Formal punishment

Cross posted at Political Arguments.

Andrew's post about juvenile executions (over at Political Arguments) reminded me of Olympe de Gouges argument in favor of the political rights of women. In Article 10 of her Declaration of the Rights of Women and the Female Citizen she wrote:

No one is to be disquieted for his very basic opinions; woman has the right to mount the scaffold; she must equally have the right to mount the rostrum, provided that her demonstrations do not disturb the legally established public order.

Read more!The question is one of reciprocity, which may be taken in two ways: as a relation between citizens (I will uphold my duty insofar as others uphold theirs) and as a relation between right and duty (I will uphold my duty if my correlative right is recognized).

The latter is a formal constraint. It requires one who defends an action or practice to state how it configures an institution. It requires that the action of punishment, e.g. be stated, as Kant put it, as a maxim which may at the same time be proclaimed as universal law. Citizens, one could say, are called to "speak in laws."

But not only must each such law be sequentially proclaimed; the legal system in which it is situated must also be addressed. An action or practice, such as punishment, cannot be defended in isolation.

Now, there may be reasons to have different rights and duties obtain at different ages. I don't see too deep a problem with some age restrictions on elligibility for public office. The question is not about the substance of these restrictions, but about how they are defended. In the case of the execution of minors, I think Andrew's absolutely right. To punish a violator of the social contract without recognizing her to be a full contracting party strikes me as a practical contradicion.