Transcript THE LEGITIMACY OF PUNISHMENT

Kenneth Einar Himma
University of Washington School of Law
The Moral Problem of State Legitimacy

Institutional Coercion. The problem of justifying
state authority arises because the state resembles
an armed robber with respect to its use of force.
The question is what morally justifies a state in
doing something no one else is permitted to do.
The Moral Problem of State Legitimacy

Dubious Moral Foundations: Law seems to do a number of
things that are morally objectionable. As a general matter,
people do not get to tell others what to do.
 The Law’s Comprehensive Reach. State restricts behavior by law over a





broad range of activities.
Long-term Authority. State’s authority is long term.
Law Claims to Create Content-Independent Obligations to Obey. State
requires that you obey the law regardless of content (“contentindependence”).
Monopoly on Force. State claims a limited monopoly on the use of force
Coercion. State coercively enforces the law.
Claim of Supremacy. All this amounts to a claim of supremacy in the
sense that legal obligations win out over other obligations.
The Moral Problem of State Legitimacy

Some Examples of Seemingly Legitimate Laws. In many cases, there is no
real concern about whether certain laws are morally justified. For example,
prohibitions on violence, theft, sexual assault, fraud, etc. do not present any
real issues of moral concern. If the state’s exercise of authority is ever
justified, it would seem to be paradigmatically justified in the case of making
and enforcing such laws.
The Moral Problem of State Legitimacy

Some Examples of Seemingly Illegitimate Laws. But the range of the
state’s authority over persons is potentially unlimited; the state claims a right
to regulate nearly every aspect of your life. And this results in many laws
that seem morally unjustified. Consider some of the following laws that have
been enacted.

Boogers may not be flicked into the wind. (Alabama)

Men who deflower virgins, regardless of age or marital status, may face up to five years in jail.
(Municipal law in Auburn, AL) http://www.dumblaws.com/laws/united-states/alabama

Miscegenation laws: Interracial marriages are prohibited. US until 1963

Masturbation is punishable by a maximum of 32 months in prison in Indonesia
http://www.theguardian.com/lifeandstyle/blog/2013/sep/19/masturbation-laws-world-penal-code

In 2009, the supreme court of Alabama outlawed the sale of "any device designed … primarily for
the stimulation of human genital organs" in an effort to target sales of masturbation machines. Id.

Georgia criminalized oral-anal, oral-genital, genital anal contact between any two consenting
adults.

Alcohol and weed may not be possessed or consumed.
What is the Moral Justification for
Punishing Criminals?

The Nature of the Question. The question we are
asking here is a question about what political
morality allows us to do. The problem of justifying
punishment is yet just another piece of the
problem of providing a moral justification for state
coercive legitimacy.
The Broad Range of the Problem of State Legitimacy:
What Form of Governance is Justified?

The Justification of Democracy: It is frequently assumed that the only
legitimate form of governance is democracy, but the consequences of the
US wars in the Middle East has raised the concern that democracy might
not be suitable in certain cultures. This raises the question of what justifies
democracy.
One common answer has to do with autonomy and the right to participate in
one’s own governance.
The Broad Range of the Problem of State
Legitimacy: Constitutional Issues

The Problem of Judicial Supremacy. The US Supreme
Court has the right to review democratically enacted
legislation and declare it unconstitutional. It’s authority on
this final.

The Problem of Constitutional Interpretation. Assuming
Supreme Court has the right to review and decide the
constitutionality of enacted laws, there are clearly moral
limits on what they can do by way of interpretation. The
question is what principles of interpretation should the court
use to interpret the Constitution?
 Fixed Content Theories vs. Living Tree Theories
The Broad Range of the Problem of State
Legitimacy: Issues Concerning the Criminal Law

What Acts Can be Justifiably Criminalized? One question that arises
about legitimacy and criminal law is what acts is the state morally justified in
criminalizing?


Civil v. Criminal
Some Famous Theories of the Criminal Law.

Mill’s Harm Principle: An act may be criminalized only if it causes harm to others.

Feinberg’s Offense Principle: “It is always a good reason in support of a proposed criminal
prohibition that it would probably be effective way of preventing serious offense (as opposed to
injury or harm) to persons other than the actor, and that it is probably a necessary means to that
end.”

Legal moralism: An act may be criminalized simply because it is immoral.

Legal paternalism: An act may be criminalized to protect people from their own bad choices.
The Broad Range of the Problem of State Legitimacy:
The Problem of Justifying Punishment

Justifying Punishment: The issue here is how the state can justify punishing
people. Punishment is the most powerful and morally problematic exercise
of state coercion. Unlike the civil law, which merely moves money around,
the criminal law incarcerates and, in some nations, executes persons. What
could possibly give the state a moral right to punish?
WHAT IS THE MORAL JUSTIFICATION FOR
PUNISHING CRIMINALS?
A Preliminary Worry: A Conceptual Feature of Punishment that
Creates Special Moral Difficulties: Punishment is necessarily intended to
something that is no necessary part of compensation. Punishment, unlike
compensation and restitution, is intended to cause suffering – perhaps as a
means to some other end. But it is a “conceptual truth” that punishment is
the deliberate infliction of something designed to cause suffering; if it does
not inflict suffering, it cannot be suffering. Just like if it is not unmarried, it
cannot be a bachelor.
○
In fact, by definition, punishment is the deliberate infliction of something
designed to cause suffering; if it does not inflict suffering, it cannot be suffering.
Just like if it is not unmarried, it cannot be a bachelor.
THE GENERAL PROBLEM AGAIN

The Scope of the Problem of State Legitimacy. The
problem of legitimate state authority utterly permeates
law; questions of legitimacy arise in connection with
just about every legal practice and area of law we can
imagine.

The General Problem. Still, there is a general question
that must be answered before we answer the more
specific questions about more specific areas of law and
specific practices. How could the state be justified in
asserting the general power to tell people what to do
and back those commands with coercive force.

ONE POSSIBLE ANSWER TO THE GENERAL
PROBLEM: SOCIAL CONTRACT THEORIES

Social Contract Theories. One way of doing that
this state authority is justified is to show that we
accept the state’s authority in a way that seems to
give a permission to the state to regulate our
behavior. According to social contract theories, we
all contract with every other citizen promising to
obey the law made by whichever citizens
participate as officials in the state. Thus, social
contract theories justify coercive state authority as
being agreed to by a contract among citizens.
SOCIAL CONTRACT THEORIES

Why Social Contract Theories Can Work. Consider the ways in
which one can change one’s moral rights and obligations.
A.
Consent.
B.
Unilateral Promises.
C.
Contract.
The basic idea behind all versions of the social contract theory is
that life is so bad in an anarchic world that people will give up some
of their natural freedom to obey state authority in exchange for all
others doing so also. As we have seen, social contract theories
justify coercive state authority as being agreed to by a contract
among citizens. If you make a deal to allow the state to coercively
restrict your freedom, then it is not only morally permissible for the
state to restrict your freedom. It is also that you are morally
obligated to obey the state’s laws.
The General Strategy for Social Contract
Theories

The Pre-Conditions for the Contract: Social contract theories
generally proceed by attempting to show that citizens make
a choice between life in a state of nature and life under the
rule of law. The idea is that people voluntarily choose law
and make a contract to submit to governance by law.

The State of Nature: Different theorists use different devices
for representing the state of nature but the earliest social
contract theorists, Hobbes and Locke, describe it as a presocial condition in which there is no state, no laws, no police
force, no communities, no arts, no sciences, no technology,
no possibility of trusting others, and conditions of extreme
scarcity of material resources.
The General Strategy for Social Contract
Theories

The State of Nature: The state of nature, on this conception,
amounts to a war of all against all. As Hobbes famously describes
it:

“In such condition, there is no place for industry; because the fruit thereof
is uncertain: and consequently no culture of the earth; no navigation, nor
use of the commodities that may be imported by sea; no commodious
building; no instruments of moving, and removing, such things as require
much force; no knowledge of the face of the earth; no account of time; no
arts; no letters; no society; and which is worst of all, continual fear, and
danger of violent death; and the life of man, solitary, poor, nasty, brutish,
and short.”
The only reasonable choice, then, is to contract for a sovereign ruler.
A Quick Look at Hobbes’s Leviathan

Thomas Hobbes: The First Social Contract Theorist: One peculiar
feature of Hobbes’s theory is that he believed that morality does not
apply in the state of nature. On his view, we all agree to be bound
by a sovereign who is not party to the contract. Justice and
morality begin only once citizens agree to the contract.
The problem is that, since the state is not a party to the contract,
the state has absolute, unrestricted authority over you. In
particular, the state can do anything it wants with you, even kill you
for no reason, and it has committed no moral wrong.
Locke’s Second Treatise of Government

The Lockean Theory: Locke begins, like Hobbes, from the state of
nature but rejects the view that morality doesn’t apply in the state of
nature.

As Locke puts it, in the state of nature, all persons are in a “state of perfect freedom
to order their actions as they think fit, within the bounds of the law of nature…. But
though this be a state of liberty, yet it is not a state of license; though man in that
state have an uncontrollable liberty to dispose of his person or possessions, yet he
has not liberty to destroy himself, or so much as any creature in his possession, but
where some nobler use than its bare preservation calls for it. The state of nature
has a law of nature to govern it, which obliges everyone; and reason, which is that
law, teaches all mankind who will but consult it, that, being all equal and
independent, no one ought to harm another in his life, health, liberty, or
possessions.”
Locke’s Second Treatise of Government

Natural and Social Rights: This difference between Hobbes and
Locke implies that Locke believes there are two kinds of rights.
 Natural (moral) rights: A person has a natural (moral) right to X if and
only if X has that right in virtue of having a special moral status, and
does not have it in virtue of being granted it by a social group, such as
the state.
○
One of the natural rights we have, according to Locke, is the right to punish
violations of our natural rights.
 Social rights: A person has a social right to X if and only if the right has
been granted by the social group.
○
Of course, what we are interested in is the law and the law’s rights are social
rights that have been granted by the state.
Locke’s Second Treatise of Government

The Moral Significance of Natural (Moral) Rights vs. the
Moral Significance of Social Rights. This difference between
Hobbes and Locke has a very important implication that
dramatically changes the terms of the social contract. In
particular, the state can do whatever it wants with (most)
legal rights. But everyone is bound by natural rights. Even
the state must respect natural rights.
Locke’s Second Treatise of Government

The Terms of the Social Contract: According to Locke, political
society and the state comes about when individuals come together
and agree to erect a lawmaking authority with the power to resolve
disputes and enforce the law. On Locke’s view, individuals must
also agree to give up their natural right to punish offenses against
the natural law to the state and the power to do whatever the
individual sees fit subject to the laws of nature. The state is limited,
according to the contract, by two constraints:
A System of Majority Rule or Democracy: “For when any number of men
have, by the consent of every individual, made a community, they have
thereby made that community one body, with a power to act as one body,
which is only by the will and determination of the majority.”
Limits on State Authority and Majority Rule. The state’s laws must
conform to the law of nature and therefore must protect and respect the
natural rights of citizens.
Locke’s Second Treatise of Government

The Difficult Issue of Consent: Locke insists that there be actual
agreement among all of the individuals in the civil society: “Man
being, as has been said, by nature all free, equal, and independent,
no one can be put out of this estate, and subjected to the political
power of another, without his own consent, which is done by
agreeing with other men to join and unite into a community for their
comfortable, safe and peaceable living one amongst another.”
Locke’s Second Treatise of Government

Two Ways to Consent: There are two ways, on Locke’s view, that
one becomes party to this social agreement:
 Express Consent.
 Tacit (or Implied) Consent. Locke’s argues that accepting any benefit of
civil society, no matter how small, is sufficient to put oneself under the
obligation to obey the laws of the state: “[E]very man that hath any
possession or enjoyment of any part of the dominions of any government
doth thereby give his tacit consent and is as far forth obliged to obedience
to the laws of that government during such enjoyment as anyone under it;
whether this his possession be of land to him and his heirs for ever, or a
lodging only for a week; or whether it be barely traveling freely on the
highway; and in effect it reaches as far as the very being of anyone within
the territories of that government.”
How the Other Issues of Legitimacy Concerning
Specific Areas of Law Emerge from Locke’s
Theory

The Content of Our Natural Rights: What natural rights do we
have? According to Locke:
 A right to life
 A right to liberty
 A right to property
 A right to punish persons who violate our natural rights

Why Legitimacy Concerns Arise in Connection with Specific Areas
of Law Even Under a Lockean Theory: It’s one thing to know that
the state must protect natural rights. It’s another thing to know what
the content of such rights are or what these rights protect. This is
why we need a theory of the criminal law, punishment,
constitutional law, torts, contracts, a theory of property, etc.
ONE INTERESTING IMPLICATION OF THE LOCKEAN JUSTIFICATION
FOR LAWS GOVERNING PROPERTY RIGHTS AND TAXATION

Libertarianism: Libertarianism is the view that the state should
permit maximum freedom given our natural rights to life, liberty,
property, etc.

Two Forms of Libertarianism: There are two forms of libertarianism:
social and economic. Both try to maximize freedom with respect to
the relevant forms of activity.

Social Libertarianism. Social libertarianism is a position that affords maximum
freedom in social activities to persons. Social libertarians frequently take the
position that there shouldn’t be restrictions on sexual activities or on the use of socalled illicit drugs.

Economic Libertarianism. Economic libertarianism takes the position that, since
people have a natural right to property, they should be free to do with their property
as they see fit without government restriction. Some economic libertarians would
argue that private employers should be free to discriminate against people on the
basis of race, sex, sexual orientation or whatever when it comes to hiring or renting
or selling their property.
Economic Libertarianism and Taxing to
Redistribute Income From Rich to Poor

The Problem with Redistribution of Wealth: According to
economic libertarians, the problem with state redistribution of
wealth is that taxation is coercive and violates the natural
right to property; taxation, in this case, constitutes theft.
Thus,the welfare state is unjust. The problem arises
because property is a natural right, not a state-granted or
social right, and even the state must respect natural rights.
Coercively taxing one person for the purpose of redistributing
his wealth to another person is as much like theft as my
stealing your computer.
Problems with the Economic
Libertarianism

All coercive taxation is redistributive

Economic libertarianism requires that we return stolen property to
those whose property was stolen. Economic libertarianism is
grounded in a Lockean view about natural rights – and one of these
natural rights is the right to property. But a natural rights theory of
legitimacy like Locke’s and economic libertarianism implies that the
state must protect property rights, and that means that when the
state discovers that property has been stolen from persons, the
state must use the law to return that property to those persons from
whom the property is stolen.
Problems with the Entitlement Theory: Implies
Distribution of Income in US Radically Unjust

TWO PROBLEMS OF CORRECTIVE JUSTICE ARISING UNDER THE ENTITLEMENT
THEORY.

ACQUISITION OF LAND FROM NATIVE AMERICANS.

FORCED LABOR.
Problems with the Entitlement Theory: Implies
Distribution of Income in US Radically Unjust

Slavery and the Doctrine of Unjust Enrichment. How Much Would Be
Owed? Economic Facts and Figures about Slavery in the U.S. Proponents
of reparations have attempted to calculate the economic value of forced
labor and its present value (adjusted for a reasonable rate of return). It
should be noted that these figures are contestable:
 Value of forced labor taken from slaves from 1790 to 1860: $7 to $40
billion.
 Present value of forced labor taken from slaves from 1790 to 1860 (i.e.,
the value of forced labor multiplied by lost interest): $2.1 trillion to $4.7
trillion dollars.
○
Compare: U.S. federal budget for 2011 is approximately $3.9 trillion
 Larry O’Neal argues that the 1983 value (i.e., adjusted to provide
reasonable rate of interest income each year) of forced labor taken from
slave from 1620 to 1865: $1 trillion to $97 trillion (depending on the
interest rate chosen).
○
Compare: Estimated US GDP (total value of all goods and service produced in
the US) in 2011: $15.04 trillion
THE END! !!!!

Contact Information: I can be reached in one of two ways:
Email: [email protected]
Facebook (and Instagram): Damhepreti Nawameen (Damn, he’s pretty!
Know what I mean?)
You can find much of my work available for download at:
http://ssrn.com/author=328842