between retributivism and the theory of prevention by freedom, reason and justice, so that his theory is of huge theoretical tension.Besides introduction and conclusion, the main text is divided into five parts:The first part briefly describes the theoretical basis of Hegel’s theory of crime and punishment, i.e. his huge philosophy system. Spekulative Logik is the skeleton that prop up the huge system, and spirit is its life. Natural philosophy is the externalization of spirit, and spiritual philosophy is the return of spirit. The subjective spirit is the spirit embodied in the individual, the objective spirit is the spirit embodied in the nation and world history, and the absolute spirit is the spirit embodied in art, religion and philosophy. Reason and freedom are two sides of the spirit. The end of the development of subjective spirit is Vernünft, and the mission of objective spirit is to realize der freie Wille. Recht is the Dasein of free will, so the structure of philosophy of law is the development of free will, e.g. abstractes Recht, Moralit?t and Sittlichkeit correspond to the three stages of free will– an sich, für sich and an und für sich.The second, third and fourth part reinvestigated Hegel’s theory of crime and punishment. Free will is Person and property in abstract law. However, the dialectical movement of free will makes Recht inevitablely toward Unrecht, which is the root of crime. As a Dasein which is inconsistent with it’s Begriff, crime is just a Schein, Nichtigkeit is its Bestimmung. Due to the lack of Wesen, crime is bound to be denied. As the denial of crime, punishment is the inevitable requirement of logic, and is not for arbitrary, accident, selfish desire or any utilitarian purpose. Freedom, reason and justice are the three elements that lay the foundation of the legitimacy of punishment. On one hand, punishment protects the effectiveness of law. On the other hand, it makes criminals regain their inner freedom. As rational beings, criminals legislate for themselves in crime. The implementation of punishment is based on the consent of criminals, and therefore reflects the respect for criminals. Punishment also serves as a mean of retribution of justice. Justice not only constitutes the intrinsic meaning of punishment(i.e.Zwang für Zwang), but also determines the basic principle of sentencing(i.e. the inherent equivalency of crime and punishment). The premise of punishment is crime. The constitution of crime must comply with the principle of unity of subjective and objective. Crime is confirmed only if the intention of the subject covers the objective illegal act and its consequence. The adaption of crime and punishment as well as legality are the basic principle of conviction and sentence.The fifth part introduces the common opinion of the theory of crime and punishment, in order to sort out the standpoint of Hegel’s criminal theory that maintained by the mainstream view in the debate of different school, as well as differentiate and analyze the similarities and differences between the theories of criminal law of Bentham, Feuerbach, Beccaria, Kant and Hegel’s.The conclusion of this paper questioned the mainstream view. It points out the one-sidedness of the commom argument that consider Hegel’s theory of punishment as absolute retributivism. It also respond to the important viewpoint proposed by Brooks that Hegel’s theory of punishment is the combination of different punishment theories. Moreover, the author interpreted how Hegel use freedom, reason and justice to establish the legitimacy of punishment and constitute a comprehensive theory of punishment, and hopes to bring a bit of inspiration for researchers of related field.