> OK, Marx says, (a) that the _only_ theory of
> punishment worthy of the name is Hegel's retributive
> theory, that Punishment is the right of the criminal
> that represents the act of his own will, and (b) that
> there is "something specious" about this theory in a
> class-divided society where (for all the reasons Marx
> set forth in his critique of Hegel's Philosophy of
> Right and his theory of the state as a class
> instrument), it is not reasonable to think of the
> state as representing the will of the criminal -- at
> least the poor criminal.
>
> Two points. One is that this endorses retributivism as
> the correct theory of punishment for a worker's state,
> where presumably the laws _would_ represent the will
> of all the people. (b) In capitalist retributivism
> would still apply without any speciousness to the
> crimes of the bourgeoisie, whose will the state
> largely represents, according to Marx.
>
> So, Marx is more on my side than yours on this. He
> might have been inconsistent with his won premises. I
> have argued that in other contexts. But we have to be
> clear: Marx does not reject retributivism. He rather
> worries about its full applicability in class society.
> If we are worried about Marx's views, that is where we
> must start.
The passage this is interpreting begins by rejecting arguments for punishment that don't recognize "human dignity", i.e. arguments that treat individuals as means rather than as ends. There is no right to punish "for the amelioration or intimidation of others?"
The only theory of punishment that does recognize "human dignity" at least "in the abstract" is "the theory of Kant, especially in the more rigid formula given to it by Hegel. Hegel says: 'Punishment is the right of the criminal. It is an act of his own will. The violation of right has been proclaimed by the criminal as his own right. His crime is the negation of right. Punishment is the negation of this negation, and consequently an affirmation of right, solicited and forced upon the criminal by himself.'"
The "something specious in this formula" is that it treats the criminal as "a free and self-determined being." But a "free and self-determined being" wouldn't commit crimes since, for both Kant and Hegel, such a being is wholly determined by reason. Consequently, it's a "delusion to substitute for the individual with his real motives, with multifarious social circumstances pressing upon him, the abstraction of 'free will'--one among the many qualities of man for man himself!"
So the theory fails. It won't justify "retributivism" in any society. It's "only a metaphysical expression for the old jus talionis: eye against eye, tooth against tooth, blood against blood." It's actual purpose is to give "a transcendental sanction to the rules of existing society."
Marx doesn't endorse "retributivism as the correct theory of punishment for a worker's state" and doesn't claim that in capitalism "retributivism would still apply without any speciousness to the crimes of the bourgeoisie."
What he does say is fully consistent with his assumptions about human being.
Ted