- 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 rights to “life, health, liberty, or possessions” (§6). By “right” he means what I called a claim or entitlement last time; that is, he 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).
Chapter four is about slavery. You might well wonder how Locke got there. The most straightforward answer is that it is a continuation of the discussion of punishment since enslavement was a punishment in his time.1 Here are some illustrations.
In the early sixteenth century, there were royal proclamations ordering that vagabonds and spreaders of seditious rumors should be enslaved in the galleys, and a short-lived act of 1547 made slavery a punishment for those who refused to work. The Elizabethan Privy Council occasionally sent felons to serve in chains in the galleys; in 1602 it ordered that this should be the fate of all condemned criminals who were not “notorious or dangerous offenders.” In the same year the Star Chamber sentenced the libelers of Lord Buckhurst to lifetime servitude in the galleys. Until the mid-eighteenth century, there were intermittent proposals that enslavement should become a recognized part of the penal code and the poor law. From the early seventeenth century, vagrants, military prisoners, and criminals were regularly deported to North American and the West Indies, where as indentured laborers (i.e., temporary slaves) they were often cruelly treated. In the 1650s they were joined by Scottish and Irish prisoners of war, and in the 1680s by the Duke of Monmouth’s defeated rebels. A majority of the voluntary migrants to North America in the seventeen century went as indentured servants. (Thomas 2018, 179)
So, enslavement is a punishment. But how do you enslave people who have rights? You can’t! They have to lose their rights in order to be eligible for this kind of treatment. As Locke puts it, they “forfeit” their rights.
In order to understand what Locke means by saying criminals forfeit their rights, we need to look at §23. (I added the numbers to make the logic of the paragraph more clear. It should be easier to follow if you go from 1 to 4.)
§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.
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? We will need to talk about what the difference between alienation and forfeiture might consist in.
This is not just a problem for Locke. Here is 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. That means exactly what it says: slavery can be used as a punishment. In 2022, several states had ballot questions about whether to prohibit slavery as a punishment. California rejected such a law on the grounds that it would force the state to pay $15 an hour for prison labor. Efforts to remove the clause from the Federal Constitution have failed. In other words, this is not just an idle quirky bit of the Constitution. Slavery is basically recognized as a punishment in much of the United States.
So even here, in the US of A in the year 2022, when you are convicted of a crime, your constitutional right not to be subjected to involuntary servitude is lost. How does that work?
Suppose criminals forfeit their rights. Does it follow that others can do whatever they like to criminals? That is, do they forfeit all of their rights? 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.” Zounds!
I do not think that he actually means to say that the consequences of forfeiting your rights are always so extreme. He says elsewhere, when he is in a calmer mood, that punishments have to be proportionate to the crime.
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)
He also says that criminals are not simply expelled from the community; they can repent (§8, §12) and reenter society (§24). And he 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.)
Individuals hold the natural right to punish. Locke knew it was undesirable for individuals to have this right. This is why he thought 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:
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. To put it another way, Locke is the nice guy and Hobbes is the mean guy.
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?
There is a scholarly dispute about whether he was thinking about American slavery. We talked about that in the PPE senior seminar this year. If you are interested in the question, the notes and references for that class session are a good place to start.↩︎