Respect and Resistance in Punishment Theory

California Law Review, 2009

38 Pages Posted: 26 Aug 2008

Multiple version iconThere are 2 versions of this paper

Date Written: August, 25 2008

Abstract

Is it coherent to speak of a right to resist justified punishment? Thomas Hobbes thought so. This essay seeks first to (re)introduce 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 benefits (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 consequentialist theorists.

Suggested Citation

Ristroph, Alice, Respect and Resistance in Punishment Theory (August, 25 2008). California Law Review, 2009, Available at SSRN: https://ssrn.com/abstract=1255102

Alice Ristroph (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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