The Rights of the Guilty
| Date | 01 April 2007 |
| Author | Corey Brettschneider |
| Published date | 01 April 2007 |
| DOI | 10.1177/0090591706297714 |
| Subject Matter | Articles |
Volume 35 Number 2
April 2007 175-199
© 2007 Sage Publications
10.1177/0090591706297714
The Rights of the Guilty
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Punishment and Political Legitimacy
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Corey Brettschneider
Brown University, Providence, Rhode Island
In this essay I develop and defend a theory of state punishment within a wider
conception of political legitimacy. While many moral theories of punishment
focus on what is deserved by criminals, I theorize punishment within the spe-
cific context of the state’s relationship to its citizens. Central to my account is
Rawls’s “liberal principle of legitimacy,” which requires that all state coercion
be justifiable to all citizens. I extend this idea to the justification of political
coercion to criminals qua citizens. I argue that the liberal principle of legiti-
macy implicitly requires states to respect the basic political rights of those
who are guilty of committing crimes, thus prohibiting capital punishment.
Keywords:
punishment; legitimacy; contractualism; criminal justice; rights
Although normative inquiry into justifications of punishment has been
extensive, it has largely been pursued from the perspective of moral
philosophy.1 Much of this literature is concerned with the rightness or
wrongness of punishment from the perspective of utilitarian or retributive
moral theory considered in isolation from the political question of legiti-
macy. However, the problem with a moral as opposed to a distinctly politi-
cal inquiry about punishment is that it addresses only the punishment
deserved by criminals and ignores the particular context involved when the
state is doing the punishing.
In contrast to a broadly moral theory of punishment, a theory of punish-
ment within the confines of political morality should address not only what
is deserved but also which punishments the state rightly metes out. In other
words, a political theory of punishment is concerned not only with how and
when to punish but also with the question of who is administering a pun-
ishment. Such an inquiry would concern not just the issue of desert but,
more fundamentally, that of the political legitimacy of state punishment.2 In
this essay, I attempt to develop and defend a theory of punishment within a
wider conception of political legitimacy.
Author’s Note: For helpful comments and conversations, I thank Isaac Belfer, David Estlund,
Nate Goralnik, David Grant, Amy Gutmann, George Kateb, Sharon Krause, and John Tomasi.
175
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Political Theory
In developing my theory, I turn to the “contractualist” work of John
Rawls and T. M. Scanlon. I draw in particular on Rawls’s “liberal principle
of legitimacy,” which states that “our exercise of political power is fully
proper only when it is exercised in accordance with a constitution the essen-
tials of which all citizens as free and equal may reasonably be expected to
endorse in light of the principles and ideals acceptable to their common
human reason.”3 I argue that justifying political coercion to those who are
guilty of crimes is central to this principle.
My extension of modern contractualism to encompass the political justifi-
cation of punishment sets this theory apart from other prominent theories of
the social contract. Hobbes, for instance, thought of criminals as having vio-
lated the social contract and hence as “enemies” of the polity. Consequently,
he saw no need for the state to extend justification to them.4 In a retributive
account of punishment, by contrast, the state merely serves as a means to
enforce the punishment required by natural law. Both of these theories contain
important alternatives to the contractualist account of punishment that I pro-
pose. After developing the basic framework for my contractualist account, I
address some potential objections raised by these theories. I then go on to dis-
cuss the implications of my account, focusing specifically on the limits on
punishment that it would require. After examining several easy cases, I employ
the insights developed to argue that contemporary contractualism cannot jus-
tify capital punishment.
It is important to note that this article is not intended as a broad defense of
contractualist theory but as an application of the contractualist framework to
the question of punishment. As both a moral and a political theory, contem-
porary contractualism has had a slew of defenders and critics from a variety
of perspectives.5 This is not the place to offer another general defense of con-
tractualist theory. Rather, I hope to remedy a gap in the literature in regard to
the application of contractualism to punishment. I begin the next section by
examining some theoretical reasons why such a gap might exist.
Contractualism and Punishment
One possible objection to formulating a contractualist theory of punish-
ment concerns the criterion of reasonableness implicit in what Rawls calls
the liberal principle of legitimacy.6 For contractualists, coercion is only jus-
tifiable when all reasonable citizens can accept it. However, one problem
here is that criminals who are guilty of violating the most fundamental just
laws in our society, for instance, by intentionally committing violent
Brettschneider / Legitimacy of Punishment
177
crimes, have proven themselves unreasonable in Rawls’s sense of the term.
A reasonable member of a polity, Rawls suggests, should pursue her inter-
ests only in a way consistent with others’ status as free and equal, a norm
that violent criminals obviously violate. It is tempting, therefore, to suggest
that contractualist justification should not apply to criminals who have
proven themselves unreasonable.
The objection described above seems to support the conclusion that con-
tractualism cannot theorize justifications of punishment; however, this conclu-
sion rests on a flawed understanding of what it means to justify laws and
institutions to all reasonable citizens. In making the case for a contractualist
account of punishment, it is therefore sensible to begin by clarifying what con-
tractualist justification entails—especially as it concerns those guilty of vio-
lent, and, I will stipulate, unjust crimes. I draw from the work of contemporary
contractualists such as Rawls and T. M. Scanlon in articulating such an
account of justification. Once contractualist justification—and the liberal prin-
ciple of legitimacy upon which it is based—is understood as not requiring the
actual endorsement of all persons, we can better examine whether and how it
properly applies to issues of punishment.
A contractualist theory of political legitimacy requires asking how a polity
reasonably can balance societal and individual interests, with an aim to make
laws and institutions justifiable to all. Crucial here is the question of whether
a particular criminal sanction respects each individual’s status as a free and
equal citizen. Institutions that trample on the freedom and equality of a por-
tion of the citizenry in favor of a ruling elite fail this basic test of legitimacy.
At the same time, however, a legitimate polity will employ legal constraints in
the form of criminal law to curb destructive or antisocial behavior, so that
some citizens do not violate others’ basic interests, such as security.
Constitutional rights and criminal law thus provide two means of protecting
citizens’ autonomy and equality. The problem for contractualist theory is to
weigh competing claims in a way that takes seriously the legitimate interests
of all citizens. However, this cannot be accomplished by looking to which
policies citizens actually endorse. Given the opportunity, criminals simply
might veto their own punishments. Rather, contractualism posits an ideal of
inclusion that mandates justification to all free and equal citizens.
In elaborating this ideal, a political version of the “contractualist” test
implicit in John Rawls’s liberal principle of legitimacy and explicit in T. M.
Scanlon’s account of moral justification is helpful.7 If we want to know
whether a particular instance of coercion is justified, that is, treats all citi-
zens as free and equal, we should ask, Given a motivation to reach universal
agreement, could citizens who view themselves as free and equal reasonably
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Political Theory
reject such an instance of coercion? It is stipulated here that citizens will be
motivated to engage in a good-faith effort to find a legitimate balance between
rights against coercion and the need to fulfill social goods such as security.
This dialogue between competing claims, and the requirement that citizens be
able to justify their political positions to one another, embraces what Rawls
calls the principle of reciprocity.8 Citizens treat each other reciprocally insofar
as they recognize that each person has equally valid interests to consider in the
process of public justification and that to a reasonable extent they should treat
their fellow citizens as autonomous, rather than imposing one-sided, exploita-
tive duties on them. Because these requirements—equality, autonomy, and
reciprocity—are central to a contractualist account of justification, I refer
to them as the “core values.” It is important to clarify that this ideal of jus-
tification to free and equal citizens is a normative standard rightly extended
to all who are subject to coercion. It is not a legal ideal of citizenship
defined by state claims about who is and who is not a full member of
society. Moreover, I want to clarify the distinction between my use of the
terms citizen and person. I...
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