This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, a rational contractarian approach maintains that members of society would reach broad agreement with one another concerning the outlines of a system of punishment, based on the fact that they would regard themselves as benefiting from the deterrent effect of such a system. But they would balance the deterrence benefits of such a system with the incursions any scheme of punishment makes into personal liberty. Rational agents would adopt that scheme of punishment that maximizes marginal deterrent benefit without unduly burdening individual liberty.
The paper also suggests that a rational contractarian approach is able to capture the best insights of the two leading alternative theories of punishment: deterrence theory and retributivism. On the one hand, rational contractarianism shares the deterrence view that the guiding aim of any punishment scheme must be the deterrence of crime, where a crime is an action that violates the background social contract. On the other hand, rational contractarianism solves the central problem associated with pure deterrence theories—the problem that punishment on this view involves “using” individuals for the sake of achieving the general social goal of deterrence. It does so by maintaining that the way in which the aim of deterrence is incorporated into punishment theory is not premised on total, or even average, social utility, but on the assent of each individual to the scheme by which such deterrent ends are pursued. The criteria for the rationality of assent for each contractor is that the individual regards himself as benefiting on balance from the punishment scheme. A rational contractarian scheme of punishment thus renders the actual punishment of offenders under the rules of the system voluntary, in that each rational member of society has given his own prior agreement to be governed by the punishment institution in the event that he ends up committing a crime. A voluntary punishment scheme avoids the problem of “using” individuals for the sake of deterring other agents, because it represents instead the decision of each rational contractor to allow others to hold him to a set of agreed upon consequences for violations of the social contract. The aim of deterrence, therefore, does not cause the theory to “travel across persons” in the way that deterrence theories do.
Legal Philosophy, Moral and Political Philosophy, Criminal Law and Procedure, Criminal Sentencing
Finkelstein, Claire Oakes, "Punishment as Contract" (2011). Faculty Scholarship at Penn Law. 995.