Hobbes on punishment

Notes for February 27

Main points

We started with a question from last time: can Hobbes show that the state has enough power to keep the peace?

We know that the subjects cannot be obliged to put their lives at risk. But it is obvious that the sovereign needs to have the right to put the subjects’ lives at risk in some cases such as punishment for criminal offenses and military defense. A state that cannot punish or field an army will not last long. How can Hobbes’s state get the power to do those things?

We talked exclusively about punishment. (I think Hobbes’s discussion of military service is a bit of a botch.)

The problem

Hobbes begins chapter 28 with a definition of punishment (paragraph 1) and then he sets a problem for himself (paragraph 2). The problem stems from the fact that the subjects cannot give the sovereign the right to hurt them. So, Hobbes reasons, the right to punish cannot be granted in the social contract.

Hobbes’s solution to the problem is that the right to punish is simply the sovereign’s retained right of nature, “the liberty each man hath to use his own power … for the preservation … of his own life” (14.1). I expressed dissatisfaction with this answer for a number of reasons. For instance, in most cases, the crimes being punished have nothing to do with the sovereign’s personal safety.

Ziqi had a clever idea about how to make Hobbes’s story work: if the sovereign does not punish crime, the state will collapse thus endangering the sovereign’s life. So maybe the sovereign’s right of nature is implicated in punishment (though it still feels like a stretch to me).

He also added that a natural thing for Hobbes to have said is that the subjects give the sovereign the right to act in their defense. I agree! I think it’s very odd that Hobbes himself did not say that.

There is one feature of what Hobbes said that even Ziqi’s clever ideas cannot cover. He said that the subjects have to authorize their own punishments (see 28.6, for example).

Here, in my opinion, is what he was doing. The sovereign’s right of nature gives the sovereign the permission or liberty to punish; the sovereign does nothing wrong in punishing. (Hobbes should have added Ziqi’s second suggestion here as well.) But, according to Hobbes’s definition, punishment requires something more. It can only be done by a public authority. That is what the social contract gives to the sovereign. The social contract gives the sovereign the status to punish by making the sovereign the public authority.

Punishment vs. hostility

Hobbes tried to draw a distinction between two uses of violence: punishment and hostility. When we went through all the features of punishment, we realized that punishment is actually quite limited: it has to be for violations of the law, the penalties have to be spelled out in advance, it has to be carried out by a public authority, and so on. Violence without these features constitutes hostility. Hobbes claimed that punishment is reserved for subjects; enemies are treated with hostility.

The distinction was important for Hobbes because he needed to show that the sovereign’s use of violence is not a continuation of the state of nature between sovereign and subject. If punishment can only be used against the guilty, for example, then subjects have a great deal of control over whether they will be the victims of violence: just don’t break the law. Enemies, by contrast, are liable to preemptive attacks. They can be the victims of violence without doing anything to bring it down on their heads.

This explains why Hobbes thought the sovereign had to be authorized to punish the subject. Hobbes was trying to identify a kind of legally constrained violence: only those with legal authority to punish can use this kind of violence and it is constrained in various ways to protect the innocent.

If people in a society believe that the state’s use of violence is legally limited in this way, they will not fear being victims of preemptive or random attacks. And so they will not have a strong incentive to begin the war first. That, Hobbes thought, would take the relations between subject and sovereign out of the state of nature.

That said, Hobbes did insist that sovereigns can kill their innocent subjects without doing any injustice to them. I think the idea was that this sort of thing would be rare; normally, the state would follow the law. Still, it seems to me that he was trying to have things both ways. He wanted the social benefits of a legally constrained sovereign without actually legally constraining the sovereign.

This page was written by Michael Green for Social and Political Philosophy, Philosophy 33, Spring 2014. It was posted March 11, 2014.
Social and Political Philosophy