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Kiho Nahm
Hegel is usually regarded as advocate for the retribution theory. This article attempts to correct the misunderstanding through detailed consideration of his notes of philosophy of right, which add up to proposal of substitution of capital punishment. According to Hegel, the punishment can be imposed as the second coercion, only if the crime was committed as the first coercion. This coercion is self-contradicted, inasmuch as it is conceptually the existence of free will of criminal, which encroach the existence of free will of all. This contradiction becomes realized and sublated through the retribution as the second coercion. In this respect, the retributive punishment can be counted as the right containing unlawfulness. However, the object of retribution can be nothing else but the external existence of free criminal will, because the will or thinking itself is ontologically unable to be coerced. Therefore, the empirical consideration of the external regulation upon the crime should be inevitably given. But the empirical determination of punishment cannot also by any means correspond to the concept of retribution adequately, on the ontological ground that there is no individual, which realizes the conceptual universal totally. For that reason, the culture (Bildung) of people, which implies the retributive justice and self-certainty of society, plays a significant role in the determination of punishment. Eventually, Hegel comes to the conclusion that the securer society is, the more individually damage is considered, therefore the milder punishment becomes. To this can be supplemented the other ground that the authentic retribution should guarantee the possibility of durational self-reflection on the universal foundation of coexistence, thus exclude the capital punishment.
