What is the problem with the right to punish?

The problem is that Hobbes seems to say three things that do not fit with one another.

1. The right to punish must be given in the social contract.
2. The right to punish cannot be given in the social contract.
3. The right to punish need not be given in the social contract.

Points 1 and 3 contradict one another; they cannot both be true. Points 1 and 2 can both be true at the same time. But if they were both true, there would be no right to punish; that is not what Hobbes wants either.

What does the right to punish involve?

Helena got to the solution before I did. (Knock it off already!) The solution lies in the meaning of the term “right.” In each of those three points, the expression “right to punish” means something different than it does in the two other points. Since that is so, points 1 and 3 do not actually contradict one another. And nothing follows from the conjunction of points 1 and 2; they are just two separate points that do not yield any particular conclusion when combined with one another.

Specifically, I believe that Hobbes means the following.

1. The sovereign’s status (or power right) to punish must be given in the social contract; the sovereign gets this status by being authorized to act as the representative of the commonwealth.
2. The sovereigns claim right to punish cannot be given in the social contract; that is, the right to punish cannot be a claim right.
3. The sovereign’s liberty right (permission) to punish need not be given in the social contract; it is the sovereign’s right of nature (see 14.1) that the sovereign had prior to the social contract.

So the right to punish has two parts: the status (or power) to punish and the liberty (permission) to punish. It does not include a claim.

I am saying that this is what Hobbes means even though it is not what he said. You should bear in mind Tristan’s question: Hobbes was very careful to define his terms, but he did not use the definitions I did. So why do I feel so confident in saying that this is what Hobbes means? That is a very good question. My answer is that it all makes sense my way. But you could reasonably ask whether that is a good enough reason for saying that this is what Hobbes means. If you have your doubts, then you can take my presentation as an attempt to lay out what Hobbes should have said. Essentially, we will have used our philosophical skills to improve on what he said. I would be OK with that.

Let’s do the part about claim rights again

The part about claim rights (point 2) was complicated, so maybe it is best if it is written out.

One person’s claim right, by definition, exists only if there is at least one other person who has a duty corresponding to the first person’s right.

For example, my property right in my watch is a claim right. That means that this right exists only if other people have duties not to take the watch. If, for some reason, they no longer had those duties, then I would no longer have a property right to the watch.

Why might others no longer have duties not to take the watch? In class, I said “maybe God came down and eliminated all the duties.” If that happened, I would lose my claim right to the watch. (But I would still have a liberty right to use the watch. I would just be in competition with everyone else.)

Here is another example. Suppose we are in the state of nature. Suppose also that we have a right (meaning a liberty or permission) to do whatever we need to do in order to stay alive. According to Hobbes, life in the state of nature is so dangerous that people will need to use almost anything in order to stay alive and so they will have permission to use almost anything. If they have permission to use almost anything, they will not have any duties not to use almost anything. (Sorry for the double negative; there is no other way.) That is why Hobbes does not think there are any claim rights in the state of nature: there are no duties and claim rights exist only if others have duties.

OK, time to get back to punishment. Hobbes has said, in chapter 14 and again in chapter 21, that people cannot give up the right to defend their own lives. He has also drawn the conclusion that they cannot give up the right to resist punishment. (He was assuming that punishment would be life-threatening, as Jennifer noted.) Now, in chapter 28, he is saying that those arguments, from chapters 14 and 21, mean that the subjects cannot give the sovereign the right to punish. When he says that, what does he mean by “right”?

Could the sovereign have permission to punish the subjects even if they have no duties not to resist punishment? Yes. The sovereign would do nothing wrong in punishing the subjects even if they would do nothing wrong in resisting punishment. It would be as if the two of them were running a punishment race: neither would do anything wrong in punishing or in resisting punishment.

Could the sovereign have a claim right to punish the subjects even if they have no duties not to resist punishment? No. A claim right to punish would mean that the subjects have a corresponding duty not to resist punishment. If the subjects cannot create such a duty in the social contract, then they cannot give the sovereign a claim right in the social contract.

Since Hobbes is moving from “the subjects cannot have a duty not to resist punishment” to the conclusion that “the subjects cannot give the sovereign the right to punish,” he must mean “claim right” when he uses the term “right.”

Who cares about the definition of punishment?

Nate asked the correct question right at the start: who cares about the right to punish? All we care about is whether the sovereign has the physical capacity to punish. If the sovereign has the strength to hurt people, why does it matter whether doing so meets the definition of punishment or not?

I think it does matter and the reason why can be discovered in two distinctions that Hobbes repeatedly invokes: the distinction between subject and enemy and the distinction between punishment and hostility.

The difference between punishment and hostility is that punishment is limited by the law in a variety of ways. Most importantly, punishment can only be used in response to a crime. By contrast, the sovereign may treat even innocent enemies with hostility.

What Hobbes is trying to do with all of these definitions is show how the sovereign could use violence in punishment without triggering the spiral of violence characteristic of the state of nature. The idea is that if the sovereign sticks to violence within the definition of punishment, the subjects will not be provoked to try to overthrow the sovereign. Punishment, as Hobbes defines it, gives subjects the ability to peacefully control the use of violence against them: comply with the law and you will be safe. Hostility, by contrast, offers no such assurance: the sovereign may strike enemies whenever doing so seem advantageous. The only thing in your control when faced with a hostile enemy is the choice about whether to strike the enemy first.

So, to get back to Nate’s point, showing that the sovereign has the right to punish is important because it is part of showing that the sovereign’s punishments are lawful rather than lawless violence.

It also helps me to say something I was trying to say to Jennifer. Jennifer had noted that Hobbes’s argument about resisting punishment only applies to capital punishments. No one’s life is put at risk by complying with a traffic ticket or even a short sentence in jail. I think that Hobbes should agree with Jennifer. It is important that those who are given non-capital sentences have confidence that they will only suffer the sentence given to them and they will not, say, be killed in prison. That is why people can normally accept punishments without resorting to violence. So long as the sovereign sticks to the law, you do not have to fear that you will lose your life by not resisting legal punishments.

Didn’t Hobbes say the sovereign can hurt the innocent without injustice?

Taylor has been on top of the big problem consistently: Hobbes insists that sovereigns may, and often do, harm or even kill innocent subjects without injustice (see 21.7).

So on the one hand, Hobbes gives the sovereign strong reasons for sticking with the strict limits on punishment. But, on the other hand, he insists that sovereigns would not treat their innocent subjects unjustly if they killed them.

I think he is trying to have things both ways. He wants sovereigns to gain all the advantages that come from a lawful state, especially the ability to use force without sparking a spiral of violence. But he also wants sovereigns to be able to act outside the law when they think it is necessary to do so. And he is realistic enough to know that many sovereigns will make terrible decisions about how to use this power. But he despairs of finding a way to hold sovereigns accountable for their bad behavior. So he concludes that this is simply an inconvenience of life under the state that must be accepted.

Hobbes did not manage to square these two aspirations with one another in a satisfying way. But no one else has done so either. We want our states to follow the law but recognize both that we sometimes want the state to act outside the law and that we have little recourse against states that do so for bad reasons.

An editorial comment

Hobbes’s distinctions between punishment and hostility and between subjects and enemies are quite important. If the state treats part of the population as an enemy rather than a subject (in Hobbes’s lingo) by treating them with hostility rather than complying with the strict definition of punishment, then that part of the population will have little reason to comply with the law.

So at least one thing that I get from the Black Lives Matter movement is that the US is coming closer to the line between punishment and hostility than I am comfortable with. It is important not only that the state not treat its citizens as enemies but also that its citizens believe that it is not treating them as enemies. I think Hobbes got this point basically right.

Key concepts

1. What is the problem with the right to punish?
2. What does the right to punish involve?
3. Why is punishment different from hostility and why is that distinction important?
4. Can the sovereign punish the innocent or not?