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 | |  Locke and Punishment | |
John Locke defined political power as “a Right of making Laws with Penalties of Death, and consequently all less Penalties” (Two Treatises 2.3). Locke’s theory of punishment is thus central to his view of politics and part of what he considered innovative about his political philosophy. But he also referred to his account of punishment as a “very strange doctrine” (2.9), presumably because it ran against the assumption that only political sovereigns could punish. Locke believed that punishment requires that there be a law, and since the state of nature has the law of nature to govern it, it is permissible to describe one individual as “punishing” another in that state. Locke’s rationale is that since the fundamental law of nature is that mankind be preserved and since that law would “be in vain” with no human power to enforce it, it must therefore be legitimate for individuals to punish each other even before government exists. In arguing this, Locke was disagreeing with Samuel Pufendorf. Samuel Pufendorf had argued strongly that the concept of punishment made no sense apart from an established positive legal structure.Locke realized that the crucial objection to allowing people to act as judges with power to punish in the state of nature was that such people would end up being judges in their own cases. Locke readily admitted that this was a serious inconvenience and a primary reason for leaving the state of nature (Two Treatises 2.13). Locke insisted on this point because it helped explain the transition into civil society. Locke thought that in the state of nature men had a liberty to engage in “innocent delights” (actions that are not a violation of any applicable laws), to seek their own preservation within the limits of natural law, and to punish violations of natural law. The power to seek one’s preservation is limited in civil society by the law and the power to punish is transferred to the government. (128–130). The power to punish in the state of nature is thus the foundation for the right of governments to use coercive force.The situation becomes more complex, however, if we look at the principles which are to guide punishment. Rationales for punishment are often divided into those that are forward-looking and backward-looking. Forward-looking rationales include deterring crime, protecting society from dangerous persons, and rehabilitation of criminals. Backward-looking rationales normally focus on retribution, inflicting on the criminal harm comparable to the crime. Locke may seem to conflate these two rationales in passages like the following: - اقتباس :
- And thus 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 dictates, what is proportionate to his Transgression, which is so much as may serve for Reparation and Restraint. For these two are the only reasons, why one Man may lawfully do harm to another, which is that [which] we call punishment. (Two Treatises 2.8)
Locke talks both of retribution and of punishing only for reparation and restraint. Simmons argues that this is evidence that Locke is combining both rationales for punishment in his theory. A survey of other seventeenth-century natural rights justifications for punishment, however, indicates that it was common to use words like “retribute” in theories that reject what we would today call retributive punishment. In the passage quoted above, Locke is saying that the proper amount of punishment is the amount that will provide restitution to injured parties, protect the public, and deter future crime. Locke’s attitude toward punishment in his other writings on toleration, education, and religion consistently follows this path toward justifying punishment on grounds other than retribution. Tuckness claims that Locke's emphasis on restitution is interesting because restitution is backward looking in a sense (it seeks to restore an earlier state of affairs) but also forward looking in that it provides tangible benefits to those who receive the restitution. There is a link here between Locke’s understanding of natural punishment and his understanding of legitimate state punishment. Even in the state of nature, a primary justification for punishment is that it helps further the positive goal of preserving human life and human property. The emphasis on deterrence, public safety, and restitution in punishments administered by the government mirrors this emphasis.A second puzzle regarding punishment is the permissibility of punishing internationally. Locke describes international relations as a state of nature, and so in principle, states should have the same power to punish breaches of the natural law in the international community that individuals have in the state of nature. This would legitimize, for example, punishment of individuals for war crimes or crimes against humanity even in cases where neither the laws of the particular state nor international law authorize punishment. Thus in World War II, even if “crimes of aggression” was not at the time recognized as a crime for which individual punishment was justified, if the actions violated that natural law principle that one should not deprive another of life, liberty, or property, the guilty parties could still be liable to criminal punishment. The most common interpretation has thus been that the power to punish internationally is symmetrical with the power to punish in the state of nature.Tuckness, however, has argued that there is an asymmetry between the two cases because Locke also talks about states being limited in the goals that they can pursue. Locke often says that the power of the government is to be used for the protection of the rights of its own citizens, not for the rights of all people everywhere (Two Treatises 1.92, 2.88, 2.95, 2.131, 2.147). Locke argues that in the state of nature a person is to use the power to punish to preserve his society, mankind as a whole. After states are formed, however, the power to punish is to be used for the benefit of his own particular society. In the state of nature, a person is not required to risk his life for another (Two Treatises 2.6) and this presumably would also mean a person is not required to punish in the state of nature when attempting to punish would risk the life of the punisher. Locke may therefore be objecting to the idea that soldiers can be compelled to risk their lives for altruistic reasons. In the state of nature, a person could refuse to attempt to punish others if doing so would risk his life and so Locke reasons that individuals may not have consented to allow the state to risk their lives for altruistic punishment of international crimes. | |
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