Brettschneider Response to Jim Wilson on Democratic Rights, Chapter V, “The Rights of the Punished.”

Many thanks to Jim Wilson for an excellent discussion of Chapter V, “The Rights of the Punished.”  I will focus on two issues raised by his comments.  Both concern the relationship between my own theory and more traditional accounts of punishment, in particular concerns about whether punishment deters future crime as well as the possible place of my account of punishment within the retributivist tradition.

First, Jim perceptively elaborates on Hobbes’ account of punishment and asks whether it might be more compatible with my own arguments than I allow.  In particular, he asks whether a defense of capital punishment on general deterrence grounds might be brought within the scope of democratic contractualism.  As Jim makes clear, it is important for Hobbes that any account of capital punishment cannot be justified within the contractual relationship between the condemned and the state.  The ties of the social contract are severed in cases of capital punishment because the state’s sole aim is to protect life.  Capital punishment fails to meet that goal for the condemned and therefore any justification of it must sever the tie of that relationship.  The result is that for Hobbes capital punishment is justified for the state and resistance is justified for the condemned.  But this kind of justification is distinct from those that take place within social contract. 

Jim asks whether Hobbes’ argument for capital punishment can be reconstructed so that it is offered as a justification within the framework of democratic contractualism.  Although I resist Hobbes, suggestion that capital punishment is justified for the state, I agree with him that such a justification is not compatible with the framework of the social contract.  Democratic contractualism asks that we weigh the interests of the criminal against the interest of citizens in security, including the interest in deterring future crime.  On my view, while Jim is correct to say that the goal of deterrence has a place in contracutalist justification, there are means of meeting that goal that do not obliterate all the interests of the condemned. The balance can be struck without a need for the death penalty by imprisonment.  In defense of Hobbes’ view, however, I recently heard an interesting spin on this discussion. A colleague recently pointed out to me that it is important in understanding Hobbes view that he was likely not aware of long term imprisonment as an alternative to capital punishment since the state’s role in long term incarceration was not established during his time.  On this view there might have been historical reasons why Hobbes defense of the death penalty made sense in the absence of the possibility of long term prison sentences.

Second, Jim asks whether my own account might be thought of as itself a theory of retributivism.  The political concept of the person, or in my terms democratic “citizenship,” might be thought to entail an account of responsibility and desert.  I am sympathetic to this suggestion, but it would be important to clarify the sense in which such an understanding of retributivist theory would be one within the realm of political morality rather than morality proper.  Namely, the value theory’s account of desert would ask what citizens were owed in the sense that I use the term, not persons.  The character of particular criminals, for instance, would not be relevant to their basic democratic rights on my view.  Rather, these rights should be regarded as entitlements what criminals qua citizens deserve.  In addition, to the extent the theory offered an account of responsibility it could not rest on a deep theory of free will, as some retributivist accounts.  For instance, if memory serves me right, this is true of Herbert Morris’ account to of the “right to be punished.”  Rather, on my view an account of responsibility would have to grow out of the kind of political freedom associated with free and equal citizenship.  I would be interested in what others (including Jim) think about this possibility.

Thanks too to Alex and Alon for their posts.  I will respond to both soon.

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