Annulment retributivism: A Hegelian Theory of Punishment

Legal Theory

Volumn 5, Issue 4, 1999, Pages 363-388

  Anderson, Jami L ^a  

^a UNIVERSITY OF MICHIGAN FLINT   (United States)

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EID: 84993821930     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325299054014     Document Type: Article

References (27)

1. Jeffrie Murphy writes, “Even many people who do not like the name ‘retributivist’ are persuaded by considerations that are clearly retributive in nature. Suppose it was suggested that we punish negligent vehicular homicide with life imprisonment and first degree murder with a couple of years in jail, and suppose this suggestion was justified with the following utilitarian reason: Conduct of the first sort is much more common and dangerous than conduct of the latter sort (we are much more likely to be killed by a negligent driver than by someone who kills us with the primary object of killing us), and thus we should use the most severe deterrents against those who are genuinely dangerous. If we object to this suggestion, as most of us would want to, that this would be unjust or unfair because it would not be apportioning punishment to fault or desert, we should be making a retributive argument. Thus even if the label ‘retributivist’ repels most people, many of the actual doctrines of the theory do not.” Jeffrie Murphy, RETRIBUTION, JUSTICE, AND THERAPY 230 (1979).
2. This interpretation of Kant's theory of punishment has been developed by Herbert Morris, Persons and Punishment, 52 MONIST 475 (1968), and Murphy, “Even many people who do not like the name ‘retributivist’ are persuaded by considerations that are clearly retributive in nature. note 1.
3. Murphy comes to the conclusion that the punishment of such individuals is unfair and, therefore, unwarranted. See Jeffrie Murphy, Marxism and Retribution, in Murphy, This interpretation of Kant's theory of punishment has been developed by Herbert Morris note 1, at 93-114.
4. See Jami L. Anderson, Reciprocity as a Justification for Retributivism, 16 CRIM. JUST. ETHICS 13-25(1997).
5. J.E. McTaggart lamented how little support Hegel's theory of punishment receives from the philosophical community. He writes, “It is not impossible that we may find out that the world has been acting on the Hegelian view for many ages, but as an explicit theory it has found little support.” J.E. McTaggart, Hegel's Theory of Punishment, 6 INT'L J. ETHICS 482-99 (1896). Peter Steinberger made a similar observation nearly 100 years later. See Peter Steinberger, LOGIC AND POLITICS ch. 3 n.1 (1988).
6. Someseparate theories of retributivism into two categories: those that followintheKantian (and Hegelian) tradition of insisting that retributive punishment is not only permissible, it is also obligatory, and those that break from Kantian tradition and claim that retributive punishment is permissible, but not obligatory. H.L.A. Hart is one notable example of someone who makes this distinction. See PUNISHMENT AND RESPONSIBILITY 231-37 (1963). I believe that abandoning the claim that punishment is obligatory is motivated by the desire to make the theory more appealing to those who are ambivalent about retribution. However, I do not think that such a move is successful; in fact, given that the theory of retribution rests on the claims that we are morally obligated to treat persons as autonomous agents and that retribution is how we treat a criminal with respect, I do not see how it could not be obligatory to punish (retributively) criminals. But the development of that argument would take us too far afield of the purposes of this paper. For present purposes, because this paper focuses on Kantian Retributivism and Hegel's Annulment Retributivism-both of which are committed to the claim that punishment is obligatory-I will regard that claim as an important feature of retributivism.
7. Immanuel Kant, THE METAPHYSICS OFMORALS 140-41 (Mary Gregor trans., 1991), emphasis deleted.
8. Bentham's theory of punishment serves well as an example of a paradigmatically utilitarian theory of punishment. He writes, “[A]ll punishment is mischief: all punishment in itself is evil.” For Bentham, no punishment is ever justified in itself; the only morally acceptable reason for punishing a person is to promote happiness or to prevent greater harms. Jeremy Bentham, PRINCIPLES OF MORALS AND LEGISLATION ch. 13 sec. 2 (1781/ 1988).
9. A common criticism of the claim that the punishment must fit the crime is that it requires that we rape the rapist, torture the torturer, and so on. Murphy quite rightly points out that Kant is not committed to a literal reading of this passage; rather, all that he is committed to is the not implausible idea that a crime is a “debt” the criminal owes society and that she pays off that debt when she has made a payment (via punishment) that is proportionate to what she owes. See Jeffrie Murphy, KANT: THE PHILOSOPHY OF RIGHT 143 (1970).
10. See Herbert Morris, Persons and Punishment, in ON GUILT AND INNOCENCE 31-59 (1976).
11. I want to make it clear that Delgado is not primarily addressing retributivism; rather, he is attempting to show that a case can be made for defendants who have experienced RSB that is consistent with legal defenses currently used. I am using Delgado's arguments because he lays out the arguments relevant for this discussion. See Richard Delgado, ‘Rotten Social Background': Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, in PUNISHMENT AND REHABILITATION 249-73 (Jeffrie Murphy ed., 1995).
12. Delgado explicitly rejects this interpretation. He writes, “The rotten social background is relevant only in that it can cause an excusing condition. While a person's background encompasses his or her entire past, the excusing condition arises at a specific moment when the crime was committed. An individual always “carries” his or her background with him or her, but the jury must determine whether it caused an excusing condition at the time of the crime.” Delgado, I want to make it clear that Delgado is not primarily addressing retributivism; rather, he is attempting to show that a case can be made for defendants who have experienced RSB that is consistent with legal defenses currently used. note 12, at 260-61.
13. Delgado, Delgado explicitly rejects this interpretation. note 12, at 263-64.
14. Hegel, ELEMENTS OF THE PHILOSOPHY OF RIGHT, sec. 99A (H.B. Nisbet trans., 1991).
15. Hegel, Id. at secs. note 20, at sec. 97A. Throughout this paper I will be concerned only with crimes, actions that violate natural rights. I cannot here address civil disobedience or revenge. Although Hegel's analysis of these issues is interesting, it takes us too far afield for present purposes.
16. Hegel, Id. at sec. 51. note 20, at sec. 57A.
17. Hegel, PHILOSOPHY OF RIGHT (T.M. Knox trans., 1952) at sec. 96.
18. Hegel, Id. at sec. 101A note 28, at sec. 82A (emphasis added).
19. Hegel, Id. at sec. 97A note 20, at sec. 101.
20. Ted Honderich makes such an argument. He writes: “There is another retribution theory of very secondary interest…. A punishment is an annulment, a cancellation or a return to a previous state of affairs. Marriages, considered as contracts, can be annulled. Crimes cannot be, in any ordinary sense. My death or imprisonment, after I have killed a man, does not make things what they were before.” Ted Honderich, PUNISHMENT: THE SUPPOSED JUSTIFICATIONS 35 (1969).
21. Steinberger stresses the point that Hegel does not claim that punishment “makes things what they were.” He writes: “[N]egating the negation does not simply restore the status quo. For punishment in fact improves and elevates the concept of right; it explicitly introduces into that notion the idea that any violation will be punished and that the active and vigorous protection of rights is therefore a fundamental task of society.” Steinberger, Ted Honderich makes such an argument. note 6, at 124 n.4.
22. See Allen Wood, HEGEL'S ETHICAL THOUGHT 110-112 (1990).
23. Hegel is not claiming that by identifying criminal acts as wrongs society “teaches the criminal a lesson” or “morally improves the criminal.” The conclusions particular members of a society in fact draw from an act of punishment differ, depending on contingent features about members and their relationship to society. For example, the defining feature of the “rabble” is their inability to regard their own punishment as punishment-they instead regard it as an arbitrary infliction of injury-because they are alienated from their society. See Hegel HEGEL'S ETHICAL THOUGHT note 20, at secs. 244-45.
24. Id. at sec. 228. To those ignorant of law and criminal justice, legal practices will appear as contingent, alien forces, and they will conceive of punishment in much the same way utilitiarians conceive of punishment-as forces designed to control and deter illicit behavior.
25. Although Hegel certainly does not use the term “RSB,” he does address the problem of punishing the “rabble,” those individuals who are alienated and disenfranchised from society because of poverty. See Hegel, To those ignorant of law and criminal justice, legal practices will appear as contingent, alien forces, and they will conceive of punishment in much the same way utilitiarians conceive of punishment-as forces designed to control and deter illicit behavior. note 20, at secs. 237-46.
26. This is exactly the dilemma that Hegel finds himself in when he wonders about the legitimacy of punishing the “rabble,” those alienated, poverty-stricken individuals who commit crimes. Hegel concludes that because such individuals know that they have been wronged by their society, they cannot regard their own punishment as being anything other than a contingent harm-precisely the kind of (utilitarian) punitive experience Hegel warned us to regard as illegitimate. Hegel writes, “Of course crime [committed by the rabble] can be punished, but this punishment is only contingent.” Hegel's lectures of 1819-1820, Although Hegel certainly does not use the term “RSB,” he does address the problem of punishing the “rabble,” those individuals who are alienated and disenfranchised from society because of poverty. note 20, at 454.
27. I suspect that the real problem in our society is not the fact that we punish RSB crimes, but that we over-punish RSB crimes. Stephen Nathanson gives an insightful analysis of the racist and classist motives behind capital punishment sentencing. See Stephen Nathanson, Does It Matter if the Death Penalty is Arbitrarily Administered?, 14 PHIL. & PUB. AFF. 149-164 (1985).