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 implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment. (shrink)

This major study of Hobbes's political philosophy draws on recent developments in game and decision theory to explore whether the thrust of the argument in Leviathan, that it is in the interests of the people to create a ruler with absolute power, can be shown to be cogent. Professor Hampton has written a book of vital importance to political philosophers, political and social scientists, and intellectual historians.

The fundamental presupposition of political philosophy is that the legitimate rule of one individual over another requires justification: political power may come out of the barrel of a gun but political authority does not. Classically, the philosopher of politics looked to nature. In the seventeenth century, however, the philosophical tide turns in a decidedly different direction: contractarianism. Political society becomes a consensual construct created through the heuristic vehicle of a hypothetical social contract. Simultaneously, within the confines of contractarianism itself, a (...) remarkable transformation occurs. The theory originates in the hands of Grotius, Hobbes and Pufendorf as a justificatory tool for political absolutism and, paradoxically, reaches its zenith in Locke with a firm commitment to constitutionalism. I explore this transformation in detail, culminating with what I term the “Lockean Synthesis.”. (shrink)

This paper argues that throughout his intellectual career, Hobbes remains unsatisfied with his own attempts at proving the invariant advisability of contract-keeping. Not only does he see himself forced to abandon his early idea that contractual obligation is a matter of physical laws. He also develops and retains doubts concerning its theoretical successor, the doctrine that the obligatoriness characteristic of contracts is the interest in self-preservation in alliance with instrumental reason - i.e. prudence. In fact, it is during his work (...) on Leviathan that Hobbes notes the doctrine's main shortcoming, namely the limitation of its dialectical potential to cases in which contract-breakers are publicly identifiable. This essay shows Hobbes's doubts about his Leviathan's treatment of contractual obligation by way of a close reading of its central 15 th chapter and an analysis of some revealing shifts between the English Leviathan and the (later) Latin edition. The paper ends by suggesting that Hobbes's awareness of the flaws at the heart of his political philosophy helps account for some striking changes in his latest writings. (shrink)

This book is the most comprehensive, rigorous critique of contemporary Hobbesian contractarianism as expounded in the work of Jean Hampton, Gregory Kavka, and David Gauthier. Professor Kraus argues that the attempts by these three philosophers to use Hobbes to answer current political and moral questions fail. The reasons why they fail are related to fundamental problems intrinsic to Hobbesian contractarianism: first, the problem of collective action arising out of the tension in Hobbes' theory between individual and collective rationality; second, the (...) classical problem of explaining the normative force of hypothetical action, a problem that can be traced to the conflicting strategies of hypothetical justification found in Rawls' and Hobbes' theories. Given the deep interest in Hobbesian contractarianism among philosophers, political theorists, game theorists in economics and political science, and legal theorists, this book is likely to attract wide attention and infuse new life into the contractarian debate. (shrink)

Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity's structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified. I argue in this article, however, that something essential is lost in the casual slippage between (...) social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory. Contractarian blinders lead us to look for greater individualism, greater social unity, and greater coherence of principles than can actually be expected of constitutions or constitutionalism. Real constitutional orders appropriate, incorporate, and channel the histories and divisions of the societies they govern. Treating them as if they are social contracts will flatten and distort them, making those engagements with the past or with social plurality appear anomalous and encouraging their minimization. I aim to redirect some of our attention to non-contractarian constitutionalism, or non-contractarian strands within constitutionalism, both as intellectual inheritance and as lived practice. Non-contractarian elements persisted in constitutional theory across the apparent break of the late 1700s, even though these have to some degree been lost sight of more recently; and they have persisted and should persist in constitutional practice. (shrink)

Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.

I begin by considering an argument for why there would not be justice in a community of wise Epicureans: justice only exists where there is an agreement "neither to harm nor be harmed," and such an agreement would be superfluous in a community of wise Epicureans, since they would have no vain desires which would lead them to wish to harm one another. I argue that, if the 'justice contract' prohibits only direct harm of one person by another, then it (...) would be superfluous among Epicureans. However, Lucretius and Hermarchus make it clear that people enter into communities in order to protect themselves from harm from animals and from starvation, and that regulations needed in order for the community to protect the members from these dangers also fall under the purview of justice. Given this more expansive reading of the content of the 'justice contract,' such agreements would be needed in any community, even ones which had only wise Epicureans as members. (shrink)