Why may the state deliberately inflict harm on a person?
Absolute theories
Punishment looks backwards. It is justified solely by the wrong already done.
- Kant: Punishment is a categorical imperative. The offender is an end, not a means to social benefit.
- Hegel: Crime negates the right. The penalty negates that negation, restoring the law.
Retribution supplies a limit: punishment must not exceed desert. Yet desert alone cannot set a precise scale of years for an offence.
Relative theories
Punishment looks forwards. It is justified by the harm it prevents.
| Direction | Mechanism | Associated with |
|---|---|---|
| General negative | Deterring the public | Feuerbach |
| General positive | Reinforcing legal norms | Modern systemic theory |
| Special negative | Incapacitating the offender | Positivism |
| Special positive | Resocialising the offender | Von Liszt |
Pure prevention lacks an upper limit. It also risks using an individual purely as a tool.
Mixed theories
Modern law combines these aims across three distinct stages:
- The threat in the statute aims at general prevention.
- The imposition in the judgment is capped by desert.
- The execution in prison aims at resocialisation.
Article 25.2 CE states that custodial sentences are oriented towards re-education and social reintegration.
The second track
Alongside penalties sit security measures. These rely on the subject's criminal dangerousness following a committed offence.
When both apply, the Code executes the measure first and deducts its duration from the penalty.
Common pitfall: Viewing Article 25.2 CE as an absolute right to immediate release once reformed. It merely governs how sentences are served.