The Right to Punish
We tried to answer these questions today.
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 right to punish?
I said that there are at least two parts to the sovereign’s right to punish.
- Status: the sovereign is the only one who is capable of punishing. (By analogy, I am the only one who can make a promise for myself; I’m the only one with the status to do that.)
- Permission (liberty) to use force: this comes from the right of nature (see 14.1).
In addition, the sovereign gains two other other things from the social contract that are not, strictly, part of the sovereign’s right to punish
- Exclusivity: the sovereign is the only one permitted to use force; this comes from everyone else giving up their right to use force.
- Aid: the subjects agree to help the sovereign punish.
The main question is whether the sovereign can be described as having a right to punish even though the subjects who are being punished have a right to resist punishment. Hobbes maintains that the four elements of the sovereign’s right to punish are compatible with the subjects’ right to resist punishment.
August noted that the exclusivity of the sovereign’s right to use force is hard to define. Subjects are allowed to use force in self-defense, for instance. Ruben has the right answer, in my opinion. The sovereign is the only one who retains the right to use force first. If you robbed a bank and are sitting on the money, you aren’t posing a threat to anyone. So I couldn’t attack you in self-defense. But the sovereign could use force to capture and punish you. I think that’s the idea.
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 at least one good reason for sovereigns to confine their use of violence to the legal rules governing punishment. If they threaten their subjects with too much lawless violence, they will undermine their subjects’ 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.
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.
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.