We started with a question Hobbes posed for himself, “by what door the right, or authority of punishing in any case, came in” (ch. 28, par. 2). After explaining and criticizing Hobbes’s answer, we turned to Clarendon’s criticisms. We ended with Gauthier’s criticism. We’ll pick that up again on Monday.
Where does the sovereign’s right to punish come from? The most obvious answer would be the social contract. But Hobbes denied that would work. The right of self-defense is inalienable, so the subjects couldn’t give the sovereign the right to hurt them in the social contract and punishment involves the sovereign’s hurting subjects. But don’t worry, Hobbes said, the answer is easy: the sovereign’s right to punish is the sovereign’s right of nature.
From this we can infer that the question about the sovereign’s right of punishment is a question about permission or liberty. Why is the sovereign allowed to use violence to punish violations of the law? I’m pointing that out because there are other senses of “right” involved in the question about the sovereign’s right to punish that we’ll return to on Monday.
I myself don’t think very highly of Hobbes’s answer. Why? Everything else in this chapter emphasizes the public nature of punishment. So the attempt to base the right to punish in the sovereign’s personal right of self-defense is headed in the wrong direction. There are more specific reasons why this is a poor fit, but that’s the general problem.
Clarendon made a number of points. Some of the best ones touch on broader themes that he developed throughout this book. One of these concerns the perversity of Hobbes’s theory: he insists that good, law-abiding people have no protection against the state but takes great pains to describe the liberties of bad, law-breaking people. Of course, they don’t get a lot of protection from the state either, but it’s still a good point.
Concerning punishment specifically, I think that Clarendon is guilty of making a question-begging assumption, namely, that the right of punishment has to be what the lawyers call a claim-right or a right that logically entails someone else’s corresponding duty (Clarendon, 87). But Hobbes defined rights as liberties and liberties only entail the absence of obligations against the right holder; they do not require that others have (or lack) obligations. So the sovereign could have a right, in Hobbes’s sense, to punish a criminal who also has a right to resist. What that means is that neither one does anything wrong in punishing and resisting, respectively.
That said, Clarendon has a point that there is something odd about this. The state usually claims that those subject to its authority are obliged to comply with its orders. Hobbes is, surprisingly, denying that this makes sense in a very important case.
But Hobbes also has a reasonable point: the obligation not to resist punishment is socially useless, especially when punishment is likely to be fatal. What does the state expect to gain from claiming that criminals are obliged not to resist punishment? That’s a good question. Chewing it over for a while can move you from finding Hobbes’s position odd to thinking that it actually makes a lot of sense.
Gauthier’s big idea was that Hobbes had successfully replaced what he called the “initial theory” of sovereignty with one based entirely on authorization. The initial theory was that the subjects establish a sovereign by agreeing to stand out of the sovereign’s way. The authorization theory was supposed to be an improvement. It shows what the subjects give to the sovereign in the social contract. Specifically, they are said to enable the sovereign to act on their rights.
Punishment presents a problem because it is a power of sovereignty that seemingly cannot be accommodated by the authorization theory of sovereignty. Instead, Hobbes seems to revert to the initial theory, with the subjects getting out of the sovereign’s way rather than giving the sovereign anything new. Gauthier tried to rectify the problem by explaining how the sovereign’s right to punish could be derived from authorization. It’s not what Hobbes said, but it’s supposed to be a way of making good on what Gauthier believed was his central insight: that sovereignty is established through authorization.
The idea of the alternative theory is that the subjects authorize the sovereign to punish other subjects but not themselves. That would show that the sovereign acts on the subjects’ rights when punishing the subjects. Very clever!
On Monday, I’m going to say two things.
I’m going to take my own shot at explaining what the sovereign gains from being authorized by the subjects. In a nutshell, that’s the only way that they can act as a public person and so it’s the only way that they can meet the definition of punishment. So what? Well, meeting that definition is important because the distinction between punishment and hostility is important. That’s going to be my story. We’ll see if I can stick to it!