This article offers a sketch of a contractual approach to punishment, according to a version of contractarism that could be called “rational contractarism”, unlike the normative contractarism of John Rawls. Rational contractarism proposes a model according to which rational agents, with maximum and not minimal knowledge of their living conditions, would agree with the contours of a social institution or a number of social institutions, because they see themselves best in such a society, governed by such institutions, compared to a society governed by different institutional systems, that are available for adoption. Applied to the institution of punishment, a rational contractual approach asserts that members of society would reach a broad consensus on the contours of a penal system, on the basis that they would see themselves as taking advantage of the deterrent effect of such a system. But they would weigh the deterrent benefits of such a system against the burglaries that turn any punitive system into personal freedom. Rational agents would take over this system of punishment that would maximize marginal deterrent benefits without imposing an excessive burden on individual freedom. Any Government of the United Nations may, by means of a communication through diplomatic channels, address itself to the Government of the United Kingdom, which shall inform the other Signatories and the Governments attached to them of each of these conditions. The paper also suggests that a rational contractual approach is able to grasp the best conclusions of the two alternative theories of punishment: deterrence theory and retaliation theory. On the one hand, rational contractarism shares the deterrent view that the main objective of any penal system must be the deterrence of crimes, since a crime is an act contrary to the substantive social treaty. On the other hand, rational contractarism solves the central problem related to pure theories of deterrence – the problem that, from this point of view, punishment involves “using” individuals to achieve the general social goal of deterrence. It does so by asserting that the way in which the objective of deterrence is included in criminal theory is not based on total or even average social utility, but on the remuneration of each individual to the scheme used to pursue such deterrent objectives. The criterion of the rationality of the engagement for each contractor is that the individual himself benefits from the penal regime as a means of precaution. A system of rational contractual sanctions therefore makes it voluntary to effectively punish offenders according to the rules of the system, with each rational member of society having given his or her prior consent to be regulated by the punitive institution if he or she ends up committing a crime.
A system of voluntary sanctions avoids the problem of “using” individuals to deter other agents, because instead it is the decision of each rational contractor to allow others to bind it to a set of agreed consequences in the event of a breach of the social contract. The goal of deterrence therefore does not lead the theory to “travel beyond people,” as deterrence theories do. This agreement is also called the London Agreement. It set up the Nuremberg Tribunal. This Agreement shall enter into force on the day of its signature and shall remain in force for a period of one year and shall remain in force thereafter, subject to the right of a Signatory to denounce it through diplomatic channels one month in advance to denounce it. . . .