“Political power,” according to Locke consists in “a right of making laws and penalties of death, and consequently all less penalties for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the commonwealth from foreign injury” (§3). So the state’s right to punish is obviously something that has to be accounted for.
The right to punish poses a problem for Locke that Hobbes did not face. Locke thought that people have natural claim rights that oblige others not to deprive them of “life, health, liberty, or possessions” (§6). Since punishment involves depriving people of life, liberty, or possessions, Locke needed to explain how the state’s ability to employ it could be compatible with the natural rights that, he thought, people have.
Locke’s account of the state’s right to punish begins with individuals’ right to punish: he thinks that there is a natural right to punish prior to the state. After characterizing this right, Locke argues that people would give it up, leaving the state with the exclusive right to punish. That is how the state gets the right to punish.
A natural right is a right that people have prior to the state. There are two natural rights to punish, according to Locke.
First, victims of crime have rights to seek reparations from those who have violated their rights.
Second, everyone has a right to punish criminals for two reasons:
The right to preserve mankind gives everyone a right to punish for the sake of deterrence. Locke referred to this as the right of “restraint” (§8, 11) or the power to “execute” the laws of nature (§7).
Criminals forfeit their rights, meaning that others no longer bear any obligations not to deprive them of life, health, liberty or possessions (§11, among others).
As Kamyab noted, this parallels our distinction between the civil and criminal law.
We spent some time looking at this passage, which I find puzzling.
§23. This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, but by what forfeits his preservation and life together. For a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases. No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it. Indeed, having by his fault forfeited his own life, by some act that deserves death; he, to whom he has forfeited it, may (when he has him in his power) delay to take it, and make use of him to his own service, and he does him no injury by it. For, whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.
What is puzzling, at least to me, is that Locke says that it is impossible to voluntarily enslave oneself or give up one’s life. To use a term we introduced in discussing Hobbes, no one can alienate these rights. But they can forfeit their rights by committing crimes. Why is the one possible but not the other?
Bry suggested that the criminal’s rights might be temporarily suspended. Locke did concede that criminals could repent (§8, §12) and reenter society (§24). He also suggested that criminals still count, morally speaking, and are not simply written off.
it is fit the ruler should have a power, in many cases, to mitigate the severity of the law, and pardon some offenders. For the end of government being the preservation of all, as much as may be, even the guilty are to be spared, where it can prove no prejudice to the innocent. (§159)
At the same time, he stated repeatedly that forfeiture could be complete and that criminals could be treated as wild animals or slaves. I think Will put the idea best when he said that, for Locke, criminals are outside of the community governed by rights. That is what forfeiture involves. It is not that you exercise control of your rights by giving some of them up. It is that you lose your rights entirely.
As for the technical nature of the difference between alienation and forfeiture, it seems to involve at least two things.
As Audrey said, rights can only be alienated intentionally. The person alienating the right has to mean to do so. Rights can be forfeited even if that is not what the person meant to do.
As Kamyab and Will said, forfeiture is a consequence of doing something that is wrong, while the acts of alienating rights are typically permitted.
The natural rights to punish are all rights held by individuals. Locke knew it was undesirable for individuals to have this right. He said that this is why they would give the right to punish to the state.
The way this is accomplished is almost the same as it is in Hobbes’s theory.
The state does not get permission to punish from the social contract. It has that from the right to preserve mankind and the criminal’s forfeiture of rights, much as Hobbes had derived the sovereign’s permission to punish from the right of nature rather than a grant in the social contract.
The state’s permission to punish is exclusive because the citizens of the state give up their rights to punish, leaving the state with a monopoly over the use of force. This is exactly the same in Locke and Hobbes.
The subjects agree to aid the sovereign in punishing others. Again, this is the same in Locke and Hobbes.
The chief difference is that Hobbes has one step that Locke does not:
Because the state has the exclusive permission to use force, I said that I thought Locke’s point about the difference between the individual’s right to seek reparations and everyone’s right to punish for the sake of deterrence was overblown. Locke says that the state may remit punishment for deterrence but that it cannot remit the reparations owed to the person injured by crime (see §11). But since the individual cannot use force to get the reparations owed, it seems to me that the state effectively has control over that as well. Will may well owe Harry compensation, but if the state is not going to force him to pay and if it is going to forbid Harry from forcing him to pay, Will is not going to pay and Harry is going to be out of luck.
Hobbes treats crime and punishment as part of the normal relationship between sovereign and subject. It is important for him that punishments are specified in the laws and applied only to those convicted of crimes. That is what distinguishes the way sovereigns treat their subjects from the way they treat their enemies. Enemies can be attacked even if they are innocent and sovereigns need not limit the violence they use against them.
Locke, by contrast, was inclined to describe the state as being at war with criminals. For instance, he held that criminals forfeit their rights and so may be kept as slaves (see §23 above). The crimes that could lead to this treatment seem to include theft (§18).
This is surprising. Locke emphasizes natural rights and limited government while Hobbes has no natural rights and supports absolute government. But when it comes to crime, their roles are reversed: Hobbes insists on punishing under the law while Locke treats crime as an occasion for war.
I should say that Locke is not always like this. He insists that punishment be limited so that it is “proportionate” to the crime (§8). As I said earlier, he conceded that criminals could repent (§8, §12), they could reenter society (§24), and that the government should seek to preserve even the lives of the guilty (§159). So, at the end of the day, Locke probably held a milder view of the forfeiture of rights than he seems to have done. That is, he probably only meant that criminals forfeit their rights against appropriate punishment, not that they forfeit all of their rights.
That said, Locke really did describe criminals as wild animals multiple times. And, when he was in that mood, he said that criminals forfeit all their rights. What accounts for this panicky, exaggerated response to crime?
I offered an possible explanation of the difference. Hobbes views crime as a response to incentives. We can live with the criminal by altering the incentives. There is no enormous gap between criminals and law-abiding subjects and so crime is nothing to panic over.
Locke, on the other hand, thinks that ethical knowledge comes from reason. Criminals are capable of knowing what they should do but refuse to follow reason. His ethical rationalism, in other words, leads Locke to despair over the possibility of living with criminals who perversely, by his lights, refuse to follow reason. That may be why he tends to describe them as wild animals who have to be enslaved or destroyed.
Locke, John. (1680) 1995. Two Treatises of Government. Edited by Mark C. Rooks. The Philosophical Works and Selected Correspondence of John Locke. Charlottesville, VA: InteLex Corporation.