Leviathan’s Chapter 21 (on liberty) and chapter 28 (on punishment) are about two aspects of the state that are necessary but can seem burdensome: the loss of liberty and the possibility of punishment.
We talked about liberty today and will pick up punishment next time.
The state of nature is a state of unlimited liberty. And it is terrible. Everyone knows they have to give up liberty in order to escape the state of nature. What they sacrifice in the social contract is the right (meaning liberty) to govern themselves. And in return they get something much more valuable: claim rights that protect their interests by limiting other people’s liberty.
That clearly does not mean that they have no liberty at all in the commonwealth. Their liberty will be limited by laws but the laws do not cover everything. Where the laws are silent, the subjects are at liberty.
Hobbes was tempted by the thought that this is all there is to liberty in the commonwealth and that any complaint that the law limits liberty is meaningless (see 21.6, for example). I have no idea how he could prove that. It seems preposterous to me: of course you can meaningfully complain that the laws excessively limit your liberty. You might be wrong, but your words are meaningful.
Fortunately, the temptation passed quickly and Hobbes came to his senses. A few paragraphs later we get “the particulars of the true liberty of a subject,” that is, the things subjects are permitted to do even if they are forbidden in the law (21.10). So much for the meaninglessness of talking about liberty except as it is defined by the law! And good riddance!
We talked about several of the cases between ¶10-15. In particular, we spent a lot of time on this paragraph.
Again, the consent of a subject to sovereign power, is contained in these words, (1) I authorize, or take upon me, all his actions; in which there is no restriction at all, of his own former natural liberty: for (2) by allowing him to kill me, (3) I am not bound to kill myself when he commands me. (2) It is one thing to say, kill me, or my fellow, if you please; (3) another thing to say, I will kill myself, or my fellow. (Leviathan 21.14; numbers in parentheses added)
Before I get into the puzzling parts, I should say that there is no doubt about Hobbes’s main point here: even guilty people are allowed to resist punishment or to refuse to confess their crimes.
With that out of the way, there are some questions about how exactly this is supposed to work. I said there were three things here:
The question is how these three things are related to one another. I think it is clear that Hobbes meant to say that 2 and 3 are distinct. It is also clear that Hobbes meant to endorse 3: the subjects retain the right to resist punishment.
What is not clear is whether he meant to say that the subjects actually give the sovereign permission to kill them. That is, was he saying that 1 leads to 2 but not to 3?
On the one hand, it does appear that this is what he was getting at. However we had some serious questions about whether he could consistently say that the subjects give the sovereign permission to kill them. Here are three considerations.
Does the sovereign need to be given permission to kill the subjects? You need my permission to use my watch because without my permission you are obliged not to use it. Is the sovereign obliged not to harm the subject without the subject’s permission?
If the subjects own the sovereign’s actions, then if the sovereign kills them, they would be, uh, killing themselves. But the law of nature forbids people from killing themselves. (Very clever, Helena.)
A LAW OF NATURE, (lex naturalis,) is a precept, or general rule, found out by reason, by which a man is forbidden to do that, which is destructive of his life, or taketh away the means of preserving the same; and to omit that, by which he thinketh it may be best preserved. (Leviathan, 14.3)
Whensoever a man transferreth his right, or renounceth it; it is either in consideration of some right reciprocally transferred to himself; or for some other good he hopeth for thereby. For it is a voluntary act: and of the voluntary acts of every man, the object is some good to himself. And therefore there be some rights, which no man can be understood by any words, or other signs, to have abandoned, or transferred. As first a man cannot lay down the right of resisting them, that assault him by force, to take away his life; because he cannot be understood to aim thereby, at any good to himself. The same may be said of wounds, and chains, and imprisonment; both because there is no benefit consequent to such patience; as there is to the patience of suffering another to be wounded, or imprisoned: as also because a man cannot tell, when he seeth men proceed against him by violence, whether they intend his death or not. And lastly the motive, and end for which this renouncing, and transferring of right is introduced, is nothing else but the security of a man’s person, in his life, and in the means of so preserving life, as not to be weary of it. And therefore if a man by words, or other signs, seem to despoil himself of the end, for which those signs were intended; he is not to be understood as if he meant it, or that it was his will; but that he was ignorant of how such words and actions were to be interpreted. (Leviathan, 14.8)
A covenant not to defend myself from force, by force, is always void. For (as I have showed before) no man can transfer, or lay down his right to save himself from death, wounds, and imprisonment, (the avoiding whereof is the only end of laying down any right,) and therefore the promise of not resisting force, in no covenant transferreth any right; nor is obliging. For though a man may covenant thus, unless I do so, or so, kill me; he cannot covenant thus, unless I do so, or so, I will not resist you, when you come to kill me. For man by nature chooseth the lesser evil, which is danger of death in resisting; rather than the greater, which is certain and present death in not resisting. And this is granted to be true by all men, in that they lead criminals to execution, and prison, with armed men, notwithstanding that such criminals have consented to the law, by which they are condemned. (Leviathan, 14.29)
Austin is surely right to say that Hobbes thought the subjects did authorize the sovereign to punish them. However there are two questions:
We will return to these questions on Tuesday. In thinking about them, bear one thing in mind. The subjects very much want the sovereign to be capable of punishing. Without that, the state doesn’t have any way of ending the war of all against all. So the only question is whether they are capable of giving the sovereign this ability.
Metaphysics: liberty, necessity, free will. ¶¶ 1-4
Definition: liberty of subjects = absence of legal obligation. Contrast “artificial” chains of the law with real, physical impediments. ¶¶ 5-6
Liberty of subjects doesn’t limit the sovereign’s rights. In particular, sovereign can kill innocent subjects without injustice. ¶ 7
Denial that democracies have more liberty than other kinds of states. ¶¶ 8–9
“True liberty of a subject”, when subjects have liberty to disobey the sovereign’s commands. ¶¶ 10–17
Liberty under the law, including legal limits on the sovereign. ¶¶ 18–20
Return to complete liberty, when the commonwealth is dissolved. ¶¶ 21–25