A Rousseauean Justification of Punishment

Abstract

This thesis is an attempt to arrive at a more suitable justification for the institution of punishment. The problem arises because punishment discriminates between those who are considered offenders (one who has broken the law) and those considered non-offenders. Punishment also goes beyond distinguishing between the offender and the non-offender to inflict some pain or deprive some right to the one considered as an offender. Both the discrimination and the pain inflicted or right deprived to the offender require a justification to be acceptable. This is what has engaged many theorists in penology. There are various positions on the matter. One of the traditional positions like the desert-based retributivists, a variant of the Retributivists justification for punishment says the offender deserves to be punished because he or she has committed a crime and deserves a punishment that inflicts a pain which is equal to the crime that has been committed. The other traditional position is the utilitarian position which suggests that it is justifiable to punish the offender because such a punishment will preserve the society by maintaining social control. This thesis proposes a rational contractarian approach based on the ideas of the contractarian Jean Jacques Rousseau. This thesis suggests that a more plausible justification for punishment could be based on freedom as an essential characteristic of the human being. When a person is deprived of his or her freedom the person loses their humanity. The thesis further suggests that when a person lives according to rational nature, they will live according to the general will, which is always good and makes him free. However, a person who lives according to the will of another or according to one‟s passions, will live in subjugation to another person‟s will or passions against the general will and by so doing is not free. The actual will of a person rises against the general will (the person‟s real will), and this results in a split will. Such a split will is one which makes a person commit a crime and become an offender and unfree. This thesis proposes that punishment remedies this situation when the laws which are based on the general will are applied. The rational will of the person discerns the general will and from that makes the laws. When a person is punished based on the law, then, one punishes oneself and is thus subject neither to another nor to one‟s passions and so is free; there is no distinction between the sovereign who makes the law and the offender who has broken the law. Punishment is thus applied to make a person free since by going against the general will one has made oneself unfree. This thesis seeks to pick some positive attributes of the traditional positions, while avoiding some of their major criticisms and adding its own unique features like concentrating on human freedom as an essential basis to give a more suitable justification for punishment.