We talked about David Gauthier’s interpretation, criticism, and reconstruction of Hobbes’s account of the right to punish.
Since I am using Gauthier as a foil for developing my own views, let me say at the outset that I greatly admire this book. Its account of Hobbes’s view of authorization was so persuasive that I think scholars have forgotten it is an interpretation. It is simply accepted as the truth. (I aim to change that, but that’s another story.)
Hobbes, according to Gauthier, realized that the subjects could not authorize the sovereign to punish them. So when he came to the right to punish, Hobbes reverted to an earlier version of his theory according to which the sovereign’s right to punish is the sovereign’s right of nature that is augmented when the subjects surrender their rights to oppose the sovereign. This is Gauthier’s interpretation.
This would explain why the sovereign has the exclusive right to punish. But it would be inelegant: punishment would stick out. That was Gauthier’s criticism.
We added several other problems. The most important was put very nicely by Graham: punishment is supposed to defend the state (or society), not the sovereign’s life.
Gauthier proposed an alternative way that Hobbes’s theory might have worked. This is a road that Hobbes did not take. But he could have taken it consistently with his other views and, if he had, he would have been better off, according to Gauthier. According to the alternative, the subjects authorize the sovereign to punish one another but not themselves.
Gauthier’s criticism of Hobbes relies on two assumptions. It goes like this:
I think the second point is mistaken. As Gauthier understood it, authorization involves extending one person’s rights to another, such that the representative can act on the rights of the person being represented. That is how authorization is often used. But it can also be used to give one person ownership of a representative’s actions without necessarily extending that person’s rights to the representative.
I think that is how Hobbes used authorization in the case of punishment. It was a way of establishing that punishment is not unjust to those who suffer from it. It is Hobbes’s alternative to Grotius’s argument that the subjects voluntarily oblige themselves to submit to punishment (Grotius 2005, 953–54). Hobbes could not accept that, so he needed an alternative way of explaining why punishment is not an injustice to those who are punished.
We talked a lot about whether Gauthier’s conclusion would follow even if he were granted the point on authorization. This boils down to: could the subjects give the sovereign permission to punish them?
It is a bit of a strange question. As Hobbes himself insisted, the sovereign has permission to do anything by virtue of having retained the right of nature. So there is no need for the subjects to give the sovereign permission to do anything.
But putting that aside, I said that I did not see why the subjects could not give the sovereign permission to punish them. After all, they very much need the sovereign to have the ability to punish as they would be left in the state of nature if the sovereign did not have this ability. That is far worse than being vulnerable to punishment. After all, giving the sovereign permission to punish is not the same thing as being punished. Just comply with the law and you won’t be hurt at all! (Well, you won’t be hurt so long as the justice system works properly; there are no guarantees in this world. But it’s as good as bet as you’re going to have.)
Grotius, Hugo. 2005. The Rights of War and Peace. Edited by Richard Tuck. Indianapolis: Liberty Fund.
There was a handout for this class: 09.Hobbes-Gauthier.handout.pdf