The foundation of the modern State

Translating today a short treatise on criminal law. Found something interesting:

The iustitia communtativa in the Politics and Ethics of Aristotle used to be the foundation of retributive criminal law. At the same time it is the very foundation of the legitimation of the state itself, because a pre-modern state represents the moral status of the society. The modern state in comparison doesn't claim to represent the moral status of the society (it is any way impossible in a multi-cultural society like that in the industrialized world), instead, its only legitimation lies in the alleged guarantee of individual freedom. So we get the problem that retributive penalty can't be justified through its function of restitution of the normative legal status which is injured by criminal deeds. But how can a state whose legitimation lies in the individual freedom claim to restrict the freedom of its citizens in form of penalty? That is the dilemma for retributive theory of legal penalty for criminal deeds.