Brandon Hogan (J.D. Harvard Law School, Ph.D. University of Pittsburgh) is an Assistant Professor of Philosophy at Howard University. His areas of research include the philosophy of law, meta-ethics, Hegel’s political philosophy, and the later Wittgenstein.

My work is unified by my interest in thinking about the scope and aims of criminal law. Particularly, I’m interested in thinking about the point of state-sponsored punishment. Given that the United States imprisons more persons than any other nation and that black Americans are incarcerated at shockingly higher rates than white Americans,[1] the topic of punishment takes on a unique importance for me as a black philosopher.

I believe that we can use Hegelian resources to develop a compelling argument for a restorative conception of criminal justice. What follows is a brief outline of that argument.

A Hegelian Argument for Restorative Criminal Justice

Brandon Hogan

Naturally, we can’t start to think clearly about the point of punishment until we answer some more basic philosophical questions. Perhaps less naturally, I believe that a discussion of punishment must begin with a discussion about the nature of personhood and freedom.

A punishment regime should exist to preserve person’s personhood and freedom. Following G.W.F. Hegel, I take it that personhood and freedom must be understood relationally and recognitively. Hegel believes that free persons are only free to the extent that they are so recognized by other free persons. Freedom, on this view, is relational. Persons are only persons, and only free, in relation to others.[2]

(I ask my students whether “black lives matter” is a factual or aspirational claim. That is, I ask if black lives actually matter or whether we simply want them to matter. My view is that the claim (or, hashtag, really) is incomplete. Mattering, like being a person, or being free, isn’t a natural property. I believe that we only matter to others, that we are only persons to others. And, sadly, far too many Americans believe that black lives don’t matter.)

What does it mean for one person to recognize another? I contend that recognition is a form of treatment. To recognize another is, in part, to treat that other as possessing certain rights and as obligated to act (or refrain from acting) in certain ways. Children aren’t fully recognized because they aren’t treated as having the same rights as adults. In the same way, those deemed legally insane aren’t fully recognized because they aren’t held responsible for their ostensible violations of the criminal law. The recognized person, then, is the subject of both rights and responsibilities.

I understand the connection between recognition, personhood, and freedom in the following way. To be treated as having both rights and responsibilities is to be treated as a (full) person. I think most of us can agree on that. My more controversial claim is that this treatment is constitutive of personhood. I draw no distinction between being a person and being so treated. (Of course, a lot must be said about the forms of treatment—or mistreatment— that would completely undermine an individual’s status as a person. Obviously a single rights violation would not render a person a non-person).

The connection between recognition and freedom is less straightforward. Following Kant and Hegel, I understand freedom as a type of autonomy. The free, autonomous person governs her actions by rules that she has chosen for herself. Following Korsgaard, we can call this set of rules a “practical identity.”[3] Further, the set of rules that constitute one’s practical identity (or, in most cases, practical identities) can be understood in terms of rights and responsibilities.

For example, consider an expansive practical identity— that of a U.S. citizen. The rights and responsibilities of U.S. citizens are spelled out in various legal documents, the most foundational of which being the U.S. Constitution. Citizens are afforded a certain amount of bodily autonomy and are permitted to own and exchange property. Additionally, citizens are obligated to act in accord with the criminal law.

It’s relatively easy to see the connection between the recognition of rights and freedom. Persons cannot act as citizens (or as tennis players, parents, or students) if their efforts to do so are hampered by others—that is, if their rights are not respected.

I contend further that if we are to be free, others must hold us responsible for acting or failing to act in accord with our practical identities. This claim appears counterintuitive because we tend to think that the truly free person does not have to answer to anyone except herself. However, as Hegel points out, an individual cannot unilaterally determine whether she is acting in accord with some practical identity. If that were the case, there would be no distinction between her acting correctly in light of that identity and her merely thinking that she is acting correctly. And, in that case, there would be no identity to speak of. Practical identities must be administered by others.

To use a concreate example, one’s identity as a citizen is partially constituted by one’s compliance with the criminal law. It makes little sense to believe that any individual can unilaterally determine whether he or she is complying with the law. Whether an individual has complied with the law is determined by a complex network state actors.

Of course, one can always renounce one practical identity in favor of another. I can choose to renounce my American citizenship and move to Ghana. But my understanding of myself as an American or Ghanaian citizen turns on my recognizing others as capable of recognizing my rights and as having the authority to hold me responsible for violating the rights of others. In short, acting in accord with a practical identity—and thus being free—requires that one recognize the capacities and the authority of others. I can’t be free in relation to a community of parrots because I don’t recognize parrots as capable of either respecting my rights or as having the authority to hold me responsible. Freedom, I contend, requires a community of persons that recognize one another as capable and authoritative. Hegel’s title for a community structured by relations of reciprocal recognition is Sittlichkeit, or “ethical life.”

I’m intrigued by the concepts of reciprocal recognition and ethical life because I believe they can be used to help us develop better theories of criminalization and punishment. (Indeed, I think that understanding reciprocal recognition is the key to understanding every type of normativity. But I clearly won’t be able to follow up on that claim here.)

What types of actions should be criminalized? I claim that crime should be understood as a failure of recognition. To be clear, not all failures of recognition should be considered criminal, but all crimes should constitute failures of recognition. The criminal, on this view, is one who fails to recognize another as the subject of rights and responsibilities. Or, in other words, the criminal fails to recognize a person as a person. Assault, murder, and robbery are clearly crimes on this view. Prostitution and the sale and use of drugs, on the other hand, should not be criminalized because they do not undermine the personhood of others. (To be sure, nothing I’ve said entails that the state is not permitted to regulate victimless, yet socially undesirable activities without employing the criminal justice system.)

This recognitive theory of criminalization is attractive because it allows us to explain why we care about crime and treat criminal acts as in need of special attention. Criminal acts, as I understand them, undermine the freedom of all. In addition to suffering bodily harm or the loss of property, the victims of crime lose a sense of safety and security. The perpetrators of crime are harmed as well because they attack the community that is necessary for their own freedom. In undermining ethical life through the promotion of criminal activity, the criminal threatens her own freedom.

Finally, I turn to the issue of punishment. If crime damages ethical life, punishment should seek to repair that damage. While retributivists see punishment as a means to give criminals what they deserve, and deterrence theorists punish in order to deter would-be criminals, only restorative justice takes community repair to be the primary aim of a criminal justice system. Restorative justice programs seek to bring victims and perpetrators of crime together to discuss the meaning of the crime in question, offer and accept apologies, and to think through fair penalties. Penalties can range from community service to prison time. These penalties are unified by the aim of restoration.

Clearly, designing a system of restorative justice suitable for the United States will be a difficult task, one that necessarily involves a wide variety of thinkers and policy makers. I take it that my role as a philosopher is to provide the arguments necessary to motivate a shift in our thinking about crime and punishment. In considering system design, we should start by looking to Norway’s prison system (reported here and here) as an example of a punishment regime that embodies Hegel’s conception of Sittlichkeit. 

[1] See “Shadow Report to the United Nations on Racial Disparities in the United States Criminal Justice System.” The Sentencing Project, http://www.sentencingproject.org/publications/shadow-report-to-the-united-nations-human-rights-committee-regarding-racial-disparities-in-the-united-states-criminal-justice-system/. Accessed 7 August 2016.

[2] Derrick Darby argues for a similar view in Rights, Race, and Recognition (Cambridge, 2009).

[3] Christine Korsgaard, Self-Constitution: Agency, Identity, and Integrity (Oxford, 2009).