Respect and Resistance in Punishment Theory
Seton Hall University - School of Law
U of Utah Legal Studies Paper No. 07-12
California Law Review, Forthcoming
This essay seeks first to (re)introduce Thomas Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist goals (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of punishment that will strike contemporary lawyers as both familiar and perplexing. Hobbes justified punishment within a legal system that adheres to due process, notice, and other principles of the rule of law, but he also insisted that no one consents to be punished, that punishment is an act of violence, and most surprisingly, that the condemned person has a right to resist punishment. In exploring the apparent contradictions in these claims, we find an account of punishment arguably more honest, more egalitarian, and more uniformly respectful than the accounts offered by mainstream retributivist and utilitarian punishment theorists.
Number of Pages in PDF File: 37
Keywords: criminal law, punishment theory, Hobbes, right to resist, violence, privilege against self-incrimination
Date posted: December 14, 2007