The Right to Punish
We will try to answer these questions today.
What does the right to punish involve?
Why is punishment different from hostility and why is that
Can the sovereign punish the innocent or not?
What is the right to punish?
There are at least two parts to the sovereign’s right to
- 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
- Exclusivity: the sovereign is the only one permitted to use
force; this comes from everyone else giving up their right to use
- 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.
Punishment and Hostility
The most interesting part of today’s reading, in my opinion, concerns
the distinction between punishment and hostility. I think 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.
Pay special attention to every time Hobbes distinguishes what he
calls punishment from what he calls hostility. You will not find a full
fledged theory in there. But you will find that the examples all line up
on opposite sides of a distinction between uses of violence governed by
laws and lawless violence. For example, punishment can only be used in
response to a crime; it’s part of the definition of punishment so it has
to be true. By contrast, the sovereign may treat even innocent enemies
with hostility. That means that enemies may subject to pre-emptive
attacks, before they have done anything wrong.
The way Hobbes sets this up is a bit odd. Who cares about his
definitions of punishment? A sovereign could just say “well, I’m going
to be hostile towards the innocent. You can argue about whether to call
it punishment or not, but, at the end of the day, that’s a matter for a
dictionary and I’m going to do whatever I think is best, no matter what
you call it.” While Hobbes’s method is eccentric, in my opinion, I also
think there are some interesting ideas in there and I am going to try to
flesh them out.
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?
These are the things you should know or have an opinion about from
- What is the problem with the right to punish?
- Why is punishment different from hostility and why is that
- What does Hobbes think about the sovereign’s punishing the
Hobbes, Thomas. (1651) 1993. Leviathan. Edited by Mark C.
Rooks. British Philosophy: 1600-1900. Charlottesville, VA: InteLex