Hobbes held that the right of self-defense is inalienable. For Hobbes, “right” means “liberty,” and “liberty” means “the absence of obligation.” So the inalienability of the right of self-defense means that it is impossible to become obliged to do something that impairs your ability to defend your life. In particular, no one can agree to a valid covenant that has this effect.
It follows that the subjects retain the liberty to do a variety of things; they can’t give up the right to do them in the social contract. So even if the sovereign gives them direct orders, they are at liberty to disobey.
This raises awkward questions about military obligations, as Nathan pointed out last week. It also seems to open a back door to a right to rebellion.
One of the liberties subjects have involves punishment: the subjects can’t be obliged to take their punishment, even if they deserve it. They are always at liberty to resist or run away.
But the sovereign has to have the right to punish or else the state wouldn’t work. So how does the sovereign get that right?
There are two problems with Hobbes’s explanation of the right of punishment.
First, there’s a problem with the way he posed the question. As he put it, the question is “by what door the right or authority of punishing … came in.”** Leviathan, ch. 21, ¶2. The most natural way to understand that is: “given that violence is generally not allowed, why is the sovereign permitted to use violence for punishment?”
But it’s hard to see why that would be a question for Hobbes. That’s because in his system there is no general prohibition on violence that the sovereign needs permission to ignore. For Locke, by contrast, people have rights not to be hurt. For Locke, rights impose obligations on others. As Callum noted, Locke held that in order to punish someone, those rights have to be relaxed; specifically, Locke held criminals forfeit their rights.†† A potentially cruel doctrine if you think about it. But Hobbes’s system doesn’t have rights like these. For Hobbes, rights are liberties: the party with a right lacks obligations but that doesn’t mean that any other party has an obligation with respect to the right holder. Given that system, why would the sovereign need special permission to use violence?
The second problem has to do with Hobbes’s answer. He says that the sovereign’s right to punish is the sovereign’s right of nature. But the right of nature is a right to defend one’s own life. On the face of it, it’s implausible to think that the sovereign’s life is threatened by every criminal in the commonwealth.
On a more theoretical level, Hobbes is mixing up the natural person who occupies a political office with the artificial role of the sovereign of the state. Punishment isn’t for the defense of a single individual’s life. It’s concerned with the laws of the commonwealth. His answer is just a poor fit for what is to be explained.
Several members of the class proposed alternatives to Hobbes’s account. I think they’re all superior to what he said. Here’s a list.
Callum defended the plausibility of Hobbes’s answer in a more sophisticated way than Hobbes himself did. Callum noted that the sovereign’s (natural) life would be endangered if the state never punished anyone. That would mean returning to the state of nature where the sovereign’s natural life would be endangered. So while punishment of any particular criminal may not be necessary for defending the sovereign’s life, the general practice of punishment is. Very clever.
Sarah proposed that punishment defends the artificial life of the “artificial person” of the commonwealth rather than anyone’s natural life. It’s the commonwealth that has the right to punish. The natural person who occupies the role of sovereign within the commonwealth has this right only by virtue of holding an office within the commonwealth.
Rachel said two things. First, she denied an assumption that Hobbes made. Rachel thought it would make perfect sense to give the sovereign the right to punish her. After all, the sovereign won’t exist without the right of punishment. So the alternative to giving the sovereign this right is the state of nature; no one lives long there. But the sovereign’s having the right doesn’t itself put her life in danger. If she complies with the law, she (probably) won’t be hurt, even if the sovereign does have the right to punish her. So the balance seems pretty clear.
The second thing Rachel said was that the subjects might give the sovereign the right to punish others.
Both of Rachel’s answers grant an assumption I questioned earlier. They grant that the sovereign might need to be given the liberty to punish by the subjects in order to have the right of punishment. Even if the sovereigns do need the subjects to give them the right to punish, she essentially said, it could have happened in either of these ways.
I said that I thought the subjects give the sovereign two things that could reasonably be called the right of punishment.
First, they make punishment logically possible. Hobbes defined punishment as an “evil inflicted by a public authority” and contrasted it with the “injuries of private men.”‡‡ Leviathan ch. 28, ¶1 and 3. By contrast, Locke thought that individuals have the right to punish. He believed that they transfer this right to the state to use on their behalf.§§ See Second Treatise of Government, §8.
The sovereign is a public authority only by virtue of being authorized to act as the representative of commonwealth. Without being given this status, no one can punish, given Hobbes’s definition.
The second thing that subjects give to the sovereign is the lack of accountability. Hobbes made it very clear that sovereign’s are not allowed to punish the innocent (ch. 28, ¶22). Yet this is something that often happens (ch. 21, ¶7). Oops. On the face of it, that would mean that subjects can prosecute sovereigns for punishing the innocent. But Hobbes denied this. He insisted that the subjects authorized all of the sovereign’s actions and so could not hold the sovereign accountable.
If that seems appalling, bear in mind that innocents who are punished in our own system have fairly limited rights against the state too. Generally speaking, proving your innocence means the punishment stops. You can’t demand compensation for the injustice of having been wrongly punishment. You can only sue the state for specific kinds of wrongdoing by public officials: the mere fact of having been wrongly punished isn’t itself grounds for any kind of suit against the state. In fact, proving what the lawyers call “actual innocence” is not always enough to get you out of prison. For instance, consider the case of George Souliotes.
A federal judge has ruled that a Modesto man convicted of setting a fire that killed his tenant and advertisement her two children has shown "actual innocence" and may now challenge his conviction on other grounds.
Chief U.S. District Judge Anthony W. Ishii upheld the findings of a magistrate who examined the evidence against George Souliotes, 72, and concluded that no reasonable juror would have convicted him given the state of the evidence today.
But the court's finding will not necessarily free Souliotes, convicted of setting a 1997 fire in a rental home he owned. His lawyers missed a legal filing deadline, and under the law, Souliotes had to prove his innocence before he could appeal his conviction on other grounds, including inadequate legal representation at trial.¶¶ Los Angeles Times, July 7, 2012.
The fact that we do this doesn’t mean it’s justified, of course. But it does mean that we’re a lot closer to Hobbes than many of us realize.