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Alice Ristroph : RESPECT AND RESISTANCE IN PUNISHMENT THEORY(1) |
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Alice Ristroph : RESPECT AND RESISTANCE IN PUNISHMENT THEORY(1)
California Law Review, April, 2009
Introduction
As convicted criminals go, Socrates could hardly have been more accommodating. When his wealthy friend Crito offered to help him escape on the eve of his execution, Socrates firmly declined. [1] After he had failed in his defense against the charges of corrupting Athenian youth, and had suggested to no avail an alternative penalty (free meals for life, at public expense), Socrates decided to accept his death sentence without further resistance. Indeed, he was so helpful as to carry out the execution himself: when the jailer arrived with a cup of hemlock, Socrates solicited advice on the most efficacious way to ingest the poison, then obligingly drank to the last drop. [2]
At the other extreme in his attitude toward punishment--though perhaps equally suicidal--was Clyde Barrow, the more violent half of the Bonnie and Clyde criminal team that wreaked havoc across the United States in the early 1930s. [3] Barrow famously vowed that he would never be taken alive; he promised to resist every effort to apprehend him and, if injured and unable to escape, to take his own life before allowing lawmen to capture him. Barrow escaped from jail once, and killed a number of law enforcement officers on *602 separate occasions, before he was finally shot to death by a team of Texas Rangers and FBI agents in an ambush in Louisiana. [4]
How much resistance--or accommodation--should we expect from the convicted criminal? Few convicts are as helpful as Socrates or as intractable as Clyde Barrow. In many respects, the law makes resistance to punishment especially costly, by threatening further judicial punishment or, in some cases, immediate physical harm. Resisting arrest, jumping bail (or "failure to appear"), and escaping from custody are codified as separate offenses that incur independent sanctions. [5] In addition, under the phenomenon known as the "trial penalty," a refusal to plead guilty often results in a more severe sentence for the underlying offense. [6] And, of course, the fact that so many officials within the criminal justice system are authorized to use guns, clubs, and other instruments of violence ensures that "most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk." [7] These and other features of criminal justice policy can be understood as incentives for those facing punishment to behave more like Socrates than Clyde Barrow.
As a normative matter, it might seem obvious that the legitimacy of punishment and the illegitimacy of resistance to punishment stand or fall together. Since, to most observers of the legal system, there is little doubt that punishment is legitimate (even if the precise basis for that legitimacy is a subject of perpetual dispute among punishment theorists), it is no surprise that resistance to punishment is widely viewed as a basis for further condemnation.
It is thus especially curious that one of the most influential political thinkers in the Anglo-American tradition endorsed a right to resist punishment. It is all the more surprising that this thinker was Thomas Hobbes, frequently viewed as a defender of authoritarianism and absolute sovereignty. Hobbes divided what seems indivisible: he argued that state-imposed punishment was within the sovereign's proper authority, and yet the individual facing punishment had a right to resist in any way available. To be sure, the "right" to resist punishment that Hobbes described is only a "blameless liberty," more akin to a prepolitical natural right than a legally enforceable claim. [8] It would be nonsensical to require the same sovereign that punishes also to protect the subject's right to resist. But even if unenforceable, the right to resist punishment seems to undermine any account of the justification of punishment. If the state has legitimate authority to punish, how can the subject have a right to resist?
This Essay explores that question. It is new territory for legal scholarship, which has produced almost no work on Hobbes's account of punishment. [9] One reason for the neglect may be that Hobbes does not fit easily into either of the two main camps in punishment theory, retributivism [10] and consequentialism. Hobbes rejected the retributive claim that punishment is a moral duty, depicting it instead as an instrumental effort to achieve deterrence and social stability. But unlike consequentialist theorists, he did not believe that the benefits of punishment provided a complete normative justification for the practice. And, invoking themes dear to many retributivists, Hobbes insisted on basic rights of due process and decried punishment of innocents. This, I suggest, is reason enough to read Hobbes on punishment. The continuing inability of retributivists to silence consequentialists, and vice versa, suggests that as a society, we are steadfastly committed to both rights and utility. So was Hobbes. Punishment theory tends to veer toward caricatures in which rights are sacrificed to utility or vice versa, but Hobbes offered a theory that embraces both while weakening neither. [11]
Two additional considerations suggest that punishment theorists should begin to study Hobbes in greater detail. First, amidst mainstream theories that view punishment as a morally justified practice, a right to resist is novel, radical, and potentially disruptive. Taking seriously the right to resist may lead us to conclude that punishment cannot be fully reconciled with the criteria for political legitimacy set forth in modern liberal theory. Instead, punishment creates a dilemma for liberals: physically coercive punishments may be socially necessary, but they are also acts of violence, persistent traces of the rule of the stronger in a system otherwise committed to rule by consent. I do not propose to resolve this dilemma--it is the nature of dilemmas not to be resolved--but if we were to acknowledge it, we would probably punish differently, and much less frequently and severely. And even if many contemporary punishment theorists remain unconvinced by Hobbes's argument, addressing his challenges should prove fruitful for criminal law scholarship.
More narrowly, the strange notion of a right to resist punishment sheds considerable light on the issue of respect for criminals. Retributivists have long argued that we fail to respect the convicted criminal if we punish him for consequentialist reasons. [12] According to this view, punishment and respect are compatible only when punishment is imposed as just retribution for the deserving offender. [13] On the other hand, defenders of consequentialist theories have argued that they, not the retributivists, properly respect the defendant. [14] Distinct from retributivism as well as the mainstream consequentialist theories, Hobbes's right to resist offers an alternative and more convincing picture of what it means to respect someone even as we punish him: we respect the criminal by acknowledging that punishment, though perhaps justified by societal interests, is hardly in the condemned man's interest or legitimate from his perspective. [15] The right to resist grounds an account of punishment that is arguably more honest, more egalitarian, and more uniformly respectful than the familiar retributive and utilitarian accounts.
Since legal theorists do not often give sustained attention to Hobbes, this Essay begins by highlighting a few key features of Hobbes's political theory that help establish his contemporary relevance and provide crucial background for his theory of punishment. Specifically, Part I examines Hobbes's commitments to equality and individualism as manifested in an inalienable right to self-preservation; his liberal conception of political authority; and his adherence to rule-of-law values. Part II turns to punishment specifically. Here I show how Hobbes's strong commitment to an inalienable right of self-preservation produces both the sovereign's right to punish and the criminal's right to resist punishment. Part III suggests that the Hobbesian right to resist punishment provides a useful conceptualization of what it means to treat wrongdoers with respect. Some rights of the accused and convicted, I argue, could be understood as permissible, socially tolerated forms of resistance to punishment. The concluding Part notes potential objections to Hobbes's account of punishment, and hopes readers will produce more. Let the arguments begin.
I Reintroducing Thomas Hobbes
Though Hobbes is a staple of the political theory canon, he has received comparatively little attention from contemporary legal theorists. [16] Certain features of Hobbes's arguments may seem to render him irrelevant to modern lawyers in constitutional democracies. After seeing his native England go through bloody civil wars from 1642 to 1651, Hobbes advanced an argument for absolute sovereignty and explicitly rejected the notion of divided or limited government. His concerns about domestic unrest and political instability led him to advocate a degree of governmental power that some commentators have compared to totalitarianism. [17] Perhaps most fundamentally, Hobbes is often portrayed as a profound pessimist about human nature, as the man who described the natural condition of mankind as "solitary, poor, nasty, brutish, and short." [18] For those who do not share Hobbes's apparent pessimism, his political theory does not seem particularly compelling.
Though it is impossible to address or defend the full scope of Hobbes's arguments here, a brief discussion of a few central issues can help demonstrate his contemporary relevance to punishment theorists. This Part develops three key points. First, the charge of undue pessimism is misplaced. In fact, as a result of his great reluctance to blame humans for any of their efforts at survival, Hobbes displayed more "passionate tenderness" for humans than some later and supposedly more humane liberal theorists. [19] Second, though Hobbes unquestionably endorsed absolute sovereignty, his insistence on consent and authorization as the basis of the sovereign's legitimacy was, and remains, the cornerstone of the liberal tradition. Third, Hobbes was committed to familiar liberal legal principles such as due process, notice, certainty, and predictability, and nowhere are these principles more central to his theory than in his discussions of punishment.
The short overview of Hobbes's arguments offered here is not intended to present Hobbes as a model for contemporary policy. Instead, I aim to illuminate important affinities between Hobbesian thought and key principles of modern constitutional democracies. Given these affinities, the inattention to Hobbes's account of punishment is regrettable. While few modern scholars would follow all the dictates of Jeremy Bentham's utilitarianism, we would not abandon his rich discussions of the purposes and best practices of punishment. [20] Similarly, many thinkers reject Kant's own interpretations of the demands of the categorical imperative, but we still appreciate that Kantian retributivism has relevance to contemporary understandings of punishment theory and practice. [21] Hobbes is no less useful as a resource for thinking about punishment.
A. Human Nature
Hobbes famously described human life in the absence of government as "solitary, poor, nasty, brutish, and short," [22] and that memorable phrase shapes the superficial view of Hobbesian political theory. Why, precisely, is life without a sovereign political authority so miserable? Like other political philosophers, Hobbes began his theory with a description of the essential characteristics of human beings. According to Hobbes, those characteristics are: (1) equal physical vulnerability; and (2) a desire for self-preservation.
Hobbes is the theorist par excellence of human vulnerability. His account emphasizes that although humans vary in intellectual capacities and in particular physical strengths, every one of us is vulnerable to violent death. [23] No one is so strong or so smart that he will avoid death, or that he can repel any and all physical assaults coordinated by other human beings. Each person, aware of his own vulnerability, seeks desperately to secure himself against danger. Hobbes seemed to infer from vulnerability and the rational desire for self-preservation a natural right to self-preservation: each person will attempt to master others "till he see no other power great enough to endanger him," and "such augmentation of dominion over men, being necessary to a man's conservation, . . . ought to be allowed him." [24] Each individual must decide for himself what course of action is most conducive to his self-preservation, and he may conclude that self-preservation requires not only obviously defensive uses of violence, but seemingly aggressive and acquisitive actions as well. But if many different individuals each pursue this strategy of preemptive self-defense, they will soon come to blows. Accordingly, in the state of nature with no governing authority, "every man is enemy to every man," and human life is, as we have said, "solitary, poor, nasty, brutish, and short." [25]
Hobbes's state of nature is sometimes compared to a prisoner's dilemma, and indeed, with better communication and coordination, humans might be able to avoid the misery by cooperating with one another. In fact, the inhabitants of Hobbes's state of nature do eventually realize that they are all safer if they give up most of their natural liberty to decide for themselves how to pursue self-preservation and when to use violence. [26] Each person is more likely to avoid attack if the discretion over the use of force is concentrated in a single authority. But until there is such an authority--until there is a sovereign--each individual must decide for herself how to act to preserve herself. "The right of nature," then, is "the liberty each man has, to use his own power, as he will himself, for the preservation . . . of his own life"; this right is thus a right "of doing anything" which he judges to be "the aptest means" of self-preservation. [27]
On this account, it is not innate human cruelty or some irresistible tendency toward gratuitous violence that makes government necessary. Instead, each person's fundamental drive toward self-preservation leads him to take defensive actions, which others then perceive as threats to their own preservation. To appreciate Hobbes, we need not adopt a view of humans as "dangerous and dynamic" or "rapacious" beings. [28] Instead, we need only recognize that individuals seeking self-preservation will pose threats to one another. Political authority is necessary not to restrain human brutes from indulging a natural preference for violence, but to eliminate the good-faith conflicts that inevitably and understandably culminate in physical violence.
B. Contract and Authority
Hobbes founded the modern social contract tradition, the basic concepts of which are familiar enough: individuals in a state of nature agree to create a government for their mutual benefit. Not surprisingly, Hobbes's social contract sought to solve the particular problems of his state of nature. Since, on his account, the state of nature is a condition of dangerous plurality in which diverse individual interests produce preemptive aggression and violence, the social contract is an effort to reduce disagreement: all individuals "confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will." [29] The sovereign then "bears" the "person" of the state, and every individual subject "acknowledge[s] himself to be author of whatsoever he that bears their person shall act." [30] The social contract thus produces "a real unity of them all, in one and the same person." [31] The form of the social contract, as Hobbes imagined it, is a statement by every individual to every other individual: "I authorize and give up my right of governing myself, to [the sovereign], on this condition, that you give up your right to him, and authorize all his actions in like manner." [32] Put differently, each person renounces her natural right to do absolutely anything and everything that she believes will contribute to her self-preservation, in exchange for a similar renouncement by others and in the hopes that the sovereign thus empowered will protect everyone. [33]
Two features of the social contract prove crucial to Hobbes's account of punishment. First, the right given up by the parties to the contract is the "right of governing," a right which clearly encompasses some discretion to make and act on one's own judgments about the best means of self-preservation, but which is not exactly equivalent to the right to defend oneself against immediate threats. Hobbes held that the right of self-defense--the right to resist a violent assault on one's life or bodily safety--was inalienable. [34] Conceptually, perhaps we can reconcile the renunciation of the right to govern with the inalienability of the right of self-defense by drawing a distinction between long-term and immediate self-preservation. In giving up the "right of governing" and agreeing to obey a sovereign, each person relinquishes the right to subdue or kill all those who might eventually pose a threat. It is now the sovereign's decision, not each subject's, how best to prevent death tomorrow. But a knife at one's throat today, or any other direct threat of immediate bodily harm, leaves no room for discretion. Consequently, no one gives up the right to resist immediate threats. Contemporary doctrines of self-defense, which typically incorporate an "imminence" requirement, may be seen as recognitions of a parallel inalienable right to use force as necessary for one's immediate safety. [35] Individuals may use force in self-defense only against a threat of imminent death or serious bodily harm; self-defense claims based on distant, future threats of harm will almost always fail. [36]
A second crucial feature of the social contract is that the sovereign himself (or itself, if it is an assembly) is not a direct participant in the social contract. The subjects contract among themselves to recognize and obey the sovereign; the sovereign promises them nothing. [37] At best, the sovereign might be viewed as a third party beneficiary to the social contract. This arrangement appears to produce a sovereign who is above the law, in the sense that he possesses complete political power and is not himself bound by the laws that he issues. [38] To the limited extent that legal scholars have recognized Hobbes's account of sovereignty, they have understandably found it inconsistent with contemporary constitutional democracy. [39] Further, this theory of absolute sovereignty seems to preclude any rights of resistance or rebellion, including, of course, any right to resist punishment.
I will say more about the basis of the sovereign's power to punish and the subject's right to resist in Part II. For the moment, I wish only to emphasize that notwithstanding Hobbes's defense of a powerful sovereign, his social contract theory evinces a deep commitment to individualism and other liberal values. [40] Hobbes began his political theory, as we have seen, with an account of humans as naturally equal and free with an inalienable right to self-preservation. No one person has any prepolitical right to rule over others; no one has any right to rule at all unless authorized by those who are to be ruled. Of course, natural equality and freedom create problems, as each person desires survival and may pursue it in any fashion she chooses. But the dangerous results of natural freedom and equality do not diminish the principle that political authority must originate from the subjects' consent. Hobbes claimed that individuals would trade obedience for protection, but he insisted that each individual must make this bargain. [41] There is "no obligation on any man" except those that arise "from some act of his own." [42] Today, we may be skeptical that individuals would consent to the sweeping sovereign power that Hobbes envisioned, but it remains his claim that the subjects' consent is required to make any political power valid.
C. The Form of Punishment and the Rule of Law
Perhaps Hobbes's claim that individuals would consent to a powerful sovereign becomes somewhat more plausible when we consider that in Hobbes's view, the sovereign could and should operate a political system governed by the rule of law. In legal scholarship, Hobbes is sometimes classified as a crude legal positivist who equates law to the commands of the sovereign. [43] Close attention to his discussions of civil law, however, reveals a more nuanced account. Hobbes made clear that only certain commands may be counted as law, and civil law is best conceived as a system of rules rather than standards or ad hoc commands. [44] The rules must be clearly communicated to the subjects--a law not "made known" is no law at all. [45] Indeed, Hobbes decried the suggestion that judges "make" law themselves. [46] He extolled well-drafted statutes that were communicated "publicly and plainly" to the people. [47] Like many contemporary defenders of the rule of law, Hobbes saw consistency, continuity, and predictability as virtues of a stable legal code. [48] John Rawls went so far as to label a basic conception of the rule of law--"an authorized public interpretation of rules supported by collective sanctions"--as "Hobbes's thesis." [49]
Rule-of-law values are especially important to Hobbes's definition of punishment. This definition identifies four essential elements to punishment: (1) it must be a harm (or "evil"); (2) this harm must be inflicted by public authority; (3) it must be inflicted on someone who has been judged, by public authority, guilty of a violation of the law; and (4) it must be inflicted "to the end that the will of men may thereby the better be disposed to obedience." [50] If any of these requirements are not met, the harm is a "hostile act" other than punishment. [51] Put differently, punishment properly so called is imposed by the right person, on the right person, for the right reasons. [52]
At this level of generality, Hobbes's account of punishment does not depart dramatically from modern liberal theories of punishment in form or purpose. Like consequentialists, Hobbes insisted that punishment must be aimed at social benefits, and like liberal retributivists, Hobbes stated clearly that only those who have violated a law should be punished: "all punishments of innocent subjects . . . are against the law of nature" and can bring "no good to the commonwealth." [53] Moreover, Hobbes required a system of familiar procedural rights. His criminal justice system would adhere to the principle of legality (no punishment without law), require notice, prohibit forced confessions, and guarantee due process, including an opportunity to be heard before a judge. [54]
But here the similarities to mainstream punishment theory end. The purpose of punishment and its formal structure are two distinct inquiries, and both are distinguishable from the question of the normative justification of punishment. [55] As familiar as the purpose and structure of Hobbes's punishment system are, on the question of justification, he gave an answer quite different from those given by contemporary punishment theorists.
Alice Ristroph ：Associate Professor, Seton Hall University School of Law. For helpful comments, thanks to Vera Bergelson, Sarah Burgess, Michael Cahill, David Dyzenhaus, Claire Finkelstein, Stuart Green, Rick Greenstein, Adil Haque, Kyron Huigens, Melissa Murray, Stephen Schulhofer, Carol Steiker, Martin Stone, Bob Weisberg, Ekow Yankah, and workshop participants at Temple Law School, Willamette University College of Law, the 2008 Criminal Justice Workshop at Harvard Law School, the 2008 Law & Humanities Junior Scholar Workshop at UCLA, and the Safra Foundation Center for Ethics at Harvard University. This Essay was generously supported by the University of Utah, S.J. Quinney College of Law, and by a Faculty Fellowship at the Safra Foundation Center for Ethics, Harvard University.
[1]. This is the account from Plato's dialogues Apology and Crito. See 1 Plato, The Dialogues of Plato 98-104, 118-22 (R.E. Allen trans., 1984).
[2]. See I.F. Stone, The Trial of Socrates 229 (Doubleday 1989) (1989).
[3]. See generally E. R. Milner, The Lives and Times of Bonnie and Clyde (1996).
[4]. Id. at 22-25 (describing Barrow's escape from jail); id. at 134 (listing several law enforcement officers killed by Barrow); id. at 139- 143 (describing ambush in Louisiana).
[5]. See, e.g., N.J. Stat. Ann. § 2C:29-2 (West 2008) (resisting arrest); Tex. Penal Code Ann. § 38.10 (Vernon 2003) (failure to appear); Tex. Penal Code Ann. § 38.06 (Vernon 2003) (escape).
[6]. See, e.g., Nancy J. King, Felony Jury Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885, 896 (2004) (describing the trial penalty, or plea discount, and offering rationales for it). In another effort to punish resistance to punishment, a new proposal would penalize prisoners who seek DNA testing if the testing provides further evidence of guilt. See Tonja Jacobi & Gwendolyn Carroll, Acknowledging Guilt: Forcing Self-Identification in Post-Conviction DNA Testing, 102 Nw. U. L. Rev. 263 (2008).
[7]. Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1607 (1986).
[8]. There are some affinities between a Hobbesian "blameless liberty" and a Hohfeldian privilege: both entail an option to act, or the absence of a duty to refrain from acting. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710, 747-50 (1917). A privilege to resist punishment is the absence of a duty to submit to punishment. Since, unlike rights, privileges do not imply any corresponding duties upon others, a privilege to resist punishment does not mean that the sovereign has a duty to refrain from imposing punishment. Cf. Michael S. Green, The Privilege's Last Stand: The Privilege Against Self-Incrimination and the Right to Rebel Against the State, 65 Brook. L. Rev. 627, 675-80 (1999) (describing the right against self-incrimination in Hobbes as a Hohfeldian privilege). And, of course, Hobbes does recognize the sovereign's "right" to punish. But Hobbesian rights do not map neatly onto Hohfeld's categories, as discussed in more detail below. For more on rights as "blameless liberties" and the inadequacy of Hohfeld, see infra Part II.B.
[9]. Hobbes is probably overlooked too much by scholars in all areas of law, see infra note 16, but his virtual absence in criminal legal theory is especially striking. A rare exception is Green, supra note 8, but Green focuses on the privilege not to testify against oneself rather than the more general right to resist punishment. Theories of punishment from other political philosophers have fared much better among legal scholars. Law reviews and criminal law textbooks are rife with references to Immanuel Kant and Jeremy Bentham, and occasional appeals to G.W.F. Hegel or Cesare Beccaria for variety. For just a few of the many available examples, see Russell L. Christopher, Deterring Retributivism: The Injustice of "Just" Punishment, 96 Nw. U. L. Rev. 843, 906-07 (2002) (discussing Bentham); id. at 862-63 (Hegel); Charles Fried, Reflections on Crime and Punishment, 30 Suffolk U. L. Rev. 681, 694- 98 (Beccaria); Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 Colum. L. Rev. 509 (1987).
Though Hobbes has been much studied in political theory and philosophy, even in those fields Hobbes's specific claims about punishment have received little attention in comparison to other aspects of his work.
[10]. In this Essay, I use the terms "retributivism" and "retributive arguments" interchangeably. But for a more nuanced account of the concepts than is required here, see Michael T. Cahill, Retributive Justice in the Real World, 85 Wash. U. L. Rev. 815, 820 (2007) (distinguishing between "retributive" theory and "retributivist" theory).
[11]. At the same time, as will become clear below, Hobbes's account of punishment is markedly different from "hybrid" theories that reconcile retributive and utilitarian aims by specifying circumstances in which one goal should yield to the other. See, e.g., Paul H. Robinson, Hybrid Principles for the Distribution of Criminal Sanctions, 82 Nw. U. L. Rev. 19 (1987).
[12]. See, e.g., R.A. Duff, Trials and Punishments 208, 234 (1986); Herbert Morris, Persons and Punishment, 52 Monist 475 (1968), reprinted in Sentencing 93-109 (Hyman Gross & Andrew von Hirsch eds., 1981).
[13]. See, e.g., Mark Tunick, Hegel's Political Philosophy: Interpreting the Practice of Legal Punishment 97-98 (1992) (describing Hegel's theory that punishment restores mutual recognition and respect).
[14]. See Christopher, supra note 9, at 967-70; David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. Rev. 1623, 1632-33, 1642-56 (1992).
[15]. There is some philosophical disagreement as to the relationship between justification and legitimacy. Many scholars use the terms interchangeably. See, e.g., Allen Buchanan, Political Legitimacy and Democracy, 112 Ethics 689, 703 (2002) (equating legitimacy with moral justification). Others distinguish them: "Legitimacy, when challenged, bases itself on an appeal to the past, while justification relates to an end that lies in the future." Hannah Arendt, On Violence, in Crises of the Republic 151 (1972). Hobbes did not use either term very much and focused instead on authorization. But I think it is clear that Hobbes would reject efforts to show that punishment is legitimate, or justified, from the perspective of the person punished. See infra Part II.B.
[16]. James Boyle asked over twenty years ago, "Why does the standard jurisprudence course feature Dworkin, Raz, Hart, Kelsen, and Austin as major players, relegating Hobbes to the introductory parade of venerable, but marginal, jurisprudes?" James Boyle, Thomas Hobbes and the Invented Tradition of Legal Positivism: Reflections on Language, Power, and Essentialism, 135 U. Pa. L. Rev. 383, 390 (1987). The contributors to a recent collection on Hobbes's accounts of law include philosophers and political theorists, but few law professors. Hobbes on Law (Claire Finkelstein ed., 2005). Though legal scholarship rarely directly engages Hobbes's own ideas, he is frequently cited as providing the inspiration for Oliver Wendell Holmes Jr.'s legal positivism. See, e.g., Stephen R. Perry, Holmes Versus Hart: The Bad Man in Legal Theory, in The Path of the Law and Its Influence 158, 175 (Steven J. Burton ed., 2000) ("[I]f we are to understand Holmes as advancing a theory of law at all, that theory is clearly Hobbesian in character."). Claire Finkelstein has recently argued that the Holmes-Hobbes relationship is overstated and based on a superficial reading of Hobbes. Claire Finkelstein, Hobbes and the Internal Point of View, 75 Fordham L. Rev. 1211 (2006).
[17]. But see Robert P. Kraynak, Hobbes's Behemoth and the Argument for Absolutism, 76 Am. Pol. Sci. Rev. 837 (1982) (acknowledging, and arguing against, the charge that Hobbes's theory has totalitarian implications).
[18]. Thomas Hobbes, Leviathan 89 (Richard Tuck ed., 1991) (1651). I have modernized spelling, punctuation, and capitalization for quotations from this text.
[19]. George Kateb, Hobbes and the Irrationality of Politics, 17 Pol. Theory 355, 385 (1989).
[20]. For example, Bentham's proposal that poor or homeless persons should be imprisoned in a "workhouse" (to spare others the disutility of the sight of the poor) and forced to labor may not be greeted with universal acceptance today. See Jeremy Bentham, Tracts on Poor Laws and Pauper Management, in 8 Works of Jeremy Bentham 361, 401 (John Bowring ed. 1843).
[21]. Kant argued that even if a society were disbanding and individual members were moving on to other locations, the society should first execute all murderers to "the last murderer remaining" in order to avoid "blood guilt" and honor the demands of the moral law. Immanuel Kant, The Metaphysics of Morals 142 (Mary Gregor trans., 1991) (1797).
[22]. Hobbes, supra note 18, at 89.
[23]. "[T]he difference between man, and man, is not so considerable, as that one man can ... claim to himself any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger with himself." Id. at 87.
[24]. Id. at 88. Elsewhere, Hobbes elaborated in greater detail his claim that natural vulnerability to death implies a right, or "blameless liberty," to do whatever necessary for self-preservation:
And forasmuch as necessity of nature maketh men to will and desire bonum sibi, that which is good for themselves, and to avoid that which is hurtful; but most of all, the terrible enemy of nature, death, from whom we expect both the loss of all power, and also the greatest of bodily pains in the losing; it is not against reason that a man doth all he can to preserve his own body and limbs, both from death and pain. And that which is not against reason, men call RIGHT, or jus, or blameless liberty of using our own natural power and ability. It is therefore a right of nature, that every man may preserve his own life and limbs, with all the power he hath.
Thomas Hobbes, Elements of Law Natural and Politic 71 (Ferdinand Tonnies ed., 1839) (1640) [hereinafter Hobbes, Elements of Law]. The term "right," as used here, cannot mean a legally protected interest, nor does it imply any duties in other people.
[25]. Hobbes, supra note 18, at 89.
[26]. See id. at 117 (humans form commonwealths to "get[] themselves out from that miserable condition of war").
[27]. Id. at 91.
[28]. See Carl Schmitt, The Concept of the Political 61 (George Schwab trans., 1996) (1927) ("dangerous and dynamic"); Leo Strauss, The Political Philosophy of Hobbes 3 (Elsa M. Sinclair trans., 1963) ("rapacious").
[29]. Hobbes, supra note 18, at 120.
[30]. Id.
[31]. Id.
[32]. Id. (emphasis omitted).
[33]. Hobbes repeatedly emphasized that the exercise of individual or "private" judgment would become a threat to social stability. He had sharp criticism for the individual who engages in the "peremptory pursuit of his own principles, and reasoning," and he counted among the "diseases of a commonwealth" the "seditious doctrine" that "every private man is judge of good and evil actions." Id. at 209, 223 (emphasis omitted).
[34]. "[T]here [are] some rights, which no man can be understood by any words, or other signs, to have abandoned, or transferred. As first a man cannot lay down the right of resisting them, that assault him by force, to take away his life ...." Id. at 93.
[35]. See, e.g., Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law §10.4(d) (2d ed. 2003). Claire Finkelstein has argued that in some circumstances, an acquittal on the grounds of self-defense can be understood as a recognition that no one can be expected not to resist a violent assault on one's own person. Claire O. Finkelstein, Self-Defense as a Rational Excuse, 57 U. Pitt. L. Rev. 621, 647-49 (1996).
[36]. Accordingly, many self-defense claims by battered women who kill their abusers have proved controversial. In the most controversial cases, the battered woman kills her abuser when he is sleeping or otherwise not posing an immediate threat. See Richard A. Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. Rev. 371 (1993).
[37]. See, e.g., Hobbes, supra note 18, at 120 (describing the form of the social contract).
[38]. See, e.g., id. at 130 (sovereign power must be absolute and indivisible); id. at 184 ("The sovereign ... is not subject to the civil laws."); id. at 224 ("A fourth opinion, repugnant to the nature of a commonwealth, is this, That he that has the sovereign power, is subject to the civil laws."). Hobbes does say repeatedly that sovereigns are accountable to God and "subject to the laws of nature, because such laws [are] divine." Id. But no human subject can enforce these divine laws should the sovereign violate them. The aversion to divided or limited government was doubtless a product of the conflicts Hobbes witnessed within 17th century England.
[39]. See, e.g., Patrick McKinley Brennan, Against Sovereignty: A Cautionary Note on the Normative Power of the Actual, 82 Notre Dame L. Rev. 181, 185 (2006) (alleging that the Framers of the United State Constitution knew, and rejected, Hobbes's account of sovereignty).
[40]. Leo Strauss called Hobbes "the founder of liberalism," defining liberalism as "that political doctrine which regards as the fundamental political fact the rights, as distinguished from the duties, of man and which identifies the function of the state with the protection or the safeguarding of those rights." Leo Strauss, Natural Right and History 181-82 (Univ. of Chi. Press 1971) (1965). Others characterize Hobbes as a "vulgar liberal" or a "kind of liberal." See Richard Tuck, Hobbes 97 (1989) ("a kind of liberal"); Patrick Neal, Vulgar Liberalism, 21 Pol. Theory 623 (1993).
[41]. Hobbes, supra note 18, at 491 (stating as the aim of Leviathan "to set before men's eyes the mutual relation between protection and obedience"); see also id. at 153 ("The obligation of subjects to the sovereign, is understood to last as long, and no longer, than the power lasts, by which he is able to protect them.").
[42]. Id. at 150.
[43]. See, e.g., Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. Ill. L. Rev. 173, 183-84 (describing, as Hobbes's position, "[t]he only solution to the problem of civil order is to treat as law only the command of the sovereign."). Hobbes did often equate law with the command of the sovereign, but his formulations usually emphasize that laws are the commands of one who has the right to command. See, e.g., Hobbes, supra note 18, at 111 ("Law, properly is the word of him, that by right hath command over others.").
[44]. See Hobbes, supra note 18, at 183 (law is not "a command of any man to any man; but only of him, whose command is addressed to one formerly obliged to obey him"); id. ("Civil law, is to every subject, those rules, which the commonwealth has commanded him, by word, writing, or other sufficient sign of the will, to make use of, for the distinction of right, and wrong; that is to say, of what is contrary, and not contrary to the rule.") (emphasis omitted).
[45]. Id. at 187-88. Hobbes suggests that laws of nature are evident to men through their own reason, rather than via any sovereign proclamation, but he goes on to explain that all laws, especially the laws of nature, need to be interpreted. The task of interpretation falls to judges duly authorized by the sovereign. See id. at 188-92.
[46]. See Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England 55 (Joseph Cropsey ed., 1971) (1681) [hereinafter Hobbes, Dialogue] ("It is not wisdom, but authority that makes a law."); see also id. at 70-73, 87, 140-42. One of the principles of English common law that most outraged Hobbes was the (uncodified) rule that a subject who fled prosecution but later was acquitted would nonetheless forfeit his property. Though a written statute that criminalized flight from trial would be valid, to seize the property of innocent subjects without statutory authority was "unchristian and abominable." Id. at 151; see also Hobbes, supra note 18, at 193.
[47]. Hobbes, Dialogue, supra note 46, at 71.
[48]. For further discussion of Hobbes's rule-of-law values and their particular application in the context of punishment, see Mario A. Cattaneo, Hobbes's Theory of Punishment 275, 277 in Hobbes Studies (K.C. Brown ed., 1965).
[49]. John Rawls, A Theory of Justice 211 (2d ed. 1999) (1971).
[50]. Hobbes, supra note 18, at 214.
[51]. Id. at 215.
[52]. See id. at 214-15. Arguably, Hobbes is not strictly a positivist here; the limitation of "punishment" to properly intentioned harms introduces a normative element to his definition of punishment.
[53]. Id. at 219. I mean only to point out the compatibility between Hobbes and retributive theory. Hobbes himself was no retributivist, see infra notes 101-102 and accompanying text, and in general one need not be a retributivist to object to punishing the innocent. See Alice Ristroph, Proportionality as a Principle of Limited Government, 55 Duke L.J. 263, 273 n.31 (2005).
[54]. Hobbes, supra note 18, at 99 (rejecting testimony obtained through torture); id. at 151 (no man shall be compelled to accuse himself); id. at 203-04 (no ex post facto laws); id. at 218 (right to judicial hearing).
[55]. Cf. Kyron Huigens, On Commonplace Punishment Theory, 2005 U. Chi. Legal F. 437, 439-41 (distinguishing between functions of punishment and theories of punishment).
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