We talked about how Hobbes and his critic Clarendon used the term “right” in their discussions of the right to punish. I made the case for the utility of the following set of distinctions in understanding what they were saying.
Just to be clear. I do not believe that either Hobbes or Clarendon had these categories in mind. On the contrary, I think they did not. That is why Hobbes used the term “right” in two different ways in the second paragraph of chapter 28. It is also why Claredon’s criticisms seem to miss the mark.
Here is how Hobbes’s argument in the second paragraph of chapter 28 looks to me.
“For by that which has been said before, no man is supposed bound by Covenant not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a Common-wealth, every man giveth away the right of defending another; but not of defending himselfe.”
“It is manifest therefore that the Right which the Common-wealth (that is, he, or they that represent it) hath to Punish is not grounded on any concession, or gift of the Subjects.”
“But I have also shewed formerly, that before the Institution of Common-wealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of Punishing, which is exercised in every Common-wealth.”
“For the Subjects did not give the Soveraign that right; but onely in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him onely; and (excepting the limits set him by naturall Law) as entire, as in the condition of meer Nature, and warre of every one against his neighbour.”
This argument involves equivocation, a fancy word that means a key term in used with two different meanings. What the subjects cannot give to the sovereign is a claim. A claim is right that logically entails that someone else owes an obligation to the person with the claim. That means that if there is no one who owes such an obligation, there cannot be a claim. Here is an example to illustrate the point.
When I look at the first two points in Hobbes’s argument, I see something similar. (I’ll leave you to work out the details.) But when I look at the third point, I see something different. As both Bogdan and Sydney noted, the term “right” there does not depend on anyone’s obligations. It’s the sovereign’s liberty or permission to use force.
So Hobbes argued in points 1 and 2 that the right to punish is not a claim. And he argued in points 3 and 4 that it is a liberty. I do not believe he was aware that this is what he was doing. I believe he thought he was writing about one thing, the right to punish, that remained constant throughout those four points.
That does not show that Hobbes’s position is wrong or incoherent. But it does clear up what is happening in that paragraph, I think. It looks as though Hobbes is going to face some huge contradiction or problem with his social contract theory but then the problem sort of evaporates by the time we get to the solution.
Something similar is going on with Clarendon. He assumes that the sovereign’s right to punish has to be a claim, a right that the subjects are obliged to respect. But that isn’t what Hobbes had said. So the two are talking past one another.
The real question is whether the right to punish has to be a claim. Could the state function if it only had the liberty to punish? We say that criminals are obliged to turn themselves in or, at least, to surrender when the police show up, after all. Hobbes is, in effect, saying that there are no such obligations. Could the state function without them?
Michael suggested that there might be a problem if the sovereign punishes while acting for the subjects. Since the subjects authorize the sovereign’s actions the sovereign’s act of punishment counts as their own act. That seems to raise problems for the idea that the right to punish is derived from the social contract. We will discuss this question at greater length two sessions from now.
Bogdan raised an interesting question about Hobbes’s right of self-defense. He said that criminals do not have the legal right to defend themselves against the sovereign. So he did not see why Clarendon’s objection applied. That’s interesting. I got the impression from Hobbes that there could not be any obligations to submit to punishment, moral or legal. But maybe there is a distinction between those two kinds of obligation that I missed. I also wonder whether Hobbes’s arguments in chapter fourteen would apply to a merely legal obligation (see especially 14.29).
There was a handout for this class: 08.Hobbes.handout.pdf