Pufendorf based his political and legal theories on a
conception of natural law. According to Pufendorf,
there exists both divine law, created by God, and
human law, created by governments. From a consider-
ation of divine and human law, it is possible to discern
a fundamental law of nature. To demonstrate the exis-
tence of natural laws, Pufendorf advanced an account
of the STATE OF NATUREsimilar to the one provided by
Hobbes. Pufendorf argued that human beings are char-
acterized by weakness and self-interest, which con-
tributes to our need to live in common to overcome
our individual vulnerability. However, a common life
can be preserved only when all persons maintain a
sociable attitude toward one another. The fundamental
law of nature, then, is to create a peaceful society for
the purpose of self-preservation. This mandate has the
status of natural law, Pufendorf believed, because it is
part of the divine plan for how the physical and
human worlds should operate. Consequently, the fun-
damental law of nature serves as the basis from which
all other human laws regulating social conduct are
derived.
Given the basic law of sociability, a number of
moral duties follow, many of which are negative
duties, such as not harming others; others are positive
duties, such as treating others as equals. Pufendorf
also believed that, because of our shared subjection to
the law of nature, all individuals were entitled to
RIGHTSof EQUALITYand FREEDOM. Moreover, just as God
imposes obligations by legislating divine or natural
laws, so too can humans impose obligations by legis-
lating and enacting laws. For Pufendorf, civil govern-
ment is formed to restrain people from harming others
through a system of laws and punishments that govern
human conduct. Established through a SOCIAL CON-
TRACT, the government is responsible for promoting
safety by enforcing civil laws and securing human dig-
nity by protecting natural rights. Pufendorf then elabo-
rated theories of civil, constitutional, and international
law based on his doctrine of natural law.
Further Reading
Krieger, L. The Politics of Discretion: Pufendorf and the Acceptance
of Natural Law.Chicago: University of Chicago Press, 1965.
punishment
In political and legal philosophy, the concept of social
punishment addresses the reasons, justifications, and
practices of inflicting pain or deprivation on a person
for some crime that he or she has committed. Two
main rationale exist for carrying out punishments in
society (such as imprisonment, monetary fines, execu-
tion, deportation, loss of civil rights, etc.). First, retri-
bution is the just inflicting of pain or injury on
someone who has harmed another. From the biblical
standard “an eye for an eye, and a tooth for a tooth,”
retribution means state-inflicted hurt on a criminal,
similar to that inflicted by the criminal on the victim
(such as the death penalty for murderers). Immanuel
KANTdevelops this theory of “punishment deserved”
or justified social “punishment by desert,” the criminal
getting what he/she deserves. CHRISTIANprinciples of
mercy, forgiveness, and forbearance (not inflicting
punishment even on those whom you have a right to
harm) has mitigated the severity of such justifiable
punishment but not eliminated social control of crimi-
nals altogether. So, for example, St. AUGUSTINEurges a
Roman official to show leniency on some convicted
murderers of some church priests, not because they
have not sinned but because the church must show
Christ’s principles of mercy and forgiveness. This does
not mean that the perpetrators should not be pun-
ished, only that it should be done in a way (such as
prison terms) that encourages repentance and turning
to God and a good, new life. Hence, the idea of a “pen-
itentiary”—a place where criminals might be confined
to (1) be unable to commit more crimes and (2)
become penitent or sorry for their past sins, and
reform.
The second view of punishment is UTILITARIAN, as in
the criminal justice theory of Jeremy BENTHAM. This
school of thought sees punishment as securing social
peace and affording a deterrent to further crime. If a
sure punishment for criminal activity exists, people
will be less likely to commit crimes against others
(theft, assault, murder, etc.). Debates continue over
this “deterrent” theory of punishment. The MODERN
liberal and Marxist sociological view is that social con-
ditions (poverty, ignorance, ALIENATION, etc.) cause
crime and that only improved economic and social
environments will eliminate crime (see ROUSSEAU).
CONSERVATIVEthought situates responsibility for crimi-
nal actions on the individual, regardless of social con-
dition, and demands personal accountability for
criminal behavior (see BURKE).
Contemporary penalogy and criminal justice policy
reflects different views of social punishment. The rise
of the prison population in America partly reflects a
conservative shift toward retribution perspectives.punishment 247