Hobbes on the Right to Punish

Deadly force: Contract, killing, sacrifice

“…For Hobbes, the sovereign ultimately possesses the right to punish or kill anyone – guilty or innocent – in the name of preserving the peace of the Commonwealth: ‘And therefore it may, and doth often happen in Common-wealths, that a Subject may be put to death by the command of the Soveraign Power; and yet neither doe the other wrong’ (Hobbes, 1996: 148). If Hobbes does argue that the sovereign remains bound by both divine and natural law to pursue what is ‘good’ for the Commonwealth, and affirms that the subject possesses certain rights and liberties – the right to a public trial in a court of law, the right to a punishment commensurate to their crime and, of course, the famous right to physically resist any violence inflicted upon them – this does not in any way disqualify or delimit the absolute right of the sovereign to inflict punishment or death with legal impunity: a sovereign who punishes or kills an innocent subject for any reason whatsoever explicitly does not commit a crime (Agamben, 1998: 106; Bradley, 2019; Hüning, 2007: 221). 3 In Hobbes’s theory of sovereign punishment, we find something like the origin of the radically asymmetrical and unilateral right to exercise violence upon the body of a citizen, who is effectively reduced to the status of an enemy who can be killed in combat.…”

“…To address this question, Hobbes proposes a number of possible sources for the sovereign right to punishment – including the obscure and much disputed claim that punishment has a natural ‘foundation’ in the state of nature itself (Hobbes, 1996: 214; see also Agamben, 1998: 106; Bradley, 2019) – but arguably the most secure basis for this right can be found in what is called Leviathan ’s theory of authorization (Hüning, 2007; Norrie, 1984; Schrock, 1991). It is, in other words, with the subject’s original decision to authorize the sovereign to act on his behalf in the Commonwealth (expounded in Chapter 16, ‘Of Persons, Authors and Things Personated’) that the right to punish begins.…”

“… 3. If Hobbes’s right to punish has undoubtedly provoked considerable debate among scholars – particularly around the question of its alleged origins – it is generally agreed that the English philosopher sets no legal (as opposed to religious or natural) limit upon the sovereign’s right to inflict violence as he chooses: a sovereign who kills an innocent may well commit a sin against natural law, but not a crime against positive law. In Dieter Hüning’s (2007: 221) account, ‘whoever at the command of his sovereign kills an innocent person, does not commit a crime, precisely because he does not have the authority to judge for himself between a just and an unjust action, a matter that only the sovereign has the power to decide’ . …”