What are the moral limits to punishments for criminals?

(written by lawrence krubner, however indented passages are often quotes). You can contact lawrence at: lawrence@krubner.com, or follow me on Twitter.

[ this post was originally published on a weblog called What Is Liberalism ]

When humans live outside of government, and outside of society, what does the law of nature allow them to do, justly, to those who trespass against them? Locke’s view of the state of nature is, of course, much kinder than that put forward by Hobbes. Hobbes assumes injustice everywhere, “a war of all against all.” Locke assumes justice everywhere, arising naturally from first principles (God wants us to treat each other justly, people have a moral obligation to act with compassion). Any crimes committed by those while living in a state of nature must be punished under the precepts of the law of nature, but Locke envisions the law of nature as being one that demands true justice and enforces restraint, thus, when someone commits a crime, those who would punish that person must constrain themselves “only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint: for these two are the only reasons, why one man may lawfully do harm to another.”

I’m reading Second Treatise of Government, by John Locke (possibly written 1679-1683, first published after the end of the Glorious Revolution, 1689).

This is from page 8-10, Chapter 2, Of The State Of Nature:

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, and undoubted right to dominion and sovereignty…

But though this be a state of liberty, yet it is not a state of license: though man in that state have an uncontrolable liberty to dispose of his person or possessions, yet he has not liberty to destory himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creature’s are for our’s. Every one, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which wills the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the trangressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.

And thus, in the state of nature, one man comes by a power over another; but yet no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will,; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint: for these two are the only reasons, why one man may lawfully do harm to another, which is that we call punishment. In transgressing the law of nature, the offender declares himselves to live by another rule that that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tye, which is to secure them from injury and violence, being slighted and broken by him. Which being a trespass against the whole species, and the peace and safety of it, provided for by the law of nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one, who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and by his example others, from doing the like mischief. And in the case, and upon this ground, every man hath a right to punish the offender, and be executioner of the law of nature.

Later in the book Locke admits that the historians of his time can point to no men who live in a state of nature, to which Locke explains that civil society is so very much preferable to living in the state of nature that all men everywhere convert to a state of civil society as soon as a land has even just a few men. Therefore, his description of the law of nature is not meant to describe an ideal of justice to which people living in a civil society should aspire to, rather, it is the absolute bare minimum that people can do without being immoral. People living in a civil society can do even better than that.

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