Natural rights 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:

1. 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).

2. 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).

Forfeiture

In order to understand what Locke means by saying criminals forfeit their rights, we spent some time looking at this passage. (I added the numbers in parentheses.)

§23. (3) This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, (4) but by what forfeits his preservation and life together. (2) 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. (1) 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, (4) 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.

I tried to use this passage as an example of how to extract an argument with numbered premises and conclusions from an old text. My idea was to assemble an argument out of the sentences I numbered 1-3 in the passage and then contrast that argument with what Locke calls forfeiture, which I numbered 4 in the passage. So I had this:

1. No one can give others rights that they do not have themselves.
2. No one has the right to destroy or enslave themselves.
3. Therefore, no one can give others the right to destroy or enslave them.

The thing I wanted to point out was how the argument starts with the most general premise (1), adds a premise about a particular case (2), and then draws a conclusion about that particular case by combining the two premises with one another (3).¹

So far, so good. But then the discussion took me in a direction I should have anticipated. Basically, the class did to Locke what I had done to Hobbes. You all asked what “right” means in those three points: claim, liberty, power, or immunity? And I had not thought about that. The irony!

So, let’s do that again.

The first thing I should say is that I silently translated Locke’s term “power” into “right.” I think that is probably OK as far as what Locke meant is concerned. However, I should not have done that because it is needlessly confusing. Someone who read that paragraph would see Locke talking about “power” and would have to do extra work to figure out why I was using “right” instead. You should not make your readers (or students) do any more work than they have to. What I should have written on the board is this:

1. No one can give others powers that they do not have themselves.
2. No one has the power to destroy or enslave themselves.
3. Therefore, no one can give others the power to destroy or enslave them.

So the question “what does Locke mean by ‘right’ in that argument?” should be “what does Locke mean by ‘power’ in that argument?”

Now that I have the question straightened out, let’s get to the answer.

The answer is that he means liberty or permission.

1. No one can give others permission to do something that they do not have themselves.
2. No one has the permission to destroy or enslave themselves.
3. Therefore, no one can give others else the permission to destroy or enslave them.

This should have been obvious to me. The conclusion Locke is trying to establish is about what others can be given permission to do. Since that is so, the premises have to be about permission too.

There are two reasons why I got tripped up. First, the rights in question are also claim rights. I neglected the fact that one right can be both a liberty right and also a claim right (and a power too). Taylor tried to point me in the right direction by telling me that you could have a unilateral liberty even if you don’t have a bilateral liberty. In the case at hand, everyone has the liberty not to destroy themselves which goes along with their claim rights against others, namely, that others have a duty not to destroy them. But no one has the liberty to destroy themselves, again, even though they have claim rights that impose duties on others not to destroy them. So, unlike me, Taylor was on the right track.

The second thing that confused me is that Locke is talking about rights against being destroyed or enslaved in the second premise. I understand what it means to destroy yourself: committing suicide. But I don’t understand how I could enslave myself. I would need someone else to enslave me, I think. So Locke was being confusing by grouping those two together. That kept me from seeing the abstract definition of “right” he was working with.

Finally, I like what Will said about this. He said that Locke is arguing that people lack the power (in the sense we defined when talking about Hobbes) to give others the right (meaning permission) to destroy or enslave them. By contrast, someone who has a property right typically has the power to give someone else their right by, for instance, selling it. That is right, er, correct.

OK, now that we have all that squared away, the important message is that Locke did not think it was possible for anyone to voluntarily enslave themselves or voluntarily give anyone the right to kill them. Those rights are inalienable, meaning they cannot be voluntarily surrendered or alienated.

At the same time, Locke did think it was possible to forfeit rights by committing crimes. Others are permitted to kill or enslave those who have forfeited their rights. Something like that has to be an assumption of any system of punishment, since punishment involves doing something to a person that is not normally permitted.

How severe is forfeiture?

The idea behind forfeiting rights seems to be that the criminal has simply left the community of people with rights. If so, does it follow that others can do whatever they like to the criminal? Sometimes, Locke seems to say exactly that. In the passage quoted above, for instance, he says that the person who has forfeited his rights can be kept as a slave. If that is too hard, he says, the enslaved person can always resist the master in order to “draw on himself the death he desires.” Yikes!

I do not think that he actually means to say that the consequences of forfeiting your rights are always so extreme. He thinks that punishments have to be proportionate to the crime, so it can’t be that anything goes.

in the state of nature, one man comes by a power over another; but yet no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression; which is so much as may serve for reparation and restraint. (§8)

Criminals are not simply expelled from the community; they can repent (§8, §12) and reenter society (§24). He even suggests that the state is obliged to preserve criminals’ lives, so long as it can do so without harming the innocent.

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)

I suspect Locke had a rough and ready idea about punishments fitting the crime and that criminals forfeit rights in proportion to how bad their crimes are. At the same time, however, he tends to describe criminals as wild animals that are at war with society. (He does this in many places other than the passage I quoted earlier.) I will offer some speculation about why he does this in the last section of today’s notes.

How does the state come to have the right to punish?

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.

1. 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.

2. 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.

3. 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:

4. The subjects authorize the sovereign to punish them, according to Hobbes. Locke has nothing like this.

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.

Hobbes and Locke on criminals

I would like to start off the next class with a quick comparison between Locke and Hobbes that I had hoped to get in this time. This is what I mean to say.

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. As I said above, Locke sometimes has a measured attitude towards crime and the appropriate treatment of criminals. But on other occasions, he flies off the handle and says criminals are wild animals who forfeit all their rights and can be killed or enslaved. What accounts for this exaggerated response to crime?

Here is a 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.

Key concepts

1. The natural rights to punish
2. Alienation vs. forfeiture
3. How the state gets the right to punish
4. Comparison of Hobbes and Locke on the right to punish