Respect and resistance in punishment theory

California Law Review

Volumn 97, Issue 2, 2009, Pages 601-632

  Ristroph, Alice ^a  

^a SETON HALL UNIVERSITY   (United States)

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EID: 68749092192     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (185)

1. This is the account from Plato's dialogues Apology and Crito. See 1 Plato, The Dialogues of Plato 98-104,118-22 (R.E. Allen trans., 1984).
2. See I.F. Stone, The Trial of Socrates 229 (Doubleday 1989) (1989).
3. See generally E. R. Milner, The Lives and Times of Bonnie and Clyde (1996).
4. Ibid.. at 22-25 (describing Barrow's escape from jail)
5. id. at 134 (listing several law enforcement officers killed by Barrow); id. at 139-143 (describing ambush in Louisiana).
6. See, e.g., N.J. Stat. Ann. § 2C:29-2 (West 2008) (resisting arrest)
7. Tex. Penal Code Ann. § 38.10 (Vernon 2003) (failure to appear)
8. Tex. Penal Code Ann. § 38.06 (Vernon 2003) (escape).
9. See, e.g., Nancy J. King, Felony Jury Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885, 896 (2004) (describing the trial penalty, or plea discount, and offering rationales for it). In another effort to punish resistance to punishment, a new proposal would penalize prisoners who seek DNA testing if the testing provides further evidence of guilt.
10. See Tonja Jacobi & Gwendolyn Carroll, Acknowledging Guilt: Forcing Self-Identification in Post-Conviction DNA Testing, 102 Nw. U. L. Rev. 263 (2008).
11. Robert Cover, Violence and the Word, 95 Yale L.J. 1601,1607 (1986).
12. There are some affinities between a Hobbesian "blameless liberty" and a Hohfeldian privilege: both entail an option to act, or the absence of a duty to refrain from acting.
13. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710, 747-50 (1917). A privilege to resist punishment is the absence of a duty to submit to punishment. Since, unlike rights, privileges do not imply any corresponding duties upon others, a privilege to resist punishment does not mean that the sovereign has a duty to refrain from imposing punishment.
14. Cf. Michael S. Green, The Privilege's Last Stand: The Privilege Against Self-incrimination and the Right to Rebel Against the State, 65 Brook. L. Rev. 627, 675-80 (1999) (describing the right against self-incrimination in Hobbes as a Hohfeldian privilege). And, of course, Hobbes does recognize the sovereign's "right" to punish. But Hobbesian rights do not map neatly onto Hohfeld's categories, as discussed in more detail below. For more on rights as "blameless liberties" and the inadequacy of Hohfeld, see infra Part II.B.
15. Hobbes is probably overlooked too much by scholars in all areas of law, see infra note 16, but his virtual absence in criminal legal theory is especially striking. A rare exception is Green, supra note 8, but Green focuses on the privilege not to testify against oneself rather than the more general right to resist punishment. Theories of punishment from other political philosophers have fared much better among legal scholars. Law reviews and criminal law textbooks are rife with references to Immanuel Kant and Jeremy Bentham, and occasional appeals to G.W.F. Hegel or Cesare Beccaria for variety. For just a few of the many available examples, see Russell L. Christopher, Deterring Retributivism: The Injustice of "Just" Punishment, 96 Nw. U. L. Rev. 843, 906-07 (2002) (discussing Bentham)
16. id. at 862-63 (Hegel)
17. Charles Fried, Reflections on Crime and Punishment, 30 Suffolk U. L. Rev. 681, 694-98 (Beccaria)
18. Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 Colum. L. Rev. 509 (1987). Though Hobbes has been much studied in political theory and philosophy, even in those fields Hobbes's specific claims about punishment have received little attention in comparison to other aspects of his work.
19. In this Essay, I use the terms "retributivism" and "retributive arguments" interchangeably. But for a more nuanced account of the concepts than is required here, see Michael T. Cahill, Retributive Justice in the Real World, 85 Wash. U. L. Rev. 815, 820 (2007) (distinguishing between "retributive" theory and " retributivist" theory).
20. At the same time, as will become clear below, Hobbes's account of punishment is markedly different from "hybrid" theories that reconcile retributive and utilitarian aims by specifying circumstances in which one goal should yield to the other. See, e.g., Paul H. Robinson, Hybrid Principles for the Distribution of Criminal Sanctions, 82 Nw. U. L. Rev. 19 (1987).
21. See, e.g., R.A. Duff, Trials and Punishments 208, 234 (1986); Herbert Morris, Persons and Punishment, 52 Monist 475 (1968), reprinted in Sentencing 93-109 (Hyman Gross & Andrew von Hirsch eds., 1981).
22. See, e.g., Mark Tunick, Hegel's Political Philosophy: Interpreting the Practice of Legal Punishment 97-98 (1992) (describing Hegel's theory that punishment restores mutual recognition and respect).
23. See Christopher, supra note 9, at 967-70
24. David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. Rev. 1623, 1632-33, 1642-56 (1992).
25. There is some philosophical disagreement as to the relationship between justification and legitimacy. Many scholars use the terms interchangeably. See, e.g., Allen Buchanan, Political Legitimacy and Democracy, 112 Ethics 689, 703 (2002) (equating legitimacy with moral justification). Others distinguish them: "Legitimacy, when challenged, bases itself on an appeal to the past, while justification relates to an end that lies in the future." Hannah Arendt, On Violence, in Crises of the Republic 151 (1972). Hobbes did not use either term very much and focused instead on authorization. But I think it is clear that Hobbes would reject efforts to show that punishment is legitimate, or justified, from the perspective of the person punished. See infra Part II.B.
26. James Boyle asked over twenty years ago, "Why does the standard jurisprudence course feature Dworkin, Raz, Hart, Kelsen, and Austin as major players, relegating Hobbes to the introductory parade of venerable, but marginal, jurisprudes?" James Boyle, Thomas Hobbes and the Invented Tradition of Legal Positivism: Reflections on Language, Power, and Essentialism, 135 U. Pa. L. Rev. 383, 390 (1987). The contributors to a recent collection on Hobbes's accounts of law include philosophers and political theorists, but few law professors. Hobbes on Law (Claire Finkelstein ed., 2005). Though legal scholarship rarely directly engages Hobbes's own ideas, he is frequently cited as providing the inspiration for Oliver Wendell Holmes Jr.'s legal positivism. See, e.g., Stephen R. Perry, Holmes Versus Hart: The Bad Man in Legal Theory, in The Path of the Law and Its Influence 158, 175 (Steven J. Burton ed., 2000) ("[I]f we are to understand Holmes as advancing a theory of law at all, that theory is clearly Hobbesian in character."). Claire Finkelstein has recently argued that the Holmes-Hobbes relationship is overstated and based on a superficial reading of Hobbes. Claire Finkelstein, Hobbes and the Internal Point of View, 75 Fordham L. Rev. 1211 (2006).
27. But see Robert P. Kraynak, Hobbes's Behemoth and the Argument for Absolutism, 76 Am. Pol. Sci. Rev, 837 (1982) (acknowledging, and arguing against, the charge that Hobbes's theory has totalitarian implications)
28. Thomas Hobbes, Leviathan 89 (Richard Tuck ed., 1991) (1651). I have modernized spelling, punctuation, and capitalization for quotations from this text.
29. George Kateb, Hobbes and the Irrationality of Politics, 17 Pol. Theory 355, 385 (1989)
30. For example, Bentham's proposal that poor or homeless persons should be imprisoned in a "workhouse" (to spare others the disutility of the sight of the poor) and forced to labor may not be greeted with universal acceptance today. See Jeremy Bentham, Tracts on Poor Laws and Pauper Management, in 8 Works of Jeremy Bentham 361,401 (John Bowring ed. 1843)
31. Kant argued that even if a society were disbanding and individual members were moving on to other locations, the society should first execute all murderers to "the last murderer remaining" in order to avoid "blood guilt" and honor the demands of the moral law. Immanuel Kant, The Metaphysics of Morals 142 (Mary Gregor trans., 1991) (1797).
32. Hobbes, supra note 18, at 89.
33. "[T]he difference between man, and man, is not so considerable, as that one man can ... claim to himself any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger with himself" Id. at 87.
34. Ibid.. at 88. Elsewhere, Hobbes elaborated in greater detail his claim that natural vulnerability to death implies a right, or "blameless liberty," to do whatever necessary for self-preservation: And forasmuch as necessity of nature maketh men to will and desire bonum sibi, that which is good for themselves, and to avoid that which is hurtful; but most of all, the terrible enemy of nature, death, from whom we expect both the loss of all power, and also the greatest of bodily pains in the losing; it is not against reason that a man doth all he can to preserve his own body and limbs, both from death and pain. And that which is not against reason, men call RIGHT, or Jus, or blameless liberty of using our own natural power and ability. It is therefore a right of nature, that every man may preserve his own life and limbs, with all the power he hath. Thomas Hobbes, Elements of Law Natural and Politic 71 (Ferdinand Tonnies ed., 1839) (1640) [hereinafter Hobbes, Elements of Law]. The term "right," as used here, cannot mean a legally protected interest, nor does it imply any duties in other people.
35. Hobbes, supra note 18, at 89.
36. See id. at 117 (humans form commonwealths to "get[] themselves out from that miserable condition of war").
37. Ibid.. at 91.
38. See Carl Schmitt, The Concept of the Political 61 (George Schwab trans., 1996) (1927) ("dangerous and dynamic")
39. Leo Strauss, The Political Philosophy of Hobbes 3 (Elsa M. Sinclair trans., 1963) ("rapacious").
40. Hobbes, supra note 18, at 120.
41. Ibid..
42. Ibid..
43. Ibid.. (emphasis omitted).
44. Hobbes repeatedly emphasized that the exercise of individual or "private" judgment would become a threat to social stability. He had sharp criticism for the individual who engages in the "peremptory pursuit of his own principles, and reasoning," and he counted among the "diseases of a commonwealth" the "seditious doctrine" that "every private man is judge of good and evil actions." Id. at 209, 223 (emphasis omitted).
45. "[T]here [are] some rights, which no man can be understood by any words, or other signs, to have abandoned, or transferred. As first a man cannot lay down the right of resisting them, that assault him by force, to take away his life ...." Id. at 93.
46. See, e.g., Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 10.4(d) (2d ed. 2003). Claire Finkelstein has argued that in some circumstances, an acquittal on the grounds of self-defense can be understood as a recognition that no one can be expected not to resist a violent assault on one's own person. Claire O. Finkelstein, Self-Defense as a Rational Excuse, 57 U. Pitt. L. Rev. 621, 647-49 (1996).
47. Accordingly, many self-defense claims by battered women who kill their abusers have proved controversial. In the most controversial cases, the battered woman kills her abuser when he is sleeping or otherwise not posing an immediate threat. See Richard A. Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. Rev. 371 (1993).
48. See, e.g., Hobbes, supra note 18, at 120 (describing the form of the social contract).
49. See, e.g., id. at 130 (sovereign power must be absolute and indivisible); id. at 184 ("The sovereign ... is not subject to the civil laws,")
50. th century England.
51. See, e.g., Patrick McKinley Brennan, Against Sovereignty: A Cautionary Note on the Normative Power of the Actual, 82 Notre Dame L, Rev, 181, 185 (2006) (alleging that the Framers of the United State Constitution knew, and rejected, Hobbes's account of sovereignty)
52. Leo Strauss called Hobbes "the founder of liberalism," defining liberalism as "that political doctrine which regards as the fundamental political fact the rights, as distinguished from the duties, of man and which identifies the function of the state with the protection or the safeguarding of those rights," Leo Strauss, Natural Right and History 181-82 (Univ. of Chi, Press 1971) (1965), Others characterize Hobbes as a "vulgar liberal" or a "kind of liberal," See Richard Tuck, Hobbes 97 (1989) ("a kind of liberal")
53. Patrick Neal, Vulgar Liberalism, 21 Pol. Theory 623 (1993).
54. Hobbes, supra note 18, at 491 (stating as the aim of Leviathan "to set before men's eyes the mutual relation between protection and obedience")
55. see also id. at 153 ("The obligation of subjects to the sovereign, is understood to last as long, and no longer, than the power lasts, by which he is able to protect them.").
56. Ibid.. at 150.
57. See, e.g., Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. Ill, L. Rev. 173, 183-84 (describing, as Hobbes's position, "[t]he only solution to the problem of civil order is to treat as law only the command of the sovereign."), Hobbes did often equate law with the command of the sovereign, but his formulations usually emphasize that laws are the commands of one who has the right to command. See, e.g., Hobbes, supra note 18, at 111 ("Law, properly is the word of him, that by right hath command over others,").
58. See Hobbes, supra note 18, at 183 (law is not "a command of any man to any man; but only of him, whose command is addressed to one formerly obliged to obey him")
59. id, ("Civil law, is to every subject, those rules, which the commonwealth has commanded him, by word, writing, or other sufficient sign of the will, to make use of, for the distinction of right, and wrong; that is to say, of what is contrary, and not contrary to the rule,") (emphasis omitted).
60. Ibid.. at 187-88, Hobbes suggests that laws of nature are evident to men through their own reason, rather than via any sovereign proclamation, but he goes on to explain that all laws, especially the laws of nature, need to be interpreted. The task of interpretation falls to judges duly authorized by the sovereign. See id. at 188-92.
61. See Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England 55 (Joseph Cropsey ed., 1971) (1681) [hereinafter Hobbes, Dialogue] ("It is not wisdom, but authority that makes a law,")
62. see also id. at 70-73, 87,140-42, One of the principles of English common law that most outraged Hobbes was the (uncodified) rule that a subject who fled prosecution but later was acquitted would nonetheless forfeit his property. Though a written statute that criminalized flight from trial would be valid, to seize the property of innocent subjects without statutory authority was "unchristian and abominable," Id. at 151
63. see also Hobbes, supra note 18, at 193.
64. Hobbes, Dialogue, supra note 46, at 71.
65. For further discussion of Hobbes's rule-of-law values and their particular application in the context of punishment, see Mario A. Cattaneo, Hobbes's Theory of Punishment 275, 277 in Hobbes Studies (K.C. Brown ed., 1965).
66. John Rawls, A Theory of Justice 211 (2d ed. 1999) (1971).
67. Hobbes, supra note 18, at 214.
68. Ibid.. at 215.
69. See id. at 214-15. Arguably, Hobbes is not strictly a positivist here; the limitation of "punishment" to properly intentioned harms introduces a normative element to his definition of punishment.
70. Ibid.. at 219. I mean only to point out the compatibility between Hobbes and retributive theory. Hobbes himself was no retributivist, see infra notes 101-102 and accompanying text, and m general one need not be a retributivist to object to punishing the innocent. See Alice Ristroph, Proportionality as a Principle of Limited Government, 55 Duke L.J. 263, 273 n.31 (2005).
71. Hobbes, supra note 18, at 99 (rejecting testimony obtained through torture)
72. id. at 151 (no man shall be compelled to accuse himself)
73. id. at 203-04 (no ex post facto laws)
74. id. at 218 (right to judicial hearing).
75. Cf. Kyron Huigens, On Commonplace Punishment Theory, 2005 U. Chi. Legal F. 437, 439-41 (distinguishing between functions of punishment and theories of punishment).
76. Hobbes, supra note 18, at 117
77. Hobbes, Dialogue, supra note 46, at 140.
78. Hobbes, supra note 18, at 214.
79. Ibid..
80. See supra Part I.B.
81. Hobbes, supra note 18, at 214.
82. Ibid..
83. Ibid.. at 10.
84. Hobbes did not use these names for various states of nature, but he clearly contemplated the possibility that subjects could return to a state of nature after an established political authority collapsed. Id. at 154 ("If a monarch shall relinquish the sovereignty, both for himself, and his heirs; his subjects return to the absolute liberty of nature...").
85. Again, these are not Hobbes's phrases. But one may find support for this conceptualization in Hobbes's discussion of criminals who, having resisted the sovereign and drawn the threat of punishment, may band together to defend themselves collectively against the still-existing sovereign. The sovereign remains a sovereign for his law-abiding subjects, but vis-à-vis the band of criminals the sovereign is simply an aggressor in a state of nature. See id. at 152.
86. Even with this elaboration of the states of nature, the claim that the right to punish is a manifestation of a natural right to self-preservation is perplexing. I noted above that Hobbes seems to view the fact of mortality, and the desire for self-preservation, to imply in humans a right to self-preservation. But it is not clear why sovereigns-who are not obviously mortal beings-would have a similar right.
87. I do not mean to suggest that every crime is a profound political statement. I mean simply that the criminal has put himself and the sovereign into a conflict with no mutually recognized third-party adjudicator.
88. Hobbes, supra note 18, at 120.
89. See supra Part I.B.
90. For a similar reading, and a detailed argument for the inalienability of the right to resist force, see Yves-Charles Zarka, Hobbes and the Right to Punish, in Hobbes-The Amsterdam Debate 71 (Hans Blom ed., 2001).
91. Of course, Hobbes does not allow the subject to say to the sovereign, "I think your national security policy is lunacy and surely inadequate to protect me, so I am going to resist you violently," or, "These tax rates are killing me; I am going to rebel." As explained above, we can distinguish between a strategy of long-term self-preservation on one hand and preservation of the body from immediate threats on the other hand. We give the sovereign complete authority over the former; we are not allowed to second-guess his strategy. Since protection from immediate threats is necessary to long-term preservation, we expect the sovereign to protect us from immediate threats as well. But if he fails to do so, we are free to do our best to ensure our own immediate self-preservation.
92. Hobbes, supra note 18, at 98.
93. Ibid.. at 152.
94. Hobbes, De Give, or The Citizen 39-40 (Sterling P. Lamprecht ed., 1949) (1651). Two passages in Leviathan sometimes lead commentators to argue that Hobbesian subjects do consent to be punished. In rejecting a general right of revolution, Hobbes claimed that "if he that attempts to depose his sovereign be killed, or punished by him for such attempt, he is author of his own punishment, as being by the institution, author of all his sovereign shall do." Hobbes, supra note 18, at 122. Hobbes later expanded this argument: "[B]ecause every subject is by this institution author of all the actions, and judgments of the sovereign instituted; it follows, that whatsoever [the sovereign] does, it can be no injury to any of his subjects." Id. at 124. The second of these passages is easy to reconcile with the right to resist punishment if we remember that Hobbes defines "injury" as a breach of contract, see id. at 104, and it is clear that the sovereign breaches no contract in imposing punishment. Punishment damages the subject, see id. at 120, but it does not injure him. The discussion of efforts to depose a sovereign is more challenging, but it is clear from other passages that the right to resist extends even to punishment for treason or rebellion. See id. at 152.
95. See Hohfeld, supra note 8, at 717 (defining claim rights as those with correlative duties)
96. see also Claire Finkelstein, A Puzzle About Hobbes on Self-Defense, 82 PAC. Phil. Q. 332, 358 (2001) ("Hobbes's right to self-defense is a mere liberty right, rather than a full-fledged claim right. That is, it is a right that places no one under a correlative duty of non-interference.").
97. Hohfeld, supra note 8, at 710, 747-50.
98. See Eleanor Curran, Lost in Translation: Some Problems with a Hohfeldian Analysis of Hobbesian Rights, 19 Hobbes Stud. 58 (2006).
99. "[T]hat which is not against reason, men call RIGHT, or jus, or blameless liberty of using our own natural power and ability. It is therefore a right of nature, that every man may preserve his own life and limbs, with all the power he hath." Hobbes, Elements of Law, supra note 24, at 71.
100. Hobbes, supra note 18, at 91.
101. Ibid.. at 93.
102. Ibid..
103. Ibid.. Claire Finkelstein has argued that "surely it would sometimes be beneficial for me to lay down the right to resist him who wounds me, puts me in chains or imprisons me," and suggests that it might sometimes be worthwhile to sell one's right to resist. Finkelstein, supra note 74, at 338-39. Whatever notion of self-interest motivates Finkelstein's claim, it is not Hobbes's. Hobbes would probably acknowledge that it may sometimes serve a person's interest to decline to resist. But to renounce permanently the right to resist is tantamount to saying, "I am not and never will be the best agent of my own preservation; I bargain that my interests in preservation are best served by granting you complete discretion over my continued existence." Hobbes would see such a bargain as deeply irrational, and I am inclined to agree. It should be noted that according to Hobbes, rational human beings care not simply about being preserved, but about self-preservation. They are agents of their own security, not mere passive recipients of protective services.
104. Hobbes, supra note 18, at 151.
105. Ibid.. at 202.
106. But Hobbes would acknowledge that depending on the sovereign's capacity to apprehend the criminal and the specific nature of the threatened punishment, it may sometimes be more rational to submit than to resist. See infra Conclusion.
107. See supra note 77. The right to resist punishment may be, as David Gauthier has described the right to self-defense, "beyond the law." David Gauthier, Self-Defense and the Requirement of Imminence: Comments On George Fletcher's Domination in the Theory of Justification and Excuse, 57 U. Pitt. L. Rev. 615, 616 (1996). "A legal system which failed to recognize the right, which failed to recognize the justification each person has to act in her own protection in the light of imminent danger, could have no valid claim on the allegiance or obedience of those it sought to bring within its sway." Id.
108. Kateb, supra note 19, at 385.
109. Hobbes, supra note 18, at 152 ("To resist the sword of the commonwealth, in defense of another man, guilty, or innocent, no man has liberty.") (emphasis added). An apparent exception to this rule is the circumstance in which several criminals, all facing punishment, join forces and resist the sovereign collectively.
110. See infra note 94 and accompanying text.
111. See, e.g., Jean Hampton, Hobbes and the Social Contract Tradition, 197-207 (1986). Other scholars, such as Deborah Baumgold, are less troubled by the implications of the right to resist, because they conclude that resistance will be ineffective: the sovereign's superior power is almost certain to prevail. Deborah Baumgold, Hobbes's Political Theory 29 (1988) (claiming that Hobbes grants the right to resist only because it is "politically irrelevant"). Remember, the right to resist is only a "blameless liberty," not a legally enforceable claim. Hobbes does not imagine that any government entity will honor and enforce the individual's right to resist punishment. That would be nonsensical. Rather, the right to resist punishment simply means that we should not be surprised if the condemned man fights back, nor can we say that he is wrong to do so.
112. Thomas S. Schrock, The Rights to Punish and Resist Punishment in Hobbes's Leviathan, 44 Pol. Res. Q. 853, 886-87 (1991).
113. Ibid.. at 854. Leo Strauss also notes the tension between a right to punish and a right to resist, but does not seem to view it as fatal to Hobbes's theory. Strauss, supra note 40, at 197.
114. Thomas Schrock contrasts the resisting criminal to Odysseus, who ordered his men to tie him to the mast and yet still resisted the bonds: "If Odysseus had broken the bonds and gone straightway to the Sirens, Homer would have recorded a moral loss. By contrast, if [the person to be punished] successfully resists and escapes, Hobbes finds no moral loss, even if the defendant is guilty of the crime for which he had beforehand authorized the sovereign to 'Kill me.''' Schrock, supra note 90, at 878.
115. It is clear that "right" and "authority" are not always interchangeable in Hobbes's theory. At least some rights are natural, but all authority is artificial. Every person has rights in the state of nature, regardless of what other persons do, say, or think. But persons-note the plural- must create relationships of authority. As Hanna Pitkin points out, the person who attempts to establish authority all by himself is, for Hobbes, a fraud. See Hanna Fenichel Pitkin, The Concept of Representation 23 (1972)
116. see also Hobbes, supra note 18, at 113. Hobbes himself seemed to finesse this point by asking, "[B]y what door the right or authority of punishing in any case came in." Id. at 214.
117. Cf. Gauthier, supra note 88, at 148 ("Each man authorizes, not his own punishment, but the punishment of every other man. The sovereign, in punishing one particular individual, does not act on the basis of his authorization from that individual, but on the basis of his authorization from all other individuals.").
118. Hobbes argued that it did not make sense to speak in moral terms-of right and wrong, or good and bad-until there was a commonly recognized authority to settle moral disagreements. Many contemporary theorists follow this line of reasoning to defend democratic decision-making procedures. See, e.g., Jeremy Waldron, Law and Disagreement (1999).
119. I leave aside civil commitment for the mentally incapacitated.
120. The important individualist and egalitarian claims of Hobbes's account are neglected in a recent discussion by Corey Brettschneider. According to Brettschneider, Hobbes thought it unnecessary to justify punishment to the criminal; criminals were "enemies" of society and as such, "unworthy" of arguments justifying the use of force against them. Corey Brettschneider, The Rights of the Guilty: Punishment and Political Legitimacy, 35 Pol. Theory 175, 176, 179 (2007). But Hobbes did not argue that justifying punishment to the criminal is unnecessary; rather, his claim was that this task is impossible. I do not think Hobbes was indifferent to the fact that criminals are subject to violent responses from the state. He simply refused to assuage lingering discomfort about this violence by pretending that the criminal has consented to it.
121. See Alan Norrie, Thomas Hobbes and the Philosophy of Punishment, 3 L. & Phil. 299, 314 (1984) ("It is because of Hobbes's contractualist framework that his work exhibits a retributivist tendency.").
122. See Cattaneo, supra note 48, at 289 ("Hobbes's conception contains in essence the basic principles of a utilitarian theory of punishment....") .
123. See, e.g., Norval Morris, Desert as a Limiting Principle, in Principled Sentencing 201 (Andrew von Hirsch & Andrew Ashworth eds., 1992)
124. Robinson, supra note 11, at 38-39.
125. Hobbes claimed that punishments must be sufficiently severe to deter illegal action: "If the harm inflicted be less than the benefit, or contentment that naturally follows from the crime committed, that harm is not within the definition [of punishment] and is rather the price, or redemption ... because it is of the nature of punishment, to have for end, the disposing of men to obey the law..." Hobbes, supra note 18, at 215.
126. Ibid.. at 106
127. see also id. at 240 ("[T]he end of punishment is not revenge, and discharge of choler; but correction, either of the offender, or of others by his example....").
128. Hobbes might have enjoyed Cool Hand Luke, the film in which Luke Jackson, played by Paul Newman, repeatedly resists punishment by escaping a rural prison. When Luke is captured and returned to the prison after one escape attempt, a prison captain has him shackled and advises him never to stop listening to the sound of his chains, "because they gonna remind you of what I've been sayin'-for your own good." Luke replies, "I wish you'd stop being so good to me, Cap'n." Cool Hand Luke (Warner Brothers 1967).
129. The phrase comes from C.S. Lewis, who explains that God inflicts pain on humans not to be cruel, but to awaken them to their sins and to the truth. C.S. Lewis, The Problem of Pain 95 (Macmillian Co. 1965) (1940). Retributive theorists have adopted this phrase. See Jean Hampton, An Expressive Theory of Retribution, in Retributivism and Its Critics 1 (Wesley Cragg ed., 1992)
130. Robert Nozick, Philosophical Explanations 718 n.80 (1981).
131. "[T]he virtue ethics theory of punishment takes the principal justifying purpose of the criminal law to be the inculcation of virtue or habituation to virtue." Kyron Huigens, Street Crime, Corporate Crime, and Theories of Punishment: A Response to Brown, 37 Wake Forest L. Rev. 1,11 (2002) (footnote omitted).
132. The philosopher Bernard Williams argued that many situations present us with moral dilemmas, in which it is not possible to satisfy every morally weighty claim. He used the phrase "remainders" to describe the "moral oughts" that remain unsatisfied. See Bernard Williams, Problems of the Self 179 (1973). These remainders are cause for regret-which is not to say that we would act differently if faced with the dilemma again. "Regret necessarily involves a wish that things had been otherwise, for instance that one had not had to act the way one did. But it does not necessarily involve the wish, all things taken together, that one had acted otherwise." Bernard Williams, Moral Luck: Philosophical Papers 1973-1980 31 (1981). For a somewhat broader understanding of the term "moral remainder," see Bonnie Honig, Political Theory and the Displacement of Politics 213 n.1 (1993).
133. See Michael Walzer, Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Aff. 160 (1973).
134. The United States is hardly the only country to recognize rights of the accused, but it is usually viewed as having, at least on paper, an especially broad conception of defendants' rights. For discussions of defendants' rights in comparative perspective, see Damaska, Structures of Authority and Comparative Criminal Procedure, 84 Yale L.J. 480 (1975) and Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int'l L.J. 1 (2004).
135. For a catalogue of instrumental and rights-based argimients for the privilege against self-incrimination in particular, see Green, supra note 8, at 640-68.
136. As becomes clear below, this account is loosely Hobbesian, but it is not Hobbes's own view. I do not argue that Hobbes himself would defend legally cognizable defendants' rights such as those nominally protected in the Bill of Rights to the U.S. Constitution.
137. See, e.g., Akhil Reed Amar & Johnnie L. Cochran Jr., Debate, Do Criminal Defendants Have Too Many Rights?, 33 Am. Crim. L. Rev. 1193, 1196-97 (1996) (Amar arguing that the criminal justice system provides rights that "benefit the guilty without helping the innocent")
138. id. at 1198 (Cochran arguing that the rights of the accused are necessary to protect innocent defendants).
139. Chambers v. Mississippi, 410 U.S. 284, 294 (1973) ("The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witaesses in one's own behalf have long been recognized as essential to due process.").
140. See, e.g., Daniel J. Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 Harv. L. Rev. 430 (2000).
141. See, e.g., Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (1997)
142. Robert L. Misner, In Partial Praise of Boyd.- The Grand Jury as Catalyst for Fourth Amendment Change, 29 Ariz. St. L.J. 805, 805 (1997) (arguing that the exclusionary rule "sometimes frees the certainly-guilty").
143. See, e.g., Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich. L. Rev. 2625, 2631 (1996) ("[A]s embodied in the United States Constitution, the privilege against self-incrimination was not intended to afford defendants a right to remain silent or to refuse to respond to incriminating questions.")
144. Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 679-80 (1968).
145. The Supreme Court has often stated that successful Eighth Amendment challenges are, and should be, rare. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 963 (1991)
146. Ingraham v. Wright, 430 U.S. 651, 667-68 (1977)
147. see also Ristroph, supra note 53, at 307-14.
148. See supra note 12 and accompanying text.
149. Paul Butler, Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983,1003 (2004).
150. James Whitman, Harsh Justice: Criminal Justice and the Widening Divide between America and Europe 41-43 (2003) (emphasis added).
151. Ibid.. at 9-11, 104-07.
152. Ibid.. at 42 (citing William Blackstone, 4 Commentaries on the Laws of England 370-71 (1979) (1765-69)).
153. See, e.g., id. at 9-11,125-50.
154. See, e.g., id at 178.
155. See id at 191-92.
156. In addition to the works of Herbert Morris and Jean Hampton discussed below, see Laura Appleman, Retributive Justice and Hidden Sentencing, 68 Ohio St. L. J. 1307, 1335-36 (2007)
157. John Finnis, Punishment's Formative Aim, 44 Am. J. Juris. 91, 102 (1999).
158. See Morris, supra note 12, at 95.
159. Ibid.. at 102-05. Though Morris did not mention Hegel, his account closely approximatesthe Hegelian argument that punishment reformulates the offender's criminal act-the violation of another's freedom-as a universal law and applies it to the offender himself, and for this reason the imposition of punishment is necessary to respect the offender's rationality. See G.W.F. Hegel, Elements of the Philosophy of Right 128 (Allen W. Wood ed., H.B. Nisbet trans., Cambridge Univ. Press 1991) (1820).
160. Hampton, supra note 104, at 13.
161. Ibid..
162. See Christopher, supra note 9, at 967-70
163. Dolinko, supra note 14, at 1632-33, 1642-56.
164. Morris acknowledged that if the initial distribution of benefits and burdens is not equal, "the difference between law and coercion disappears." Morris, supra note 12, at 103. He did not himself address whether American society or other existing systems satisfied the equal initial distribution requirement.
165. See, e.g., Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239, 260-61 (2009) (arguing that retributive punishment "communicates to the offender that we are respecting him by holding him responsible as a moral agent," and stating that a failure to punish may be taken "as a statement of condescension" to the offender).
166. In other words, unless one is already committed to the retributive view that bad acts by responsible agents necessarily require a punitive response, one can easily recognize a bad act as a deliberate choice of a responsible agent and still decline to respond by punishing.
167. See Alice Ristroph, Sexual Punishments, 15 Colum, J. Gender & L. 139, 160-61 (2006) (describing the lack of privacy and degree of official control in prisons). There may be ways to operate prisons with some modicum of respect-Whitman describes requirements in European prisons that officers address prisoners in formal terms, or knock before entering cells- but such requirements do not exist in American prisons. See Whitman, supra note 119, at 65-90.
168. See Erwin N. Griswold, The Fifth Amendment Today 7 (1955) ("[W]e do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands.").
169. Larry May has reached a similar conclusion, with provisos: "Hobbes would think that Socrates could have justifiably avoided his death sentence, as long as avoiding that sentence truly did not threaten the legal order .... Hobbes does not say that it is justifiable to break any law the breaking of which would not threaten the legal order. Rather, he holds the much more restricted and reasonable view that this is only true in cases of peril to self" Larry May, Hobbes on Fidelity to Law, 5 Hobbes Stud. 77, 86 (1992). I am not sure that this last provision is much of a restriction, given that Hobbes considered any threat of "wounds, chains, or imprisonment" to pose a peril to self-preservation. See supra text accompanying note 80. And Hobbes does not limit the right to self-preservation to circumstances in which the legal order is not threatened; Hobbes does not require the individual to sacrifice his own safety for the sake of the larger community.
170. See Seidmann & Stein, supra note 113.
171. See Hobbes, supra note 18, at 151 ("If a man be interrogated by the sovereign ... concerning a crime done by himself, he is not bound (without assurance of pardon) to confess it ... .") (emphasis added)
172. see also Kastigar v. United States, 406 U.S. 441 (1972) (upholding federal law that permits compelled testimony provided the witness is promised that her statements will not be used to prosecute her). Cf. Communist Party v. Subversive Activities Control Bd., 376 U.S. 1, 180 (1961) (Douglas, J., dissenting) (tracing the privilege against self-incrimination to Hobbes and the right to resist punishment). Michael Green has analyzed the Hobbesian argument for a privilege against self-incrimination; he ultimately seems to conclude that a virtue-based or republican political theory provides a non-contractual duty to obey the state that supplants Hobbesian contractualism and precludes a privilege against self-incrimination. See Green, supra note 8, at 675-80, 716.
173. See Chambers v. Mississippi, 410 U.S. 284 (1973).
174. This principle was reflected in the now-defunct "exculpatory no" doctrine, which used to serve as a defense to charges under 18 U.S.C. § 1001 (2000). Under that doctrine, a person was excused from criminal liability if her only false statements to a federal officer were simple denials of guilt. See Brogan v. United States, 522 U.S. 398, 401-02 (1998) (describing, and rejecting, the doctrine).
175. For example, the Eighth Amendment right to be free of cruel and unusual punishment does not permit a prisoner to kill officials who punish him cruelly.
176. See Hohfeld, supra note 8, at 717.
177. See Curran, supra note 76 and accompanying text.
178. See Scott v. Harris, 127 S. Ct. 1769, 1772-73 (2007).
179. Ibid.. at 1773. Harris sued the police deputy who pushed him over the embankment, alleging an unconstitutional use of deadly force. Id. The Supreme Court found that the deputy was entitled to summary judgment, basing its finding on a videotape of the chase. Id. at 1778-79.
180. James J. Kilpatrick, The Unhappy Lot of a Policeman, Tulsa World, Oct. 15, 2006, at G5.
181. See Cover, supra note 7, at 1607-08 ("I think it is unquestionably the case in the United States that most prisoners walk into prison because they know they will be dragged or beaten ... if they do not walk. They do not organize force against being dragged because they know that if they wage this kind of battle they will lose-very possibly lose their lives.").
182. Indeed, in his famous response to "the Foole," Hobbes himself made the point, though he did not take it to undermine his argument for a right to self-preservation. See Hobbes, supra note 18, at 101-03.
183. I thank Rick Greenstein for emphasizing this point.
184. Scholars distinguish between mandatory or positive retributivism, which claims that the guilty must be punished, and permissive retributivism, which holds that the guilty may be punished. See, e.g., Donald A. Dripps, Fundamental Retribution Error: Criminal Justice and the Social Pyschology of Blame, 56 Vand. L. Rev. 1383 (2003). Kant's call to "execute the last murderer" illustrates mandatory retributivism. See Kant, supra note 21.
185. See, e.g., Cesare Beccaria, Of Crimes and Punishments 112 (Jane Grigson trans., Oxford Univ. Press 1964) (1764) ("It is better to prevent crimes than to punish them.").