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Locke on Punishment and the Death Penalty

Published online by Cambridge University Press:  30 January 2009

Brian Calvert
Brian Calvert
Affiliation:
University of Guelph
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Extract

At the end of the opening chapter of his Second Treatise of Government, Locke describes political power in the following terms: ‘Political Power then I take to be a Right of making Laws with Penalties of Death, and consequently all less Penalties, for the Regulating and Preserving of Property, and of employing the force of the Community, in the Execution of such Laws, and in the defence of the Common-wealth from Foreign Injury, and all this only for the Publick Good.’

Type
Articles
Information
Philosophy , Volume 68 , Issue 264 , April 1993 , pp. 211 - 229
Copyright
Copyright © The Royal Institute of Philosophy 1993

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References

1 Here, and throughout, I use the edition by Peter Laslett. Of course, in the context, one main reason why Locke begins in this way stems from his desire to distance himself from the position taken by Sir Robert Filmer and his followers. For Locke, the right to use the death penalty seems to be partly definitive of political power, and such power belongs only to the magistrate. This is why he argues at length that political power must not be confused with paternal power, and he denies that fathers have absolute power, especially the power of life and death, over their wives, children and servants. What is important about this is not simply that fathers/husbands/masters do not possess the power of life and death, but that magistrates do possess it.

2 Berns, Walter, For Capital Punishment: Crime and the Morality of the Death Penalty. (New York: Basic Books, 1979).Google Scholar

3 Bedau, Hugo Adam, Death is Different (Boston: Northeastern University Press, 1987).Google Scholar

4 Hobbes, Thomas, Leviathan. MacPherson, C. B. (ed.), (Harmondsworth: Penguin Books, 1968), Part II, Chap. 26.Google Scholar

5 Modern theorists usually make a distinction here. If a person is reformed, this means that the person concerned has changed his values and does not commit similar crimes because he regards such activity as wrong. If a person is deterred, that person refrains from criminal activity simply out of fear of punishment.

6 It recurs in Section 212: ‘'tis in their Legislative, that the Members of a Commonwealth are united, and combined together into one coherent living Body. This is the Soul that gives Form, Life, and Unity to the Commonwealth.’

7 Similarly, Locke provides no guidance on how to reconcile what have been perceived to be discordant features in his ethical theory. Is he a natural law theorist, a theological voluntarist, a hedonistic utilitarian? This issue has attracted considerable attention from commentators.

8 Armstrong, K. G., ‘The Retributivist Hits Back’, in Acton, H. B. (ed.), The Philosophy of Punishment (London: Macmillan, St. Martin's Press, 1969), 155.Google Scholar

9 Rawls, John, ‘Two Concepts of Rules’Google Scholar, in Acton, , op. cit., pp. 105–114Google Scholar. Hart, H. L. A., Punishment and Responsibility (Oxford: Clarendon Press, 1968), Chap. 1.Google Scholar

10 Although it is even conceivable that the state might never impose the death penalty in practice, it is important to emphasize that it could not take the further step of deciding that it had no right to use it in principle. It remains an important part of Locke's argument that the magistrate possesses the power to put people to death. The right of nature (the right to judge in one's own case) which people give up in order to institute civil society necessarily includes the right to kill aggressors in appropriate circumstances (e.g. self-defence). In which case, it would not be possible to design a Lockean state which lacked the right to use the death penalty, even though that state might choose never to use it in practice.

I owe this point to my colleague Karen Wendling.

11 Bedau, , pp. 12–13.Google Scholar