Abstract
In a characteristically iconoclastic essay, “Does the State Have a Monopoly to Punish Crime?”, Douglas Husak argues that the state’s moral right to punish crime is all but self-evident while its supposed monopoly on punishment is a fiction. Husak draws this bracing conclusion from a modest, quasi-Lockean premise – that persons and other entities have a right to impose stigmatizing deprivations on those who wrong them. This premise evokes John Locke’s far stronger claim that everyone enjoys a natural right to inflict potentially severe sanctions on any wrongdoer. The quasi-Lockean premise also evokes the familiar idea that all criminal wrongdoing is an attack on the broader community, and that law-breakers consequently owe a debt to society that they can repay through punishment. In this essay, I argue that the inferences Husak draws from the quasi-Lockean premise are unsound, but for reasons that reveal important lessons about the state’s right to punish crime and about the limits of what we can extract from the venerable idea that a central victim of criminal wrongdoing is the community as a whole. In Part II, I argue that the quasi-Lockean premise does not ground the state’s right to punish the kind of wrongs traditionally thought central to the criminal law, namely, wrongs perpetrated on individual human victims. In Part III, I answer Husak’s implicit challenge to describe a kind of stigmatizing deprivation – a kind of punishment – that the state alone has a right to inflict. I suggest that no entity but the state may inflict sanctions that constitute prima facie invasions of moral rights.
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14 March 2022
The section heading numbers cited incorrectly in the Abstract and Introduction as Part I and Part II should read as Part II and Part III respectively.
Notes
Douglas N. Husak, “Does the State Have a Monopoly to Punish Crime?”, in Chad Flanders & Zachary Hoskins (eds.), The New Philosophy of Criminal Law (London and New York: Rowman & Littlefield, 2016), p. 97.
Ibid.
Ibid.
See ibid., p. 100.
Ibid., p. 104.
Ibid., pp. 103–104.
Ibid., p. 97.
Locke’s natural right to punish is a right to “bring such evil on any one, who hath transgressed [the Law of Nature], as may make him repent the doing of it, and thereby deter him, and by his Example others, from doing the like mischief.” John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge and New York: Cambridge University Press, 1988 [1690]), p. 272 [§8].
Locke claims that “if any one in the State of Nature may punish another, for any evil he has done, every one may do so. For in that State of perfect Equality, where naturally there is no superiority or jurisdiction of one, over another, what any may do in Prosecution of that Law, every one must needs have a Right to do.” Ibid., pp. 271–272 [§7].
Ibid., p. 271 [§7]. For a sophisticated Lockean account of the state’s exclusive right to punish, see John Simmons, “Locke and the Right to Punish,” Philosophy and Public Affairs 20 (1991). Simmons reaches the anarchistic conclusion that a state’s right to punish would be exclusive only if all of its citizens voluntarily transferred their private punitive rights to the state – a condition that no existing political community satisfies. For a theory that builds on Simmons’ Lockean starting point but rejects his anarchistic conclusion, see Christopher Heath Wellman, “Rights and State Punishment,” Journal of Philosophy 106 (2009).
Husak, “Does the State Have a Monopoly to Punish Crime?”, p. 101.
Ibid., pp. 103–104.
Lawrence C. Becker, “Criminal Attempts and the Theory of the Law of Crimes,” Philosophy and Public Affairs 3 (1974), p. 274.
See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 65–671.
William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769), vol. 4, pp. 5–6.
On the distinction between objects and conditions of punishment, see chapter 4 of R.A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford and Portland: Hart Publishing, 2007), and Gabriel S. Mendlow, “The Elusive Object of Punishment,” Legal Theory 25 (2019).
R.A. Duff & S.E. Marshall, “Public and Private Wrongs,” in James Chalmers, Fiona Leverick & Lindsay Farmer (eds.), Essays In Criminal Law in Honour of Sir Gerald Gordon (Edinburgh: Edinburgh University Press, 2010), pp. 71–72.
Douglas Husak, Overcriminalization: The Limits of the Criminal Law (Oxford and New York: Oxford University Press, 2008), p. 135.
R.A. Duff, The Realm of Criminal Law (Oxford and New York: Oxford University Press, 2018), p. 300.
Ibid., p. 7.
Ibid., pp. 218–219.
Ibid., p. 219.
See Gabriel S. Mendlow, “The Moral Ambiguity of Public Prosecution, The Yale Law Journal 130 (2021).
For discussion of how the Anglo-American system for prosecuting serious crime embodies the morality of accusation and answer, see R.A. Duff, Trials and Punishments (Cambridge and New York: Cambridge University Press, 1986), pp. 99–143, and Antony Duff et al. (eds.), The Trial on Trial: Volume Three: Towards a Normative Theory of the Criminal Trial (Oxford and Portland: Hart Publishing, 2007), pp. 55–161.
For further discussion of these norms, see Mendlow, “The Moral Ambiguity of Prosecution,” pp. 1168–1171.
For a history of the victims’ movement and a proposal about a “dual-track” criminal process designed to enhance the wellbeing of victims without diminishing the wellbeing of offenders, see Nicola Lacey & Hanna Pickard, “A Dual-Process Approach to Criminal Law: Victims and the Clinical Model of Responsibility without Blame,” The Journal of Political Philosophy 27 (2019).
I say “seemingly superior” because I am not fully confident in the victim-centered conception of moral standing, which subordinates the standing of third parties to the standing of victims. I leave open the possibility that this conception of moral standing is unsound, and that “a collective third party like a political community enjoys a caliber of moral standing that rivals or surpasses that of a victim.” Mendlow, “The Moral Ambiguity of Public Prosecution,” p. 1153.
See generally Trudy Govier & Wilhelm Verwoerd, “Forgiveness: The Victim’s Prerogative,” South African Journal of Philosophy 21 (2002).
See Mendlow, “The Moral Ambiguity of Prosecution,” pp. 1165–1171.
See ibid., pp. 1171–1182.
Although the superior moral standing of crime victims doesn’t defeat the case for a state-centric prosecutorial model, it does weigh in favor of granting victims certain procedural rights. See ibid., pp. 1171–1182.
For an alternative defense of the state-centric prosecutorial model, see Matt Matravers, “The Victim, the State, and Civil Society,” in Bottoms and Roberts, Hearing the Victim.
Husak, “Does the State Have a Monopoly to Punish Crime?”, p. 97.
Ibid., p. 100.
See ibid., p. 99.
Ibid., p. 101.
Ibid.
Ibid.
One possible exception is parental punishment, as I discuss below.
I thank an anonymous referee for suggesting this possibility.
On the debate between will-based and interest-based theories of the function of rights, see Leif Wenar, “Rights,” in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2020).
See generally David Williams Archard, “Children’s Rights,” in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2018).
Max Weber, “Politics as a Vocation,” in H. H. Gerth & C. Wright Mills (eds.), From Max Weber: Essays in Sociology (Abingdon and New York: Routledge, 2009), p. 78.
The context is this: “[A] state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. … [T]he right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it.” Ibid.
Acknowledgements
For helpful comments, I thank Vincent Chiao, Alec Walen, Ekow Yankah, and an anonymous referee for Law and Philosophy. For inspiration, encouragement, and support, I thank Doug Husak.
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Mendlow, G.S. On the State’s Exclusive Right to Punish. Law and Philos 41, 243–262 (2022). https://doi.org/10.1007/s10982-021-09439-1
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DOI: https://doi.org/10.1007/s10982-021-09439-1