Rocio Lorca Ferreccio

In ancient Rome all magistrates or public authorities had potestas, i.e., powers to carry out their duties or civil responsibilities which was derived from a general and sometimes absolute power to rule called imperium. In most cases, the potestas granted to the various magistrates included coercitio, which could, but did not have to, include the power to punish. Similarly, our public authorities have the power to carry out their duties and the ability to compel obedience by force. Legal theory, however, often blurs these distinctions, advancing the idea that the power to punish is primarily what imperium consists of. This has entrenched two general ideas about criminal law. First, that legal punishment is a necessary feature of statehood. Second, that legal punishment is the most paradigmatic and troublesome instance of public force, thus requiring greater political control and procedural restrictions than other forms of coercion. This paper examines the distinction between punishment and enforcement to facilitate more constructive discussions about abolitionism and strengthen the case for greater normative scrutiny of other instances of state power.

Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption.