The Rights of the Guilty

Political Theory 35 (2):175-199 (2007)
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.
Keywords punishment  criminal law  jurisprudence  capital punishment  rousseau  contractualism  rawls  prison  rights  desert
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DOI 10.1177/0090591706297714
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Corey Brettschneider (2011). Rights Within the Social Contract : Rousseau on Punishment. In Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey (eds.), Law as Punishment/Law as Regulation. Stanford Law Books
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