Locke seems to have two ways of defending the right to punish. On the one hand, he maintains that the right to punish is derived from the right to preserve mankind; we talked about this last time.
On the other hand, he argues that criminals forfeit their rights, leaving everyone else at liberty to deprive them of their lives, limbs, liberty, and property. This was the subject our of discussion today.
(I should add that there is also the right to seek reparations. I’m leaving it out because Locke did not think that could be the basis for the state’s right to punish as it is limited to the indviduals who are injured by crimes.)
We talked about the difference between forfeiture and alienation and what distinguishes criminals from other people who lack rights, such as children or the mentally incompetent.
Locke is quite clear that no one can has the right to kill or enslave themselves. He thinks it follows that no one can give this right to another person: you can’t give what you don’t have, after all (see §23). In other words, no one has the ability to alienate or give up their right to life and limb or no one has the ability to release others from their obligation not to harm them.
However, he also thought it was possible for people to forfeit their rights. This has the effect of giving others the right (meaning liberty or permission) to, well, kill or enslave them.
What’s the difference? I’m not sure, but it seems to me that there are at least two differences between alienation and forfeiture.
Alienation necessarily involves an intention to alienate one’s rights through a declaration or something similar. Forfeiture does not. (Warning: you could intentionally forfeit your rights. For example, you might commit a crime out of civil disobedience or because you want to be put in jail for the food.)
Forfeiture is a consequence of doing something that is prohibited. Alienation is a consequence of doing something that is permitted.
That’s a start. More work has to be done here, however.
It’s not obvious. Locke says criminals forfeit their rights. And that seems to be at least partly correct: punishment involves doing things to criminals that we are not allowed to do to innocent people, so criminals obviously have less protection in some sense. But is there anything more to Locke’s doctrine than just saying we’re allowed to punish criminals?
I think there is. Locke believes that if we were rational we would understand not only that following the law of nature is the right thing to do but also that it is what is best for us individually. Criminals have the ability to understand this, unlike children or madmen, but they refuse to follow reason. Consequently, as Jiacheng noted, there is no living with them and the community can treat them like other dangerous animals that lack reason.
I think the comparison with Hobbes is revealing. Hobbes thought that criminals were just like anyone else. They respond to incentives and do what is best for themselves. There is no need to think of crime as a sort of war against society on Hobbes’s view, much less to regard all criminals as hopelessly outside of society. The state should just adjust the incentives so crime won’t pay.
That said, as Waldron will argue, Locke was also committed to treating criminals as persons who might re-enter society. So perhaps he did not really mean to go as far with forfeiture as he sometimes did.