Introduction to Political Theory

(Marvins-Underground-K-12) #1

property to be secure but that commits you to respecting other people’s property.
You are acting from a law you give yourself. This may appear to be enlightened
self-interest but it is not, for self-interest would lead you to steal if you could
get away with it. The purely self-interested person acts capriciously – he is
incapable of ‘universalising’ his action – whereas the morally motivated person
is truly rational, because rationality equates with the ability to universalise.
(b) Public power versus private action If somebody breaks into your house and
steals your things then your most likely reaction is to feel that this is an attack
on you(your property being an extension of yourself). But it is also an attack
on the collective. Although the police might give you the discretion to press
charges (or not), the decision to pursue and prosecute the perpetrator is not
yours. In Anglo-Saxon political thought – especially in the contract tradition
of Hobbes and Locke – we give up the private right to pursue criminals; in
contracting into the state we pool our private rights to pursue violence against
those who harm us in order to win the benefits of collective action. The remnants
of justifiable private action can be observed in the right to self-defence: this is
stronger in the United States, where the Second Amendment to the Constitution
guarantees the right to bear arms. The public power/private action distinction
is connected to, but does not directly mirror, the division between criminal law
and civil law.
With these distinctions now in place we can set out the steps in a retributivist
theory of punishment:



  1. Crime entails the assertion of egoism (pure self-interest) over morality – this may
    appear simply as a conflict between the individual (ego) and society (morality),
    but crucially it is also a conflict within the criminal between his egoistic self and
    moral self. Furthermore, what seems to be a purely egoistic act implies a moral
    judgement. Crime is the first act of coercion. It is the coercion of other citizens
    by the criminal.

  2. Punishment is the annulment (or negation) of the criminal’s egoistic act –
    punishment is the second act of coercion. It is the coercion of the criminal by
    the state.

  3. However, step 2 is not a straightforward negation of step 1 (it is not simply an
    eye for an eye). The second act of coercion is not an egoistic act, meaning that
    unlike the crime it is not a random act of violence, but rather it is the
    universalisation of the criminal’s will: the criminal does not consciously will his
    own punishment, but it is implicit in his actions.

  4. The negation of the crime must address the will of the criminal and not just the
    external aspect of his act. There are two important subpoints: (a) the criminal’s
    intention – what is called mens rea– is important; (b) restitution is inadequate

    • indeed, in many cases it is impossible.



  5. A crime is a false universalisation of will: in killing another person you will that
    there should be a law permitting killing. Your punishment, which for Kant must
    be death, is not simply an act of restitution – of course, it is not even that, for
    your victim cannot be brought back to life – but the expression of your will: you
    will your own execution. As a moral agent – acting from a truly rational will –
    you recognise the validity of the punishment. Furthermore, you have a rightto
    be punished – the state’s failure to punish you is a denial of your status as a
    moral agent.


Chapter 7 Punishment 145
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