Thomas Hobbes and the Philosophy of Punishment Author(s): Alan Norrie Reviewed work(s): Source: Law and Philosophy,

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ALAN NORRIE

THOMAS

HOBBES

AND THE PHILOSOPHY

OF

PUNISHMENT

of Hobbes'stheory of ABSTRACT. In this article I argue for a full appraisal of and account its which takes contradictoryaspects. divergent punishment Examininghis theory within the generalcontext of his position in Leviathan, it is possible to see its centrality for the subsequent development of the modern philosophy of punishment.From this point of view, it is also possible to pinpoint the source of a central weakness in the retributivetheory of punishment.
1.

In comparison with the work of later philosophers such as Kant, Hegel, and Bentham, Hobbes's philosophy of punishment is generally regarded as of only secondary importance. At best, he is portrayed as a forerunner of later philosophers, as in Cattaneo's view of him as a prototypical utilitarian:
Hobbes's conception contains in essence the basic principlesof a utilitarian theory of punishment,principlesthat were later developedand elaboratedby Beccariaand Bentham.1

Because of this, Hobbes's work may be of interest to the student of Hobbes but is unlikely to warrant more than the passing reference of the philosopher of punishment. In this article, I argue, against this view, that Hobbes's theory of punishment has a much greater significance than that attributed to it thus far. Indeed, I will claim that his work is fundamental to an understanding of the modern philosophy of punishment because he established a philosophical problematic which has been developed by later philosophers but not transcended. One aim of this article, then, is to redress an imbalance. While Hobbes's seminal role in the devel1 M. Cattaneo, 'Hobbes's Theory of Punishment' in Hobbes Studies ed. K. C. Brown (Oxford: Blackwell, 1965), p. 289.

Law and Philosophy 3 (1984) 299-320. 0167-5249/84/0032-0299 ? 1984 by D. Reidel Publishing Company.

$02.20.

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opment of modernsocial and politicalphilosophyhas been widely recognised,2that recognition has not been extended to the philosophyof punishment. My intention is not, however, restricted simply to that of historical reconstruction.I shall also argue that recognition of Hobbes'simportancefor the philosophyof punishmentcan help us to state with precisionone of the centralproblems facedby the philosophyof punishmenttoday. At a time when that philosophy can be fairlysaidto be characterised radicalexaminaby impasse,3 tion of its past can form the basis for an identificationof the of the present. problems The particular modern problemthat I have in mind concerns the retributivetheory of punishment.Retributivism has enjoyed a revivalof interestover the past decadeprincipally becauseof its emphasisupon the rights of the individualas a responsibleand rationalagent. It is arguedby the retributivist that the heretofore fashionable utilitarianand reform theories do not capture the central notions of rights and responsibilitywhich relate to the freedomand autonomyof the individual. Yet even those who now turn to retributivism as the only validjustificationof punishment that can respect the individual as such experience"deeplymixed in feelings," Jeffrie Murphy'swords,as to the adequacyof their theory:
L. Strauss, Natural Right and History (Chicago: Univ. of Chicago Press, 1953); C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford Univ. Press, 1962); J. Habermas, Theory and Practice (London: Heinemann, 1974). 3 Most obviously in the ambivalent acceptance of the need to return to a "justice model." See American Friends Service Committee, Struggle for Justice (New York: Hill and Wang, 1971); A. Von Hirsch, Doing Justice: The Choice of Punishment (New York: Hill and Wang, 1976); J. G. Murphy, Retribution, Justice and Therapy, Part II (Dordrecht: D. Reidel, 1979); A. E. Bottoms and R. H. Preston, The Coming Penal Crisis (Edinburgh: Scottish Academic Press, 1980). This theme has also been taken up within criminology. See S. Cohen, 'Guilt, Justice and Tolerance: Some Old Concepts for a New Criminology' in Deviant Interpretations ed. D. Downes and P. Rock (Oxford: Martin Robertson, 1979), pp. 17-51.
2

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On the one hand it is a theory which respectshumandignity, regardshuman beings as responsible agents and not merely as things or resources to be manipulatedfor the social good. On the other hand, it tends perhapsto encourageblindnessto the way thingsreallyare and to give rise to smugnessand self-righteousness.4

The problem is that in identifying individuals as rational and autonomous beings, retributivism ignores those personal and social causes of criminality so persistently identified by criminology and which form part of our modern understanding of the reality of crime.5 Thus the retributivist may be involved in duplicity in that he blames the individual as a free, responsible being while neglecting to consider those factors that determined his behaviour and for which he was not responsible. This conflict between a view of the individual as free, rational, and responsible on the one hand and as determined and irresponsible on the other remains unresolved within the retributive theory, and contributes to the sense of impasse mentioned above. It will not be resolved in this article, but I hope to be able to reveal more clearly the root of the problem than has so far been the case through an analysis of Hobbes's philosophy of punishment.
2.

There is perhaps one good reason why philosophers concerned with punishment have avoided Hobbes: it is not clear in his writings
J. Murphy, 'Kant's Theory of Punishment' in Retribution, Justice and Therapy,p. 90. s See, for example, J. Murphy, 'Marxismand Retribution' in Retribution, Justice and Therapy,pp. 102-10. However,it must be said that criminology has never finally resolvedthe old freewill/determinism debate within its own literature.See, for example, I. Taylor,Waltonand Young, The New Criminology (London: Routledge and Kegal Paul, 1973), and Critical Criminology (London: Routledge and KeganPaul, 1975). Nor, it seems, has the law. See for example Lord Scarman'srecent uncomfortablejuxtaposition of social causes and individual responsibilityin The Brixton Disorders, 10-12 April 1981 (Cmnd. 8427), pps. 14, 16, 37. See my 'Freewill, Determinismand Criminal Justice' LegalStudies (1983): 3 (1) for furtherdiscussion. 4

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is, or indeedwhether exactly what the justificationof punishment there is one. We may begin with the famouspassagein Leviathan in which Hobbes stops to enquire "by what door the Right, or Authority of Punishing... came in." His answeris evasive.While the Sovereignis appointedby consent of the people, the people so appointhim in orderthat theirlives may be morecommodious. Punishment,however, is the infliction of an evil, and so it could not be the case that the individual would give the Sovereign the him. inflict it to dilemma to to Hobbes's solution this is upon right argue that punishmentis the Sovereign's right of nature, carried over into the state of society, and immeasurably enhancedby the fact that everyother personhas laid downhis right:
consequentlyit cannot be intended, that he gave any right to anotherto lay violent hands upon his person.... It is manifest therefore that the Right which the Common-wealth ... hath to Punish, is not groundedon any concession, or gift of the Subjects.But I have also shewed formerly,that before the Institution of Common-wealth, every man had a right to every thing, and to do whatsoeverhe thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundationof that right of Punishing,which is exercised in everyCommon-wealth. For the did not the that but in Subjects give Sovereign right; onely laying down theirs, strengthenedhim to use his own, as he should think fit, for the preserFor ... no man is supposed bound by Convenant, not to resist violence; and

vation of them all: so that it was not given, but left to him, and to him onely.6

The meaningof this passageis clear, althoughits significance and value as a justificationof punishmentcan only be assessedin the context of other discussionsof punishment withinLeviathan. Hobbes a certain ambivalence towardsthe right Clearly, expresses of punishment,and to understand this we mustfirstbe awareof a within his pervasive ambiguity theory. To begin with, we may note that there is a persistent themein Leviathanto the effect that the individualcould not granta right of punishmentto the Sovereign.For example, in the following passage:
6

T. Hobbes,Leviathan(Harmondsworth: Pelican,1968), pp. 353-54.

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Whensoevera man Transferrethhis Right, or Renounceth it; it is either in consideration of some Right reciprocally transferredto himselfe; or for some other good he hopeth for thereby. For it is a voluntaryact; and of the voluntary acts of every man, the object is some Good to himselfe.And therefore there be some Rights, which no man can be understoodby any words, or other signes, to have abandonned,or transferred. As first, a man cannot down the of and ... because Wounds, lay right resisting.... Imprisonment; there is no benefit consequent to such patience ... and the motive, and end for which this renouncing,and transferring of Right is introduced,is nothing else but the security of a man's person, in his life, and is the means of so life, as not to be weary of it.7 preserving

Indeed,Hobbesgoes so far as to state that any manwho purports to give the Sovereign a rightto punishis "not to be understood as if he meant it, or that it was his will, but that he was ignorantof how such wordsand actionswereto be interpreted."8 But against this argument,there is anotherequally persistent, yet contradictory,theme in Leviathan.First, it should be noted that one of the fundamentalreasons, if not the fundamental is to safeguard the securityof reason, for appointinga Sovereign the individualby means of a Sovereignpunitive power. Hobbes commenceshis discussionof the establishmentof the Commonwealthby statingthat men'saim is to get
themselves out from that miserablecondition of Warrewhich is necessarily consequent... to the naturallPassion of men, when there is no visiblePower to keep them in awe, and tye them by feare of punishment to the performance of their Covenants... .9 (emphasisadded)

Thus punishmentis central to the operationof the Commonwealth, yet Hobbes tells us that only the man who lacks underof the standingwould grantaway such a right. The establishment "Article an of is Hobbes informs us elseReason," Sovereign but when it comes to givingthe Sovereign the powerhe where,10 the man would without reason do such a thing. only requires,
7 Ibid., p. 192. 8 Ibid. 9 Ibid., 223. p. 10Ibid., 188. p.

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But Hobbes goes further than this. He also states that the individual does given the Sovereign the right to punish, and that no subject may protest against any punishment meted out to him by the Sovereign because
[since] every Subject is by this Institution Author of all the Actions, and Judgements of the SoveraigneInstituted; it followes, that whatsoeverhe doth it can be no Injury to any of his Subjects;nor ought he to be by any of them accused of Injustice.For he that doth any thing by authority from another, doth therein no injury to him by whose authority he acteth; But by this Institution of a Common-Wealth, every particularman is Author of all the Soveraignedoth; and consequently he that complaineth of injury from his Soveraigne, complaineth of that whereof he himselfe is Author; and therefore ought not to accuse any man but himselfe; no nor himselfe of injury;becauseto do injuryto oneselfe, is impossible.1'

Here, as elsewhere,12 it is clearly envisaged that the individual can authorise the Sovereign to 'injure'him. There is then a contradiction in Hobbes's account: the individual on the one hand acts without understanding if he consents to punishment, while on the other, the institution of punishment is the dictate of reason and the individual's own act because of his authorisation of the Sovereign's right. Why should this contradiction exist?13 Cattaneo argues that the conflict between Hobbes's two views of the justification of punishment emerges from "a discrepancy between his theory of sovereignty and his conception of the basic I Ibid., p. 232. 12 See also ibid., p. 229: 'Besides, if he that attempteth to depose his Soveraigne,be killed, or punishedby him for such attempt, he is author of his own punishment,as being by the Institution, Author of all his Soveraign shalldo.' 13 Gauthierexplainsit as an oversightin that initially Hobbes"failsto notice the problem."To see Hobbes'smistake in such highly contingenttermsis in itself suspicious given that we are dealing here with one of the foremost world. In any case such an explanation philosophersof the English-speaking misses the logical consistency of the idea of grantinga right to punish with Hobbes'sphilosophy of the contract, while it is indeed the case that it is inconsistent with Hobbes'sphilosophy of man's nature. See D. Gauthier, The Press,1969), pp. 146-49. Logic of Leviathan(Oxford:Clarendon

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and primarycharacterof the naturalright to self preservation." The problemarisesbecause"eachof these two conceptionsclaims to be absolute,but findsan insurmountable obstaclein the similar claim of the other."14This is partly correct,but it does not trace the contradiction to its fundamentalroot in Hobbes's work. Cattaneois correctto identify the absolute claimof man'snature upon his actions. It is this which leads Hobbes to state that no man would consent to his punishment.Cattaneois also correctto note the absolute power of the Sovereignwithin the Commonwealth. But as regardsthe Sovereign's right to punish (including the absoluteright of capitalpunishment),it mustbe recalledthat this is derived from the prior consent of the individualvia the social contract, and it is here that we discoveranotherabsolute which givesrise to the rightto punish. This second absoluteis the absolutepowerof a free contracting to alienateright.Hobbesmakes party to make bindingagreements it clear that the basis of contractualobligationis a voluntaryact on the part of the individual,and that the freedom to make contractsis consistentwith the existence of even the most dominant passions.Thuswhen a mangrantsawaya right,
then is he said to be Obliged, or Bound ...: and ... he Ought, and it is his Duty, not to make voyd that voluntary act of his own: and that such hindrance is Injustice.... It is called Injustice... voluntarily to undo that, which from the beginninghe had voluntarilydone.15

It is, then, a conditionof the obligatoriness of a contractthat it be freely undertaken. Does this then meanthat a contractentered into through the motivationof a passionsuch as fearbecomesvoid, since it could not truly be said to be voluntary?Hobbesinsists that "Covenantsentred into by fear, in the condition of meer
Nature, are obligatory"16 and this is so, he later argues, because Cattaneo, 'Hobbes'sTheory of Punishment,'p. 293. Cattaneois actually talking here in the context of the death penalty, but his discussion is of generalrelevanceto the question of punishment. 15 Hobbes, Leviathan,p. 191. 16 Ibid., p. 198.
14

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Feare and Liberty are consistent; as when a man throwethhis goods into the Sea for feare the ship should sink, he doth it nevertheless very willingly,and may refuse to do it if he will: It is therefore the action of one that was
free....17

Thus, to the absolute power of nature to govern men's actions, Hobbes now opposes an absolute freedom of action, regardlessof the conditions which disposed the individual to act. It is this opposition which lurks behind the contradiction as to whether the Sovereign has or has not the right to punish granted to him by his subjects. At root, it emerges from the existence of two different and conflicting views of the nature of man. First, there is the view of man as an individual who is determined by his nature, and who could therefore never transfer a right of punishment to another. Second, there is the view of man as a free individual who is able to make binding contracts because he is free, and who may alienate any particular right for the same reason. This second individual is the classical juridical individual, the individual regarded as a contracting party in abstraction from his naturaland social context. Hobbes's problem in relation to punishment is that while his juridical individual can as a formally free being consent to the Sovereign's right of punishment, his natural individual, determined by his appetites to seek what is good and by his aversions to avoid what is bad, would never consent to the transfer of such a right. What is an act of reason from one point of view is an act of defective understanding from the other. The right to punish is granted de jure but immediately retracted de facto. This contradiction between the juridical foundation of right and its factual denial is, I shall argue, at the root of the retributivist problem identified in section I above. Before so doing, however, it is necessary to probe more fully Hobbes's account of punishment and its philosophical basis. Given these two contradictory accounts of man - as a natural and as a juridical being - we can now conclude this section by
17

Ibid., p. 262.

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returning to the passage, quoted above, in which Hobbes asks "by what door" the right to punish came in. This passage occurs towards the end' of Part II of Leviathan, after the appearance of the contradiction we have noted. It can now be seen as an unsatisfactory attempt by Hobbes to hedge his bets. Given the centrality of punishment to the purpose of having a Sovereign, it would be nonsense to state that he has no right to punish. Yet given man's nature, he cannot have such a right. Hobbes's resolution of the problem is unsatisfactory because the logic of his argument either leads to the conclusion that the individual does indeed grant the Sovereign the right to punish (despite what Hobbes claims) or leads to the immanent collapse of, and the implicit denial of the possibility of, the social state and the institution of punishment. In appointing a Sovereign, the people make a conscious and rational choice to establish a ruler with supreme power over them. In laying down their right to punish, thereby aggrandizing the Sovereign's natural right, they may not explicitly grant the Sovereign the right of punishment, but they must implicitly or tacitly do so. Laying down one's right while appointing a Sovereign who does not lay down his entails at least the implicit approval on the people's part of the Sovereign's retention of his right. As Hobbes himself says, right is laid aside "either by simply renouncing it; or by transferring it to another"18 (my emphasis). The people do not need to transfer their right to the Sovereign. If he retains his natural right and (we assume) the people know this, then they implicitly recognise the Sovereign'sright of punishment in the Commonwealth. The transfer of right in this situation may be 'under the table', but a transfer of right, no matter the verbal intricacies, it remains. On the other hand, if the Sovereign retains a natural right to punish, and the individual does not consent to that right, it follows that the institution of the Commonwealth is a self-defeating proposition. The aim of the Commonwealth and the Sovereign is to
18

Ibid., p. 191.

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establisha state of society where before there had been a state of nature, which was one of war. Integralto the maintenanceof society and the.avoidance of nature (war) is the institution of is based upon an punishment.But if the exercise of punishment unconcededright of nature, then every threat or act of punishment is itself a reversionto the state of nature.Everysuch threat or act is a potentialor actualact of war.Thuswhile the Sovereign is supposedto protectmenfromthe state of nature,the Sovereign's primarytool for achievingthis is itself a weapon of war and a state.TheSovereign is a double logicalconduitbackinto the natural on here.19 Hobbes's agent logic Thus Hobbes'ssolution to the problemof the right of punishment is no solution at all. For either the revisedjustification becomes implicated in the general conceptual structure of the social contract, in which case the people do give the Sovereigna right to punish ('underthe table') or it completely undermines it in line with the concept the entire concept of society, bringing of manasa natural The whole of Leviathan structure warring being. of is shakenif the Sovereign's is natural and not right punishment for of never the state nature has been transcended. social, really Thus, Hobbes'srevisedjustificationof punishmentcannotresolve the contradictionthat exists between his juridicalconceptionof man, which makesthe contracta possibilityand givesit its moral force, and his naturalisticconceptionof man which threatensto underminethe essentialcomponentof Sovereign powerand right, We are now in a to make a link between punishment. position
19 It is significant that this is essentially Gauthier's conclusion in his attempt to support Hobbes's compromise solution to the problem of punishment. Gauthier argues that "each man authorises, not his own punishment, but the punishment of every other man" so that "in punishing, the sovereign is no longer acting as the representative of the person punished, and so that he is placing himself in the position of an enemy in the state of nature with respect to that person". (The Logic of Leviathan, p. 148). Yet punishment is a central institution of the Commonwealth given the nature of man, and the threat of punishment is universal. On this logic, the state of society (peace) is always already its opposite, the state of nature (war).

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Hobbes's theory of punishment,and the generalstructureof his work. philosophical

3.

whole." 20

The contradictionbetween a juridical conception of the social contract and a naturalisticdescriptionof man's being is fundamental to the Hobbesianphilosophy. Strausshas describedit as "the classic example of the typically modern combinationof political idealism with a materialisticand atheistic view of the

While Hobbes wished to procurefor political philosophy the legitimacy of the modern materialistand scientific method he wished at the same time to affirmnot only the state's scientific but also its moralnecessity.Thuswhile he was at one with Machiavelli in seeing that "the correctway of answering the questionof the right orderof society consistsin takingone's bearings by how men actually do live," he did not accept that the only virtuewas political virtue. To that he added the quest for moralvirtuein an attempt to restore "the moralprinciplesof politics,i.e. of natural
law, on the plane of Machiavelli's'realism'."21 Habermas, developing this interpretation of Hobbes's work, reveals the problematic and duplicitous manner in which Hobbes attempts to conjoin natural and moral necessity. He portrays the creation of social order and the nature of human behaviour as
the materialof science. The engineersof the correct order can disregardthe categoriesof ethical socialintercourseand confine themselvesto the construction of conditions under which humanbeings,just like objectswithin nature, will necessarilybehavein a calculablemanner.22

This material of science becomes the basis for natural laws,

interpreted physically,as lawsof nature.But Hobbesthen proceeds

20
21

22

Strauss,NaturalRight and History, p. 170. Ibid., p. 179. Habermas, Theoryand Practice,p. 43.

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to transmute these physical laws of nature into Leges Naturales, laws of nature in a moral sense:
Hobbes projectsabsolute NaturalLaw onto a relationshipamong men intermanner; this produces the appearancethat the preted in the Machiavellian lawfulnessof the state of naturehas been formulatednormatively.But ... his analysisof the naturalstate of the human speciespriorto all sociationis not ethical at all; it is purelyphysicalistic.23

There is duplicity in this "cinematic dissolve"24 from physical

natural law to moral natural law in that the former cannot provide an adequate foundation for the latter. Physical laws of nature give rise not to moral commands but to prudential directives, to 'hypothetical' rather than 'categorical' imperatives.25 While Hobbes without doubt elaborates the laws of nature as Leges Naturales in the moral sense, describing them as the "true Morall Philosophie"26 and speaking of them as binding "in foro interno,"27 he ultimately concedes that these moral natural laws are only improperly so called "for they are but Conclusions, or theoremes concerning what conduceth to the conservation and defence of [men]."28 This being so, Hobbes's naturalism and scientific realism provide an inadequate foundation for his moral philosophy. The significance of this description of a basic deficiency in the Hobbesian philosophy is that if we now return to Hobbes's justification of punishment, we see that, albeit in different terms, precisely the same problem exists there. In Leviathan, the weight of the by the social contract. The two in fact complement each other. Whereas the Leges Naturales direct the individual to the necessity
23 24

moral argument is borne not only by the Leges Naturales but also

Ibid., p. 65, and see generally,pp. 62-67.

Ibid., p. 65. C. B. MacPherson, Political Theory of Possessive Individualism, pp. 7274. Against McPherson, it is the argument of this paper that Hobbes did intend to postulate a moral and not merely prudential theory of obligation. 26 Ibid., p. 216. 27 Ibid., p. 215. 28 Ibid., p. pp. 216-17.
25

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of a Commonwealth and Sovereign as an objective rational necessity, the social contract binds the individual subjectively in that adherence to the Commonwealth and submission to the Sovereign become his own free act. The transfer of right in the contract is the subjective complement of the objective laws of man's nature. It is in this other part of Hobbes's moral doctrine that we locate the right to punish for that right is a product (on the juridical side of his philosophy) of the transfer of right in the contract. The problem, however, is that just as the moral Leges Naturales are undermined by their foundation in scientifically described physical natural laws, so is the transfer of right as a voluntary individual act undermined by man's nature as a physical being. We can see this if we investigate Hobbes's claim that in transferring right, man obliges himself through his own voluntary act. It is, it will be recalled, "Injustice ... voluntarily to undo that, which from the beginning [one] had voluntarily done,"29 but what does it mean to act voluntarily? To act voluntarily is to act freely but it will be recalled that for Hobbes, man is governed by the necessity of his nature. It is fear that drives him into the Commonwealth. So can he be said to act freely so that his contractual act can truly be said to be a voluntary one? Hobbes's answer is to state that although the strongest passion is fear, nonetheless, areconsistent; as whena manthroweth Feareand Liberty hisgoodsinto the Sea forfeare the shipshouldsink,he doth it nevertheless and verywillingly, the action of one that was may refuse to do it if he will: It is therefore
free ... .30

Philosophically, he explains this argument as follows:

Liberty and Necessity are Consistent: As in the water, that hath not only Liberty, but a necessity of descendingby the Channel: so likewise in the Actions which men voluntarilydoe....31

While such a conception of freedom is intelligible, it is clearly

29
30

Ibid., p. 191. Ibid., p. 262. 31 Ibid., 263. p.

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not the materialfrom which moral obligationcan be derived.It is essentially a 'soft determinist'position in which freedom is defined as an absenceof externalimpediments.32 It concernsnot whether an action was freely chosen but whether an action, determined by circumstancesbeyond individual choice, meets with external hinderance.'Waterdescendingby a channel'can clearlyonly be free in the latter, and not the formersense, for it would be nonsenseto suggestthat water could 'choose'to follow its law of nature,the law of gravity.Moralfreedomon the other hand, as Kenny argues,entails the power to do otherwisethan one does.33Objects by naturedo not enjoy such a power, governed andare thereforenot attributable with moralfreedom.If Hobbes's of man men with other objects of naturein their concept aligns to naturalforces, then he cannot at the same time subservience attributemen with the moral-juridical freedom of choice which makesconsentto the contracttheir 'own'act. Thus,just as with the concept of a natural law, whichhe interHobbesattemptsto haveit prets both physicallyand normatively, both wayswith his conceptof manas a natural andjuridicalbeing. Men are both determinedobjects and free subjects.But if they are determinedby their nature, they are not free, at least in a moralsense, to obligethemselves by theirvoluntaryacts, for these acts are not trulyvoluntary. To sum up, the ambiguitiesand contradictionsin Hobbes's account of punishmentderive from a fundamental admixtureof two differentsets of concepts: on the one hand, the concepts of modern naturalscience which postulate a world, includingmen,
32 Ibid., pp. 189, 262. Cf. P. Edwards, 'Hard and Soft Determinism' in Determinism and Freedom in the Age of Modern Science, ed. S. Hook (New York: Collier, 1961), p. 117. 33 A. Kenny, Freewill and Responsibility (London: Routledge and Kegan Paul, 1978), p. 26. Kenny is talking here in the context of criminal responsibility, but what he has to say is as applicable to the general question of moral responsibility. Elsewhere, I have explored the weaknesses of a 'soft determinist' account of criminal responsibility. See Norrie, 'Freewill, Determinism and Criminal Justice,' Legal Studies 3 (1983): 67-73.

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dominated by physical laws of nature, and on the other hand the moral concepts of political philosophy which portray men as governed by moral laws (Leges Naturales) and explain the moral legitimacy of society in terms of the free consent of those who inhabit it. The significance of this antithesis within Hobbes's work for the subsequent development of the philosophy of punishment must now be explored. 4. Given what we have said of Hobbes's theory, the first question we must ask is what kind of theory of punishment is it? The view of Cattaneo, briefly mentioned at the beginning of the article, is worth repeating here in more detail: If the right to punishhas a contractualist basisin Hobbes,the characterare conceived istics, functionand purposeof punishment by him according to utilitarian to be the considered principles.... [O]f what are generally three classicaltheoriesof the justificationand the basis for punishment and prevention), correction Hobbesdefinitelyrejectsthe first (retribution, andacceptsthe othertwo. He rejectsthe theoryof retribution of one of the baser as an expression that of as the fruit a of desire for feelings, vainglory revenge.... [H]e accepts - the formerbecause the theoryof correction and the theoryof prevention "correction of the offender"is one of the purposes and of punishment; the latter,sincethe principle end of punishment is "thatthe will (especially) of men may therebythe better be disposedto obedience", i.e. to prevent
crime.34

This account of Hobbes as anything but a retributivist rests upon a highly tendentious account of the nature of the retributive theory. It is true that Hobbes rejects revenge as a justification of punishment as a base emotion, but the classical retributivists did not found their theories upon revenge either. On the contrary, the formulations of Kant and Hegel are quite similar to that of Hobbes. Compare Hobbes's view:
34

Cattaneo, 'Hobbes' Theory of Punishment,' pp. 288-89.

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manis Author of all every particular by this Institutionof a Common-wealth, the Soveraignedoth; and consequently he that complainethof injury from his Soveraigne, complainethof that whereof he himselfeis Author... .35 With Kant's: To say, "I will to be punishedif I murdersomeone",can mean nothing more than, "I submit myself along with everyoneelse to those laws which, if there are any criminalsamongthe people, will naturallyinclude penallaws."36 And Hegel's: The injury [the penalty] which falls on the criminalis ... a right established within the criminal himself, i.e. in his objectively embodied will, in his action. The reason for this is that ... by doing it the criminalhas laid down a law which he has explicitly recognisedin his action and under which he shouldbe broughtas underhis right.37 It is because of Hobbes's contractualist framework that his work exhibits a retributivist tendency. At the root of the idea of the social contract lies the classical retributivist idea of the individual qualifying for punishment through his prior legislative act. For Hobbes the legislative act is one of agreement guided by reason, whereas for Kant and Hegel the actual existence of an agreement is unnecessary given man's nature as a rational being.38 In all three cases, however, the individual establishes a law for himself, and his punishment for crime is his 'own act' returning to him. Hobbes, then, deserves the credit for establishing, through the social contract, the basis for the modern retributivist justifica35 Hobbes, Leviathan, p. 232. 36 I. Kant, The Elementsof Justice, trans.J. Ladd (New York: Metaphysical

Bobbs-Merrill, 1965), p. 105. 37 G. Hegel, ThePhilosophyof Right, trans.T. Knox (Oxford:Oxford Univ. Press,1967), p. 70. 38 The precise nature of the Kantianand Hegelian justifications of punishment is a matterof debate. On Kant,see J. Murphy,'Kant'sTheory of Punishment,' and B. Aune, Kant's Theory of Morals (Princeton:Princeton Univ. Press, 1979). On Hegel, see D. Cooper, 'Hegel'sTheory of Punishment'in Univ. Hegel's Political Philosophy ed. Z. Pelczynski (Cambridge: Cambridge Press,1971) and R. Plant,Hegel (London:Allen and Unwin, 1973).

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The termsof the theorywere to be developed tion of punishment. later writers such as Kant and Hegelbut not essentiallytransby formed.The idea of the individual's consentto the social contract is the historicalfoundationstone of modernretributivism. Havingestablishedthis point, however,we must not ignorethe of rest of Cattaneo's judgement,that Hobbesis also a forerunner The of for Hobbes that aim punishment is so the utilitarian school. "the will of men may thereby the better be disposed to obedience"39 and lies in the "possibilityof disposingthe Delinquent, or (by his example) other men, to obey the Lawes.... 40 Thus with utilitarian the idea of punishment as a deterrent consequences is intrinsicto his theory too. Hobbes'spositionis a genuinehybrid. Whyshouldthis be so? The answerlies in his contradictory conceptionof humanindividuality. On the one hand, Hobbessees man as a free individual able as such to establishand consent to the institutionof punishment. As a free juridicalbeing, the individualcan form the basis On the otherhand,Hobbes of a retributivetheory of punishment. portraysman as an individualdetermined by the passions.Conseof it from this natural to portraylaw in is view, point quently, terms of its ability to determine behaviourby sanctions, as a the latergreat utilitarianinstitution.Historically, Hobbesstraddles divide in the philosophy of punishment.On the one hand, his theory is the forerunnerof the GermanIdealist School of Kant and Hegel for whom the rationalindividualconstitutedthe moral basisof politicalpower.Onthe otherhand,his theory foreshadows of British the utilitarianism suchasHumeandBentham philosophers while the contractual shell of the Hobbesian who, crackingopen from kernel of extracted the it his scientificmaterialism philosophy, and naturalism.41 This is Hobbes's great historicalsignificance:
39 Hobbes, Leviathan, p. 353.
Ibid., p. 355.

40

41

D. Hume, 'Of the Original Contract' in Essays Literary, Moral and Political (London: Longmans, 1898).

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that he was the founding father of not one, but both the great
theories of punishment.42 5. I turn finally now to the impasse of the retributivist theory mentioned in the introductory section. On the one hand, retributivism treats individuals as free and rational beings, honouring their rationality and freedom in the very act of punishment. On the other hand, the vast bulk of criminality is socially determined; the motives which promote it are socially created and encouraged. This is Jeffrie Murphy's position in a number of articles, which have most successfully projected the retributive theory back onto the centreground of philosophical debate.43 Yet this contradiction within the retributive theory is not a recent one. Kant himself wrote, for example, that If that were not enough, in the following passage,Hobbes'semphasison the inability of the common people to become citizens without the state's education points forward to the third great theory of punishment.While Hobbes here is not actually talking of punishment,the relevanceof what he has to say for a rehabilitative theory is obvious: 'the Common-People's minds ... are like clean paper,fit to receivewhatsoever by Publique Authority shall be imprintedin them.... [S]hall not men be able, by their teaching,and preaching, protectedby the Law, to make that received which is so consonant to Reason, that any unprejudicated man, needs no more to learnit, than to hearit?' (p. 379) Whatis of interest here is not Hobbes'stouchingfaith in the ability of the common people to become good citizens, but ratherthe fact that they can only become good citizensthroughstate education.That meansthat they can which in only become good citizensafter the creationof the Commonwealth, turn meansthat they could not themselvesbe party to the originalcontractas free rational beings. The parallelhere with the retributivist/rehabilitationist oppositionin moderntimes in relationto punishmentis, I think, clear. 43 Collected together in his Retribution,Justice and Therapyand begun in his Kant: ThePhilosophyof Right (London:MacMillan own 1970). Murphy's solution to the problems he raises seems to me invalid on methodological and the Critiqueof Criminal Justice', Contemgrounds.See Norrie, 'Marxism
42

porary Crises 6 (1982): 59-73.

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In a world of moral principle governed by God, punishments would be categorically necessary (insofar as transgressionsoccur). But in a world governedby men, the necessity of punishmentsis only hypothetical,and that direct union of the concept of transgression with the idea of deservingpunishment servesthe ruleronly as a prescriptionfor what to do ....44

This contrast between the ideal and the actual is behind Kant's concern in the Rechtslehre as to the rectitude of punishing the mother who kills her illegitimate child or the soldier who kills another in a dual when these crimes are the product of socially inculcated feelings of dishonour. Kant's diagnosis of the problem is that the state
is responsiblefor the fact that incentivesof honour amongthe people do not accord (subjectively) with the standardsthat are (objectively) appropriate to their purpose, with the result that public legaljustice as administered by the state is injusticefrom the point of view of the people.45

This contrast between the subjective perceptions of the people and the objective standards of public legal justice is embodied philosophically in Kant's distinction between the noumenal and the phaenomenal:
When, therefore, I enact a penallaw againstmyself as a criminalit is the pure juridical legislative reason (homo noumenon) in me that submits myself to the penal law as a person capable of committing a crime, that is, as another person (homo phaenomenon) along with all the others in the civil union who submit themselvesto this law.46

The problem for Kant is that while to a rational being punishment may be justified as the individual'sjust desert, to those who remain influenced by their nature or surroundings,that is, to those who remain at the level of "sensible impulse"47 punishment cannot be justified. For Kant, man is free only to the extent that he overcomes sensible impulse and allows himself to be determined
44 45

46
47

Quoted in Murphy,Retribution, Justice and Therapy, p. 86. Kant, Metaphysical Elements of ustice, p. 107.
Ibid., p. 105.

Ibid., p. 13.

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by reason. Men are only rational to the extent that they act according to the pure legislative will and turn their back on natural impulses.48 The problem is that, logically, if law is the product of reason, and obedience to law is rational, then it is only the man who is irrational, who is governed not by reason but by sensible impulse, who will break the law. But then he, the phaenomenal man, is precisely the individual who does not deserve his punishment.49 Given this impasse in the retributive theory, how can our analysis of Hobbes's work help us? The answer is that while Hobbes cannot solve this problem for the retributivist, he can at least help us understand why the problem exists. We have seen how in Leviathan the right to punish is undermined in two ways. First it is undermined in that de facto the natural individual could
48

Freedom of will is just the aforementioned independencefrom determination by sensibleimpulses:this is the negativeconcept of freedom.The positive concept of freedom is that of the capacityof pure reasonto be of itself prac-

tical.' Ibid., p. 13. 49 This paradox gets Kant into some rather intricate verbal gymnastics. In a passage concerned with the right of revolt against the Sovereign, he makes the following statements. On the one hand, 'Every transgression of the law can and must be explained only as arising from the maxim of the criminal..., for, were it to be derived from a sensible impulse, it would not be committed by the agent himself as a free being and could not be imputed to him.' (Ibid., p. 87) But how can a free (rational) being act in a non-rational way, by breaking a law? He immediately argues that 'It is absolutely impossible to explain how a subject can form a maxim in opposition to the clear prohibition of legislative reason, for only events in the mechanism of nature are susceptible of explanation.' And he goes on to say that to repudiate "the authority of the law itself, even though [the criminal] cannot deny its validity before his own reason ... is impossible for any man" (Ibid., p. 88). Thus only a rational being is responsible for his actions, but it is precisely the rational being who acts according to reason, and not as a being governed by the "mechanism of nature," and such a person could never break the law. Kant's reasoning here is convoluted in the extreme but it seems clear to me that part of the reason for this is that he is attempting to wrestle with this problem.

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not consent to the Sovereign having a power to punish him. Second, it is undermined philosophically in that the individual's consent to the contract as a voluntary obligation is undermined by the naturalistic conception of human action. The conception of man as a free moral being is at war with the other conception of man as the product of natural, physical laws. Concomitantly, the conception of man as a free moral agent is only tenable so long as the naturalistic conception is 'forgotten.' Thus, the Kantian problem of justifying punishment to individuals who act not according to reason but according to other motives derived from their natural or social being is essentially the same as Hobbes's. Kant's moral individual is only a tenable proposition so long as he transcends his phaenomenal self, but it is always the phaenomenal being who commits crimes. Rational beings, by definition, cannot commit irrational acts. Within the Kantian theory, the contradiction between the free moral individual and the natural, determined individual is not overcome. It is simply expressed in different terms. The only real difference between Kant and Hobbes in this matter, (and a fortiori modern retributivists such as Murphy), is that the later writers tend to portray the determination of behaviour not simply in terms of egoistic impulses but also in terms of the existence of social causes and motivations. In conclusion, I have attempted to state in this article the importance of Hobbes to the philosophy of punishment as a whole. In marrying "political idealism with a materialistic and atheistic view of the whole," Hobbes provides the foundation for both the retributive and the utilitarian theories of punishment. In the history of political philosophy, the development of German and British traditions in the eighteenth and nineteenth centuries meant that this uneasy amalgamshould become split so that the utilitarian tradition could draw upon Hobbes's materialist heritage while the retributive tradition could draw upon his political idealism. Secondly, while the retributive tradition has concentrated upon an ideal image of the individual as a free and rational being, it has not at the same time been able to come to terms with the material

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side of man's being, whether that is seen in physiological, psychological or sociological terms. Yet this side of man's behaviour cannot be ignored. It is the merit of Hobbes's admittedly contradictory philosophical formulations that they bring home to us just how much this is the case. While Hobbes may not provide us with solutions, he helps us to diagnose problems. The main problem for the retributivist today is to create a theory of punishment which can at the same time honour the rationality of the individual and come to terms with the material conditions of modern criminality.
Faculty of Law University of Dundee Dundee DD1 4 HN Scotland