Rights within the Social Contract: Rousseau on Punishment
Corey L. Brettschneider
Brown University - Department of Political Science; Fordham University School of Law
January 24, 2012
LAW AS PUNISHMENT/LAW AS REGULATION, Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, eds., Stanford University Press, 2011
A great deal of contemporary work on justifications of punishment has been pursued within the field of moral philosophy. Such inquires are typically 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 legitimacy. In contrast to a broadly moral theory of punishment, a theory of punishment within the confines of political morality should address not only how those guilty of crimes deserve to be treated, but also the narrower question of which punishments the state rightly metes out. In this essay, I argue that we should turn to Rousseau as a guide in developing a theory of justifiable state punishment. Rousseau’s theory of the social contract, I suggest, demonstrates how a theory of political legitimacy might frame an account of punishment. Furthermore, I contend that Rousseau’s contractualism, while flawed, points the way forward for contemporary accounts of legitimate state punishment.
Number of Pages in PDF File: 27
Keywords: punishment, criminal law, jurisprudence, Rousseau, contractualism, theory of criminal lawAccepted Paper Series
Date posted: January 25, 2012 ; Last revised: January 29, 2012
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