Punishing the poor and the limits of legality

Abstract

Many of us feel that there is something distinctly wrong about punishing people who are extremely poor. Criminal law theorists have offered different explanations for this disquietude, among these is the idea that punishing the poor may be unwarranted because extreme poverty undermines the authority of the state to punish. This paper argues that the issue of authority is indeed the heart of the matter, but unlike most views it argues that extreme poverty completely subverts the meaning of punishment and renders it into an instance of pure force. By looking into foundational ideas of punishment and legality in literary resources like The Oresteia as well as in early modern philosophical discourse, the paper argues that punishment requires a context of authority to be a part of legal and political justice, and even in a minimal account of political legitimacy such as that formulated by Hobbes, extreme poverty undermines such context.