The Right to Punish
We tried to answer four questions today.
What is the problem with the right to punish?
What does the right to punish involve?
Why is punishment different from hostility and why is that distinction important?
Can the sovereign punish the innocent or not?
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.
The sovereign’s right to punish cannot be given in the social contract.
If the sovereign has the right to punish, then it must have been given in the social contract.
The sovereign’s right to punish need not be given in the social contract.
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 would pose a large problem for Hobbes, since the whole point of the social contract is to create a sovereign capable of punishing. Points 2 and 3 directly contradict one another; they cannot both be true. So that’s a problem too.
Fortunately, we can clean all this up.
Agnes got the solution. 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 2 do not have the consequence that the sovereign lacks the right to punish. Rather, point 1 says that one kind of right to punish cannot be given in the social contract while point 2 says that another kind of right must be given in the social contract. By the same token, points 2 and 3 do not contradict one another: they are about different rights.
Just to be clear, I am saying that the letters r-i-g-h-t do not always spell the same word: sometimes they mean one thing and sometimes they mean something else.
Specifically, I believe that Hobbes means the following.
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.
A claim right to punish cannot be given in the social contract. More specifically, the right to punish cannot be a claim right to the subjects’ non-resistance to punishment. Whatever the sovereign’s right to punish involves, it cannot include this.
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 involves status and permission but not a claim right to the subjects’ submission. (Though there are claim rights to the subjects’ giving up their own permission to use force and to their aid in punishing others. I called these features of the right to punish “exclusivity” and “aid.”)
I am saying that this is what Hobbes means even though he was not aware of these distinctions. 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 if you look at the implications of the sentences Hobbes uses, you will see that they have to have the meanings I say they do. This can happen! You can say something without appreciating exactly what you mean.
I think that’s what Hobbes did. 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.
That means that if you want to dispute a purported claim right, one way to do so would be to deny that the relevant obligation exists.
For instance, suppose I said that I have this claim right against you: you have to come to my house and make me breakfast. So I make my claim. I say “I have a right that entitles me to breakfast service from you and I would like you to provide it to me tomorrow. I like my toast with marmelade and my coffee black.”
You can deny my claim by showing that you do not have the relevant obligation. You might say something like this.
I can think of three reasons why I might have an obligation to make you breakfast. (1) I was born with some obligations. For instance, I was born with the obligation not to maim and torture anyone, including you. But I was not born with the obligation to serve you breakfast; after all, I’m not obliged to serve everyone breakfast. (2) Some obligations come from promises. So I might have the obligation to make you breakfast if I had promised to do so. But I did not do that. (3) Other obligations are owed to family members and friends. But you’re not a member of my family and we aren’t really friends either (no offense, we’re just not). Since I can’t think of any other reason why I might have an obligation to serve you breakfast, I conclude that I do not have one.
If you’re correct, then I don’t have the claim right. I would have the claim right only if you had the obligation to make me breakfast. So if you don’t have that obligation, I don’t have the claim right.
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 and he concluded that this means they cannot give up the right to resist punishment. Now, in chapter 28, he is saying that those arguments 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 or a liberty right 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 were free to resist punishment. It would be as if the two of them were boxing: neither would do anything wrong in hitting the other.
Could the sovereign have a claim right to the subjects’ submission to punishment without resistance 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 to their submission 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.”
Punishment and Hostility
The most interesting part of today’s lecture, in my opinion, concerned the distinction between punishment and hostility. I said that Hobbes is making a case for a law-abiding sovereign here. That’s surprising because the whole thrust of his absolutist understanding of sovereignty holds that the sovereign is above the law. Let me explain what I’m thinking.
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. That means that enemies may be attacked pre-emptively, before they have done anything wrong or even threatening.
It is obviously desirable from a subject’s perspective to have the sovereign’s use of force take the form of punishment rather than hostility. Punishment is governed by laws, so you know what you have to do in order to avoid being the target of violence. Hostility, by contrast, is not governed by rules; you have much less control over whether you will be hit or not.
It’s less clear why the sovereign would be interested in restricting the use of force to punishment. Why bother with all those complicated laws when you can just treat your subjects with hostility? It’s not unjust, after all.
Our answer has to be speculative because Hobbes did not address this, beyond saying that it would be against the laws of nature.
That said, there is a pretty good reason for sovereigns to confine their use of violence to the rules of punishment. If they threaten their subjects with too much lawless violence, they will undermine their security. Since the whole point of having a commonwealth in the first place was to gain security, that would dissolve the state just as surely as a loss in a civil war would.
At one point, Bex asked if the sovereign is in the state of nature. (I think it was in the previous day’s class). The answer, in my opinion, is that the sovereign is not in the state of nature with respect to the subjects. (Sovereigns are in the state of nature with respect to one another.) The reason I say that is that the behavior of sovereigns and subject is governed by laws and laws rule out anticipatory violence; violence is only used by the sovereign against those who have committed crimes. If that holds, the cycle of violence that characterized the state of nature won’t start. The incentives to attack before you are attacked won’t be there.
Punishing the innocent again
In chapter 28, Hobbes insists that the sovereign cannot punish innocent subjects and that doing so would be a violation of the laws of nature. In chapter 21, he said that even though killing innocent subjects would be a violation of the laws of nature, it would not be unjust. While these positions may be logically consistent with one another, there is an obvious tonal difference. Does he think it’s OK to kill innocent subjects or not?
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. As Michelle noted, he wants sovereigns to be able to make any laws they like, including those that give them very broad powers of punishment. And he does not think it is possible 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.
These are the things you should know or have an opinion about from today’s class.
- What is the problem with the right to punish?
- Why is punishment different from hostility and why is that distinction important?
- What does Hobbes think about the sovereign’s punishing the innocent?
Hobbes, Thomas. (1651) 1993. Leviathan. Edited by Mark C. Rooks. British Philosophy: 1600-1900. Charlottesville, VA: InteLex Corporation.