We took up three questions:
I’m going to touch on the first question below. The answer to the second question turns on the permissible aims of punishment. Grotius thought punishment could be justified only if it produced some good results in the future. He consistently held that anyone could punish since anyone’s act of punishment could produce the good results. As we saw last time, he thought that the individual’s right to punish is mostly surrendered to the state but that it can reappear when individuals are acting outside the state’s power.
We spent a lot of time on analogies between punishment and contracts. Here is how we got into that. Grotius took it for granted that the guilty person deserves punishment. This led him to ask what that means: what do we mean when we say the guilty deserve punishment?
One possibility it that punishment is a matter of what he called “attributive” justice, the other possibility is that it is a matter of what he called “expletive” justice.
These terms had been introduced in an earlier passage that is reprinted on the handout. The chief difference between them is that expletive justice is mandatory in a way that attributive justice is not. Expletive justice concerns what Grotius called perfect rights and those who have perfect rights can demand what they have a right to, such as the repayment of debts or the return of borrowed goods. Attributive justice, on the other hand, concerns what he called imperfect rights. If you have an imperfect right to something, it is appropriate that you receive it, but you cannot demand it. For example, everyone has an imperfect right to be treated with liberality (generosity), but no one can demand it.
So, does the offender deserve punishment as a matter of attributive justice or as a matter of expletive justice? Grotius argued that it is attributive justice. If it had been expletive justice, then the guilty person would deserve punishment in the same way that a creditor deserves to be repaid. But that analogy is faulty, according to Grotius (see 952–53). Grotius did not explain why he thought this, but there are at least two reasons that I can think of.
Criminals would not be wronged if the state pardons them rather than punishing them. By contrast, creditors are wronged if debtors do not repay them.
Criminals cannot waive their punishment. By contrast, creditors can waive the debts that are owed to them.
So when we say that criminals deserve their punishment we do not mean that they deserve it in the way that creditors deserve to be repaid, namely, as a matter of expletive justice. We must mean that they deserve it in the less strict way characteristic of attributive justice.
It’s worth remembering Brittany’s point about how failing to punish can be unjust if it means some are left outside the state’s protection. This would be an injustice to the victims rather than the criminals. So it isn’t precisely relevant to the question about what it means to say that criminals deserve their punishment. But it is a dimension of justice that should be kept in mind.
Nonetheless, Grotius did think there was an accurate analogy between punishment and contracts. He thought the analogy explained why criminals had no right not to be punished or, to put it another way, he thought it explained why punishment is not unjust to the person who is punished. This is what we spent a lot of time talking about.
What Grotius found persuasive was the idea that criminals voluntarily give up their rights to life, limb, and liberty, much as the parties to a contract voluntarily give up their rights to the things they exchange with one another (e.g. Patrick gives up his money, I give up my wagon) (953–54).
I said that I thought the analogy was not a good one on the grounds that contracts are normally mutually beneficial exchanges but punishment is supposed to be worse than the benefit that the criminal gains from the crime. Michael showed that this is not necessarily so: I might gladly suffer imprisonment as the cost of stealing a drug to save my brother’s life, for example. That’s right.
In response, I said that this can’t normally be the case. Otherwise, punishment wouldn’t deter crime. But Jiacheng was right to say that I did not really prove my point. I was trying to say that punishment doesn’t work like an exchange, where the criminal accepts the cost of punishment for the benefit of the crime. But the most I was showing was that this is not an exchange that most people would be willing to make. Good point.
I think I would have been better off switching to the state’s perspective. From the state’s perspective, punishment is not offered as the price for committing a crime. The state forbids us from doing the things it calls crimes. We are not (supposed to be) able to pay a fee in order to do them. Punishment is supposed to express the absolute prohibition that the state issues. It’s supposed to be in a different category from a price or fee. Maybe that’s why the analogy with contracts seems off to me.
There is a risk of making too much of this. Bogdan was certainly correct to say that the main thing Grotius wanted to show was that punishment is not unjust to the criminal because the criminal brings it on himself. I am just worrying about exactly how we describe this act of voluntarily bringing punishment on oneself.
One thing that is going on is that I’m looking ahead. For example, I have in mind a contrast with Hobbes, who will deny that criminals have an obligation to suffer punishment (compare Grotius, 954).
I was also thinking about Locke. Locke distinguishes between forfeiting a right and voluntarily alienating it and that, it seemed to me, was a more accurate description than the one that relies on the analogy with contracts. I had thought this was going to be a significant point of contrast between Grotius and Locke.
However, I just found a different passage in Grotius that leads me to think the contrast is not as great as I expected it to be. Earlier in book 2, Grotius described a criminal as having “forfeited his liberty by some crime.” The criminal suffers “an involuntary Subjection arising from some Crime” that “happens when he who has deserved to lose his Liberty, is forced to submit himself to him who has a Right to punish him” (2.5.32, p. 564). That does not sound much like a contract.
Leaving the details aside, Sydney’s point is worth remembering. If we say that criminals consent to their punishment, we run the risk of justifying any punishment, no matter how far out of proportion it is to the crime. That is going to be a problem for Locke, I think.
There was a handout for this class: 04.Grotius.handout.pdf