Libertarianism without Inequality

By Michael Otsuka | Go to book overview

Chapter 3 The Right to Punish

In the previous chapter I enlisted the punitive practices of criminal justice to serve the redistributive ends of distributive justice. In this chapter I offer a Lockean justification of the natural right to punish. Such a justification is not only relevant to the case for making the unjust provide for the disabled that I presented in the previous chapter. Since the right of the government to punish is derived from the natural rights of individuals to punish, it is also relevant to the Lockean justification of political authority that I present in Part III of this book.


I

It is Locke's view that each person, upon reaching the age of majority, finds himself in 'a state of perfect freedom' (ii. 4), which implies, among other things, rights to govern oneself. 1 These rights encompass, but also extend beyond, the familiar rights of autonomous persons in a liberal society to do as they please within the sphere of activities which concern only themselves. They include rights that are akin to those that governments possess. Among them is a right to punish violations of the 'law of nature', which proscribes the harming of 'another in his life, health, liberty, or possessions' (ii. 6). 2 Moreover, each person comes into possession of a right to punish in accordance with his own interpretation of the specific content of the law of nature. 3 Hence, the

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