Can laws be criticized for limiting liberty?

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 say about 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, whatever temptations Hobbes felt passed quickly and he 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). This only makes sense if it is not meaningless to talk about liberty except as it is defined by the law. Good riddance!

Punishment

Hobbes discusses several examples of what he calls “the true liberty of a subject.” We talked about two: punishment and military service. Concerning punishment, I said that Hobbes makes three claims:

1. The sovereign has the right to punish: without it, the commonwealth doesn’t work.

2. The subjects have the right to resist punishment (see 12.12, 21.14, 21.17 as well as passages in chapter 14).

3. Nonetheless, the subjects allow the sovereign to punish them (21.14)

As Kamyab, Audrey, Will, and others noted, this is puzzling. Why would the subjects give the sovereign the ability to hurt them? Doesn’t that run contrary to the thinking that leads Hobbes to insist they always have the right to resist punishment?

Really, there are two questions.

1. How is it logically possible for the sovereign to have the right to punish if the subjects also have the right to resist punishment?

2. Even if it were logically possible for the subjects to enable the sovereign to punish them, why would they be willing to do that?

Val got the answer to the first question, about the logical coherence of the right to punish. The sovereign’s right to punish is what we have been calling a liberty. When Hobbes says the sovereign has the right to punish, he means that there is nothing wrong with the sovereign’s punishing people. That could be true even if subjects would also do nothing wrong in resisting the sovereign’s attempts to punish them.

The second question is about the subjects’ motivation to enable the sovereign to punish them. Why would risk-averse people create a powerful sovereign capable of hurting them? The answer has to turn on comparing two things:

1. The increased risk of being hurt by the sovereign.

2. The decreased risk of being hurt by a fellow subject.

Hobbes contends that the second factor vastly outweighs the first.

We will add some complications about both points next time. Specifically, we will add another feature to the sovereign’s right to punish and we will give an deeper story about why that the subjects would be willing to enable the sovereign to punish them.

Soldiers

Are soldiers obliged to put their lives at risk? You would think the answer would be no, since Hobbes says multiple times that no one can be obliged to put their life at risk for anything. Why would soldiers be an exception?

Hobbes, however, says that while no one is obliged by the social contract to serve in the military, those who make a specific contract to put their lives at risk in the military are obliged do so. And furthermore everyone is obliged to risk their lives in war when the commonwealth is in danger of collapsing.

I do not think he is being consistent here. If it is impossible to be obliged to put your life at risk, then neither a special contract agreeing to put your life at risk nor extreme danger for the state should make any difference.

Where the defeat of the state is concerned, Hobbes’s thought seems to be that fighting in the army is a better alternative that being defeated and returning to the state of nature. So the chance of death would not be an excuse for not fighting with the army as there are high risks of death either way.

But while it is true that everyone will suffer if the state collapses, it does not follow that each individual is better off trying to prevent that from happening. In this sort of case, people face a collective goods problem: my side is going to win the war or not regardless of whether I fight in the military. If the army is going to fight, one more soldier will not make the difference between victory and defeat. If the army is going to collapse, having one more soldier standing up to fight is not going to prevent defeat. So the suffering from the state’s collapse is not affected by one’s participation in the military. The only question facing me is whether fighting in the military makes it more or less likely that I will die. Whether the outcome of the battle would be good or bad for me should have no bearing on my decision.

One interesting thing about this is that, from the individual’s perspective, the choice is structurally similar to the ones facing people in the state of nature: they are both what is called prisoner’s dilemma situations.

Here is the state of nature again. (The first number is the payoff for the row player, the second number is the payoff for the column player).

And here is the choice facing an individual soldier. (Payoffs are for the individual soldier, who I am representing as the row player.)

We are going to spend more time with these 2 x 2 tables when we talk about Hume’s theory of conventions. Fair warning!

Two more points

There are two other things worth mentioning about chapter 21.

First, Hobbes notes that the subjects can sue the sovereign under the law (see 21.19). While he immediately adds that the sovereign is capable of acting outside the law in ways that the subjects cannot legally challenge, this is an important qualification on his claims that the sovereign has absolute power.

Of course, everything depends on the sovereign’s incentives to act within the law rather than outside of it. As we will see next time, Hobbes thought the reasons for staying within the law are quite strong. But, at the same time, he wanted to reserve for the sovereign the ability to act outside of the law.

Second, Hobbes discusses the conditions under which obligations to the state come to an end. This is his attempt to say something about the obligations of people remaining in England who had supported the royalist side in the civil war. After the king’s defeat, they were faced with the choice of pledging allegiance to the new government or losing their land. Hobbes’s argument is that they were free from obligations to the king and so could sign on with the new government.

Hobbes himself returned to England shortly after finishing Leviathan. He gave the exiled heir to the throne, Charles II, a fancy copy of the book and then went home to live under Parliamentary rule. Needless to say, this was highly irritating to the royalist exiles who remained behind in Paris. They thought that these arguments in Leviathan were meant to excuse his own betrayal and to curry favor with the new government.

Key concepts

You should know two of the “true liberties of a subject,” namely, the liberty to resist punishment and the liberty to refuse military service.