The Justification of Legal Punishment: Hegel's "Rechtsphilosophie" as Practical Theory

I argue that Hegel is an immanent critic: he adduces the principles immanent in our practices in order to criticize actual practices when they diverge from these principles. Hegel uses the principle he understands to underlay the practice of legal punishment, retribution, to guide practitioners who must justify why we punish for certain actions; why the state may punish; why we punish this person; why we punish in this way. Each of these problems arises within "subpractices" of the practice--lawmaking, "clutching" of suspects, determination of guilt, sentencing, and infliction of punishment. Hegel guides us by pointing to the purpose of and principle immanent in the practice to which these subpractices belong. ;Hegel's strategy of immanent criticism is promising but problematic, in part because legal punishment is an essentially-contested practice: at least two conflicting principles are immanent in it , so any account that brackets either is inadequate. At times in the practice we must choose between the two principles. I argue that Hegel persuasively shows the costs of ignoring the retributive principle. ;Hegel often is said to give up social criticism, to accommodate himself to existing practices. Others have challenged this claim. By distinguishing two sorts of criticism--immanent and radical--I resolve this dispute: Hegel is an immanent critic; rather than uncritically accept actual practices, he subjects them to the standards he finds immanent in them. But as immanent critic, Hegel seems to presuppose the justice of the practices from which he adduces his standard of criticism--Hegel is a positive justifier who avoids radical criticism. While Hegel's general project is to reconcile us to existing practices, he also leaves open the possibility for radical criticism when our practices are bad root and branch. To establish this I make use of recently published but as of yet untranslated lecture notes of Hegel's Rechtsphilosophie lectures. Some argue Hegel was unable to publish his genuine political views in his Philosophy of Right on account of Prussia's censorship laws, and so the lecture notes are a crucial source of Hegel's political views