Punishing the Poor and the Limits of Legality

I

We often describe punishment as a principled legal institution that embodies a triumph of reason over passion. ¹ Punishment, unlike brute violence, is widely understood as an institution of justice. Yet, it is within this very same practice that many identify the most embarrassing brutalities of our societies and reasons to think that we have failed yet to become civilized. Criminal law and criminology scholars are increasingly troubled by the overuse of criminal justice through punishing too much and too harshly. ² This concern is particularly pronounced because we punish too much precisely those who have been systematically denied sufficient access to the benefits of a political life, most typically, the extreme poor. ³

Regarding the legitimacy of punishing the extreme poor, criminal law theory and political philosophers have provided two sets of answers. According to the first of these, punishing the poor makes us uneasy because poverty undermines the conditions of individual responsibility thus making punishment unfair. ⁴ The second set of answers considers that the central problem of punishing the poor has to do with the state’s lack of authority or standing to do so. In these theories the issue is usually presented as a moral problem where extreme poverty either undermines the normativity of the criminal law or it undermines the moral standing of a community to call an offender to answer. ⁵

Both individual responsibility and authority are necessary factors for punishment to be justified, and I do believe that they can both be undermined by extreme poverty. However, most scholars who are willing to concede that extreme poverty undermines the authority of the state to punish tend to find reasons to argue that the state can still punish, either because they argue that in certain cases the state has a duty to punish even without authority, or because they argue that some residue of authority is still standing. ⁶ But perhaps the impact of extreme poverty runs deeper, not only completely undermining authority but also changing punishment’s meaning by canceling the very features that allow us to understand punishment as a civilized practice which expands the space of legality. Perhaps when we punish the extreme poor what we are doing does not ultimately fit our own conception of what punishment is.

In this article I will argue that punishing the extreme poor is troubling because beyond whether the practice can be justified or not, when we punish the extreme poor we are not acting in the higher realm of justice and legality but instead have fallen back into the space of hostility. In order to do this I will first distinguish some of the features of punishment that make it an institution of legality as opposed to brute violence. Here my aim is to show that the importance of authority for punishment is not just a moral issue regarding the rights of the state and the duties of the citizen, but also that authority is a necessary feature of punishment to be distinguished from brute violence. I will then look at how extreme poverty may undermine the possibility of punishment being an institution of legality.

II

What makes punishment a practice of legality? From our earliest ideas of punishment, we have understood it as a civilized practice of justice that can be distinguished from the excessive and unruly nature of vindictive passions. In one of our oldest myths about the emergence of punishment and legal institutions, The Oresteia, a cycle of revenge is brought to an end through the institution of a court of justice. In The Eumenides, the third play of the cycle, we see this through the transformation of the Furies into the Eumenides. ⁷ But as the story shows, it is the context in which the punishment takes place rather than its specific form that sets it apart from brute violence. What the context provides is not the justification for punishment but the conditions that make punishment intelligible as an institution of law.

The Furies, repulsive gorgon-like entities with blood dripping from their eyes, are chasing Orestes to avenge Clytemnestra’s murder. The goddess Athena intervenes by establishing an impartial and permanent court, the Aeropagus, to adjudicate their conflict. ⁸ After a trial, the case is decided in favor of Orestes by Athena’s deciding vote, but the Furies “heavy with anger” have yet to be persuaded. ⁹ In order to convince them to accept the Aeropagus judgment, Athena offers the Furies a place in her city where they will be treated and honored as goddesses. Though she also threatens them with violence, her main offer is glory, power, privilege and sharing the country and its good life. ¹⁰ When the Furies are finally persuaded to accept the judgment of the Aeropagus and stay in Athena’s city, they no longer look angry, but benevolent, no longer looking like beasts, but like humans.

Although the ending of The Oresteia marks the beginning of Athena’s political justice, it is worth noting that the depth of the transformation that the Furies undergo is ambiguous. ¹¹ It is not clear whether they actually become essentially benevolent, or whether their nature has merely been domesticated and they remain internally angry and resentful. Their new name seems to suggest that they have gone through a complete transformation into peaceful benevolent beings, but the terms of the negotiation with Athena suggest that the second is true, i.e., that there is a change in their manners and mode of acting but that they remain vindictive. ¹²

Indeed, in the story violence and fear are considered necessary to secure the normative order of the community, but this violence and fear must be organized by law and by the judgment of the Aeropagus. ¹³ As Eumenides, the Furies behave and look different, but they still instill fear, a fear which is now at the service of the institutions of justice that Athena has set up. ¹⁴ In consequence, the transformation of the Furies into Eumenides does not mark the end of coercion, but a new context that allows violence to become an institution of political justice. This is the transition from revenge to punishment. ¹⁵

What made this transition possible? Why did the Furies choose to become Eumenides? Possibly the answer lies in the terms of their negotiation with Athena, where there is something real that is perceived as valuable for both parties. Athena is more powerful than the Furies and did not need to convince them in order to save Orestes, she did so because she perceived the Furies being transformed into Eumenides as valuable for strengthening her political institutions. ¹⁶ The Furies, on the other hand were persuaded by the real possibility of enjoying a place in her prosperous city. What ultimately allowed for the success of this agreement is that both Athena and the Furies had something of real value to offer and this provided the context that made the transformation possible.

III

The story of the transformation of the Eumenides provides many insights into our own understanding of punishment. As with the Furies, the goods of social cooperation seem to have persuaded us to give up vengeance and private feud for the goods of civil order. ¹⁷ And just like Athena, we believe that we cannot completely let go of coercion because we need punishment to secure the efficacy of our institutions. ¹⁸ Given that we retain coercion in our legal institutions, it is the context of punishment rather than its objective features that allows it to inhabit the world of law and justice instead of that of brute violence.

A brief comparison between punishment and revenge may clarify the idea that what distinguishes punishment from revenge is the context rather than any objective aspects of the practice itself. To begin with, both punishment and revenge consist of the imposition of hard treatment. Central to the story of the Eumenides and our own view about punishment and law is that we cannot fully dispose of imposing hardship on each other, and part of the reason for this is that the violence of punishment has the capacity of pacifying the vindictive emotions of victims. ¹⁹ If we punish too little or if we do not punish at all, the argument goes, the state’s monopoly of violence could be risked. ²⁰ Even if there is a hope that legal punishment will overall yield less violence, each instance of the practice will still consist of an imposition of hard treatment, just as happens with revenge. ²¹

A second feature of punishment, also present in revenge, is that the hard treatment must be part of a practice of individual responsibility, in the sense that it must be a response to past misconduct. ²² The punishment that the Aeropagus is discussing is a response to what Orestes allegedly did. Likewise, what drives the anger of the Furies and the specter of Clytemnestra are the past deeds of Orestes. When an imposition of hard treatment does not refer to someone’s past deeds, it is neither punishment nor revenge. ²³ As a consequence, the idea of responsibility and wrongdoing is not what makes punishment an institution of justice, because revenge shares this aspect and it is precisely by abandoning revenge that hard treatment can enter the world of law.

A third option could be to establish the distinctiveness of punishment as opposed to revenge as a matter of deliberation. We know through The Oresteia that punishment is deliberated upon and is not an impulsive reaction to misconduct. Punishment is a reaction which is calculated and considered through a detailed procedure, ideally based on evidence. ²⁴ But while punishment needs to be deliberated to become an institution of justice, this is not what sets it apart from brute violence, because violence need not be impulsive in order to be contrary to the spirit of law. Indeed, most of the acts of vengeance in The Oresteia take place a long time after the offenses. ²⁵ Deliberation was present in our world long before the emergence of punishment and political justice, and although it is true that unpersuaded or undeliberated violence can generally not be part of a rule of law, this cannot be what makes punishment an institution of justice because even a well-planned vengeance would not be able to embody an idea of legality. ²⁶

These similarities between punishment and revenge suggest that the transformational feature of punishment that distinguishes it from revenge may not lie primarily in its objective aspects, but rather in the context in which punishment takes place and the meaning that this context allows. Following Nozick’s distinction between revenge and retribution, one may say that while punishment appeals to a notion of public justice, where the point of reference of the reaction is the social and general meaning of what the agent did, revenge and hostility more generally appeal to a personal judgment, the point of reference being a private idea of what an agent deserves. ²⁷ Perhaps what allows punishment to have a legal status is that, unlike vengeance or aggression, it presents itself as a legitimate act of a public authority, a response from a legal order. ²⁸

If punishment aspires to be an expression of what a civil order rightfully requires, then there must be a social and political context already in place. In The Eumenides, this is represented by the fact that the establishment of the court of justice is prior to the Furies’ transformation, as is the existence of a city ruled by Athena and constituted by citizens who share an identity and common aspirations. ²⁹ Athena sets up the court before knowing whether she can count on the support of the Furies, but it was the social and institutional context already in place which she used to persuade the Furies and which ultimately allowed for their transformation. It is within this context that punishment came to be; without it, it could not have emerged. And while punishment can strengthen the ties of a community and thus strengthen its own conditions of existence, it cannot by itself constitute from scratch either a community or an institutionalized project of justice.

What determines the transition of hostility to punishment is the punisher having a claim of authority to punish, in the sense of there being a context that makes it plausible for people to understand punishment as a practice of justice. ³⁰ In hostility there is no such claim, or the claim is not plausible. Of course, claiming legitimacy will on its own set some constraints on punishment’s forms, but what the story of the transformation of the Furies illuminates is that these formal constraints are not what essentially constitute punishment as an institution of justice. Punishment, like the Eumenides, is meant to serve and secure the political project of the community in which it takes place. ³¹ Just like paying taxes, enforcing a contract or voting in an election, punishing crimes is a way in which justice is served in a given community. It requires a public authority and its value and meaning are partly a reflection of the quality of the social project it serves. ³² If authority is undermined the issue is not just whether this will entail that punishment is unjustified, rather it puts the very existence of punishment at stake. Talk about punishment just becomes inappropriate or misleading.

IV

Early modern philosophers viewed clearly this distinctive aspect of punishment, although this view lost relevance after the seventeenth century due to the influence of the idea that punishment was sourced on individual natural rights. For Hobbes, punishment was an act of authority. The constitution of sovereign power provides the basic condition of assurance that makes possible normative standards and expectations, as well as the very idea of justice. As a result punishment could only take place in the context of political authority. ³³ The only possible legal punishment was that which was organized or authorized by the sovereign over one of its subjects. Outside the bond of political authority, the violence of punishment had to be understood as something else: in Hobbes’s own terminology, as an act of hostility. ³⁴

This may seem to go against Hobbes’s own idea that the source of the sovereign’s right to punish is his own natural right to do everything that is necessary for his own preservation and not the context of political authority. ³⁵ However, the sovereign’s right of nature and right to punish, unlike everyone else’s right of nature, is governed by justice because the institution of the sovereign had transformed the meaning of the sovereign’s right of nature into an act of authority. ³⁶ As a consequence, in the Hobbesian story punishment was considered an institution of justice which could only be decided and imposed in the name of a public authority.

The idea that the right to punish was sourced on political authority was not a new view in Western Philosophy. A century before Hobbes, the Scholastic philosopher Francisco de Vitoria made an important defense of this same idea. In the context of the European colonization of the New World, there arose a question of whether Europeans could colonize the New World under the pretense of punishing the sins of America’s indigenous people. In Vitoria’s view, this was generally not an appropriate ground for colonization because punishment was primarily tied to the existence of a relationship of justified political authority therefore any violence deployed outside of such relationship had to be either hostility or a legitimate exercise of a right of self-defense. ³⁷

By the end of the seventeenth century, and possibly under the influence of Locke’s theory of government and individual rights, this political view of punishment was replaced by the idea that individuals have a natural right to punish. According to Locke, converging with an idea formulated earlier by Grotius, punishment was not grounded on political authority but on an individual’s natural right to punish serious violations of the natural law. ³⁸ In Locke’s view, punishment had to be administered by political authority not because punishment was essentially a political practice, but for reasons of expediency and to allow for the constitution of a civil government. ³⁹ As a consequence, according to the view put forward by Locke and Grotius, the community is not primarily responsible for the practice of punishment but rather it is the criminal who, by violating someone’s rights has brought punishment upon herself. ⁴⁰

Most contemporary views, however, seem to be turning back to a political understanding of punishment. ⁴¹ While I cannot here fully argue for this turn, a brief review of Locke’s and Grotius’ account of punishment may show that, at least in this case, Hobbes was right, and that what makes punishment an institution of justice is not a matter of an individual’s natural rights but a context of authority. ⁴²

Grotius and Locke defended the idea that individuals have a natural right to punish on three grounds. First, they held individuals must have a natural right to punish due to the superfluous character of political authority. Second, they held that without a natural right to punish governments would not have a right to punish foreigners for the crimes they commit on their territories. And third, a natural power to punish was fundamental to make sense of the idea of individual rights and natural law.

The first argument stems from the idea that political power is based in the consent of the governed. According to Locke and Grotius a consent-based theory of political power yields a superfluous understanding of political authority in the sense that all legitimate political powers must have been first possessed by individuals because we can only transfer what we already possess. If the state can punish, so the argument goes, individuals must have had this capacity in the first place. ⁴³ But it is not at all convincing that a consent-based theory of political authority must understand political authority as being superfluous. Even if political powers are sourced on the rights transferred by individuals, the specific capacities of political authorities may be very different from the capacities that individuals had before the civil pact. There are indeed important consent-based theories of the state that argue that the transference of individual rights may give rise to new normative possibilities, and punishment is among them. ⁴⁴ Indeed, both Pufendorf and Hobbes argued that the right to punish requires a relationship of authority that is absent before the civil pact, and both also defended a consent-based view of political authority. ⁴⁵

Grotius and Locke also argued that without a natural right to punish there would be no ground to punish foreigners who commit crimes in a state’s territory, although we do this all the time. ⁴⁶ It is surprising, however, that both these philosophers thought it impossible to find a ground for such authority over foreigners, because consent-based theories of political authority, like the ones defended by them, have good resources to claim the opposite. ⁴⁷ Arguably, by voluntarily entering the territory of a given state, aliens tacitly consent to respecting its rules, and since both Grotius and Locke thought that tacit consent was a sufficient ground for political authority, it is not clear why they would consider the case of punishing foreigners problematic. ⁴⁸ Indeed, as Hume argued, even if one disagrees with the capacity of tacit consent to ground political authority over a regular citizen, it appears as a more plausible theory of authority for the specific case of a foreigner. ⁴⁹

Finally, and perhaps more importantly, both Grotius and Locke thought that natural law must be enforceable to be genuine law and, for this purpose, punishment must be available as a means of enforcement. ⁵⁰ Without an individual natural right to punish, natural law and individual rights would be rendered hollow intellectual creations with no real efficacy or meaning. ⁵¹ But do rights need to come with a power to punish in order not to be vain? The answer to this question lies in the distinction between defensive and punitive force, because the concern about efficacy can be sufficiently met by granting rights with a general permission to protect them through force, without assigning them with a power to punish their actual violation. ⁵²

Unlike defensive force, punishment is not an exercise of coercion primarily meant to protect someone’s right but a response to an aggression that already took place. From the point of view of protecting and enforcing rights, punitive force, unlike defense, always comes late. And even if one can draw a continuum between punishment and defense as means for protecting rights, the fact that these practices converge in their aims does not make them equal as modes of human interaction and, accordingly, they can be governed by different rules. In punishment the aim of protection, if it exists, is much more distant and indirect than in defense. This explains why, for example, while the legal permission for self-defense and the punishment for murder can both work as means to protect an individual’s right to life, they are still very different as modes of interaction and are thus regulated under extremely different standards. ⁵³ Indeed, in the views of those who argued against a natural right to punish it was the non-defensive aspect of punishment that triggered the requirement of political authority. ⁵⁴

If rights entail a permission to use violence to secure or protect them, but not to punish their violation, would rights be in vain? At least the point can be made that if I am morally entitled to repel by force a certain action because it infringes on some kind of interest I have, then such interest is not a hollow moral idea but something of significance. ⁵⁵

In sum, it seems that the arguments raised by Locke and Grotius are not completely convincing and while much more could be said about this debate, I hope to have showed that there is no clear case to be made for seeing punishment as a natural right of individuals instead of as a practice of public authority. Punishment must take place in a context of authority in order to be a practice of justice and legality instead of brute violence.

But what will provide certain agency with authority over someone else? There are many theories of political authority which offer different answers to this question, but for our purposes perhaps we can use a minimal account of political authority such as the one formulated by Hobbes. If extreme poverty undermines the conditions of authority that enable punishment to inhabit the world of justice even in a Hobbesian account, then this may pose a challenge for any theory of political authority that claims to be more demanding.

V

From a Hobbesian perspective, the bond of authority is essentially grounded on the individual’s best interest: we need peace and security to better secure our survival and only the constitution of a sovereign can provide this context. According to Hobbes, even well-ordered societies need a coercive sovereign to secure the stability of social cooperation, because even if we share a common sense of justice we might lack confidence in one another and we might find a reason not to abide by our duties. ⁵⁶ Political power is thus justified because we need a powerful sovereign to provide a minimal security that will allow for cooperation and protect us against the risks of living in a state of nature. ⁵⁷ As a consequence, what constitutes the bond of authority between the sovereign and its subjects is the provision of minimal conditions of security which give the individual self-interested reasons to respect the authority of the state.

In the context where Leviathan was written, this minimal security was a matter of life and death: as long as the sovereign secured an individual’s immediate survival, the individual had reason to respect its authority. ⁵⁸ Thus, at first sight, this might not appear an interesting theory for us today. If all we can ask from the sovereign is that it secures our survival, we will not see authority undermined by many things we consider deeply problematic, such as political disenfranchisement, gender inequalities or other forms of injustice. In the case that concerns us here, i.e., extreme poverty, everything in Hobbes seems to suggest that this is not an issue for political authority because he only seems to care about imminent threat to life. ⁵⁹ Thus, unless the deprivations of extreme poverty put someone’s life in imminent danger, the extreme poor would have reason to respect the authority of the sovereign. ⁶⁰ If this interpretation is correct, a Hobbesian thesis of authority will either show that there is nothing particularly inconsistent in punishing the poor or that Hobbes’s theory of authority is too thin to help us understand our intuitions about justice. Scholars who, like Garvey and Matravers, have shown a concern about the state’s authority to punish the poor have fallen short of arguing that the state lacks authority because they seem to have been persuaded by this understanding of Hobbes’s political theory. ⁶¹

But the Hobbesian thesis need not be taken so literally. Instead of transposing Hobbes’s specific definition of security as a protection against imminent threats to life, one can choose to interpret his idea of security more dynamically so that we can honor Hobbes’s most important point: that political institutions are legitimate because they are established for the individual’s best interest such that a reasonable person would have reason to respect the authority of the sovereign. According to Hobbes, individuals are generally better off living under the institutions of a civil order because only a civil order can secure the conditions we need for flourishing instead of perishing. The sovereign must protect the civil order from threats that may come not only from outside but also from within, using power in a way that makes it unreasonable for the individual to disobey the sovereign and exit civil society. ⁶² From this perspective, it seems perfectly valid to question whether today extreme poverty would be a condition that falls below the minimal levels of security that the sovereign must provide.

Security, as Lucia Zedner has claimed, is a “promiscuous concept” and if it is going to have the purchase that Hobbes wanted it to have, it cannot imply today what it implied in the seventeenth century, and will possibly imply different things in different societies. ⁶³ In the context of Western liberal democracies, our institutional realities and capacities have changed so dramatically since Hobbes wrote that the content of our normative standards for their evaluation cannot remain unchanged. The critical problems of civil war and state-building present in Hobbes’s times are no longer pressing for most of our communities. ⁶⁴

A very simple yet compelling example of this kind of evolution to consider is the way in which the role of government has evolved in the last three centuries in terms of the kinds of individual rights that it must respect, protect and actualize. In T.H. Marshall’s well known view, the eighteenth century was the time for the modern articulation and actualization of political rights, the nineteenth century the time for civil rights, and the twentieth century the moment for the actualization of social rights. All these changes were expressed in actual institutional practices that enabled a sort of historical renaissance of the idea of citizenship. The institutional actualizations of each of these kinds of rights altered our normative reality and made possible the actualization of their next generation. In this progress the very idea of citizenship was transformed, certain things became minimal conditions and it became unimaginable that these secured conditions would ever be brought back into question. ⁶⁵ It would thus be a mistake to think that we could limit our social rights without undermining our political rights, because by the articulation of social rights as dimensions of our idea of citizenship, political rights were themselves transformed.

For example, it is hard to imagine having a discussion today about whether there should be slavery or about whether women should have a right to vote. Not too long ago these questions were far from obvious, yet once these issues were settled, and the idea of equality changed institutionally so as to recognize all members of the species, it became unimaginable that we could again consider to establish such a horrible practice as slavery or that we would describe as a democracy a political order where women cannot vote.

Changes in values, manners and technologies alter the minimal conditions that the social order must secure, even altering what is considered to be a basic need. ⁶⁶ As a consequence, from a Hobbesian framework, these changes can alter the baseline for authority and legality, by altering the minimal conditions of security that give the individual reason to respect the authority of the state. It is possible that in Hobbes’s context the sovereign did not need to alleviate extreme poverty in order to have a claim of authority over those who suffered from it, but perhaps the stakes can now be raised as to include the alleviation of extreme poverty in the terms of negotiation with the sovereign. ⁶⁷ If this is the case, punishing the extreme poor might not be a practice of law and justice, but an act of hostility. There will be no form of authority left standing but only brute force. In order to argue further for this understanding let us look into how it is that extreme poverty upsets the Hobbesian minimal conditions of security.

VI

Extreme poverty is a concept whose precise determination is very hard to establish. For the sake of the argument I will stipulate one definition: extreme poverty consists of lacking the means to secure a normal biological or physical subsistence, including not only the means for immediate survival but also the means to secure survival for a short-term period. ⁶⁸ According to this definition someone is extremely poor if they cannot secure food, shelter, access to medical treatments and medicines, appropriate systems to endure the weather, etc., for a short period of time.

Following the logic of a Hobbesian account of the state, there are at least two perspectives through which we can understand this kind of poverty as entailing that a political order has not provided the conditions for minimal security that give reason to individuals to respect its authority and makes it unreasonable to exit civil society. First we can think of extreme poverty in absolute terms and ask whether the objective conditions of extreme poverty undermine the bond of authority. Second, we can think of extreme poverty in a relational way and ask whether understood in relative terms, extreme poverty can have an impact in the state’s claim of authority.

From an absolute perspective, extreme poverty is determined by the inability to satisfy certain specific needs which are determined objectively as being so basic that the individual’s capacity to enjoy any other goods to which he or she may be entitled to will not be available until he or she has satisfied these more primary needs. ⁶⁹ The relevance of such a conception of extreme poverty to a Hobbesian theory of the state is relatively straightforward. Hobbes is undeniably concerned about survival and it is not a big stretch to argue that extreme poverty, understood in an objective way, entails a kind of absolute vulnerability which, even when it falls short of imminent threat to life, is sufficiently intense as to make our survival highly unstable. Extreme poverty imposes a precarious life which does not appear clearly better than being in a state of nature, and it becomes fairly implausible to argue that the extreme poor are still better off in the context of a civil order.

The lack of basic needs increase the risk of the individual to see her rights violated and even to die. ⁷⁰ Extremely poor people are indeed more likely to be victims of violent crimes and to engage in kinds of activities that are more risky in terms of their physical and emotional integrity. ⁷¹ More concretely, at least in the context of a capitalist economy, the urgency of the needs of the extreme poor makes it very hard for them to avoid being exploited and someone who lives in a social context that forces him to be exploited in order to secure his own survival can hardly be said to have self-interested reasons to abide by the very social order that forces him to endure high levels of exploitation. ⁷² It seems likely that the more needs one has, the more vulnerable one is to exploitative relations and therefore the greater the hazards for our health and survival. ⁷³ Poverty in this sense can put an individual’s life at stake to the point that it may become unreasonable to respect the authority of the social order that maintains him or her in this situation.

Unlike the account just presented, a relative approach to extreme poverty requires a more revisionary account of Hobbes’s theory but can still be accommodated under his own terms. This perspective determines the idea of basic needs for survival not against a fixed measure of risk but against what is possible in a given community with specific ideas about needs and with specific technological capacities. Extreme poverty is thus partially ascertained from the point of view of equality rather than from an abstract idea of biological or even social needs for survival. ⁷⁴

Contemporary descriptions about the way in which wealth and social resources are distributed today suggest that the problem of inequality is no longer a matter of the difference of income but of the social problems that are created by an extreme concentration of power and financial resources into the hands of a few. ⁷⁵ This concentration has created different social worlds that coexist under the authority of one sovereign state and it becomes much safer to live in one world than the other. Indeed, wealthier people have a much longer life expectancy than people who are poor, and the gap is growing. In the United States a person who belongs to the richest 1% can expect to live almost 15 years more than a person who belongs to the poorest 1%. ⁷⁶

When we look at extreme poverty in this more relational way, we can see that in our societies some lives are more protected than others. To the extent that some people cannot access the available means that would secure their survival, the state cannot be said to provide the conditions of security that would make it reasonable for them to respect its authority.

Both absolute and relative perspectives on poverty offer reason to undermine a Hobbesian account of state authority. They are not meant to show all that is wrong with poverty, but only that even under the minimal terms of a Hobbesian theory of the state, extreme poverty could undermine the bond of authority pushing state coercion out of the realm of legality and into the realm of violence or hostility.

One could argue that extreme poverty, from either of these perspectives, would not undermine the state’s authority because the state is not actively endangering the person’s integrity, but by and large, poverty is the result of the working of institutions and not the result of luck or merit. The fact that a person is extremely poor is not so much due to his or her personal traits, but to the way in which society is organized. ⁷⁷ Even without arguing that social structure is the whole of the story about why a person is poor, it is hard to deny that it plays a fundamental role. ⁷⁸

If it is true that the state and its political order helps to produce and secure extreme poverty, and if it is true, as I argued above, that extreme poverty puts one’s life at risk both absolutely and relatively then extreme poverty would undermine the Hobbesian bond of authority and upset the conditions of legality vis–à-vis the extreme poor. In Hobbes’s terms, this would be a case where punishment could no longer be considered an act of law and authority but what he calls an act of hostility. ⁷⁹ Here the issue is not that the state’s authority is merely undermined in the sense that extreme poverty would leave us with a “pale and pallid” kind of authority where the state retains a right to coerce the extreme poor on prudential terms but has lost its moral power to impose real duties, as Stephen Garvey has argued. ⁸⁰ Instead, in this account there is no form of authority standing, all that remains is the law of the strongest that organizes the state of nature, where there is no space for punishment or legality.

That punishing the extreme poor constitutes an act of hostility need not entail that it is always morally wrong, because we may find reasons to justify being hostile to others. The most common context where hostility becomes acceptable or even justified is a context of enmity which generally entails that someone who is separated from a community threatens its existence. ⁸¹ But will this give us a good ground to punish the extreme poor? Possibly not. We are too closely connected to the extreme poor to imagine them as enemies. ⁸² A victim of extreme poverty is not “the other” in the sense of being a stranger or an alien. Instead, she is factually placed in an otherness by being excluded from a kind of treatment which would minimally consider her wellbeing.

VII

Ultimately, wondering whether hostility is lawful or not misses the point. Even if we are justified in being hostile, in the end we must come to terms with the fact that in too many cases we can no longer speak in the name of legality. Because we have failed to provide the conditions that make punishment an institution of law, we have rendered our criminal laws an instrument of violence rather than political justice.

In his essay “Violence and the Word,” Robert Cover illuminates an essential aspect of the law, arguing that law and its categories create meanings for experiences of violence. Legal interpretation authorizes acts of violence in a way that prevents us from understanding ourselves as inflicting pain on others. Law domesticates violence by altering its meaning, and the possibility of this transformation depends on the commitment that the interpreter has with the legal order. When this commitment fails, our legal words cannot alter the meaning of violence. ⁸³

Something like this happens when we punish the extreme poor. The legal order can transform brute violence into an institution of justice, but this transformation is only possible in a context of political authority. Such context is not available for the extreme poor because extreme poverty completely undermines the conditions of authority and legality. It returns a person to the state of nature and in so doing it rips off all the legality of our public practices of coercion. Even if ideology may obscure this fact, we must restore our political bonds and the legitimacy of our practices of responsibility by acknowledging the context of hostility in which some people are situated. Just as happened with the Furies, our acts of violence can transition into practices of justice, if we make sure that everyone who is addressed by them can also access the values that allow for this transformation.