The Rights To Punish and Resist Punishment in Hobbes's Leviathan
| Author | Thomas S. Schrock |
| Published date | 01 December 1991 |
| DOI | 10.1177/106591299104400405 |
| Date | 01 December 1991 |
| Subject Matter | Articles |
THE
RIGHTS
TO
PUNISH
AND
RESIST
PUNISHMENT
IN
HOBBES’S
LEVIATHAN
THOMAS
S.
SCHROCK
Uniaersity
of
California,
Santa
Barbara
homas
Hobbes
was
the
first
political
thinker
to
declare
a
right
t
in
the
guilty
subject
to
resist
the
lawful
and
lawfully
punishing
JL
sovereign.
This
declaration,
declined
in
the
Elements,2
made
in
De
Cive
(II,
18),
and
repeated
in
the
Leviathan
( 14,
8,
66
[ 192 ~3,
21,
22,
111-12
[268-69]),
precipitates
a
crisis4
in
Hobbes’s
political
theory.
Received:
October
31,
1989
First
Revision
Received:
July
9,
1990
Second
Revision
Received:
August
9,
1990
Accepted
for
Publication:
August
21,
1990
NOTE:
I
thank
Stanley
Anderson
and
Naomi
Rosenberg
for
very
helpful
readings
of
an
early
version.
Peter
Digeser
read
more
than
one
draft,
his
keen
judgment
repeatedly
saving
me
from
myself.
Dean
Mann
and
John
Moore,
as
well
as
anonymous
referees
at
the
Western
Political
Quarterly,
made
incisive
critiques
of
the
penultimate
draft.
I
alone,
of
course,
am
responsible
for
the
flaws
that
remain.
This
work
has
been
supported
by
a
grant
from
the
Research
Committee
of
the
Academic
Senate
at
the
University
of
California,
Santa
Barbara.
I
am
grateful
to
Robert
Faulkner,
John
Rogers,
Brad
Wilson,
and
Michael
Zuckert
for
creating
occasions
on
which
to
present
versions
of
this
paper.
1
Questions
about
Hobbes’s
declaration
of
a
preservationist
right
to
resist
unexception-
able
punishment,
administered
by
an
unexceptionable
government,
must
of
course
be
distinguished
from
what
Francisco
Suarez
called "the
well-worn
question
of
whether
or
not
it
is
permissible
for
a
private
individual
or
his
subjects
to
kill
a
tyrannical
king"
(1944b:
705-III.iv.1).
To
be
sure,
some
will
consider
resistance
to
either
kind
of
government,
for
any
reason,
prima facie
contempt
for
Romans
13:2
("Whatsoever
...
resisteth
the
[higher
powers],
resisteth
the
ordinance
of
God").
Hobbes
does
not
mention
Romans
13:1-7
in
the
vicinity
of
his
declarations
of
the
right
to
resist
(cf.
Lev,
42,
100,
308
[589]).
2
Where
it
is
said that
"the
essence
[of
a
body
politic]
...
is
the
not-resistance
of
the
members"
(II,
i,
18);
see
also
Elements
(El),
II,
i,
7.
On
a
relevant
difference
between
De
Cive
(DC)
and
the
Elements,
see
note
52,
below.
Tuck
(1979:
119-30)
traces
the
emergence
of
the
right
to
resist
in
Hobbes’s
texts.
3
References
are
to
Macpherson’s
edition
of
the
Leviathan
(text
of
1651).
I
follow
Hampton’s
citation
practice
(1986,
xi),
with
one
addition.
Her
sequence
is:
chap-
ter,
number,
paragraph
number
within
the
chapter,
page
number
of
the
1651
edition.
I
add,
in
parentheses
or
brackets,
the
page
number
of
Macpherson’s
edition.
So,
the
present
citation:
(Chapter)
14
(paragraph)
8,
(1651
page)
66,
(Macpherson
page)
192.
4
Actually,
more
than
one
crisis:
the
one
which
is
the
subject
of
this
paper,
and
another,
that
of
collective
resistance -
the
Medellin
Cartel
crisis
-
adumbrated
in
854
For
there
are
reasons
to
doubt
that
the
would-be
Hobbesian
sovereign
can
acquire
a
right
to
punish
if
the
would-be
Hobbesian
subject
has
a
right
to
resist
punishment.
If
these
two
rights
cannot
co-exist
within
the
same
conceptual
and
political
system,
and
if
Hobbes
will
not
rescind
his
declaration
of
the
right
to
resist,
his
punishment
depen-
dent5
political
theory
is
in
trouble.
This
paper
is
about
that
trouble,
and
is
as
such
a
contribution
to
the
literature
on
the
&dquo;feeble[nessJ,&dquo;
the
&dquo;appalling
weakness&dquo;
(Warrender
1957:
317),
of
Hobbes’s
putative
sovereign.6
6
Hobbes
acknowledges
the
problem;
in
fact
it
is
he
who
first
alerts
us
to
it.
He
repeatedly
concedes
that
the
would-be
subject’s
right
to
resist
punishment
may
be
thought
a
stumbling
block
to
acquisition
by
the
putative
sovereign
of
the
right
to
punish
(DC,
II,
18;
Lev,
14,
29,
69-70
[199];
21,
12
and
14,
111-12
[268-69];
28,
2,
161
[353-54]).
Hobbes
in
effect
acknowledges
that
to
declare
a
right
to
resist
punish-
ment,
to
say
nothing
of
maintaining
that
such
a
right
could
be
com-
patible
with
the
right
to
punish,
is
counter-intuitive.
It
is
as
if
he
expects
the
voice
of
common-sense
to
say
what
Clarendon
in
fact
says:
that
&dquo;no
man
can
legally
take
his
life
from
him
who
may
lawfully
defend
it&dquo;
(Clarendon
1676:
87).
So,
having
schocked
common-sense
once
by
declaring
there
is
a
right
to
resist
punishment,
and
twice
by
claiming
that
such
a
subject
right
is
reconcilable
with
the
sovereign
right
to
punish,
Hobbes
undertakes
to
show
that
these
apparently
con-
flicting
rights
can
and
do
indeed
co-exist
within
the
commonwealth,
and
how
such
a
thing
can
be
possible
(DC,
II,
18;
Lev,
14,
29,
69-70
[199];
21,
12
and
14,
111-12
[268-69];
28,
2,
161
[353-54]).
In
our
time,
few
are
interested
in
Hobbes’s
purported
solution -
his
claim
to
have
harmonized
the
rights
to
punish
and
resist
punish-
Leviathan,
21,
17,
112-13
(270-71).
(See
notes,
12,
54,
and
55,
below,
and
Hampton
1986:
197-207).
5
"Punishment-dependent"
does
not
mean
that
Hobbes
thinks
the
threat
of
punish-
ment
is
sufficient
for
civil
life;
quite
clearly
he
thinks
of
it
only
as
necessary.
But
it
is
necessary.
For
different
aspects
of
punishment,
and
limitations
on
the
efficacy
of
its
administration,
see,
e.g.,
DC,
Pref.,
para.
2;
V,
8;
Xiii,
9,
16;
Lev,
14, 31,
70
(200);
15,
3,
71-72
(202);
17,
1-2,
85
(223);
18,
9,
91
(223);
18,
9,
91
(233);
27, 25,
157 (345-46);
30, 9,
175-76 (377);
31,
1,
186
(395);
42,
65,
295 (567-68);
43,
1,
320
(609);
The
English
Works
of
Thomas
Hobbes
(EW)
V,
150-97.
See
also
Mansfield
(1989:
132,
160,
172);
Barry
(1972:
53-56,
expecially
n.
23);
and
Johnston
(1986:
85).
6
On
the
weakness
theme,
see,
e.g.,
Hampton
(1986:
197-297);
Morgan
(1982:
413);
Warrender (1957:
317-20);
Watkins
(1965:
165).
855
ment - because
so
few
care
about
the
problem.
No
matter
how
force-
ful
commentators
may
be
in
criticising
other
features
of
Hobbes’s
political
theory,
critical
intensity
wanes
when
the
topics
of
punishment
and
resistance
come
up.
Howard
Warrender’s
wonderfully
resigned
and
insouciant
summation
captures
the
prevailing
laissez faire
attitude:
&dquo;[T]he
sovereign
may
attempt
to
put
a
subject
to
death
and
the
subject
may
resist
violently,
and
both
sovereign
and
subject
may
be
completely
justified.
These
are
typical
situations
in
Hobbes’s
philosophy&dquo;
(1957:
20).8
Such
casual
acquiescence
in
apparent
chaos
is
abetted
by
Hobbes’s
bland
depiction
of
the
right
to
resist
in
action.
&dquo;[N]o
man
can ...
lay
down
his
Right
to
save
himselfe
from
Death,
Wounds,
and
Impri-
sonment,&dquo;
Hobbes
says.
&dquo;And
this
is
granted
to
be
true
by
all
men,&dquo;
he
adds,
&dquo;in
that
they
lead
Criminals
to
Execution,
and
Prison,
with
armed
men&dquo;
(Lev,
14,
29,
70
( 199~).
So,
someone
will
say,
the
right
to
resist
punishment
is
common
sense,
after
all.
What
does
this
harmless
tableau
threaten?
Recognizing
a
right
to
struggle
on
the
way
to
the
scaffold
or
prison
is
not
a
politically
destabilizing
concession,
it
will
be
said,
nor
one
that
self-evidently
precludes
sovereign
acquisition
of
the
right
to
punish.
In
fact,
the
tame
image
here
conveyed
reassures
rather
than
unsettles,
telling
us
as
it
does
that
Hobbes
both
empathizes
humanely
with
the
desperation
of
convicts
and
yet
also
responds
real-
istically
to
the
requirements
of
law
enforecement.
What
can
be
wrong
with such
a
stance,
especially
since
the
right
to
resist
which
Hobbes
recognizes
is
nothing
other
than
our
natural
right
of
self
defense?
Why
should
Hobbes’s
readers
think
twice
about
his
declaration
of
that
right?
Their
wary
thoughtfulness
is
appropriate
precisely
because
the
right
to
resist
which
Hobbes
declares
is
the
unalienated
right
of
nature,
a
more
sweeping
and
problematical
liberty
than
his
depiction
of
a
peaceful
procession
of
guarded
criminals
makes
it
appear.
&dquo;[T]he
Right
of
Nature ...
is,&dquo;
Hobbes
says,
&dquo;By
all
means
we
can,
to
defend
our
selves&dquo;
7
By
contrast
with
the
seventeenth
century:
e.g.,
Bramhall
(1844:
554-55),
Clarenden
(1676:
86-87),
and
Cumberland
(1672/1727:
356-59-IX,
x).
Notable
excep-
tions
to
the
rule
of
twentieth
century
complacency
are
Strauss
(1953:
197),
War-
render
(1957:
116-18,
149),
Hood
(1964:
157-58),
and
Hampton
(1986:
197-207).
Hampton’s
argument
and
book
pivot
on
a
crisis
Hobbes’s
declaration
of
the
right
precipitates
(1986:
206).
Hampton
(1986:
197-207)
and
Kavka
(1986:
433-36)
bring
Leaiathan,
21,
17,
112-13
(270-71)
out
of
the
obscurity
in
which
it
has
unaccountably
lain
since
the
seventeenth
century.
8
In
the
same
vein,
see
also
Riley
(1973:
456).
For
Warrender’s
less
insouciant
thought
on
the
same
topic,
see
note
9,
below,
and
1957:
116-18,
149.
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