Academic journal article Philosophy Today

Disjunctive Crime and Hegel's Theory of Punishment

Academic journal article Philosophy Today

Disjunctive Crime and Hegel's Theory of Punishment

Article excerpt

The theory of punishment is one of the topics which has come off worse in the recent study of the positive science of the law, because in this theory the Understanding is insufficient; the essence of the matter depends on the concept.

Philosophy of Right, Zusatz to §99.

Abstract thinking [attempts to] explain away the fundamental and concrete nature of the thing by concentrating on isolated aspects of its external appearance, and on abstractions drawn therefrom.

Philosophy of Right, Zusatz to §319.

The empty abstractions, by means of which the one identical content . . . continues in the two correlatives, suspend themselves in the immediate transition, the one in the other. The content is itself nothing but their identity (sect. 138): these abstractions are the seeming of essence, put as seeming. By the manifestation of force the inward is put into existence: but this putting is the mediation by empty abstractions. In its own self the intermediating process vanishes to the immediacy, in which the inward and the outward are absolutely identical and their difference is no more than assumed and imposed. This identity is Actuality.

Encyclopedia Logic,. §141.

Suppose you could prove that person S committed either crime A or crime B, but could not prove which one. Suppose further that the punishment for B, call it P^sub 1^, is the same as that for A. It follows that S deserves P^sub 1^. For S either committed A or B, and each of A and B deserve P^sub 1^. Would it be just to sentence S to punishment P^sub 1^ on the grounds that s/he clearly deserves it? Although there are many variations on this idea, perhaps the most basic is the case where S and S' are identical twins, and one of the is seen committing armed robbery at time t and the other is seen committing rape at the same time, where the penalty for each offence happens to be ten years in prison. Though there is no way to tie the robbery to the one and the rape to the other, it is clear that S and S' are each guilty of some crime which deserves ten years in prison. If it were legal to sentence both S and S' to 10 years in prison for the dis junctive crime of either committing rape or armed robbery, this would, at least, make the numbers come out right (the time each must spend in prison). One would be certain that the two punishments "fit" the two crimes in that quantitative sense, but one could not specify for which particular crime each of them is being punished.1

My own intuition is that there are deep reasons why we do not permit disjunctive individuation of crimes. For there is more to justice than making the numbers come out right. We do not, therefore, accept Punishment for Disjunctive Crimes (hereafter PDC). My point is not that PDC would never be justifiable, but only that even if, in some conditions, it were, it falls short of the optimal system of punishment. The principles connecting a crime with the appropriate punishment are elusive. One says that the punishment must "fit the crime" (Golding, 75-76, 98-99). But that is vague (Lyons, 1984, 146-47, 159-60). In this essay I attempt to shed light on this "fit" by considering the peculiar case of disjunctive crime. For PDC opens a gap between the deed and its punishment. In effect, it treats "crime" as a mass noun, rather than a count noun, and amounts to punishment for doing some crime (as one might do "some" exercise, as opposed to doing a particular exercise). One may consider the case of disjunctive crime as a mere "logical" puzzle, and my minimal aim is simply to raise this puzzle. Hopefully, however, such puzzles are the stimulus to positive philosophical insight. In the case at hand, I argue that this puzzle motivates a theory of punishment with analogies to Hegel's. Specifically, I argue that the gap opened between crime and its punishment by this puzzle is, in Hegelian language, simply a manifestation of the fact that on such a system, the unitary phenomenon of punishment has been analyzed into separate insubstantial abstractions. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.