Speaker
Description
In his Lectures on Jurisprudence, Adam Smith advances a unique version of the natural right to punish, what he calls the “right to exact punishment.” On the usual construal, the natural right to punish is held equally by all and consists in a permission to physically inflict punishments. Smith’s right to exact punishment, by contrast, consists in a special claim of victims to demand or forgive the punishment of their offender, a punishment that the offender owes to his victims. In this paper, I show how Smith’s right to exact punishment accounts for two central duties of legal punishment – the duty of offenders to suffer punishment and the duty of the state to prosecute offenses. In so doing, I overcome two prima facie objections. (1) How can victims be owed their offender’s duty to suffer punishment when that punishment rests on their resentment, as Smith believes? (2) If victims are owed punishments for crimes suffered, then why are these crimes prosecuted by the state, but not by victims? To respond to these objections, I rely on Theory of Moral Sentiments to show how a morally warranted resentment aims at the security of victims’ equal dignity. Resentment is a basis for the right to an offender’s punishment since, when demanded on a morally warranted resentment, punishment secures the dignity of victims. I further show how, for Smith, offenders forfeits their immunity to punishment by the commission of their crimes, allowing for the security of victims’ dignity to additionally serve as a basis for offenders’ duty to suffer punishment. This duty is owed to victims in virtue of the fact that wrong suffered by the offender’s crime persists until he is either punished by their demands, or forgiven by the same. Next, I show how the state’s duty to prosecute rests on a natural right of third parties to help victims demand punishment. I reject a natural duty of third parties to help victims demand punishment: as legal duties to rescue and to report crimes make clear, it is seldom the case that third parties acquire a duty to help victims. Yet the state’s duty to prosecute can rest on a right to help victims since, for Smith, the state has a more general duty to ensure justice in society. Accounting for the state’s prosecutorial powers in this way preserves Smith’s forceful rejection of a consensual transfer of rights from individuals to the state.
| Organization | Wabash College |
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