The Right to Punish in Thomas Hobbes’s Leviathan

1. Introduction

There is an apparent ambiguity in Thomas Hobbes’s account in Leviathan¹ of the source of the sovereign’s right to punish. Hobbes appears to both claim and deny that the prospective sovereign is granted the right to punish by prospective subjects. In claiming that the sovereign is granted the right to punish, we understand Hobbes to hold that the acquisition of the right follows from authorization—a process by which a representative is commissioned to act on the behalf of another person. In denying that the sovereign is granted the right to punish, we understand Hobbes to hold that the possession of the right is merely the product of the mass relinquishment of natural rights; the prospective sovereign alone does not relinquish any natural rights. The tradition has called attention to this apparent ambiguity in Hobbes’s account of the right to punish. As we will see, the traditional interpretation of Hobbes’s definitive account is that he retracts his view that subjects grant the sovereign the right to punish.

The tradition generally recognizes that, for Hobbes, rights do not have corresponding duties. The sovereign’s exercise of the right to punish does not require the condemned subject to not interfere in the carrying out of his punishment; the condemned subject has a right to resist his punishment. However, the inevitable conflict between the respective exercise of rights is not where the problem with the right to punish lies. According to the tradition, the grant of the right to punish is vitiated by the retention of the right to resist violence. It is in response to an antinomy—an incompatibility between two equally plausible claims—within the social contract between subjects granting the sovereign the right to punish and subjects retaining the right to resist violence that the tradition understands Hobbes to reject the former. Because Hobbes holds firm to his view of the absolute primacy of the right of self-defense, the tradition attributes to Hobbes the view that the right to punish is not granted to the sovereign but is merely the product of subjects’ relinquishment of non-defensive natural rights. Following from remarks in the second paragraph of Chapter 28 of Leviathan, “Of Punishments and Rewards,” Hobbes is almost unanimously understood to rescind his view of subjects’ authorization of punishment and identify the right to punish with the sovereign’s unrelinquished natural right of war. Accordingly, the tradition holds Hobbes to the view that the infliction of punishment occurs outside the bounds of a juridical relationship between the sovereign and the person condemned.

In this paper, I set out to argue against the traditional view. Hobbes, I argue, has only one account, and not two competing accounts, of the sovereign’s right to punish. The two accounts noted above—that the acquisition of the right to punish follows from authorization and that the possession of the right to punish follows from the prospective sovereign’s non-relinquishment of natural rights—are not at odds with one another. Rather, the two accounts underlie the process by which the sovereign representative obtains the right to punish—a right that does not exist prior to the establishment of civil society. In this paper, I detail the traditional view as one in which Hobbes is understood to recognize and respond to an antinomy by rescinding the role authorization was to play in the sovereign’s acquisition of the right to punish. I then argue that Hobbes’s concern in the second paragraph of Chapter 28 is not to resolve an antinomy. I argue that because, for Hobbes, there is no pre-political right to punish, the unrelinquished right of nature of the person who will occupy the office of sovereignty provides what Hobbes calls the foundation of the right to punish. But the sovereign representative’s acquisition of the right to punish follows from a process of authorization. Contrary to the tradition, I argue that at no point in Leviathan does Hobbes identify the right to punish with the right of nature. Hobbes is, without exception, committed to the view that the...