Political Philosophy Spring 2024

The Right to Punish


We will try to answer these questions today.

  1. What does the right to punish involve?

  2. Why is punishment different from what Hobbes calls hostility? And why is the distinction between punishment and hostility important?

  3. Can the sovereign punish the innocent or not?

I updated this page on Monday, February 19 after I found some inconsistencies in the terminology I was using concerning rights.

What is the right to punish?

There are at least two parts to the sovereign’s right to punish.

  1. Capacity (I had said “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.)
  2. 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

  1. Exclusivity: the sovereign is the only one permitted to use force; this comes from everyone else giving up their right to use force.
  2. 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 is 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 using violence in a lawful way and lawless violence. For example, punishment can only be used in response to a crime; it is 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 be 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 what I’m going to do, 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 is OK to kill innocent subjects or not?

Main ideas

These are the things you should know or have an opinion about from today’s class.

  1. What is the problem with the right to punish?
  2. Why is punishment different from hostility and why is that distinction important?
  3. 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.