The classical liberal concept of law and punishment: Hobbes, Bentham, and Foucault

The analysis proceeds through the juxtaposition of Michel Foucault's history of modern punitive practices with the theoretical justification for the state's right to punish provided by Thomas Hobbes and Jeremy Bentham. The purview of classical liberalism is tantamount to the endorsement of juridical sovereignty, while that of Foucaultian post-modernist advances from the explicit rejection of legal fiction. I take Hobbes and Bentham to be the best representatives of the juridical model of power which Foucault is attempting to describe, to criticize, and ultimately to overcome. It is from Bentham's utilitarian theory of law and punishment that the metaphor of panopticism, which forms the core of Foucault's critique, is derived. Hobbes' Leviathan represents the first, and perhaps the foremost, attempt in the history of political thought to found the rule of law upon a social contract. It is my intention, in adjoining Hobbes, Bentham, and Foucault, to establish the basis for an exchange between these intersecting, if incongruous, accounts of law and punishment.My concluding comments are presented in three parts. The first addresses what I regard as a permanent tension between Foucault's critique of contemporary punitive practices and the classical liberal defense of law and punishment provided by Hobbes and Bentham, respectively. The second considers the principle of a fundamental equality of persons as constitutive of liberalism as a tenable philosophical position. I close with a discussion of the intractable relationship between procedural fairness and substantive justice in commitment of the liberal tradition to juridical sovereignty. The common theme which unites these three points of focus is that of the status of persons before and under liberalism's rule of law.