Abstract
The rights-forfeiture theory of punishment attempts to explain and justify the practice of punishment by arguing that wrongdoers in virtue of their wrongdoing have forfeited the right not to be punished. The theory however faces many challenges, including how to explain just what right or rights have been forfeited. Most problematic for the theory is that, in claiming that wrongdoers forfeit their rights, it seems merely to restate the claim that punishment is morally permissible rather than providing an explanation of why it is permissible.
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Notes
- 1.
For more details, see my discussion of this problem in Kaufman (2013, ch. 1). The present essay focuses on legal punishment administered by the state, though the question of why the state is the legitimate and exclusive administrator of punishment is itself of course a further challenging problem, in addition to the question of why anyone at all is justified in administering punishment.
- 2.
One arguable exception to the prohibition of intentional harm is self-defense, though the traditional double effect theory of self-defense claims that the harm inflicted on the attacker is not fully intentional (Kaufman 2009). In any case, self-defense presents similar problems of moral justification, and indeed rights-forfeiture proponents usually defend self-defense along the very same lines, in that an unjustified attacker has forfeited the right not to be harmed. I criticize the rights-forfeiture theory of self-defense in Kaufman (2004).
- 3.
To be sure, Kant himself did not think so (see Kant 1996, 6:331–35 [pp. 473–76]). But Kant’s defense of punishment is almost universally rejected today as implausible and barely even coherent.
- 4.
For discussion of Locke, see Simmons (1991, 239–44).
- 5.
The word “evidently” in this opinion means it is taken as self-evident, and no further evidentiary support is needed or given.
- 6.
- 7.
The present discussion involves of course moral rights rather than legal or positive rights (such as the right to a speedy trial), which are concrete and precise legal guarantees that are binding on the state. There is no doubt a legal right to punish; the question is whether there is a moral right to do so.
- 8.
Note the ambiguity between the claim that people ought not to suffer, versus that they have a “right” not to.
- 9.
The claim that it “seems clear” is another version of the self-evidence claim.
- 10.
It was, for example, common during the COVID pandemic to hear people insist that they had a “right” not to wear a mask. This assertion functioned in effect to relieve the claimant of having to make a moral argument for this dubious position.
- 11.
Indeed, it is implausible that there exists an indefinitely long list of natural rights corresponding to every possible type of harm: a right not to have one’s pinky scratched, one’s nose punched, one’s shin kicked, one’s eye removed (as well as a separate right not to have both eyes removed), one’s hand burned by a cigarette, and so on.
- 12.
And also, only by the appropriate authority. But I leave aside this complication.
- 13.
Wellman ends up endorsing this idea, though tentatively (2017, 146).
- 14.
Equally puzzling is that Simmons (1991) argues that victims have a “right to punish.” But it seems unlikely that there is a right to punish persons who have done wrong, and also a general right not to be punished for having done wrong, the latter of which must be forfeited for the former right to be actionable.
- 15.
Indeed, it only seems to lead to a regress. For if there is a right not to be punished for a wrongdoing, then why is there not also a right not to forfeit one’s right not to be punished for that wrongdoing?
- 16.
Note also how different this version of the theory is from the lex talionis version, which tries to ground forfeiture in the principle of tit-for-tat. This again suggests that rights-forfeiture is not a substantive theory, but an intuition in search of a reason.
- 17.
Wellman takes fairness theories as a form of theory distinct from rights-forfeiture theories, arguing that the latter are superior (2017, 165).
- 18.
Simmons even claims that an “unruly dog … lacks the right not to be harmed” (1991, 343). Are we to take it that well-behaved animals have the right not to be harmed? (Does a mouse being in one’s house count as misbehaving?) And that misbehaving results in forfeiture, even there is no autonomous moral choice involved? The skeptic will have doubts that there is anything like a systematic theory of who has rights and how they are forfeited.
- 19.
Note that here Wellman suggests there is a specific right “not to be tortured to death.” Surely this is a dubious claim. Is there also a right not to be tortured almost to death? Not to be tortured halfway to death? Etc.
- 20.
Wellman raises this concern, writing that “rights forfeiture does so little—it answers so few of our questions—that it hardly qualifies as a theory of punishment.” Wellman’s response only seems to concede the point: he claims that the theory is a “family of views” with “plenty of room for vigorous debate” among its members (2017, 41). He also suggests there is a “double standard” operating, since other theories also seem to have the same indeterminacy. Even if this is true (and I have presented reasons to believe that rights-forfeiture theory is uniquely indeterminate and unprovable), then the very best that can be said for rights-forfeiture theory is that it presents yet another unhelpful theory of punishment.
- 21.
One of Wellman’s favorite phrases in the book is that “reasonable people can disagree” on various matters (2017, 27, 32, 44, 78, 93, 125, 147, etc.). It is hard to find any examples in his book of issues that the rights-forfeiture account can settle, even among proponents of the account.
- 22.
Wellman notes that Douglas Husak reaches the same conclusion he does (that our current punitive system is excessive) but without using the framework of rights-forfeiture, though Wellman says that “I would express it in terms of rights forfeiture” (2017, 174). Strikingly, Wellman does not claim that Douglas Husak’s analysis is in any way deficient, nor does he indicate how the rights-forfeiture theory is preferable.
- 23.
Wellman explains that he is deliberately avoiding “taking a stand on many of these controversial issues” (2017, 42).
- 24.
For a detailed critique of the mixed theory, see Kaufman (2008).
- 25.
In this way, he departs radically from Hart’s dualism. For Wellman, retributivism and deterrence belong together as distinct sort of “aims”; whereas for Hart, deterrence provides the general aim while retribution provides a principle of “distribution.” The fact that this “mixed” strategy of dividing a problem into different “questions” can be used to such radically different ends is even more reason to be skeptical of it.
- 26.
Cf. Zimmerman, who presents the standard view (though not in response to rights-forfeiture theory): “To say that an act is morally justified is to say that it is not morally wrong, that it is at least morally permissible and perhaps even morally required” (2011, 25). Of course, to say that an action (e.g., punishing) is in general justified is not to say that it is justified (or permissible) in every case, nor is it to say that its being justified shows that it is morally ideal in every case.
- 27.
Wellman is grossly mistaken to think that that traditional theories about the justifiability of punishment simply aim to describe why we should “want” a system of punishment, as distinct from why a system of punishment is morally permissible (2017, 2). All of these theories are about why punishment is justified, not merely why we “want” it.
- 28.
Compare also Alm’s (2013) Hart-inspired dualism between “rational justification” and “moral justification,” where “rational” seems to mean whatever produces the results one desires, regardless of the morality of the means, and “moral” means that no rights have been violated. Again, this seems to be simply a way of critiquing consequentialism and (falsely) assuming that any such moral critique must be in terms of rights.
- 29.
Wellman suggests that inflicting such gratuitous harm on a person simply because one can may indicate a “character flaw” (2017, 18) and that there may be “aretaic” moral reasons rather than deontic ones to “refrain from gratuitously harming someone” (22).
- 30.
The strong theory is also quite unconvincing. If it is legitimate for an individual to inflict gratuitous harm because the offender has forfeited their rights, then why is it not legitimate for the state to do so too? If one person can kill an offender for fun, why can the entire society not gather and burn the person at the stake for entertainment? Indeed, Wellman gives as one of the values served by state punishment that it “provides an effective outlet for what would otherwise be socially disruptive tensions” (2017, 47). This reason would seem to provide ample justification for throwing offenders to the lions, if that is what the people want. Wellman is correct that the establishment of a state-based criminal legal system as a whole requires strong moral reasons (that it “secured vitally important goods that would be unavailable in its absence” [23]); however, it does not follow that therefore the state needs a strong moral reason for each individual act of punishment. If offenders have forfeited their rights, then the state does no wrong in harming them, even if just for the entertainment of the people. And what if the goal is a morally important one, like harvesting the internal organs of those who have lost their rights, in order to save lives?
- 31.
- 32.
Simmons insists that his account is “not unbearably awkward or ad hoc” (1991, 340), setting a rather low bar for the theory!
- 33.
As noted above, Wellman simply concedes the abolitionist refutation of the arguments in favor of rights-forfeiture theory, but retreats to defending the theory as self-evidently true, thus insulating it from criticism (and evading the need to provide arguments for it).
References
Alm, David. 2013. “Self-Defense, Punishment, and Forfeiture.” Criminal Justice Ethics 32, no. 2: 91–107.
Boonin, David. 2008. The Problem of Punishment. Cambridge: Cambridge University Press.
Daly, Martin, and Margo Wilson. 1988. Homicide. New Brunswick, NJ: Transaction.
Glendon, Mary Ann. 1991. Rights Talk: The Impoverishment of Political Discourse. New York: Free Press.
Golash, Deirdre. 2005. The Case against Punishment: Retribution, Crime Prevention, and the Law. New York: New York University Press.
Goldman, Alan H. 1979. “The Paradox of Punishment.” Philosophy & Public Affairs 9, no. 1 (Autumn): 42–58.
Hart, H. L. A. 1960. “Prolegomenon to the Principles of Punishment.” Proceedings of the Aristotelian Society 60, no. 1 (June): 1–26.
Kant, Immanuel. 1996. The Metaphysics of Morals. In Practical Philosophy, translated and edited by Mary J. Gregor, 363–602. Cambridge: Cambridge University Press.
Kaufman, Whitley R. P. 2004. “Is There a ‘Right’ to Self-Defense?” Criminal Justice Ethics 23, no. 1: 20–32.
———. 2008. “The Rise and Fall of the Mixed Theory of Punishment.” International Journal of Applied Philosophy 22, no. 1 (Spring): 37–57.
———. 2009. Justified Killing: The Paradox of Self-Defense. Lanham, MD: Lexington.
———. 2013. Honor and Revenge: A Theory of Punishment. Dordrecht: Springer.
Kershnar, Stephen. 2010. “The Forfeiture Theory of Punishment: Surviving Boonin’s Objections.” Public Affairs Quarterly 24, no. 4 (October): 319–34.
Lippke, Richard L. 2001. “Criminal Offenders and Rights Forfeiture.” Journal of Social Philosophy 32, no. 1 (Spring): 78–89.
McCullough, Michael E. 2008. Beyond Revenge: The Evolution of the Forgiveness Instinct. San Francisco: Jossey-Bass.
Morris, Christopher W. 1991. “Punishment and Loss of Moral Standing.” Canadian Journal of Philosophy 21, no. 1 (March): 53–77.
Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic.
Rachels, James. 2007. The Elements of Moral Philosophy. 5th ed. New York: McGraw Hill.
Renzo, Massimo. 2017. “Rights Forfeiture and Liability to Harm.” Journal of Political Philosophy 25, no. 3 (September): 324–42.
Rosebury, Brian. 2015. “The Theory of the Offender’s Forfeited Right.” Criminal Justice Ethics 34, no. 3: 259–83.
Ross, W. D. 2002. The Right and the Good. Edited by Philip Stratton-Lake. Oxford: Clarendon.
Simmons, A. John. 1991. “Locke and the Right to Punish.” Philosophy & Public Affairs 20, no. 4 (Autumn): 311–49.
Tomlin, Patrick. 2017. “Innocence Lost: A Problem for Punishment as Duty.” Law and Philosophy 36, no. 3 (June): 225–54.
Wellman, Christopher Heath. 2017. Rights Forfeiture and Punishment. New York: Oxford University Press.
Zimmerman, Michael J. 2011. The Immorality of Punishment. Toronto: Broadview.
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Kaufman, W. (2023). The Rights-Forfeiture Theory of Punishment. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_14
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