A Jointly-Held Right to Punish
Locke and his followers claim that if the state has a legitimate right to employ coercive force, then this right is necessarily derived from the voluntary transfer of persons who naturally hold it. Hence, it is a central presupposition in Lockean political philosophy that persons have a natural and separately-held right to punish. Locke’s “Strange Doctrine” is that each person has at their own discretion a natural executive right to punish those who trespass natural law. This paper rejects the claim that persons have a natural executive right. Persons have a natural right to punish, but it is a right that is jointly-held. After the concept of a jointly-held right is clarified, the paper outlines the jointly-held right to punish. A person may not rightfully punish absent some prior approval of other joint right-holders. The jointly-held executive right is justifiable on the broadly consequentialist grounds that Locke mistakenly thought justified the natural executive right. The paper provides a concrete argument for the justifiability of a jointly-held right to punish. The Lockean natural executive right is incompatible with any jointly-held executive right; hence, it is indefensible. The central presupposition of Lockean political philosophy is displaced. How then are we to conceive the legitimacy of state power? The paper concludes with a suggestion that the legitimacy of the state is, in part, derived from its necessary role in the execution of the jointly-held right to punish.