Criminal Punishment and the Threat Requirement

Liberal democracies value individual rights. However, criminal punishment—a fine, prison sentence, or death penalty—involves treating criminals in ways that encroaches upon their rights to property, liberty, or life. How, then, can criminal punishment be morally justified? Recently, there is a trend in the literature toward meeting this challenge by appealing to the right of self-defense. Given that this right is widely recognized, such a justification, if successful, would satisfactorily meet the above challenge and explain why it is permissible to limit rights of offenders in the context of punishment.In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right(s) to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and constrained by the basic rights they are supposed to protect.I then explain how this theory responds to an objection commonly raised against the self-defense theory. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment.