The Rights of the Guilty: Punishment and Political Legitimacy

Abstract

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 specific 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 legitimacy requires states to respect the basic political rights of those who are guilty of committing crimes, including a right against capital punishment.

Keywords: punishment, legitimacy, contractualism, criminal justice, rights, criminal law, Rawls