Why Only the State May Inflict Criminal Sanctions

36 Pages Posted: 27 Sep 2007 Last revised: 15 Apr 2015

See all articles by Alon Harel

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Date Written: September 25, 2007


Some theorists argue that a justification of criminal punishment presupposes a theory of state power. Although the state is typically assigned the task of inflicting criminal sanctions, the mere fact that the criminal deserves to be punished cannot in itself justify the infliction of punishment by the state, as non-state agents could presumably give people their just deserts.

One way of addressing the plea for a theory of state power would be to suggest that state-inflicted sanctions are justified simply on the grounds that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, the state's role in inflicting criminal sanctions is contingent and, in principle, the state could be replaced by other agents, e.g., private individuals. This hypothesis has given rise to recent calls to reform the state's criminal justice system by introducing privately-inflicted sanctions, e.g., shaming penalties, private prisons or private probationary services.

This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions in a way that renders the idea of replacing state-inflicted sanctions with privately inflicted sanctions not merely contingently undesirable. Privately-inflicted sanctions sever the link between state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment she acts on what she and not the state judges to be a sufficient basis for action. Privately-inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve a sanction inflicted on an alleged wrongdoer on the basis of such a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction.

Keywords: criminal sanctions, state agency, private punishment

JEL Classification: K42

Suggested Citation

Harel, Alon, Why Only the State May Inflict Criminal Sanctions (September 25, 2007). CLPE Research Paper No. 25/2007. Available at SSRN: https://ssrn.com/abstract=1017298 or http://dx.doi.org/10.2139/ssrn.1017298

Alon Harel (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

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