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On a question of the tenability of capital punishment within the framework of social contract theory

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On a question of the tenability of capital punishment within the framework of social contract theory
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Sarver, Vernon Thomas, 1943-
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1994
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Capital punishment ( jstor )
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Natural law ( jstor )
Self preservation ( jstor )
Social contract ( jstor )
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ON A QUESTION OF THE TENABILITY OF CAPITAL PUNISHMENT
WITHIN THE FRAMEWORK OF SOCIAL CONTRACT THEORY















By

VERNON THOMAS SARVER, JR.


A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA


1994

































Copyright 1994

by

Vernon Thomas Sarver, Jr.














ACKNOWLEDGMENTS

Several people have provided me with assistance and encouragement at various stages of my work for the dissertation.

Very early on, Professor Thomas Simon read and

critiqued papers of mine on Hobbes, Locke, and Rousseau, and many of his comments and suggestions have been helpful to me in the development of my chapters on these theorists.

In the early stages I also benefitted greatly from many wide-ranging discussions I had with Professor Robert Ziller of the Department of Psychology. I have brought many of the insights I have gained from these conversations to my work for the dissertation.

I would like to recognize the contribution of Professor Charles Collier of the College of Law. At the outset of my writing, Professor Collier met with me and offered many helpful suggestions for bibliography. Over the course of my work he remained available to me for consultation should I have had occasion to stray into the area of legal theory.

Throughout the writing of this dissertation, I have had the very good fortune to have the advice and counsel of Professor Michael Radelet, a nationally recognized expert on the sociology of the death penalty. I am particularly








grateful for his assistance in locating proper sources of documentation for most of the empirical claims I make in the dissertation.

Professor Thomas Auxter's expertise in the area of Kantian studies has proved to be an invaluable source of help and inspiration in my examination and critique of Kant's arguments for the death penalty. It was also Professor Auxter who first suggested to me that I might explore the possibility of a general solution to the central question of the dissertation.

Very few people who write dissertations can claim to have for the chair of their committee someone of Professor R. M. Hare's professional reputation and scholarly accomplishment. At every stage of my writing, he has taken a very active interest in my work and, because of this, I have been saved from many of my own mistakes, both large and small. Of course, for those errors which remain, I alone am responsible. Yet, even so, I have no doubt at all that the final draft of my dissertation is a far better piece of writing than would have resulted without Professor Hare's involvement.

Finally, I would like to express my appreciation to Mrs. Barbara Smerage, who typed the manuscript.














TABLE OF CONTENTS


Pacre

ACKN'OWLEDGENTS. iii

ABSTRACT. viii

CHAPTERS

1 INTRODUCTION.1

1.1 Central Question.1 1.2 Relevant Literature.2 1.3 Purpose and Scope of Inquiry.5 1.4 Organization of Topics.6 1.5 Conceptual Bases for the Study.7
1.5.1 Types of Consent.7 1.5.2 The "State of Nature". .13
1.5.3 "Natural Laws" as a Source of
Constraint .14 1.5.4 Punishment and Capital Punishment .15
1.6 Importance of the Study.17

2 HOBBES AN~D THE JUS NATURALIS.20

2.1 A Query for Hobbes' System.20 2.2 The Hobbesian State of Nature.22
2.3 Empowerment of the Sovereign and Capital
Punishment. 23
2.4 Capital Punishment and the Cotenalbility
Issue. 25
2.5 Attempts to Augment or Amend Hobbes'
Analysis. 28
2.5.1 Appeal to Hohfeld's Distinction.28 2.5.2 The Lifeboat Lottery Analogy.37 2.5.3 Gauthier's Amendment.51
2.6 A Rejection of Hobbes' Analysis .67
2.6.1 Inference from Contractors'
Psychological Incapacity.69
2.6.2 A Reductio Ad Absurdum on Hobbes'
Analysis. 75








3 LOCKE AND THE NOTION OF FORFEITURE . 81

3.1 The Lockean Right of Self-preservation . 81 3.2 The Skeptical Challenge to "Natural Laws". 85
3.3 Difficulties with Locke's Reliance on
Biblical Texts . 88
3.4 A Problem with Punishment of the Innocent . 90 3.5 Summary and Perspective . 97

4 ROUSSEAU'S EQUAL AND TOTAL SUBMISSION
REQUIREMENT . 99

4.1 Stages in the "State of Nature" . 100
4.2 Rousseau's Submission Requirement and the
Death Penalty . 102
4.3 A Two-step Argument for Capital
Punishment . 104 4.3.1 A Rejection of the First Step . 105 4.3.2 A Counter to the Second Step . 112
4.4 A Hint of Diffidence in Rousseau's Account . 116

5 KANT AND THE PRINCIPLE OF EQUALITY . 117

5.1 The "Juridical State of Society" and
Punishment . 117
5.2 Kant's Arguments for the Death Penalty . 120
5.2.1 The "Principle of Equality, . 121 5.2.2 The "Inner Viciousness" Argument . 127
5.2.3 The Suppression of Quibbles
Consideration . 131
5.2.4 The Counterargument to Beccaria . 132
5.3 Systemic Difficulties with the Death
Penalty . 135 5.3.1 Kant's Use of Contract Language . 136 5.3.2 The Vacuity of the Expanded Criterion. 150
5.3.3 Kant's "Natural Law" Foundation and
Punishment of the Innocent . 153

6 RAWLS AND THE PRINCIPLE OF LIBERTY . 159

6.1 Relevant Features of Rawls, Theory . 160
6.2 Cooper and King-Farlow's "Dying Innocents"
Rationale . 162
6.3 Donnelly's Imperilment of Liberty Argument . 166

7 GAUTHIER'S "INITIAL BARGAINING POSITION" . 181

7.1 The "Initial Bargaining Position' . 181 7.2 Gauthier's Rationale for Punishment . 188
7.3 A Rejection of Capital Punishment within
Gauthier's Framework . 192








202


8 CONCLUSION .


8.1 Fundamental Presuppositions and the Generic
Framework . . 204 8.1.1 Status as Living Beings . 204 8.1.2 A Change "For the Better . 208 8.1.3 Self-Advocacy . 211 8.1.4 Unanimous Consent . 212 8.1.5 Termination of the Agreement . 212 8.1.6 The Generic Framework . 213
8.2 A General Conclusion on the Question of
Tenability . 216 8.2.1 Punishment and the Ends of Constraint. 218 C. 2. 2 The Uniqueness of the Death Penalty . 219 8.2.3 The Problem of the Shotcaller . 220
8.2.4 The Idealization of the Hypothetical
Bargaining Situation . 223
8.2.5 Conclusions Regarding the Central
Question . 229 8.3 A Practical Observation and Challenge . 230

REFERENCES . 232

BIOGRAPHICAL SKETCH . 237


vii














Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy


ON A QUESTION OF THE TENABILITY OF CAPITAL PUNISHMENT
WITHIN THE FRAMEWORK OF SOCIAL CONTRACT THEORY

By

Vernon Thomas Sarver, Jr.

April 1994

Chair: Richard M. Hare
Major Department: Philosophy

This study explores a question of the tenability of

capital punishment within the framework of social contract theory. In this connection, the theories of Hobbes, Locke, Rousseau, Kant, Rawls, and Gauthier are examined and all of them are found to be fundamentally incompatible with an affirmative stance on capital punishment. During the course of the study, specific arguments for the death penalty receive attention, including those advanced by Hobbes, Locke, Rousseau, and Kant, as well as those advanced on behalf of Rawls by others, and on behalf of Hobbes by Gauthier. All of these are rejected. Finally, an attempt is made to provide a general solution to the central question of the study, and here, the conclusion is reached that any social contract theory based on hypothetical


viii








consent would be fundamentally incompatible with use of the death penalty.














CHAPTER 1
INTRODUCTION

1.1 Central Question

Is the execution of criminals a legitimate practice

under a government whose raison d'etre springs from social

contract assumptions, in particular, from the premise that

"Governments are instituted among Men, deriving their just

powers from the consent of the governed"?' In other words,

are there any compelling reasons to think that individuals

who have given consent (in some form) to their being bound

together in a society, and derivatively, under a government

emanating from that society,2 have, by so doing, committed



lThomas Jefferson, "The Declaration of Independence," in Stuart Gerry Brown, ed., We Hold These Truths, Harper & Brothers, 1941, p. 37. It is not my intent here to narrow the topic of the study to an inquiry about American political institutions. Indeed, I cite Jefferson only because he expresses in concise and familiar language what I take to be the unifying theme of the various theories I will examine (see section 1.5.1, infra). The influence of contractarian assumptions on American political institutions, of course, has been quite well documented; on this, see, e.g., Andrew C. McLaughlin, The Foundations of American Constitutional.ism, New York University Press, 1932, Ch. III, "The Social Compact and Its Significance in America"; J. W. Gough, The Social Contract, Greenwood Press, 1978, ch. XIV, "The Contract in American Thought"; and Thad W. Tate, "The Social Contract in America, 1774-1787," William and Mary Quarterly 22 (1965), pp. 375-391.

2At least implicit (and at times explicit) in the
contractarian literature is the presence of a distinction between the contract for government and the contract for







2

themselves to the possibility (at least) that some day any one of them may be (justly) put to death by the very society for which they have given their consent?

1.2 Relevant Literature

In reply to this sort of query, the most prominent and influential philosophers among the contractarian theorists of the seventeenth and eighteenth centuries, Hobbes, Locke, Rousseau, and Kant, have advanced, each of them without exception, arguments in support of the death penalty, and moreover, have done so from positions articulated within the framework of their respective social contract theories. I refer, of course, to specific texts which appear in Hobbes' Leviathan, 3 Locke's Second Treatise on Civil Government, 4 Rousseau's The Social Contract,5 and Kant's The Metaphysical

Elements of Justice.6,7


society. As Vicente Medina explains, the latter concept plays a more fundamental role in the theories themselves (Social Contract Theories, Rowman & Littlefield, 1990, pp. 5-7).

3Collier Books, 1962, pp. 105, 110.

41n Social Contract, Sir Ernest Barker, ed., Oxford University Press, 1962, pp. 8-9.

51n The Essential Rousseau, Lowell Bair, trans., New American Library, 1974, ch. V, "The Right of Life and Death."

6Bobbs-Merrill Company, 1965, pp. 99-107.

7Any comprehensive survey of social contract theory
would have to begin with an account of its historical roots in ancient Greece, and would include some discussion of Socrates' argument at Crito 51 for an implied agreement with the people of Athens as the ground for his not evading his









After Kant, with the rise of utilitarianism and German

idealism in the nineteenth century, little incentive could

be found to argue the merits of capital punishment under a

theory which had entered a period of protracted, though not

interminable, decline.8 It would not be until the latter

half of the twentieth century that a substantial rekindling

of interest in social contract theory would take place, an

interest keyed (by and large) on the publication of two

books, John Rawls' A Theory of Justice in 19719 and David

own death sentence; Plato's presentation of what Ron Replogle calls the "proto-contractarian speculations" of Glaucon at Republic 357A-361B (Recoverina the Social Contract, Rowman & Littlefield, 1989, p. 2); and Aristotle's allusion to, and comment on, the view of the sophist, Lycophron, at Politics 1280B (A useful discussion of these classical references can be found in David G. Ritchie, "Contributions to the History of the Social Contract Theory," in Darwin and Heael, Swan Sonnenschein & Company, 1893, pp. 196-199; see also Gough, oD. cit., ch. II). None of these classical sources, however, yield enough of a theoretical perspective to warrant inclusion in the present study. Much the same could be said with regard to later classical and medieval sources (on these, see Ritche, op. cit., pp. 200205; and Gough, op. cit., chs. II, III, & IV). It is, of course, a much different matter with regard to the seventeenth and eighteenth centuries, which, as Gough observes, achieved distinction as "the heyday of the social contract" (ibid., p. 1). These centuries were to produce Hobbes, Locke, Rousseau, and Kant, whom Patrick Riley describes as "the four most eminent members of the social contract tradition" during this era (Will and Political Leaitimacv, Harvard University Press, 1982, p. vii). In a very similar vein, Ron Replogle reports, "contractarian theory came into its own only in the seventeenth and eighteenth centuries, when, in the hands of Hobbes, Locke, Rousseau, and Kant," he urges, "it served as the vehicle for the era's most important political philosophy" (op. cit., p. 2).

8See Gough, on. cit., pp. 183-185 and ch. XII; and
Michael Lessnoff, Social Contract, Humanities Press International, 1986, pp. 97ff.


9Harvard University Press.









Gauthier's Morals Bv Aareement fifteen years later.10 While both of these books are silent on the subject of the death penalty, other recent developments have forged links between the theories they express and contemporary defenses of capital punishment.

One of these developments consists of an attempt by an American law professor, Samuel J. M. Donnelly, to develop criteria for use of the death penalty by appeal (largely) to Rawls' contractarian views.11 More recently, two philosophers, W. E. Cooper and John King-Farlow, have published an article entitled "A Case for Capital Punishment," which likewise makes seminal use of Rawls' theory.12

In still other developments, Gauthier himself has

forged links to his own theory in Morals By Aareement with the publication of two articles on Hobbes, "Taming Leviathan" in Philosophy and Public Affairs13 and "Hobbes' Social Contract" in Nous.14 These papers reflect the general emphasis of an earlier book, The Loaic of Leviathan,15 in


1OClarendon Press, 1986.

11"A Theory of Justice, Judicial Methodology, and the
Constitutionality of Capital Punishment: Rawls, Dworkin, and a Theory of Criminal Responsibility," Svracuse Law Review 29 (1978), pp. 1109-1174.
12journal of Social PhilosoDhy 20 (Winter 1989), pp. 6476.

1316 (1987), pp. 280-298.

1422 (1988), pp. 71-82.

15Clarendon Press, 1969.









which Gauthier offers an improvement on Hobbes, argument for the death penalty. His affirmative stance in this context lends credence to the idea that use of the death penalty would at least not be incompatible with the theory of Morals By Aareement, a theory which Gauthier himself depicts as a ,'oer-a successor" to that of Hobbes.16

1.3 Purpose and Scorne of Inaruirv

In this study I will undertake a critical assessment of the theories of the major contributors to the contractarian tradition, beginning with Hobbes and continuing through Gauthier, for the very limited purpose of ascertaining whether or not any of these theories are compatible with an affirmative stance on the death penalty. Centrally at issue in my assessment will be the question of whether or not contractors under any of these theories may be (plausibly) assumed to have given consent (in some form) to the possibility of use of the death penalty by a government emanating

from a social contract.17 It will not be my purpose in this study, however, to pursue any question of the morality of capital punishment. Instead, the scope of my inquiry will extend only to exploring a question of the compatibility of the death penalty with a particular way of doing political philosophy. Still another limitation of my approach will be that no assessment will be done regarding the compatibility

160pD Cit., p. 17.

17See infr , 1.5.1, for a discussion of the various types of consent.









of the death penalty with other ways of doing political philosophy. A relevant consequence of this limitation is that, whatever the practical import may be of any conclusion I may reach, it would apply only to governments of contractarian extraction.

1.4 Oraanization of Topics

With regard to the theories of the seventeenth and eighteenth centuries, my inquiry will be focused on the specific arguments for the death penalty offered by Hobbes, Locke, Rousseau, and Kant (chs. 2, 3, 4, & 5, respectively). As for the contemporary theories of Rawls and Gauthier, which are silent on capital punishment, I will, in the case of Rawls, evaluate the attempts of Cooper and King-Farlow and of Donnelly to construct arguments for the death penalty based on A Theory of Justice (ch. 6); and, in the case of Gauthier, assess the adequacy of the theory of Morals by Agreement to support an affirmative stance on capital punishment, in particular, along the Hobbesian lines Gauthier defends elsewhere (ch. 7).

My study will conclude with an attempt to generalize upon the results of my earlier chapters (ch. 8). In this connection I will make an attempt to characterize the (generic) conceptual framework for any-social contract theory by attending to the interplay of presuppositions common to them all. After this has been done, I will then seek to evaluate the fitness of this framework to support an









affirmative stance on the death penalty. In this manner I would hope to arrive at a general conclusion regarding the compatibility of capital punishment and social contract theory. Another concern of mine in this closing chapter will be to mention ways in which the conclusions I will have reached in the study may be applied to the practical reality of a world where governments of the contractarian origin do at times impose the death penalty on some of their citizens.

Finally, in the remaining sections of the present

chapter, I will elaborate on those concepts which are both of focal interest and in need of clarification as a preliminary to the proper conduct of the study (1.5); and I will present those reasons I have to believe that the central question of the study engages a topic of some considerable theoretical and practical importance, and one that requires a treatment which is thorough and rigorous (1.6).

1.5 ConceDtual Bases for the Studv

1.5,1 Tvpes of Consent

Consent (in some form or other) is, of course, the

leitmotif of social contract theory. Indeed, the very idea of deriving the "just powers" of government from "the consent of the governed" is what imparts to theories of this kind whatever prima facie appeal they have. Yet, having called attention to this common feature, it is also important to emphasize that these same theories vary among









themselves regarding the particular typ (or tvlpes) of consent on which they rely. On this score all of the theories I will examine may be found to exhibit a reliance on one or more of three different types, viz., actual consent and two nonactual varieties, hypothetical and ideal consent.

The most sustained discussion of actual consent among these various theories appears in Locke's Second Treatise.'8 Here, Locke distinguishes between two forms of consent, both of which, I believe, he regards as actual, and to which he applies the labels "express" and "tacit," respectively. By "express" consent, I understand him to mean a voluntary form of consent for which the mechanism of conveyance is some observable sign, as, for example, when a person says, "I consent thus to such and such," or less formally, signals the same by a raising of the hand or a nodding of the head. Some reliance on this form may also be found in Hobbes

Leviathan19 and perhaps even in Rousseau's The Social Contract. 20 None of these theorists, however, appears to rely exclusively (or even predominantly) on this form. Moreover, this may be just as well in light of the conclusion reached by A. John Simmons (and shared by many others), that "'express' consent is not a suitably general ground for


18Ov. cit., pp. 69ff (ch. VII, sect. 117ff).

190D. cit., p. 106 (ch. 14).

200D. Cit., see, e.g., bk. III, ch. XII.









political obligation. "21 But I will have more to say about this in later chapters. 22

"Tacit" consent is the other form of consent recognized by Locke and it, too, appears to be actual. Here, I understand him to mean a form which is no less voluntary, but unlike the "express" variety, occurs without the accompaniment of any observable act of commitment by the consenting person. To illustrate this form, he cites the case of a person's "possession or enjoyment of any part of the dominions of any government," which, for Locke, includes everything from the "possession . . . of land" to one's "lodging only for a week."1123 A similar point is made by Rousseau when he affirms that "residence indicates consent."24 Note, however, that it is not the act of "possession or enjoyment" or "residence" which eludes observation by others; rather, it is the act of commitment these observable acts are supposed to convey which lacks observable "expression." Yet, notwithstanding this, in any particular instance it may well be that the actor in question has p~reviously agreed (i.e., prior to any act of "possession" or whatever) that were an act of this sort to occur, it could be regarded as a token



21Moral Principles and Political Obliaations, Princeton University Press, 1979, p. 79.

221nfra, 2.5.2 (pp. 45ff); 4.3.2 (pp. 114f).

23QpD. cit., p. 71 (ch. VIII, sect. 119).

24C)p. cit., p. 88.









of his or her consent to be bound under the terms of some social contract. In such an instance, of course, it would be proper to regard the act of "possession" (or whatever) as a token of the actor's actual consent. But what I find so problematical about the notion of "tacit" consent is that it may not always be easy to tell in a particular instance whether or not some observable act is in fact a mechanism for conveyance of that person's prior actual consent to a social contract. The difficulties I see here will be brought to light by the following anecdote. Suppose I am walking along a path with my lunch in hand and I happen upon a place where you are standing. You stop me and draw a line in the sand, and then you say to me, "By crossing this line you will have given 'tacit' consent for me to take possession of your lunch." I say nothing to you and then proceed to cross your line. At this point you demand that I surrender my lunch. Yet, what claim could you possibly have on my lunch under these circumstances? It is not so easy to tell without additional information. Of course, it could be the case that we have a prior actual agreement that, under these circumstances, I will surrender my lunch. To be sure, in a case of Lbja sort my "tacit" consent would be actual. But now, suppose in the story I have related that there is no prior actual agreement between the two of us. In the absence of any such agreement, how am I to know that I am obligated to surrender my lunch? Evidently here, the only









answer still based on my consent would require supposing that I am bound under the terms of some nonactual (i.e., hypothetical or ideal) agreement with you. Evidently, too, when Locke and Rousseau speak of "possession and enjoyment" and "residence," respectively, as a basis for consent to the social contract, they refer to some nonactual form of agreement. That is to say, it can hardly be assumed that these theorists intend to represent by the notion of "tacit" consent that every contractor has participated in some prior actual (i.e., "express") agreement regarding what will count as the mechanism for conveyance in situations where no (on site) "expressions" of consent will be given. Instead, it must be supposed that they ultimately rely on some nonactual form of agreement in their respective discussion of "tacit" consent. Yet, even this "clarification" leaves unsettled a question of which variety should be imputed to them, i.e., whether hypothetical or ideal. In light of these observations, therefore, it should be easy to see that I would be ill advised in my inquiry to make any use of a term so ambiguous as this one. Much the same could be said regarding the notion of "implied" consent, which, too, has been employed with reliably ambiguous consequences in discussions of social contract theory. Anything of importance I will have to say, therefore, in my study about consent, will have to be said relying on less problematic terms than these.









Nonactual forms of consent, as I have reported, may be classified as one of two varieties, i.e., hypothetical or ideal. By the former variety, I refer to the sort of consent people would have aiven under specified conditions. Exactly what these conditions are purported to be varies from theory to theory. By the latter, I refer to the sort of consent people ought to have given, i.e., where 'ought' is understood in a moral, sense. At some time or other, all of the theories I will examine have been linked to the notion of hypothetical consent. Ron Replogle, for example, is moved to offer a general assessment: "The contractarian regards institutions just insofar as they could be the object of a hypothetical agreement."125 in a more specific comment, Vicente Medina identifies Hobbes, Rousseau, and Kant as theorists who utilize "the concept of contract in a

purely hypothetical way. "26 Similarly, A. John Simmons remarks even of Locke that he relies on a contract which is "not necessarily actual (i.e., possibly hypothetical)."127 Finally, of course, the contemporary theories of Rawls and Gauthier would appear to be expressly hypothetical in their

conceptions of the social contract.28 Ideal consent, of



250D. cit., p. 2.

260p. Cit. , p. 137.

27QpD. cit., p. 85.

28A Theory of Justice., op. cit., p. 11; Morals By Aareement, oD. cit., p. 9.









course, is most often linked to the theory of Kant, 29 though, on occasion, it does receive mention in connection with the

theories of Rousseau30 and even Rawls.3- It is perhaps worth noting, too, that ideal consent can be expressed in a hyo thetical mode, as indeed it would be if it were characterized as the sort of consent people would give if they were to do what is morally required of them. Later, I will have more to say about this in connection with Kant's theory.32

1.5.2 The "State of Nature"

The early social contract theorists rely on the notion of a "state of nature" as a mechanism for describing the social conditions which obtained vrior to the advent of any contract. For Hobbes, these conditions are described in

almost horrific terms;33 with Locke, there is some improvement over the conditions which Hobbes describes, but

not enough to warrant a continuation of the status quo;34 and for Rousseau, while the conditions are idyllic at first, they deteriorate substantially over time and eventually




29See, e.g., Michael Lessnoff, Social Contract, Humanities Press International, Inc., 1986, pp. 90ff.

3O1bid., p. 74.

31bi. p. 134.



330p. Cit., ch. 13.

34Qp. Cit., ch. II.









become intolerable.35 These quasi -historical accounts, of course, are presented by these three theorists as an argument for the rational basis of abandoning the "state of nature" in favor of a civil society. The later theorists, Kant, Rawls, and Gauthier, all exhibit a shift in emphasis away from accounts of this sort and toward a purely conceptual discussion of the rational constraints on what may be negotiated in a hypothetical or ideal pre-political context. Only Kant, among these later theorists, continues to speak of a "state of nature"; for Rawls and Gauthier, the terms of choice are "the original position" and "the initial bargaining position," respectively.

1.5.3 "Natural Laws" as a Source of Constraint

All six of the theories I will examine rely (at least partially) on assumptions which are not the stuff of any agreement among contractors. Among the early theorists, these assumptions are often called "natural laws," and they tend to operate as a source of constraint on what is permitted under the terms of a social contract. Hobbes, for example, derives a number of "natural laws" from his more fundamental notion of a "right of nature" (the jus naturalist . These "laws," in turn, provide the foundation

upon which his social contract is erected.36 Locke's system, too, is constrained by the effects of certain "natural


3 5.Inf ra, 4. 1.

360D. cit., chs. 14 & 15.









laws." Unlike Hobbes, though, who relies principally on a rational analysis of the implications of the jus naturalist, Locke turns primarily to scripture for inspiration. Yet another approach is taken by Rousseau, who, after recognizing a number of "natural laws," seeks to obviate their effects in civil society by appeal to his conception of a "general will." Among the later theorists, discussions of "natural law" either take the form of (as with Kant), or have given way to (as with Rawls and Gauthier), an analysis of what rationality requires of a person in a pre-political context and, of course, later in civil society. Indeed, for the contemporary theories of Rawls and Gauthier, rational choice considerations emerge as a dominant theme. With regard to all of these theories, I would say, the potential (at least) for a certain antagonism arises between what may be required of social contractors as a consequence of what they have agreed to and what may be required of them because of the operation of certain "natural laws" or other intuition-based assumptions. Several of the relevant consequences of this sort of antagonism will receive attention in my chapter on Kant (5.3.3). 1.5.4 Punishment and Capital Punishment

Finally, I should say a few words about the standard way of justifying use of punishment (generally) within the framework of social contract theory; and beyond this, about what may be additionally required of the theorist to justify









use of the death penalty as a particular form of punishment. On this way of doing political philosophy, of course, it is assumed that the contracting parties would recognize the necessity for some form, or forms, of constraint on their own behaviors in "civil society." Indeed, under this assumption, they are all persuaded that it is their willingness to constrain some of their own behaviors which in fact promises a "better life" for each of them than they presently have in the "state of nature." They are moved to draw this conclusion because they have been able to connect the lack of constraint on their behaviors in the "state of nature" with their present difficulties in pursuing the various sorts of life each of them would prefer to have.

Now, punishment must be included among the forms of

constraint upon which nearly every political theorist of any importance has relied; and, in this regard, no exceptions arise for theorists of contractarian disposition. Indeed, for many theorists, including those in the social contract tradition (and, among these, the six I will examine), the use of punishment may be described as the "constraint of

choice. "37 Of course, there is a burden on every theorist (so disposed) to explain why punishment is the "constraint





37This suggestion is perhaps open to debate with regard to Rawls and Gauthier, though I think my analyses in chs. 6 and 7 will provide some support for its applicability to them, as well.









of choice," that is to say, why punishment is to be preferred over other forms of constraint.38

Within the context I have described, then, any use of capital punishment would emerge as the most extreme form of constraint which could be imposed. This is because death results in the cessation of all of a person's behaviors, not merely in those which may have been in need of constraint. Hence, it would appear that an even greater burden falls on the social contract theorist to account for why this punishment would be approved by contractors seeking a "better life" for themselves.

1.6 Imr)ortance of the Studv

One value of the study I have proposed will be the potential it may have as an alternative approach to the contemporary discussion of capital punishment. Presently, of course, the literature is saturated with articles aiming to assess the moral status of the practice either independently altogether of any political theory or as a prelude to the introduction of some political theory. To be sure, this might be a fruitful way of proceeding were it not for the wide divergence of opinion on what constitutes a proper assessment of moral status, and beyond that, on what constitutes a proper understanding of the function of moral language. My approach is less ambitious, though, I think, perhaps more promising. What I propose to do is to take

38E.g., providing rewards as incentives for selfconstraint.









each of several versions of social contract theory and then to inquire of each version whether or not its presuppositions would be compatible with an affirmative stance on capital punishment. This approach, of course, entails neither my having to defend a set of normative assumptions nor my having to take a meta-ethical position on the function of moral language. Another edge I have over moral status assessments is that by narrowing the focus of my inquiry, not just to political theory, but indeed, to a specific variety of it, I have placed the theoretical arena in much closer proximity to opportunities for practical application. But now, this is only another way of saying that there are governments of contractarian extraction in the world today which do in fact employ the death penalty. Finally, I urge, without a major study along the lines I have proposed, there may be the temptation, not merely in academic circles, but also in the public sector (where the consequences may be more keenly felt), to take for granted a particular outcome on the question of the legitimacy of capital punishment under social contract theory. In support of this observation, I would just mention the remarks of Frank Kelly, a New York City attorney, whose article entitled, "The Social Contract: Murder and the Death Penalty," appeared in a recent issue of the New York State Bar Journal:

The death penalty is a conceptually necessary
component of the social contract. . . . When









imposing the death penalty upon the murderer,
society, in the form of government, is doing only what it must do to preserve the peace and fulfill
the contract. 39

The difficulty I have with Kelly's article is the superficiality of the several arguments he offers in defense of

his claims, 40 arguments which reflect only the most fleeting acquaintance with the dynamics of social contract theory. In fairness to Kelly, of course, he may be right in what he claims; however, the conclusion he reaches can be safely drawn, if at all, only after a very thorough and rigorous examination of the contractarian tradition, indeed, an examination, I would think, very much along the lines of what I will try to provide in this study.





















39(jUly 1989), pp. 45f.

40For example, he argues: Because a person may repel with deadly force an attack on his or her life, society, too, may employ deadly force in the form of capital punishment against the attacker whenever the attack is successful.














CHAPTER 2
HOBBES AND THE JUS NATURALIS

2.1 A Ouerv for Hobbes' System

None of the claims in Hobbes' Leviathan are more fundamental to the operation of his system than (a) his appeal to an initial act of authorization by which contractors under his theory vest in their ruler(s) the power to command obedience of them and even require of them the sacrifice of any of their lives;1 and (b) his steadfast insistence upon every contractor's inalienable right of self-preservation (the !us naturalis), a right which authorizes any action at all taken by any one of them in an attempt to preserve his or her own life.2 My purpose in what follows will be to explore a question of whether or not the claims at (a) and

(b) are cotenable in light of Hobbes' (intrasystemic) defense of capital punishment.3 To lay a foundation for



'Collier Books, 1962 (originally published: 1651), ch. 17, p. 132; ch. 21, p. 161.

2Ibid., ch. 14, p. 103.

3Hobbes' political theory in Leviathan includes a defense of capital punishment as an intearal feature of his system; hence, I have employed the term 'intrasystemic.' By contrast, I will take no account of his defense in De Cive (Sterling P. Lamprecht, ed., Appleton-Century-Crofts, 1949 (originally published: 1642), ch. 2, sect. 18), which, for my purposes, is extrasystemic, notwithstanding that 20









this query of Hobbes, system, preliminary attention will be given to certain other features of his theory which provide an essential framework both for his claims at (a) and (b) and for his theory of punishment upon which he relies for his defense of the death penalty. My prefatory remarks, in this connection, will take the form of an elaboration of Hobbes' view of the "state of nature" (2.2) and his empowerment thesis regarding the institution of political authority (2.3). In conjunction with this latter topic I will lay stress upon the relationship between Hobbes' empowerment thesis and his theory of punishment, and I will explain why this relationship is thought (by Hobbes) to provide a theoretical basis for his defense of the death penalty. With this foundation in place I will then take up the question of whether or not Hobbes' defense of the death penalty can be reconciled with (a) and (b) (2.4), and here my concern will be, not only with Hobbes' own account, but also with the efforts of others who have undertaken to augment or amend his original analysis (2.5). Finally, I will assess the status of two counterarguments to Hobbes' analysis, both of which purport to raise serious doubts about the reconcilability of (a) and (b) with any defense of the death penalty based on his theory (2.6).





his argument there closely parallels that given in Leviathan.









2.2 The Hobbesian State of Nature

on Hobbes' view every man is at war with every other man so long as he remains in a state of nature. while he continues in this state, "every man has a right to every thing; even to one another's body" (Hobbes' First Law of

Nature) .4 However, this right "to every thing" should not be taken in the sense of what today would be called a "claim right," or a right which imposes on others a correlative duty not to interfere with a person's exercise of it. Instead, what Hobbes appears to mean here would much more closely approximate what today would be called a "permission right," or a right whose exercise does not impose on others any duty of noninterference.5 But now, as Hobbes explains, since everyone in a state of nature is endowed with a right "to every thing," it is all too apparent that the social costs of its exercise are too high, for people invariably compete and fight with one another for many of the same things. In this intolerably precarious and otherwise deplorable condition, he continues, people discover (under the impress of reason) that they ought to seek the security of a covenant with one another, and this for their mutual



4Hobbes, Leviathan, loc cit.

5After Wesley Hohfeld's Fundamental Leaal Conceptions, Greenwood Press, 1978, pp. 35ff. Hohfeld's original term, privilege,' has given way to either 'liberty' or 'permission, ' or 'permission right' in contemporary discussions of his distinction. The last of these has been employed in my own analysis.









protection and benefit (the Second Law of Nature) .6 This discovery by the people, for Hobbes, marks the beginning of the end of a state of nature.

2.3 Emvnowerment of the Sovereian and CaDital Punishment

It is to secure the peace, therefore, and to put an end to a state of nature where life is "solitary, poor, nasty, brutish, and short," that all but one (or just a few) among the people agree to relinquish their individual right "to every thing; even to one another's body."7 The one (or ones) whom the others allow to retain this right, on Hobbes' account, are elevated (de facto) to a position of supreme power and authority over all the rest. This empowerment of a "sovereign" is intended for the purpose of establishing a mechanism for the legislation and enforcement of laws which can then provide for the peaceful settlement of disputes among people, and for the restraint and punishment of acts deemed contrary to the goal of peace. obviously, there is a considerable sacrifice of freedom on the part of those who covenant together in this manner, and who, as a consequence, pledge loyalty and obedience to their sovereign; nevertheless, it is Hobbes, contention that this is the only reasonable alternative to the condition of war which exists






6Hobbes, Leviathan, op. cit., ch. 14, p. 104.

7l1bid., ch. 14, p. 103.









perpetually, and to which one is otherwise committed, in a state of nature.8

It is no very great problem to discover, within this

framework, the basis for Hobbes' defense of capital punishmnent. A general authorization to employ punishment arises simply as an extension of the sovereign's (retained) right "to every thing," even to the body of another; and any specific punishments, including the death penalty, all receive their theoretical imprimatur under the umbrella of

this general authorization.9 Moreover, since the sovereign's (retained) right "to every thing" is authorized at

(a), it follows that (a) provides bot~h the justificatory basis of the right to punish and an enforcement mechanism in

the form of a de facto monopoly on the use of power.10 The latter serves to deprive anyone slated for punishment of the opportunity for effective resistance; and the former, of any cause for complaint, as someone punished under color of (a)


8"And though [sovereign authority is] of so unlimited a power, men may fancy many evil consequences, yet the consequences of the want of it, which is perpetual war of every man against his neighbour, are much worse" (ibid., ch. 20, p. 157).

9'[Tlhere is a question to be answered, of much
importance; which is, by what door the right or authority of punishing in any case, came in"; "before the institution of a commonwealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation;
.this is the foundation of that right of punishing,
which is exercised in every commonwealth" (jbjj., ch. 28, p. 229).

10"[Clovenants, without the sword, are but words, and of no strength to secure a man at all" (j~~,ch. 17, p. 129).









would be an "author of his own punishment. "11 The two together are intended to provide the sovereign with all that is necessary to secure the commonwealth against the threat of crime and domestic violence.

2.4 Capital Punishment and the Cotenability Issue

The general authorization to employ punishment, therefore, which is both justified under, and facilitated by,

(a), activates a latent tension in Hobbes' system whenever the life of a contractor is actually threatened by the sovereign. I say this because it is also the case, as I have described at (b), that each of Hobbes' contractors is endowed with an inalienable right of self-preservation (the !us naturalis), a right which authorizes its bearer to take any action whatever in defense of his or her own life.12 Hobbes himself appears well aware of this latent tension in the context of his specific remarks on the death penalty. Here, he argues that when a man who stands condemned to death by the sovereign is led to the gallows, that man nevertheless retains "the right of resisting them, that assault him by f orce, to take away his lif e."1113 It is f or this reason, he explains, that criminals are led to execution by armedd men, notwithstanding that such criminals have


"Ii. ch. 18, pp. 134ff; "[H~e that complaineth of injury from his sovereign, complaineth of that whereof he himself is author" (p. 136).

12Ii. ch. 14, p. 103.

13bi. p. 105.









consented to the law, by which they are condemned." 14 Similarly, in another passage of Leviathan, Hobbes claims that, while a man can *covenant, "Unless I do so, or so, kill me," in conformity with the right of the sovereign "to every thing," even to the body of another, he cannot covenant, "Unless I do so, or so, I will not resist you when you come to kill me," by virtue of the inalienability of his right of

self -preservation. 15 The tension evident between (a) and (b) in these passages has led some commentators to conclude that Hobbes' system reaches impasse in cases involving capital

punishment. 16 While these commentators are right, of course, about the tension in Hobbes' system, and may even react with understandable perplexity to the peculiarity of his having contractors who are both authors of, and rightful resisters to, any punishment the sovereign may threaten, it follows neither from the tension nor the oddity of these circumstances that a charge of theoretical impasse can be






14.Ibid., p. 110.

151bid.

16See Gordon J. Schochet, "Hobbes and the Voluntary Basis of Society," in Thomas Hobbes and Political Theory, Mary G. Dietz, ed., University Press of Kansas, 1990, p. 62; Leo Strauss, "On the Spirit of Hobbes's Political Philosophy," in Hobbes Studies, K. C. Brown, ed., Harvard University Press, 1965, pp. 25f; Gregory S. Kavka, Hobbesian Moral and Political Theory, Princeton University Press, 1986, ch. 8; and David Gauthier, whose views I discuss later in the chapter (2.4.3).









sustained against his system.'7 To demonstrate impasse, I submit, Hobbes' critics must show that his claims at (a) and

(b) are not cotenable in light of his defense of capital punishment; and this demonstration, by and large, they have

neither provided nor even attempted to provide.'8 In fairness to the concerns of these critics, however, it must be admitted that Hobbes himself, though alert to the tension within his system and sensitive to the peculiarity of his

contractors' circumstances, 19 fails nevertheless to supply a rationale for these features adequate to preclude the specter of impasse. Indeed, that task has been left for later adherents of his system who have suggested various ways of augmenting or amending his original analysis. In the remainder of this chapter, therefore, I will consider, first of all, the suggestions of these later adherents to see whether or not they can improve on Hobbes' own analysis; and secondly, with the results of this inquiry in hand, I will entertain two challenges to his system which !;j in fact appear to raise serious concerns about the cotenability of

(a) and (b) in light of his defense of the death penalty.


17For other reports of theoretical tension in Hobbes, system, cf. Michael Lessnoff, Social Contract, Humanities Press International, 1986, pp. 101f; and John Watkins, Hobbes's System of Ideas, Hutchinson, 1973, pp. 97f.

18An exception to this would be David Heyd's recent article, "Hobbes on Capital Punishment," History of Philosor~hy Quarterly 8 (April 1991), pp. 119-134; see my discussion of Heyd's views infra (2.6.1).

19Hobbes, Leviathan, op. cit., ch. 28, p. 229.









2.5 Attempts to Augrment or Amend Hobbes' Analysis

2.5.1 Aprpeal to Hohfeld's Distinction

one way of augmenting Hobbes' analysis makes use of the distinction between a "claim" right and a "permission" right to which I have already alluded.20 It is conceded, on this approach, that if it were necessary to regard the rights at

(a) and (b) as "claim" rights, then Hobbes' system would be at impasse. A moment's reflection will suffice to confirm the basis for this concession. For example, if the sovereign's right "to every thing" at (a) were a "claim" right, then the right to punish, which derives from that right, would impose on others a duty of noninterference. Since this duty would extend even to those singled out for punishment, (a) would be at loggerheads with (b). This is because (b) confers a right of resistance upon anyone whom

the sovereign threatens with punishment.2' Similarly, if a contractor's right of resistance at (b) were itself a "claim" right, then everyone else would have a duty of noninterference and so even the sovereign would have to stand aside, which is contradictory in light of the

20upa n. 5; see, e.g., the discussion of V. Bobbio's views in Mario A. Cattaneo, "Hobbes' Theory of Punishment," in K. C. Brown, ed., Hobbes Studies, Harvard University Press, 1965, pp. 292f.

21"[N]o man is supposed bound by covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a commonwealth, every man giveth away the right of defending another, but not of defending himself" (Hobbes, Leviathan, op. cit., ch. 28, p. 229; see also, ch. 21, p. 164).









authorization given at (a). What emerges from this concession, then, on this way of augmenting Hobbes' analysis, is that the rights derived from (a) and (b) are much more plausibly construed as "permission" rights, and so no duty of noninterference is conferred upon anyone in virtue of their exercise. Moreover, since no duty of noninterference arises in conjunction with the exercise of these rights, neither does any "theoretical impasse,, occur when the sovereign clashes with a contractor who resists punishment; and, of course, this would apply to any punishment at all the sovereign threatens, including the death penalty. So, at least on this interpretation, the specter of impasse may be retired by the simple expedient of embracing the distinction between a "claim" right and a "permission" right, and then recognizing that the rights at

(a) and (b) are instances of the latter rather than the former.

Does this way of augmenting Hobbes' analysis serve to strengthen his position on the death penalty? Much depends, I urge, on how the notion of a "permission" right is understood in connection with the rights affirmed at (a) and (b), and on whether this manner of augmentation correctly identifies the source of tension in Hobbes' system. What I propose here is to provide an account of the standard interpretation of this notion in the philosophical literature, and then to show that the rights at (a) and (b) have









certain inherent features which resist that interpretation. In this manner I will seek to expose the problematic character of any reliance upon the distinction between a "claim" right and a "permission" right as a means of augmenting Hobbes' original analysis.

An example which invokes the standard interpretation of a "permission" right is the case of a person who seeks

election to public of f ice. 22 Here, a person's right to get oneself elected is construed as a "permission" right since others have no obligation to stand aside and permit this to happen. Indeed, others may even oppose such a person by supporting other candidates or seeking office themselves. Now, on this account, what is germane to my inquiry is that a person's "permission" right to get oneself elected is ordinarily accomT)anied by certain other rights which function in a facilitating role with regard to the "permission" right and which themselves may be accorded status as "claim" rights. Among these are included a right to collect signatures or meet other criteria necessary to have one's name placed on the ballot, a right of equal access to the media, and, when the election is over, a right to a fair and impartial tabulation of votes. Of course, what makes these latter rights "claim" rights is that others dg have a duty of noninterference with respect to their exercise by a candidate for public office. This observation is germane

22From R. M. Hare's Moral Thinkina, Clarendon Press, 1981, pp. 149f.









to my inquiry because it calls attention to a feature of this example not present in Hobbes' right of selfpreservation at (b). This is just to say, at least in capital cases, a condemned person's right of selfpreservation is unaccompanied by any (claim) rights which facilitate its exercise. In other words, a person under sentence of death, on Hobbes' system, has no claim against the sovereign or anyone else that requires concessions which

facilitate exercise of the right at (b) .23 What this suggests is that not all "permission" rights are rights whose exercise is necessarily protected in some respects by the (contemporaneous) presence of certain "claim" rights, (as, I think, would be the case with the right to get oneself elected). Evidently, then, if the right at (b) is to count as a "permission" right, it cannot be so in virtue of its being a non-claim right whose exercise is supported by other rights which are themselves "claim" rights, as this criterion would exclude (b). Therefore, an appeal must be made to some other feature (or features), necessarily present in all "permission" rights, upon which to rely in certifying the right at (b) as such a right.

The only candidate for this role I have found in the philosophical literature is a feature which functions to afford every bearer of a "permission" right (in effect) the

23Hobbes even requires that contractors under the
authorization agreement at (a) are obliged "to assist him who hath the sovereignty, in the punishing of another" (Leviathan, or). cit., ch. 28, p. 229).









accompaniment of a "claim" right not to be punished merely

for exercising the "permission" right.24 Note that the accompanying "claim" right in this instance is not one which facilitates exercise of a "permission" right but is instead one which gives rise to a claim against others only after the "permission" right has been exercised. Now again, either this feature is present in the right at (b) or it is not. If it is present, then this would mean that a condemned person has a claim against the sovereign not to be punished merely for exercising the right of selfpreservation. 25 Hobbes, however, clearly rejects this possibility when he asserts the illegitimacy of claims of any kind brought by a contractor against the sovereign. Mincing no words in this regard, he states: "Whatsoever . . . [the sovereign] doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of

injustice. "26 This idea of the sovereign's immunity to claims extends also to those who act on his (or their) behalf and under his (or their) direction; of them, Hobbes writes: "Nothing the sovereign representative can do to a



24See, e.g., Samuel Stoljar's discussion of defensive rights in An Analvsis of Rights, St. Martin's Press, 1984, ch. 2.

25Such a claim, I suppose, would be intended to block, e.g., the sovereign's substitution of a more painful method of execution as a means of punishing both the capital offense and acts of resistance by the condemned person.

26Hobbes, Leviathan, oD. cit., ch. 18, p. 136.




























































27ibid., ch. 21, P. 161.


subject, on what pretence sever, can properly be called

injustice, or injury."27 Evidently, therefore, this feature, too, is one that cannot be found in the right of selfpreservation at (b); and so, a fortiori, neither can its presence be cited as a basis for certifying the right at (b) as a "permission" right.

It would appear, then, at least in the case of a person under sentence of death, that no "claim" rights of any kind accompany Hobbes' right of self-preservation at (b). All that remains, therefore, as a basis for certifying the right at (b) as a "Permission" right, is the presence of the defining feature of such a right, viz., that its bearers have no grounds for any claims against others that they not interfere with its exercise. The difficulty I have, however, with a reliance on the manifestation of only this feature is that I do not see how its presence can in fact be distinguished in a capital case. To understand why I say this, imagine the circumstances of two persons who live in parallel universes, both of whom are threatened with execution by their respective sovereigns. Assume that the relevant circumstances of these two persons are exactly similar in every respect except that one of them bears Hobbes' right at (b) and the other does not. Assume, too, that the relevant similarities include that they both undertake acts of resistance to being put to death; that









neither bears any "claim" rights against others that certain conditions be allowed in order to facilitate their acts of resistance; and that neither bears any "claim" right against his or her sovereign that he or she not be punished for these acts. Now, recall that what is supposed to distinguish the person who bears Hobbes' right from the one who does not is that the consequence for the former is that no duty of noninterference is imposed on others in virtue of its exercise. However, what should be no less apparent, I urge, is that no duty of noninterference is imposed on others also in virtue of the latter person's not having any such right. That is to say, no duty whatever is imposed on others in either case, whether it be in virtue of having or not having the right at (b). Since the presence of this feature may be detected for both a bearer and a nonbearer of the right at (b), it follows that its presence alone cannot be utilized as a basis for according status as a "permission" right, as this would require the absurdity of according such status to one who bears no right at all in this regard.28

I would conclude, therefore, that efforts to strengthen Hobbes' argument for the death penalty by means of appeal to the notion of a "permission" right may well land those who are committed to this strategy on the horns of a dilemma.

28To be sure, it is sufficient reason for why a person has no claim against others not to interfere with that person's exercise of the right at (b) that that person has no such right to begin with!









That is, either they will accept the accompaniment of one or more "claim" rights as the feature (or features) that certify the right at (b) as a "permission" right, in which case they must also accept the contradictory implications that follow for other features of Hobbes' system, as I have explained; or they must pin their hopes for qualification entirely on the defining feature of such a right, again, that of not having any basis for a noninterference claim against others, in which case they will be vulnerable to the criticism that nonbearers of the right at (b) qualify for "permission" right status just as readily as bearers, which is absurd, as I have also explained.

Finally, I would just note that appeal to the notion

of a "permission" right is no more compelling for the right at (a) than it is for the one at (b). I say this because the sovereign's right "to every thing" at (a), which is the foundation for his (or their) right to punish, finds its ultimate ground in the sovereign's own right of selfpreservation (the ius naturalis) .29 What this means is that both the sovereign and a person under sentence of death exercise the very same right (the !us naturalis) when the former attempts to kill the latter and the latter counters




29"For the subjects did not give the sovereign that right ['to every thing' with they possessed]; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preser-vation of them all." (Leviathan, op. cit., ch. 28, p. 229).









with resistance.30 It would appear to follow, therefore, that the analysis I have given to show that the right at

(b) fails to qualify as a "permission" right would also apply to the right at (a). Perhaps the only challenge to this conclusion would be to insist upon "permission" right status for the right at (a) in connection with the authorization given by Hobbes' contractors. That is to say, a feature of (a), in addition to and conjoined with the sovereign's right of self-preservation (the !us naturalist , is (in effect) the contractors, establishment of a "claim" right, on behalf of the sovereign and against all others (except for a person under threat of punishment), not to interfere with his (or their) right of self-preservation and, by extension of course, with his (or their) right to punish. The chief difficulty I have with use of this criterion (i.e., the accompaniment of a "claim" right) to qualify the right at (a) as a "permission" right is not that any conflict arises with the right at (b) which leads to

impasse,31 but rather that the right at (b) fails of qualification altogether (having no "claim" rights to accompany it) and, of course, this provokes the more telling

30Cattaneo writes: "At the moment when the death penalty is inflicted, the rights of the sovereign and the subject are placed on the same plane, and there is a return to the state of nature, whereby at that moment the conflict between the sovereign and the subject takes on the character of a state of war." (or) cit., p. 282).

3'No impasse results here because the sovereign's
"claim" right of noninterference applies only to those who are not under threat of punishment.









question of why one should qualify and the other fail of qualification when in fact they are both instances of the very same right.

Finally, notwithstanding all that I have said,

advocates of Hobbes, system may nevertheless take some encouragement from my analysis up to this point. I say this because I have (in effect) argued that the instances of the !us naturalis at (a) and (b) are weaker (in a normative

sense) 32 than even a "permission" right (on the standard interpretation) and so would not seem likely candidates to generate any sort of conflict which could lead to theoretical impasse. But then, I will have more to say about this later. In the meanwhile what I have shown in this section is that the notion of a "permission" right (on the standard interpretation) is not a particularly useful concept in the service of those who seek to augment Hobbes' argument for the death penalty.

2.5.2 The Lifeboat Lottery Analoarv

Another attempt to augment Hobbes' analysis consists of an argument from analogy where Hobbesian contractors are

compared to participants in a lifeboat lottery.33 Here, no

320ne author even goes so far to conclude that Hobbes "deprives the notion of rights of virtually all its normative significance." (J. Finnis, Natural Law and Natural Rihs Oxford University Press, 1980, p. 208).

33Kavka urges that "it may be wrong . . . for a participant in a lifeboat lottery to refuse to jump overboard once he has lost," (or). cit., p. 316); and later, analogizing on this scenario and others, concludes, "rational parties [in a state of nature] aware of all the relevant facts might well









effort is made to provide a concei)tual account of how the rights at (a) and (b) are inherently consistent (as before with appeal to the notion of a "permission" right); instead, the intent is to show that, as a practical matter, the best way of securing the conditions necessary for a contractor's (successful) exercise of the right at (b) is for that contractor to participate in the authorization agreement at

(a) .34 The argument offered for this conclusion rests on an appeal to the desperate circumstances of lifeboat occupants who find themselves adrift at sea following a shipwreck. It is stipulated, on this account, that these occupants all agree that the sacrifice of one of them is essential to the survival of the rest. Moreover, they also agree unanimously upon a procedure for conducting a lottery to select the hapless person. Next, with regard to these circumstances, it is further understood that these occupants have arrived at this agreement in light of their observation that each person's overall prospects for survival would be worse under any other (available) course of action. Finally, the crucial step of the argument consists in urging that it would be com-oarably rational of Hobbesian contractors to incur the risk of death by execution in conjunction with the


. . . (prefer] the small risks of execution to the larger risks of a state of nature" (p. 328).

34Cf. Rousseau's claim, "Everyone has the right to risk his life in order to preserve it." (The Social Contract in The Essential Rousseau, Lowell Bair, trans., New American Library, 1974, p. 31.









authorization agreement at (a), i.e., on the assumption that every contractor would have assessed his or her (overall) prospects for survival to be worse under any alternative to that agreement.35

Now, a tempting response to this argument would be to ignore its analogical features altogether and instead challenge the assumption upon which Hobbesian contractors rely, viz., that their prospects for survival would be worse under any alternative to the authorization agreement at (a). Here, the point to be made is not that they would fail to embrace this assumption, (indeed, they could hardly be

expected to do otherwise on Hobbes' system) 36 but rather that, in doing so, they would be simply mistaken, i.e., with regard to (at least) some sets of empirical circumstances. This response keys on the observation that not every prepolitical, social set of circumstances in which people either have found (or could find) themselves (what Hobbes calls a "state of nature") would be such that every person so situated would have worse prospects of survival than they would have if they embraced an autocratic government

pursuant to the authorization agreement at (a) .37 Moreover,


35Supra, n. 8.

36Hobbes, Leviathan, op. cit., chs. 13 & 14.

37Historical examples of societies which have elected to remain in a "state of nature" include the Eskimos of the North American Arctic region, the Pygmy hunters who dwell in the rain forests of the interior of Zaire; the Ifugao who live on the island of Luzon in the Philippine chain; and the









eein those circumstances where some form of government would have greater survival value than a prolongation of a "state of nature," it hardly follows that the sort of totalitarian regime Hobbes commends in Leviathan would be in all (or even most) of these instances that particular form of government which affords every person so situated his or her best prospects for survival.

While these observations may well provide an imposing

challenge for two of Hobbes' bedrock assumptions,38 Still, they neither directly address nor bear on a question of the plausibility of the lifeboat lottery analogy. I say this because nothing in the lifeboat scenario excludes the possibility that occupants of this craft are themselves mistaken in their assessment that every alternative to a lottery would afford each of them worse prospects for survival. Moreover, I submit, no harm would be done to the analogy even if all the occupants of the craft were, say, oblivious to the availability of a far better alternative in comparison to a lottery. What matters most within the framework of a contractarian approach (i.e., insofar as the creation of an obligation is concerned) is not that the empirical assumptions upon which these occupants rely may be Land Dayaks of Sarawak in Borneo. For a detailed discussion of these societies, as well as others which are similarly disposed, see Alex Comfort, Peoiple Without Governments, Kahn &Averill with Cienfuegos Press, 1982, chs. Ill-VI.

38For a recent critique of these assumptions, see Vicente Medina, Social Contract Theories, Rowman & Littlefield, 1990, ch. 2.









mistaken but rather that they have unanimously aareed upon a particular course of action which they have all embraced come what may. Later, when one of them is selected by lottery for sacrifice under this course of action, no objection could then be raised either by or on behalf of the person so designated which would have any merit whatever within a contractarian framework, i.e., so long as all the procedures followed adhered to the terms of their agreement. Similarly, insofar as only the analogy itself is considered, it makes no difference that Hobbesian contractors may be mistaken in what they have assumed about the "state of nature" and the necessity for a totalitarian regime. Here again, what matters within a contractarian framework (relative to the analogy) is that they have all embraced the authorization agreement at (a) come what may. Later, should one of them be condemned to death by the sovereign, no objection could then be raised on (strictly) contractarian grounds, i.e., again with the proviso that the agreement itself had been faithfully implemented. No discredit, therefore, redounds to the argument from analogy because of its failure to exclude the possibility of (empirical) error by those involved (whether they be lifeboat occupants, Hobbesian contractors, or both).

Other considerations, then, will provide the basis for my criticism of this argument. Of these, none will figure more prominently in my analysis than a matter which has so









far been taken for granted in my discussion, viz., that the lifeboat scenario relies on the circumstances of an actual agreement among the craft's occupants. Implicit in the scenario itself, the presence of this feature is otherwise suggested by the observation that no one would seriously propose that these occupants could be bound by the terms of some hvoothetical agreement which, say, harkened back to the occasion of their having boarded an ocean liner at a time well before any mishap. Indeed, at that time, I submit, the most rational action which could be imputed to them would be for them to defer any decision about participation in a lottery until after a lifeboat scenario arises. only then, I urge, would it make sense for any of these occupants to reach a decision about whether or not it would be in his or

her overall best interest to convene a lottery.39 When this latter feature is considered in conjunction with the other, more explicit features which I introduced earlier, it becomes evident that the lifeboat scenario is one which relies for its plausibility on the circumstances of an actual agreement, unanimously embraced and developed in response to the exigencies of a particular empirical context.

39Moreover, even after they find themselves aboard a lifeboat, I submit, even people of equivalent rationality may arrive at different conclusions about a lottery based on attention to relevant, personal dissimilarities. For example, a young and healthy person who finds himself among others who are elderly and frail may be strongly inclined to reject the risk of a lottery while the others may be strongly disposed to accept it.









Now, for the lifeboat scenario to have analogical value relative to the circumstances of Hobbesian contractors, I suggest, it must also be the case that these contractors, too, have all given their actual consent to the authorization agreement at (a), and moreover, have done so in response to the exigencies of a T)articular "state of nature." It will not do to argue from the rationality of the lifeboat occupants, embrace of an actual agreement to conduct a lottery (if that can be supposed) to the rationality of merely assuming that Hobbesian contractors would be bound by the terms of an agreement to which they have never actually committed themselves. While the plight of these occupants and contractors is similar (ex hvDothesi, at least) in that they both face worse conditions in the absence of their respective agreements, still, this similarity alone cannot explain why a hypothetical agreement which is merely sur)vosed to apply could bind a group of people who have in actuality made no such commitment.

So, for the time being at least, I am prepared to concede a measure of plausibility to the argument from analogy, i.e., as long as the parallel between lifeboat occupants and Hobbesian contractors may be regarded as one where all the members of both groups embrace an actual agreement keyed on responses to their respective sets of (empirical) circumstances. But then, this is a concession I am prepared to make in any case, as, even without the









analogy, I see no basis for any (strictly) contractarian objection to a group of people getting together and all deciding to embrace the authorization agreement at (a), that is to say, under conditions whereby everyone knows about and accepts the included risk of death by execution.40

The argument from analogy, therefore, shows promise only if Hobbesian contractors may be assumed to have embraced an actual agreement at (a). In view of this, it becomes critically important to examine the relevant texts in Leviathan and to ascertain from these whether or not any support may be found for this assumption. Undoubtedly, Hobbes' most illuminating remarks, in this connection, appear in his chapter entitled, "Of the First and Second Natural Laws, and of Contracts," where he distinguishes two types of contract: one, "express," and the other, "by

inference."41 Clearly, for Hobbes, the first of these is actual, as the contracting parties rely on "spoken words" for an exchange of "promises." Though he does not discuss written contracts here, I believe they, too, would merit classification as "express." It is the second type, of course, which is properly called "hypothetical." What makes use of this label appropriate is evident from Hobbes' description of the contract "by inference" as one which


40Theoretical consistency requires this concession; for an explanation of the dearth of historical examples, see my mention of Filmer's criticism, infra, p. 45f.

4lHobbes, Leviathan, op. cit., ch. 14, p. 106.









"sufficiently argues the will of the contractor," i.e., in

the absence of any "express" sign.42 On the basis of this text, then, it would seem to follow that the authorization agreement at (a) may be construed either as an actual exchange of "spoken words" (or written assurances) ar (hypothetically) as that which merely "argues the will" of those who have given no "express" (or actual) sign of their agreement.

If the agreement at (a) is construed as an actual

contract, then the argument from analogy is better served but Hobbes' system as a whole becomes the target for a barrage of criticisms which have been around for two or three centuries. In this regard David Hume's eighteenth century essay, "Of the Original Contract," is worthy of special mention because of its influence and cogency.43 Essentially, what Hume contends is that no existing government can be traced to an actual contract, and moreover, even if one could be, there would still remain the difficulty of accounting for the basis on which subsequent generations and

immigrants would be bound. 44 In another vein, a seventeenth century critic, Sir Robert Filmer, argues that it is simply unrealistic to suppose that the occupants of some territory



42.Ibid.

431n Social Contract, Sir Ernest Barker, ed., Oxford University Press, 1962, pp. 147-166.

44.Ibid., pp. 149ff.









would in fact all get together and agree to a social contract.45 Because of criticisms such as these, those who would defend Hobbes' system today are much more likely to construe the authorization agreement at (a) as a contract of

the hypothetical, rather than actual, variety. 46 Furthermore, entirely apart from these criticisms, the text of Leviathan appears to support what is essentially a hypothetical construal, anyway. An important passage, in this regard, appears in chapter seventeen, where Hobbes identifies two, equally legitimate ways in which a commonwealth can emerge. One of these, he calls a "commonwealth by institution"; the other, a "commonwealth by acquisition."147 Under the former way, people "choose their own sovereign," albeit 'for fear of one another" in a "state of nature."148 Here, I suppose, H-obbes would grant that the contract may be either actual or hypothetical. By contrast, under the latter way, "sovereign power is acquired by force," whereby authorization occurs, it would seem, not in virtue of any acua consent of the people qua contractors, but instead, de facto, as a consequence of their acquiescence to sovereign rule from "fear of death, or bonds" qua citizens



45See Lessnoff, op. cit., p. 85.

46See, e.g., Medina, op. cit., p. 137; and Kavka, op ci. p. 182.

47Hobbes, Leviathan, oi i. ch. 17, p. 133.

48b~. ch. 20, p. 151.









who have been subdued or conquered.49 Notwithstanding this, I suppose, their collective acts of acquiescence could be construed as a token of an actual (but implicit) agreement, on their part, to "embrace" their circumstances of subjugation. Yet, this seems an improbable interpretation: what is, after all, the iDoint of agreeing to "embrace" circumstances which have already been imposed? It would appear, therefore, that the authorization agreement at (a), i.e., with regard to a commonwealth by acquisition, could be much more plausibly construed as having a hypothetical character or, in Hobbes' own words, as that which "sufficiently argues

the will" of those who have been subdued or conquered.50 Now since, as one author wryly observes, "a sovereign by institution, whatever his rights may be by the act of institution, will always be able to convert himself into a sovereign by

acquisition, with unlimited right,"15' and further, since Hobbes himself acknowledges in chapter twenty, that "the rights and consequences of sovereignty, are the same in both







5Obi. ch. 14, p. 106. That is, hypothetically, if
Hobbes' citizens wer confronted with a choice of whether to continue in a "state of nature" or to accept sovereign rule under conditions where they had been subdued or conquered, they would all agree to the latter; however, in actuality they have no choice in the matter since sovereign rule over them will be established in -4y case.

5lDavid Gauthier, The Loaric of Leviathan, Clarendon Press, 1969, p. 137.









[types of commonwealth], "152 it would appear to follow that Hobbes' theory ultimately rests on a characterization of the authorization at (a) as the product of a hypothetical, rather than actual, agreement. of course, if I am right about this, then the argument from analogy misses the mark, because, as I have explained already, it will not do at all to argue from the rationality of an actual agreement (aboard a lifeboat) to a rationality which merely assumes of Hobbesian contractors a willingness to embrace an agreement at (a), and further, does so in the absence of any actual commitment from them. But even if I am wrong about this, and the most fundamental interpretation of Hobbes' theory requires a characterization of the agreement at (a) as an actual contract, then, as I have already explained, while the analogy itself fares better, Hobbes' system as a whole would be vulnerable to the criticism of Hume, Filmer, and many others. 53

Yet another area of difficulty for the argument from

analogy may be suggested. Here, I appeal to the observation that Hobbesian contractors do not know nearly so much as lifeboat occupants do about the risks assumed subsequent to their respective agreements. Indeed, under a hypothetical construal of the agreement at (a), all~ that can be imputed to Hobbesian contractors would be a willingness to assume a

52Hobbes, Leviathan, op. cit., p. 151.

53For the others, see J. W. Gough, The Social Contract, Greenwood Press, 1978, ch. XII, pasi.









particular type of risk, viz., death by execution. From this imputation, however, no inference can be drawn regarding the knowledge these contractors would have about the odds on one of them actually being put to death in a particular (empirical) context. Instead, the rational basis for their agreement would presumably key on their commitment to an entire range of empirical possibilities. moreover, the range would be so wide, I suggest, that it would include everything from the circumstances of a benign dictatorship where, say, the death penalty is either seldom or never employed, to a Caligula-like reign of terror where the slightest whim of the sovereign may mean certain death even for innocent subjects.

Now, to be sure, what knowledge may be attributed to

Hobbesian contractors is more substantial with a shift from a hypothetical to an actual construal of the agreement at

(a). That is to say, if the agreement may be taken as actual, then it would be plausible to think of these contractors as knowing something (in advance) about the person (or persons) whom they intend to elevate to a position of sovereignty, as well as something about other relevant features in the empirical context. Even so, I hasten to add, any very precise calculation of the odds on being put to death would still be rather difficult for them to achieve. I say this because any calculation of this sort would be tantamount to an attempt by them to predict the









behavior of the sovereign once a virtual monopoly on the use of power had been granted. Here, I need hardly draw upon a wealth of examples from the history of the world to inspire an appreciation for how unreliable calculations of this sort can be! In marked contrast, however, with either of these construals of the agreement at (a), occupants aboard the lifeboat may be thought to know rather precisely the odds on any one of them being sacrificed pursuant to a lottery. For example, if there are seven passengers on the craft, and they all agree that each of them will have an equal chance of being selected, and further, to this end they all embrace procedures which are fair and reliable, then each passenger would be in a position of knowing rather exactly his or her own odds on being sacrificed (viz., one in seven).

Now, for lifeboat occupants and Hobbesian contractors alike, I submit, part of what commends risk-taking as a rational enterprise may be expressed in terms of what these people actually know about the odds on being put to death under their respective agreements. If I am right about this, there should be a wide gulf in the degree of rationality which may be properly assigned the decision of Hobbesian contractors to embrace the agreement at (a) in comparison to that assigned the decision of lifeboat occupants to conduct a lottery. Moreover, it would follow from this that the highly equivocal sort of commitment to risk in which Hobbesian. contractors engage could not be









cogently defended by analogy to the very concrete, almost mathematically precise sort of risk-taking reflected in the decision of the lifeboat occupants.

Finally, there is another difficulty which should be mentioned. Even if the argument from analogy were not subject to any of the objections I have raised, still, merely showing that the risk of death (by execution) associated with the agreement at (a) is a risk worth taking, (i.e., because Hobbesian contractors are thereby afforded the best chance they will have for the successful exercise of their rights at (b)), will do nothing whatever to reverse a lack of cotenability regarding (a) and (b), i.e., if such a lack can be otherwise shown to obtain as a result of

Hobbes' defense of the death penalty.54 That is to say, the argument from analogy proves helpful to Hobbes's theory only if my earlier objections fail and the cotenability of (a) and (b) cannot be successfully challenged. In this latter connection, of course, the argument itself cannot be used as a means of defending against any charge of a lack of cotenability.

2.5.3 Gauthier's Amendment

I will now consider an amendment to Hobbes' system which David Gauthier proposes in his book, The Loaic of

Leviathan.55 This amendment is introduced as a replacement

540n this, see my discussion of two counterarguments to Hobbes' analysis, infra, 2.6.

550D, Cit., pp. 148f.









for, rather than an augmentation of, Hobbes' analysis of punishment (generally) and the death penalty (specifically). In effect, what Gauthier argues is that the system of Leviathan arrives at impasse if Hobbes, analysis is allowed to stand. As a remedy for this, he introduces and defends a modified version of the authorization agreement at (a). In what follows I will provide an account of why Gauthier believes Hobbes' analysis leads to impasse, and then I will describe and comment upon the particular amendment he proposes as a solution for this difficulty.56

For Gauthier, the problem with Hobbes' analysis stems from the latter's claim that every contractor may be regarded as an "author of his own punishment. "57 For his criticism, Gauthier relies on a distinction which Hobbes himself draws between a "natural" person and an "artificial" person. An individual functions in the capacity of a Is natural" person, on Hobbes' account, whenever that individual's "words or actions are considered . . as his own." By contrast, an individual whose "words or actions are considered . . . as representing the words or actions of another man" assumes the role of an "artificial,, person. "Of persons artificial, some have their words and actions

56Gauthier's book reflects an attempt to retain the
formal structure of Leviathan, while selectively rejecting, and then replacing, certain of Hobbes' assumptions. The amendment with which I am presently concerned represents only one of several moves by Gauthier to revamp parts of Hobbes' system.

57See supra, n. 11.









owned by those they represent," Hobbes continues, "and then the person is the actor: and he that owneth his words and actions, is the AUTHOR: in which case the actor acteth by

authority. "58 Now, Gauthier takes Hobbes to task, not for drawing this distinction, but for failing to recognize its debilitating consequences for his system. Nowhere are these consequences more easily discerned than in the context of Hobbes' remarks on punishment in general and the death penalty in particular. Yet, before I discuss the relevant texts in this regard, preliminary attention to Hobbes' account of the authorization agreement at (a) may prove helpful. He writes: "The consent of a subject to sovereign power . . . is contained in these words, I authorize, or take uDon me, all his actions: in which there is no

restriction at all, of his own former liberty."59 I find this passage useful in introducing Gauthier's criticism because the sovereign is here cast in both of the roles which Hobbes distinguishes. At this text, of course, it is easy to see that Hobbes features the sovereign in the role of an "artificial,, person, or as one with respect to whom every contractor "authorizes," or "takes upon" himself or herself, "all his actions." Yet, this is only to recognize that, while the sovereign is the actor in all he does, every contractor is the author, or owner, of all those actions.

5BLeviathan, or), cit., ch. 16, p. 125 (emphasis Hobbes').

59,Ibid., ch. 21, p. 164 (emphasis Hobbes').


























































60.Ibid. , p. 229. 61.Ibid-


But now, this emphasis, although primary, is not exclusive; for, at this same text, Hobbes also appears to cast the sovereign in (at least) the subsidiary role of a "natural" person. This is suggested by his depiction of the sovereign as one whose (unrestricted) actions are explained by appeal to "his own former natural liberty." So depicted, of course, the sovereign would be regarded as both actor and author (or owner) of what he does. At other texts, where Hobbes discusses either punishment or the death penalty, the sovereign is presented in one or the other (but not both) of these roles.

In chapter 28 of Leviathan, Hobbes asserts:

It is manifest . . . that the right which the
commonwealth, that is, he, or they that represent
it, hath to punish, is not grounded on any
concession, or gift [or perhaps authorization?] of
the subject.60

Instead, Hobbes explains, the ground for the "right of punishing" is the sovereign's own natural right "to every thing" (the !us naturalist .

[B]efore the institution of commonwealth, every
man had a right to every thing, and to do
whatsoever he thought necessary to his own
preservation; subduing, hurting, or killing any
man in order thereunto. And this is the
foundation of that right of punishing, which is
exercised in every commonwealth. For the subjects did not give the sovereign that right; but only in
laying down theirs, strengthened him to use his
own, as he should think fit, for the preservation
of them all.61









After this, Hobbes discusses the wide variety of crimes to which the sovereign's "right of punishing" (so construed)

applies, including capital crimes. 62 Clearly, then, in these passages I have cited or noted from chapter 28, it is apparent that, whenever the sovereign exercises his "right of punishing," he does so in his capacity as a "natural" person and, as such, he is both actor and author regarding his actions.

In an earlier chapter of Leviathan, however, Hobbes leaves quite a different impression of the basis for the "right of punishing." Here, his initial comments are made with reference to a particular sort of crime, viz., the attempt of a subject "to depose his sovereign."

[Ilf he that attempteth to depose his sovereign,
be killed, or punished by him for such attempt, he
is the author of his own punishment, as being by
the institution [of a commonwealth], author of all
his sovereign shall do.63

Within this context, the ground for the "right of punishing" is evidently linked to every contractor's participation in the authorization agreement at (a), and so the sovereign functions, not as a "natural" person, but as an "artificial" person who is the actor, though not the author, of any punishments he may impose on his subjects. A few pages later, in a more general vein, Hobbes makes essentially the same point when he remarks, "[Bly this institution of a


621bO., ch. 28, p. 232.

631bjjd., ch. 18, pp. 134f.









commonwealth, every particular man is author of all the sovereign doth." From this, Hobbes draws the amusing, though impeccable conclusion, "[H~e that complaineth of injury from his sovereign complaineth of that whereof he himself is author."164

Now, Gauthier's criticism of Hobbes is not that the latter provides two, very different accounts of the theoretical foundation for the "right of punishing" nor even that the sovereign is cast in two, very different roles as a result of these distinctive accounts. These observations alone would hardly inspire criticism, for, disparate as Hobbes' two accounts may be, nothing in what he has to say about punishment (per se) precludes the possibility of two, very different, but entirely compatible theoretical derivations for the "right of punishing." Nor is there any reason to suppose that the sovereign cannot alternately assume the roles of a "natural" and an "artificial" person, or even

both of these roles, simultaneously. 65 Instead of this, the criticism of Hobbes Gauthier advances is that the sovereign's role as an "artificial" person, i.e., apropos of the "right of punishing," requires a construal of the authorization agreement at (a) which is incompatible with the affirmation of every contractor's inalienable right of selfpreservation at (b). In other words, the claims at (a) and



651n fact, the assumption of b.1h roles will be an
essential feature of Gauthier's amendment (ifa p. 61).









(b) are not cotenable, on Gauthier's view, insofar as (a) requires the sovereign, whenever he punishes, to act in the capacity of an "artificial" person. The basis for this assessment may be easily grasped, as Hobbes is adamant in what he has to say about the right at (b). In chapter 14 of Leviathan, he writes, "[A] man is forbidden to do that, which is destructive to his life, or taketh away the means of preserving the same," "66 and later in the same chapter,

[A] man cannot lay down the right of resisting
them, that assault him by force, to take away his
life; because he cannot be understood to aim
thereby, at any good to himself. The same may be
said of wounds, and chains, and imprisonment;67 and much later, in another chapter, he writes:

[N]o man is supposed bound by covenant, not to resist violence; and consequently it cannot be
intended, that he gave any right to another to lay
violent hands upon his person.68

It follows from these texts and others, on Gauthier's account, that insofar as the sovereign is cast in the role of an "artificial", person, Hobbes' commitmentto (b) is inimical to his commitment at (a), pursuant to which he claims that every contractor is "an author of his own punishment." To be sure, of course, an account of the "right of punishing" in a commonwealth may Ajra2 be provided by appeal to what the sovereign may do in his role as a



66Hobbes, or). cit. , p. 103

67Ibid., p. 105.

681id ch. 28, p. 229.









"natural" person; and, as I have already stated, nothing precludes his functioning simultaneously in the capacities of both a "natural" and an "artificial" person. Indeed, later, when I present Gauthier's amendment to Hobbes' theory, I will report that his innovation in fact takes for granted that the sovereign would be cast in both roles at one time. Yet, however this may be, what matters presently for Gauthier's criticism of Hobbes is the idea--inescapable in Leviathan--that regardless of any additional roles the sovereign may assume, clearly, pursuant to the authorization agreement at (a), he alay functions as a "artificial" person vis-a-vis his subjects, because, in Hobbes' own words, "every particular man is author of all the sovereign

doth."1169 The upshot of this is that Hobbes' commitments at

(a) and (b) taken together, on Gauthier's view, both require and prohibit a contractor's authorization of his or her own

punishment.70 Moreover, since Hobbes is, evidently, as

69.Ibid., ch. 18, p. 136 (emphasis added).

70"Require"l is easier to show than "prohibit." In his rejection of Hobbes' analysis, Gauthier assumes that a relationship exists between every contractor's inalienable right of self-preservation (the !us naturalis) and certain passages of Hobbes which suggest constraints apply to what contractors either can or may do. These passages would include those which I cited earlier, i.e., specifically, those where Hobbes affirms, "[A) man is forbidden to do that, which is destructive of his life, or taketh away the means of preserving the same"; and where he insists, "[Ilt cannot be intended [by the covenant] that . . . [anyone] gave any right to another to lay violent hands upon his person" (spa pp. 57) . What Gauthier assumes, and, I believe, riahtlv so, is that the constraints imposed by these passages receive their impetus, in some fashion, from the operation of the right at (b). Yet, in the context of









intractable in his commitment to the sovereign's role as an "artificial" person under (a) as he is to every contractor's right of self-preservation at (b), and further, since these commitments would appear difficult to reconcile in their implications for his defense of punishment (generally) and the death penalty (specifically), Gauthier concludes that Hobbes' system arrives at impasse. In light of this conclusion, and since Gauthier, in any case, wishes to retain the "right of punishing" for the sovereign (including the right to employ the death penalty), he is confronted with an obvious choice of strategies for his attempt to amend Hobbes' theory. That is to say, he must either choose to weaken the claim at (a), or the one at (b), or both. As it happens, Gauthier elects to tinker only with the claim at (a). In what follows I will present the amendment which arises from his implementation of this strategy; and I will urge that, if his criticism of Hobbes may be allowed to stand, then his proposal will prove vulnerable: and this because, as I will show, the general drift of his attack on Hobbes may be turned against his own amendment.







his attack on Hobbes' analysis of punishment (generally) and the death penalty (specifically), what is not so clear in Gauthier's account is the exact mechanism by which these constraints operate in virtue of the !us naturalist. In the concluding section of this chapter (2.6.2), 1 will have something more to say about this.









Because Gauthier regards the authorization agreement at

(a) as an essential feature of Hobbes' system,71 it is not at all surprising to find that, in his attempt to accommodate Hobbes' defense of the "right of punishing," he adopts the goal of doing as little damage as possible to the claim at

(a). Moreover, since there is no way of escaping the idea that the sovereign functions in (at least) the role of an "artificial,, person under the agreement at (a), i.e., because, in Hobbes' own words, "[N]o man is obliged by a

covenant, whereof he is not author,1172 it follows that Gauthier must find a clever means of embracing this idea generally, while nevertheless rejecting its specific applicability for contractors whom the sovereign threatens with punishment. It is therefore, in pursuit of this ostensibly elusive objective, that Gauthier proposes the following account as an amendment to Hobbes' theory:

The right to punish may . . . easily be explained.
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.73





71The stated objective for chapter four of Gauthier book is "to set out the structure of Hobbes's mature political theory in a manner which will show the essential role played by authorization" (oD. cit., p. 121).

72()D. Cit., ch. 16, p. 126.

730,0. cit., p. 148.


























































7 4;hi6d . 75Jbid.


Gauthier acknowledges that his proposal would 'mean that each subject is not author of everything the sovereign does," and so, on this interpretation, "the right to punish is subtly different from all other rights of the sovereign, in that the sovereign in each act of punishing is not

exercising a right given him by all his subjects. 1174 He believes, however, that an alternative defense of the "right of punishing" may be invoked (when necessary) by appeal to the sovereign's exercise of his right "to every thing" in his capacity as a "natural" person. What this means is that, whenever the sovereign threatens a contractor with punishment, he does so in the primary role of an "artificial" person insofar as all other contractors are concerned, but then, simultaneously, he functions only in the role of a "natural" person regarding the one whom he threatens. Finally, Gauthier admits that his amendment "does require a complication in Hobbes' theory of authorization," but then he adds, "[Ilt is a complication which preserves the essential character of that theory, and so we may allow it.1175

Gauthier's amendment gives rise to some unanswered questions. Not the least of these is a general question which may also be asked of Hobbes: What, exactly, confers (political) legitimacy upon =y action by the sovereign? or, more specifically put, Does eve action by the









sovereign require every contractor's "authorization" in order to be accorded status as a legitimate action on Hobbes' system? Or does it suffice to defend the legitimacy of some, or perhaps all, of the sovereign's actions solely by appeal to his own right "to every thing" (the Jus naturalis)? or lastly, are there any circumstances under which these two distinctive avenues of appeal may be individually necessary, but only jointly sufficient, for the purpose of conferring legitimacy upon a particular action by the sovereign? While these questions are not specifically addressed in Leviathan, it may be possible to provide some indication of how Hobbes would respond. My clearest impression is that he would not be likely to retreat from the

position, reflected at certain texts,76 that all the sovereign's actions may be defended solel on the basis of appeal

to his own natural right "to every thing."77 But now, if this is so, it invites the question of whether or not the agreement at (a) functions atal as a ground of legitimacy for Hobbes' system? If the answer is "yes," it would appear that his system has been overdetermined insofar as such a ground is concerned and, indeed, may even reflect an unnecessarv redundancy in this regard. Of course, if the answer is "no," then an even more difficult question arises

761n Hobbes' system, the sovereign "cannot be accused by any of his subjects of injury" (oD. cit., ch. 20, p. 151); similarly, "whatsoever he doth, it can be no injury to any of his subjects" (.k~,ch. 18, p. 136).

77Sura1 p. 35.









of why both Hobbes and Gauthier assign so prominent a position, in their respective analyses, to the authorization agreement at (a . My own view of the agreement at (a), which runs counter to Gauthier's interpretation, is that it serves only the practical purpose in Hobbes' system of

generating a monopoly on the use of power. 78 Yet, perhaps this is no small contribution to his system, for it is precisely the collective impact of every contractor's authorization of the sovereign which ensures that his exercise of his natural right "to every thing" will be effective, in addition to being, on its own merits, legitimate. Still, nothing of what follows in my assessment of Gauthier's amendment will depend on my being correct in my conjecture about how Hobbes would respond to the questions I have raised. What may prove helpful, however, is that I have utilized this occasion to introduce the various ways in which Hobbes' system may be thought to ground its claim to legitimacy.

Perhaps the most plausible interpretation of Gauthier's amendment is that he requires that the sovereign's natural right "to every thing" operates as a ground for the legitimacy of his action in threatening a contractor with punishment, i.e., insofar as that particular contractor is concerned; but that, insofar as all ot]2er contractors are


78For a view similar to my own, cf. Jean Hampton, Hobbes and the Social Contract Tradition, Cambridge University Press, 1986, ch. S.









concerned, the authorization agreement at (a) is the appropriate ground. 79 This interpretation, however, would seem to pose more questions than it answers. In particular, it poses but does not answer a question of why, if the agreement at (a) is a ground for everyone with regard to some of the sovereign's actions, then, does it not provide a ground for everyone with regard to all of his actions. Indeed, what seems so attractive about Hobbes' original analysis, I suggest, is that every contractor gives his or her consent for all of the sovereign's actions. Now, what Gauthier's amendment does is to introduce a modification of Hobbes' theory under which the latter's commitment to a theoretical foundation of consent and authorization is withdrawn in those cases (and only those cases) where a particular contractor is threatened with punishment by the sovereign (and then only with regard to that particular contractor). Yet, I wonder, under Gauthier's amendment, what motivation any of Hobbes' contractors would have, given that they ordinarily value their acts of consent and authorization so highly on


79For the former ground, Gauthier writes: "[I]n punishing, the sovereign is no longer acting as the representative of the person punished, and so . . . he is placing himself in the position of an enemy with respect to that person"; and, of course, just prior to this, Gauthier emphasizes: "[I)n the state of nature . . . every man has the right to kill, injure, or subdue others" (ov. cit., p. 184; cf. Cattaneo's observation, supra, n. 30). For the latter ground, once again I quote Gauthier's innovative move: "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" (loc. cit.).









Gauthier's construal, for exceipting those instances which threaten them with the greatest possible encroachment upon their personal liberties (as with imprisonment) and even perhaps upon their very lives (as with capital punishment). It seems to me, then, if any value atal is to be placed on having a foundation of consent and authorization for Hobbes' theory, these commitments would most certainly include those areas where the personal liberties and even the lives of contractors may be so profoundly compromised. Of course, Gauthier's reaction to my analysis would be to insist that his amendment is necessary if Hobbes' theory is to avoid

impasse.80 In reply to this, I can only say that, if Gauthier is to be permitted to cast aside selectively what he himself regards as an essential feature of Hobbes'

theory,81 and moreover, to do so only at that place where its applicability would appear to have its greatest plausibility and justification, and further still, to do so onl for the purpose of repairing Hobbes' theory, then I, for one, cannot see that the theory of Leviathan fares any better under Gauthier's amendment that it does on Hobbes' original analysis.

Yet another criticism of Gauthier's amendment should be briefly mentioned, and this one takes account of the full range of possibility with regard to how the ground of

80lndeed, this is the _Ql argument he gives on behalf of this amendment!

81ukr, n. 71.









legitimacy may be construed on Hobbes' system. In particular, this criticism should be effective against any interpretation of Hobbes' theory which attempts to show that no authorizing function may be imputed to Hobbesian contractors who are threatened with punishment by the sovereign; and so,

no conflict between (a) and (b) arises on this basis. 82 My essential point, then, is this: Even if a contractor does not "authorize" his or her own punishment in the narrow sense of granting legitimacy to the sovereign's threats in this respect, still, in a broader sense, every contractor (without exception) "authorizes," pursuant to the agreement at (a), the very conditions which make it possible for the sovereign to threaten whomever he pleases with punishment, and moreover, for him to do so with an awesome efficiency which practically ensures the outcome. My point, then, is here largely an epistemological one. Hobbesian contractors are not fools and so they can plainly see that the sovereign is just about as powerful with Gauthier's amendment as he is under Hobbes' original analysis. Moreover, it follows from this that "authorization," broadly conceived, runs as easily afoul of Hobbes' commitment at (b) as does the narrower conception on Hobbes' own analysis; hence, if the system of Leviathan arrives at impasse on Hobbes' original analysis, as Gauthier purports, then it would appear to do so just as readily on the amendment Gauthier proposes.

82For an example of this general line of interpretation, see Hampton, loc. cit.









2.6 A Rejection of Hobbes' Analvsis

To this point I have examined three attempts to augment or amend Hobbes, analysis and I have explained why they have been unsuccessful, i.e., insofar as they purport to show how use of the death penalty can be reconciled with Hobbes' claims at (a) and (b). While the appeal to Hohfeld's distinction (2.4.1) merits attention for the (limited) purpose of showing that the right of self-preservation (Hobbes' just naturalist) cannot be an instance of a "claim" right, still, all this reveals is that the interests of those who bear this right may be radically opposed (illustrated, e.g., by the conflict between a person condemned to death and his or her executioner) and yet not be the basis of any theoretical impasse. This would be a commendable use of Hohfeld's distinction except for the impression it leaves that the specter of impasse may be retired altogether by this revelation. In point of fact, however, a much more adequate basis for a challenge to the integrity of Hobbes' system emerges in connection with an entirely different sort of conflict, as Gauthier rightly observes (2.5.3), and as I myself have characterized in my earlier discussion (2.4). 1 refer, of course, to the tension between every contractor's inalienable right of self-preservation, affirmed at (b), and the act of authorization, affirmed at (a), by which every contractor incurs the risk (at least) of being condemned to death and









executed. Any threat to the integrity of Hobbes' system, I suggest, arises as a consequence of this conflict, rather than the one which Hohfeld's distinction is supposed to retire.

Problems of a different sort arise in connection with

the lifeboat lottery analogy, many of which I have discussed at length already (2.4.2). One point I have not touched upon, however, is that this analogy may be very plausibly viewed as imposing (almost surreptitiously) a relaxation of the inalienability feature of the right affirmed at (b). That is, (in effect) it may be construed as urging that every contractor's right of self-preservation be partially alienated so that use of the death penalty may be allowed and everyone's (overall) prospects for survival thereby improved. If this analysis is correct, then, the lifeboat lottery analogy "resolves" the tension in Hobbes' system by amendment, albeit, by amendment in the guise of an augmentation; and so, Hobbes' own analysis stands corrected. Of course, I have also taken pains to show that the analogy itself fails on its own merits (i.e., apropos of a hypothetical contract), and my assessment, in this regard, may be evaluated independently of whether or not Hobbes' system has been amended in the way I have suggested.

Finally, I have examined Gauthier's critique of Hobbes' analysis, which, I believe, correctly identifies the source of tension.in Hobbes' system (2.4.3). Also, I have









discussed the manner in which Gauthier expressly amends Hobbes' analysis by tinkering with the authorization agreement at (a). Here my conclusion has been that the tension in Hobbes' system is not alleviated by his tinkering since the critique Gauthier offers may be effectively turned against his own amendment. In what remains of this chapter, I will examine two other critiques of Hobbes' analysis, both of which purport to raise serious doubts about the reconcilability of (a) and (b) with any defense of the death penalty based on his theory.

2.6.1 Inference from Contractors' Psycholoaical Incapacitv

In a recent issue of the History of Philosophy

Ouarterlv, David Heyd presents the first of two critiques I will examine.83 In this journal Heyd describes his purpose as one of exposing "an inner inconsistency in Hobbes' justificatory argument" for the death penalty.84 To achieve this objective, he introduces a counterargument which may be given the following characterization:

(i) In a civil society each of Hobbes' contractors
would be psycholoaicallv incaDable of failing to
resist any attempt by the state to put him or her
to death;85



83OD. cit., pp. 119-134.

84Ibid., p. 120.

85"The general vein of Hobbes's argument is typically naturalistic. It relies on the psychological impossibility that one should willingly subject oneself to acts of violence, even where these are "normatively" justified, as typically in the case of capital punishment" (ibid.)









(ii) At the time of their initial agreement (i.e., the social contract), each of Hobbes' contractors
would know that (i) is true;86

(iii) In light of (i) and (ii), it would be irrational for any contractor to strike an
agreement exposing him or her to the risk of being
put to death by the state;87

(iv) At the time of their initial agreement,
Hobbes' contractors would not do that which they
know to be irrational for them to do;

(v Hence, no contractor would strike an agreement
exposing him or her to the risk of being put to
death by the state.

There is, of course, a textual basis in Leviathan for

what Heyd attributes to Hobbes at (i). That is to say,

Hobbes doe appear to embrace the view that "man by nature"

will alay offer resistance to being put to death.88 Heyd's

interpretation, in this regard, finds support in Hobbes'

remark that a man cano covenant not to resist death

because "man by nature chooseth the lesser evil, which is

danger of death in resisting; rather than the greater, which



86" [Tjhe real question is whether it would be rational on their part to give their consent to . . . laws [establishing capital punishment] in the first place, knowing in advance that they will have a reso (or rather an irresistible caus) to violate the law" (ii., p. 123, emphasis Heyd's).

871nfa, p. 72.

88"[A] man is forbidden [in a psychological sense, on Heyd's account] to do that, which is destructive of his life, or taketh away the means of preserving the same; and to omit that, by which he thinketh it may be best preserved" (Leviathan, op. cit., ch. 14, p. 103); arriving at Heyd's conclusion, Kavka imputes to Hobbes the view that "it is psychologically impossible not to resist when attacked" (gl,. g.j. p. 330).









is certain and present death in not resisting. "89 For this reason, Hobbes continues, criminals are led to execution by "armed men, notwithstanding that such criminals have consented to the law, by which they are condemned." 90 In a later chapter Hobbes writes:

If a man, by the terror of present death, be compelled to do a fact against the law [e.g.,
resist his executioner], he is totally excused;
because no law can oblige a man to abandon his own
preservation. And supposing such a law were
obligatory; yet a man would reason thus, If I do
not, I die Dresentlv; if I do it, I die
afterwards; therefore by doina it, there is time
of life gained; nature therefore compels him to
the fact.91

Here, I think, Heyd quite plausibly construes a criminal's compulsion (by nature) to resist being put to death as the equivalent of a rpsvcholoaical incapacity not to resist; and so, accordingly, I have adopted at Ci) this manner of characterizing the claim he imputes to Hobbes. What I am not prepared to accept, however, is the claim itself, which may be easily refuted by counterexamnple. Indeed, in another context, Heyd himself successfully refutes the claim at (i) upon citing the case of "a Socratic principled refusal to

avoid execution."1192 What I find a little odd here is that he would take pains to refute a claim which he needs as a



89Leviathan, op. cit., ch. 14, p. 110.

90Zbi-.

91bi. ch. 27, p. 223 (emphasis Hobbes').

92Heyd, op. cit., p. 122.









premise for his counterargument against Hobbes. Still, perhaps this can be explained by supposing that the point of his attack on Hobbes is merely one of showing that the latter's defense of the death penalty fails even if (contrary to fact) (i) were true.

As the claims at (ii) and (iv) are both credible as interpretations of the text of Leviathan and plausible on their own merits, I will concede them to Heyd without further comment. 93

The chief difficulty I see with Heyd's counterarguxnent relates to the inference from psychological incapacity at (iii). Here, Heyd's own words should be reported: he states, "[Tlhe fact that a penalty is psychologically impossible to endure entails that the individual [who knows this] cannot rationally agree to introduce it into the

contract. "94 It is with this (alleged) entailment that I have a problem. It would appear to me that Heyd is simply mistaken to infer any sort of "entailment" at (iii), whether it be of the logical or psychological variety. Any thought of a logical entailment, of course, may be dismissed upon

93Both rationality and a knowledge of one's own
limitations would seem reasonable imputations regarding Hobbes' contractors.

94.ki. (emphasis added). It may well be that Heyd
intends only to say here that Hobe (and not Heyd himself) is committed to the entailment at (iii) and, therefore, the whole point of the inference in context would be to show that Hobbes' ow logic should lead him to reject the death penalty; yet, if this is so, why not simply a frontal attack on the inference itself, which, as I myself show in due course, can be undertaken successfully?









even a cursory examination of the claims at (i) and (ii). In all probability, therefore, what Heyd intends to suggest at (iii) is an "entailment" of the posycholocrical variety. But now, consider this: suppose I am standing on a railroad trestle with a fast train approaching and no way of avoiding certain death gxe~ by jumping into the lake below. Suppose, too, that I have enough time to make a rational decision about what to do. Under these circumstances, I suggest, I might very well be rationally disposed to make the jump even thoucrh the lake is populated with hungry alligators an I cannot bear the thought of being torn to shreds by the menacing creatures who await my plunge. There is, after all, a chanc--however remote--that I may survive the ordeal unscathed. In much the same vein, then, even though Hobbes' contractors may find it "psychologically impossible" for them to endure a death by execution (as Heyd contends), still, this incapacity, in and of itself, need hardly present any psychological impediment to their accepting the Zii of being put to death in this fashion if. they believe themselves to be otherwise doomed or at least otherwise seriously compromised insofar as their (overall)

prospects for survival are concerned. 95 While I am prepared to concede that there may be som people who may be inclined to reject any risk of being executed even though they



95But see my rebuttal to Samuel J. M. Donnelly's imperilment of liberty argument, inra 6.3.









otherwise f ace certain death f rom other causes, 96 1 know of no empirical studies which show this to be true of all human beings or even most of them. Accordingly, I am equally unaware of any psychological law or principle to which Heyd could appeal in defense of his inference at (iii); moreover, since his claims at (i) and (ii) cannot by themselves provide adequate support for any sort of psychological "entailment" at (iii), his conclusion at (v) must be rejected.

Heyd's critique fails, but there is a silver lining. His attack may be apr)lauded, I submit, insofar as he explores a question of whether it would be rational of Hobbes' contractors to expose themselves to the risk of being put to death by the state. Ultimately, what Heyd tries to show is that, because of certain psychological impediments, Hobbes' contractors cannot be rationally disposed to authorize a permission for a (derivative) society to employ the death penalty pursuant to their agreement at (a). That he fails in this endeavor has been demonstrated by the ease with some of the premises he requires may be challenged. Yet, there is a more promising way of exp loring the question of the rationality of the death penalty in this context. An alternative approach


961n later chapters I move beyond mere concession and in fact seek to establish a rational basis for this point of view, that is, of course, with regard to the circumstances of a hypothetical contract; on this, see infra, 5.3.3, 6.3, and 7.3.









would be to rely on a much weaker initial premise than does Heyd. What I would suggest, in this regard, would be to assert merely that it cannot be excluded, on Hobbes' theory, that at least some of his contractors would have a rational basis for rejecting the death penalty. If this weaker premise could be sustained, of course, then it would follow that no unanimous decision to authorize a permission for a (derivative) society to employ the death penalty could be safely imputed to Hobbes' contractors as a feature of their agreement at (a). In later chapters, I do in fact attempt to establish this weaker premise, both for the purpose of criticizing another theory (7.3) and with the aim of achieving a general conclusion (8.2). For now, I would simply note that if I am successful with those efforts, my results there could also be usefully applied as a challenge to the cogency of Hobbes' defense of the death penalty.

2.6.2 A Reductio Ad Absurdum on Hobbes' Analvsis

In this final section I will present what I consider to be a telling argument against Hobbes' defense of capital punishment. In the course of this presentation I will introduce analysis of my own to show that Hobbes allows that the authorization agreement at (a) would be effectively dissolved for any contractor upon whom the death sentence is pronounced. An important consequence of this dissolution, I will argue, is that any use of the "death penalty" would in fact be extraneous to the set of permissible actions









authorized by the agreement at (a). In other words, on this account, no contractor of Hobbes can be supposed to have agreed, in agreeing to (a), that (a) includes a permission for a (derivative) society to employ the death penalty. For the support of these contentions I will appeal to the text of Leviathan. Ultimately, my purpose will be to show that Hobbes' position on the death penalty is contradictory and, therefore, theoretically untenable.

There can be no doubt, of course, that Hobbes understands the authorization agreement at (a) to include a permission for a (derivative) society to employ the death penalty. In his own words, "it may, and doth often happen in commonwealths, that a subject may be put to death by the

command of the sovereign power.,, 97 In another context, he reports that "[condemned] criminals have consented to the

law by which they are condemned; 1198 and, in still another, he affirms that "consent of a subject to a sovereign power" implies a permission (from the subject's own perspective) for "him [i.e., the sovereign] to kill me."99

But now, Hobbes also affirms in Leviathan that the

agreement at (a) remains in effect for his contractors only as long as the sovereign provides them with protection. He writes:


97Leviathan, oT). cit., ch. 21, p. 161.

981bid., ch. 14, p. 110.

99Zbj&., ch. 21, P. 164 (emphasis Hobbes').









The obligation of subjects to the sovereign, is understood to last as long, and no longer, than
the power lasteth, by which he is able to protect
them. For the right men have by nature to protect
themselves, when none else can protect them, can
by no covenant be relinquished.'00

The death sentence, for Hobbes, is a case in point, and this is for the obvious reason that the sovereign's protection of a contractor ceases whenever the former moves against the latter with a design to take his or her life. moreover, with this cessation of protection, I submit, Hobbes evidently intends that a dissolution of the agreement at (a) occurs insofar as the condemned person is concerned. So, for example, Hobbes can say, "If the sovereign command a man, though justly condemned, . . . not to resist those who assault him, . . . yet hath that man the liberty to disobey."'101 Several commentators have observed, correctly in my view, that the circumstances of a person under sentence of death in Hobbes' system are those of a person who has

been returned to the "state of nature."1102 The importance of this observation, for my purposes, is that, ipso facto, any "death penalty" confrontations necessarily occur beyond the



1001bid, p. 167.

101bid., p. 164.

102"The relation between the individual and the sovereign in the case of capital punishment is that characterizing the state of nature. The sovereign has a 'right' only in the sense of power (and the same applies to the individual trying to escape the death sentence)" (Heyd, op gjt. p. 123); see also Cattaneo, sura n. 30, and
Gauthier, The Loaic of Leviathan, op. cit., p. 148.









purview of what is authorized by the condemned person at

(a). In effect, then, Hobbes' sovereign first of all cancels the agreement between the person to be condemned and the rest of society, and then and only then moves to kill that person. From the perspective of the person to be condemned, therefore, the authorization agreement at (a) does not include any permission for a (derivative) society

to employ the death penalty. 103 It merely includes an implied permission for the sovereign to return a contractor to the "state of nature." So viewed, the sovereign's subsequent action in taking the life of the one who has been disfranchised in this way is hardly a "punishment" in any ordinary sense of the word, but is instead more like an act of war committed against an external enemy of the society.104 Indeed, Hobbes himself appears to make just this point when he writes, "Hurt to revolted subjects is done bv riaht of



103This is the mechanism, implied by the authorization agreement at (a), by means of which Hobbes tries (unsuccessfully, as I will show) to make room for his commitment at
(b); on this point, cf. my analysis of Gauthier's amendment, supra, pp. 58ff, and see especially n. 70.

10411[I)f a subject shall by fact, or word, wittingly,
and deliberately deny the authority of the representative of the commonwealth. . . . he may lawfully be made to suffer whatsoever the representative will. For in denying subjection, he denies such punishment as by the law hath been ordained; and therefore suffers as an enemy of the commonwealth; that is according to the will of the representative. For the punishments set down in the law, are to subjects, not to enemies; such as are they, that having been by their own acts subjects, deliberately revolting, deny the sovereign power" (Leviathan, op. cit., ch. 28, p. 231). Also, see Cattaneo's comment, supra, n. 30.









war, not by way of rpunishment."11105 But now, this is all from the perspective of the one who has been disfranchised. From the perspective of everyone else in society, the sovereign's action in taking the life of this person is an action pursuant to the authorization agreement at (a). After all, killing an external enemy of society would seem to be one way in which the sovereign provides protection for these people. Yet, even from this perspective, all that is authorized pursuant to (a) is the killing of an external enemy, not the punishina of a subject by taking his or her life. Again, in Hobbes' words, "[Hiarm inflicted upon one that is a declared enemy falls not under the name of punishment."'106 Regardless of perspective, therefore, one very important and highly pertinent conclusion emerges: no permission is given by anyone pursuant to the agreement at (a) for a (derivative) society to employ the death penalty against one of its citizens. on my analysis, then, Hobbes' position on capital punishment in Leviathan is contradictory because he both expressly affirms and denies by implication (as I have shown) that the agreement at (a) yields such a permission. Moreover, since a contradiction follows from the agreement at (a), by reductio (a) itel is untenable and therefore cannot be cotenable with (b). It strikes a telling blow at the very foundation of his theory, I would conclude, for


1051bi. (emphasis Hobbes').









Hobbes to advance an affirmative argument for the death

penalty in the manner he does. 107 Evidently, then, no

contractarian justification for the death penalty can be

sustained, either by Hobbes' own analysis (as I have

explained in this section), or by the efforts of others to

augment or amend his theory (as I have explained in the

previous section). What is left to be considered, therefore, in the chapters which remain, is whether or not the

same could be said for the other (major) theorists in the

social contract tradition.


















107As a practical matter, of course, Hobbes' contractors do knowingly (I would say) expose themselves to the risk of being put to death by the sovereign, since he is evidently authorized by them to return any one of them to a "state of nature" and there to do with them "whatsoever he will." A question which merits asking, then, is why any fully rational contractor would ever participate in an agreement where the terms are subject to dissolution at the whim of another person, and moreover, are so under circumstances where so great an imbalance in power obtains that near certain death may well await any person who has been disfranchised in this way. However this may be, nothing in what I have just noted implies any authorization whatever by Hobbes' contractors for use of the death penalty under the terms of a social contract.















CHAPTER 3
LOCKE AND THE NOTION OF FORFEITURE

3.1 The Lockean Riaht of Self-Dreservation

In his Second Treatise on Civil Government John Locke defines "political power" as "a right of making laws with penalties of death. "l Locke's account of the death penalty relies on the notion of a person's forfeiture of the right of self-preservation and, as such, represents a substantial departure from Hobbes' handling of the jus naturalis. While he agrees with Hobbes that a person cannot relinquish, transfer, or otherwise abandon the right of self-preservation, he disagrees with him in allowing that an individual can "forfeit" this right by committing certain acts of (suff icient) "heinousness. "2 With the exception of murder, Locke does not specify what these acts are; although he does state that when a murder is committed, the perpetrator "may








lun Social Contract, Sir Ernest Barker, ed., oxford
University Press, 1962 (Locke's Second Treatise originally published: 1690), p. 4 (1.3) (emphasis added); note that Locke's own chapter and section numbers appear in parentheses after my citation of Barker's text (this is a practice I will observe throughout this chapter).

21bid., p. 50 (VII.87); see also pp. 15f (IV.23).
81









be destroyed as a lion or tiger, one of those wild savage beasts with whom man can have no society nor security."13

Locke's departure from Hobbes is all the more striking because the notion of "forfeiture,, removes any possibility of an intrasystemic conflict between the jus naturalis and the agreement by which a social contract is generated. Another feature of the Second Treatise, which contrasts with Hobbes' account, is Locke's uneciuivocal appeal to a unitary, extrasystemic ground of legitimacy for the death penalty, viz., "that great law of nature, Whoso sheddeth man's blood, by man shall his blood be shed. "4 Prior to the advent of a social contract, Locke explains, everyone who lived under this law in a "state of nature" possessed a "right of punishment" which permitted any one of them to put a murderer to death; however, with the emergence of a civil society, he continues, everyone agreed to transfer their individual rights to impose "penalties of death" to the one (or ones) whom they elevated to a position of authority over all the rest. This they did with the expectation, under this arrangement, that fewer abuses and errors of judgment would be encountered, and so the lives of all of them would







31bid., pp. 8f (11.11).

41bid., p. 9 (11.11); Locke quotes Genesis 9:6 (King James Version of the Bible); the emphasis is his.









be rendered more secure.5 This account may be sharply distinguished from that of Hobbes, in which there is no shortage of ambiguity about the ground of legitimacy (as I have shown),6 and, moreover, in which whatever ground or grounds there are require an intrasystemic affirmation that takes the form of an "authorization" by Hobbesian contractors.

Finally, the right of self-preservation itself must be assigned a different status on the two accounts. The Jus naturalis of Leviathan, as I have argued,7 should be construed as something weaker than even a "permission" right, while the Lockean right of self-preservation, in marked contrast to this, merits recognition as a "claim" right. In this vein, Locke may speak for himself.

Every one, as he is bound to preserve himself, and
not to quit his station willfully, so by the like
reason, when his own preservation comes not in
competition, ought he as much as he can to
preserve the rest of mankind.8

I take this to mean that Lockean contractors, as well as people in a "state of nature," all have not merely a right



5"I easily grant that civil government is the proper
remedy for the inconveniences of the state of nature, which must certainly be great where men may be judges in their own case, since 'tis easy to be imagined, that he who was so unjust as to do his brother an injury, will scarce be so just as to condemn himself for it" ibidd., pp. 9f) (11.13).

6Supra, 2.4.3, especially pp. 61ff.

7Supra, 2.4.1.

8Locke, OD. cit., p. 6 (11.6) (emphasis added).









but a duty of self-preservation; moreover, they each have a claim against everyone else not to interfere with that right and duty so long as neither a state of war obtains nor forfeiture occurs.9

These differences, then, on which I have now elaborated, give rise, in turn, to a different set of problems from those I discussed in Chapter Two. In what follows it will be my purpose to address three major areas of concern I have with Locke's defense of the death penalty. All three of these areas will be seen to emphasize one or more of the several differences with Hobbes upon which I have commented. The first of these areas has to do with a question of whether there are any "natural laws," and, if so, whether any of these operate to compel use of the death penalty under a social contract (3.2). After attention to this area, I will then take up the issue of Locke's reliance on biblical texts (especially Genesis 9:6) as a conduit of "natural law" regarding capital punishment. Here (3.3), 1 will explore whether or not the exeqetical T)rinciiDle upon which he relies can be plausibly defended. My final area of concern will feature certain difficulties I perceive regarding how punishment of the innocent would be construed on Locke's theory (3.4). My analysis in all three of these areas will then be summarized and presented in conjunction


9As Michael Freeden astutely observes of Locke, "What
is on one dimension a duty to God becomes on another a right against other men" (Rights, Open University Press, 1991, p. 15).









with a concluding perspective on Locke's defense of the death penalty (3.5).

3.2 The Skeptical Challencre to "Natural Laws"

It is certainly a question worth asking whether or not there are any "natural laws" which operate to bind the actions of human beings. The quintessential challenge, in this regard, confronting all "natural law" theorists (including Locke), has been concisely expressed in the colorful words of the Danish jurist, Alf Ross:

Like a harlot, natural law is at the disposal of
everyone. The ideology does not exist that cannot
be defended by an appeal to the law of nature.
And, indeed, how can it be otherwise, since the
ultimate basis for every natural right lies in a private direct insight, an evident contemplation,
an intuition?'O

on the heels of this assessment, Ross invites the conclusion he presses by means of a further question, "Cannot my intuition be just as good as yours?"11 To be sure, of course, if Ross's question is answered in the affirmative, then there is no reason to prefer Locke's appeal to the "natural law" over the account of another theorist, or even over the incantations of a soothsayer or perhaps an ancient oracle. on the other hand, however, if an answer is given in the negative, then, I urge, after the manner of Ross, that a burden falls on those who make these appeals to show everyone else (who needs convincing) just why their intuitions

100n Law and Justice, University of California Press, 1959, p. 261.

"Ibid.









(and not mine or someone else's) reveal laws which are just the ones competent to bind the actions of human beings. Still, it is not my intention here to defend Ross's skeptical view regarding the existence of "natural laws." Such an enterprise would be unnecessary given the more limited aims of my present inquiry. That is to say, it will be enough for my purposes if I am able to show that Locke fails to meet the burden of making a convincing case in only one instance of an alleged "natural law," viz., that particular appeal on the basis of which he intends to argue for a societal permission to impose the death penalty. If I am successful with this, as I expect to be in the section which follows (3.3), then it would hardly matter (for my aims) that a rigorous defense of Ross's skeptical view may also be

possible and, if implemented effectively, may well have untoward consequences for Locke's entire system.

Yet another aspect of Locke's use of "natural law" should be mentioned. Suppose, for the sake of argument, that Locke does succeed in convincing everyone (who needs convincing) that there is some "natural law," say X, which confers upon individuals in a "state of nature" a right to impose "penalties of death" for a certain crime (or crimes). Assume, too, that this right is transferable to authorities in a civil society. Now, what I want to emphasize here will


12Ross acquits himself rather well in this regard; on this, see his ch. 11, "Analysis and Criticism of the Philosophy of Natural Law"









seem obvious enough, though some elaboration will be helpful to show its relevance within the present context. That is to say, the right at X (on Locke's account) would be just that: a right and not a duty. It confers upon individuals, and by transfer, upon the authorities in a civil society, a permission to impose "penalties of death," but not an obligation to do so. In effect, what this means is that it is a prerogative of individuals in a "state of nature," and of the civil authorities under a social contract, whether or not to impose the death penalty in particular cases. Locke so much as confirms this when he writes, "[A murderer] mav

be destroyed as a lion or a tiger,, "13 where the operative term is 'may' rather than 'must'; and later, when he discusses specific circumstances where the right to employ the

death penalty would not be exercised. 14 Also, he devotes an entire chapter of the Second Treatise to a defense of the sovereign's Dreroqative in matters which include actions

that would "pardon some of fender."15 So, while the right at X may be very clear about when a person has forfeited the right of self-preservation, it does not follow, on Locke's



13Locke, or). cit., pp. 8f (11.11).

14"Indeed, having by his fault forfeited his own life by some act that deserves death, he to whom he has forfeited it, may, when he has him in his power, delay to take it, and make use of him to his own service" (bdpp. 15f (IV.23), emphasis added).

15 Ibid., ch. XIV, "of Prerogative"; see especially p. 95 (159).










account, that a person so disposed must~ in fact be put to death. The difficulty I have, then, with a "natural law" such as X, which confers on individuals and then civil authorities a right whose exercise is a matter of human prerogative, is that, even if X is based on intuitions which everyone has (or can accept), still, in its imDlementation, X relies on human discretion which, in turn, may reflect the whims, the biases, and, under the most unfortunate of circumstances, even the pernicious motives of particular human beings. So even on this account, I suggest, which concedes much to Locke, there may yet be room for a skeptical view after the manner of Ross.

3.3 Difficulties with Locke's Reliance on Biblical Texts

In this section I will explore a question of whether or not Locke's reliance on biblical texts (especially, Genesis 9:6) can perform the pivotal function it must perform in order to sustain his argument for the death penalty.'6 Earlier, I made the point that forfeiture of the right of self-preservation arises, under Locke's theory, whenever a person commits an act of (sufficient) "heinousness." Since he makes appeal to Genesis 9:6 in the case of murder, it would appear safe to infer that the exegetical principle by which he is guided in his selection of this text is something like this: "If p is cited in a biblical text as an

16Locke also cites Genesis 4:14, "Every one that findeth me shall slav me" (KJV) (ibi~d., p. 9 (11.11), emphasis Locke's).









act worthy of death, then p is sufficiently heinous to warrant the death penalty." Since Locke himself provides no guidance at all about how heinous an act would have to be in order to be sufficiently heinous to warrant the death penalty, the principle of selection I have imputed to him does at least have the virtue of clarifying that point. But now, it will be quickly seen that, if this principle is applied to certain other biblical texts (from the Old Testament), rather peculiar, and in fact morally counterintuitive, consequences follow. For example, at Exodus 21:15 there is the pronouncement, "Whoso strikes his father or mother shall be put to death," and at 21:17, "Whoso curses his father or mother shall be put to death." Also, at Exodus 22:18 there is the statement: "You shall not permit a sorceress to live," and at Leviticus 21:10, "If a man commits adultery with the wife of his neighbor, both the adulterer and the

adulteress shall be put to death. "17 Even though these texts identify death as the appropriate punishment in each case, still there is not any reason to think that Locke seriously intends that unruly children, "sorceresses," adulterers, and adulteresses should follow murderers to the gallows.'8 In

17Citations by the author are from The Oxford Annotated Bible (Revised Standard Version), Oxford University Press, 1962.

18Nor, evidently, was this the intention under Talmudic law, which, according to Steven S. Schwartzschild, "abolished the death penalty de facto two-thousand years ago" ("Kantianism on the Death Penalty," ARSP LXXI (1985), p. 345; for additional bibliography, see Schwartzschild's n. 10 (ii.;see also J. K. Mikliszanski, "The Law of









fact, he appears to block this possibility when he states in the Second Treatise that "lesser breaches of the law [than murder]" should be punished with such severity as to cause

the of f ender 11 to repent. 11 19 In the absence of any reason why Genesis 9:6 should be singled out as a conduit of "natural law" on capital punishment, while the other texts I have cited may be safely ignored in this respect, even though they also specify acts sufficiently heinous to warrant "penalties of death" (or at least do so under the exegetical principle I have imputed to Locke), I am left with one of two conclusions, neither of which bodes well for Locke's system. That is to say, either (1) he embraces the highly peculiar and counterintuitive side effects of the exegetical principle I have imputed to him (which would require unruly children and others to follow murderers to the gallows), and this, in opposition to what he himself alleges regarding "lesser breaches of the law"; or (2) he abandons altogether his appeal to biblical texts upon which his defense of capital punishment ultimately rests.

3.4 A Problem with Punishment of the Innocent

The question of Locke's reliance on "natural law" and biblical authority aside, there are yet other difficulties which arise on his account of the death penalty. of these, the difficulties which pertain to his handling of matters Retaliation and the Pentateuch," Journal of Biblical Literature LXVI (1947), pp. 295-303).

19Locke, o-o. cit., p. 9 (11.12).









relating to punishment of the innocent would seem to merit closest scrutiny. I suggest this because he appears to link

the notion of forfeiture to the act (itself) of murder,20 and not to a finding of guilt by others, and yet, it is the latter and not the former which in fact determines who will be put to death, and which allows for the possibility (at

least) of punishment of the innocent.21 It may then be asked of Locke: Does acceptance of the risk which this possibility entails have its basis in the social contract, or is it, too, compelled of Lockean contractors (like forfeiture) by some (as yet unspecified) manifestation of "natural law"? Here, I will concede, for the sake of argument, that Locke is able to provide a plausible ground for his notion of forfeiture, contrary to what I have already shown. That is to say, here my only concern will be to explore the question of whether or not his notion of forfeiture can be reconciled



20lInfra, pp. 95f.

2lWorry over the possibility of error is not merely a theoretical concern: Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam have provided extensive documentation for more than 400 instances of wrongful conviction for capital crimes in the United States alone; of this number, twenty-three were in fact subsequently executed (In Spite of Innocence, Northeastern University Press, 1992) . Interestingly, too, infrequency of use is no guarantee against the possibility of error. The state of Israel, whose courts have rendered only two death sentences in its 45-year history, evidently erred in one of these cases (Adolf Eichmann was hanged in 1962, following his celebrated trial; John Demjanjuk's 1988 conviction (also for war crimes during the second world war), however, was reversed by the Israeli Supreme Court in 1993 (New York Times, July 30, 1993, p. A4)).




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ON A QUESTION OF THE TENABILITY OF CAPITAL PUNISHMENT WITHIN THE FRAMEWORK OF SOCIAL CONTRACT THEORY By VERNON THOMAS SARVER, JR. A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 1994

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Copyright 1994 by Vernon Thomas Sarver, Jr.

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ACKNOWLEDGMENTS Several people have provided me with assistance and encouragement at various stages of my work for the dissertation. Very early on, Professor Thomas Simon read and critiqued papers of mine on Hobbes, Locke, and Rousseau, and many of his comments and suggestions have been helpful to me in the development of my chapters on these theorists. In the early stages I also benefitted greatly from many wide-ranging discussions I had with Professor Robert Ziller of the Department of Psychology. I have brought many of the insights I have gained from these conversations to my work for the dissertation. I would like to recognize the contribution of Professor Charles Collier of the College of Law. At the outset of my writing, Professor Collier met with me and offered many helpful suggestions for bibliography. Over the course of my work he remained available to me for consultation should I have had occasion to stray into the area of legal theory. Throughout the writing of this dissertation, I have had the very good fortune to have the advice and counsel of Professor Michael Radelet, a nationally recognized expert on the sociology of the death penalty. I am particularly iii

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grateful for his assistance in locating proper sources of documentation for most of the empirical claims I make in the dissertation. Professor Thomas Auxter's expertise in the area of Kantian studies has proved to be an invaluable source of help and inspiration in my examination and critique of Kant's arguments for the death penalty. It was also Professor Auxter who first suggested to me that I might explore the possibility of a general solution to the central question of the dissertation. Very few people who write dissertations can claim to have for the chair of their corranittee someone of Professor R. M. Hare's professional reputation and scholarly accomplishment. At every stage of my writing, he has taken a very active interest in my work and, because of this, I have been saved from many of my own mistakes, both large and small. Of course, for those errors which remain, I alone am responsible. Yet, even so, I have no doubt at all that the final draft of my dissertation is a far better piece of writing than would have resulted without Professor Hare's involvement. Finally, I would like to express my appreciation to Mrs. Barbara Smerage, who typed the manuscript. iv

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TABLE OF CONTENTS ACK:r-JOWLEDGMENTS ......................................... iii ABSTRACT ................................................ viii CHAPTERS 1 2 INTRODUCTION 1 1.1 Central Question . . . . . . . . . . . . . . 1 1. 2 Relevant Literature . . . . . . . . . . . . 2 1.3 Purpose and Scope of Inquiry................ 5 1.4 Organization of Topics ...................... 6 1.5 Conceptual Bases for the Study.............. 7 1.5.1 Types of Consent ....... .. .... ... .. .. 7 1.5.2 The "State of Nature" . . . . . . . . 13 1.5.3 "Natural Laws" as a Source of Constraint. . . . . . . . . . . . . . 14 1.5.4 Punishment and Capital Punishment ..... 15 1.6 Importance of the Study ..................... 17 HOBBES AND THE JUS NATURALIS 20 2.1 A Query for Hobbes' System .................. 20 2.2 The Hobbesian State of Nature ............... 22 2.3 Empowerment of the Sovereign and Capital Punishment . . . . . . . . . . . . . . . . . 23 2.4 Capital Punishment and the Cotenability Issue . . . . . . . . . . . . . . . . . . . 25 2.5 Attempts to Augment or Amend Hobbes' Analysis . . . . . . . . . . . . . . . . . . 28 2.5.1 Appeal to Hohfeld's Distinction ...... 28 2.5.2 The Lifeboat Lottery Analogy ......... 37 2.5.3 Gauthier's Amendment ................. 51 2.6 A Rejection of Hobbes' Analysis .............. 67 2.6.1 Inference from Contractors' Psychological Incapacity ............. 69 2.6.2 A Reductio Ad Absurdum on Hobbes' Analysis . . . . . . . . . . . . . . 75 V

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3 LOCKE AND THE NOTION OF FORFEITURE ............... 81 3.1 The Lockean Right of Self-preservation ...... 81 3.2 The Skeptical Challenge to "Natural Laws" .... 85 3.3 Difficulties with Locke's Reliance on Bibl'ical Texts . . . . . . . . . . . . . . . 88 3.4 A Problem with Punishment of the Innocent .... 90 3.5 Summary and Perspective ...................... 97 4 ROUSSEAU'S EQUAL AND TOTAL SUBMISSION REQUIR.E:MENT . . . . . . . . . . . . . . . . . . . 99 4.1 Stages in the "State of Nature" .............. 100 4.2 Rousseau's Submission Requirement and the Death Penalty . . . . . . . . . . . . . . . 102 4.3 A Two-step Argument for Capital Punishment . . . . . . . . . . . . . . . . . 104 4.3.1 A Rejection of the First Step ......... 105 4.3.2 A Counter to the Second Step .......... 112 4.4 A Hint of Diffidence in Rousseau's Account ... 116 5 KANT AND THE PRINCIPLE OF EQUALITY ................ 117 5.1 The "Juridical State of Society" and Punishment . . . . . . . . . . . . . . . . . 117 5.2 Kant's Arguments for the Death Penalty ....... 120 5.2.1 The "Principle of Equality" ........... 121 5.2.2 The "Inner Viciousness" Argument ...... 127 5.2.3 The Suppression of Quibbles Consideration ......................... 131 5.2.4 The Counterargument to Beccaria ....... 132 5.3 Systemic Difficulties with the Death Penalty . . . . . . . . . . . . . . . . . . 13 5 5.3.1 Kant's Use of Contract Language ....... 136 5.3.2 The Vacuity of the Expanded Criterion. 150 5.3.3 Kant's "Natural Law" Foundation and Punishment of the Innocent ............ 153 6 RAWLS AND THE PRINCIPLE OF LIBERTY ................ 159 6.1 Relevant Features of Rawls' Theory ........... 160 6.2 Cooper and King-Farlow's "Dying Innocents" Rationale. . . . . . . . . . . . . . . . . . 162 6.3 Donnelly's Imperilment of Liberty Argument ... 166 7 GAUTHIER'S "INITIAL BARGAINING POSITION" .......... 181 7.1 The "Initial Bargaining Position" ............ 181 7.2 Gauthier's Rationale for Punishment .......... 188 7.3 A Rejection of Capital Punishment within Gauthier's Framework ......................... 192 vi

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8 CONCLUSION. . . . . . . . . . . . . . . . . . . . 202 8.1 Fundamental Presuppositions and the Generic Framework.. . . . . . . . . . . . . . . . . 204 8.1.1 Status as Living Beings .............. 204 8.1.2 A Change "For the Better" ............. 208 8.1.3 Self-Advocacy ........................ 211 8 .1. 4 Unanimous Consent . . . . . . . . . . 212 8.1.5 Termination of the Agreement .......... 212 8.1.6 The Generic Framework ................. 213 8.2 A General Conclusion on the Question of Tenability .................................. 216 8.2.1 Punishment and the Ends of Constraint. 218 ~.2.2 The Uniqueness of the Death Penalty ... 219 8.2.3 The Problem of the Shotcaller ......... 220 8.2.4 The Idealization of the Hypothetical Bargaining Situation .................. 223 8 2.5 Conclusions Regarding the Central Question . . . . . . . . . . . . . . 229 8.3 A Practical Observation and Challenge ........ 230 REFERE!-JCES . . . . . . . . . . . . . . . . . . . . . . . 2 3 2 BIOGRAPHICAL SKETCH. . . . . . . . . . . . . . . . . . . 23 7 vii

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Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy ON A QUESTION OF THE TENABILITY OF CAPITAL PUNISHMENT WITHIN THE FRAMEWORK OF SOCIAL CONTRACT THEORY Vernon Thomas Sarver, Jr. April 1994 Chair: Richard M Hare Major Department: Philosophy This study explores a question of the tenability of capital punishment within the framework of social contract theory. In this connection, the theories of Hobbes, Locke, Rousseau, Kant, Rawls, and Gauthier are examined and all of them are found to be fundamentally incompatible with an affirmative stance on capital punishment. During the course of the study, specific arguments for the death penalty receive attention, including those advanced by Hobbes, Locke, Rousseau, and Kant, as well as those advanced on behalf of Rawls by others, and on behalf of Hobbes by Gauthier. All of these are rejected. Finally, an attempt is made to provide a general solution to the central question of the study, and here, the conclusion is reached that any social contract theory based on hypothetical viii

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consent would be fundamentally incompatible with use of the death penalty. ix

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CHAPTER 1 INTRODUCTION 1.1 Central Question Is the execution of criminals a legitimate practice under a government whose raison d'etre springs from social contract assumptions, in particular, from the premise that "Governments are instituted among Men, deriving their just powers from the consent of the governed"?l In other words, are there any compelling reasons to think that individuals who have given consent (in some form) to their being bound together in a society, and derivatively, under a government emanating from that society,2 have, by so doing, committed lThomas Jefferson, "The Declaration of Independence," in Stuart Gerry Brown, ed., We Hold These Truths, Harper & Brothers, 1941, p. 37. It is not my intent here to narrow the topic of the study to an inquiry about American politi cal institutions. Indeed, I cite Jefferson only because he expresses in concise and familiar language what I take to be the unifying theme of the various theories I will examine (see section 1.5.1, infra). The influence of contractarian assumptions on American political institutions, of course, has been quite well documented; on this, see, e.g., Andrew c. McLaughlin, The Foundations of American Constitutional ism, New York University Press, 1932, Ch. III, "The Social Compact and Its Significance in America"; J. W. Gough, Thg Social Contract. Greenwood Press, 1978, ch. XIV, "The Con tract in American Thought"; and Thad W. Tate, "The Social Contract in America, 1774-1787," William and Mary Quarterly 22 (1965), pp. 375-391. 2At least implicit (and at times explicit) in the contractarian literature is the presence of a distinction between the contract for government and the contract for 1

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2 themselves to the possibility (at least) that some day any one of them may be (justly) put to death by the yga society for which they have given their consent? 1.2 Relevant Literature In reply to this sort of query, the most prominent and influential philosophers among the contractarian theorists of the seventeenth and eighteenth centuries, Hobbes, Locke, Rousseau, and Kant, have advanced, each of them without exception, arguments in support of the death penalty, and moreover, have done so from positions articulated within the framework of their respective social contract theories. I refer, of course, to specific texts which appear in Hobbes' Leviathan,3 Locke's Second Treatise on Civil Government, 4 Rousseau's The Social Contract,5 and Kant's The Metaphysical Elements of Justice.6, 7 society. As Vicente Medina explains, the latter concept plays a more fundamental role in the theories themselves (Social Contract Theories, Rowman & Littlefield, 1990, pp. 5-7). 3Collier Books, 1962, pp. 105, 110. 4In Social Contract, Sir Ernest Barker, ed., Oxford University Press, 1962, pp. 8-9. 5 In The Essential Rousseau. Lowell Bair, trans., New American Library, 1974, ch. V, "The Right of Life and Death." 6Bobbs-Merrill Company, 1965, pp. 99-107. 7An.y comprehensive survey of social contract theory would have to begin with an account of its historical roots in ancient Greece, and would include some discussion of Socrates' argument at Crito 51 for an implied agreement with the people of Athens as the ground for his not evading his

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After Kant, with the rise of utilitarianism and German idealism in the nineteenth century, little incentive could be found to argue the merits of capital punishment under a theory which had entered a period of protracted, though not interminable, decline.a It would not be until the latter half of the twentieth century that a substantial rekindling of interest in social contract theory would take place, an interest keyed (by and large) on the publication of two books, John Rawls' A Theory of Justice in 1971 9 and David 3 own death sentence; Plato's presentation of what Ron Replogle calls the "proto-contractarian speculations" of Glaucon at Republic 357A-361B (Recovering the Social Con tract. Rowman & Littlefield, 1989, p. 2); and Aristotle's allusion to, and comment on, the view of the sophist, Lycophron, at Politics 1280B (A useful discussion of these classical references can be found in David G. Ritchie, "Con tributions to the History of the Social Contract Theory," in Darwin and Hegel. Swan Sonnenschein & Company, 1893, pp. 196-199; see also Gough, op. cit., ch. II). None of these classical sources, however, yield enough of a theoretical perspective to warrant inclusion in the present study. Much the same could be said with regard to later classical and medieval sources (on these, see Ritche, op. cit., pp. 200205; and Gough, op. cit., chs. II, III, & IV). It is, of course, a much different matter with regard to the seven teenth and eighteenth centuries, which, as Gough observes, achieved distinction as "the heyday of the social contract" (.i.hl.g., p. 1). These centuries were to produce Hobbes, Locke, Rousseau, and Kant, whom Patrick Riley describes as "the four most eminent members of the social contract tradition" during this era (Will and Political Legitimacy, Harvard University Press, 1982, p. vii). In a very similar vein, Ron Replogle reports, "contractarian theory came into its own only in the seventeenth and eighteenth centuries, when, in the hands of Hobbes, Locke, Rousseau, and Kant," he urges, "it served as the vehicle for the era's most impor tant political philosophy" (op. cit., p. 2). BSee Gough, op. cit., pp. 183-185 and ch. XII; and Michael Lessnoff, Social Contract, Humanities Press Inter national, 1986, pp. 97ff. 9Harvard University Press.

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4 Gauthier's Morals By Agreement fifteen years later.lo While both of these books are silent on the subject of the death penalty, other recent developments have forged links between the theories they express and contemporary defenses of capital punishment. One of these developments consists of an attempt by an American law professor, Samuel J.M. Donnelly, to develop criteria for use of the death penalty by appeal (largely) to Rawls' contractarian views.11 More recently, two philoso phers, W. E. Cooper and John King-Farlow, have published an article entitled "A Case for Capital Punishment," which likewise makes seminal use of Rawls' theory.12 In still other developments, Gauthier himself has forged links to his own theory in Morals By Agreement with the publication of two articles on Hobbes, "Taming Levia than" in Philosophy and Public Affairsl3 and "Hobbes' Social Contract" in Nous.14 These papers reflect the general emphasis of an earlier book, The Logic of Leviathan,15 in 1oc1arendon Press, 1986. ll"A Theory of Justice, Judicial Methodology, and the Constitutionality of Capital Punishment: Rawls, Dworkin, and a Theory of Criminal Responsibility," Syracuse Law Review 29 (1978), pp. 1109-1174. 76. 12 Journal of Social Philosophy 20 (Winter 1989), pp. 641316 (1987), pp. 280-298. 1422 (1988), pp. 71-82. 15Clarendon Press, 1969.

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5 which Gauthier offers an improvement on Hobbes' argument for the death penalty. His affirmative stance in this context lends credence to the idea that use of the death penalty would at least not be incompatible with the theory of Morals By Agreement, a theory which Gauthier himself depicts as a "modern-day successor" to that of Hobbes 16 1.3 Purpose and Scope of Inquiry In this study I will undertake a critical assessment of the theories of the major contributors to the contractarian tradition, beginning with Hobbes and continuing through Gauthier, for the very limited purpose of ascertaining whether or not any of these theories are compatible with an affirmative stance on the death penalty. Centrally at issue in my assessment will be the question of whether or not con tractors under any of these theories may be (plausibly) assumed to have given consent (in some form) to the possi bility of use of the death penalty by a government emanating from a social contract.1 7 It will not be my purpose in this study, however, to pursue any question of the morality of capital punishment. Instead, the scope of my inquiry will extend only to exploring a question of the compatibility of the death penalty with a particular way of doing political philosophy. Still another limitation of my approach will be that no assessment will be done regarding the compatibility 16 0p, cit. p 17. 1 7 See infra. 1.5.1, for a discussion of the various types of consent.

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6 of the death penalty with other ways of doing political philosophy. A relevant consequence of this limitation is that, whatever the practical import may be of any conclusion I may reach, it would apply only to governments of contractarian extraction. 1.4 Organization of Topics With regard to the theories of the seventeenth and eighteenth centuries, my inquiry will _be focused on the specific arguments for the death penalty offered by Hobbes, Locke, Rousseau, and Kant (chs. 2, 3, 4, & 5, respectively). As for the contemporary theories of Rawls and Gauthier, which are silent on capital punishment, I will, in the case of Rawls, evaluate the attempts of Cooper and King-Farlow and of Donnelly to construct arguments for the death penalty based on A Theory of Justice (ch. 6); and, in the case of Gauthier, assess the adequacy of the theory of Morals by Agreement to support an affirmative stance on capital punish ment, in particular, along the Hobbesian lines Gauthier defends elsewhere (ch. 7). My study will conclude with an attempt to generalize upon the results of my earlier chapters (ch. 8). In this connection I will make an attempt to characterize the (generic) conceptual framework for any social contract theory by attending to the interplay of presuppositions common to them all. After this has been done, I will then seek to evaluate the fitness of this framework to support an

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7 affirmative stance on the death penalty. In this manner I would hope to arrive at a general conclusion regarding the compatibility of capital punishment and social contract theory. Another concern of mine in this closing chapter will be to mention ways in which the conclusions I will have reached in the study may be applied to the practical reality of a world where governments of the contractarian origin do at times impose the death penalty on some of their citizens. Finally, in the remaining sections of the present chapter, I will elaborate on those concepts which are both of focal interest and in need of clarification as a pre liminary to the proper conduct of the study (1.5); and I will present those reasons I have to believe that the central question of the study engages a topic of some considerable theoretical and practical importance, and one that requires a treatment which is thorough and rigorous (1.6). 1.5 Conceptual Bases for the Study 1.5.1 Types of consent Consent (in some form or other) is, of course, the leitmotif of social contract theory. Indeed, the very idea of deriving the "just powers" of government from "the consent of the governed" is what imparts to theories of this kind whatever prima facie appeal they have. Yet, having called attention to this common feature, it is also important to emphasize that these~ theories vary among

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themselves regarding the particular~ (or types) of consent on which they rely. On this score all of the theories I will examine may be found to exhibit a reliance on one or more of three different types, viz., actual consent and two nonactual varieties, hypothetical and ideal consent. 8 The most sustained discussion of actual consent among these various theories appears in Locke"s Second Treatise. 18 Here, Locke distinguishes between two forms of consent, both of which, I believe, he regards as actual, and to which he applies the labels "express" and "tacit," respectively. By "express" consent, I understand him to mean a voluntary form of consent for which the mechanism of conveyance is some observable sign, as, for example, when a person says, "I consent thus to such and such," or less formally, signals the same by a raising of the hand or a nodding of the head. Some reliance on~ form may also be found in Hobbes Leviathan 19 and perhaps even in Rousseau"s The Social Contract.20 None of these theorists, however, appears to rely exclusively (or even predominantly) on this form. Moreover, this may be just as well in light of the conclu sion reached by A. John Simmons (and shared by many others), that '"express' consent is not a suitably general ground for lBOp. cit., pp. 69ff (ch. VII, sect. 117ff). 19 0p. cit., p. 106 (ch. 14). 20Op. cit., see, e.g., bk. III, ch. XII.

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political obligation." 21 But I will have more to say about this in later chapters.22 9 "Tacit" consent is the other form of consent recognized by Locke and it, too, appears to be actual. Here, I under stand him to mean a form which is no less voluntary, but unlike the "express" variety, occurs without the accompani ment of any observable act of commitment by the consenting person. To illustrate this form, he cites the case of a person's "possession or enjoyment of any part of the domin ions of any government," which, for Locke, includes every thing from the "possession ... of land" to one's "lodging only for a week." 23 A similar point is made by Rousseau when he affirms that "residence indicates consent."24 Note, however, that it is IlQ.t the act of "possession or enjoyment" or "residence" which eludes observation by others; rather, it is the act of commitment these observable acts are sup posed to convey which lacks observable "expression." Yet, notwithstanding this, in any particular instance it may well be that the actor in question has previously agreed (i.e., prior to any act of "possession" or whatever) that were an act of this sort to occur, it could be regarded as a token 21 Moral Principles and Political Obligations, Princeton University Press, 1979, p. 79. 22 Infra, 2.s.2 (pp. 45ff); 4.3.2 (pp. 114f). 23 0p. cit., p. 71 (ch. VIII, sect. 119). 2 4 0p. cit P. 8 8

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10 of his or her consent to be bound under the terms of some social contract. In such an instance, of course, it would be proper to regard the act of "possession" (or whatever) as a token of the actor's actual consent. But what I find so problematical about the notion of "tacit" consent is that it may not always be easy to tell in a particular instance whether or not some observable act is in fact a mechanism for conveyance of that person's prior actual consent to a social contract. The difficulties I see here will be brought to light by the following anecdote. Suppose I am walking along a path with my lunch in hand and I happen upon a place where you are standing. You stop me and draw a line in the sand, and then you say to me, "By crossing this line you will have given 'tacit' consent for me to take possess ion of your lunch." I say nothing to you and then proceed to cross your line. At this point you demand that I sur render my lunch. Yet, what claim could you possibly have on my lunch under these circumstances? tell without additional information. It is not so easy to Of course, it could be the case that we have a prior actual agreement that, under these circumstances, I will surrender my lunch. To be sure, in a case of~ sort my "tacit" consent would be actual. But now, suppose in the story I have related that there is IlQ prior actual agreement between the two of us. In the absence of any such agreement, how am I to know that I am obligated to surrender my lunch? Evidently here, the only

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11 answer still based on my consent would require supposing that I am bound under the terms of some nonactual (i.e., hypothetical or ideal) agreement with you. Evidently, too, when Locke and Rousseau speak of "possession and enjoyment" and "residence," respectively, as a basis for consent to the social contract, they refer to some nonactual form of agree ment. That is to say, it can hardly be assumed that these theorists intend to represent by the notion of "tacit" con sent that every contractor has participated in some prior actual (i.e., "express") agreement regarding what will count as the mechanism for conveyance in situations where no (on site) "expressions" of consent will be given. Instead, it must be supposed that they ultimately rely on some nonactual form of agreement in their respective discussion of "tacit" consent. Yet, even this "clarification" leaves unsettled a question of which variety should be imputed to them, i.e., whether hypothetical or ideal. In light of these observa tions, therefore, it should be easy to see that I would be ill advised in my inquiry to make any use of a term so ambiguous as this one. Much the same could be said regard ing the notion of "implied" consent, which, too, has been employed with reliably ambiguous consequences in discussions of social contract theory. Anything of importance I will have to say, therefore, in my study about consent, will have to be said relying on less problematic terms than these.

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12 Nonactual forms of consent, as I have reported, may be classified as one of two varieties, i.e., hypothetical or ideal. By the former variety, I refer to the sort of con sent people would have given under specified conditions. Exactly what these conditions are purported to be varies from theory to theory. By the latter, I refer to the sort of consent people ought to have given, i.e., where 'ought' is understood in a moral sense. At some time or other, all of the theories I will examine have been linked to the notion of hypothetical consent. Ron Replogle, for example, is moved to offer a general assessment: "The contractarian regards institutions just insofar as they could be the object of a hypothetical agreement."25 In a more specific comment, Vicente Medina identifies Hobbes, Rousseau, and Kant as theorists who utilize "the concept of contract in a purely hypothetical way." 26 Similarly, A. John Simmons remarks even of Locke that he relies on a contract which is "not necessarily actual (i.e., possibly hypothetical) ."27 Finally, of course, the contemporary theories of Rawls and Gauthier would appear to be expressly hypothetical in their conceptions of the social contract.2B Ideal consent, of 2s0p. cit. P. 2 26 0p, cit. I p. 137 210p. cit., p. as. 28 A Theory of Justice., op. cit., p. 11; Morals By Agreement, op. cit., p. 9.

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13 course, is most often linked to the theory of Kant,29 though, on occasion, it does receive mention in connection with the theories of Rousseau3D and even Rawls.31 It is perhaps worth noting, too, that ideal consent can be expressed in a hypo thetical mode, as indeed it would be if it were character ized as the sort of consent people would give if they were to do what is morally required of them. Later, I will have more to say about this in connection with Kant's theory.32 1.5.2 The "State of Nature" The early social contract theorists rely on the notion of a "state of nature" as a mechanism for describing the social conditions which obtained prior to the advent of any contract. For Hobbes, these conditions are described in almost horrific terrns;33 with Locke, there is some improvement over the conditions which Hobbes describes, but not enough to warrant a continuation of the status quo;34 and for Rousseau, while the conditions are idyllic at first, they deteriorate substantially over time and eventually 2 9See, e.g., Michael Lessnoff, Social Contract. Humani ties Press International, Inc., 1986, pp. 90ff. 3Dibid., p. 74. 31.I.Qig., p. 134. 32 Infra., s. 3. 2. 330p. cit., ch. 13. 340p. cit., ch. II.

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14 become intolerable.35 These quasi-historical accounts, of course, are presented by these three theorists as an argument for the rational basis of abandoning the "state of nature" in favor of a civil society. The later theorists, Kant, Rawls, and Gauthier, all exhibit a shift in emphasis away from accounts of this sort and toward a purely conceptual discussion of the rational constraints on what may be negotiated in a hypothetical or ideal pre-political context. Only Kant, among these later theorists, continues to speak of a "state of nature"; for Rawls and Gauthier, the terms of choice are "the original position" and "the initial bargaining position," respectively. 1.5.3 "Natural Laws" as a Source of Constraint All six of the theories I will examine rely (at least partially) on assumptions which are not the stuff of any agreement among contractors. Among the early theorists, these assumptions are often called "natural laws," and they tend to operate as a source of constraint on what is permitted under the terms of a social contract. Hobbes, for example, derives a number of "natural laws" from his more fundamental notion of a "right of nature" (the~ naturalis). These "laws," in turn, provide the foundation upon which his social contract is erected.36 Locke's system, too, is constrained by the effects of certain "natural 35 Infra. 4 .1. 360p. cit., chs. 14 & 15.

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15 laws." Unlike Hobbes, though, who relies principally on a rational analysis of the implications of the jus naturalis. Locke turns primarily to scripture for inspiration. Yet another approach is taken by Rousseau, who, after recognizing a number of "natural laws," seeks to obviate their effects in civil society by appeal to his conception of a "general will." Among the later theorists, discussions of "natural law" either take the form of (as with Kant), or have given way to (as with Rawls and Gauthier), an analysis of what rationality requires of a person in a pre-political context and, of course, later in civil society. Indeed, for the contemporary theories of Rawls and Gauthier, rational choice considerations emerge as a dominant theme. With regard to all of these theories, I would say, the potential (at least) for a certain antagonism arises between what may be required of social contractors as a consequence of what they have agreed to and what may be required of them because of the operation of certain "natural laws" or other intuition-based assumptions. Several of the relevant consequences of this sort of antagonism will receive attention in my chapter on Kant (5 3.3). 1.5.4 Punishment and Capital Punishment Finally, I should say a few words about the standard way of justifying use of punishment (generally) within the framework of social contract theory; and beyond this, about what may be additionally required of the theorist to justify

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16 use of the death penalty as a particular form of punishment. On this way of doing political philosophy, of course, it is assumed that the contracting parties would recognize the necessity for some form, or forms, of constraint on their own behaviors in "civil society." Indeed, under this assumption, they are all persuaded that it is their willingness to constrain some of their own behaviors which in fact promises a "better life" for each of them than they presently have in the "state of nature." They are moved to draw this conclusion because they have been able to connect the lack of constraint on their behaviors in the "state of nature" with their present difficulties in pursuing the various sorts of life each of them would prefer to have. Now, punishment must be included among the forms of constraint upon which nearly every political theorist of any importance has relied; and, in this regard, no exceptions arise for theorists of contractarian disposition. Indeed, for many theorists, including those in the social contract tradition {and, among these, the six I will examine), the use of punishment may be described as the "constraint of choice."3 7 Of course, there is a burden on every theorist {so disposed) to explain why punishment i.. the "constraint 37This suggestion is perhaps open to debate with regard to Rawls and Gauthier, though I think my analyses in chs. 6 and 7 will provide some support for its applicability to them, as well.

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of choice," that is to say, why punishment is to be preferred over other forms of constraint.3B 17 Within the context I have described, then, any use of capital punishment would emerge as the most extreme form of constraint which could be imposed. This is because death results in the cessation of .all of a person"s behaviors, not merely in those which may have been in need of constraint. Hence, it would appear that an even greater burden falls on the social contract theorist to account for why this punish ment would be approved by contractors seeking a "better life" for themselves. 1.6 Importance of the Study One value of the study I have proposed will be the potential it may have as an alternative approach to the contemporary discussion of capital punishment. Presently, of course, the literature is saturated with articles aiming to assess the moral status of the practice either inde pendently altogether of any political theory or as a prelude to the introduction of some political theory. To be sure, this might be a fruitful way of proceeding were it not for the wide divergence of opinion on what constitutes a proper assessment of moral status, and beyond that, on what con stitutes a proper understanding of the function of moral language. My approach is less ambitious, though, I think, perhaps more promising. What I propose to do is to take 3BE.g., providing rewards as incentives for self constraint.

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18 each of several versions of social contract theory and then to inquire of each version whether or not its presupposi tions would be compatible with an affirmative stance on capital punishment. This approach, of course, entails neither my having to defend a set of normative assumptions nor my having to take a meta-ethical position on the function of moral language. Another edge I have over moral status assessments is that by narrowing the focus of my inquiry, not just to political theory, but indeed, to a specific variety of it, I have placed the theoretical arena in much closer proximity to opportunities for practical application. But now, this is only another way of saying that there are governments of contractarian extraction in the world today which do in fact employ the death penalty. Finally, I urge, without a major study along the lines I have proposed, there may be the temptation, not merely in academic circles, but also in the public sector (where the consequences may be more keenly felt), to take for granted a particular outcome on the question of the legitimacy of capital punishment under social contract theory. In support of this observation, I would just mention the remarks of Frank Kelly, a New York City attorney, whose article entitled, "The Social Contract: Murder and the Death Penalty," appeared in a recent issue of the New York State Bar Journal: The death penalty is a conceptually necessary component of the social contract .... When

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imposing the death penalty upon the murderer, society, in the form of government, is doing only what it must do to preserve the peace and fulfill the contract.39 19 The difficulty I have with Kelly's article is the super ficiality of the several arguments he offers in defense of his claims,40 arguments which reflect only the most fleeting acquaintance with the dynamics of social contract theory. In fairness to Kelly, of course, he mgy be right in what he claims; however, the conclusion he reaches can be safely drawn, if at all, only after a very thorough and rigorous examination of the contractarian tradition, indeed, an examination, I would think, very much along the lines of what I will try to provide in this study. 39(July 1989), pp. 45f. 40For example, he argues: Because a person may repel with deadly force an attack on his or her life, society, too, may employ deadly force in the form of capital punishment against the attacker whenever the attack is successful.

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CHAPTER 2 HOBBES AND THE JUS NATURALIS 2.1 A Query for Hobbes' System None of the claims in Hobbes' Leviathan are more funda mental to the operation of his system than (a) his appeal to an initial act of authorization by which contractors under his theory vest in their ruler(s) the power to command obedience of them and even require of them the sacrifice of any of their lives;l and (b) his steadfast insistence upon every contractor"s inalienable right of self-preservation (the jus naturalisl, a right which authorizes any action at all taken by any one of them in an attempt to preserve his or her own life.2 My purpose in what follows will be to explore a question of whether or not the claims at (a) and (b) are cotenable in light of Hobbes' (intrasystemic) defense of capital punishment.3 To lay a foundation for lCollier Books, 1962 (originally published: 1651), ch. 17, p. 132; ch. 21, p. 161. 2.ll2_ig., ch. 14, p. 103. 3 Hobbes' political theory in Leviathan includes a defense of capital punishment as an integral feature of his system; hence, I have employed the tenn 'intrasystemic.' By contrast, I will take no account of his defense in I& (Sterling P. Lamprecht, ed., Appleton-Century-Crofts, 1949 (originally published: 1642), ch. 2, sect. 18), which, for my purposes, is extrasystemic, notwithstanding that 20

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21 this query of Hobbes' system, preliminary attention will be given to certain other features of his theory which provide an essential framework both for his claims at (a) and (b) and for his theory of punishment upon which he relies for his defense of the death penalty. My prefatory remarks, in this connection, will take the form of an elaboration of Hobbes' view of the "state of nature" (2.2) and his empower ment thesis regarding the institution of political authority (2.3). In conjunction with this latter topic I will lay stress upon the relationship between Hobbes' empowerment thesis and his theory of punishment, and I will explain why this relationship is thought (by Hobbes) to provide a theo retical basis for his defense of the death penalty. With this foundation in place I will then take up the question of whether or not Hobbes' defense of the death penalty can be reconciled with (a) and (b) (2.4), and here my concern will be, not only with Hobbes' own account, but also with the efforts of others who have undertaken to augment or amend his original analysis (2.5). Finally, I will assess the status of two counterarguments to Hobbes' analysis, both of which purport to raise serious doubts about the reconcil ability of (a) and (b) with .9.IlY defense of the death penalty based on his theory (2.6). his argument there closely parallels that given in Leviathan.

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2.2 The Hobbesian State of Nature On Hobbes' view every man is at war with every other man so long as he remains in a state of nature. While he continues in this state, "every man has a right to every thing; even to one another's body" (Hobbes' First Law of Nature) .4 However, this right "to every thing" should not 22 be taken in the sense of what today would be called a "claim right," or a right which imposes on others a correlative duty not to interfere with a person's exercise of it. Instead, what Hobbes appears to mean here would much more closely approximate what today would be called a "permission right," or a right whose exercise does not impose on others any duty of noninterference.s But now, as Hobbes explains, since everyone in a state of nature is endowed with a right "to every thing," it is all too apparent that the social costs of its exercise are too high, for people invariably compete and fight with one another for many of the same things. In this intolerably precarious and otherwise deplor able condition, he continues, people discover (under the impress of reason) that they ought to seek the security of a covenant with one another, and this for their mutual 4Hobbes, Leviathan, loc cit. 5After Wesley Hohfeld's Fundamental Legal Conceptions, Greenwood Press, 1978, pp. 35ff. Hohfeld's original term, 'privilege,' has given way to either 'liberty' or 'permission,' or 'permission right' in contemporary discussions of his distinction. The last of these has been employed in my own analysis.

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23 protection and benefit (the Second Law of Nature) .6 This discovery by the people, for Hobbes, marks the beginning of the end of a state of nature. 2.3 Empowerment of the Sovereign and Capital Punishment It is to secure the peace, therefore, and to put an end to a state of nature where life is "solitary, poor, nasty, brutish, and short," that all but one (or just a few) among the people agree to relinquish their individual right "to every thing; even to one another's body." 7 The one (or ones) whom the others allow to retain this right, on Hobbes' account, are elevated (de facto) to a position of supreme power and authority over all the rest. This empowerment of a "sovereign" is intended for the purpose of establishing a mechanism for the legislation and enforcement of laws which can then provide for the peaceful settlement of disputes among people, and for the restraint and punishment of acts deemed contrary to the goal of peace. Obviously, there is a considerable sacrifice of freedom on the part of those who covenant together in this manner, and who, as a consequence, pledge loyalty and obedience to their sovereign; neverthe less, it is Hobbes' contention that this is the only reasonable alternative to the condition of war which exists 6 Hobbes, Leviathan, op. cit., ch. 14, p. 104. 7~., ch. 14, p. 103.

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perpetually, and to which one is otherwise committed, in a state of nature.a 24 It is no very great problem to discover, within this framework, the basis for Hobbes' defense of capital punish ment. A general authorization to employ punishment arises simply as an extension of the sovereign's (retained) right "to every thing," even to the body of another; and any specific punishments, including the death penalty, all receive their theoretical imprimatur under the umbrella of this general authorization.9 Moreover, since the sover eign's (retained) right "to every thing" is authorized at (a), it follows that (a) provides m,th the justificatory basis of the right to punish .and an enforcement mechanism in the form of a de facto monopoly on the use of power.lo The latter serves to deprive anyone slated for punishment of the opportunity for effective resistance; and the former, of any cause for complaint, as someone punished under color of (a) B"And though [sovereign authority is] of so unlimited a power, men may fancy many evil consequences, yet the consequences of the want of it, which is perpetual war of every man against his neighbour, are much worse" (~., ch. 20, p. 157). 9"[T]here is a question to be answered, of much importance; which is, by what door the right or authority of punishing in any case, came in"; "before the institution of a commonwealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; this is the foundation of that right of punishing, which is exercised in every commonwealth" (ihl.,d., ch. 28, p. 229). lO"[C]ovenants, without the sword, are but words, and of no strength to secure a man at all"(~., ch. 17, p. 129).

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25 would be an "author of his own punishment. "11 The two together are intended to provide the sovereign with all that is necessary to secure the commonwealth against the threat of crime and domestic violence. 2.4 Capital Punishment and the Cotenability Issue The general authorization to employ punishment, there fore, which is both justified under, and facilitated by, (a), activates a latent tension in Hobbes' system whenever the life of a contractor is actually threatened by the sovereign. I say this because it is also the case, as I have described at (b), that each of Hobbes' contractors is endowed with an inalienable right of self-preservation (the 1us naturalis), a right which authorizes its bearer to take any action whatever in defense of his or her own life.12 Hobbes himself appears well aware of this latent tension in the context of his specific remarks on the death penalty. Here, he argues that when a man who stands condemned to death by the sovereign is led to the gallows, that man never theless retains "the right of resisting them, that assault him by force, to take away his life."13 It is for this reason, he explains, that criminals are led to execution by "armed men, notwithstanding that such criminals have 11 .Ibig., ch. 18, pp. 134ff; "[H]e that complaineth of injury from his sovereign, complaineth of that whereof he himself is author" (p. 136). 12T'h~ ,:i_, h 14 103 C Ip. 13T'h~,:i. 1 105 p.

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26 consented to the law, by which they are condemned."14 Simi larly, in another passage of Leviathan, Hobbes claims that, while a man fill covenant, "Unless I do so, or so, kill me," in conformity with the right of the sovereign "to every thing," even to the body of another, he cannot covenant, "Unless I do so, or so, I will not resist you when you come to kill me," by virtue of the inalienability of his right of self-preservation.is The tension evident between (a) and (b) in these passages has led some commentators to conclude that Hobbes' system reaches impasse in cases involving capital punishment.16 While these commentators are right, of course, about the tension in Hobbes' system, and may even react with understandable perplexity to the peculiarity of his having contractors who are both authors of, and rightful resisters to, any punishment the sovereign may threaten, it follows neither from the tension nor the oddity of these cir cumstances that a charge of theoretical impasse can be 14 Tl-.~ ,4 I 15..ll2.ig. p. 110. 16See Gordon J. Schochet, "Hobbes and the Voluntary Basis of society," in Thomas Hobbes and Political Theory, Mary G. Dietz, ed., University Press of Kansas, 1990, p. 62; Leo Strauss, "On the Spirit of Hobbes's Political Philosophy," in Hobbes Studies. K. C. Brown, ed., Harvard University Press, 1965, pp. 25f; Gregory s. Kavka, Hobbesian Moral and Political Theory. Princeton University Press, 1986, ch. 8; and David Gauthier, whose views I discuss later in the chapter (2.4.3).

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27 sustained against his system.17 To demonstrate impasse, I submit, Hobbes' critics must show that his claims at (a) and (b) are IlQ.t. cotenable in light of his defense of capital punishment; and this demonstration, by and large, they have neither provided nor even attempted to provide.1 8 In fair ness to the concerns of these critics, however, it must be admitted that Hobbes himself, though alert to the tension within his system and sensitive to the peculiarity of his contractors' circumstances,19 fails nevertheless to supply a rationale for these features adequate to preclude the specter of impasse. Indeed, that task has been left for later adherents of his system who have suggested various ways of augmenting or amending his original analysis. In the remainder of this chapter, therefore, I will consider, first of all, the suggestions of these later adherents to see whether or not they can improve on Hobbes' own analysis; and secondly, with the results of this inquiry in hand, I will entertain two challenges to his system which gQ in fact appear to raise serious concerns about the cotenability of (a) and (b) in light of his defense of the death penalty. 17 For other reports of theoretical tension in Hobbes' system, cf. Michael Lessnoff, Social Contract, Humanities Press International, 1986, pp. lOlf; and John Watkins, Hobbes's System of Ideas, Hutchinson, 1973, pp. 97f. lBAn exception to this would be David Heyd's recent article, "Hobbes on Capital Punishment," History of Philosophy Quarterly 8 (April 1991), pp. 119-134; see my discussion of Heyd's views infra (2.6.1). 1 9Hobbes, Leviathan. op. cit., ch. 28, p. 229.

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2.5 Attempts to Augment or Amend Hobbes' Analysis 2.5.1 Appeal to Hohfeld's Distinction 28 One way of augmenting Hobbes' analysis makes use of the distinction between a "claim" right and a "permission" right to which I have already alluded.20 It is conceded, on this approach, that if it were necessary to regard the rights at (a) and (b) as "claim" rights, then Hobbes' system would be at impasse. A moment's reflection will suffice to confirm the basis for this concession. For example, if the sovereign's right "to every thing" at (a) were a "claim" right, then the right to punish, which derives from that right, would impose on others a duty of noninterference. Since this duty would extend fillfill to those singled out for punishment, (a) would be at loggerheads with (b). This is because (b) confers a right of resistance upon anyone whom the sovereign threatens with punishment.21 Similarly, if a contractor's right of resistance at (b) were itself a "claim" right, then everyone else would have a duty of noninterference and so~ the sovereign would have to stand aside, which is contradictory in light of the 20spra, n. 5; see, e.g., the discussion of V. Bobbie's views in Mario A. Cattaneo, "Hobbes' Theory of Punishment," in K. C. Brown, ed., Hobbes Studies. Harvard University Press, 1965, pp. 292f. 2l"[N]o man is supposed bound by covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a commonwealth, every man giveth away the right of defending another, but not of defending himself" (Hobbes, Leviathan, op, cit., ch. 28, p. 229; see also, ch. 21, p. 164).

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29 authorization given at (a). What emerges from this concession, then, on this way of augmenting Hobbes' analysis, is that the rights derived from (a) and (b) are much more plausibly construed as "permission" rights, and so no duty of noninterference is conferred upon anyone in virtue of their exercise. Moreover, since no duty of noninterference arises in conjunction with the exercise of these rights, neither does any "theoretical impasse" occur when the sovereign clashes with a contractor who resists punishment; and, of course, this would apply to any punishment at all the sovereign threatens, including the death penalty. So, at least on this interpretation, the specter of impasse may be retired by the simple expedient of embracing the distinction between a "claim" right and a "permission" right, and then recognizing that the rights at (a) and (b) are instances of the latter rather than the former. Does this way of augmenting Hobbes' analysis serve to strengthen his position on the death penalty? Much depends, I urge, on how the notion of a "permission" right is under stood in connection with the rights affirmed at (a) and (b), and on whether this manner of augmentation correctly identifies the source of tension in Hobbes' system. What I propose here is to provide an account of the standard interpretation of this notion in the philosophical litera ture, and then to show that the rights at (a) and (b) have

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30 certain inherent features which resist that interpretation. In this manner I will seek to expose the problematic charac ter of any reliance upon the distinction between a "claim" right and a "pennission" right as a means of augmenting Hobbes' original analysis. An example which invokes the standard interpretation of a "pennission" right is the case of a person who seeks election to public office.22 Here, a person's right to get oneself elected is construed as a "pennission" right since others have no obligation to stand aside and pennit this to happen. Indeed, others may even oppose such a person by supporting other candidates or seeking office themselves. Now, on this account, what is germane to my inquiry is that a person's "permission" right to get oneself elected is ordinarily accompanied by certain other rights which function in a facilitating role with regard to the "permis sion" right and which themselves may be accorded status as "claim" rights. Among these are included a right to collect signatures or meet other criteria necessary to have one's name placed on the ballot, a right of equal access to the media, and, when the election is over, a right to a fair and impartial tabulation of votes. Of course, what makes these latter rights "claim" rights is that others .Q.Q have a duty of noninterference with respect to their exercise by a candidate for public office. This observation is germane 22 From R. M. Hare's Moral Thinking, Clarendon Press, 1981, pp. 149f.

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31 to my inquiry because it calls attention to a feature of this example not present in Hobbes' right of self preservation at (b). This is just to say, at least in capital cases, a condemned person's right of self preservation is unaccompanied by any (claim) rights which facilitate its exercise. In other words, a person under sentence of death, on Hobbes' system, has no claim against the sovereign or anyone eise that requires concessions which facilitate exercise of the right at (b) .23 What this sug gests is that not all "permission" rights are rights whose exercise is necessarily protected in some respects by the (contemporaneous) presence of certain "claim" rights, (as, I think, would be the case with the right to get oneself elected). Evidently, then, if the right at (b) is to count as a "permission" right, it cannot be so in virtue of its being a non-claim right whose exercise is supported by other rights which~ themselves "claim" rights, as this cri terion would exclude (b). Therefore, an appeal must be made to some other feature (or features), necessarily present in sll "permission" rights, upon which to rely in certifying the right at (b) as such a right The only candidate for this role I have found in the philosophical literature is a feature which functions to afford every bearer of a "permission" right (in effect) the 23Hobbes even requires that contractors under the authorization agreement at (a) are obliged "to assist him who hath the sovereignty, in the punishing of another" (Leviathan. op, cit., ch. 28, p. 229).

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32 accompaniment of a "claim" right nQt. to be punished merely for exercising the "permission" right.24 Note that the accompanying "claim" right in this instance is nQt. one which facilitates exercise of a "permission" right but is instead one which gives rise to a claim against others only after the "permission" right has been exercised. Now again, either this feature is present in the right at (b) or it is not. If it~ present, then this would mean that a con demned person has a claim against the sovereign not to be punished merely for exercising the right of self preservation.25 Hobbes, however, clearly rejects this possibility when he asserts the illegitimacy of claims of any kind brought by a contractor against the sovereign. Mincing no words in this regard, he states: "Whatsoever [the sovereign] doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice."26 This idea of the sovereign's immunity to claims extends also to those who act on his (or their) behalf and under his (or their) direction; of them, Hobbes writes: "Nothing the sovereign representative can do to a 24See, e.g., Samuel Stoljar's discussion of defensive rights in An Analysis of Rights, St. Martin's Press, 1984, ch. 2. 2ssuch a claim, I suppose, would be intended to block, e.g., the sovereign's substitution of a more painful method of execution as a means of punishing~ the capital offense gru;1 acts of resistance by the condemned person. 26 Hobbes, Leviathan, op. cit., ch. 18, p. 136.

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33 subject, on what pretence soever, can properly be called injustice, or injury."27 Evidently, therefore, this feature, too, is one that cannot be found in the right of self preservation at (b); and so, a fortiori, neither can its presence be cited as a basis for certifying the right at (b) as a "permission" right. It would appear, then, at least in the case of a person under sentence of death, that no "claim" rights of any kind accompany Hobbes' right of self-preservation at (b). All that remains, therefore, as a basis for certifying the right at (b) as a "permission" right, is the presence of the defining feature of such a right, viz., that its bearers have no grounds for any claims against others that they not interfere with its exercise. The difficulty I have, how ever, with a reliance on the manifestation of only this feature is that I do not see how its presence can in fact be distinguished in a capital case. To understand why I say this, imagine the circumstances of two persons who live in parallel universes, both of whom are threatened with execu tion by their respective sovereigns. Assume that the relevant circumstances of these two persons are exactly similar in every respect except that one of them bears Hobbes' right at (b) and the other does not. Assume, too, that the relevant similarities include that they both undertake acts of resistance to being put to death; that 27.D;;wJ., ch. 21, p. 161.

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34 neither bears any "claim" rights against others that certain conditions be allowed in order to facilitate their acts of resistance; and that neither bears any "claim" right against his or her sovereign that he or she not be punished for these acts. Now, recall that what is supposed to distin guish the person who bears Hobbes' right from the one who does not is that the consequence for the former is that no duty of noninterference is imposed on others in virtue of its exercise. However, what should be no less apparent, I urge, is that no duty of noninterference is imposed on others also in virtue of the latter person"s D.Q.t having any such right. That is to say, no duty whatever is imposed on others in either case, whether it be in virtue of haying or not having the right at (b). Since the presence of this feature may be detected for both a bearer and a nonbearer of the right at (b), it follows that its presence alone cannot be utilized as a basis for according status as a "permis sion" right, as this would require the absurdity of according such status to one who bears no right at all in this regard. 28 I would conclude, therefore, that efforts to strengthen Hobbes' argument for the death penalty by means of appeal to the notion of a "permission" right may well land those who are committed to this strategy on the horns of a dilemma. 28To be sure, it is sufficient reason for why a person has no claim against others not to interfere with that person's exercise of the right at (b) that that person has no such right to begin with!

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35 That is, either they will accept the accompaniment of one or more "claim" rights as the feature (or features) that certify the right at (b) as a "permission" right, in which case they must also accept the contradictory implications that follow for other features of Hobbes' system, as I have explained; m;: they must pin their hopes for qualification entirely on the defining feature of such a right, again, that of not having any basis for a noninterference claim against others, in which case they will be vulnerable to the criticism that nonbearers of the right at (b) qualify for "permission" right status just as readily as bearers, which is absurd, as I have also explained. Finally, I would just note that appeal to the notion of a "permission" right is no more compelling for the right at (a) than it is for the one at (b). I say this because the sovereign's right "to every thing" at (a), which is the foundation for his (or their) right to punish, finds its ultimate ground in the sovereign's~ right of self preservation (the ius naturalis) .29 What this means is that .QQ.th the sovereign and a person under sentence of death exercise the very same right (the jus naturalis) when the former attempts to kill the latter and the latter counters 29"For the subjects did not give the sovereign that right ['to every thing' with they possessed]; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all."
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with resistance.30 It would appear to follow, therefore, that the analysis I have given to show that the right at 36 (b) fails to qualify as a "permission" right would also apply to the right at (a). Perhaps the only challenge to this conclusion would be to insist upon "permission" right status for the right at (a) in connection with the authori zation given by Hobbes' contractors. That is to say, a feature of (a), in addition to and conjoined with the sovereign's right of self-preservation (the ius naturalis), is (in effect) the contractors' establishment of a "claim" right, on behalf of the sovereign and against all others (except for a person under threat of punishment), not to interfere with his (or their) right of self-preservation and, by extension of course, with his (or their) right to punish. The chief difficulty I have with use of this criterion (i.e., the accompaniment of a "claim" right) to qualify the right at (a) as a "permission" right is not that any conflict arises with the right at (b) which leads to impasse,31 but rather that the right at (b) fails of qualification altogether (having no "claim" rights to accompany it) and, of course, this provokes the more telling 30Cattaneo writes: "At the moment when the death penalty is inflicted, the rights of the sovereign and the subject are placed on the same plane, and there is a return to the state of nature, whereby at that moment the conflict between the sovereign and the subject takes on the character of a state of war." (op cit., p. 282). 31No impasse results~ because the sovereign's "claim" right of noninterference applies only to those who are D.Q.t. under threat of punishment.

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question of why one should qualify and the other fail of qualification when in fact they are both instances of the very same right. 37 Finally, notwithstanding all that I have said, advocates of Hobbes' system may nevertheless take some encouragement from my analysis up to this point. I say this because I have (in effect) argued that the instances of the ius naturalis at (a) and (b) are weaker (in a normative sense)32 than even a "permission" right (on the standard interpretation) and so would not seem likely candidates to generate any sort of conflict which could lead to theo retical impasse. But then, I will have more to say about this later. In the meanwhile what I have shown in this section is that the notion of a "permission" right (on the standard interpretation) is not a particularly useful concept in the service of those who seek to augment Hobbes' argument for the death penalty. 2.s.2 The Lifeboat Lottery Analogy Another attempt to augment Hobbes' analysis consists of an argument from analogy where Hobbesian contractors are compared to participants in a lifeboat lottery.33 Here, no 32Qne author even goes so far to conclude that Hobbes "deprives the notion of rights of virtually all its normative significance." (J. Finnis, Natural Law and Natural Rights, Oxford University Press, 1980, p. 208). 33Kavka urges that "it may be wrong ... for a partici pant in a lifeboat lottery to refuse to jump overboard once he has lost," (op. cit., p. 316); and later, analogizing on this scenario and others, concludes, "rational parties [in a state of nature] aware of all the relevant facts might well

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38 effort is made to provide a conceptual account of how the rights at (a) and (b) are inherently consistent (as before with appeal to the notion of a "permission" right); instead, the intent is to show that, as a practical matter, the best way of securing the conditions necessary for a contractor's (successful) exercise of the right at (b) is for that contractor to participate in the authorization agreement at (a) .34 The argument offered for this conclusion rests on an appeal to the desperate circumstances of lifeboat occupants who find themselves adrift at sea following a shipwreck. It is stipulated, on this account, that these occupants all agree that the sacrifice of one of them is essential to the survival of the rest. Moreover, they also agree unanimously upon a procedure for conducting a lottery to select the hapless person. Next, with regard to these circumstances, it is further understood that these occupants have arrived at this agreement in light of their observation that each person's overall prospects for survival would be worse under any other (available) course of action. Finally, the crucial step of the argument consists in urging that it would be comparably rational of Hobbesian contractors to incur the risk of death by execution in conjunction with the [prefer] the small risks of execution to the larger risks of a state of nature" (p. 328). 34Cf. Rousseau's claim, "Everyone has the right to risk his life in order to preserve it." (The Social Contract in The Essential Rousseau. Lowell Bair, trans., New American Library, 1974, p. 31.

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39 authorization agreement at (a), i.e., on the assumption that every contractor would have assessed his or her (overall) prospects for survival to be worse under any alternative to that agreement. 35 Now, a tempting response to this argument would be to ignore its analogical features altogether and instead chal lenge the assumption upon which Hobbesian contractors rely, viz., that their prospects for survival would be worse under any alternative to the authorization agreement at (a). Here, the point to be made is IlQ.t that they would fail to embrace this assumption, (indeed, they could hardly be expected to do otherwise on Hobbes' system),36 but rather that, ih doing so, they would be simply mistaken. i.e., with regard to (at least)~ sets of empirical circumstances. This response keys on the observation that not every pre political, social set of circumstances in which people either have found (or could find) themselves (what Hobbes calls a "state of nature") would be such that every person so situated would have worse prospects of survival than they would have if they embraced an autocratic government pursuant to the authorization agreement at (a) .37 Moreover, 35 Supra. n. 8. 36 Hobbes, Leviathan, op. cit., chs. 13 & 14. 37Historical examples of societies which have elected to remain in a "state of nature" include the Eskimos of the North American Arctic region, the Pygmy hunters who dwell in the rain forests of the interior of Zaire; the Ifugao who live on the island of Luzon in the Philippine chain; and the

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40 in those circumstances where~ fonn of government would have greater survival value than a prolongation of a "state of nature," it hardly follows that the sort of totalitarian regime Hobbes commends in Leviathan would be in all (or even most) of these instances that particular fonn of government which affords every person so situated his or her best prospects for survival. While these observations may well provide an imposing challenge for two of Hobbes' bedrock assumptions,38 still, they neither directly address nor bear on a question of the plausibility of the lifeboat lottery analogy. I say this because nothing in the lifeboat scenario excludes the possibility that occupants of this craft are themselves mistaken in their assessment that every alternative to a lottery would afford each of them worse prospects for survival. Moreover, I submit, no hann would be done to the analogy even if all the occupants of the craft were, say, oblivious to the availability of a far better alternative in comparison to a lottery. What matters most within the framework of a contractarian approach (i.e., insofar as the creation of an obligation is concerned) is not that the empirical assumptions upon which these occupants rely may be Land Dayaks of Sarawak in Borneo. For a detailed discussion of these societies, as well as others which are similarly disposed, see Alex Comfort, People Without Governments, Kahn & Averill with Cienfuegos Press, 1982, chs. III-VI. 38For a recent critique of these assumptions, see Vicente Medina, Social Contract Theories. Rowman & Littlefield, 1990, ch. 2.

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41 mistaken but rather that they have unanimously agreed upon a particular course of action which they have all embraced come what may. Later, when one of them is selected by lottery for sacrifice under this course of action, no objec tion could .thfill be raised either by or on behalf of the person so designated which would have any merit whatever within a contractarian framework, i e., so long as all the procedures followed adhered to the terms of their agreement. Similarly, insofar as only the analogy itself is considered, it makes no difference that Hobbesian contractors may be mistaken in what they have assumed about the "state of nature" and the necessity for a totalitarian regime. Here again, what matters within a contractarian framework (rela tive to the analogy) is that they have all embraced the authorization agreement at (a) come what may. Later, should one of them be condemned to death by the sovereign, no objection could then be raised on (strictly) contractarian grounds, i.e., again with the proviso that the agreement itself had been faithfully implemented. No discredit, therefore, redounds to the argument from analogy because of its failure to exclude the possibility of (empirical) error by those involved (whether they be lifeboat occupants, Hobbesian contractors, or both). Other considerations, then, will provide the basis for my criticism of this argument. Of these, none will figure more prominently in my analysis than a matter which has so

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42 far been taken for granted in my discussion, viz., that the lifeboat scenario relies on the circumstances of an actual agreement among the craft's occupants. Implicit in the scenario itself, the presence of this feature is otherwise suggested by the observation that no one would seriously propose that these occupants could be bound by the terms of some hypothetical agreement which, say, harkened back to the occasion of their having boarded an ocean liner at a time well before any mishap. Indeed, at that time, I submit, the most rational action which could be imputed to them would be for them to defer any decision about participation in a lottery until after a lifeboat scenario arises. Only then, I urge, would it make sense for any of these occupants to reach a decision about whether or not it would be in his or her overall best interest to convene a lottery.39 When this latter feature is considered in conjunction with the other, more explicit features which I introduced earlier, it becomes evident that the lifeboat scenario is one which relies for its plausibility on the circumstances of an actual agreement, unanimously embraced and developed in response to the exigencies of a particular empirical context. 39Moreover, even after they find themselves aboard a lifeboat, I submit, even people of equivalent rationality may arrive at different conclusions about a lottery based on attention to relevant, personal dissimilarities. For example, a young and healthy person who finds himself among others who are elderly and frail may be strongly inclined to reject the risk of a lottery while the others may be strongly disposed to accept it.

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43 Now, for the lifeboat scenario to have analogical value relative to the circumstances of Hobbesian contractors, I suggest, it must~ be the case that these contractors, too, have ..il given their actual consent to the authori zation agreement at (a), and moreover, have done so in response to the exigencies of a particular "state of nature." It will not do to argue from the rationality of the lifeboat occupants' embrace of an actual agreement to conduct a lottery (if .thfil can be supposed) .t,Q the ration ality of merely assuming that Hobbesian contractors would be bound by the terms of an agreement to which they have never actually committed themselves. While the plight of these occupants and contractors is similar (ex hypothesi, at least) in that they both face worse conditions in the absence of their respective agreements, still, this similarity alone cannot explain why a hypothetical agreement which is merely supposed to apply could bind a group of people who have in actuality made no such commitment. So, for the time being at least, I am prepared to concede a measure of plausibility to the argument from analogy, i.e., as long as the parallel between lifeboat occupants and Hobbesian contractors may be regarded as one where all the members of both groups embrace an actual agreement keyed on responses to their respective sets of (empirical) circumstances. But then, this is a concession I am prepared to make in fill case, as, even without the

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44 analogy, I see no basis for any (strictly) contractarian objection to a group of people getting together and all deciding to embrace the authorization agreement at (a), that is to say, under conditions whereby everyone knows about and accepts the included risk of death by execution.40 The argument from analogy, therefore, shows promise only if Hobbesian contractors may be assumed to have embraced an actual agreement at (a). In view of this, it becomes critically important to examine the relevant texts in Leviathan and to ascertain from these whether or not any support may be found for this assumption. Undoubtedly, Hobbes' most illuminating remarks, in this connection, appear in his chapter entitled, "Of the First and Second Natural Laws, and of Contracts," where he distinguishes two types of contract: one, "express," and the other, "by inference."41 Clearly, for Hobbes, the first of these is actual, as the contracting parties rely on "spoken words" for an exchange of "promises." Though he does not discuss written contracts here, I believe they, too, would merit classification as "express." It is the second type, of course, which is properly called "hypothetical." What makes use of this label appropriate is evident from Hobbes' description of the contract "by inference" as one which 40 Theoretical consistency requires this concession; for an explanation of the dearth of historical examples, see my mention of Filmer"s criticism, infra. p. 45f. 41 Hobbes, Leviathan. op. cit., ch. 14, p. 106.

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45 "sufficiently argues the will of the contractor," i.e., in the absence of any "express" sign.42 On the basis of this text, then, it would seem to follow that the authorization agreement at (a) may be construed either as an actual exchange of "spoken words" (or written assurances) QI: (hypothetically) as that which merely "argues the will" of those who have given no "express" (or actual) sign of their agreement. If the agreement at (a) is construed as an actual contract, then the argument from analogy is better served but Hobbes system as a whole becomes the target for a barrage of criticisms which have been around for two or three centuries. In this regard David Hume's eighteenth century essay, "Of the Original Contract," is worthy of special mention because of its influence and cogency.43 Essentially, what Hume contends is that no existing govern ment can be traced to an actual contract, and moreover, even if one could be, there would still remain the difficulty of accounting for the basis on which subsequent generations and immigrants would be bound.44 In another vein, a seventeenth century critic, Sir Robert Filmer, argues that it is simply unrealistic to suppose that the occupants of some territory 421.QiQ. 43 In Social Contract. Sir Ernest Barker, ed., Oxford University Press, 1962, pp. 147-166. 44.llu.g., pp 149ff.

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46 would in fact all get together and agree to a social con tract.45 Because of criticisms such as these, those who would defend Hobbes' system today are much more likely to construe the authorization agreement at {a) as a contract of the hypothetical, rather than actual, variety.46 Further more, entirely apart from these criticisms, the text of Leviathan appears to support what is essentially a hypotheti cal construal, anyway. An important passage, in this regard, appears in chapter seventeen, where Hobbes identi fies two, equally legitimate ways in which a commonwealth can emerge. One of these, he calls a "commonwealth by institution"; the other, a "commonwealth by acquisition."47 Under the former way, people "choose their own sovereign," albeit "for fear of one another" in a "state of nature."48 Here, I suppose, Hobbes would grant that the contract may be either actual or hypothetical. By contrast, under the latter way, "sovereign power is acquired by force," whereby authorization occurs, it would seem, IlQ.t. in virtue of any actual consent of the people qua contractors, but instead, de facto, as a consequence of their acquiescence to sovereign rule from "fear of death, or bonds" qua citizens 45See Lessnoff, op. cit., p. 85. 46 See, e.g., Medina, op. cit., p. 137; and Kavka, .QtL.. _cit., p. 182. 47 Hobbes, Leviathan, op cit., ch. 17, p. 133. 48.l.Qig., ch. 20, p. 151.

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47 who have been subdued or conquered.49 Notwithstanding this, I suppose, their collective acts of acquiescence could be construed as a token of an actual (but implicit) agreement, on their part, to "embrace" their circumstances of subjuga tion. Yet, this seems an improbable interpretation: what is, after all, the point of agreeing to "embrace" circum stances which have already been imposed? It would appear, therefore, that the authorization agreement at (a), i.e., with regard to a commonwealth by acquisition, could be much more plausibly construed as having a hypothetical character or, in Hobbes' own words, as that which "sufficiently argues the will" of those who have been subdued or conquered. so Now since, as one author wryly observes, "a sovereign by institu tion, whatever his rights may be by the act of institution, will always be able to convert himself into a sovereign by acquisition, with unlimited right,"51 and further, since Hobbes himself acknowledges in chapter twenty, that "the rights and consequences of sovereignty, are the same in both 49.I.b.ig. so~., ch. 14, p. 106. That is, hypothetically, if Hobbes' citizens~ confronted with a choice of whether to continue in a "state of nature" or to accept sovereign rule under conditions where they had been subdued or conquered, they would all agree to the latter; however, in actuality they have no choice in the matter since sovereign rule over them will be established in .any case. 51 David Gauthier, The Logic of Leyiathan. Clarendon Press, 1969, p. 137.

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48 [types of commonwealth], 11 52 it would appear to follow that Hobbes' theory ultimately rests on a characterization of the authorization at (a) as the product of a hypothetical, rather than actual, agreement. Of course, if I am right about this, then the argument from analogy misses the mark, because, as I have explained already, it will not do at all to argue from the rationality of an actual agreement (aboard a lifeboat) to a rationality which merely assumes of Hobbesian contractors a willingness to embrace an agreement at (a), and further, does so in the absence of any actual commitment from them. But even if I am wrong about this, and the most fundamental interpretation of Hobbes' theory requires a characterization of the agreement at (a) as an actual contract, then, as I have already explained, while the analogy itself fares better, Hobbes' system as a whole would be vulnerable to the criticism of Hume, Filmer, and many others 53 Yet another area of difficulty for the argument from analogy may be suggested. Here, I appeal to the observation that Hobbesian contractors do not know nearly so much as lifeboat occupants do about the risks assumed subsequent to their respective agreements. Indeed, under a hypothetical construal of the agreement at (a), .all that can be imputed to Hobbesian contractors would be a willingness to assume a 52 Hobbes, Leviathan, op, cit., p. 151. 53For the others, see J. w. Gough, The Social Contract, Greenwood Press, 1978, ch. XII, passim.

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49 particular~ of risk, viz., death by execution. From this imputation, however, no inference can be drawn regard ing the knowledge these contractors would have about the odds on one of them actually being put to death in a particular (empirical) context. Instead, the rational basis for their agreement would presumably key on their commitment to an entire range of empirical possibilities. Moreover, the range would be so wide, I suggest, that it would include everything from the circumstances of a benign dictatorship where, say, the death penalty is either seldom or never employed, to a Caligula-like reign of terror where the slightest whim of the sovereign may mean certain death even for innocent subjects. Now, to be sure, what knowledge may be attributed to Hobbesian contractors is more substantial with a shift from a hypothetical to an actual construal of the agreement at (a). That is to say, if the agreement may be taken as actual, then it would be plausible to think of these contractors as knowing something (in advance) about the person (or persons) whom they intend to elevate to a position of sovereignty, as well as something about other relevant features in the empirical context. Even so, I hasten to add, any very precise calculation of the odds on being put to death would still be rather difficult for them to achieve. I say this because any calculation of this sort would be tantamount to an attempt by them to predict the

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50 behavior of the sovereign once a virtual monopoly on the use of power had been granted. Here, I need hardly draw upon a wealth of examples from the history of the world to inspire an appreciation for how unreliable calculations of this sort can be! In marked contrast, however, with either of these construals of the agreement at (a), occupants aboard the lifeboat may be thought to know rather precisely the odds on any one of them being sacrificed pursuant to a lottery. For example, if there are seven passengers on the craft, and they all agree that each of them will have an equal chance of being selected, and further, to this end they all embrace procedures which are fair and reliable, then each passenger would be in a position of knowing rather exactly his or her own odds on being sacrificed (viz., one in seven). Now, for lifeboat occupants and Hobbesian contractors alike, I submit, part of what commends risk-taking as a rational enterprise may be expressed in terms of what these people actually know about the odds on being put to death under their respective agreements. If I am right about this, there should be a wide gulf in the degree of rationality which may be properly assigned the decision of Hobbesian contractors to embrace the agreement at (a) in comparison to that assigned the decision of lifeboat occupants to conduct a lottery. Moreover, it would follow from this that the highly equivocal sort of commitment to risk in which Hobbesian contractors engage could not be

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51 cogently defended by analogy to the very concrete, almost mathematically precise sort of risk-taking reflected in the decision of the lifeboat occupants. Finally, there is another difficulty which should be mentioned. Even if the argument from analogy were not subject to any of the objections I have raised, still, merely showing that the risk of death (by execution) associ ated with the agreement at (a) is a risk worth taking, (i.e., because Hobbesian contractors are thereby afforded the best chance they will have for the successful exercise of their rights at (b)), will do nothing whatever to reverse a lack of cotenability regarding (a) and (bl, i.e., if such a lack can be otherwise shown to obtain as a result of Hobbes' defense of the death penalty.54 That is to say, the argument from analogy proves helpful to Hobbes's theory only if my earlier objections fail and the cotenability of (a) and (b) cannot be successfully challenged. In this latter connection, of course, the argument itself cannot be used as a means of defending against any charge of a lack of cotenability. 2.5.3 Gauthier's Amendment I will now consider an amendment to Hobbes' system which David Gauthier proposes in his book, The Logic of Leyiathan.ss This amendment is introduced as a replacement 54Qn this, see my discussion of two counterarguments to Hobbes' analysis, infra, 2.6. ss0p, cit., pp. 148f.

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52 for, rather than an augmentation of, Hobbes' analysis of punishment (generally) and the death penalty (specifically). In effect, what Gauthier argues is that the system of Leviathan arrives at impasse if Hobbes' analysis is allowed to stand. As a remedy for this, he introduces and defends a modified version of the authorization agreement at (a). In what follows I will provide an account of~ Gauthier believes Hobbes' analysis leads to impasse, and then I will describe and comment upon the particular amendment he proposes as a solution for this difficulty.56 For Gauthier, the problem with Hobbes' analysis stems from the latter's claim that every contractor may be regarded as an "author of his own punishment."57 For his criticism, Gauthier relies on a distinction which Hobbes himself draws between a "natural" person and an "artificial" person. An individual functions in the capacity of a "natural" person, on Hobbes' account, whenever that indi vidual's "words or actions are considered ... as his own." By contrast, an individual whose "words or actions are considered ... as representing the words or actions of another man" assumes the role of an "artificial" person. "Of persons artificial, some have their words and actions 56Gauthier"s book reflects an attempt to retain the formal structure of Leviathan. while selectively rejecting, and then replacing, certain of Hobbes' assumptions. The amendment with which I am presently concerned represents only one of several moves by Gauthier to revamp parts of Hobbes' system. 57 see supra, n. 11.

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53 owned by those they represent," Hobbes continues, "and then the person is the actor: and he that owneth his words and actions, is the AUTHOR: in which case the actor acteth by authority."58 Now, Gauthier takes Hobbes to task, not for drawing this distinction, but for failing to recognize its debilitating consequences for his system. Nowhere are these consequences more easily discerned than in the context of Hobbes' remarks on punishment in general and the death penalty in particular. Yet, before I discuss the relevant texts in this regard, preliminary attention to Hobbes' account of the authorization agreement at {a) may prove helpful. He writes: "The consent of a subject to sovereign power ... is contained in these words, I authorize, or take upon me, all his actions: in which there is no restriction at all, of his own former liberty."59 I find this passage useful in introducing Gauthier's criticism because the sovereign is here cast in QQ.th of the roles which Hobbes distinguishes. At this text, of course, it is easy to see that Hobbes features the sovereign in the role of an "artificial" person, or as one with respect to whom every contractor "authorizes," or "takes upon" himself or herself, "all his actions." Yet, this is only to recognize that, while the sovereign is the actor in all he does, every contractor is the author, or owner, of all those actions. 58 Leviathan. op. cit., ch. 16, p. 125 {emphasis Hobbes'). 59.I.lll,Q., ch. 21, p. 164 {emphasis Hobbes').

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54 But now, this emphasis, although primary, is not exclusive; for, at this~ text, Hobbes also appears to cast the sovereign in (at least) the subsidiary role of a "natural" person. This is suggested by his depiction of the sovereign as one whose (unrestricted) actions are explained by appeal to "his own former natural liberty." So depicted, of course, the sovereign would be regarded as }2Qth actor and author (or owner) of what he does. At other texts, where Hobbes discusses either punishment or the death penalty, the sovereign is presented in one or the other (but not both) of these roles. In chapter 28 of Leviathan. Hobbes asserts: It is manifest ... that the right which the commonwealth, that is, he, or they that represent it, hath to punish, is not grounded on any concession, or gift [or perhaps authorization?) of the subject. 60 Instead. Hobbes explains, the ground for the "right of punishing" is the sovereign's~ natural right "to every thing" (the ius naturalis). [B)efore the institution of commonwealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of punishing, which is exercised in every commonwealth. For the subjects did not give the sovereign that right; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all. 61 60.I.bi.d. p. 229. 61.I.Qid.

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55 After this, Hobbes discusses the wide variety of crimes to which the sovereign's "right of punishing" (so construed) applies, including capital crirnes.62 Clearly, then, in these passages I have cited or noted from chapter 28, it is appar ent that, whenever the sovereign exercises his "right of punishing," he does so in his capacity as a "natural" person and, as such, he is l2Q.th actor and author regarding his actions. In an earlier chapter of Leviathan. however, Hobbes leaves quite a different impression of the basis for the "right of punishing." Here, his initial comments are made with reference to a particular sort of crime, viz., the attempt of a subject "to depose his sovereign." [I]f he that attempteth to depose his sovereign, be killed, or punished by him for such attempt, he is the author of his own punishment, as being by the institution [of a commonwealth], author of all his sovereign shall do.63 Within this context, the ground for the "right of punishing" is evidently linked to every contractor's participation in the authorization agreement at (a), and so the sovereign functions, not as a "natural" person, but as an "artificial" person who is the actor, though nQ.t the author, of any punishments he may impose on his subjects. A few pages later, in a more general vein, Hobbes makes essentially the same point when he remarks, "[B]y this institution of a 62.D;u.g., ch. 28, p. 232. 63.1.Q.ig., ch. 18, pp. 134f.

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commonwealth, every particular man is author of all the sovereign doth." From this, Hobbes draws the amusing, though impeccable conclusion, "[H]e that complaineth of injury from his sovereign complaineth of that whereof he himself is author. 11 64 56 Now, Gauthier's criticism of Hobbes is not that the latter provides two, very different accounts of the theo retical foundation for the "right of punishing" nor even that the sovereign is cast in two, very different roles as a result of these distinctive accounts. These observations alone would hardly inspire criticism, for, disparate as Hobbes' two accounts may be, nothing in what he has to say about punishment (per se) precludes the possibility of two, very different, but entirely compatible theoretical deriva tions for the "right of punishing." Nor is there any reason to suppose that the sovereign cannot alternately assume the roles of a "natural" and an "artificial" person, or even both of these roles, simultaneously.65 Instead of this, the criticism of Hobbes Gauthier advances is that the sover eign's role as an "artificial" person, i.e., apropos of the "right of punishing," requires a construal of the authori zation agreement at (a) which is incompatible with the affirmation of every contractor's inalienable right of self preservation at (b). In other words, the claims at (a) and 64Th~,.:;i 136 p . 65In fact, the assumption of ]2Qtil roles will be an essential feature of Gauthier's amendment (infra. p. 61).

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57 (b) are not cotenable, on Gauthier's view, insofar as (a) requires the sovereign, whenever he punishes, to act in the capacity of an 10 artificial" person. The basis for this assessment may be easily grasped, as Hobbes is adamant in what he has to say about the right at (b). In chapter 14 of Leviathan. he writes, "[A] man is forbidden to do that, which is destructive to his life, or taketh away the means of preserving the same,"66 and later in the same chapter, [A] man cannot lay down the right of resisting them, that assault him by force, to take away his life; because he cannot be understood to aim thereby, at any good to himself. The same may be said of wounds, and chains, and imprisonment;67 and much later, in another chapter, he writes: [N]o man is supposed bound by covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person.GB It follows from these texts and others, on Gauthier's account, that insofar as the sovereign is cast in the role of an "artificial" person, Hobbes' commitrnentto (b) is inimical to his commitment at (a), pursuant to which he claims that every contractor is "an author of his own punishment." To be sure, of course, an account of the "right of punishing" in a commonwealth may~ be provided by appeal to what the sovereign may do in his role as a 66Hobbes, op. cit., p. 103 67.1.Qig., p. 105. 68T'\-,.~ ~-, ch. 2 8 p 2 2 9

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"natural" person; and, as I have already stated, nothing precludes his functioning simultaneously in the capacities of both a "natural" and an "artificial" person. Indeed, later, when I present Gauthier's amendment to Hobbes' 58 theory, I will report that his innovation in fact takes for granted that the sovereign would be cast in both roles at one time. Yet, however this may be, what matters presently for Gauthier's criticism of Hobbes is the idea--inescapable in Leviathan--that regardless of any additional roles the sovereign may assume, clearly, pursuant to the authorization agreement at (a), he always functions as a "artificial" person vis-a-vis his subjects, because, in Hobbes' own words, "every particular man is author of ill. the sovereign doth."69 The upshot of this is that Hobbes' commitments at (a) and (b) taken together, on Gauthier's view, both require and prohibit a contractor's authorization of his or her own punishment.70 Moreover, since Hobbes is, evidently, as 691hl.g., ch. 18, p. 136 (emphasis added). 7 D"Reguire" is easier to show than "prohibit." In his rejection of Hobbes' analysis, Gauthier assumes that a relationship exists between every contractor's inalienable right of self-preservation (the jus naturalis) and certain passages of Hobbes which suggest constraints apply to what contractors either can or may do. These passages would include those which I cited earlier, i.e., specifically, those where Hobbes affirms, "[A] man is forbidden to do that, which is destructive of his life, or taketh away the means of preserving the same"; and where he insists, "[I)t cannot be intended [by the covenant] that ... [anyone] gave any right to another to lay violent hands upon his person" (supra, pp. 57). What Gauthier assumes, and, I believe, rightly so, is that the constraints imposed by these passages receive their impetus, in some fashion, from the operation of the right at (b). Yet, in the context of

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59 intractable in his commitment to the sovereign"s role as an "artificial" person under (a) as he is to every contractor's right of self-preservation at (b), and further, since these commitments would appear difficult to reconcile in their implications for his defense of punishment (generally) and the death penalty (specifically), Gauthier concludes that Hobbes' system arrives at impasse. In light of this conclu sion, and since Gauthier, in any case, wishes to retain the "right of punishing" for the sovereign (including the right to employ the death penalty), he is confronted with an obvi ous choice of strategies for his attempt to amend Hobbes' theory. That is to say, he must either choose to weaken the claim at (a), or the one at (b), or both. As it happens, Gauthier elects to tinker only with the claim at (a). In what follows I will present the amendment which arises from his implementation of this strategy; and I will urge that, if his criticism of Hobbes may be allowed to stand, then his proposal will prove vulnerable: and this because, as I will show, the general drift of his attack on Hobbes may be turned against his own amendment. his attack on Hobbes' analysis of punishment (generally) and the death penalty (specifically), what is Ilfil so clear in Gauthier"s account is the exact mechanism by which these constraints operate in virtue of the ius naturalis. In the concluding section of this chapter (2.6.2), I will have something more to say about this.

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60 Because Gauthier regards the authorization agreement at (a) as an essential feature of Hobbes' system, 7 1 it is not at all surprising to find that, in his attempt to accommodate Hobbes' defense of the "right of punishing," he adopts the goal of doing as little damage as possible to the claim at (a). Moreover, since there is no way of escaping the idea that the sovereign functions in (at least) the role of an "artificial" person under the agreement at (a), i.e., because, in Hobbes' own words, "[N)o man is obliged by a covenant, whereof he is not author,"72 it follows that Gauthier must find a clever means of embracing this idea generally, while nevertheless rejecting its specific applicability for contractors whom the sovereign threatens with punishment. It is therefore, in pursuit of this ostensibly elusive objective, that Gauthier proposes the following account as an amendment to Hobbes' theory: The right to punish may ... easily be explained. 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.73 7 1The stated objective for chapter four of Gauthier book is "to set out the structure of Hobbes's mature political theory in a manner which will show the essential role played by authorization" (op. cit., p. 121). 72 0p, cit., ch. 16, p. 126. 7 30p, cit., p. 148.

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61 Gauthier acknowledges that his proposal would "mean that each subject is not author of everything the sovereign does," and so, on this interpretation, "the right to punish is subtly different from all other rights of the sovereign, in that the sovereign in each act of punishing is not exercising a right given him by all his subjects." 7 4 He believes, however, that an alternative defense of the "right of punishing" may be invoked (when necessary) by appeal to the sovereign's exercise of his right "to every thing" in his capacity as a "natural" person. What this means is that, whenever the sovereign threatens a contractor with punishment, he does so in the primary role of an "artifi cial" person insofar as all other contractors are concerned, but then, simultaneously, he functions .on..J.y in the role of a "natural" person regarding the one whom he threatens. Finally, Gauthier admits that his amendment "does require a complication in Hobbes' theory of authorization," but then he adds, "[I]t is a complication which preserves the essen tial character of that theory, and so we may allow it."75 Gauthier's amendment gives rise to some unanswered questions. Not the least of these is a general question which may also be asked of Hobbes: What, exactly, confers (political) legitimacy upon .any action by the sovereign? Or, more specifically put, Does every action by the 74I.bi.g. 75.Ihl,Q.

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62 sovereign require every contractor's "authorization" in order to be accorded status as a legitimate action on Hobbes' system? Or does it suffice to defend the legitimacy of some, or perhaps all, of the sovereign's actions solely by appeal to his own right "to every thing" (the~ naturalis)? Or lastly, are there any circumstances under which these two distinctive avenues of appeal may be indi vidually necessary, but only jointly sufficient, for the purpose of conferring legitimacy upon a particular action by the sovereign? While these questions are not specifically addressed in Leviathan. it may be possible to provide some indication of how Hobbes would respond. My clearest impres sion is that he would not be likely to retreat from the position, reflected at certain texts,76 that all the sover eign's actions may be defended solely on the basis of appeal to his own natural right "to every thing."77 But now, if this is so, it invites the question of whether or not the agreement at (a) functions at all as a ground of legitimacy for Hobbes' system? If the answer is "yes," it would appear that his system has been overdetermined insofar as such a ground is concerned and, indeed, may even reflect an unnecessary redundancy in this regard. Of course, if the answer is "no," then an even more difficult question arises 7 6In Hobbes' system, the sovereign "cannot be accused by any of his subjects of injury" (op. cit., ch. 20, p. 151); similarly, "whatsoever he doth, it can be no injury to any of his subjects" (.ihl,d., ch. 18, p. 136). 77Spra, p. 35.

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63 of why both Hobbes and Gauthier assign so prominent a posi tion, in their respective analyses, to the authorization agreement at (a}. My own view of the agreement at (a), which runs counter to Gauthier's interpretation, is that it serves~ the practical purpose in Hobbes' system of generating a monopoly on the use of power.78 Yet, perhaps this is no small contribution to his system, for it is precisely the collective impact of every contractor"s authorization of the sovereign which ensures that his exercise of his natural right "to every thing" will be effective, in addition to being, on its own merits, legitimate. Still, nothing of what follows in my assessment of Gauthier's amendment will depend on my being correct in my conjecture about how Hobbes would respond to the ques tions I have raised. What may prove helpful, however, is that I have utilized this occasion to introduce the various ways in which Hobbes' system may be thought to ground its claim to legitimacy. Perhaps the most plausible interpretation of Gauthier"s amendment is that he requires that the sovereign's natural right "to every thing" operates as a ground for the legi timacy of his action in threatening a contractor with punishment, i.e., insofar as that particular contractor is concerned; but that, insofar as all other contractors are 7BFor a view similar to my own, cf. Jean Hampton, Hobbes and the social Contract Tradition, Cambridge University Press, 1986, ch. 5.

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64 concerned, the authorization agreement at (a) is the appro priate ground.79 This interpretation, however, would seem to pose more questions than it answers. In particular, it poses but does not answer a question of why, if the agree ment at (a) i. a ground for everyone with regard to some of the sovereign's actions, then, does it not provide a ground for everyone with regard to~ of his actions. Indeed, what seems so attractive about Hobbes' original analysis, I suggest, is that every contractor gives his or her consent for lil of the sovereign's actions. Now, what Gauthier"s amendment does is to introduce a modification of Hobbes' theory under which the latter"s commitment to a theoretical foundation of consent and authorization is withdrawn in those cases (and .Qnly those cases) where a particular con tractor is threatened with punishment by the sovereign (and then Qill,y with regard to that particular contractor). Yet, I wonder, under Gauthier's amendment, what motivation any of Hobbes' contractors would have, given that they ordinarily value their acts of consent and authorization so highly on 7 9For the former ground, Gauthier writes: "[I]n punish ing, the sovereign is no longer acting as the representative of the person punished, and so ... he is placing himself in the position of an enemy with respect to that person"; and, of course, just prior to this, Gauthier emphasizes: "[I]n the state of nature ... every man has the right to kill, injure, or subdue others" (op. cit., p. 184; cf. Cattaneo"s observation, supra. n. 30). For the latter ground, once again I quote Gauthier"s innovative move: "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" (loc. cit.).

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65 Gauthier's construal, for excepting those instances which threaten them with the greatest possible encroachment upon their personal liberties (as with imprisonment) and even perhaps upon their very lives (as with capital punishment). It seems to me, then, if any value at all is to be placed on having a foundation of consent and authorization for Hobbes' theory, these commitments would most certainly include those areas where the personal liberties and even the lives of contractors may be so profoundly compromised. Of course, Gauthier's reaction to my analysis would be to insist that his amendment is necessary if Hobbes' theory is to avoid impasse.so In reply to this, I can only say that, if Gauthier is to be permitted to cast aside selectively what he himself regards as an essential feature of Hobbes' theory,Bl and moreover, to do so only at that place where its applicability would appear to have its greatest plausibility and justification, and further still, to do so .Qilly for the purpose of repairing Hobbes' theory, then I, for one, cannot see that the theory of Leyiathan fares any better under Gauthier's amendment that it does on Hobbes' original analysis. Yet another criticism of Gauthier's amendment should be briefly mentioned, and this one takes account of the full range of possibility with regard to how the ground of BOindeed, this is the~ argument he gives on behalf of this amendment! aisupra. n. 71.

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66 legitimacy may be construed on Hobbes' system. In particu lar, this criticism should be effective against .fil1Y interpre tation of Hobbes' theory which attempts to show that no authorizing function may be imputed to Hobbesian contractors who are threatened with punishment by the sovereign; and so, no conflict between (a) and (b) arises on this basis.B2 My essential point, then, is this: Even if a contractor does not "authorize" his or her own punishment in the narrow sense of granting legitimacy to the sovereign's threats in this respect, still, in a broader sense, every contractor (without exception) "authorizes," pursuant to the agreement at (a), the very conditions which make it possible for the sovereign to threaten whomever he pleases with punishment, and moreover, for him to do so with an awesome efficiency which practically ensures the outcome. My point, then, is here largely an epistemological one. Hobbesian contractors are not fools and so they can plainly see that the sovereign is just about as powerful with Gauthier"s amendment as he is under Hobbes' original analysis. Moreover, it follows from this that "authorization," broadly conceived, runs as easily afoul of Hobbes' commitment at (b) as does the narrower conception on Hobbes' own analysis; hence, i.f the system of Leviathan arrives at impasse on Hobbes' original analysis, as Gauthier purports, then it would appear to do so just as readily on the amendment Gauthier proposes. B2For an example of this general line of interpretation, see Hampton, loc. cit.

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67 2.6 A Rejection of Hobbes' Analysis To this point I have examined three attempts to augment or amend Hobbes' analysis and I have explained why they have been unsuccessful, i.e., insofar as they purport to show how use of the death penalty can be reconciled with Hobbes' claims at (a) and (b). While the appeal to Hohfeld's distinction (2.4.1) merits attention for the (limited) purpose of showing that the right of self-preservation (Hobbes' just naturalis) cannot be an instance of a "claim" right, still, all this reveals is that the interests of those who bear this right may be radically opposed (illustrated, e.g., by the conflict between a person condemned to death and his or her executioner) and yet nQ.t. be the basis of any theoretical impasse. This would be a commendable use of Hohfeld's distinction except for the impression it leaves that the specter of impasse may be retired altogether by this revelation. In point of fact, however, a much more adequate basis for a challenge to the integrity of Hobbes' system emerges in connection with an entirely different sort of conflict, as Gauthier rightly observes (2.5.3), and as I myself have characterized in my earlier discussion (2.4). I refer, of course, to the tension between every contractor's inalienable right of self-preservation, affirmed at (b), and the act of authorization, affirmed at (a), by which every contractor incurs the risk (at least) of being condemned to death and

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68 executed. Any threat to the integrity of Hobbes' system, I suggest, arises as a consequence of this conflict, rather than the one which Hohfeld's distinction is supposed to retire. Problems of a different sort arise in connection with the lifeboat lottery analogy, many of which I have discussed at length already (2.4.2). One point I have not touched upon, however, is that this analogy may be very plausibly viewed as imposing (almost surreptitiously) a relaxation of the inalienability feature of the right affinned at (b). That is, (in effect) it may be construed as urging that every contractor's right of self-preservation be partially alienated so that use of the death penalty may be allowed and everyone"s (overall) prospects for survival thereby improved. If this analysis is correct, then, the lifeboat lottery analogy "resolves" the tension in Hobbes' system by amendment, albeit, by amendment in the guise of an augmentation; and so, Hobbes' own analysis stands corrected. Of course, I have~ taken pains to show that the analogy itself fails on its own merits (i.e., apropos of a hypo thetical contract), and my assessment, in .t:.hll_ regard, may be evaluated independently of whether or not Hobbes' system has been amended in the way I have suggested. Finally, I have examined Gauthier's critique of Hobbes' analysis, which, I believe, correctly identifies the source of tension. in Hobbes' system (2.4.3). Also, I have

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69 discussed the manner in which Gauthier expressly amends Hobbes' analysis by tinkering with the authorization agreement at (a). Here my conclusion has been that the tension in Hobbes' system is not alleviated by his tinkering since the critique Gauthier offers may be effectively turned against his own amendment. In what remains of this chapter, I will examine two other critiques of Hobbes' analysis, both of which purport to raise serious doubts about the reconcil ability of (a) and (b) with any defense of the death penalty based on his theory. 2.6.1 Inference from Contractors' Psychological Incapacity In a recent issue of the History of Philosophy Quarterly, David Heyd presents the first of two critiques I will examine.83 In this journal Heyd describes his purpose as one of exposing "an inner inconsistency in Hobbes' justi ficatory argument" for the death penalty.84 To achieve this objective, he introduces a counterargument which may be given the following characterization: (i) In a civil society each of Hobbes' contractors would be psychologically incapable of failing to resist any attempt by the state to put him or her to death; as 83 0p. cit. I PP 119-134. 84Thi.,Q., p. 120. BS"The general vein of Hobbes's argument is typically naturalistic. It relies on the psychological impossibility that one should willingly subject oneself to acts of violence, even where these are "normatively" justified, as typically in the case of capital punishment" (.il2.i.,Q.).

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(ii) At the time of their initial agreement (i.e., the social contract), each of Hobbes' contractors would know that (i) is true;B6 (iii) In light of (i) and (ii), it would be irrational for any contractor to strike an agreement exposing him or her to the tik of being put to death by the state;B7 (iv) At the time of their initial agreement, Hobbes' contractors would not do that which they know to be irrational for them to do; (v) Hence, no contractor would strike an agreement exposing him or her to the risk of being put to death by the state. 70 There is, of course, a textual basis in Leviathan for what Heyd attributes to Hobbes at (i). That is to say, Hobbes~ appear to embrace the view that "man by nature" will always offer resistance to being put to death.BB Heyd's interpretation, in this regard, finds support in Hobbes' remark that a man cannot covenant not to resist death because "man by nature chooseth the lesser evil, which is danger of death in resisting; rather than the greater, which B6"[T]he real question is whether it would be rational on their part to give their consent to . laws [establishing capital punishment] in the first place, knowing in advance that they will have a reason (or rather an irresistible cause) to violate the law" (i.big., p. 123, emphasis Heyd's). B 7 Infra. p. 72. BB"[A] man is forbidden [in a psychological sense, on Heyd's account] to do that, which is destructive of his life, or taketh away the means of preserving the same; and to omit that, by which he thinketh it may be best preserved"
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71 is certain and present death in not resisting."89 For this reason, Hobbes continues, criminals are led to execution by "armed men, notwithstanding that such criminals have con sented to the law, by which they are condernned."90 In a later chapter Hobbes writes: If a man, by the terror of present death, be compelled to do a fact against the law [e.g., resist his executioner], he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory; yet a man would reason thus, If I do not, r die presently; if r do it, r die afterwards; therefore by doing it. there is time of life gained; nature therefore compels him to the fact. 91 Here, I think, Heyd quite plausibly construes a criminal's compulsion (by nature) to resist being put to death as the equivalent of a psychological incapacity not to resist; and so, accordingly, I have adopted at (i) this manner of charac terizing the claim he imputes to Hobbes. What I am not prepared to accept, however, is the claim itself. which may be easily refuted by counterexample Indeed, in another context, Heyd himself successfully refutes the claim at (i) upon citing the case of "a Socratic principled refusal to avoid execution. "92 What I find a little odd here is that he would take pains to refute a claim which he needs as a 89 Leviathan, op. cit., ch. 14, p. 110. 90~. 91.IQid., ch. 27, p. 223 (emphasis Hobbes'). 9 2 Heyd, op, cit., p. 122.

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72 premise for his counterargument against Hobbes. Still, perhaps this can be explained by supposing that the point of his attack on Hobbes is merely one of showing that the latter's defense of the death penalty fails even if (con trary to fact) (i) were true. As the claims at (ii) and (iv) are both credible as interpretations of the text of Leviathan and plausible on their own merits, I will concede them to Heyd without further comrnent.93 The chief difficulty I see with Heyd's counterargument relates to the inference from psychological incapacity at (iii). Here, Heyd's own words should be reported: he states, "[T]he fact that a penalty is psychologically impossible to endure entails that the individual [who knows this] cannot rationally agree to introduce it into the contract."94 It is with this (alleged) entailment that I have a problem. It would appear to me that Heyd is simply mistaken to infer any sort of "entailment" at (iii), whether it be of the logical or psychological variety. Any thought of a logical entailment, of course, may be dismissed upon 93Both rationality and a knowledge of one"s own limitations would seem reasonable imputations regarding Hobbes' contractors. 941..Qig., (emphasis added). It may well be that Heyd intends only to say here that Hobbes (and nQJ; Heyd himself) is committed to the entailment at (iii) and, therefore, the whole point of the inference in context would be to show that Hobbes'~ logic should lead him to reject the death penalty; yet, if this is so, why not simply a frontal attack on the inference itself, which, as I myself show in due course, can be undertaken successfully?

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73 even a cursory examination of the claims at (i) and (ii). In all probability, therefore, what Heyd intends to suggest at (iii) is an "entailment" of the psychological variety. But now, consider this: suppose I am standing on a railroad trestle with a fast train approaching and no way of avoiding certain death except by jumping into the lake below. Suppose, too, that I have enough time to make a rational decision about what to do. Under these circumstances, I suggest, I might very well be rationally disposed to make the jump even though the lake is populated with hungry alligators fillQ I cannot bear the thought of being torn to shreds by the menacing creatures who await my plunge. There is, after all, a chance--however remote--that I may survive the ordeal unscathed. In much the same vein, then, even though Hobbes' contractors may find it "psychologically impossible" for them to endure a death by execution (as Heyd contends), still, this incapacity, in and of itself, need hardly present any psychological impediment to their accepting the~ of being put to death in this fashion i.f they believe themselves to be otherwise doomed or at least otherwise seriously compromised insofar as their (overall) prospects for survival are concerned.95 While I am prepared to concede that there may be~ people who may be inclined to reject any risk of being executed even though they 95But see my rebuttal to Samuel J.M. Donnelly's imperilment of liberty argument, infra. 6.3.

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74 otherwise face certain death from other causes,96 I know of no empirical studies which show this to be true of all human beings or even most of them. Accordingly, I am equally unaware of any psychological law or principle to which Heyd could appeal in defense of his inference at (iii); moreover, since his claims at (i) and (ii) cannot by themselves provide adequate support for any sort of psychological "entailment" at (iii), his conclusion at (v) must be rejected. Heyd's critique fails, but there is a silver lining. His attack may be applauded. I submit, insofar as he explores a question of whether it would be rational of Hobbes' contractors to expose themselves to the risk of being put to death by the state. Ultimately, what Heyd tries to show is that, because of certain psychological impediments, Hobbes' contractors cannot be rationally disposed to authorize a permission for a (derivative) society to employ the death penalty pursuant to their agreement at (a). That he fails in this endeavor has been demonstrated by the ease with some of the premises he requires may be challenged. Yet, there is a more promising way of exploring the question of the rationality of the death penalty in this context. An alternative approach 96In later chapters I move beyond mere concession and in fact seek to establish a rational basis for this point of view, that is, of course, with regard to the circumstances of a hypothetical contract; on this, see infra, 5.3.3, 6.3, and 7.3.

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75 would be to rely on a much weaker initial premise than does Heyd. What I would suggest, in this regard, would be to assert merely that it cannot be excluded, on Hobbes' theory, that at least~ of his contractors would have a rational basis for rejecting the death penalty. ll this weaker premise could be sustained, of course, then it would follow that no unanimous decision to authorize a permission for a (derivative) society to employ the death penalty could be safely imputed to Hobbes' contractors as a feature of their agreement at (a). In later chapters, I do in fact attempt to establish this weaker premise, both for the purpose of criticizing another theory (7.3) and with the aim of achieving a general conclusion (8.2). For now, I would simply note that if I am successful with those efforts, my results there could~ be usefully applied as a challenge to the cogency of Hobbes' defense of the death penalty. 2.6.2 A Reductio Ad Absurdurn on Hobbes' Analysis In this final section I will present what I consider to be a telling argument against Hobbes' defense of capital punishment. In the course of this presentation I will introduce analysis of my own to show that Hobbes allows that the authorization agreement at (a) would be effectively dissolved for any contractor upon whom the death sentence is pronounced. An important consequence of this dissolution, I will argue, is that any use of the "death penalty" would in fact be extraneous to the set of permissible actions

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76 authorized by the agreement at (a}. In other words, on this account, no contractor of Hobbes can be supposed to have agreed, in agreeing to (a}, that (a} includes a permission for a (derivative} society to employ the death penalty. For the support of these contentions I will appeal to the text of Leviathan. Ultimately, my purpose will be to show that Hobbes' position on the death penalty is contradictory and, therefore, theoretically untenable. There can be no doubt, of course, that Hobbes under stands the authorization agreement at (a} to include a permission for a (derivative} society to employ the death penalty. In his own words, "it may, and doth often happen in commonwealths, that a subject may be put to death by the command of the sovereign power."97 In another context, he reports that "[condemned] criminals have consented to the law by which they are condemned; "98 and, in still another, he affirms that "consent of a subject to a sovereign power" implies a permission (from the subject's own perspective} for "him [i.e., the sovereign] to kill me."99 But now, Hobbes~ affirms in Leviathan that the agreement at (a} remains in effect for his contractors ,onl.Y as long as the sovereign provides them with protection. He writes: 97 Leviathan, op, cit., ch. 21, p. 161. 9B.llwi., ch. 14, p. 110. 991..big., ch. 21, p. 164 (emphasis Hobbes'}.

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The obligation of subjects to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no covenant be relinquished.100 77 The death sentence, for Hobbes, is a case in point, and this is for the obvious reason that the sovereign's protection of a contractor ceases whenever the former moves against the latter with a design to take his or her life. Moreover, with this cessation of protection, I submit, Hobbes evi dently intends that a dissolution of the agreement at (a) occurs insofar as the condemned person is concerned. So, for example, Hobbes can say, "If the sovereign command a man, though justly condemned, ... not to resist those who assault him, yet hath that man the liberty to disobey. 00 101 Several commentators have observed, correctly in my view, that the circumstances of a person under sentence of death in Hobbes' system are those of a person who has been returned to the "state of nature. 00 102 The importance of this observation, for my purposes, is that, ipso facto, any "death penalty" confrontations necessarily occur beyond the lQO~. I P 167 101.I..12.ig., p. 164. 102"The relation between the individual and the sover eign in the case of capital punishment is that characteriz ing the state of nature. The sovereign has a 'right' only in the sense of power (and the same applies to the indi vidual trying to escape the death sentence)" (Heyd,~ .c.i.t., p. 123); see also Cattaneo, supra, n. 30, and Gauthier, The Logic of Leviathan, op, cit., p. 148.

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78 purview of what is authorized by the condemned person at (a). In effect, then, Hobbes' sovereign first of all cancels the agreement between the person to be condemned and the rest of society, and then and .Qilly then moves to kill that person. From the perspective of the person to be condemned, therefore, the authorization agreement at (a) does not include any permission for a (derivative) society to employ the death penalty.103 It merely includes an implied permission for the sovereign to return a contractor to the "state of nature." So viewed, the sovereign's subsequent action in taking the life of the one who has been disfranchised in this way is hardly a "punishment" in any ordinary sense of the word, but is instead more like an act of war committed against an external enemy of the society.104 Indeed, Hobbes himself appears to make just this point when he writes, "Hurt to revolted subjects is done by right of 103This is the mechanism, implied by the authorization agreement at (a), by means of which Hobbes tries (unsuccess fully, as I will show) to make room for his commitment at (b); on this point, cf. my analysis of Gauthier's amendment, supra. pp. 58ff, and see especially n. 70. 104"[I]f a subject shall by fact, or word, wittingly, and deliberately deny the authority of the representative of the commonwealth, ... he may lawfully be made to suffer whatsoever the representative will. For in denying subjec tion, he denies such punishment as by the law hath been ordained; and therefore suffers as an enemy of the common wealth; that is according to the will of the representative. For the punishments set down in the law, are to subjects, not to enemies; such as are they, that having been by their own acts subjects, deliberately revolting, deny the sov ereign power" (Leviathan. op, cit., ch. 28, p. 231). Also, see Cattaneo's comment, supra, n. 30.

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79 war. not by way of punishment. 10 s But now, this is all from the perspective of the one who has been disfranchised. From the perspective of everyone else in society, the sovereign's action in taking the life of this person i.s. an action pur suant to the authorization agreement at (a). After all, killing an external enemy of society would seem to be one way in which the sovereign provides protection for these people. Yet, even from~ perspective, all that is author ized pursuant to (a) is the killing of an external enemy, not the punishing of a subject by taking his or her life. Again, in Hobbes' words, "[H]arm inflicted upon one that is a declared enemy falls not under the name of punishment. "106 Regardless of perspective, therefore, one very important and highly pertinent conclusion emerges: DQ permission is given by anyone pursuant to the agreement at (a) for a (deriva tive) society to employ the death penalty against one of its citizens. On my analysis, then, Hobbes' position on capital punishment in Leviathan is contradictory because he both expressly affirms g,nd denies by implication (as I have shown) that the agreement at (a) yields such a permission. Moreover, since a contradiction follows from the agreement at (a), by reductio (a) itself is untenable and therefore cannot be cotenable with (b). It strikes a telling blow at the very foundation of his theory, I would conclude, for lOSD2i.g. (emphasis Hobbes') 10 6 .I.b,iQ

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Hobbes to advance an affirmative argument for the death penalty in the manner he does.107 Evidently, then, no contractarian justification for the death penalty can be sustained, either by Hobbes' own analysis {as I have explained in this section), or by the efforts of others to augment or amend his theory {as I have explained in the previous section). What is left to be considered, there fore, in the chapters which remain, is whether or not the could be said for the other (major) theorists in the social contract tradition. 80 107As a practical matter, of course, Hobbes' contractors do knowingly (I would say) expose themselves to the risk of being put to death by the sovereign, since he is evidently authorized by them to return any one of them to a "state of nature" and there to do with them "whatsoever he will." A question which merits asking, then, is~ any fully rational contractor would ever participate in an agreement where the terms are subject to dissolution at the whim of another person, and moreover, are so under circumstances where so great an imbalance in power obtains that near certain death may well await any person who has been disfranchised in this way. However this may be, nothing in what I have just noted implies any authorization whatever by Hobbes' contractors for use of the death penalty under the terms of a social contract.

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CHAPTER 3 LOCKE AND THE NOTION OF FORFEITURE 3.1 The Lockean Right of Self-preservation In his Second Treatise on Civil Government John Locke defines "political power" as "a right of making laws with penalties of death."1 Locke's account of the death penalty relies on the notion of a person"s forfeiture of the right of self-preservation and, as such, represents a substantial departure from Hobbes' handling of the jus naturalis. While he agrees with Hobbes that a person cannot relinquish, trans fer, or otherwise abandon the right of self-preservation, he disagrees with him in allowing that an individual can "forfeit" this right by committing certain acts of (suf ficient) "heinousness."2 With the exception of murder, Locke does not specify what these acts are; although he does state that when a murder is committed, the perpetrator "may lin Social Contract, Sir Ernest Barker, ed., Oxford University Press, 1962 (Locke's Second Treatise originally published: 1690), p. 4 (I.3) (emphasis added); note that Locke's own chapter and section numbers appear in parentheses after my citation of Barker's text (this is a practice I will observe throughout this chapter). 21.hlsj., p. 50 (VII.87); see also pp. 15f (IV.23). 81

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be destroyed as a lion or tiger, one of those wild savage beasts with whom man can have no society nor security."3 82 Locke's departure from Hobbes is all the more striking because the notion of "forfeiture" removes any possibility of an intrasystemic conflict between the jus naturalis and the agreement by which a social contract is generated. Another feature of the Second Treatise. which contrasts with Hobbes' account, is Locke's unequivocal appeal to a unitary, extrasystemic ground of legitimacy for the death penalty, viz., "that great law of nature, Whoso sheddeth man's blood, by man shall his blood be shed."4 Prior to the advent of a social contract, Locke explains, everyone who lived under this law in a "state of nature" possessed a "right of punish ment" which permitted any one of them to put a murderer to death; however, with the emergence of a civil society, he continues, everyone agreed to transfer their individual rights to impose "penalties of death" to the one (or ones) whom they elevated to a position of authority over all the rest. This they did with the expectation, under this arrangement, that fewer abuses and errors of judgment would be encountered, and so the lives of all of them would 3Ibid., pp. Sf (II.11). 4Ibid., p. 9 (II.11); Locke quotes Genesis 9:6 (King James Version of the Bible); the emphasis is his.

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be rendered more secure.s This account may be sharply distinguished from that of Hobbes, in which there is no shortage of ambiguity about the ground of legitimacy (as I have shown),6 and, moreover, in which whatever ground or grounds there are require an intrasystemic affirmation that takes the form of an "authorization" by Hobbesian contractors. 83 Finally, the right of self-preservation itself must be assigned a different status on the two accounts. The jus naturalis of Leviathan, as I have argued,7 should be con strued as something weaker than even a "permission" right, while the Lockean right of self-preservation, in marked contrast to this, merits recognition as a "claim" right. In this vein, Locke may speak for himself. Every one, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind.B I take this to mean that Lockean contractors, as well as people in a "state of nature," all have not merely a right 5"I easily grant that civil government is the proper remedy for the inconveniences of the state of nature, which must certainly be great where men may be judges in their own case, since 'tis easy to be imagined, that he who was so unjust as to do his brother an injury, will scarce be so just as to condemn himself for it" (ibid., pp. 9f) (II.13). 6Supra, 2.4.3, especially pp. 61ff. 7 Supra, 2. 4 .1. BLocke, op. cit., p. 6 (II.6) (emphasis added).

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84 but a duty of self-preservation; moreover, they each have a claim against everyone else not to interfere with that right and duty so long as neither a state of war obtains nor forfeiture occurs.9 These differences, then, on which I have now elabo rated, give rise, in turn, to a different set of problems from those I discussed in Chapter Two. In what follows it will be my purpose to address three major areas of concern I have with Locke's defense of the death penalty. All three of these areas will be seen to emphasize one or more of the several differences with Hobbes upon which I have commented. The first of these areas has to do with a question of whether there are any "natural laws," and, if so, whether any of these operate to compel use of the death penalty under a social contract (3.2). After attention to this area, I will then take up the issue of Locke's reliance on biblical texts (especially Genesis 9:6) as a conduit of "natural law" regarding capital punishment. Here (3.3), I will explore whether or not the exegetical principle upon which he relies can be plausibly defended. My final area of concern will feature certain difficulties I perceive regard ing how punishment of the innocent would be construed on Locke's theory (3.4). My analysis in all three of these areas will then be summarized and presented in conjunction 9As Michael Freeden astutely observes of Locke, "What is on one dimension a duty to God becomes on another a right against other men" (Rights, Open University Press, 1991, p. 15)

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with a concluding perspective on Locke's defense of the death penalty (3.5). 3.2 The Skeptical Challenge to "Natural Laws" 85 It is certainly a question worth asking whether or not there are any "natural laws" which operate to bind the actions of human beings. The quintessential challenge, in this regard, confronting all "natural law" theorists (includ ing Locke), has been concisely expressed in the colorful words of the Danish jurist, Alf Ross: Like a harlot, natural law is at the disposal of everyone. The ideology does not exist that cannot be defended by an appeal to the law of nature. And, indeed, how can it be otherwise, since the ultimate basis for every natural right lies in a private direct insight, an evident contemplation, an intuition?l0 On the heels of this assessment, Ross invites the conclusion he presses by means of a further question, "Cannot my intui tion be just as good as yours?"ll To be sure, of course, if Ross's question is answered in the affirmative, then there is no reason to prefer Locke's appeal to the "natural law" over the account of another theorist, or even over the incantations of a soothsayer or perhaps an ancient oracle. On the other hand, however, if an answer is given in the negative, then, I urge, after the manner of Ross, that a burden falls on those who make these appeals to show every one else (who needs convincing) just why their intuitions 10On Law and Justice, University of California Press, 1959, p. 261. llibid.

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86 (and not~ or someone else"s) reveal laws which are just the ones competent to bind the actions of human beings. Still, it is not my intention here to defend Ross's skepti cal view regarding the existence of "natural laws." Such an enterprise would be unnecessary given the more limited aims of my present inquiry. That is to say, it will be enough for my purposes if I am able to show that Locke fails to meet the burden of making a convincing case in only one instance of an alleged "natural law," viz., that particular appeal on the basis of which he intends to argue for a societal permission to impose the death penalty. If I am successful with this, as I expect to be in the section which follows (3.3), then it would hardly matter (for my aims) that a rigorous defense of Ross"s skeptical view may also be possiblel2 and, if implemented effectively, may well have untoward consequences for Locke's entire system. Yet another aspect of Locke's use of "natural law" should be mentioned. Suppose, for the sake of argument, that Locke~ succeed in convincing everyone (who needs convincing) that there is some "natural law," say X, which confers upon individuals in a "state of nature" a right to impose "penalties of death" for a certain crime (or crimes). Assume, too, that this right is transferable to authorities in a civil society. Now, what I want to emphasize here will 12Ross acquits himself rather well in this regard; on this, see his ch. 11, "Analysis and Criticism of the Philosophy of Natural Law" (ibid ).

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87 seem obvious enough, though some elaboration will be helpful to show its relevance within the present context. That is to say, the right at X (on Locke's account) would be just that: a right and not a duty. It confers upon individuals, and by transfer, upon the authorities in a civil society, a permission to impose "penalties of death," but not an obligation to do so. In effect, what this means is that it is a prerogative of individuals in a "state of nature," and of the civil authorities under a social contract, whether or not to impose the death penalty in particular cases. Locke so much as confirms this when he writes, "[A murderer] may be destroyed as a lion or a tiger,"13 where the operative term is 'may' rather than 'must'; and later, when he dis cusses specific circumstances where the right to employ the death penalty would not be exercised.14 Also, he devotes an entire chapter of the Second Treatise to a defense of the sovereign's prerogative in matters which include actions that would "pardon some offender."15 So, while the right at X may be very clear about when a person has forfeited the right of self-preservation, it does not follow, on Locke's 13Locke, op. cit., pp. 8f (II.11). 14"Indeed, having by his fault forfeited his own life by some act that deserves death, he to whom he has forfeited it, may, when he has him in his power, delay to take it, and make use of him to his own service" (ibid., pp. 15f (IV.23), emphasis added) lSibid., ch. XIV, "Of Prerogative"; see especially p. 95 (159).

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88 account, that a person so disposed IIlY.ll in fact be put to death. The difficulty I have, then, with a "natural law" such as X, which confers on individuals and then civil authorities a right whose exercise is a matter of human prerogative, is that, even if Xis based on intuitions which everyone has (or can accept), still, in its implementation, X relies on human discretion which, in turn, may reflect the whims, the biases, and, under the most unfortunate of circum stances, even the pernicious motives of particular human beings. So even on .t.h,li account, I suggest, which concedes much to Locke, there may yet be room for a skeptical view after the manner of Ross. 3.3 Difficulties with Locke's Reliance on Biblical Texts In this section I will explore a question of whether or not Locke s reliance on biblical texts (especially, Genesis 9:6) can perform the pivotal function it must perform in order to sustain his argument for the death penalty.16 Earlier, I made the point that forfeiture of the right of self-preservation arises, under Locke"s theory, whenever a person commits an act of (sufficient) "heinousness." Since he makes appeal to Genesis 9:6 in the case of murder, it would appear safe to infer that the exegetical principle by which he is guided in his selection of this text is some thing like this: "If pis cited in a biblical text as an 16Locke also cites Genesis 4:14, "Every one that findeth me shall slay me" (KJV) (ibid., p. 9 (II.11), emphasis Locke's).

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89 act worthy of death, then pis sufficiently heinous to warrant the death penalty." Since Locke himself provides no guidance at all about how heinous an act would have to be in order to be sufficiently heinous to warrant the death pen alty, the principle of selection I have imputed to him does at least have the virtue of clarifying that point. But now, it will be quickly seen that, if this principle is applied to certain other biblical texts (from the Old Testament), rather peculiar, and in fact morally counterintuitive, conse quences follow. For example, at Exodus 21:15 there is the pronouncement, "Whoso strikes his father or mother shall be put to death," and at 21:17, "Whoso curses his father or mother shall be put to death." Also, at Exodus 22:18 there is the statement: "You shall not permit a sorceress to live," and at Leviticus 21:10, "If a man commits adultery with the wife of his neighbor, both the adulterer and the adulteress shall be put to death."17 Even though these texts identify death as the appropriate punishment in each case, still there is not any reason to think that Locke seriously intends that unruly children, "sorceresses," adulterers, and adulteresses should follow murderers to the gallows.is In 1 7 Citations by the author are from The Oxford Annotated Bible (Revised Standard Version), Oxford University Press, 1962. lBNor, evidently, was this the intention under Talmudic law, which, according to Steven S. Schwartzschild, "abolished the death penalty de facto two-thousand years ago" ("Kantianism on the Death Penalty," ARSP LXXI (1985), p. 345; for additional bibliography, see Schwartzschild's n. 10 (ibid.); see also J. K. Mikliszanski, "The Law of

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90 fact, he appears to block this possibility when he states in the Second Treatise that "lesser breaches of the law [than murder]" should be punished with such severity as to cause the offender "to repent."19 In the absence of any reason why Genesis 9:6 should be singled out as a conduit of "natural law" on capital punishment, while the other texts I have cited may be safely ignored in this respect, even though they also specify acts sufficiently heinous to warrant "penalties of death" (or at least do so under the exegetical principle I have imputed to Locke), I am left with one of two conclusions, neither of which bodes well for Locke's system. That is to say, either (1) he embraces the highly peculiar and counterintuitive side effects of the exegetical principle I have imputed to him (which would require unruly children and others to follow murderers to the gallows), and this, in opposition to what he himself alleges regarding "lesser breaches of the law"; or (2) he abandons altogether his appeal to biblical texts upon which his defense of capital punishment ultimately rests. 3.4 A Problem with Punishment of the Innocent The question of Locke's reliance on "natural law" and biblical authority aside, there are yet other difficulties which arise on his account of the death penalty. Of these, the difficulties which pertain to his handling of matters Retaliation and the Pentateuch," Journal of Biblical Literature LXVI (1947), pp. 295-303). 19Locke, op. cit., p. 9 (II.12).

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91 relating to punishment of the innocent would seem to merit closest scrutiny. I suggest this because he appears to link the notion of forfeiture to the act {itself) of murder,20 and not to a finding of guilt by others, and yet, it is the latter and not the former which in fact determines who will be put to death, and which allows for the possibility {at least) of punishment of the innocent.21 It may then be asked of Locke: Does acceptance of the risk which this possibil ity entails have its basis in the social contract, or is it, too, compelled of Lockean contractors {like forfeiture) by some (as yet unspecified) manifestation of "natural law"? Here, I will concede, for the sake of argument, that Locke is able to provide a plausible ground for his notion of forfeiture, contrary to what I have already shown. That is to say, here my only concern will be to explore the question of whether or not his notion of forfeiture can be reconciled 20Infra, pp. 95f. 21worry over the possibility of error is not merely a theoretical concern: Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam have provided extensive documentation for more than 400 instances of wrongful conviction for capital crimes in the United States alone; of this number, twenty-three were in fact subsequently executed (In Spite of Innocence, Northeastern University Press, 1992). Interestingly, too, infrequency of use is no guarantee against the possibility of error. The state of Israel, whose courts have rendered only two death sentences in its 45-year history, evidently erred in one of these cases (Adolf Eichmann was hanged in 1962, following his celebrated trial; John Demjanjuk's 1988 conviction (also for war crimes during the second world war), however, was reversed by the Israeli Supreme Court in 1993 (New York Times, July 30, 1993, p. A4)).

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with the implications of other statements he makes on mat ters relating to punishment of the innocent. 92 One way of beginning exploration of the question I have suggested is to inquire whether or not the Lockean "right of punishment" confers upon a civil state the right to impose the penalty of death on a person who has been adjudged guilty of committing an act of (sufficient) heinousness, i.e., under the state's decision-procedure, but who in fact is innocent of the crime. This is an especially relevant place to begin, I suggest, because asking the question in this way draws attention to what I will expose as a basic inconsistency of Locke's theory, viz., the inconsistency of requiring both (1) that an innocent person cannot be deprived of the right of self-preservation (which, of course, is a "claim" right); and (2) that an innocent person may be executed by the authorities of a civil state and hence effectively denied the right of self-preservation, provided only that he or she has been adjudged guilty (albeit erroneously) of committing a crime of (sufficient) heinousness. At first blush, to be sure, it may seem a contentious point whether Locke requires that an innocent person may not be deprived of the right of self-preservation. For example, he writes: [In a state of nature] man ... hath by nature a power to judge of and punish the breaches of that law in others, as he is persuaded the offense deserves, even with death itself, in crimes where

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the heinousness of the fact, in his opinion, requires it. 22 93 Now, if this is construed to mean that a person may (in a state of nature) employ an idiosyncratic, and perhaps arbi trary, decision-procedure to "judge of" whether a breach of the law has occurred (in this case, the law of nature), and where he reaches an affirmative finding, to impose (again, idiosyncratically and perhaps arbitrarily) whatever punish ment he or she deems appropriate, then, indeed, this would open the door on {a) the possibility of an innocent person's suffering an unmerited, but nevertheless legitimate punish ment, and on (b) the possibility of a culpable person's suffering, legitimately, a more severe punishment than his crime could plausibly warrant. Clearly, Locke intends to block (b) when he writes: In the state of nature, one man comes by a power over another; but yet no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute him, so far as calm reason and conscience diccates, what is proportionate to his transgression. 23 Moreover, it would seem reasonable to suppose that, if Locke wants to block (b), he would also want to block (a); for otherwise he would find himself in the rather curious and morally incongruous position of opposing a decision procedure which permits excessive punishment of the truly 22Locke, op. cit p. 50 (VII. 87) 23Ibid., p. 6 (II.8).

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94 culpable, while at the same time permitting (or at least implicitly accepting) a decision-procedure which allows for punishment of the innocent. Support for this interpretation may be gleaned from Locke's discussion of the plight of the innocent in those cases "where an appeal to the law and constituted judges lies open, but the remedy is denied by a manifest perverting of justice."24 Here, he explains: It is hard to imagine anything but a state of war; for wherever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiased application of it, to all who are under it; wherever that is not bona fide done, war is made upon the sufferers.25 In another context, he writes: "Force without right upon a man's person makes a state of war where there is, and is not, a common judge. 11 26 Now, inasmuch as an innocent person in a state of war may not be without the right of self preservation,27 the issue of concern here becomes whether an 24Ibid., p. 14 (II.20). 25Ibid. 26Ibid., p. 13 (II.19). 27For Locke, this is axiomatic: "The state of war is a state of enmity and destruction; and therefore declaring by word or action, not a passionate and hasty, but sedate design upon another man's life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other's power to be taken away by him, or any one that joins with him in his defense, and espouses his quarrel, it being reasonable and just I should have a right to destroy that which threatens me with destruction; for by the fundamental law of nature, man being to be preserved, as much as possible, when all cannot be

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95 innocent person, under sentence of death in a civil state, would be at war with those who seek to kill him. To be sure, on the basis of the texts I have cited, Locke intends that a state of war would exist in cases where there has been a "manifest perverting of justice." But, what about other cases, say, a case where the state has generally been very just, and where, not surprisingly, the decision procedure has ordinarily been very reliable (i.e., the truly culpable are only very rarely punished excessively and the innocent are almost always acquitted of the charges against them)? Under these conditions, would a condemned but innocent person be in a state of war with those who seek to kill him, and hence continue to enjoy the right of selfpreservation? Before answering this question, it may be helpful to ask and answer another, viz what exactly constitutes a forfeiture under Locke"s theory? That is to say, does he regard a forfeiture as something which occurs as a result of a finding of guilt under a decision-procedure for determin ing culpability or as something which occurs when, and only when, an individual commits an act of (sufficient) heinous ness? Locke specifically addresses this question when he writes: Freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man"s preserved, the safety of the innocent is to be preferred; and one may destroy a man who makes war upon him" (ibid., p. 11) (II.16).

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preservation, that he cannot part with it but by what forfeits his preservation and life together. For a man, not having the power of his own life, cannot, by compact or his own consent, enslave himself to anyone, nor put himself under the absolute, arbitrary power of another to take away his life when he pleases.2B 96 Only "by his [own] fault," Locke concludes, may a man forfeit "his own life by some act that deserves death." I construe this to mean that forfeiture occurs when, and only when, a person commits an act of (sufficient) heinousness, not when the authorities of a civil state (or, in the state of nature, some other person) return(s) a finding of guilt. It would appear, therefore, that Locke is concerned, not only about the unjust ramifications of a faulty decision procedure (both in a civil state and in a state of nature), but also about the danger of supposing that forfeiture can be effected by any act other than an act of (sufficient) heinousness. Moreover, when attention is shifted to the plight of an innocent person who has been condemned to death by a state which has generally been very just, and whose decision-procedure has ordinarily been very reliable, I see no reason to think that Locke's concerns would be any dif ferent. For a condemned but innocent person, in this instance, would be no less a victim of a faulty decision procedure than a truly culpable person subjected to exces sive punishment, or another innocent person whose only point of difference is that he resides in a state where there has 2Bibid., p. 15 (IV.23).

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97 been a "manifest perverting of justice." In view of this, I see no way of sparing Locke the necessity of having to con clude that an innocent person, under sentence of death in a civil state, fillY civil state, would be in a state of war with those who seek to kill him and therefore could not possibly be without the right of self-preservation. More over, since this right is a "claim" right, which confers upon all others a QYi of noninterference, as I have already explained, I see no way of rescuing him from the inconsis tency of requiring both (1) that an innocent person cannot be deprived of the right of self-preservation; and (2) that an innocent person may be executed by the authorities of a civil state and hence effectively denied the right of self preservation, provided only that he has been adjudged guilty (albeit erroneously) of committing a crime of (sufficient) heinousness. 3.5 Summary and Perspective Locke's relevant differences with Hobbes have been emphasized. In the Second Treatise the right of self preservation is a "claim" right, one subject to "forfeiture" under "natural law" in conformity to certain biblical texts which define acts that warrant "penalties of death." A person who has committed an act of this magnitude may be put to death by others in a "state of nature," or by the authorities in a civil society, though, on Locke"s account it is not obligatory that this be done. It is within this

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98 context, then, and for the various reasons I have elabo rated, that Locke's defense of capital punishment appears to fail. I say this because, in particular, (1) he has not met the burden of the skeptic"s challenge which requires that he make a case for why his appeal to the authority of the Bible should be accepted; (2) he relies, evidently, on an exegeti cal principle which cannot be plausibly defended as a tool for the selection of biblical texts, even if the authority of the Bible could be established over the skeptic's chal lenge; and (3) his various statements which bear on punish ment of the innocent are not consistent among themselves. All three of these defects may be, in some measure, the offspring of an uneasy alliance in Locke"s system between the "natural law" and social contract theory. That is to say, intuition-based assumptions, in the guise of "natural law," appear to define (at times) the conditions under which an individual's consent to a social contract may be given. I have not pursued this observation in the present chapter because my rejection of Locke's defense proved fruitful with a much less complicated analysis of particular defects. Later, however, in my treatment of Kant's system, I will pursue in a more substantial way the matter of an "uneasy alliance" between the "natural law" and social contract theory .29 29Infra. 5.3.3.

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CHAPTER 4 ROUSSEAU'S EQUAL AND TOTAL SUBMISSION REQUIREMENT The next major figure in the social contract tradition is Jean-Jacques Rousseau. Indeed, Michael Lessnoff describes Rousseau's contribution to this tradition as "the culmination of the classic phase of contract theory, "land J. W. Gough writes, "The social contract is popularly connected with the name of Rousseau above all other writers."2 My initial concern in this chapter will be with Rousseau's stages in the "state of nature." Here, I will place particular emphasis on his account of the emergence of a social contract as a remedy for societal conditions which develop in the "later" stage (4.1). Next, I will discuss Rousseau's equal and total submission requirement and will stress the crucial role it plays in providing the under pinning for his defense of capital punishment (4.2). After this, I will present, analyze, and rebut what I will charac terize as Rousseau's two-step argument for the death penalty (4.3). Finally, as a bit of an afterthought, I will just 1 Social Contract, Humanities Press International, 1986, p. 74. 2 The Social Contract, Greenwood Press, 1978, p. 164. 99

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100 note what may be a hint of diffidence in Rousseau's discus sion of capital punishment (4.4) 4.1 stages in the "State of Nature" Rousseau recognizes what may be described as two stages in the "state of nature." They are developmentally contigu ous though very different in their essential features, and both of them receive attention in his Discourse on the Origin and Basis of Inequality Among Men. Here, Rousseau initially depicts what may be called the "early stage" of the "state of nature," where people lived a peaceful existence, not at all characterized by belligerence or hostility. This stage featured people in their "natural" condition where they lived life simply from day to day in conformity with two principles: one, that of self preservation; and the other, that of "a natural repugnance to seeing any sentient creature, especially our fellow man, perish or suffer."3 Also, in this stage people were unen cumbered by rational thought. In particular, they never thought about "property," and so failed to make any distinc tion between "mine" and "thine."4 As a consequence of this, they did not display the acquisitive, competitive, and eventually combative behaviors which were to become the 3 In The Essential Rousseau, Lowell Bair, trans., New American Library, 1974, p. 140 (preface) (Rousseau"s Discours sur l'origine et les foundements de l'inegalite originally published: 1755; note that Rousseau's own division headings appear in parentheses following citations of Bair' s text) 4Ibid., p. 167 (I).

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101 hallmark of "civilized" people. In light of their aversion to the suffering of others and their inability to reason, it follows for Rousseau that "natural man" was incapable of anything like a premeditated killing of another person, even as an act of vengeance.s Within this pristine context, of course, there could arise no institution of punishment, much less capital punishment; hence, no burden could fall on Rousseau to provide a defense of any such practice. What may be called the "later stage" of the "state of nature," for Rousseau, pertains to those circumstances which exist just prior to the emergence of a civil state. By this time the more "natural" conditions of the "early stage" no longer obtain. This is because, as people have evolved cognitively, they have acquired a sense of "property," and with that, the acquisitive, competitive, and combative behaviors which were conspicuously absent from the "early stage."6 Indeed, by the time of Rousseau's The Social Contract, a treatise published seven years after the Discourse, the emphasis may be seen to have shifted entirely to the "later stage." While it may be true that the sim plicity and tranquillity of the "early stage" never lost any of its appeal for Rousseau, still, it is made clear enough in The Social Contract that he had come to think of it as a past which was irrevocably lost, and this because of the 5Ibid., p. 179 (II). 6Ibid., pp. 171f (I).

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102 irreversibility of human cognitive development. 7 So, it is here, perhaps in a more pragmatic vein, that Rousseau turns his attention to the "later stage" of the "state of nature," a stage wherein the acquisitive, competitive, and combative behaviors mentioned earlier have at last found expression in open conflict and war. It is because of the instability and uncertainty of this inevitable stage, he contends, that people are motivated to covenant together for their mutual protection and benefit.a 4.2 Rousseau's Submission Requirement and the Death Penalty Rousseau's theory of the social contract appears not to be encumbered by the sort of problems I have discussed so far in connection with Hobbes and Locke, specifically, those difficulties which attend the farmer's handling of the jus naturalis and the latter's reliance on the notion of forfei ture. This is because, unlike his predecessors, Rousseau asserts that, when those in a state of nature covenant with one another to form a civil state, they relinquish all of their natural rights. Once the social contract is in place, therefore, problems concerning the inalienability of natural rights (Hobbes) or the forfeiture of natural rights (Locke) would seem not to arise. In defense of this move Rousseau 7 In The Essential Rousseau, op. cit., p. 16 (I.6) (Rousseau"s Du contrat social originally published: 1762; note that Rousseau's own division and chapter numbers appear in parentheses following citations of Bair's text; cf. Discourse, op. cit., pp. 173ff (II). BRousseau, The Social Contract, loc. cit.

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argues: "Since each man gives himself entirely, the condition is equal for all," and further, "since the condition is equal for all, it is to no one's interest to make it burdensome for others."9 103 One not so subtle effect of what may be called Rousseau's "equal and total submission requirement" is that whatever laws are enacted under a government which arises pursuant to a social contract (so construed), they would not be open to challenge by any member of the community on grounds of appeal to any individual rights that were previ ously held in a state of nature. Moreover, this would apply with equal force to any law enacted, including one author izing use of the death penalty. That Rousseau intends, in this way, to open the door on capital punishment, is made evident in book two, chapter five, of The Social Contract, where he writes: "[W]hen the government says [to a citizen], 'It is expedient for the state that you die,' he must die, since his life is no longer merely a gift of nature, but a conditional grant from the state."10 9Ibid., p. 17 (I.6); the latter half of Rousseau's claim is perhaps intended to make the point that people without any rights are also without any interests, including. of course, any interest in making the social contract "burdensome for others." While this may be so in the narrow, legalistic sense of 'interest,' it would not be true for ordinary uses of the word. A thief, e.g., may have (in ordinary parlance) an interest in stealing someone's money while having no legal interest in doing so; similarly, Rousseau's contractors could have a plethora of interests and yet have no legal interests whatever. l0ibid., p. 31 (II.5).

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104 4.3 A Two-step Arg1Jment for Capital Punishment Rousseau's defense of the death penalty may be charac terized as a two-step argument. His first step relies on what appears to be the linchpin of his entire system, viz., the requirement that his contractors surrender all of their natural rights upon consummation of their social contract. This they do in order to generate a collective entity which Rousseau terms "the general will." "Each of us puts his person and all his power in common under the supreme control of the general will," he explains, "and we collectively receive each member as an indivisible part of the whole."11 It is assumed, of course, that life in society "under the supreme control of the general will" would represent a vast improvement over life in the "state of nature" which imme diately preceded it.12 Now, relative to the death penalty, the particular utility, for Rousseau, of everyone's sur rendering all their natural rights, is that this move preempts any appeal to a natural right of self-preservation (i.e., by or on behalf of any person condemned to death). Moreover, a further consequence of this move is that, if Rousseau meets with success here, he could then avoid most of the difficulties I have elaborated regarding Hobbes' and Locke's systems. But now, even supposing he were successful at this initial step of the argument, all that he would have 11.Illlij., p. 17 (I.6). 12Ibid., pp. 20f (I.8); p. 30 (II.4).

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105 achieved is the generation of a permission for a (deriva tive) society to employ the death penalty, IlQ.t. of an obliga tion for them to do so. No doubt, it is for this very reason, then, that Rousseau includes, as the second step of his argument, a case for the desirability of exercising that permission in civil society. Here, as I will explain, Rousseau relies on an appeal to the (alleged) deterrent effects of capital punishment. 4.3.1 A Rejection of the First Step Rousseau has never been without his critics insofar as his notion of "the general will" is concerned.13 It would take me too far afield, however, to entertain the great variety of interpretation and criticism this notion has inspired.14 Instead, it should be enough for my limited aims to show why the notion itself is not without certain inherent features which prove to be especially troublesome in the context of Rousseau's affirmative stance on capital punishment. In this regard one difficulty I would emphasize relates to his claim, "Since each man gives himself entirely, the condition is equal for all." To be sure, with the addition of an unstated assumption, viz., that all who 13Lester G. Crocker expresses a view not unlike that of many of Rousseau's critics: "For Rousseau total alienation, or total authority, is the necessary condition for equality under law," and later, "It is scarcely necessary to say that freedom is swallowed up by this collective monolith, this all devouring general will" (Rousseau's Social Contract, The Press of Case Western Reserve University, 1968, pp. 58, 61). 14For an introduction to this topic, see Gough, QI2....,_ il. I pp. 169ff

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106 covenant together have previously enjoyed the~ rights (i.e., in the state of nature), it follows that, if all who covenant together relinquish ill their rights, it must be that they all submit equally. But now, what needs to be pointed out here is that total submission is IlQ.t the~ way of providing for equal submission. That is to say, equal submission would arise just as readily if all those who covenant together were to relinquish all of their rights except for~ right, or all of them except for~ rights, or in fact all of them except for any number so long as they were the same rights for all. In particular, note that, if all who covenant together were to relinquish all of their rights except for the right of self-preservation (or, all except for several which included this right), Rousseau would be saddled with the same problem I have argued afflicts Hobbes' and Locke"s systems, viz., that of having to provide a satisfactory account of how the (natural) right of self-preservation may be consistently retained by an individual who nevertheless covenants with others to establish a civil state in which the penalty of death may be imposed. Since the right of self-preservation would seem to be a prime candidate for a right to retain from the state of nature (i.e., if gily right at all were retained), the burden on Rousseau to show why equal submission must take the form of total submission would appear all the more compelling. By way of response, however, he offers only that, "[I]f

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107 individuals retain any rights, each would soon be his own judge on some point or other" with the consequence that "eventually everyone would set himself up as his own judge on all points, the state of nature would subsist, and the association would necessarily become either tyrannical or ineffectual. 11 15 Yet, surely this is a non sequitur! That is to say, it does not follow from the mere fact one or more rights are retained from the state of nature that the members of a society who covenant in this way would have any added difficulty in finding fair and impartial judges. Indeed, the particular rights in play under a retention agreement need be no different from those in play on Rousseau's account; all that would vary here is how they are grounded, i.e., whether as (retained) natural rights or as "conditional grants from the state." I have difficulty, therefore, in appreciating how any difference in the grounding of these rights could have any bearing whatever on the ease (or lack of ease) with which fair and impartial judges could be found. These several observations, then, would lead me to conclude that Rousseau is mistaken in his claim that equal submission requires total submission, which, in turn, undermines (inter alia) the basis for his insistence that "life is no longer a gift of nature, but a conditional grant from the state." 15Rousseau, The Social Contract. op. cit., p. 17 (I.6).

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108 Another difficulty I have with the first step of Rousseau"s argument is that total submission may well lie beyond the realm of what is theoretically possible. As I have explained, Rousseau requires of his contractors that they relinquish all of their rights so that they may then take them up again as conditional grants from the state.16 But now, if they relinquish all of their rights, by what right are they then empowered to take them up again? Obviously, it must be that they do not in fact relinquish all of their rights, contrary to what Rousseau claims. That is to say, at a minimum each of them must retain the right to take up all of their (other) rights again. Without continuous status as a bearer of~ right, I fail to see how Rousseau"s contractors would be empowered to generate a "general will." Moreover, their continuous (i.e., unin terrupted) right to take up all of their (other) rights would appear to have the force of a "claim" right, with the consequence that each of them would have mutually respected claims against one another not to interfere with each other's activity in taking up their (other) rights again. Indeed, without the benefit of mutual protection against interference, it could hardly be supposed that they would produce a "general will." It follows from this, therefore, that since every contractor may be regarded as having an uninterrupted right to take up again all of his or her 16 Supra, 4. 3, n. 11.

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109 (other) rights, every contractor also has an uninterrupted right to status as a living being throughout this process, and this for the obvious reason that having status as the bearer of even only one right is a status which only living beings can have. Now, as a counter to this, it might be suggested that Rousseau"s contractors could have added a term to the social contract requiring all of them, immedi ately after emergence of the "general will," to relinquish the two rights each of them has carried forward from the "state of nature" (i.e., the right to relinquish all other rights and, by implication, the right to have status as a living being) .17 But then, if this were so, it must also be so that each of them has retained a right from the state of nature (and, evidently, a duty, as well) to relinquish these other retained rights. Moreover, the surrender of this right would itself imply a right to relinquish it; and so on, ad infinitum. Since an infinite regress cannot be avoided here, it follows, as a purely conceptual observation, that Rousseau"s contractors would never be without some retained right, and therefore, by implication, would never be without a retained right to status as living beings (or, more succinctly, a right to life). Hence, Rousseau"s defense of capital punishment, which requires that a contractor's "life [in a civil society] is no longer merely a gift of nature, but a conditional grant from the 17Cf. infra, 8.1.1.

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110 state" would appear theoretically untenable. The upshot of my analysis, then, is that it is conceptually impossible for a contractor to relinquish all of his or her rights because to get any of them back requires the exercise of at least two (retained) rights which he or she has not (as yet) laid down. Observe, too, that this analysis would also undermine any possibility for a "general will," i.e., at least in the sense Rousseau seems to require. Moreover, note further that nothing I have said here would prevent any of Rousseau's contractors from all agreeing simply to decline any exercise of the right to life under particular circumstances (say, e.g., in order to authorize use of capital punishment); yet, this would produce a different system for Rousseau, perhaps one with features and difficulties not unlike those of Hobbes' system. But it seems improbable that Rousseau would allow this, since declining to exercise a right (which is neverthe less retained) is not at all the same as being without that right altogether, and it is the latter and not the former which he appears to require (apropos of all rights) as a precondition for the generation of a "general will." Finally, it should be noted that Rousseau is not entirely consistent in what he has to say about the sur render of natural rights. For example, in two separate contexts, he specifically allows that his citizens may regain their natural rights under particular circumstances.

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111 These are circumstances where the social contract has been "violated"lB or "broken. 11 19 What Rousseau says here would seem to suggest that the natural rights of his citizens were never in fact given up pursuant to the emergence of "the general will," but instead were relegated to a status of dormancy for the tenure of the social contract. In still another context, Rousseau even appears to endorse the view that a citizen may renounce "his membership in the state," and thereby regain his natural rights, and this by the simple expedient of "leaving the country. 11 20 Now, in addition to these remarks on the recoverability of natural rights, Rousseau has this to say about the death penalty: When a criminal is put to death, it is less as a citizen than as an enemy. His trial and judgment prove and declare that he has broken the social contract and is therefore no longer a member of the state .... [S]uch an enemy is not an arti ficial person, but a man, and in that case the right of war is to kill the vanquished.21 This latter comment on the death penalty, in combination with the passages I have cited on recoverability, would appear to leave room for the possibility, on Rousseau's theory, that a condemned person would have a "right of war" no less so than the representatives of the state, and there fore, a (natural) right to life, both of which would be lBRousseau, The Social Contract, loc. cit. 19Ibid., p. 72 (III.1O). 20.I.Q.i_g., p. 84 (III.18). 21Ibid., pp. 31f (II.5).

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112 recovered by the criminal on the occasion of his or her condemnation and disfranchisement. To be sure, of course, if this emphasis in Rousseau's theory were given much credence, then his system would indeed be saddled with the sort of difficulty I have argued afflicts Hobbes' and Locke's systems.22 4.3.2 A Counter to the Second Step Observe that even if Rousseau~ successful in the first step of his argument, and clearly he was not, the very most he would have achieved would have been to show that objections to the death penalty could not take the form of an appeal to natural rights; yet, of course, this does nothing to show why the death penalty is a desirable punishment in a civil state. It is to show desirability, therefore, that he engages the second step of his argument which proceeds along utilitarian lines. Here, he argues: "It is to avoid being a murderer's victim that each man consents to die if he should become a murderer himself."23 Apparently, what Rousseau wants to claim is that people are safer, on balance, in a state which employs the death penalty for murder than they are in one which does not. That is to say, the risk of becoming a murderer's victim in a state which does not employ the death penalty is greater than the combined risks, in a state which does, of becoming 22supra, 4. 2. 23 Rousseau, The Social Contract, op. cit., p. 31 (II.5).

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113 a murderer"s victim and of being executed for the crime of murder. An implication of this, of course, would be that a state which employs the death penalty would provide a more effective deterrent for the crime of murder than one which employs alternative forms of punishment, e.g., life imprisonment. But now, Rousseau's claim for the desirability of capital punishment is an empirical claim, i.e., one which must be defended on the basis of an appeal to empirical findings, an appeal which, perhaps not surprisingly in the eighteenth century, he fails to make. Nevertheless, even if his claim were buttressed with all the results of modern research, his position would be not at all improved, for the results in this area simply do not support the conclusion that the death penalty is a more effective deterrent than life imprisonment.24 Rousseau also claims: "Everyone has the right to risk his life in order to preserve it."25 In support of this contention he introduces a piece of analogical reasoning by 24After an extensive review of the literature on deterrence and capital punishment, Raymond Paternoster concludes: "Capital punishment is no better at deterring would-be murderers than a prolonged period of confinement" (Capital Punishment in America, Lexington Books, 1991, p. 241); see also Roger Hood, who, after a similar review, writes: "The conclusion reached is that this research has failed to provide scientific proof that executions have a greater deterrence effect than life imprisonment" (The Death Penalty: A World-wide Perspective. Oxford University Press, 1989, p. 167) 25Rousseau, The Social Contract, loc. cit.

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114 which he intends to show that the imputation of suicide in this context would be mistaken. Has it ever been said that a man who jumps from a window to escape a fire is guilty of suicide? Has that crime ever been imputed to a man who died in a storm at sea, having been aware of the danger when he boarded the ship?26 A parallel is then drawn to the social contract, whose "pur pose ... is the preservation of the contracting parties." Moreover, "He who wills the end also wills the means, and in this case the means are inseparable from certain risks, and even certain losses."27 Among these "risks" and "losses," Rousseau continues, are those entailed by use of the death penalty. It is to avoid being a murderer's victim that each man consents to die if he should become a murderer himself. Far from disposing of his life, he thinks only of making it more secure; we may assume that none of the parties to the agreement intends to get himself hanged.28 Rousseau's argument here is very similar to that of the lifeboat lottery analogy which I earlier criticized as an unsuccessful attempt to augment Hobbes' analysis on capital punishment (2.4.2). My conclusions regarding that analogy would apply with no less force to Rousseau's piece of analogical reasoning here. That is to say, two distinct lines of criticism emerge, depending on whether Rousseau's 26.1..Qig. 27lmJj. 28Tui_g.

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115 version of the social contract is construed as an actual or hypothetical agreement. If the former, which I deem unlikely,29 then his position would be open to the objections of Hume, Filmer, and others, all of which receive attention in my treatment of Hobbes.30 However, if the latter, then his position would be open to the objection that he argues from the rationality of actual risk-taking behaviors (i.e., jumping from a burning building and boarding a ship) to a rationality which merely imputes to his contractors (in the absence of any actual commitment from them) a willingness to accept the "risks" and (possible) "losses" use of the death penalty would involve (i.e., as a condition of the social contract) .31 Here, too, as with my analysis of the lifeboat lottery analogy, the comparison is not so compelling as to explain why a hypothetical agreement which is merely supposed to apply could bind a group of people who have in actuality made no such commitment. 2 9In the Discourse, he cautions that his investigations "should not be taken as historical truths, but only as hypothetical and conditional reasonings" (op. cit., p. 144) (Discourse [second preface]); and, of course, in The Social Contract his intention is to explain how governments could be legitimate given that "Man is born free, and is every where in chains" (op. cit. p. 8) ( I .1) which would appear to require a hypothetical explanation. 30Supra, 2.5.2, pp. 4Sf. 31See supra. 2.5.2, pp. 43f.

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4.4 A Hint of Diffidence in Rousseau's Account Finally, I would call attention to another of Rousseau's statements in The Social Contract, one which arises toward the end of chapter five. Here, he writes: 116 "There is no evildoer who could not be made good for some thing. No man can rightfully be put to death, even as a deterrent example, unless he cannot be spared without danger."32 I would just note that, if this statement were binding on those who covenant together to form a civil state, it might very well have the effect of blocking enactment of any laws which would establish a death penalty, i.e., at least so long as imprisonment (solitary confine ment, if necessary) were available as an effective means of restraining "evildoers." I wonder, could this be the Rousseau of the Discourse, quietly reappearing here, for whom "natural man" reflects a "natural repugnance to seeing any sentient creature, especially our fellow man, perish or suffer"? 32Rousseau, The Social Contract, op. cit., p. 32 (II.5).

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CHAPTER 5 KANT AND THE PRINCIPLE OF EQUALITY 5.1 The "Juridical State of Society" and Punishment Kant's theory of the social contract is fundamentally different from those of both earlier and later contractari ans, and this difference sets him apart from the others in his comments on the death penalty. Unlike the other theo rists, Kant is not at all concerned to explain the circum stances of an (actual or hypothetical) agreement reached by individuals who (without coercion) covenant together from motives of self-interest; instead, his purpose is to articu late the structure of an ideal agreement which ought to be reached by everyone in a "state of nature," and indeed, would be reached if everybody there acted under the inspiration of a "good will."l Since, as a practical l"[T]he first decision that ... [a person] must make, if he does not wish to renounce all concepts of justice, is to accept the principle that one must quit the state of nature, in which everyone follows his own judgment, and must unite with everyone else (with whom he comes in contact and whom he cannot avoid), subjecting himself to a public lawful coercion. That is, before anything else, he ought to enter a civil society" (The Metaphysical Elements of Justice, John Ladd, trans., Bobbs-Merrill Company, 1965, p. 76, emphasis added) (Metaphysische Anfangsgrilnde der Rechtslehre. Vol. VI of the Akademie edition, originally published: 1797, p. 312). For Kant"s conception of a "good will," see Foundations of the Metaphysics of Morals, Lewis White Beck, trans., Bobbs-Merrill Company, 1981, pp. 9ff. 117

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118 matter, not everyone acts from motives fostered by a "good will," Kant allows that those who are not well intentioned may be compelled by "violent means ... to enter into a juridical state of society."2 Now, on Kant's theory, both use of coercion in compelling assent to the social contract and use of punishment (by force) in "a juridical state of society" find their justification in his more fundamental notion of "freedom."3 One facet of this complex notion, specifically, "negative freedom," asserts on behalf of every individual the right to be secure against violence from others, and since coercing assent to the social contract and punishing criminals both function to safeguard this right on Kant's account, use of force in either of these ways is not only legitimate but in fact obligatory.4 Within this framework, then, Kant (Grundlegung zur Metaphysik der Sitten, Vol. IV of the Akademie edition, originally published: 1785, pp. 393ff). Note that page numbers of the Konigliche Preussische Akademie der Wissenschaft edition of Kants Gesammelte Schriften appear both here and throughout the chapter following citations of The Metaphysical Elements and the Foundations. 2The Metaphysical Elements. op. cit., p. 77 (312). 3In his "Introduction" to The Metaphysical Elements of Justice, Kant writes: "[I]f a certain use of freedom is itself a hindrance to freedom according to universal laws (that is, is unjust), then the use of coercion to counteract it, inasmuch as it is the prevention of a hindrance to freedom, is consistent with freedom according to universal laws; in other words, this use of coercion is just" (ibid., p. 36) (231). 4Ibid., pp. 35ff (230ff); pp. 76f (312f); pp. 99ff (331f). In the "Translator's Introduction" to The Metaphysical Elements John Ladd summarizes, "Legitimate

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explains the use of punishment as an application of force, or counterviolence, in a manner consistent with the "principle of equality" (jus talionis), a principle which requires "not treating one side more favorably than the other."5 Jeffrie G. Murphy, whose interpretation I follow here, gives this account of Kant's position. If the law is to remain just, it is important to guarantee that those who disobey it will not gain an unfair advantage over those who do obey volun tarily It is important that no man profit from his own criminal wrongdoing, and a certain kind of "profit" (i.e., not bearing the burden of self restraint) is intrinsic to criminal wrongdoing.6 119 "Criminal punishment ... ," Murphy continues, "has as its object the restoration of a proper balance between benefit and obedience."7 The "principle of equality," in this context, functions as a mechanism for specifying what kind and degree of "criminal punishment" is necessary to restore coercion--that is, coercion that is used to counterbalance illegitimate coercion (violence)--will on reflection be seen to be equivalent to coercion consistent with the freedom of everyone in accordance with universal laws. The principle that coercion is legitimate under these conditions explains why we can force others to quit the state of nature. It also explains the basis of the state's right and duty to punish criminals" (p. xxi). Sibid., p. 101. 6 "Marxism and Retribution," in Today's Moral Problems, Richard A. Wasserstrom, ed., Macmillan Publishing Company, 1979, p. 500. 7Ibid. For alternative accounts of Kant's rationale for punishment, cf. Don E. Scheid, "Kant's Retributivism," Ethics 93 (January 1983), pp. 264ff; see also S. I. Benn, "Punishment," in The Encyclopedia of Philosophy. Paul Edwards, ed., Macmillan Publishing Company, 1967, Vol. 7, p. 30.

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120 a balance which has been disturbed by criminal activity. In this way, on Murphy's interpretation, any advantage which redounds to the wrongdoer, i.e., because of his or her wrongdoing, will be effectively nullified through imposition of an appropriate punishment. 5.2 Kant's Arguments for the Death Penalty The context for Kant's discussion of the death penalty is his attempt to apply the "principle of equality" to the crime of murder. Here, he argues that death is the only appropriate punishment because "there is no sameness of kind [as the "principle of equality" requires] between death and remaining alive even under the most miserable conditions," and moreover, because "there is also no equality between the crime and the retribution unless the criminal is put to death."B Kant supplements this argument with another which is intended to show that differences among criminals with respect to "inner viciousness" need not be any obstacle to the just application of the "principle of equality" in capital cases;9 and still another which is intended to show how an application of this principle relative to a capital offense effectively suppresses any quibbling over "how much" punishment the condemned person receives.lo Finally, Kant assails a position of Cesare Beccaria in On Crimes and BThe Metaphysical Elements, op. cit., pp. l0lf (332f). 9Ibid., pp. 102ff (333f). 1 o Ibid p 10 4 ( 3 3 4 )

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121 Punishment, and, in this connection, he gives an argument which, unlike the others, could not be expressed indepen dently of contract language and contractarian assumptions.11 In what follows I will examine each of Kant's four arguments for the death penalty, and I will, in every case, establish plausible grounds for rejecting them. After that, I will consider the broader question of whether or not Kant's theory is even compatible with an affirmative stance on the death penalty. Here, I will give specific attention to problems with Kant's use of contract language (5.3.1), the status of his classification by others as a "social contract theorist" ( 5. 3. 2) and his pos_i tion on punishment of the innocent which may be at odds with his embrace of the "principle of equality" and of the death penalty as a "categorical imperative" (5.3.3) 5.2.1 The "Principle of Equality" In his discussion of the "right to punish," Kant introduces the "prin:::iple of equality" as the standard of "public justice." What this means, he explains, is that "any undeserved evil you inflict on someone else among the people is one that you do to yourself." Moreover, he continues, "[I]f you steal from ... [someone else], you steal from yourself; if you kill [someone else], you kill yourself."12 Kant illustrates this principle by llibid., pp. 104ff (334f). 12Ibid., p. 101 (332)

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122 detailing what it would mean relative to the crime of theft. Here, he argues, "Inasmuch as someone steals, he makes the ownership of everyone else insecure, and hence he robs himself of the security of any possible ownership."13 The upshot of this, according to Kant, is that the thief no longer may acquire for himself the necessities of life (i.e., presumably, food, shelter, etc.), because his thievery has deprived him of the right to do so. He must, therefore, rely on the state for his subsistence. But now, the state has no obligation to support him gratis; so, in order to survive, the thief must make himself available for "convict labor." Only in this way can the state's subsidy of him be justified.14 Note that it is the impact on "everyone else" which apparently determines for Kant what the "principle of equality" requires. That is to say, it is because the thief (by his act of thievery) visits everyone with insecurity (not just the immediate victim) that he himself must suffer 13Ibid., p. 102 (333). 14Ibid., (333); evidently, Kant interprets the thief's loss of the "security of any possible ownership" to include a loss of all property rights to the necessities of life (again, presumably, food, shelter, etc.). Indeed, this latter loss would seem the equivalent of a death sentence except that Kant also provides that the thief may exchange "convict labor" for these necessities. Just why the state would be under any obligation to permit this exchange is unclear from Kant's account; however, a plausible explanation would seem to be that, since the punishment for thievery (i.e., imprisonment) does not include death by starvation or as a consequence of inadequate shelter, "convict labor" in exchange for these necessities emerges as a reasonable accommodation.

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123 loss of "any possible ownership." To be sure, Kant could not mean by this that every act of thievery merits the same penalty, which, of course, would be absurd. Instead, he must mean that while every act of thievery causes the thief to lose "any possible ownership," nevertheless the duration of this loss varies according to the gravity of the act. Clearly, I would think, this is the implication of his remark that "only the Law of retribution (jus talionis) [by which he means the "principle of equality"] can determine the kind and degree of punishment, "15 and later, his comment that "convict labor" may be either "for a certain period of time or indefinitely, as the case may be."16 Another implication, of course, is that the duration of the penalty must be, in some sense, "equal to" the insecurity which "everyone else" suffers. Now, having illustrated how the "principle of equality" would work relative to the crime of theft, he next argues that this same principle would require the death penalty relative to the crime of murder. This is because, as I have already mentioned, Kant argues, "there is no sameness of kind between death and remaining alive even under the most miserable conditions"; moreover, "there is also no equality between the crime and the retribution unless the criminal 15Ibid., p. 101 (332). 16Tui_g., p. 102, emphasis added, (333).

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124 is ... put to death."17 It is with this latter move, espe cially, that I have difficulty. I say this because the "principle of equality" appears to mean something quite different for murder than it does for thievery, and if this is so, Kant can hardly claim that the same principle applies in both cases. With regard to thievery, as I have already noted, what is required is an equality between the duration of loss of "any possible ownership" {which is achieved through "convict labor") and the magnitude,lB I suppose, of insecurity which "everyone else" suffers because of the thief's act. This version of the "principle of equality" I will call PE 1 With regard to murder, however, Kant no longer seeks a penalty which can be balanced against the insecurity visited on "everyone else," as PE 1 requires, but rather one which can be weighed against the deed itself, viz., the murder of a particular person {or persons). This version of the principle I will call PE 2 Now, if "equality" is construed in the sense of PE 2 then there is no "sameness" of deed between the crime and the punishment if the murderer is permitted to live, and 17Ibid. (333). lBit is not at all clear to me how the magnitude of insecurity, which visits "everyone else," would be measured or otherwise determined or, for that matter, even if 'magnitude' is the proper word. Moreover, does Kant mean "insecurity" in a purely physical sense, a psychological sense, or perhaps both? Also, once these questions are answered, how would quantity or quality of "insecurity" be "balanced" against the duration of "convict labor" imposed on the thief?

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125 death, indeed, may appear the proper penalty to impose. But, what is the argument for relying on~ construal of "equality"? Surely it cannot be that PE 2 applies just as plausibly to crimes other than murder. Even Kant himself acknowledges that the requirement for equality of deed cannot be interpreted literally with regard to the crimes of rape and pederasty.19 It would seem to follow from this, then, that whatever arguments can be marshalled in support of PE 2 among them cannot be a case for the generalizability of the principle to all types of crimes. On the other hand, if "equality" is construed in the sense of PE 1 the generalizability of the principle to crimes other than murder is not merely possible, but plausible, and I think in a way Kant would not have liked. That is to say, if he had consistently applied this version of the principle, he would have discovered that the insecur ity of "everyone else" could be just as easily "balanced" for the murderer through "convict labor" as for the thief. To see why this is so, it is necessary to look again at Kant's statement, "Inasmuch as someone steals, he makes the ownership of everyone else insecure." In retribution for this, of course, the thief must be disadvantaged in proportion to the insecurity he has visited on "everyone else." But now, exactly what sort of insecurity has he visited on "everyone else"? For Kant, I would think it must 19Ibid., p. 132 (363).

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126 be the insecurity which comes with having to live in a society where the crime of thievery has been willed as a maxim by the thief.20 Being disadvantaged in this way, I would offer, is quite different from being disadvantaged as the immediate victim of a theft, as the harm done is dis tributed among all the people, and in a way, I might add, which is, at least in a society of any size, minuscule by comparison. A similar insecurity (though perhaps a weightier one), I would argue, visits "everyone else" when a murder is committed. Here, too, I see no reason why the criminal could not be sufficiently disadvantaged by the imposition of "convict labor." Of course, no "sameness of kind" exists between death and remaining alive, as Kant correctly says. Yet, this is not at all the type of "same ness" which PE 1 requires. All that PE 1 requires is that a punishment be found which equalizes the burden visited on "everyone else" by the commission of a particular crime. As I see it, then, Kant may either adhere to PE2, in which case he must be satisfied with a principle entirely lacking any generality to a variety of other crimes, includ ing thievery and rape, and must, therefore, provide other grounds for invoking it apropos of murder. Or, he may 20Kant writes: "Every transgression of the law can and must be explained only as arising from the maxim of the criminal (the maxim of making such a misdeed into a rule)" (ibid., p. 87, n. 8) (321). Of course, neither thievery nor any other crime would be willed as a universal maxim by the criminal; on this, cf. Foundations, op. cit., especially pp. 19f (402ff), pp. 39ff (421ff).

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127 adhere to PE 1 in which case what "sameness" means, as I have shown, does not require the death penalty. In any event, however, what he may not be allowed to do is to leave the impression that the~ "principle of equality" can be made to yield the appropriate punishment for both thievery and murder and in fact for all other crimes. s.2.2 The "Inner Viciousness" Argument Kant next argues that only if "the judge pronounces the death sentence" will all murderers (or other capital offenders) be punished "in proportion to their inner viciousness."21 This is especially evident, he suggests, in a case where two men, a "man of honor" and a "knave," have been sentenced to die, both of whom have committed essentially the same crime. The "man of honor," he claims, would prefer death to a "life covered with disgrace"; thus, his sentence would be mild when compared to the alternative of "convict labor." By contrast, the "knave" would prefer to live; hence, for him, the penalty of death would be harsh. Since both men, therefore, are punished according to their "inner viciousness," death is the "best equalizer before the bar of public legal justice." 22 Now, as I see it, Kant may either say that the psycho logical stress which a person suffers while awaiting 2 1 The Metaphysical Elements, op. cit., pp. 102ff (333f). 22Ibid., p. 104 (334). Kant does not explain how the "inner viciousness" of a criminal would be assessed; in any event, it could hardly be determined by an inventory of the criminal's preferences regarding types of punishment.

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128 execution is a part of the punishment for a capital crime, QI: that it is not. If he says that it is not. then, of course, the "knave" and the "man of honor" are punished with equal severity when they are put to death, contrary to what Kant alleges. If, however, psychological stress does count as a part of the punishment, as in fact Kant appears to assume, then on his account the "knave" would be punished more severely than the "man of honor," and this because (ex hypothesi) the former would suffer greater stress than the latter in the interval between condemnation and execution. This interpretation of what counts as punishment (for a capital crime) commits Kant to a very strange view indeed, viz., one which requires that the "inner viciousness" with which a person commits a capital crime varies as a function of that person's capacity to suffer psychological stress while awaiting execution for that crime. That is to say, the greater the "inner viciousness" with which a person commits a capital crime, the greater the stress that person will suffer while awaiting execution. Moreover, in order to show that death (in combination with psychological stress) is the "best equalizer before the bar of public justice," Kant must also assume, i.e., with regard to any person who commits a capital crime, that this combination will achieve the retribution which justice requires under the "principle of equality," i.e., given .QQt.h the capital offense and the "inner viciousness" with which such a person commits such a

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129 crime. In effect, on this interpretation, the operation of Kant's "principle of equality" depends entirely for its efficacy on an empirical assumption regarding the precise nature of the relationship between a capital offender's "inner viciousness" and his or her capacity to suffer psycho logical stress while awaiting execution. Yet, I am unaware of any empirical studies which would lend any credence at all to Kant's assumption. Moreover, even if contemporary social scientists were to take an interest in doing a study of this sort, it would be necessary to give operational definitions for "inner viciousness" and for "psychological stress," and of course these definitions would be suffi ciently rigorous to preclude a close match with Kant's unscientific and relatively imprecise use of these terms. Finally, even if these difficulties could be set aside, and some study produced which could lend credence to Kant's assumption, still, all that could be demonstrated would be (at best) a strong (empirical) correlation between "inner viciousness" and "psychological stress." Yet, even a study of this sort would inevitably include a least a few anomalies, such as a "knave" who prefers death to a life of confinement, or even a "man of honor" for whom a lifetime of incarceration is preferable to execution.23 Moreover, the 23"Steven Judy was convicted of raping and killing a young woman and then drowning her three children, ages two, four, and five. Once convicted of the four murders, Judy instructed his attorneys not to present any evidence of mitigating circumstances during the sentencing hearing and not to argue against the death penalty. During the penalty

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130 mere presence of one or more of these anomalies, I suggest, would be enough to undermine Kant's argument. I say this because the imposition of punishment on a criminal is, for Kant, a categorical imperative.24 Furthermore, the standard to be employed in the implementation of this imperative is "none other than the principle of equality."25 What commends .thi._ standard, on Kant's account, is that "all other standards fluctuate back and forth and, because extraneous considerations are mixed with them, they cannot be compat ible with the principle of pure and strict legal justice."26 Yet, in the argument under consideration, Kant appears to trial, Judy testified and told the jury that they should give him the death penalty because 'he had no doubt that he would kill again if he had an opportunity, and some of the people he might kill in the future might be members of the jury.' After hearing this testimony, the jury took his advice and returned the death sentence" (Welsh S. White, "Defendants Who Elect Execution," University of Pittsburgh Law Review 48 (1987), p. 845; for other examples, see Melvin I. Urofsky, "A Right to Die: Termination of Appeal for Condemned Prisoners," Journal of Criminal Law and Criminology 75 (1984), pp. 553ff) 24"The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it" (The Metaphysical Elements. op. cit p 100) (331). 25.lbi,g., p. 101 (332); a few pages later, Kant writes, "Anyone who is a murderer--that is, has committed a murder, commanded one, or taken part in one--must suffer death. This is what [legal] justice as the Idea of the judicial authority wills in accordance with universal laws that are grounded a priori" (p. 104) (334). Here, I construe the "principle of equality" to be among those "universal laws that are grounded a priori." 26Ibid., p. 101 (332).

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131 forget about the a priori grounding of the "principle of equality," a grounding which would render the principle itself impervious to empirical influences, and instead proceeds to make the operation of this principle entirely dependent on an empirical assumption, indeed one which {even on the best case scenario) would yield anomalies requiring that the death penalty be imposed on persons in a manner that would create disbalances, that is to say, e.g., too much punishment in the case of a "man of honor" who prefers a lifetime of incarceration to execution, and too little in the case of a "knave" who prefers death to a life of confinement. 5.2.3 The Suppression of Quibbles Consideration Kant's third argument appears to be an exercise in frivolity. He writes, "[N]o one has ever heard of anyone condemned to death on account of murder who complained that he was getting too much [punishment] and therefore was being treated unjustly. "27 Well, yes, I suppose. If a condemned person agrees that death is the appropriate punishment, that person may not then quibble about how much death is admin istered, for the obvious reason that death {per se) cannot be quantified. In all likelihood, however, if the condemned person is disposed to quibble at all, it will not be over how much death will be administered, but rather about whether death is the appropriate punishment, or perhaps 27Ibid., p. 104 {334).

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132 about whether in fact any punishment is appropriate. To be sure, of course, there will not be any quibbling from a condemned person once the sentence has been carried out!2B But, of course, this could hardly be Kant's point. In any event, though, I cannot see how the amount of quibbling a particular type of punishment would be likely to inspire could be grounds either for or against the appropriateness of employing that punishment. 5.2.4 The Counterargument to Beccaria The three arguments I have examined so far might well have arisen outside the framework of a contractarian theory. Moreover, Kant's counterargument to Beccaria, which I am about to examine, may lend credence to the idea that Kant's own theory may not embrace a contractarian framework, and this notwithstanding that his attack on Beccaria involves explicit use of contract language and exudes the appearance at least of a reliance on contractarian assumptions. In On Crimes and Punishment Beccaria writes: "Was there ever a man who can have wished to leave other men the choice of killing him?" and further, "if that were the case, how could a ... principle [which allows this] be reconciled with ... [an]other, [viz.], that a man is not entitled to 2Bindeed, quibbling may serve a desirable purpose in those instances where an innocent person has been sentenced to death, that is to say, if any {legal) grounds for appeal can be found about which to quibble.

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133 take his own life?"29 Kant seizes on these remarks and (in effect) offers the following construal of Beccaria's position: 30 (i) The penalty of death can be legitimately imposed on a person only if that person agrees, at the time of the social contract, to submit himself to this punishment if later circumstances find him guilty of a capital offense. (ii) No person can dispose of his own life. (iii) Hence, no person can agree, at the time of the social contact, to submit himself to this punishment if later circumstances find him guilty of a capital offense. (iv) Therefore, the penalty of death cannot be legitimately imposed on a person. In essence, Kant's objection to this argument is that it contains an equivocation on the word 'person.' That is to say, Beccaria stands accused of failing to distinguish what would be (in Kant's terminology) the person as homo noumenon from the person as homo phaenomenon. The formation of a social contract and the enactment of penal laws, Kant explains, is achieved by the collective "Will" of the people, each of whom, as homo noumenon, unites with others 29Henry Paolucci, trans., Bobbs-Merrill Company, 1980 (originally published: 1764), p. 45. 30Beccaria's main argument, which Kant ignores, has very little to do with the two statements the latter seizes on; instead, it is primarily concerned with a utilitarian challenge to the efficacy of capital punishment as a deterrent.

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134 for this purpose.31 But it is not the person as homo noumenon, as a member of this collectivity, who may be among those who commit crimes and suffer punishments; it is rather the person as homo phaenomenon, i.e., as an individual in society, who may be so disposed. "In my role as co legislator making the penal law [homo noumenon]," writes Kant, "I cannot be the same person who, as subject, is punished by the law [homo phaenomenon] "32 By means of this distinction, then, Kant seeks to expose an equivocation in Beccaria's argument which may now be amended to reflect Kant's analysis: (i)' The penalty of death can be legitimately imposed on a person (as homo phaenomenon) only if that person (as homo noumenon) agrees, at the time of the social contract, to submit himself (as homo phaenomenon) to this punishment if later circumstances find him (as homo phaenomenon) guilty of a capital offense. (ii)' No person (as homo noumenon) can dispose of his own life. (iii)' Hence, no person (as homo noumenon) can agree, at the time of the social contract, to submit himself (as homo phaenomenon) if later circumstances find him (as homo phaenomenon) guilty of a capital offense. (iv)' Therefore, the penalty of death cannot be legitimately imposed on a person (as homo phaenomenon) Note that the charge of equivocation is of no consequence here so long as there is what I would call "continuity of 31 The Metaphysical Elements, op cit., p. 105 (335); see also pp. 80f (315f). 32Ibid., p. 105 (335).

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135 personhood" between Beccaria's agreement-maker (Kant's homo noumenon) and his agreement-keeper (Kant's homo phaenomenon). That is to say, if the person who is called on to keep an agreement is in fact the very same person who made it, then Kant's distinction merely recognizes two roles assumed by a single person and his amendments, in this regard, do not materially affect Beccarria's argument. On the other hand, if Kant really wants to claim that there is not any continuity of personhood between agreement-maker and agreement-keeper, a claim he must make if his charge of equivocation is to have any bite, then, strangely, he must endeavor to place himself in the absurd position of seeking to undermine, not only Beccaria's argument (as construed), but any contractarian stance whatever, including the one he himself appears to adopt elsewhere,33 and, in any case, the one he must assume for the immediate purpose of dismantling Beccaria's argument. An even more absurd consequence of this strategy, if successful, would be effectively to reduce to incoherence any use of contract language whatever, and this, I believe, even Kant would find unacceptable. 5.3 Systemic Difficulties with the Death Penalty As I have shown, Kant's affirmative stance on the death penalty is not well served by the particular arguments he advances. But now, there is an even more fundamental 33Ibid., pp. 76ff (312ff); Kant gives as a "juridical attribute" of the citizen "the lawful freedom to obey no law other than one to which he has given his consent" (p. 78) (314).

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136 question to be answered, viz., whether or not (at the theoretical level) his system could adequately accommodate an affirmative stance under ..IlY circumstances. In posing this question, my concern is no longer one of addressing Kant s specific arguments (as before) but is instead one of inquiring whether his theory remains self-consistent in light of his (general) endorsement of capital punishment. In what follows I will examine several features of his system, and I will argue that in each case certain implica tions follow from these features which cast doubt upon the tenability of Kant's commitment to capital punishment My inquiry, in this regard, will begin with renewed attention to Kant's use of contract language. Here, I will be particularly alert to the idea of "consent" upon which he relies (or at least seems to rely) and to whatever conclu sions may be drawn in this connection having a bearing on the appearance, if not the substance, of a contractarian foundation for his system. 5.3.1 Kant's Use of Contract Language In my discussion of Kant's attack on Beccaria (5 2.3), I argued that any coherent use of contract language presupposes what I call "continuity of personhood" between agreement-maker and agreement-keeper. There, of course, I did not need to establish Kant's reliance on this notion in order to rebut his attack But now, I want to claim that his use of contract language in The Metaphysical Elements of

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137 Justice would leave him without any choice except to embrace the notion of "continuity of personhood." This is because incoherence, while undesirable at any level of exposition, would be intolerable at the systemic level, i.e., because here the damage done would be much greater than what would probably emerge if the issue were confined to the circumstances of a particular argument. The basis for my concern may be illuminated by careful attention to what Kant has to say about the notion of "consent." As previously noted,34 Kant includes among the "juridical attributes" of every citizen "the lawful freedom to obey no law other than one to which he has given his consent." By this, I understand him to imply that the law-obeyer (i.e., the agreement-keeper) is the very same person as the consent giver (i.e., the agreement-maker). Indeed, as I construe Kant's statement, it is in fact law-obeying in relation to consent-giving which defines a single attribute of every citizen.35 Within this context, therefore, I believe that Kant's embrace of the notion of "continuity of personhood" may well lie outside the scope of what can be plausibly challenged. Yet, within a variety of other contexts, I find myself very much at a loss to explain how this seemingly important "juridical attribute" of every citizen would 34Supra, n. 33. 35Kant lists this attribute among those which are "inseparably bound up with the nature of a citizen as such" (ibid.) (314); the others are "civil equality" and "civil independence."

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138 apply. For example, Kant allows that participation in a social contract may be coerced, as mentioned earlier (5.1), for "everyone may use violent means to compel another to enter into a juridical state of society."36 In another context he appears to say that "consent" to an established legal authority may be required, even in the absence of a social contract J37 Moreover, once "consent" ( so construed) has been given, "There can be no legitimate resistance of the people to the legislative chief of state."38 "Accordingly," Kant continues, "there 1.s no right of sedition (seditio), much less a right of revolution (rebellio) ."39 In fact, for Kant, withdrawing "consent" approaches the unthinkable; he writes, "It is the people's duty to endure even the most intolerable abuse of supreme authority. "40 Finally, in yet another context, Kant even makes the claim that any challenge to judicial authority on the ground that no actual contract has taken place is a crime for which the citizen "would be rightfully punished, destroyed, or exiled (as an outlaw, exlex) in accordance with the laws of that authority itself."41 It would appear 36Ibid., p. 77 (312). 3 7 lW.g. pp 111 f ( 3 3 9 f) 38.Iru.Q., p. 86 (320). 39Ibid. 40Ibid. 41.I.Q..i_g., p. 84 (318f).

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139 very doubtful, therefore, in light of these observations, that the understanding of "consent" reflected in these latter passages could be reconciled to Kant's earlier statement, where he embraces the law-obeying/consent-giving relationship as a "juridical attribute" of every citizen. Nor would it seem these latter passages could be reconciled to fillY very coherent use of contract language, and certainly none which takes account of what I regard to be its quintessential feature of "continuity of personhood" between agreement-maker and agreement-keeper. What all of this seems to suggest is that it would be highly unlikely that Kant's system could be properly regarded as a contractarian system. Moreover, if I am right about this, then his endorsement of the death penalty could hardly be defended on contractarian grounds; nor could his system be cogently employed by others in the service of their own contractarian arguments for capital punishment.42 As it happens, some scholars do construe Kant's use of contract language in~ Metaphysical Elements of Justice as a mere gloss of sorts on his system, indeed, a gloss which is functionally irrelevant insofar as the substantive operation of his political theory is concerned. For instance, J. W. Gough writes: For Kant [the social contract] was alto gether superfluous, since political obligation could quite well be founded directly, without any interpolation of a contract, on the moral 42See, e.g., Igor Primorac, "On Capital Punishment," Israel Law Review 17 (April 1982), pp. 139ff.

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obligations which he has already recognized as universally binding.43 In a similar vein, Michael Lessnoff observes: As a way of arguing for or against particular political institutions, ... [Kant's appeal to the social contract] seems needlessly circuitous. In brief, morally good beings would agree to morally good institutions, and whatever arguments might be deployed to show that institutions are such that morally good beings would (or would not) agree to them, could be deployed directly in defence of (or against) the institutions themselves, without reference to agreement, contract, or consent.44 140 To be sure, of course, if Kant's political theory is not a contractarian theory, as these men suggest, then I hardly need to say anything more to show that a contractarian defense of the death penalty cannot be extracted from his system. However, notwithstanding these observations by Gough and Lessnoff, some other scholars have been very forthcoming in their charterization of Kant's system as a contractarian theory. Howard Williams, for example, in his book, Kant's Political Philosophy, confidently asserts, "There is no doubt that the idea of ... [an original social contract] is of central importance in Kant's politi cal philosophy." 45 Moreover, Williams explains, "The notion of prior consent is essential to make the State into a moral idea." That is, "the notion of everybody having bound 43 The Social Contract, Greenwood Press, 1978, p. 183. 44 Social Contract, Humanities Press International, Inc., 1986, p. 94. 45Basil Blackwell, 1983, p. 192 (emphasis added).

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141 themselves to observe the rule of the sovereign in a social contract accurately depicts the existence of prior consent to the authority of the State. 11 46 Yet, Williams' ringing endorsement of the "central importance" and "essential" character of the notion of consent in Kant's political theory evident in these passages is no.tat all a ringing endorsement of consent (per se) in Kant's theory, as some of his ensuing remarks help to clarify. Kant departs from the established view by arguing that the conception of a social contract need have no empirical reality for men to be bound by the State. In other words, Kant thinks that the political philosopher has no need to argue that the individuals who make up a state have expli citly, or implicitly, agreed to such a contract now, or at some time in the past. His view is that it is not the social contract per se which binds individuals to the existing state but "rather only the idea of that act which makes it possible for us to conceive of the legitimacy of the state. 11 47 A very similar discussion appears in Patrick Riley"s book, Will and Political Legitimacy. the relevant chapter of which has been titled, "On Kant as the Most Adequate of the Social Contract Theorists."48 Here, Riley observes: The social contract is an idea of reason that provides a standard for judging the adequacy of states and their laws, but it has nothing to do 46.Il;;u._d. (emphasis added) 47Ibid., p. 183. 4BHarvard University Press, 1982, ch. 5.

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with actual agreement or with an actual promise to obey .49 142 Now, with regard to these remarks by Williams and Riley, it may well be, as they imply, that any proper understanding of Kant's political theory requires that a distinction be drawn between basing political obligation on the~ of a social contract and basing it on a social contract (per se). The worry I have, however, is that by classifying Kant as a "social contract theorist" (indeed, as the "Most Adequate of the Social Contract Theorists," on Riley's account), they may foster the wrong impression of Kant's theory, viz., that merely being in possession of an idea to the effect that I ought to become an agreement-maker, i.e., through partici pation in a social contract by means of which I could bind myself, say, to doing x, y, and z, is, in and of itself, enough to 12..ing me as an agreement-keeper to doing x, y, and z. This impression would be wrong because, even if I allow, as Kant's system appears to require,so that my being in possession of this idea is ipso facto enough to bind me to doing x, y, and z, it does not follow from this that I am thereby bound qua agreement-keeper to doing x, y, and z, as, in point of fact, I have made no such agreement. Another way of saying this is that there can be no breach of con tract where in fact no contract has been made. Here the 49Ibid., p. 125. SO"[I]t is the idea of ... [the original contract] that alone enables us to conceive of the legitimacy of the state" (The Metaphysical Elements, op. cit., p. 80) (315).

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143 relevant observation would be that, merely because a person is culpable for failing to do x, y, and z, i.e., in virtue of that person's being morally bound (in some way) to have done so, it does not follow from this that such a person would suffer any additional culpability for failing to keep an agreement to do x, y, and z, i.e., again, where in fact no agreement had been made. If my analysis is correct, then, what I have said should be enough to show that, if Kant may be plausibly classified as a "social contract theorist," as Williams and Riley believe, it simply cannot be in virtue of any con sensual arrangement by means of which Kant's citizens (I hesitate to call them "contractors") would be bound together in a "juridical state of society." All that remains, there fore, for me to consider, is how the distinction upon which Williams and Riley rely bears on my more fundamental worry over the (systemic) implications of Kant's use of contract language, i.e., given the difficulty he appears to have in maintaining a consistent position with respect to "continu ity of personhood. 11 51 Here, I believe, the necessary illumination can be provided through attention to two scenarios. In the first of these, suppose that you have a dog, Argos; and further suppose that I have entered an agreement with you to feed Argos while you are away on 51 Supra. pp. 134ff.

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144 vacation.52 I will also stipulate that this is an uncoerced agreement, i.e., one to which I have freely given my consent. What obligation I have to feed Argos, therefore, is entirely based on (i) my act of consent in the role of an agreement-maker and (ii) the (implicit) assumption (upon which we both rely) that an agreement made is one which ought to be kept. This scenario, I suggest, is (roughly) analogous to the sort of political obligation a person would incur as a result of his or her participation (qua agreement-maker) in a social contract. But now, consider a slightly different scenario. Here, suppose that I have nQ1. entered any agreement with yo~ to feed Argos, but instead I am moved to act (on behalf of your dog) under the impress of the Great Commandment Regarding Dogs, which reads: You will do for your neighbor's dog in your neighbor's absence just exactly as you would do if in fact you had entered an agreement with your neighbor to feed his or her dog in his or her absence. I will further stipulate here that I believe (for whatever reason) that I am morally bound by this commandment: conse quently, if you are away, no agreement is necessary to ensure that Argos will be fed; it is enough that I~ you are away and that I know what my gy_ty is under the command ment. This scenario, I submit, is (roughly) analogous to 52Perhaps I should inquire how long you will be away, given the precedent of Argos' namesake's master! (Odyssey XVII).

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145 the sort of political obligation incurred by Kant's citizens in a "juridical state of society," where "it is the Idea of [the social contract] that alone enables us to conceive of the legitimacy of the state."53 Observe, also, that this scenario, just as the earlier one, relies heavily on the use of contract language. Indeed, my very under standing of the Great Commandment presupposes that I understand what it means to incur an obligation based on consent. Moreover, before I can receive any guidance from this commandment about what I should do, I must already be committed to the assumption that I ought to keep any agreements I make. Otherwise, I would not be in any position to draw the hypothetical conclusion,54 which (in turn) tells me what my duty is under the commandment. By now, it should be very easy to see what the two scenarios I have described have in common and also how they differ. They are similar in that both rely heavily on use of contract language and both turn on my making an (implicit) assumption to the effect that any agreements I make are ones I ought to keep. Furthermore, analogizing on what is similar about these scenarios, it should also be easy to see why scholars like Gough and Lessnoff, on the one 53Supra. n. 50. 54Ex hypothesi: (i) I have promised to feed my neighbor's dog in my neighbor's absence; (ii) my neighbor is absent; and (iii) any promises I make are ones I ought to keep. Therefore, (iv) I ought to feed my neighbor's dog in my neighbor's absence (the hypothetical conclusion).

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146 hand, and Williams and Riley, on the other, have taken opposing positions on the question of whether Kant may be properly regarded as a "social contract theorist." The views of the former seem quite plausible insofar as being a social contract theorist is linked with basing political obligation on a social contract {per se). Kant does not do this and so would fail to qualify under this criterion. But now, if the notion of being a social contract theorist may be expanded to include a version of it which is linked with basing political obligation on the~ of a social contract, then the views of Williams and Riley may seem to acquire an air of plausibility, as well. Moreover, if plausibility were conceded to their view in this regard, then, they could argue {not unconvincingly) that Kant does do this and so would qualify under the expanded criterion. From this analysis, then, it would appear that whether or not Kant is classified as a "social contract theorist" depends entirely on which criterion is employed. Yet, the simplicity of this conclusion evaporates upon closer scrutiny. As I will show in the next section (5.3.2), the expanded criterion itself is defective and so any use of it to classify Kant would be spurious. Presently, however, as a preparation for my later remarks, I would call attention to an important difference in the two scenarios I have described. This difference, in turn, will be utilized to

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147 suggest a critically important, analogous difference in the opposing positions I have identified and discussed. Recall, then, from the first scenario, that it is my act of consent in my role as an agreement-maker which obligates me to feed Argos, while, in the second, it is the Great Commandment which is the source of my obligation. That is to say, in the former instance the moral basis for my duty derives from an agreement (per se); whereas, in the latter it derives from a source external to any agreement. It would appear, then, that while the first scenario may be quite appropriately regarded as having a contractarian foundation, the second would be more properly described as basing obligation on a "natural law" (i.e., the Great Commandment). However, the "natural law" foundation which I have attributed to the latter requires a prior knowledge by those who are so bound of what it would be like to proceed as though a contractarian foundation were the basis of obligation. It is the "prior knowledge" involvement here of a contractarian foundation which may create the impression that this latter scenario derives obligation from such a foundation. Yet, this is Ilfil so. Neither my knowledge of contract language nor the obligation I am under and accept to keep any agreements I make can obligate me to feed Argos. Only the commandment can do .t..hfil. Analogizing once more from this latter scenario to Kant's theory, then, it would

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148 appear that what tends to cloud matters in this area of Kantian interpretation is the presence of what I referred to in an earlier chapter (3.5) as an uneasy alliance of a "natural law" commitment and social contract theory. When Kant affinns "it is the Idea of [a social contract) that alone enables us to conceive the legitimacy of the state," he calls attention to the contractarian emphasis in his system; but when he asserts, "[It is) the Idea of the state as it ought to be [which) provides an internal guide and standard (nonna) for every actual union of men in a commonweal th, "55 he grounds political obligation on the "natural law" which every person's "own legislative Will" commends in connection with this Idea.56 Only by means of the sort of analysis I have provided, which draws attention to the distinction between basing political obligation on the idea of a social contract and basing it on a social contract (per se), is it possible to lift the cloud of confusion which obscures this area of Kantian interpreta tion. The important illumination which emerges, then, is that, while Kant relies heavily on contractarian assumptions as an expository mechanism for articulating the duties of citizens in a "juridical society," nevertheless, it is to 55.Dwj., p. 77 (313). 56"0nly the united and consenting Will of all--that is, a general united Will of the people by which each decides the same for all and all decide the same for each--can legislate" (i,Qig, p. 78) (313f).

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149 his "natural law" commitments that he turns for the ground of all political obligation. My analysis is also helpful in other ways. The more fundamental worry I had over whether Kant maintains a consistent position on the matter of "continuity of person hood" may now be (at least arguably) laid to rest. That is to say, under the distinction between basing political obligation on the idea of a social contract and basing it on a social contract (per se), it may now be possible to view Kant's use of contract language and his reliance on contrac tarian assumptions as being entirely confined to his discus sion of the idea of a social contract. This interpretation would appear to insulate Kant's system against the charge of incoherence by effectively disallowing any basis for linking actual agreement-keeping to hypothetical agreement-making, i.e., where the latter is the ground of political obligation for the former; hence, my fundamental worry would be preempted. Another beneficial effect of my analysis is that, while it does not decide the question of whether Kant is a "social contract theorist," it does make clear that, if he is one, it must be so notwithstanding his embrace of a system which grounds political obligation on a "natural law" foundation. Of course, if he is not one, then his system could hardly be expected to provide the underpinning necessary for a contractarian defense of the death penalty, and so IDY

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150 interest in him would be exhausted. What I have yet to say in this chapter, therefore, will be directed to those who believe~ that Kant is a "social contract theorist" (under the expanded criterion) gllij that his system (so construed) is compatible with an affirmative stance on capital punishment. My remarks, in this regard, will be intended to show that classifying Kant as a "social contract theorist" (under the expanded criterion) is, under the best of circumstances, a vacuous maneuver and, under the worst, also a misleading one because the vacuity goes unrecognized (5.3.2); and, further, even if this were not so, Kant's embrace of the death penalty may still be untenable in light of his "natural law" commitments in the area of punishment. In this latter connection, I will consider whether or not his position on punishment of the innocent is compatible_ with his "principle of equality" and with the underlying idea of a categorical imperative which requires punishment for those, and only those, who have committed crimes ( 5. 3. 3) 5.3.2 The Vacuity of the Expanded Criterion Earlier, I suggested that the expanded criterion itself is defective and so any use of it to classify Kant would be spurious. Now, I want to explain why I believe this to be so. To achieve this, I will show that Williams' and Riley's embrace of the expanded criterion facilitates much more than merely the absorption of Kant's theory into the

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151 contractarian camp. Indeed, their criterion allows for the classification of ..il theories of political obligation (having a moral foundation) as "social contract theories"! Perhaps the easiest way to show this would be to exhibit the formal structure upon which Williams and Riley rely in their classification of Kant's theory as a "social contract theory" (i.e., under the expanded criterion). That is to say, Any person, S, is under a (political) obligation to do x just i~ case, hypothetically, S would agree to do x were Sunder the constraint of having to agree to do whatever Sought to do {i.e., in the political context). Here, by the substitution of 'Kant's citizen' for 'S,' a statement of all the political obligations which may be {independently) derived from Kant's "natural law" assump tions for 'x,' and 'the constraint of a Holy Will' for 'the constraint of having to agree to do whatever Sought to do,' Kant's theory may be materially represented in a manner which corresponds to Williams' and Riley"s account. But now, observe that filri theory of political obligation having a moral foundation may be materially represented in this way! That is to say, by the simple expedient of substitut ing the material contents of some other theory into the formal structure I have described, that theory, too, may be classified as a "social contract theory" under the expanded criterion. This works, of course, because the material contents of such a theory remain unchanged when the formal

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152 structure I have given is superimposed on it. I would conclude, therefore, that Williams' and Riley"s classifica tion of Kant as a "social contract theorist" is misleading, not only because their remarks may serve to foster a wrong impression of his theory, as I have previously argued (5.3.1), but also because the term itself is vacuous, and this for the very reason I have brought to light in this section, viz., that it provides no substantive basis what ever upon which to distinguish a social contract theory (whether Kant's or someone else's) from any other theory of political obligation (having a moral foundation). Finally, since my overall objective of assessing the tenability of capital punishment within the framework of social contract theory would not be well served by further attention to the expanded criterion, I reject it for the reasons I have given and, with it, any suggestion that Kant may be plausibly regarded as a theorist under this criterion. Although I believe this to be the proper conclusion to draw, I will, nevertheless, in what remains of this chapter, endeavor to show that, even if the expanded criterion could be plausibly applied to Kant's theory, still, some of his "natural law" commitments loom as obstacles for his affirmative stance on the death penalty.

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153 5.3.3 Kant's "Natural Law" Foundation and Punishment of the Innocent There seems to be little doubt about Kant's position regarding punishment of the innocent.57 He writes: "The right to punish contained in the penal law is the right that the magistrate has to inflict pain on a subject in consequence of his haying committed a crime"; and later, "Juridical punishment must be imposed on him [the criminal] only on the ground he has committed a crime." 58 Kant's theory of punishment, therefore, would seem defective in at least one very important respect, viz., that it can provide no ground whatever for the use of punishment in those cases where the person being punished has in fact committed no crime.59 I will explain. Since those who are in fact innocent may nevertheless be subjected to punishment 57George Schedler typifies the view of many scholars when he identifies the following proposition as "central to the retributivist doctrine" of Kant and others: "It is unjust to punish those who have done no moral wrong nor committed any crime" ("Can Retributivists Support Legal Punishment?" Monist 63 (April 1980), p. 186); see also Richard Lempert, "Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital Punishment," Michigan Law Review 79 (1981), pp. 1182f; Murphy, op. cit., p. 493. 58 The Metaphysical Elements, op. cit., pp. 99f (331) (emphasis added). 59"The only basis of justification for imposing criminal punishment according to retributivism is moral desert: that which can be said to have been earned or merited by the willed behavior of a responsible individual .... Kant's own ambitious requirements for the practical dete:rmination of moral desert (including that, presumably, for murder) do not admit of being fulfilled" (Robert A. Pugsley, "A Retributivist Argument Against Capital Punishment," Hofstra Law Review 9 (1981), pp. 1513, 1515).

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154 in a "juridical state of society," Kant's theory, if it is to have any practical relevance whatever, must be compatible with regarding punishment of the innocent as a permissible {albeit, undesirable) outcome of .any use of punishment by the state. Yet, this compatibility would seem theoretically excluded, I submit, in light of his "natural law" commitment to the "principle of equality." I say this because fillY use of this principle to impose punishment on an innocent person not only fails to "equalize" the harm done to society by the commission of a particular crime but also imparts an additional harm to the innocent person .ang, indeed, to the rest of society, since all citizens are less secure whenever an innocent person suffers harm from others, and all the so where this occurs under color of law! It would appear, therefore, that Kant's theory of punishment has neither an empirical ground {"he has committed a crime") mr a theoretical ground {under the "principle of equality") when an innocent person is subjected to punishment. More over, if no ground whatever can be found for punishment of the innocent under Kant's theory, then, as a practical matter, no punishment at all could be sanctioned {including, of course, the death penalty) .Go Yet, another feature of the "principle of equality" would seem to tell against use of the death penalty. 60Cf. Schedler, e.g., who argues that "a consistent and coherent retributivist must condemn all systems of legal punishment" (op. cit., p. 196).

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155 Suppose, for the sake of argument, that punishment of the innocent were (somehow) permissible under Kant's theory. Here, I would think that any (erroneous) punishment of an innocent person would be subject to the stipulation that the penalty imposed must be at least potentially reversible just in case innocence were to be established post eventum. Without this minimal stipulation, I urge, the very notion of a "principle of equality" would seem to suffer an intoler able loss of conceptual power and integrity, and this for the obvious reason that the generation of an irreversible imbalance must then be embraced as a permissible outcome of its application. The death penalty, to be sure, is perhaps unique among punishments in its certain lack of reversibility and so must be rejected even if the generation of (potentially) reversible imbalances may be regarded as permissible outcomes of applications of the "principle of equality" under Kant's theory. 61 Finally, it should be remembered that the "principle of equality" arises as an extension of Kant's categorical imperative regarding punishment.62 It is to the imperative itself, however, that he turns for his ultimate 61In this context I understand 'reversibility' to mean an undoing of the untoward effects of punishment, which could include, perhaps, some form of monetary compensation and, most certainly, public exoneration and the restoration of one's good name. 62Cf. Steven S. Schwarzschild who "rules out" capital punishment on Kant's theory because such a penalty would be "uncorrectable" ("Kantianism on the Death Penalty," ARS. LXXI (1985), p. 344).

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156 justification of "juridical" punishment as a requirement of "natural law. "63 That this is so can be seen from the context of his remark that a person may be punished "only on the ground that he has committed a crime."64 One reason for this restriction, Kant explains, is that the categorical imperative forbids any punishment of a person "merely as a means to promote other good for the criminal himself or for civil society. "65 This is because, he continues, "a human being can never be manipulated merely as a means for the purposes of someone else."66 Here, Kant is at theoretical bedrock, I submit, as this passage is a transparent adapta tion of his second formulation of the categorical imperative in the Foundations of the Metaphysics of Morals. 67 Moreover, as the continuation of this passage will show, he invokes the second formulation not only to provide a rationale for the use of "juridical" punishment generally but also to secure a theoretical foothold for the specific use of the death penalty. In Kant's own words, "a human being can never be manipulated merely as a means" because "his innate 63Supra, n. 24. 64 The Metaphysical Elements, op. cit., p. 100 (331). 65.llwJ. 66.llu.,Q. 67"Act so that you treat humanity, whether in your own person or in that of another always as an end and never as a means only" Cop, cit p. 47) (429).

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157 personality ... protects him against such treatment,~ though he may be condemned to lose his civil personality." 68 Against this, I would just say that I fail to see how any regard whatever can be shown a person who is made to suffer punishment unless that regard includes (at the~ least) recognition of an entitlement to relief from the harmful effects of that punishment should the person's innocence be established either while the punishment is in progress or afterwards.69 If I am right about this, and, as I have implied, this entitlement is a necessary feature of the least regard in which a person can be held as an end-in himself (or -herself) under the second formulation, and still be punished, then, of course, any use of the death penalty would be excluded ipso facto, as this punishment affords no relief which is feasible during its administra tion nor any which is possible afterwards.70 68 The Metaphysical Elements, op. cit., p. 100 (331) (emphasis added). 69Cf. Thomas W. Satre who argues that the "concept of human dignity" seems to require the following "principle of compensation": "No penalty will be imposed which will preclude, by the very act of imposition, that the person penalized may be compensated in case it is later discovered that the penalty was of the wrong type, was too great in severity or amount, or was administered as a result of judicial mistake" ("Human Dignity and Capital Punishment," Journal of Philosophical Research XVI (1990-91), p. 242). 70"The categorical imperative itself, never to use an human being merely as a means, compellingly. [leads to the conclusion that Kant should have been] a radical opponent of capital punishment, ... for that a human corpse cannot be any kind of end-to-itself would seem to be obvious" (Schwarzschild, op. cit., p. 347).

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158 In light of these various analyses, then, I would conclude that, even if Kant merits consideration as a "social contract theorist" (under the expanded criterion), as Williams and Riley suggest, his own "natural law" commitments with respect to the "principle of equality," and the concept of a categorical imperative, get in the way of any prospects for a cogent defense of capital punishment based on his system.71 71 Kant's discussion of a "realm of ends" (Foundations, op. cit., pp. SSlff) (433ff) would also appear to be at odds with his affirmative stance on capital punishment; on this, see Thomas Auxter, "Kant's Theory of Retribution," Akten des Siebenten Internationalen Kant--Kongresses (Kurftirstliches Schlo~ zu Mainz, 1990), von G. Funke, 1991, pp. 312ff.

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CHAPTER 6 RAWLS AND THE PRINCIPLE OF LIBERTY In his widely respecteo history of the social contract tradition, J. W. Gough proclaimed in 1936 that Kant's phil osophy "brings us within sight of the end of the contract theory."1 Yet, as Michael Lessnoff aptly remarked fifty years after that, "recent developments have shown this judgment to be premature."2 By "recent developments," of course, Lessnoff referred to "the modern revival of contract theory," which he then "associated above all with the name of John Rawls."3 In that same year (1986), however, another major theory of the social contract would emerge, namely that of David Gauthier, whose Morals By Agreement would, in time, rival Rawls' A Theory of Justice for the attention of many political philosophers and scholars in other disci plines. Rawls' theory will be the subject of my inquiry for the present chapter; Gauthier's, the topic for Chapter Seven. 1 The Social Contract, Greenwood Press, 1978, p. 183. 2Social Contract, Humanities Press International, Inc., 1986, p. 97. 159

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160 As Rawls himself is silent on the death penalty in his published writings,4 I will concentrate on those features of his system upon which others have relied in developing arguments for the death penalty (6.1). After this, I will turn to the arguments themselves which consist of the extrapolative efforts of two philosophers, W. E. Cooper and John King-Farlow (6.2),S and those of a professor of law, Samuel J.M. Donnelly (6.3) .6 6.1 Relevant Features of Rawls' Theory What Rawls tries to do in A Theory of Justice is to identify the principles of justice which unenvious, self interested, rational contractors would be motivated to select in what he calls the "original position," which, on his own account, corresponds to what earlier theorists have called the "state of nature."7 In order to ensure that the 4Although Rawls has not discussed capital punishment in any of his published writings, he has disclosed to me in correspondence that his theory does not require a "specific opinion" on the topic. "So much would depend," he explains, "on the nature of existing institutions, class structure, and much else, including the historical and sociological evidence, which tends, I think, to disfavor it, strongly" (Letter to author, August 4, 1991). 5"A Case for Capital Punishment," Journal of Social Philosophy 20 (Winter 1989), pp. 64-76. 6 11 A Theory of Justice, Judicial Methodology, and the Constitutionality of Capital Punishment: Rawls, Dworkin, and a Theory of Criminal Responsibility," Syracuse Law Review 29 (1978), pp. 1109-1174. 7"In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract" (Harvard University Press, 1971, p. 12).

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161 deliberations of these hypothetical contractors will be fair and impartial, Rawls requires that they negotiate behind a "veil of ignorance." What this means is that, while they will have access to general facts about society, they will lack specific information, including knowledge of their own identities.a Under these circumstances Rawls suggests his contractors would arrive at two principles of justice: one, a principle of liberty which requires that "each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all"; and the other, a distributive principle which imposes constraints on how "social and economic inequalities" may be allocated.9 Now, for Rawls, the principle of liberty is lexically prior to the distributive principle (and in fact all other principles), and so this would mean that "liberty can be restricted only for the sake of liberty. "10 Both the arguments of Donnelly and of Cooper and King-Farlow have their bases in an appeal to Rawls' Bibid., pp. 136ff. By restricting available information to "general facts," Rawls' purpose is to ensure that his contractors will arrive at a unanimous agreement in the original position. In his own words, "The veil of ignorance makes possible a unanimous choice of a particular conception of justice" (p. 140) 9"Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity" (.ihl,g. I P 302) 10.Il:riQ.

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162 principle of liberty. With additional reliance on Rawls' quite brief and rather sketchy remarks about criminal responsibility,11 Donnelly argues to the conclusion that capital punishment would be pennitted only if "it were demonstrated rigorously that the death penalty was necessary to preserve the conditions in society without which liberty could not exist."12 In a more ambitious and, indeed, much more speculative vein, Cooper and King-Farlow argue that Rawls' principle of liberty would allow for the execution of murderers whenever the public funds which could be saved by killing them may be diverted for the purpose of sustaining the lives of innocent people who would otherwise die (say, e.g., very poor people in dire need of very expensive medical treatment) .13 In what follows I will assess the fitness of these arguments as plausible extrapolations of Rawls' theory. 6.2 Cooper and King-Farlow's "Dying Innocents" Rationale Cooper and King-Farlow preface their use of Rawls' theory with an appeal to "everyone's intuitions" about a "lifeboat dilemma." 14 In this dilemma the occupants of a lifeboat are confronted with a choice of saving either the 11.I.12.i_g p 2 41. 120p, cit., p. 1173. l30p Cit pp 6 5 ff 14Il-,.;' rl p 64.

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163 life of an innocent person or that of a murderer, since the vessel "will not hold both persons."15 Saving the former while permitting the latter to die, they insist, is the choice which conforms to "everyone s intuitions" about what should be done. Moreover, they continue, "We hope to project everyone's intuitions about this case onto the more baffling case of a society's relationship to the murderers and dying innocents in its midst."16 By "dying innocents" they mean noncriminals who would be expected to die because they are ill and cannot afford the high cost of the medical attention they require for survival (e.g., an indigent who needs an organ transplant). With respect to this "baffling case," they expect to confirm "everyone's intuitions" by forging "a moral permission to execute murderers when the cost of keeping them alive could be diverted to the saving of innocent lives."17 They intend to achieve this by means of an extrapolation on Rawls' theory. Specifically, they want to argue that "self-interested, rational, free, and equal contractors" in "Rawls' Original Position" would recog nize from the general information they have been provided that each of them has an equal or better chance of being a "dying innocent" than of being a condemned murderer. On the basis of this recognition, then, these contractors would 15.Im..Q 16Ibid. 17Ibid., p. 65.

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164 also realize that "they would best protect their own interests by opting for capital punishment and [as a consequence] they would interpret the liberty principle so that it does not guarantee a right not to be executed for murder."18 Observe that the argument of Cooper and King Farlow turns on an empirical assumption, viz., that (a) exe cuting murderers costs less than keeping them alive, and on a rather idiosyncratic interpretation of Rawls' principle of liberty, viz., that (b) executing murderers does not violate this principle where (a) is true. In what follows I will explain what is doubtful about both of these assump tions. Before doing this, however, I want to comment on the matter of Cooper and King-Farlow's prefatory appeal to "everyone's intuitions" about a "lifeboat dilemma." First of all, exception must be taken to their claim that saving the innocent person while permitting the murderer to die is the choice which conforms to "everyone's intuitions" about what should be done. Surely the murderer himself or herself would view this dilemma in quite a different light! Sec ondly, since it cannot be supposed that the relevant "intui tion" here is embraced by all concerned, I fail to see any value it would have as an analogy for those principles 18.IQ.isl., p. 69.

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165 unanimously embraced by Rawls' hypothetical contractors.19 Finally, even setting aside this specific objection, I have already given a general argument in an earlier chapter (2.5.2) to show that a lifeboat scenario, in which, presum ably, actual people would deliberate about their fate, cannot provide a suitable analogy to the negotiations of hypothetical contractors, i.e., insofar as a (hypothetical) social contract is thought to bind actual people in a manner comparable to lifeboat negotiations in an empirical context. Regarding the contention at (a), namely, that executing murderers costs less than keeping them alive, available economic data simply fail to provide any support for this claim. Evidently, Cooper and King-Farlow have not reviewed the pertinent literature in this area and so seem only dimly aware of the potential for any problem with their conten tion. They write: We acknowledge the high cost of a capital trial, of the appeals process, and of the special methods of custody for murderers awaiting execution. Such considerations amount to a small question-mark for the hypothesis.20 Yet, this "small question-mark," I submit, looms much larger in light of a study by Robert L. Spangenberg and Elizabeth R. Walsh, entitled "Capital Punishment or Life Imprisonment? 19"(W]e can view the choice in the original position from the standpoint of one person selected at random. If anyone after due reflection prefers a conception of justice to another,then they all do, and a unanimous agreement can be reached" (A Theory of Justice, op. cit., p. 139). 2ocooper and King-Farlow, op. cit., p. 65.

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Some Cost Considerations," published in the same year as Cooper and King-Farlow's article.21 Spangenberg and Walsh review a wealth of information in this area gathered from various sources, including government agencies. Based on their analysis of these data, they conclude "that, in dollars and cents, capital punishment is simply more expensive than life imprisonment."22 166 Of course, {b), namely, the assumption that executing murderers does not violate Rawls' principle of liberty where {a) is true, is of no value to Cooper and King-Farlow"s argument if (a) cannot be sustained. Nevertheless, as I will suggest, executing murderers would indeed violate Rawls' principle even if (a) were true. That this is so will become apparent in conjunction with my presentation of Donnelly's argument in the next section. There, I will show, any possibility of permissible use of the death penalty under Rawls' theory would be restricted to what Donnelly calls a "limit situation." Since this restriction would exclude Cooper and King-Farlow's rationale for use of the death penalty at (a), (b) may be rejected even if (a) were true. 6.3 Donnelly's Imperilment of Liberty Argument Rawls observes that even in a "well-ordered society" a coercive sovereign will be "presumably always necessary" to 21 Loyola of Los Angeles Law Review 23 (1989), pp. 45-58. 22.IQ.i_g., p. 58.

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167 ensure that everyone will have incentive adequate to promote a high measure of compliance with the "rule of law. "23 In this way, he suggest, "the existence of effective penal machinery serves as men's security to one another. "24 Within this framework the idea of "criminal responsibility" is a reflection of the publicity which attaches to the penalties imposed by a government, which is to say that penal sanc tions apply to citizens who breach the law only because (in advance of the breach) they "know what the law is and. [have been] given a fair opportunity to take its directives into account."25 Donnelly extrapolates on this idea of "criminal responsibility" and draws the implications it would appear to have for Rawlsian contractors in the "original position." Here he argues, the contracting parties would embrace "a scheme of punishment" to which they would commit "for the sake of preserving, free from inter ference, the opportunity of each to pursue a rational plan of life."26 In other words they would embrace such a scheme only "for the sake of preserving liberty. "27 Donnelly's extrapolation, in this regard, would seem entirely consis tent with Rawls' own observation that "the principle of 23 A Theory of Justice. op. cit., p. 240. 24.Ib.i,g. 25.Ib.i,g., p. 241. 2 6 0p cit p 113 7 27.Ibi,Q.

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liberty leads to the principle of [criminal] responsibil ity. 11 28 168 Donnelly is also correct, I believe, in his suggestion that Rawlsian contractors would take a utilitarian, rather than retributive, approach in the selection of appropriate penal sanctions. "The contracting parties would be con cerned with deterring interference with their rational plans of life," he writes, "and would have no interest in punish ing except for the purpose of deterrence."29 Rawls appears to confirm this analysis when he writes: "[T]he principle of [criminal] responsibility is not founded on the idea that punishment is primarily retributive or denunciatory," but rather "is acknowledged for the sake of liberty itself."30 Donnelly, however, qualifies his suggestion regarding the utilitarian character of Rawls' idea by emphasizing that the contractors' choice of deterrence as the basis for punish ment would be made "for the sake of liberty and not for the purpose of maximizing the sum of societal satisfactions or the average enjoyment of each (contractor]. "31 An important theoretical effect of this, he claims, is that Rawlsian contractors "would not agree to punishment in the absence of guilt," even if it would increase the sum of societal 2sA Theory of Justice, loc. cit. 29 0p. cit., p. 1138. 30 A Theory of Justice, loc. cit. 31 Loc. cit.

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169 satisfactions or the average enjoyment of each contractor.32 In this way Donnelly tries to make the point for Rawls that the deterrence rationale for punishment is itself constrained by the principle of liberty. A practical corollary of this point is that the choice of any particular punishment may be decided on the basis of deterrence considerations only where the principle of liberty is not transgressed. To this point I have discussed several features of Donnelly's attempt to extrapolate from Rawls' principle of liberty and his brief remarks on criminal responsibility enough of an outline of a theory of punishment upon which to base an argument for the death penalty. Before looking at the argument itself, there are two other features of his attempt which merit preliminary attention. One of these features relates to his claim that slavery would be an unacceptable practice under Rawls' theory because contrac tors in the "original position" would never agree to be treated in this way. In point of fact, I would just note, Rawls~ allow for slavery as a permissible practice under certain extraordinary circumstances.33 Nevertheless, Donnelly is apparently unaware of this and so argues to the conclusion that Rawlsian contractors would not permit so extreme an abridgement of their liberty as slavery would 32Ibid., p. 1140. 33 A Theory of Justice, op. cit., p. 248; also, see my discussion, infra, pp. 174ff.

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170 require.34 On the basis of his reading of Rawls' handling of the case of slavery, Donnelly concludes that Rawlsian contractors would not only reject the practice of slavery but, indeed, would reject smy scheme of punishment which threatened them "with ultimate destruction of all opportunity to achieve a rational plan for lives]. 11 35 [their Having based this conclusion on a mistaken view of Rawls' position regarding slavery, Donnelly's next move is saddled, not only with this difficulty, but with an additional problem. He now presents as an open question whether or not Rawlsian contractors "would accept the risk of such ultimate destruction in order to avoid the collapse of society. "36 But now, it may be fairly asked of Donnelly, What is a threat if not a~ that something will happen? In other words, what can it mean to say that Rawlsian contractors would not accept that which "threatens" them with ultimate destruction but that it remains an open question whether or not they would accept the "risk" of such destruction under certain conditions? At the very least Donnelly needs to make clearer his views on whether or not, 34"[T]he two principles of justice both protect the contracting parties' basic rights and insure them against the worst possibilities. On raising the veil of ignorance they will not be slaves nor subject to someone else's first person dictatorship" (Donnelly, op. cit., p. 1122) 35~. I P 1141. 36.Il:2..i.d. pp. 1141f.

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171 and if so, to what extent, Rawls' principle of liberty operates to constrain risk-taking with regard to "ultimate destruction of all opportunity to achieve a rational plan." As I will shortly explain, much depends on how this question is answered. The other feature requiring preliminary attention is the Kantian shadow Donnelly casts over Rawls' remarks about liberty and criminal responsibility. Here, the essential point Donnelly makes is that, while Rawls' theory requires deterrence, rather than retribution, as a criterion for the acceptability of specific punishments (contra Kant), never theless an extrapolated theory of punishment for Rawls would in other respects require a distinctly Kantian emphasis. On this point, I believe, Donnelly is fundamentally correct. The case for a distinctly Kantian emphasis is made by recall ing that "under Rawls' analysis criminal punishment is for the sake of liberty."37 Donnelly interprets this to mean that "liberty must be understood both from the point of view of the person whose liberty is affected by private violence and from the point of view of the person whose liberty is affected by government imposed sanctions."38 Donnelly suggests that, in considering these two points of view, both persons "must be respected as persons who are ends in 37l..bi.g., p. 1142. 38112i.Q.

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172 themselves," as Kantian theory requires.39 Rawls himself would appear to provide the underpinning for this suggestion when he writes: "The original position may be viewed. as a procedural interpretation of Kant's conception of autonomy and the categorical imperative."40 He continues, The principles regulative of the kingdom of ends are those that would be chosen in this position, and the description of this situation enables us to explain the sense in which acting from these principles expresses our nature as free and equal rational persons 41 and in another context, [T]o respect persons is to recognize that they possess an inviolability founded on justice that even the welfare of society as a whole cannot override. 42 Whether or not Rawls' embrace, or indeed, anyone's embrace, of the Kantian emphasis on treating persons as ends in themselves is consistent with an affirmative argument on the death penalty is a question I have already addressed in a previous chapter (5.3.3). Nevertheless, I will still have a bit more to say about this in connection with Rawls' theory. I turn now to Donnelly's argument for the death penalty which he derives from his extrapolations on Rawls' remarks about liberty and criminal responsibility. At the outset I must say that Donnelly is persuaded that Rawlsian 39.IQ.ig. 40 A Theory of Justice, op. cit., p. 256. 41.lb.i,g. 42.llli,g., p. 586.

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173 contractors would reject use of the death penalty under any but the most extreme societal conditions. That is, these contractors, in nearly all instances, would so value their personal liberty that they would~ agree to accept the risk of death by execution.43 In Kantian terms, I would just note, this could be expressed by saying that they would not agree to accept the risk of being used as a means Q!1..ly of deterring others from committing capital crimes. Since rehabilitation or deterrence of those under sentence of death can hardly be a part of the rationale for their punishment, it becomes very difficult to imagine any convincing way of showing that putting people to death also counts as treating them as ends in themselves, as, of course, I have previously argued (5.3.3). Notwithstanding this, Donnelly goes on to claim that there is in fact a "limit situation" where Rawlsian contractors would agree to accept the risk of death by execution.44 This situation would arise, he explains, only under circumstances where "it were demonstrated rigorously that the death penalty was necessary to preserve the conditions in society without which liberty could not exist."45 Donnelly offers two examples of circumstances at the "limit." One of these is a 430p. cit., pp. 1149ff. 44"If all opportunity to pursue a rational plan of life were at stake, the parties might consent to the chance of death by capital punishment" (ibid., p. 1151). 45.IQisj., p. 1173.

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174 "primitive anarchic society" where "strong governmental action backed by capital punishment" is deemed necessary "to secure the bedrock opportunity to lead a rational life by taking the deliberate chance that the opportunity will be completely destroyed. "46 His other example also involves a primitive society but, in this case, one with a government that is "on the verge of collapse due to private violence."47 In both examples, he argues, Rawlsian contractors would agree to risk ultimate destruction "for the sake of liberty." (Observe that if Donnelly is at least right in assuming here that anything short of a "limit situation" fails as a rationale for capital punishment under Rawls' theory, and I believe he 1.. correct in this, then Cooper and King-Farlow's claim at (b) may be rejected ipso facto.) Now, in addition to "limit" circumstances where civil society is on the verge either of imminent emergence or of imminent collapse, Donnelly also requires that there be convincing evidence available to show that use of the death penalty would in fact deter private violence sufficiently to insure that such a society would either emerge or avoid collapse under these extreme conditions.48 Just what would count as "convincing evidence," for Donnelly, varies from time to time. "In modern times," he writes, "it would be 46.I.Qig.' p. 1151. 47.IQ.ig. 48.1.Qig., p. 1143.

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175 empirical evidence developed by statistical techniques approved in the social sciences."49 On this basis he concludes that the burden of providing such evidence has not been satisfied in "modern Arnerica. 11 50 Notwithstanding this, however, he also concludes that "one can speculate that in some other society during more primitive or yet more civil ized times there would be sufficient data to show deter rence, according to then current standards of evidence."51 It follows from this account and Donnelly's earlier com ments, that in order to justify use of capital punishment under Rawls' theory, Donnelly would require both (i) an imperilment of liberty or "limit" situation, and (ii) the availability of convincing evidence of a deterrence effect from employing the death penalty sufficient to reverse the imperilment. One may appropriately ponder, I suggest, whether in fact these two conditions would ever be satisfied simultaneously. After all, a society so unstable that liberty itself is imperiled would not seem a very likely candidate for one where very careful attention would be given either to evidentiary standards or to the objective assessment of empirical data. A major difficulty I have with Donnelly's argument relates to his understanding of what constitutes an imperil49Ibid. SO.lb.i.g., p. 1152; cf. Rawls' view, supra, n. 4. 51.Ib..i_g.

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176 ment of liberty or "limit" situation. Just why it is that he believes that Rawlsian contractors would reject slavery as too radical a curtailment of liberty, while at the same time, he believes that they would accept use of the death penalty under certain conditions, is not easy to see. Perhaps a source of illumination here would be to consider what Rawls himself has to say about slavery. "[S]uppose that city-states that previously have not taken prisoners of war but have always put captives to death," he writes, "agree by treaty to hold prisoners as slaves instead."52 Rawls claims that this form of slavery would be acceptable because the alternative of death would be worse. In other words the curtailment of liberty due to slavery would not be so extreme as the ultimate destruction of all opportunity to pursue any rational plan of life which inevitably accom panies imposition of the death penalty. Now, applying this same formula to the death penalty itself, it would appear to follow from Rawls' analysis that capital punishment would be acceptable only where an alternative worse than death could be thereby averted. But, what exactly would be an alterna tive worse than death? I suppose Rawls could respond by saying that city-states which had formerly tortured their prisoners of war before killing them could, in the interests of justice(?), agree by treaty QilJ.y to kill them. Yet, would this be enough of an improvement to recognize the mere 52 A Theory of Justice, op. cit., p. 248.

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177 killing of prisoners of war as an "acceptable" practice? If there is a "limit" situation for Rawls' theory I would think it would be one at least no worse than that of slavery. It would appear to undermine the pride of place the principle of liberty occupies in his system to suppose that a just choice can be made between two possibilities both of which allow for the ultimate destruction of all opportunity to pursue any rational plan of life. Yet another questionable effect of allowing such a choice would be that it seems to abandon altogether the Kantian emphasis on treating persons as ends in themselves. Indeed, it is difficult to appreci ate how Rawls can (without inconsistency) both commit himself to the idea of a just choice here and still remain faithful to the Kantian idea which equates respecting persons with recognizing (in Rawls' own words) "that they possess an inviolability founded on justice that even the welfare of society as a whole cannot override. 11 53 Another problem I have with Donnelly"s analysis relates to the manner in which he seeks to characterize acceptance of the death penalty as a type of risk-taking strategy Rawlsian contractors would exercise under certain condi tions. First of all, (justly) suffering death by execution, unlike suffering death by natural or accidental happenstance or by the unjust actions of others, is a tig Rawlsian contractors have within their powers to exclude. Moreover, 53~., p. 586.

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178 as I have urged, they have good reason to exclude it if Rawls" principle of liberty is not to have a hollow ring but is instead to reflect (as Rawls claims it does) the Kantian ideas of individual autonomy and respect for persons. Secondly, in the "original position" the extreme conditions which Donnelly claims would justify acceptance of the death penalty do not (as yet) obtain. Indeed, they will obtain, if at all, only after the "veil of ignorance" has been lifted. Yet, the task confronting Rawlsian contractors is one of selecting sufficiently broad principles of justice to encompass the full range of possible circumstances which may exist only after the veil is lifted. They are in no position whatever to make an empirical judgment that in a particular set of circumstances a "limit" situation actually obtains and therefore use of the death penalty is justified. All they can possibly do, from the standpoint of the "origi nal position," is to defer that judgment to some one or ones "on site" in the actual context. But what principle or principles in Rawls' system operate to specify who the one or ones will be? That is to say, who will be authorized to make the judgment that~ a "limit" situation obtains and therefore use of the death penalty is justified? In the case of a society on the verge of collapse, I suppose, this judgment might be deferred to the one or ones in power, but who would get to call the shots in the case of an emerging society? Moreover, even in the case of a society threatened

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179 with disintegration, I am left to ponder, if societal conditions are so bad that the government is on the verge of collapse, how much confidence could anyone be reasonably expected to have in the judgments of the one or ones in power? Indeed, how much less would they be prepared to concede that such judgments were authorized by themselves as contractors in the original position? Finally, I would just say that I would have no objections to Donnelly"s analysis of risk-taking if he were to confine his remarks to the status of an actual agreement made by contractors at or before the threshold of what they deem to be a "limit" situation. That is to say, I have no problems with all the people in a precariously disposed society getting together and unanimously agreeing to accept the risk of death by execution in order to avert a societal collapse.54 It seems consistent to me with the Kantian ideas of individual autonomy and respect for persons that people may freely choose to risk their lives in the attempt to secure for themselves more enhanced opportunities to develop a rational plan for their lives. But what I do take exception to is the idea that actual citizens can be {justly) put to death on the basis of a hypothetical agreement it is supposed they would have made behind a "veil of ignorance," altogether oblivious to the actual conditions they would have to know to make any plausible assessment 54Cf. supra. ch. 2, pp. 43f.

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180 about whether or not a "limit" situation in fact obtained. I am well aware that, as a practical matter, in a society of any size beyond the tribal level, it is highly unlikely that the citizens of a state would agree on anything unanimously, much less on whether or not to employ the death penalty. But this practical observation can hardly be advanced as a reason for attributing risk-taking to Rawlsian contractors in a matter about which they are entirely lacking any factual basis for a judgment and, moreover, in a matter so weighty that their judgment from ignorance may decide whether or not actual citizens live or die.

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CHAPTER 7 GAUTHIER'S "INITIAL BARGAINING POSITION" 7.1 The "Initial Bargaining Position" The last of the social contract theories I will examine is that of David Gauthier. In Morals By Agreement he expounds a theory in which he seeks to derive moral con straints on what a person may do based solely on an assess ment of what rationality would require of anyone whose deliberations were governed entirely by motives of self interest.l In this vein he writes: "[O]ur concern is to validate the conception of morality as a set of rational, impartial constraints on the pursuit of individual interest, not to defend any particular moral code," and further, "to do this without incorporating into the premises of our argument any of the moral conceptions that emerge in our conclusions."2 In effect Gauthier seeks to arrive at those moral constraints that would be freely embraced by those who gather in a hypothetical assembly which he calls the lClarendon Press, 1986; Gauthier writes: "Practical reason is linked to interest, or, as we shall come to say, to individual utility, and rational constraints on the pursuit of interest have themselves a foundation in the interest they constrain"; and later, "Our inquiry will lead us to the rational basis for a morality, not of absolute standards, but of agreed constraints" (p. 2). 2Ibid., p. 6. 181

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182 "initial bargaining position."3 Unlike those who gather in Rawls' "original position," Gauthier's contractors are afforded access to specific facts about society.4 Moreover, they are also privy to an understanding of how these facts are related in light of what they know, .tQQ, about "the limits and variations of human capacities and interests," "the range of feasible social structures, and the individual roles afforded by each," "how social structures and par ticular circumstances affect the manifestation of capacities and interest," and "the ways in which persons, defined by their structures and roles, can and cannot fit together."5 3Tuig., ch. VII. 4Gauthier envisions an "initial bargaining position" in which all of his contractors assume that "everyone has perfect information about possible actions, possible out comes, and all preferences over these outcomes, and that it is common knowledge that everyone has such perfect informa tion" (ibid., p. 61) ; and later, [W] e suppose each person to be fully informed--to know the possible actions available to every person, the possible outcomes that may result from those actions, and the utility payoffs to every person of each possible outcome" (p. 155); cf. Rawls, A Theory of Justice, Harvard University Press, 1971, pp. 136ff. 5Morals By Agreement, op. cit., p. 236; though this particular characterization appears in conjunction with an extrapolation on Rawls' discussion of an "Archimedian point" in A Theory of Justice (op. cit., pp. 260ff), wherein an ideal actor is unable to identify herself as a particular person within society" (Morals By Agreement, loc. cit.), Gauthier is satisfied that each of his contractors in the "initial bargaining position," "aware of his identity" would be "able to identify with choice from the Archimedian point" (p. 244). So facile an identification, however, has not gone unchallenged in the critical literature; see, e.g., Richmond Campbell, "Gauthier's Theory of Morals By Agree ment," Philosophical Quarterly 38 (1988), pp. 316ff; and Jean Hampton, "Can We Agree on Morals?" Canadian Journal of Philosophy 18 (June 1988), pp. 344ff.

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183 Gauthier believes that several principles would emerge by mutual agreement among the people who gather under these conditions. Included among these would be one which "gov erns both the process and the content of [further] rational agreement."6 In effect, this principle, which Gauthier terms "the principle of minimax relative concession," or alternatively, "the principle of maximin relative benefit," requires that "the greatest concession [by a contractor], measured as a proportion of the conceder's stake, be as small as possible," or equivalently, "the least relative benefit, measured again as a proportion of one's stake, be as great as possible."7 A second principle, that of "con strained maximization," affirms that it is rational to comply with the terms of an agreement so long as all others {or nearly all others) may be reasonably expected to do so, too, and {nearly) universal compliance yields greater {expected) utility for those involved than does noncompliance.a Thirdly, Gauthier's contractors would agree to a "morally free zone," which may be described as "a context within which the constraints of morality [including the first two principles] would have no place." This zone, on 6 Morals By Agreement, op. cit., p. 14. 7Ibid.; see ch. V. B.Il2,iQ.; see ch. VI.

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184 Gauthier's account, "proves to be that habitat familiar to economists, the perfectly competitive market."9 To these three principles, Gauthier adds yet another. However, unlike the first three, this principle is not an outcome of the bargaining process; rather, it is a precondition for any agreement at all. This one, which Gauthier terms the "Lockean proviso" (after Robert Nozick), 10 functions to prohibit any of his contractors from "bettering one's [own] situation through interaction that worsens the situation of another. "11 Now, while I will later mention two of the more obvious difficulties with Gauthier's account of these principles, still, I will not dwell on these problems nor will I provide much in the way of a critical response to them.12 On the contrary, I will concede to Gauthier everything which he requires to render his "initial bargaining position" 9.Th.i,Q., p. 13; see ch. IV. 10"Locke's proviso that there be 'enough and as good left in common for others' ... is meant to insure that the situation of others is not worsened" (Anarchy. State. and Utopia, Basic Books, Inc., 1971, p. 175). 11 Morals By Agreement, op. cit., p. 16; contra Nozick, Gauthier writes: "But simply to forbid worsening the situation of others is too strong. For there are situations in which one could avoid this only by worsening one"s own position. Following Locke who allows one"s own preservation to take justifiable precedence over that of others in one"s deliberations, we modify Nozick's interpretation of the proviso, so that it prohibits worsening the situation of others except where this is necessary to avoid worsening one's own position" (p. 203; see also ch. VII, passim). 12But see infra, nn. 18, 20-22.

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185 operational. This I will do so that I may~ ascertain whether or not his initial conditions themselves are compatible with a (derivative) authorization for a society to employ the death penalty. While no one (to my knowledge, at least) has attempted to link any argument for the death penalty to Gauthier's theory, nevertheless, it should be remembered that Gauthier himself both vigorously defends (albeit by amendment) Hobbes' argument for the death penaltyl3 and also portrays his own theory as a "modern-day successor" to that of Hobbes.14 Moreover, in response to a query of my own regarding the compatibility of his theory with use of the death penalty, Gauthier answered in the affirmative .1s Yet, even without these connections, Gauthier's theory would still merit attention in my study because of his avowed commitment to theorizing "without incorporating into the premises of our argument any of the moral conceptions that emerge in our conclusions."16 That is to say, if he were successful with this, an examination of the relevant 13Supra. 2. s. 3. 140p. cit., p. 17. 15Gauthier writes: "Your conjecture that I think that the death penalty is compatible with my moral theory is correct"; interestingly, however, he adds: "But since I haven't looked specifically into the application of my theory in this context, I could be mistaken" (Letter to author, October 8, 1992). 16Morals By Agreement, op. cit., p. 6.

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186 features of his system would then provide an unprecedented opportunity for exploring whether or not a social contract theory unencumbered by "natural law" assumptions, or any other (normative) assumptions based on the theorist"s intuitions,17 could be made to yield a plausible foundation for a defense of capital punishment. So austere a foundation would seem to provide the best possible test of the compatibility of (unadulterated) contractarian assumptions and arguments for the death penalty. As a preliminary to my inquiry, however, I must acknowledge that so austere a foundation may have in fact eluded Gauthier. I say this for two, fairly obvious reasons. First of all, there is the matter of the ground of obligation for his contractor"s commitments. That is, why should they adhere to the terms of any agreement they strike? It simply will not do to include among the terms of their social contract a commitment to agreement-keeping, as this maneuver serves only to raise a further question regarding the ground for that obligation (and so on, ad infinitum). To avoid the problem of an endless regress, therefore, it would appear that Gauthier must appeal, at some point, to a ground of obligation which is external to, and independent of, any agreement-making activities by his contractors. But now, I suppose, this means that he would 17Even the contemporary theory of Rawls is fraught with intuition-based assumptions; on this, see R. M. Hare, "Critical Study: 'Rawls' Theory of Justice--I and II,'" Philosophical Quarterly 23 (1973), pp. 144-155, 241-252.

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187 have to embrace an assumption of the "natural law" or intuition-based variety in order to .b.ing his contractors to keeping whatever agreement they make; and .thli, to be sure, would have the untoward effect of undermining the austerity he seeks for his "initial bargaining position."18 A similar complication for Gauthier"s theory arises in conjunction with one of his principles, the "Lockean pro viso." As I have already explained, this principle func tions as a constraint on what contractors may do from the standpoint of the "initial bargaining position." Specifi cally, it prohibits any of them from "bettering one's [own] situation through interaction that worsens the situation of another."19 Regarding this principle, one critic, L. W. Sumner, astutely observes: "[The proviso] has the force of a moral principle because it is capable of constraining indi vidual utility maximization."20 Yet, if this is so, Sumner continues, then Gauthier would appear to have introduced a principle inconsistent with his "requirement that morality be entirely derivable from the non-moral premisses of the theory of rational choice." 21 lBFor a more detailed discussion of this difficulty, see Jeffrey Paul, "Substantive Social Contracts and the Legitimate Basis of Political Authority," Monist 66 (October 1983), pp. 521ff. 19Morals By Agreement, op. cit., p. 16. 20 The Moral Foundation of Rights, Clarendon Press, 1987, p. 160, emphasis added. 21Tui_g., p. 161.

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188 I proceed with my inquiry, therefore, knowing full well that the austerity Gauthier claims for his foundation may be easily challenged and perhaps even discredited upon closer scrutiny of the issues.22 I am able to do this because the analyses I intend to present would not be materially affected by the presence of an external ground for either the obligation Gauthier's contractors have to keep their agreement or the one they have to accept the "Lockean proviso." In view of this, I see no harm in my proceeding as though Gauthier"s "initial bargaining position" still affords a unique opportunity among contract theories to assess whether or not (if not unadulterated, at least not relevantly adulterated) contractarian assumptions would be at odds with an affirmative stance on the death penalty.23 7.2 Gauthier"s Rationale for Punishment No theory of law, much less a doctrine of punishment, nor even a hint of either can be found in Morals By Agreement. 24 However, in a more recent publication, "Thomas 220n this, see especially Joseph Mendola, "Gauthier's Morals By Agreement and Two Kinds of Rationality," Ethics 97 (July 1987), pp. 765-774. 23Gauthier, of course, is not unaware of challenges to the austerity he claims for his theory in Morals By Agreement: see, e.g., his article, "Morality, Rational Choice, and Semantic Representation: A Reply to My Critics," in The New Social Contract: Essays on Gauthier, Ellen Frankel Paul, Fred D. Miller, Jr., Jeffrey Paul and John Ahrens, eds., Basil Blackwell, 1988, pp 173-221. 24Even the role of justice is little discussed by Gauthier in laying the foundation for his theory; but see his concluding chapters, "The Ring of Gyges" (ch. X) and

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189 Hobbes and the Contractarian Theory of Law,"25 Gauthier commences an inquiry regarding the possibility of Na secular and instrumental rationale for law that requires no dubious assumptions about the objectivity of values or the existence of a moral order in the universe."26 The description of his task in this way makes it clear that he views his efforts in this article as an extension of his earlier work in Morals By Agreement. Indeed, he implies as much when he writes, "[It is the] revival of interest in contractarian theories of morals and politics" which provides the encouragement "to enquire into the prospects for a contractarian theory of law. "2 7 So brief an article, of course, hardly provides Gauthier with the occasion to produce a fully developed theory of law; however, it does provide him with an oppor tunity to suggest the general contours of such a theory. Within this (limited) context, then he argues for "the idea of rational agreement among the members of civil society" as the "guiding idea" for a theory of law. In more detail, he explains: [W]e should suppose that the scope of law, as public reason, is to be determined by considering how far rational persons would find it "The Liberal Individual" (ch. XI). 2 Sin Canadian Philosophers, David Copp, ed., University of Calgary Press, 1990, pp. 5-34. 26.I!;ll_d., p. 5. 27.ll2.i.d.

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advantageous to agree, in an initial position of equity, to give up their liberty-rights to private judgment and self-rule, and allow their thought and conduct to be regulated by the public judgment of their universal agent.2B 190 The tenn 'universal agent,' in this context, evidently functions in similar fashion to Hobbes' use of 'sovereign' in Leyiathan.29 Moreover, as both the flavor of this passage and the title of his article would suggest, Gauthier looks to Hobbes for inspiration and guidance in this area no less than he does in laying the foundation for his seminal work in the area of morals. I have elsewhere argued that Hobbes should be seen as the forerunner of rational, contractarian moral theory; I believe that he should be seen equally as the forerunner of a possible rational, contrac tarian legal theory.30 Here too, though, as in Morals By Agreement, Gauthier is quick to amend the theory of Leviathan whenever Hobbes' theoretical commitments are at odds with Gauthier"s own "rational choice" analysis.31 It is within this general framework, then, which Gauthier has sketched for a theory of 28.I.Q.i.g., p. 25. 29Earlier, in a discussion of Hobbes' theory, Gauthier writes: "The relation between sovereign and subject is .. modelled on the relation between agent and principal; the sovereign is the universal agent of his subject" (.iQig., p. 11). 3QT,._;~ 6 ~-,P. 31Gauthier's propensity to amend Hobbes' theory in this way makes an even earlier appearance as a recurrent feature of The Logic of Leviathan, Clarendon Press, 1969; on this, see supra, ch. 2, n. 56.

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191 law, that his specific remarks on punishment appear. Again, drawing his inspiration from Hobbes, he writes: [S]ince punishment is a necessary part of law, we may suppose that the subjects authorize the insti tution, each judging it be in the interest of her preservation that the sovereign act to establish a legal system, which is a set of commands and direc tives with an obligation, made effective through punishment, to obey them.32 Believing, therefore, that "a contractarian theory must accommodate punishment within the limits set by individual rationality," he concludes: The contractarian offers the same rationale for punishment as for any justifiable form of con straint. Everyone may expect a net benefit from the existence of constraint, despite the cost of observing it. 33 What this means is that Gauthier's contractors, whose deliberations are governed entirely by motives of rational self-interest, would, in light of a cost-benefit analysis, authorize the use of punishment from the standpoint of the "initial bargaining position." While I am prepared to allow that this may be generally so, nevertheless, it does not follow that every specific type of punishment may be justi fied in this way. Indeed, in the next section I will try to 32"Thomas Hobbes and the Contractarian Theory of Law," op. cit., p. 30; Gauthier continues: "Even though each is aware of the potential cost to herself of being punished, yet she considers that on balance the expected benefit afforded by the legal system outweighs the expected cost. The establishment of a system of punishment is, then, an exercise of sovereign right, owned by each of the subjects, who have an obligation to acquiesce in, and indeed actively to support, the system. In a sense, a person is punished by her own authority" (ibid.). 33Ibid., p. 33.

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192 show exactly~ a cost-benefit analysis cannot be made to yield a justification for use of the death penalty under Gauthier's theory. 7.3 A Rejection of Capital Punishment within Gauthier's Framework Not all types of punishment, to be sure, have the same expected utility; nor would it surprise anyone to find a type of punishment for which the expected costs exceed the expected benefits. Indeed, this is exactly what I want to claim about the death penalty, that is, of course, from the standpoint of Gauthier's "initial bargaining position." In my analysis I will assume that the death penalty would be imposed only for the crime of murder (imposition for other crimes would only serve to strengthen my argument). I will also interpret "expected utility" in terms of prospects for self-preservation, which 1s, of course, the cardinal empha sis in Hobbes' system and by implication, I think, the emphasis Gauthier would embrace for his contractors' delib erations. So construed, the decision confronting each of those in the "initial bargaining position" would appear to be as follows: "Would my prospects for self-preservation be better served in a society which imposes the death penalty for the crime of murder, or in one that does not?" Undoubt edly, the posing of this question would lead to another, more specific query: "Would I be at greater risk of becoming a murderer's victim in a society which does not impose the death penalty than I would be in one which does, where I

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193 face both the risk of becoming a murderer's victim and the risk of being condemned to death for having been found 'guilty' of the crime of murder?" In order to prefer the sort of society which imposes the death penalty, I suggest, an uncoerced, entirely rational, and self-interested person in the "initial bargaining position" would have to convince himself or herself that employment of the death penalty affords a better prospect of self-preservation, i.e., pre sumably by providing a more effective deterrent (for the crime of murder) than alternative forms of punishment (e.g., life imprisonment); and moreover, so much more effective, in this regard, that it would more than offset the added risk of being found guilty (oneself) of the crime of murder and condemned to death. Now, any contemporary application of Gauthier's theory would take for granted that his contractors have access to sociological data, widely available today, on the question of the deterrent effect of the death penalty. From their knowledge of these data they would inevitably conclude that available evidence does not show the death penalty to be a more effective deterrent for the crime of murder than life imprisonment.34 As a consequence, they would prefer a society which imposes life imprisonment for the crime of murder over one which imposes the death penalty, and this because the latter society, unlike the former, exposes each 34See supra, ch. 4, n. 23.

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194 of them to the additional risk of being condemned to death for having been found guilty of the crime of murder. Note that this outcome would be no different if Gauthier's theory were applied to an earlier historical period for which IlQ sociological data were available (say, circa 1800). Here, too, his contractors would prefer a society which imposes the punishment of life imprisonment, i.e., because an absence of data altogether could not be any better a reason for them to prefer the death penalty any more so than circumstances where the presence of available data does not show the death penalty to be a more effective punishment. Finally, even if there~ available data (apropos of some society) sufficient to establish the death penalty as a more effective punishment, still, it does not follow, on Gauthier's theory, that capital punishment would be preferred by all of his contractors under these circumstances. That is to say, even where use of the death penalty affords everyone a better prospect of self preservation than use of life imprisonment, nevertheless, it hardly follows from this that every contractor would prefer the safer alternative. I say this because it is altogether possible even among those whose deliberations are governed entirely by motives of rational self-interest that they would otherwise differ among themselves in their preferences for what their respective futures should be like. In this connection I am reminded of the choice of possible futures

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195 confronting Achilles in the Iliad. According to Homer, Achilles found himself confronted by the gods with a choice between a long and comfortable life or a short and glorious one; and, of course, the epic records his decision in favor of the latter.35 To be sure, many people, perhaps even most, were they confronted with Achilles' choice, would prefer a long and comfortable life to a short and glorious one. Yet, who is to say that the choice exercised by Achilles was an irrational one, or even a less rational one when compared to the alternative he declined? Who is to say he has not chosen from the standpoint of self-interest? Simply put, for Achilles, the benefits of an enhanced opportunity for the pursuit of glory (i.e., from his mfil point of view) exceeded the costs he would incur in the form of a greatly diminished opportunity for longevity. Similarly, I think I can provide a rationale for why it cannot be ruled out that some of Gauthier's contractors would prefer a society in which the death penalty would not be imposed, and this~ where they would incur a greater (overall) risk to their lives. In my presentation of this rationale, I will not assume that there could not be other points of view consistent with use of the death penalty. Instead, I claim only that the point of view I will present is one (perhaps among many) which could be plausibly (and consistently) embraced by those whose deliberations were 35Iliad XVIII.

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196 governed entirely by motives of rational self-interest. In this way it will be my purpose to show that, where rationality and self-interest are regarded as the wellspring of a contractor's motivation, it does not follow for such a contractor that he or she would necessarily exercise that option which best serves his or her prospect for self preservation. What I propose to do, then, is to challenge the idea which I have so far taken for granted, viz., that "expected utility" relative to the death penalty would be interpreted by Gauthier contractors primarily (if not exclusively) in terms of their (overall) prospects for self-preservation. What I want to claim here is that, while the concern for self-preservation would undoubtedly be an important consid eration among all rational, self-interested contractors, it may not be the Q.D].y consideration. Indeed, for some, it may not even be the most important factor in their delibera tions. I begin with the observation that it would be entirely consistent with Gauthier's theory to suppose that all of his contractors would give thoughtful attention to the possi bility of a future in which they would find themselves engaged in criminal activity. That is to say, since no contractor would be blind to the possibility that he or she could later be among those who commit crimes in society, it is plausible to suppose that they all would give some

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197 thought and consideration to how they would be treated under these unfortunate circumstances. In this connection, I suggest, what Gauthier's contractors would most want for themselves, i.e., from the standpoint of the "initial bar gaining position," would be an opportunity to recover the vision of society from which they had so obviously strayed in the empirical situation. In particular, they would want to recover those insights which led them to embrace the principles of "minimax relative concession," "constrained maximization," and the "Lockean proviso." Since criminal activity in most of its forms, certainly in its more destructive forms (rape, murder, etc.), would be altogether antithetical to these principles, Gauthier's contractors, I submit, would most want for themselves to have an oppor tunity for rehabilitation in the actual context. As a consequence of this, any forms of punishment for which a (derivative) authorization could be produced, would neces sarily be those which include (as a feature, at least) an opportunity for rehabilitation;36 a fortiori, since imposition of the death penalty precludes any chance of this,37 Gauthier's contractors would have a prima facie reason to reject its use. 36Protection of society and deterrence of others could well be features also present and compatible with the oppor tunity for the criminal's rehabilitation. 3 7 Arguably, I suppose, a condemned person would have an opportunity for rehabilitation while awaiting execution, though this could hardly be advanced as an effect associated with imposition of the punishment itself.

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198 A different line of inquiry calls attention to another possible future in which any of Gauthier's contractors could find themselves. Under these circumstances, they would .sl,..Q be accused of criminal activity and exposed to the risk of punishment; however,~ they would be innocent of any wrongdoing. Once again, I think it would be plausible to suppose that contractors in the "initial bargaining posi tion" would give thought and consideration to how they would want to be treated under these difficult conditions. In this context, I suggest, what they would most want for them selves would be the opportunity to establish their inno cence. As a consequence, they would want to have procedural safeguards in place throughout the process by which a legal finding is reached.38 If the finding goes against them and they are to be subjected to punishment, they would want that punishment to be consistent with an ever present opportunity of introducing any new evidence they discover sufficient to establish their innocence and obtain for them a release from additional punishment.39 Preserving an opportunity of .t.bi. sort, of course, would be incompatible with any use of the death penalty. 3Bincluded among the safeguards they would most want for themselves may well be ones very similar to, if not identi cal with, those found in the fifth and sixth amendments to the U.S. Constitution. 39Remarkably, .till... safeguard, which is a post-finding rather than pre-finding safeguard, has been widely neglected in the literature on legal and political theory.

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199 Now, to be sure, what Gauthier's contractors would most want with regard to these two possible futures would have to be weighed against the costs incurred by their having to live in a society where their lives would be at greater risk for having failed to allow use of the death penalty. Very possibly, some of Gauthier's contractors would prefer to have an enhanced opportunity for self-preservation rather than the benefits of possible futures involving criminal activity (or the allegation of criminal activity) where they would always have opportunities either for rehabilitation or to establish one's innocence. Yet, other contractors, operating also from motives of rational self-interest, could just as plausibly reject any use of the death penalty, even though doing so would diminish their (overall) prospects for self-preservation. That is to say, in a manner entirely consistent with motives of rational self-interest, they could so highly value never being without an opportunity for rehabilitation (in the case of criminal activity) or an opportunity to establish one's innocence (in the case of an erroneous allegation) that they would exercise a version of Achilles' choice and so willingly take upon themselves the burden of a greater risk to their lives. My only point here is that it would be a mistake to suppose that motives of rational self-interest would lead all of Gauthier's contractors to endorse the possibility of a (derivative) authorization for use of the death penalty; for this

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imputation, I submit, there is simply no foundation in Gauthier"s theory. 200 Notwithstanding this, however, there may yet appear to be some basis for a challenge to my analysis. The challenge I envision would proceed from the observation that, while the version of Achilles' choice I have presented may be consistent with motives of rational self-interest regarding those situations where (at least) some prospects for self preservation obtain, this choice would not apply to a situation so extreme that no prospects whatever for self preservation could obtain without use of the death penalty. Arguably, then, under these conditions, every contractor would agree to use of the death penalty. My reply to this challenge, however, would not be relevantly different from some of the analysis I have already given in rebuttal to Samuel J.M. Donnelly's defense of capital punishment under Rawls' theory (6.3). There, I emphasized the point that, while a permission to employ the death penalty in a "limit situation" may seem transparently plausible, what would tell against this permission would be a dearth of any reliable basis for determining (in the empirical context) that now a "limit situation" obtains. An encompassed difficulty would be that of specifying in a manner acceptable to contractors 1.n either Rawls' "original position" or Gauthier"s "initial bargaining position"~ in fact would be authorized (in the empirical context) to make this judgment. No need arises

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201 here, though, for me to repeat the details of my earlier analysis.40 That is to say, for my present purposes, it will be enough if I have succeeded in casting doubt upon an idea that motives of rational self-interest among Gauthier's contractors may be assumed to converge upon the generation of a permission for use of the death penalty in a "limit situation." I would conclude, therefore, that even in the presence of sociological data showing that everyone"s {overall) pros pects of self-preservation would be better served by employ ment of the death penalty {for the crime of murder) than by use of life imprisonment, it still does not follow from this that all of Gauthier's contractors in the "initial bargaining position" would be agreeable to generating a permission for an actual society to employ the death penalty contingent upon these circurnstances.41 40Supra, ch. 6, pp. 16ff; see also infra, 8.2.3. 41It may be that motives of rational self-interest would lead all of Gauthier's contractors to generate a permission for a {derivative) society to employ the death penalty con tingent upon the actual and uncoerced consent of every citi zen in the empirical context {cf. supra, ch. 2, pp. 43f and ch. 6, p. 178). But now, a permission of this sort would not itself be contingent upon the presence {or absence) of sociological data regarding use of the death penalty, though attention to such data {when available) may well have some effect on what actual citizens decide in the empirical context.

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CHAPTER 8 CONCLUSION To this point I have given attention to the work of six theorists who are (arguably, at least) the most prominent and influential among those contributing systems to the social contract tradition. In each case I have examined their work to see whether or not the theories they have advanced may be reconciled with an affirmative position on the death penalty. Without exception, I have found each of their theories to be fundamentally incompatible with any plausible (intrasystemic) defense of capital punishment. Along the way I have also rejected specific arguments for the death penalty advanced by Hobbes, Locke, Rousseau, and Kant; as well as those advanced on behalf of Rawls by Cooper and King-Farlow, and by Donnelly; and on behalf of Hobbes by Gauthier. The results of my study, therefore, point to a negative conclusion on the question of the tenability of capital punishment within the framework of social contract theory. Yet, a survey of particular theories, however prominent and influential they may be, cannot, in and of itself, provide the basis for a general conclusion regarding the compatibility of capital punishment and social contract theory. Only a conceptual inquiry undertaken at the 202

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203 appropriate level of generality can hope to achieve that. In this final chapter, therefore, it will be my purpose to explore the possibility of a general solution to the central question of my study. I will lay the groundwork for this inquiry by conducting a preliminary assessment of whatever comprises the fundamental set of presuppositions upon which any social contract theory relies. By this, I mean to sug gest those presuppositions which are inherently necessary for this way of doing political philosophy. The idea under lying my approach, then, will be one of arriving at an understanding of the (generic) conceptual framework for any social contract theory by attending to the interplay of presuppositions common to them all (8.1). If I am success ful with this initial enterprise, I should then be in a position to evaluate the fitness of the framework (so derived) to support an affirmative stance on the death penalty; and so, in this manner, I might hope to arrive at a general conclusion regarding the compatibility of capital punishment and social contract theory (8.2). Finally, after I have attended to these theoretical matters, I will make an observation regarding the practical import of my study for a contemporary world in which some governments of contrac tarian extraction do, at times, impose the ultimate penalty on some of their citizens (8.3).

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8.1 Fundamental Presuppositions and Generic Framework 204 At the outset of this section, it is perhaps important to emphasize that the features I will identify and the frame work I will describe are introduced only for the limited aim of facilitating a conceptual inquiry; they are not intended to provide the conditions which are necessary and sufficient for a mature theory of the social contract. 8.1.1 Status as Living Beings It is a formal requirement of any social contract theory that the parties to the activity of negotiation will each have status as contractors prior to whatever agreement they strike. Otherwise, they would be in no position to begin the work assigned to them under this particular way of doing political philosophy. Each person"s status, in this regard, would seem to consist of (i) the authority to negotiate with the others on one"s own behalf; {ii) a claim against the others not to interfere with one"s own exercise of the authority at (i); and (iii) a duty to the others not to interfere with their exercise of a similar authority conferred upon each of them. Without these features, I fail to see how any social contract theory could even get off the ground. Yet, to be sure, a question well worth asking and, indeed, one which may be fairly put to any social contract theorist is this: What, exactly, is the theoretical warrant for assuming that the parties to the contract are already

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205 "endowed" with the status these features encompass?l In reply to this query, some theorists would perhaps appeal to the "natural law." That is to say, they might claim that human beings are naturally endowed with the authority to negotiate, and further note that the exercise of this authority implies certain rights and duties. Or, instead of this, they may simply rely on an empirical claim to the effect that human beings do, at times, engage in behaviors which may be called "negotiations"; and further, a subset of these would be behaviors which may be called "negotiations in good faith," where 'in good faith' is thought to embody the features I have described at (i), (ii), and (iii). On this account, then, producing a social contract may be regarded as what people would be doing if they were to negotiate in good faith the terms of their projected association. Or perhaps other explanations could be found by theorists to show why their parties to the contract have initial status as contractors. It is not my intention, however, to explore (much less evaluate) the range of possible (or even likely) responses to my query. All I need to establish here is that theorists who do social contract theory have committed themselves ipso facto to the assumption that their parties to the contract have status as contractors prior to whatever agreement they strike; and lThis is a matter of some importance which has been generally neglected by the theorists themselves.

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this status includes, at the very least, the particular features I have described at (i), (ii), and (iii). 206 Now, for my purposes, there is an important implication which follows from the formal requirement that the parties to a social contract have status as contractors prior to whatever agreement they strike. The implication is that a person who would have the authority to negotiate with others, as well as an associated right and duty which relates to the exercise of this authority by oneself and others, would also have, at least for the duration of the activity of negotiation, status as a living being, and this for the obvious reason that the activity of negotiation can be done only by a living being.2 Moreover, this applies regardless of whether the contract to be negotiated is actual or hypothetical. Of course, if it is hypothetical, then there is an added burden on the theorist to explain how actual people could be bound under the terms of a hypothe tical agreement, a burden which, in my judgment, has not, as yet, been satisfied. This difficulty has been a subject of discussion in several of my earlier chapters (2.5.2; 4.3; 6.2), and so I need not say anything more about it here. Instead, I will allow, for the sake of getting on with my conceptual analysis, that this burden has been met. With this stipulation, then, it is an easy matter to show that, even where the activity of negotiation is hypothetical, the 2 Supra, 4.3.1, for a similar argument in a more specialized context.

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207 actual people who are to be bound under the terms of a social contract may still be regarded as having (protected) status as living beings. I say this because, when a social contract has been generated by a theorist on behalf of actual people, that theorist is already committed to the assumption that these people are competent to negotiate (even though they have taken no part in "their" agreement). Without this assumption, I submit, the theorist would hardly be in any position to claim that the contract produced is what these people would have agreed to under particular circumstances (1.5.1). In other words, use of the locution 'would have agreed to' already commits the theorist to the assumption that these people are competent to negotiate. Also, without the benefit of this assumption, all the theo rist would be doing is producing a hypothetical contract on behalf of hypothetical people, which, of course, would be altogether inadequate to bind actual people. Furthermore, if competence to negotiate may be imputed to such actual people, then so may status for them as living beings, since only living beings can have such competence. Finally, their status as living beings would be afforded the protection of a "claim" right, since the competence to negotiate must be sustained until an agreement is produced. Of course, after an agreement has been reached, their status, in this regard, would depend on the terms which comprise "their" (hypothe tical) contract. It would appear, therefore, from my

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208 analysis, that those political philosophers who elect to do social contract theory would be committed from the outset of their enterprise to assuming (in effect) a "claim" right to status as living beings for each of their contractors; that is to say, at the very least they would be so committed until a contract has been reached, and this quite indepen dently of whether they construe the activity of negotiation to be actual or hypothetical. I will have more to say about this requirement after I have identified another which also contributes to the generic framework. 8.1.2 A Change "For the Better" Another formal requirement relates to the activity of negotiation in which all contractors are engaged. Here, it is important to recognize that the core idea underlying the notion of "negotiation" is that of an activity which is undertaken for the purpose of effecting a change from one state of affairs to another. It is further implied, I think, by the concept itself, that this change is intended to be "for the better," that is, insofar as the parties to the activity of negotiation are concerned. In the terminology of social contract theory, of course, the original state of affairs is often referred to as the "state of nature"; and the state of affairs brought about by the change, as "civil society." Perhaps I have now said enough to exhibit the theoreti cal structure of the relationship between the formal

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209 requirement that the activity of negotiation is undertaken for the purpose of effecting a change "for the better" from one state of affairs to another and the formal requirement that contractors have status as living beings. Within the generic framework, it would appear that these two require ments converge upon a fundamental recognition that the purpose of a social contract is to bring about a better way of preserving and enhancing the status of living beings who are parties to the agreement, that is to say, a better way than what they would otherwise expect if they were to remain in a "state of nature." I will explain. By bringing about a better way of preserving the status of contractors as liv ing beings, I refer to their activity of negotiation which is aimed at better securing each person's bedrock oppor tunity for a continued existence; and, by bringing about a better way of enhancing their status, I refer to their activity which is aimed at better securing the sort of life, i.e., in a qualitative sense, each of them would prefer to live. These two aims, I submit, have never been very care fully distinguished in the primary literature of the social contract tradition (nor in the secondary literature so far as I know). Historically, what has happened is that some theorists have placed the emphasis on better preserving the status of living beings, while others have stressed the importance of better enhancing their status.

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210 For Hobbes, what is of paramount importance is seeing that his contractors have a more secure bedrock opportunity for a continued existence (2.3). His attempt to achieve this is based on an appeal to the ius naturalis. i.e., the "right of nature" which everyone enjoys in virtue of his or her status as a living (human) being (2.1). He does, however, regard the ius naturalis as something weaker than a "permission" right (2.5.1), and so fails to appreciate that a formal requirement for doing social contract theory is that the parties to the negotiation would each have claims against one another not to interfere with the process of negotiation, and hence, pro tempore at least, a "claim" right to life. By contrast, Locke, who does recognize a "claim" right to life on behalf of his contractors (3.1), evidently takes for granted that his version of the social contract would provide an adequate level of physical security and, therefore, places most of his emphasis on those features of the agreement which would be life-enhancing. Here, of course, his primary concern is to secure protection for his contractors' liberty and property interests. Moreover, the eighteenth century theories of Rousseau and Kant, as well as the contemporary theories of Rawls and Gauthier, are indeed all "Lockean" in the very limited sense that they, too, have shifted their emphases away from the life-preserving to the life-enhancing features of the social contract. However, as

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211 I will show, both of these features have an important role to play in the generic framework; and, historically at least, it has been perhaps too much of an emphasis on one or the other of these roles which arises as the most likely source of the impression that use of the death penalty can be reconciled with the fundamental presuppositions of social contract theory. 8.1.3 Self-Advocacy Still another formal requirement of any social contract theory may be gleaned from attention to the activity of negotiation. Where there is an activity of negotiation, of course, there must also be negotiators; and, within the social contract tradition, a negotiator is one who represents his or her own self-interest throughout the process of striving for an agreement with others. In other words, the activity of negotiation by a contractor, on this way of doing political philosophy, would be a form of self advocacy. (To be sure, other forms obtain, such as fending for oneself in a "state of nature"). The activity of negotiation, as a form of self-advocacy, I believe, has been a consistent feature of social contract theory from Hobbes to Gauthier, with the possible exception of Kant, whose classification as a "social contract theorist" would seem problematical (5.3.2).

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212 8.1.4 unanimous Consent With the mention of only two more formal requirements of social contract theory, I should then be in a position to characterize the generic framework for this way of doing political philosophy. The first of these is simply the requirement that, whatever content the agreement may contain, it must have earned the unanimous approval and consent of those engaged in the activity of negotiation. To deny this, of course, would be to reject the leitmotif of social contract theory, viz., the idea that consent is to be the basis upon which people are bound together under the terms of their agreement. Even Rousseau, whose views some have linked, in a seminal way, to the abuses of majoritism,3 concedes: "The rule of accepting the decision of the majority is itself established by agreement and presupposes unanimity on at least one occasion."4 8.1.5 Termination of the Agreement One final requirement should be mentioned. An understanding of this reqi.iirement turns on a recognition that social contract theory is based (loosely, perhaps) on an analogy from the field of jurisprudence having to do with 3See, e.g., Vicente Medina, Social Contract Theories, Rowland & Littlefield, 1990, pp. 59ff. 4In The Essential Rousseau, Lowell Bair, ed., New American Library, 1974, bk. I, ch. v, p. 16.

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213 contract law.s Within the legal arena, an essential feature of any enforceable contract would be the inclusion of some temporal specification either to the effect that the contract binds "in perpetuity" or that it binds for a prescribed interval of time. Whatever the case may be, however, some further specification would appear necessary if there are particular circumstances which could bring about an earlier cessation of obligation. This feature would seem to be a conceptual requirement, not only within the field of contract law, but also, by analogy, within the realm of social contract theory; otherwise, it would have to be supposed that the parties to the agreement could provide for a cessation of obligation under particular circumstances without any specification of what those circumstances would be, which, I believe, lacks even prima facie plausibility. 8.1.6 The Generic Framework By attending to the fundamental set of presuppositions which are common to all social contract theories, I believe I can provide an account of the generic framework which emerges from the interplay of these presuppositions. One feature of this framework would appear to emerge from the recognition that the parties to the agreement begin the activity of negotiation already "endowed" with status as living beings (8.1.1). As they would pursue this activity entirely for the purpose of better preserving and enhancing scf. J. w. Gough, The Social Contract, Greenwood Press, 1978, pp. 4ff

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214 a status (8.1.2) they presently enjoy only pro tempore (8.1.1), I can only imagine their Rfoothold move" to be one of stabilizing each person's right to a continued existence. Indeed, without this initial move, I fail to see how they could hope to secure a credible framework for any of the enhancement moves upon which they may agree for the protection of their respective liberty and property interests. Only Hobbes, among the six theorists I have examined, may be said to have recognized the irranense (theoretical) importance of this foothold move. Now, perhaps the most effective way of implementing the foothold move would be for the contractors to grant status as living beings "in perpetuity" to all the parties to the agreement; alternatively, they could grant this status for a prescribed interval of time. In either case, however, some further specification would be necessary if there were particular circumstances (upon which they all agreed) that could bring about an earlier cessation of obligation under the social contract. That is to say, any circumstances under which a person could be deprived of his or her right to life (secured by the foothold move) would have to be spelled out in the social contract; otherwise, it would have to be supposed that the parties to the agreement have embraced a contract which leaves them in the dark about the full extent of the protection they have afforded themselves by their foothold move of stabilizing the right to life, which is

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215 implausible, among other reasons, because leaving themselves in the dark on so weighty a matter would run counter to what would be in each person's own self-interest to do. Two other features of the generic framework should be mentioned. Both of these derive from the recognition that the individual in social contract theory is defined by formal requirements which place an emphasis on personal consent (8.1.4) and self-advocacy (8.1.3). These requirements suggest an individual with a high degree of personal autonomy. The feature of personal autonomy provides the theoretical impetus which accounts for the motivation the parties to the agreement have to seek enhancements for the protection of their liberty and property interests, i.e., once the bedrock opportunity for a continued existence has been secured (8.1.2). Moreover, it would appear that the main reason for securing these enhancements is so that the individual may continue to exercise a high degree of personal autonomy in "civil society." This brings me to the other feature I would like to mention. It is neither desirable nor feasible that all matters of substance be resolved in the context of negotiating a social contract. The requirement for unanimous consent in this context (8.1.4) together with the feature of personal autonomy both suggest the wisdom (i.e., from the standpoint of self-interest) of deferring most of the decisions of a substantive nature to an actual context

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216 in "civil society." Indeed, it is securing the possibility for this sort of "on site" autonomy which emerges as the objective towards which all of the fundamental presuppositions of social contract theory appear to be directed. 8.2 A General Conclusion on the Question of Tenability Although the purpose of the social contract is to bring about a better way of preserving and enhancing the status of living beings who are parties to the agreement (8.1.2), and this so that each of the parties may exercise a high degree of personal autonomy in "civil society" (8.1.6), nevertheless the cost of attaining this is borne by everyone's agreeing to accept certain forms of constraint on one"s behaviors with regard to one's liberty and property interests, and by extension, I think, with regard to one's being able to pursue the sort of life one prefers. Whether or not everyone would also be agreeable to accepting some form of constraint on his or her bedrock opportunity for a continued existence is the crucial issue for this chapter. Now, observe that no degree whatever of personal autonomy can be rendered secure by the parties to the agreement unless the bedrock opportunity for a continued existence can be first established and then sustained by them. This is because it is the manifestation of this opportunity which anchors all other protections they may want to confer on themselves. Among these "other

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217 protections,ft no doubt, would be those which safeguard many of everyone's liberty and property interests, and so afford them all a better chance of pursuing the sort of life each of them would prefer to live. Of course, the cost of this bedrock opportunity and these other protections would be "paid for" by the introduction of certain constraints on behaviors with respect to some of everyone's liberty and property interests and, accordingly, with respect to the manner in which everyone pursues the sort of life he or she prefers. Moreover, the practical effect of these constraints would undoubtedly be to impose some insecurities and vulnerabilities on the parties to the agreement, which they would nevertheless embrace for the sake of a better life Within this context, I submit, the crucial question for my purposes is this: Would the parties to the agreement have any compelling reason to embrace, i.e., for the sake of a better life, any insecurities and vulnerabilities with respect to their "foothold move," that is, the move which secures and sustains for them their bedrock opportunity for a continued existence and so anchors all their other protec tions? In particular, would they have any compelling reason to embrace, as a feature of their social contract, the sort of insecurity and vulnerability which arises from generating a permission (perhaps subject to certain conditions) for others to impose the death penalty on any one of them?

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218 a.2.1 Punishment and the Ends of Constraint Any attempt to respond to this query should first address an even more fundamental question of whether or not the parties to the agreement would be willing to embrace the risk of fil1Y type of punishment. In this regard it may well be that not everyone would agree that punishment is an acceptable form of constraint. Indeed, it would be necessary for only~ contractor among those assembled to withhold his or her consent for punishment to block altogether the acceptability of this form of constraint (8.1.4). Moreover, even if all of those assembled could agree (in principle) on the use of punishment, they may nevertheless want to be very selective about what end or ends the use of punishment would serve. A quite plausible objection might be raised, for example, about the use of punishment to serve .Qil.1.y the end of retribution. That is to say, some contractor might well advance the argument that punishment in a purely retributive sense could not possibly contribute to the enhancement of his or her own status as a living being (8.1.2), i.e., under circumstances where he or she were to become the recipient of such punishment. One way of responding to the concern underlying this objection would be to propose, as a criterion of acceptability for the use of .fillY punishment, that those forms employed must include some benefit to the recipient, as would apply, for example, if an opportunity for rehabilitation were provided. Were

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219 this a criterion adopted by the parties to the agreement, of course, the death penalty would not qualify as an acceptable form of punishment, and this for the obvious reason that its use affords the recipient no benefit. Note that nothing which I have said here rules out deterrence of others as a possible end for punishment, nor even retribution, for that matter, so long as these ends are compatible with some benefit for the recipient. In effect, my remarks here have been a compressed but more generalized version of a point I have already made in the context of my earlier discussion of Gauthier's "initial bargaining position" (7.3). s.2.2 The uniqueness of the Death Penalty Another reason for thinking it unlikely that the generic framework would yield a permission for a (derivative) society to employ the death penalty is that this form of constraint subjects those who receive it to disfranchisement insofar as the social contract is concerned. No other punishment, except for banishment, is inherently disposed to have this effect. Moreover, even with banishment, those who are punished in this way may still have~ opportunities for self-advocacy and for the expression of personal autonomy, i.e., in a "state of nature" or under the jurisdiction of some other government. The death penalty, however, is unique among all forms of punishment because it alone necessarily deprives its recipients not only of all opportunity to pursue better

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220 lives for themselves, but of all hope of such opportunity. Indeed, only capital punishment, among the forms of constraint available to society, may be said to constitute (de facto) a total repudiation of the fil}g for which every recipient of such punishment gave his or her consent for a social contract in the first place, viz., to bring about a better way of preserving and enhancing his or her status as a living being. Generally, therefore, I would think it to be in the rational self-interest of all those who have gathered in the "original position" or the "initial bargaining position" (or whatever) to refrain from issuing any permission whatever for some (derivative) society to employ the death penalty. This would appear to be the outcome most in accord with the fundamental presuppositions of the generic framework. 8.2.3 The Problem of the Shotcaller There may yet be room for a challenge to my analysis. That is, it may be asked: While rejection of the death penalty may be best for nearly all of the situations in which social contractors may later find themselves, what about a very remote (but possible) situation in which the bedrock opportunity for a continued existence requires use of capital punishment? This would be, of course, something rather like the sort of "limit" situation to which Samuel J. M. Donnelly appeals in the argument he develops based on Rawls' theory (6.3). Here, as in chapter six, my response

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221 to what to do about this sort of situation would depend on whether the social contract is thought to be based on actual or hypothetical consent. If it is based on actual consent, then I would be prepared to acknowledge what I have conceded all along anyway, viz., that contractors actually in a "limit" situation might all agree to the use of capital punishment under very desperate circumstances (2.5.2; 6.3). An example of this could be a community of seven people who are stranded on some remote island where water for drinking is an extremely scarce commodity. Under these very unfortunate circumstances, it is at least possible, I suppose, that the people involved would all agree that stealing someone else's share of water is a capital offense. In this instance, I submit, the decision to employ the death penalty would not seem to constitute a violation of anyone's exercise of self-advocacy or expression of personal autonomy. This is because everyone in this scenario assumes the role of a "shotcaller" with respect to use of capital punishment. Of course, as a practical matter, in a community of any size it would be extremely unlikely that unanimous approval could be secured for use of the death penalty, and this regardless of how unfortunate the particular circumstances may be. But now, the circumstances of a social contract based on hypothetical consent would appear to be quite different. This is because, under hypothetical conditions (e.g., in an

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222 "original position" or "initial bargaining position"), some term of the agreement would have to be included which specifies who, later, in an empirical context, would get to say, "Now, a 'limit' situation obtains!" (8.1.5). The diffi culty I perceive in finding a plausible way of making this specification in accordance with the requirements of the generic framework is what I will call "the problem of the shotcaller." Of course, one idea might be for contractors in the hypothetical context all to agree that the "desig nated shotcaller" would be whoever happens to be chief of state in the empirical context. Another idea might be to entrust this determination, say, to a majority vote of the people, again, "on site" in the actual context. The difficulty I perceive, however, with both of these ideas, is that each of them would require a very substantial abdica tion of every contractor"s exercise of self-advocacy and the expression of personal autonomy. In effect, all of these contractors would be imposing on themselves the requirement that they entrust another person (or persons) with the authority to repudiate the very end for which each of them has embraced a social contract. To be sure, I can see how they might be moved to entrust another person (or persons) with major responsibility for identifying and implementing forms of constraint which are consistent with the end for which all of them have submitted to a social contract. But I cannot quite see what compels the necessity of supposing

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223 that~ of them (not just some of them, or even most of them), would be moved, i.e., within the generic framework I have outlined, indeed, one which places a premium on the exercise of self-advocacy and the expression of personal autonomy, to grant to another person (or persons) the ulti mate discretion to bring about (i) a unilateral disfranchise ment of oneself from the social contract; (ii) a repudiation of the end towards which all of one's efforts (qua contrac tor) have been directed; and (iii) a final and irrevocable cancellation of any further opportunity to seek a better life for oneself, indeed, of any further hope of such opportunity. In the section which follows I will explain why it cannot be excluded that at least~ of the contractors in a hypothetical bargaining situation would decline to participate in the extent of abdication of self advocacy and personal autonomy I have described at (i), ( ii ) and ( iii ) 8.2.4 The Idealization of the Hypothetical Bargaining situation As I explained in the introduction to this study (1.5.1), hypothetical consent is the sort of consent social contract theorists assume (actual) people would have given under specified conditions. These conditions are themselves hypothetical and vary from theory to theory. Nevertheless, all of these theories have one common feature. That is to say, they all appear to require a methodology which includes a commitment by the theorist to what I will call

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224 the "idealization" of the bargaining situation. What I mean by this for an agreement based on hypothetical consent may be brought to light by drawing a comparison to the circum stances of one based on actual consent. Obviously, in any actual bargaining situation there would be no guarantee, for example, that the contractors involved would be equally rational in their deliberations. Yet, equal rationality would probably be assumed almost as a matter of course by any theorist who relies on hypothetical consent. Indeed, this assumption might even be extolled as a virtue by those seeking to generate initial conditions of "fairness."6 Yet, however this may be, my point here is simply that the assumption of equal rationality commits the theorist to an idealization of the conditions that would be found in an actual context. A further idealization occurs with respect to what contractors may be said to know about the social conditions which shape their lives Again, in any actual context contractors may differ widely in their knowledge and understanding of these conditions. By contrast, though, in a hypothetical context the theorist could simply stipulate that the parties to the negotiation would be equally enlight ened and judicious with regard to such matters. The ideali zation of the bargaining situation in both of the ways I have described would be defended by the theorist as stipula tions actual people would be willing to allow, i.e., from 6Cf. John Rawls, A Theory of Justice. Harvard University Press, 1971, ch 1.

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225 the standpoint of rational self-interest. Of course, the supposition that actual people would be motivated to respond from this standpoint may already imply a commitment by the theorist to some degree of idealization, since, in any actual context, some of the contractors may be irrational and/or not motivated by self-interest; as a consequence of this, it may well be that the theorist's defense of equal rationality and equal knowledge of social conditions simply begs the question. Yet, I will not pursue this as a criti cism of the hypothetical bargaining situation. Indeed, I am prepared to make even greater concessions regarding the idealization of this context. I am moved to do this because I want to provide the theorist with every means of yielding the strongest possible challenge to my claim that the hypothetical bargaining situation cannot be shown to exclude people who would decline to grant any permission for a (derivative) society to employ the death penalty. In a spirit of concession, therefore, I will even allow the theorist to stipulate that the parties to the activity of negotiation are not only equally rational but are fully rational, as well. Moreover, I will allow a further stipu lation to the effect that these contractors are fully cognizant of every empirical situation which might arise under the terms of their agreement. Armed, then with all the advantages of perfect rationality and a knowledge of all possible sets of circumstances which could arise, these

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226 contractors would surely be in a position to evaluate their options for a "limit" situation in which every person's bedrock opportunity for a continued existence would be threatened without use of the death penalty. Now, with the benefit of these concessions, suppose the theorist were to argue that perfect rationality, perfect foresight, and motives of self-interest would be certain to converge upon a unanimous agreement by these contractors to embrace use of the death penalty in a "limit" situation. How might I respond to this challenge? My initial response, of course, would be to ask for an argument. But here, I suppose, the theorist could reply that since all contractors have committed themselves to the activity of negotiation for the purpose of finding a better way of preserving and enhancing their status as living beings (8.1.2), and since (ex hypothesi) they are confronted with a decision about what to do regarding a (future) situation in which their only means of preserving that status would be to allow use of the death penalty, it follows a fortiori that they would all agree to allow its use in this situation. In response to this argument, I would immediately concede to the theorist that, if it could be assumed that the overriding consideration for eyery contractor would be to do whatever may be necessary to preserve his or her status as a living being, then it would indeed follow a fortiori that they all would agree to its use. This is,

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227 however, an 'if' which I am nQt prepared to concede. That is to say, as I will try to show, it cannot be excluded that there are some contractors who would place life-enhancing considerations fillfill above what would be necessary to preserve their very lives. These are people who would so value the exercise of self-advocacy and the expression of personal autonomy that they would accept all manner of risk to their lives, and even certain death, rather than yield to another {by their consent) the lawful authority to decide whether they live or die. It may be said of these people, I submit, after the manner of Henley's familiar poem, that they are willing to accept "the bludgeonings of chance" in order that they might be able to affirm, at the very end of their lives, however untimely their demise may appear to others, "I am the master of my fate:/I am the captain of my soul." 7 I have, of course, already remarked at some length on the preference for this sort of life in my discussion of "Achilles' choice" in an earlier chapter (7.3), and my comments there should be consulted in conjunction with my present argument. The preference for this sort of life, I urge, is neither irrational nor even one which could not be held by a fully rational person. Among people who have lived in the twentieth century, I would want to include Mohandas Gandhi and Martin Luther King, Jr., as examples of those who may be 7 ["Invictus"], in The Works of W. E. Henley, Vol. I, David Nutt, 1908, p. 125.

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228 said to have embraced a version of "Achilles' choice." Both of these men may be described as highly autonomous individuals who generated, sustained, and most importantly, acted upon their own independent lines of thought in an attempt to bring about changes in society which would be life-enhancing, not only for themselves, but for others, as well. Moreover, they pursued their respective goals, in this regard, with extreme toleration of very great risk to their lives and in open defiance of governments which claimed jurisdiction over their activities. Just as with Achilles, (though not for glory), they, too, died before their time as a direct consequence of having preferred an autonomous life over one in which the bedrock opportunity for a continued existence could have been far better secured. Similarly, I submit, where there are actual people, who are thought to be bound under the terms of some hypothetical agreement, there may well be at least one among them who wants to call his or her own shots with regard to whether or not a "limit" situation obtains in an empirical context, and, if one is thought to obtain, to call his or her own shots with regard to whether or not to yield consent for use of the death penalty in those circumstances. It may be helpful to note that nothing in my argument requires that all, or even most, of the (actual) people, who are thought to be bound under a hypothetical agreement, would in fact prefer a version of "Achilles' choice" in a

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229 "limit" situation. Indeed, nothing in my argument requires that there would in fact be anyone who is so committed. All I need for my argument to work is that it cannot be excluded that there may be at least one person who would be disposed to make this choice, that is, at least one person who would prefer to call his or her own shots with regard to a "limit" situation. Moreover, since this possibility cannot be excluded by any theorist who relies on hypothetical consent, no unanimous decision to generate a permission for a (derivative) society to em.ploy the death penalty apropos of a "limit" situation can be assumed to arise from the standpoint of the hypothetical bargaining situation; and, of course, without unanimous consent, no permission whatever can be imputed as a feature of any social contract that is compatible with the generic framework. 8.2 5 Conclusions Regarding the Central Question Principally, two conclusions emerge from the analyses of this chapter, viz., (i) that contractors in a hypothetical bargaining situation would be disposed, i.e., with regard to nearly all (possible) future situations, to refrain from issuing a permission for a (derivative) society to em.ploy the death penalty, and this because of considerations which relate to the ends of constraint (8.2.1) and the uniqueness of the death penalty (8.2.2); and (ii) these contractors would ultimately reject any use of the death penalty altogether, and this because, even with

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230 regard to the most extreme situation (i.e., one at the "limit"), it cannot be excluded by the theorist that one or more of the contractors would decline to embrace the death penalty. As a general solution to the central question of my study, therefore, my analyses would appear to yield the conclusion that, where a theorist may be said to rely on hypothetical consent, any use of the death penalty would be fundamentally incompatible with the generic framework of social contract theory (8.2.3; 8.2.4). Of course, my analyses also yield the conclusion that, where a theorist may be said to rely on actual consent, use of the death penalty would be permissible, though highly improbable, and this because of the difficulty in obtaining unanimous consent for its use, especially in a community of any size ( 8. 2. 3) 8.3 A Practical Observation and Challenge The conclusions I have reached in this study would appear to loom as a challenge for those countries in the world today which both employ the death penalty and espouse contractarian values. Highly visible among these, of course, would be the United States of America, a nation steeped in contractarian traditions and yet also one with more than 2,600 persons in prisons awaiting execution. Other examples would include the emerging democracies in Eastern Europe and the former Soviet Union, nearly all of BSupra, 1.1; see especially n. 1.

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231 which have retained use of the death penalty from an era dominated by quite a different political theory.9 My challenge to the officials of these governments, and indeed, to the people they purport to represent, would be to pursue one of three courses which consistency would seem to dictate in light of my study, i.e., either (i) undertake to find plausible grounds upon which to base a refutation of the conclusions I have drawn; (ii) cease to espouse contractarian values; or (iii) move to abolish the death penalty. 9See Amnesty International Report {1993), Amnesty International Publications, 1993, passim; only Georgia among the former Soviet republics has abolished the death penalty.

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REFERENCES Amnesty International Report (1993). Amnesty International Publications, 1993. Auxter, Thomas. "Kant's Theory of Retribution," in Akten des Siebenten Internationalen Kant--Kongresses (Kurfilrstliches SchloP zu Mainz, 1990). Von G. Funke, 1991. Beccaria, Cesare. On Crimes and Punishment. Henry Paolucci, trans. Bobbs-Merrill Company, 1980. Benn, S. I. "Punishment," in Paul Edwards, ed., The Encyclopedia of Philosophy, Vol. 7. Macmillan Publishing Company, 1967. Campbell, Richmond. "Gauthier's Theory of Morals By Agreement." The Philosophical Quarterly 38 (1988), 343364. Cattaneo, Mario A. "Hobbes' Theory of Punishment," in K. C. Brown, ed., Hobbes Studies. Harvard University Press, 1965. Comfort, Alex. People Without Governments. Kahn & Averill with Cienfuegos Press, 1982. Cooper, W. E., and John King-Farlow. "A Case for Capital Punishment." Journal of Social Philosophy 20 (Winter 1989), 64-76. Crocker, Lester G. Rousseau's Social Contract. The Press of Case Western Reserve University, 1968. Donnelly, Samuel J.M. "A Theory of Justice, Judicial Methodology, and the Constitutionality of Capital Punishment: Rawls, Dworkin, and a Theory of Criminal Responsibility." Syracuse Law Review 29 (1978), 11091174. Finnis, J. Natural Law and Natural Rights. Oxford University Press, 1980. 232

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Freeden, Michael. Rights. Open University Press, 1991. Gauthier, David. "Hobbes' Social Contract." Nm.l. 22 (1988), 71-82. 233 The Logic of Leviathan. Clarendon Press, 1969. ---------"Morality, Rational Choice, and Semantic Representation: A Reply to my Critics," in Ellen Frankel Paul, Fred D. Miller, Jr., Jeffrey Paul and John Ahrens, eds., The New Social Contract: Essays on Gauthier. Basil Blackwell, 1988. Morals By Agreement. Clarendon Press, 1986. ---------"Taming Leviathan." Philosophy and Public Affairs 16 (1987), 280-298. ---------"Thomas Hobbes and the Contractarian Theory of Law," in David Copp, ed., Canadian Philosophers. University of Calgary Press, 1990. Gough, J. w. The Social Contract. Greenwood Press, 1978. Hampton, Jean. "Can We Agree on Morals?" Canadian Journal of Philosophy 18 (June 1988), 331-356. ---------Hobbes and the Social Contract Tradition. Cambridge University Press, 1986. Hare, R. M. and II.'" 241-252. "Critical Study : 'Rawls' Theory of Justice--I Philosophical Quarterly 23 (1973), 144-155, Moral Thinking. Clarendon Press, 1981. Henley, William. ["Invictus"J, in The Works of w. E. Henley, Vol. I. David Nutt, 1908. Heyd, David. "Hobbes on Capital Punishment." History of Philosophy Quarterly 8 (April 1991), 119-134. Hobbes, Thomas. De Cive. Appleton-Century-Crofts, 1949. Leviathan. Collier Books, 1962. Hohfeld, Wesley. Fundamental Legal Conceptions. Greenwood Press, 1978. Homer. Iliad. Odyssey.

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Hood, Roger. The Death Penalty: A World-wide Perspective. Oxford University Press, 1989. Hume, David. "Of the Original Contract," in Sir Ernest Barker, ed., Social Contract. Oxford University Press, 1962. 234 Jefferson, Thomas. "The Declaration of Independence," in Stuart Gerry Brown, ed., We Hold These Truths. Harper & Brothers, 1941. Kant, Immanuel. Foundations of the Metaphysics of Morals. Bobbs-Merrill, 1981. ---------The Metaphysical Elements of Justice. Bobbs Merrill, 1965. Kavka, Gregory S. Hobbesian Moral and Political Theory. Princeton University Press, 1986. Kelly, Frank. "The Social Contract: Murder and the Death Penalty." New York State Bar Journal (July 1989), 45-46. Lempert, Richard. "Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital Punishment." Michigan Law Review 79 (1981), 1177-1231. Lessnoff, Michael. Social Contract. Humanities Press International, 1986. Locke, John. Second Treatise on Civil Government, in Sir Ernest Barker, ed., Social Contract. Oxford University Press, 1962. McLaughlin, Andrew C. Constitutionalism. The Foundations of American New York University Press, 1932. Medina, Vicente. Social Contract Theories. Rowman & Littlefield, 1990. Mendola, Joseph. "Gauthier Morals By Agreement and Two Kinds of Rationality." Ethics 97 (July 1987), 765-774. Mikliszanski, J. K. "The Law of Retaliation and the Pentateuch." Journal of Biblical Literature LXVI (1947), 295-303. Murphy, Jeffrie G. "Marxism and Retribution," in Richard A. Wasserstrom, ed., Today's Moral Problems. Macmillan Publishing Company, 1979.

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New York Times. July 30, 1993, A4. Nozick, Robert. Anarchy. State. and Utopia. Basic Books, Inc., 1971. The Oxford Annotated Bible (Revised Standard Version). Oxford University Press, 1962. Paternoster, Raymond. Capital Punishment in America. Lexington Books, 1991. Paul, Jeffrey. "Substantive Social Contracts and the Legitimate Basis of Political Authority." Monist 66 (October 1983), 517-528. 235 Primorac, Igor. "On Capital Punishment." Israel Law Review 17 (April 1982), 133-150. Pugsley, Robert A. "A Retributivist Argument Against Capital Punishment." Hofstra Law Review 9 (1981), 15011523. Radelet, Michael, Hugo Adam Bedau, and Constance E. Putnam. In Spite of Innocence. Northeastern University Press, 1992. Rawls, John. A Theory of Justice. Harvard University Press, 1971. Replogle, Ron. Recovering the Social Contract. Rowman & Littlefield, 1989. Riley, Patrick. Will and Political Legitimacy. Harvard University Press, 1982. Ritchie, David G. "Contributions to the History of Social Contract Theory," in Darwin and Hegel. Swan Sonnenschein & Company, 1893. Ross, Alf. On Law and Justice. University of California Press, 1959. Rousseau, Jean-Jacques. Discourse on the Origin of Inequality and The Social Contract, in Lowell Bair, trans., The Essential Rousseau. New American Library, 1974. Satre, Thomas W. "Human Dignity and Capital Punishment." Journal of Philosophical Research XVI (1990-91), 233-250. Schedler, George. "Can Retributivists Support Legal Punishment?" Monist 63 (April 1980), 185-198.

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236 Scheid, Don E. "Kant's Retributivism." Ethics 93 (January 1983), 262-282. Schochet, Gordon J. "Hobbes and the Voluntary Basis of Society," in Mary G. Dietz, ed., Thomas Hobbes and Political Theory. University of Kansas, 1990. Schwartzschild, Stevens. "Kantianism on the Death Penalty." LXXI (1985), 343-372. Simmons, A. John. Moral Principles and Political Obligations. Princeton University Press, 1979. Spangenberg, Robert L., and Elizabeth R. Walsh. "Capital Punishment or Life Imprisonment? Some Cost Considera tions." Loyola of Los Angeles Law Review 23 (1989), 4558. Stoljar, Samuel. An Analysis of Rights. St. Martin's Press, 1984. Strauss, Leo. "On the Spirit of Hobbes"s Political Philosophy," in K. C. Brown, ed., Hobbes Studies. Harvard University Press, 1965. Sumner, L. w. The Moral Foundation of Rights. Clarendon Press, 1987. Tate, Thad W. "The Social Contract in America, 1774-1787." William and Mary Quarterly 22 (1965), 375-391. Urofsky, Melvin I. "A Right to Die: Termination of Appeal for Condemned Prisoners." Journal of Criminal Law and Criminology 75 (1984), 553-582. Watkins, John. Hobbes's System of Ideas. Hutchinson, 1973. White, Welsh S. "Defendants Who Elect Execution." University of Pittsburgh Law Review 48 (1987), 853-877. Williams, Howard. Kant's Political Philosophy. Basil Blackwell, 1983.

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BIOGRAPHICAL SKETCH Vernon Thomas Sarver, Jr., was born on December 17, 1943, in Bluefield, West Virginia. He received the B.A. in psychology from Florida State University in 1966 and holds master's degrees in religious studies (M.Div., Tufts University, 1969), biblical studies (S.T.M., Boston University, 1971), and philosophy (M.A., Ohio State University, 1976). Presently, Mr. Sarver is a resident of Archer, Florida, where he lives with his wife, Mary, and daughters, Anne and Laura. 237

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I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. Richard M. Hare, Chair Graduate Research Professor of Philosophy I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. Thomas P. Auxter Associate Professor of Philosophy I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. Michael L. Radelet Professor of Sociology I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and ity, a dissertation for the degree of ophy. Ziller of Psychology This dissertation was submitted to the Graduate Faculty of the Department of Philosophy in the College of Liberal Arts and Sciences and to the Graduate School and was accepted as partial fulfillment of the requirements for the degree of Doctor of Philosophy. April 1994 Dean, Graduate School

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