Locke on the right to punish

Notes for Tuesday, October 7, 2014

Main points

Locke begins with an assumption that everyone has natural rights that protect their lives, limbs, liberty, and property. These are claim rights: having the means that others are obliged not to deprive you of your life, limbs, liberty, or property. (By contrast, Hobbes’s right of nature is a liberty: it gives people permission to do things in defense of their lives but it imposes no obligations on others. So you could have the right, meaning liberty, to defend your life even though others are permitted to kill you.)

This raises a question about punishment. Punishment involves depriving people of their lives, limbs (ew), liberty, or property. So how does anyone gain the permission to punish?

Locke has two answers:

  1. The right to preserve mankind gives anyone permission to punish criminals for the sake of what Locke calls “restraint,” that is, deterring or preventing future crimes (§7–8).

  2. Those who are injured by crime (meaning, wronged or treated unjustly) have a right to seek reparations from the criminal (§10–11).

Later, we are going to see that he adds a third: criminals forfeit their rights. (We will talk about this next time.)

How does the state get the right to punish?

Locke held that the right to punish is a natural right. That means it is a right held by all people prior to the state. He knew very well that there are significant disadvantages to allowing individuals to have the right to punish. That is why he thought people would surrender their right to punish to the state. (See §11, 13, 87f, 126, 130).

Suppose we pose the question Hobbes asked in Leviathan 28.2: how does the state gain the right to punish? I agree with Sydney: I think Locke would give an answer very much like the one that Hobbes did.

Here are the relevant parts of Leviathan 28.2:

In the making of a commonwealth, every man giveth away the right of defending another; but not of defending himself. Also he obligeth himself, to assist him that hath the sovereignty, in the punishing of another; but of himself not. … the subjects did not give the sovereign that right [to punish -mjg]; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him only; and (excepting the limits set him by natural law) as entire, as in the condition of mere nature, and of war of every one against his neighbour.

(Of course Hobbes will go on to say that the subjects authorize the sovereign to punish them. That is something I don’t see in Locke. But that’s another story.)


I had two questions nagging at me about this.

First, how does the state come to have permission to punish violations of the civil law? The natural right to punish is the right to punish violations of the natural law. So the state pretty clearly has the right to punish murderers and thieves. But how does it get the right to punish jaywalkers or people who don’t pay their taxes on time? Maybe this right is derived from the right to preserve mankind. (I hope that jaywalkers or delinquent tax filers don’t forfeit all their rights!)

Second, how does the state’s exclusive right to punish fit together with the right to seek reparations? I know that Locke said that only the victim of a crime can waive the right to seek reparations from the criminal; the state can’t do that. But the state controls how much force will be used to extract reparations from the criminal; the injured person does not have the permission to use force to gain reparations. So what happens when the injured individual refuses to waive reparations but the state refuses to enforce the individual’s claim to reparations? I guess the injured individuals would be out of luck. They are owed reparations but have no way to collect them.

This page was written by Michael Green for Seminar on Punishment, Philosophy 185B, Fall 2014. It was posted October 24, 2014.
Seminar on Punishment