Main Points
- The natural rights to punish
- Alienation vs. forfeiture
- How the state gets the right to punish
“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 to “life, health, liberty, or possessions” (§6); that means that others have duties not to deprive people of their lives, health, liberty, and possessions. 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 claim rights against being deprived of their lives, health, liberty, or possessions. Since claim rights logically entail obligations on others, the forfeiture of a claim right means that others lose those obligations. That means they are permitted to punish criminals by depriving them of life, health, liberty or possessions (§11, among others).
In order to understand what Locke means by saying criminals forfeit their rights, we spent some time looking at §23
§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. (Numbers in parentheses added)
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: see the sentences marked (4) in the passage quoted. 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.
On the face of it, this is hard to understand. If I am incapable of giving anyone else the permission to harm me by alienating my rights, how can I accomplish the same thing by forfeiting my rights? So we talked about what the difference between alienation and forfeiture might consist in.
I should say that I accept the distinction between alienating rights and forfeiting them. And as Gabriel pointed out, the distinction is implicit in the Thirteenth Amendment to the US Constitution
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
This says that slavery or involuntary servitude are ruled out except as punishments. So you can’t voluntarily sell yourself into involuntary servitude in our system, but you can wind up in involuntary servitude by committing a crime. Obviously, it’s important to understand the distinction, but it’s not easy to do so.
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 §23, 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)
Elsewhere, he says that 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 sometimes describes 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 a little later in these notes.
The natural rights to punish are all rights held by individuals. Locke knew it was undesirable for individuals to have this right. 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, August said that 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 is overblown. Locke says that the state may remit (i.e. pardon) 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 August that the state effectively has control over that as well. I think August is right about that, for what it’s worth.
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 criminals as being at war with other members of society. 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 usually 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.
I referred to an article by Jared Diamond that described a feud that lasted for years. The point was to show the disadvantages of leaving punishment in private hands. Diamond quotes a participant in the feud who reaches this conclusion. However, he also notes that giving the right to punish to the state means we lose something too, namely, the ability to seek vengeance.