Rights within the Social Contract: Rousseau on Punishment
LAW AS PUNISHMENT/LAW AS REGULATION, Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, eds., Stanford University Press, 2011
27 Pages Posted: 25 Jan 2012 Last revised: 29 Jan 2012
Date Written: January 24, 2012
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.
Keywords: punishment, criminal law, jurisprudence, Rousseau, contractualism, theory of criminal law
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