Simmons claims that the right to punish has two sources in Locke:
The natural right to punish, aka the natural executive right or the right of restraint. This is derived from the natural right to preserve mankind.
The criminal’s forfeiture of rights against being harmed in the ways that punishment harms people.
We discussed his treatment of the first option. (He prefers the second, but we did not read that part of his chapter.)
We were mainly concerned with his dissatisfaction with this argument.
Simmons was not satisfied with deriving the right to punish from the natural right to preserve mankind. His reason was that it would not explain why there is a right to punish every crime (see pp. 136–37).
I tried to present what I took to be Locke’s way of thinking about this. We returned to this in the next class.
Simmons was especially dissatisfied with Locke’s argument that there must be a natural right to punish because this is the only way to explain why it is permissible to punish resident aliens who commit crimes.
One of his points was that Locke already had an answer to this problem: people who enter the country tacitly consent to obey the laws, so they can be punished just like a citizen can. Since we haven’t talked about Locke’s views on consent, we did not discuss this much.
His other point was that if there is a natural right to punish non-citizens, then the state wouldn’t need to be given the right to punish citizens. I said that I did not see why that’s an objection. It appears to me to be a clear implication of Locke’s view. If there is a natural right to punish based on the fact that punishment aids in the preservation of mankind, then the state has that right just as well as anyone else does. It does not need to be given the right in a social contract or any other transaction.