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Locke on the Death Penalty

Published online by Cambridge University Press:  30 January 2009

A. John Simmons
A. John Simmons
Affiliation:
University of Virginia
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Extract

Brian Calvert has offered us a clear and careful analysis of Locke′s views on punishment and capital punishment.1 The primary goal of his paper–that of correcting the misperception of Locke as a wholehearted proponent of capital punishment for a wide range of offences–must be allowed to be both laudable and largely achieved in his discussion. But Calvert′s analysis also encourages, I think, a number of serious misunderstandings of Locke′s true position.

Type
Articles
Information
Philosophy , Volume 69 , Issue 270 , October 1994 , pp. 471 - 477
Copyright
Copyright © The Royal Institute of Philosophy 1994

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References

1 ‘Locke on Punishment and Capital Punishment’, Philosophy 68, 264, pp.211–229.Google Scholar

2 References to Locke′s Two Treatises of Government will be by I or II followed by section number.Google Scholar

3 It is often charged that tacit consent is an unsatisfactory basis for political obligation, simply because it is in cases of tacit consent unclear exactly to what one is consenting. Locke believes, I think, that this problem can be handled in the same manner as the problem of inexplicit express consent–that is, by inferring the content of the consent from the point of giving it.

4 See my The Lockean Theory of Right (Princeton: Princeton University Press, 1992), esp. pp. 148–61.Google Scholar

5 See my discussion of these arguments in On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton University Press, 1993), pp. 45–6.Google Scholar

6 Locke sometimes writes, of courses, as if the victim of a crime has a special right to be the party that does the punishing of that criminal (II, 23, 172), in which case the right to punish would derive from forfeiture. Locke's more general, and I think more defensible, view, however, is that t the right to punish is shared by all persons (II, 7–8). See my remarks on S the two doctrines of forfeiture in The Lockean Theory of Rights, pp. y 148–51.

7 See, eg., Nino, C. S., ‘A Consensual Theory of Punishment’, Philosophy & Public Affairs 12:4 (Fall1983).Google Scholar

8 Including, interestingly, those outside of the society, who have never agreed to let the magistrate be the one who does the punishing (barring worldwide international treaties to this effect). This Lockean position thus provides a philosophical foundation for justifying procedures like the Nuremberg Trials, where persons are punished by ‘aliens’ for moral wrongs which were not legal wrongs at the time and place of their commission.

9 Locke′s claims (in II, 155, 181, 227, 232) that any use of force without right counts as unjustly initiating a state of war (and so apparently justifies the use of the death penalty) are clearly a product of rhetorical J zeal for political purposes, inconsistent with his considered view that lesser uses of unjust force call for lesser punishments (II, 12). See Calvert's defence of this point (pp. 223–4) and my own {On the Edge of Anarchy, pp. 40–46).