On the Dilemma of Contemporary Liberal Theory of Moral Rights for Penalty Justification
— Exemplified by the Right to Personal Liberty

ZHANG Fengming

Abstract: Contemporary liberal theory on moral rights argues that moral rights associated with personal liberty constitute a strong constraint on the boundaries of state power. Therefore, the core issue of the penalty justification is not the purpose of the penalty, but the reason for the penalty to refrain from infringing on the moral rights of individuals. In order to justify the penal system, scholars have explored solutions such as limiting the content of rights, waiving rights, and finally rights forfeiture. However, the concept of rights forfeiture cannot be reasonably integrated into the framework of the liberal theory of moral rights. The failure of these attempts stems from the patchwork understanding of rights presupposed by the liberal theory of moral rights. There is another systematic way of understanding rights that offers a better justification. Individual rights are not an independent non-derivative moral justification, and both individual rights and the penal power of the state are only part of a specific (realistic or ideal) system of rules that collectively serve certain values. The real question of penalty justification is not why the punishment does not infringe on the moral rights of individuals, but whether the overall institutional arrangements, including the penal system, are justifiable for all citizens, including the punished.

Keywords: moral rights · penalty justification · consent · forfeiture · deprivation