In liberal democratic states, an important component of justification for punishing criminals is drawn from the social contract theory tradition of Western political thought. The state has a right to punish the lawbreaker, social contract theory tells us, because the state’s enforcement of the laws is authorized by a mutual promise that lies at the basis of all political societies. Though the details of this promise vary across particular contract theorists, all propose that membership in a political society entails a promise to all other members to give up some freedoms in exchange for the benefits of state-protected rights. Thus, a criminal act is not just a violation of the rights of another person; it constitutes a breach of lawbreaker’s promised obligations to society itself.
Certainly, social contract theories provide a conceptual framework to claim an injustice done to society by the lawbreaker—but can this framework also tell us something of the injustices done to lawbreakers, and to the social orders from which they come, by a criminal justice system that claims to punish in society’s name? What promises and/or what threats might the idea of the social contract hold for advocates of criminal justice reform?
In this course, we will study proponents and critics of the idea of social contract in order to ask after its value and danger as device for justifying the state’s power to punish. Our readings of classical authors in the social contract tradition—including Plato, Hobbes, Locke, Beccaria, and Rousseau—will be guided by our attention to the production of the figure of the lawbreaker in their texts. This lawbreaker figure will provide our entry point into contemporary critiques that expose patriarchal, white supremacist, and capitalist commitments within this tradition, and current legal scholarship that draws from social contract theory to advocate for criminal justice reform, particularly reform of the American system of mass incarceration.