We started with a topic from last time concerning the relationship between Locke’s two derivations of the right to punish: the one coming from the right to preserve mankind and the other from the forfeiture of rights.
Then we talked about what Waldron likes about the first derivation (Simmons, by contrast, had been critical). We did not discuss the forfeiture of rights. Waldron’s remarks are clear enough: many of Locke’s points about how criminals should be treated make sense only if they have not completely forfeited their rights.
Here is how I understand Simmons’s problem with using the right to preserve mankind to derive the right to punish. Simmons thinks Locke’s argument goes something like this.
The problem, as Simmons sees it, is that the second premise (2) is false. So the conclusion (3) does not follow.
Here is what I think Locke had in mind.
It is a two stage argument. The first three points establish that punishment is an acceptable practice. The last two suggest that those who are punished can’t complain of injustice even if their particular punishments are not necessary for deterrence and, hence, preserving mankind.
Bogdan liked the fourth point as it stands. Sydney suggested something stronger for the fourth and fifth points: it would be unjust not to punish the remaining criminals as that would be to treat people who are equally guilty differently.
Patrick asked why the fourth point couldn’t stand on its own. The fourth point is basically saying the guilty have no complaint if they are punished; it’s the forfeiture argument, really. If criminals have forfeited their rights not to be punished, why did Locke think he needed the points about preserving mankind? Good question!
I noted that all three of our authors (Grotius, Hobbes, and Locke) thought that punishment has to have some forward-looking benefit. It’s not enough to show that the person you want to punish is guilty of a crime. You also have to show that punishing would do some tangible good in the future. I speculated that they were thinking of slightly different questions:
The right to preserve mankind addresses the first, the forfeiture view addresses the second.
This opens the possibility that the two can come apart. It might be the case that we are not allowed to punish because it would do no future good. But if we did punish anyway, the person being punished could not complain of unjust treatment; he’s guilty, after all.
I myself think that might well be true. But you might reasonably think it’s a distinction without a difference: if we can punish a person without injustice, then we have the right to punish that person and that’s all there is to say. (This is where Patrick was headed, I think.) I can see the attraction of that too. So I made it a paper topic. Tell me why I’m wrong!
We cheated Waldron a bit. He believes that forfeiture is incompatible with Locke’s deepest commitments, so he tries to sketch a rationale for punishment that does not use it. At the end of the chapter, he explains why Locke was not whole heartedly committed to the view that criminals forfeit their rights. In particular, he makes a very interesting observation to the effect that Locke was primarily thinking of political criminals, that is, absolutist monarchs who, in his view, sought to enslave the population.
At the very very end, Michael asked a darn good question. Why didn’t any of these guys just say that the citizens give the state the permission to punish them if they commit a crime? That would have been a lot easier than what they did say. And it is a sensible thing to do: everyone wants to establish a system of punishment and the vast majority of people think they will avoid punishment by complying with the law. So why not give the state the permission to punish?
I’m with Michael. I don’t know why they resisted this way of deriving the right to punish. It’s a mystery to me.