Alice Ristroph

Respect and Resistance in Punishment Theory

This essay seeks first to (re)introduce Thomas Hobbes as a punishment theorist, and second to use Hobbes to examine what it means to respect the criminal even as we punish him. Hobbes is almost entirely neglected by scholars of criminal law, whose theoretical inquiries focus on liberal, rights-based accounts of retribution (often exemplified by Immanuel Kant) and claims of deterrence or other consequentialist goals (elucidated, for example, by Jeremy Bentham). Writing before Kant or Bentham, Hobbes offered a fascinating account of punishment that will strike contemporary lawyers as both familiar and perplexing. Hobbes justified punishment within a legal system that adheres to due process, notice, and other principles of the rule of law, but he also insisted that no one consents to be punished, that punishment is an act of violence, and most surprisingly, that the condemned person has a right to resist punishment. In exploring the apparent contradictions in these claims, we find an account of punishment arguably more honest, more egalitarian, and more uniformly respectful than the accounts offered by mainstream retributivist and utilitarian punishment theorists.

Covenants for the sword

How, and how much, can constitutional law restrain state violence? hough American constitutional law purports to regulate policing and punishment in various ways, as a practical matter these uses of force are restrained little by constitutional doctrine. This article examines explanations for that phenomenon. As Thomas Hobbes observed, it is difficult if not impossible to establish a truly independent authority to interpret and enforce legal restrictions on sovereign power. Furthermore, in order for law to restrain the state, we need a conception of the state; we need to know what entity is the subject of constitutional law. We lack clear answers to that question, and as a consequence, putative legal restraints on state violence remain largely ineffective.