헤겔 법철학과 형법학 ― 형벌이론을 예로 하여 ―

Hegel’s philosophy of law, along with Kant’s philosophy of law, contributed greatly to establishing modern law systems. Among them, Hegel’s philosophy of state and criminal law played an important role in establishing modern public-criminal law systems and dogmatics. For example, the concept of ‘objektive Zurechnung’ that currently occupies an important position in criminal law dogmatics was adopted from Hegel’s philosophy of law. This article attempts to investigate how Hegel’s philosophy of law had an effect on the theory and dogmatics of actual law, taking Hegel’s theory of punishment as an example. The theory of punishment proposed by Hegel was traditionally understood as a theory of retribution. In the meantime, Hegel’s theory of punishment is often criticized as being an outdated theory in the days when rationalism and positivism dominate. The criticism raised by the German law professor Ulrich Klug shows this well. However, before and after the 1970s, German criminal law scholars who actively accepted Hegel’s philosophy and his philosophy of law tried to interpret his theory of punishment not as a theory of retribution, but as a new theory of punishment. As a result, they found theoretical clues to the theory of positive general prevention from reinterpreting Hegel’s theory of punishment. In addition, Hegel’s theory of punishment was reinterpreted as a theory of justice, recognition theory, or self-contradiction theory, which is distinct from the theory of retribution. This article explores these theoretical attempts and examines how Hegel’s theory of punishment can be understood today. In particular, it shows how Hegel’s theory of punishment is a complex theory with diverse contexts, centering on the attempts of German legal philosopher Kurt Seelmann. However, this article raises the question of whether Hegel’s theory of punishment can be directly connected with the theory of positive general prevention. Therefore, this article grasps Hegel’s theory of punishment as a kind of symbolic theory. However, since this opinion is incomplete argued, it must be argued in future in another article.