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Alice Ristroph : RESPECT AND RESISTANCE IN PUNISHMENT THEORY(2) |
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Alice Ristroph : RESPECT AND RESISTANCE IN PUNISHMENT THEORY(2)
II Punishment Puzzles
There is little doubt that punishment is a political necessity in Hobbes's commonwealth. The importance of punishment is evident in Hobbes's famous claim that "covenants, without the sword, are but words," and perhaps in his quip that in matters of government, "clubs are trump." [56] But there is an apparent contradiction at the center of Hobbes's account of punishment: punishment is a "right" of the sovereign and an exercise of legitimate authority, yet it is at the same time an act of violence that the condemned individual has a "right" to resist. This contradiction needs investigation.
A. The Right to Punish
Hobbes began his discussion of punishment in Leviathan with an inquiry "of much importance": "by what door the right or authority of punishing . . . came in." [57] As soon as he posed the question, Hobbes rejected the possible answer that individuals consent to be punished as part of the social contract: "no man is supposed bound by covenant, not to resist violence; and consequently it cannot be intended that he gave any right to another to lay violent hands upon his person." [58] Punishment is a form of violence, and as we have already seen, Hobbes recognized an inalienable right to resist violent assaults. [59] Accordingly, the commonwealth's right to punish "is not grounded on any concession . . . of the subjects." [60]
Instead, the right to punish is a manifestation of the sovereign's right to self-preservation:
[B]efore the institution of commonwealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of punishing, which is exercised in every commonwealth. For the subjects did not give the sovereign that right; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him only . . . . [61]
Thus, in Hobbes's view, an individual's natural right to do violence as he judges necessary for his own security becomes, in civil society, the sovereign's right to punish. More precisely, the natural right to use violence preemptively, even against someone who does not pose an imminent threat, becomes the right to punish. Everyone but the sovereign renounces this right when they agree to the social contract. Only the sovereign--who is not a party to the social contract--retains the broad discretion to use force, and so only the sovereign may punish. Notice that Hobbes did not claim that every lawbreaker poses an immediate threat to the life or bodily well-being of the sovereign. Nevertheless, a ruler might judge that his own long-term security, and the security of society as a whole, requires him to use force against those who break the law.
Thus, one way to understand the sovereign's right to punish is to view it as a manifestation of the right of self-preservation that belongs to all natural, mortal humans. But this produces a new puzzle. Even if the sovereign is also a natural person, as would be the case in Hobbes's preferred form of government (an absolute monarchy), the right to punish as a natural right could only belong to the natural person, the man who happens to be king, and not to the artificial person of the sovereign. The sovereign is a creation of the social contract, an artificial man springing into existence by fiat ("Let us make man") at the moment of covenant. [62] If no commonwealth, and thus no sovereign, exists in the state of nature, it makes little sense to say the sovereign keeps rights that he possessed in the state of nature.
This tension can be alleviated, if not entirely dispelled, by examining more closely Hobbes's state of nature. "State of nature" is a term of art that refers to neither a single historical moment nor a purely hypothetical construct. Instead, the state of nature is the always-possible situation in which political authority is absent. Because political authority might appear, disappear, and reappear, the state of nature is a recurrent circumstance. Indeed, one could identify various kinds of states of nature. For example, one could distinguish between the state of nature in which no political authority has ever been established ("the original state of nature") and a state of nature in which political authority has been established but has failed or been destroyed ("a recurrent state of nature"). [63] One could also distinguish between a state of nature in which political authority exists nowhere ("a universal state of nature") and a state of nature in which political authority, otherwise intact, has been rejected only by a single individual ("a specific state of nature"). [64] Conceptually, then, punishment is a distinctive species of violence in that it takes place in a recurrent, specific state of nature, not an original or universal one. Once a subject has disobeyed the sovereign, he and the sovereign are in the state of nature vis-à-vis each other. The sovereign, a uniquely political and artificial construct, now exists in a version of the state of nature, and he possesses the broad right of mortal beings to do whatever seems necessary to preserve himself from imminent or future threats. [65] But if this is all punishment is--a conflict between two mere mortals in the state of nature--then both the sovereign and the criminal will have equal rights of self-preservation, and the criminal has as much right to resist punishment as the sovereign has to impose it. In fact, this is exactly Hobbes's claim.
B. The Right to Resist
We have just seen that the sovereign's power to punish is derived from the natural right to use force as a means of self-preservation. When the law has been broken, the criminal has rejected the sovereign's authority and returned himself and the sovereign to a version of the state of nature. [66] Hobbes's radical egalitarianism committed him to the claim that in the absence of a reciprocally recognized third party to adjudicate disputes, each individual has an equal claim to preserve himself by whatever means he believes necessary. This gives the sovereign a right to punish, but it also gives any individual facing punishment a right to resist.
When Hobbes imagined the general covenant by which individuals authorize the sovereign, he did not include any explicit reservations other than the condition that others also grant authority to the sovereign: "I authorize and give up my right of governing my self, to this man, or to this assembly of men, on this condition, that you give up your right to him, and authorize all his actions in like manner." [67] But there is a further, implicit reservation in this grant of authority: the right to defend one's body from immediate harm. Remember, the right to resist a knife at one's throat is inalienable. [68] And this inalienable right is the basis of the right to resist punishment. [69] Perhaps Hobbes considered this reservation so obvious that it did not need to be stated expressly, and perhaps he was correct. To state the reservation expressly, the subject would have to say, "I authorize you to do whatever you think necessary to preserve me, but I reserve the right to resist should you attempt to destroy me." [70]
On at least two occasions, Hobbes imagined the specific form of the authorization of punishment. Each time, he was explicit that this authorization must include a reserved right to resist. Hobbes states in the Leviathan, "For though a man may covenant thus, unless I do so, or so, kill me; he cannot covenant thus, unless I do so, or so, I will not resist you, when you come to kill me." [71] This right to resist belongs to the guilty as well as the innocent. [72] Hobbes makes the same point at greater length in De Cive: "No man is obliged by any contracts whatsoever not to resist him who shall offer to kill, wound, or any other way hurt his body. . . . It is one thing, if I promise thus: if I do it not at the day appointed, kill me. Another thing, if thus: if I do it not, though you should offer to kill me, I will not resist." [73] If it seems impossible that one person should have a right to kill and the second should have a right to resist, note that this is exactly the situation of the state of nature. When an individual promises to obey a sovereign, he removes himself from the state of nature. If he later rejects the sovereign's authority and disobeys the sovereign's commands, all bets are off; the individual and the sovereign are in the state of nature again vis-à-vis each other--what I called above the "specific state of nature."
It should be clear by now that Hobbesian rights do not imply correlative duties. The sovereign's right to punish does not imply that the individual subject has a duty to submit to punishment, and the individual's right to resist punishment does not imply the sovereign has a duty to refrain from punishing. In other words, these are not Hohfeldian "claim rights." [74] The rights to punish and to resist punishment bear some resemblance to what Hohfeld called privileges--legal options to act, unburdened by duties owed to others. But Hobbesian rights are not exactly Hohfeldian privileges, since Hohfeld understood privileges to imply a correlative "no-right" in others. [75] Indeed, Eleanor Curran has recently suggested that a close study of Hobbes reveals inadequacies in Hohfeld's framework. [76] Whatever we make of Hohfeld, the critical point here is that Hobbesian rights imply no correlative duties. They are instead "blameless libert[ies]." [77] The preeminent natural right, according to Hobbes, "is the liberty each man has, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life." [78] The sovereign's right to punish and the subject's right to resist are both manifestations of that natural right.
Even in the absence of right-duty correlations, there is a sense in which Hobbes's recognition of a right to resist punishment is related to his claim that penal power is not grounded on the consent of those who may face punishment. A desire for security or self-preservation provides the motivation to grant power to the sovereign in the first place, [79] and whatever else preservation of a person might require, it cannot require that person's destruction. This reasoning may seem to support at most a right to resist capital punishment, but Hobbes explicitly recognized a right to resist imprisonment and other non-capital punishments. Since "a man cannot lay down the right of resisting them, that assault him by force," no one can be understood to have abandoned or transferred the right to resist "wounds, and chains, and imprisonment." [80] He reasoned that there was "no benefit consequent" to the one who suffered these non-capital punishments, and one who allows himself to be physically restrained puts himself at the mercy of his captor. [81] Again, "[i]f the sovereign command a man (though justly condemned,) to kill, wound, or maim himself, or not to resist those that assault him . . . yet hath that man the liberty to disobey." [82]
To fully understand the right to resist, however, one must also understand its limits. Three caveats are important. First, the right to resist hardly amounts to an endorsement of criminal activity. Hobbes viewed crime as irrational action, produced by "some defect of the understanding or some error in reasoning." [83] He did not claim that every lawbreaker was insane, but did maintain that crime resulted from a miscalculation about the individual's own interests. Ex ante, self-preservation is best realized by obeying the sovereign's commands. It is only ex post, after the individual has already disobeyed, that self-preservation may require resistance to punishment. [84] Second, as I have already emphasized, the right to resist is not a legally enforceable claim, but rather a "blameless liberty." [85] Resistance to punishment is perfectly human and understandable--as George Kateb has put it, Hobbes seemed to wonder, "With what right, with what possible authority, could anyone require a fellow creature not to try to preserve itself?" [86] But no one is obliged to assist the resisting criminal. The sovereign is certainly not obliged to cease his attempts to punish. Third and finally, it is only the right to defend oneself from immediate threats that is inalienable. According to Hobbes, persons could and should give up the discretion to defend others from distant or immediate threats, including the threat of punishment. [87] Though I never authorize the sovereign to punish me, I can (and should, according to Hobbes) authorize the sovereign to punish you. [88]
C. Implications for Punishment (and Political) Theory
Hence punishment may be within the sovereign's broad authority, but from the criminal's perspective, it remains a violent threat to safety and freedom. On this account, punishment is regrettable but necessary; equally necessary is the right to resist. Some commentators have found this apparent contradiction-- the claim that the sovereign is authorized to punish and the simultaneous claim that punishment is violence that even guilty subjects have a right to resist-- to be fatal to Hobbes's political theory. [89] In one scholar's dramatic language, "The mighty Leviathan, King of the Proud, is still-born. . . . [T]here being no 'door,' nor any 'Right, or Authority of Punishing' to come through it, there is no sovereign, hence no commonwealth." [90] Arguably, if the right to resist punishment is inalienable, then Hobbes's "punishment dependent political theory is in trouble." [91] Beyond the apparent inconsistency, scholars find troubling the apparent equanimity with which Hobbes viewed the struggle between the punisher and the punished. [92]
In fact, Hobbes was not indifferent about the outcome of the conflict between the sovereign's right to punish and the criminal's right to resist. It is true that in relation to one another, the sovereign and the criminal each have a "blameless liberty" to use violence for self-preservation. But the sovereign's violence is not exactly equivalent to the resisting criminal's. In addition to the right to punish--the natural right to use violence--the sovereign also holds the authority to punish. [93] That is, the sovereign has been authorized by other subjects to punish on their behalf. The criminal himself has not authorized his own punishment, as indicated above, but other subjects have authorized the discretionary use of force employed by the sovereign to punish the disobedient subject. [94] It is possible that Hobbes did not see a moral distinction between the sovereign's successful punishment and the criminal's successful resistance, as morality had little relevance to Hobbes's state of nature. [95] But there is clearly an important political distinction between the punishing sovereign and the resisting criminal: the sovereign acts with political authority and for the benefit of other citizens, but the criminal acts for himself alone.
Perhaps we should view the coexistence of the right to punish and the right to resist as an indication of Hobbes's awareness that diverse human interests can be reconciled only imperfectly. Even with the best intentions, the sovereign will not in fact serve the interests of everyone he represents--or at any rate, some members of his constituency will believe him not to serve their interests, and they will disobey his commands. If I am one of the disobedient, it may be the case that societal preservation requires that I be jailed or put to death-- but it can never be the case that my own self-preservation requires my imprisonment or execution. [96] Hobbes made clear that when the sovereign has to choose between his own preservation (upon which depends the preservation of the society as a whole) and the preservation of an individual subject, the sovereign will and should sacrifice the subject. But he did not impose an obligation on the subject to go down quietly. This is what separates him from most contemporary liberal theorists, and what makes his theory so radical and potentially disruptive today: he did not believe that a consent-based theory of government could produce a duty to submit to punishment.
Hobbes's theory of punishment combines deep individualism and egalitarianism, which produce the right to resist, with a consequentialist concern for security and safety. [97] At times, he has been compared to retributivists, [98] and at times to utilitarians. [99] But his theory should not be confused with contemporary "hybrid theories" that seek to reconcile retributivism with utilitarianism. Hybrid theories draw upon multiple justifications of punishment to determine the appropriate distribution of penalties. A typical hybrid approach holds that moral desert specifies a range of permissible penalties, and utilitarian considerations should drive the selection of the appropriate penalty within that range. [100] Hobbes had little to say about the severity of punishments, and what he did say was explicitly consequentialist. [101] Desert plays no role in Hobbes's theory; indeed, he stated as a law of nature that "we are forbidden to inflict punishment with any other design, than for correction of the offender, or direction of others." [102]
More fundamentally, Hobbes's account of punishment is unusual in its modesty and its open acknowledgment of its own limitations. It does not claim that anyone consents to be on the receiving end of superior physical force. It does not claim to have transformed the exercise of such force into a cause for moral celebration or self-congratulation. It does not pretend that we punish prisoners for their benefit rather than our own. [103] It does not claim, as some retributive theories do, that when we incarcerate or execute prisoners, we act like God and "plant the flag of truth within the fortress of a rebel soul." [104] It does not claim that incarceration offers prisoners an education in virtue. [105] It does not claim, as some utilitarian theories do, that harm to the interests of discrete individuals may be made to disappear into aggregate social benefits. The Hobbesian theory of punishment does not promise that we can punish "without remainder"; nor does it claim that the right punishment restores the balance, sets the world right, and leaves no place for regret. [106] In the Hobbesian view, the need for physical force demonstrates a failure of persuasion and consent. Persuasion and consent will fail on occasion, and force will be necessary, but we are all better off when consent succeeds and subjects obey.
In Hobbes's theory, punishment is at best incompletely authorized and imperfectly legitimate. The punishing sovereign acts with authority, but only with the authorization of those subjects who are not themselves punished. In relation to the condemned, the sovereign can claim only the natural right to use violence, so punishment is never fully representative. There is always a trace of the violence of the state of nature--and the rule of the stronger--in physical punishment. These considerations did not lead Hobbes to reject the practice of punishment, and they are hardly reason for us to raze the prisons. But they create a less tidy account of punishment than what is promised by most contemporary theories. Punishment is a practice that leaves the hands of the punisher a bit dirty. [107] I suggest in the next Part that we must keep in mind the imperfect legitimacy of punishment if we are to treat criminals with respect.
[56]. Hobbes, supra note 18, at 117; Hobbes, Dialogue, supra note 46, at 140.
[57]. Hobbes, supra note 18, at 214.
[58]. Id.
[59]. See supra Part I.B.
[60]. Hobbes, supra note 18, at 214.
[61]. Id.
[62]. Id. at 10.
[63]. Hobbes did not use these names for various states of nature, but he clearly contemplated the possibility that subjects could return to a state of nature after an established political authority collapsed. Id. at 154 ("If a monarch shall relinquish the sovereignty, both for himself, and his heirs; his subjects return to the absolute liberty of nature ....").
[64]. Again, these are not Hobbes's phrases. But one may find support for this conceptualization in Hobbes's discussion of criminals who, having resisted the sovereign and drawn the threat of punishment, may band together to defend themselves collectively against the still-existing sovereign. The sovereign remains a sovereign for his law-abiding subjects, but vis-à-vis the band of criminals the sovereign is simply an aggressor in a state of nature. See id. at 152.
[65]. Even with this elaboration of the states of nature, the claim that the right to punish is a manifestation of a natural right to self-preservation is perplexing. I noted above that Hobbes seems to view the fact of mortality, and the desire for self-preservation, to imply in humans a right to self-preservation. But it is not clear why sovereigns--who are not obviously mortal beings--would have a similar right.
[66]. I do not mean to suggest that every crime is a profound political statement. I mean simply that the criminal has put himself and the sovereign into a conflict with no mutually recognized third-party adjudicator.
[67]. Hobbes, supra note 18, at 120.
[68]. See supra Part I.B.
[69]. For a similar reading, and a detailed argument for the inalienability of the right to resist force, see Yves-Charles Zarka, Hobbes and the Right to Punish, in Hobbes--The Amsterdam Debate 71 (Hans Blom ed., 2001).
[70]. Of course, Hobbes does not allow the subject to say to the sovereign, "I think your national security policy is lunacy and surely inadequate to protect me, so I am going to resist you violently," or, "These tax rates are killing me; I am going to rebel." As explained above, we can distinguish between a strategy of long-term self-preservation on one hand and preservation of the body from immediate threats on the other hand. We give the sovereign complete authority over the former; we are not allowed to second-guess his strategy. Since protection from immediate threats is necessary to long-term preservation, we expect the sovereign to protect us from immediate threats as well. But if he fails to do so, we are free to do our best to ensure our own immediate self-preservation.
[71]. Hobbes, supra note 18, at 98.
[72]. Id. at 152.
[73]. Hobbes, De Cive, or The Citizen 39-40 (Sterling P. Lamprecht ed., 1949) (1651). Two passages in Leviathan sometimes lead commentators to argue that Hobbesian subjects do consent to be punished. In rejecting a general right of revolution, Hobbes claimed that "if he that attempts to depose his sovereign be killed, or punished by him for such attempt, he is author of his own punishment, as being by the institution, author of all his sovereign shall do." Hobbes, supra note 18, at 122. Hobbes later expanded this argument: "[B]ecause every subject is by this institution author of all the actions, and judgments of the sovereign instituted; it follows, that whatsoever [the sovereign] does, it can be no injury to any of his subjects." Id. at 124. The second of these passages is easy to reconcile with the right to resist punishment if we remember that Hobbes defines "injury" as a breach of contract, see id. at 104, and it is clear that the sovereign breaches no contract in imposing punishment. Punishment damages the subject, see id. at 120, but it does not injure him. The discussion of efforts to depose a sovereign is more challenging, but it is clear from other passages that the right to resist extends even to punishment for treason or rebellion. See id. at 152.
[74]. See Hohfeld, supra note 8, at 717 (defining claim rights as those with correlative duties); see also Claire Finkelstein, A Puzzle About Hobbes on Self-Defense, 82 Pac. Phil. Q. 332, 358 (2001) ("Hobbes's right to self-defense is a mere liberty right, rather than a full-fledged claim right. That is, it is a right that places no one under a correlative duty of non-interference.").
[75]. Hohfeld, supra note 8, at 710, 747-50.
[76]. See Eleanor Curran, Lost in Translation: Some Problems with a Hohfeldian Analysis of Hobbesian Rights, 19 Hobbes Stud. 58 (2006).
[77]. "[T]hat 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." Hobbes, Elements of Law, supra note 24, at 71.
[78]. Hobbes, supra note 18, at 91.
[79]. Id. at 93.
[80]. Id.
[81]. Id. Claire Finkelstein has argued that "surely it would sometimes be beneficial for me to lay down the right to resist him who wounds me, puts me in chains or imprisons me," and suggests that it might sometimes be worthwhile to sell one's right to resist. Finkelstein, supra note 74, at 338-39. Whatever notion of self-interest motivates Finkelstein's claim, it is not Hobbes's. Hobbes would probably acknowledge that it may sometimes serve a person's interest to decline to resist. But to renounce permanently the right to resist is tantamount to saying, "I am not and never will be the best agent of my own preservation; I bargain that my interests in preservation are best served by granting you complete discretion over my continued existence." Hobbes would see such a bargain as deeply irrational, and I am inclined to agree. It should be noted that according to Hobbes, rational human beings care not simply about being preserved, but about self-preservation. They are agents of their own security, not mere passive recipients of protective services.
[82]. Hobbes, supra note 18, at 151.
[83]. Id. at 202.
[84]. But Hobbes would acknowledge that depending on the sovereign's capacity to apprehend the criminal and the specific nature of the threatened punishment, it may sometimes be more rational to submit than to resist. See infra Conclusion.
[85]. See supra note 77. The right to resist punishment may be, as David Gauthier has described the right to self-defense, "beyond the law." David Gauthier, Self-Defense and the Requirement of Imminence: Comments On George Fletcher's Domination in the Theory of Justification and Excuse, 57 U. Pitt. L. Rev. 615, 616 (1996). "A legal system which failed to recognize the right, which failed to recognize the justification each person has to act in her own protection in the light of imminent danger, could have no valid claim on the allegiance or obedience of those it sought to bring within its sway." Id.
[86]. Kateb, supra note 19, at 385.
[87]. Hobbes, supra note 18, at 152 ("To resist the sword of the commonwealth, in defense of another man, guilty, or innocent, no man has liberty.") (emphasis added). An apparent exception to this rule is the circumstance in which several criminals, all facing punishment, join forces and resist the sovereign collectively.
[88]. See infra note 94 and accompanying text.
[89]. See, e.g., Jean Hampton, Hobbes and the Social Contract Tradition, 197-207 (1986). Other scholars, such as Deborah Baumgold, are less troubled by the implications of the right to resist, because they conclude that resistance will be ineffective: the sovereign's superior power is almost certain to prevail. Deborah Baumgold, Hobbes's Political Theory 29 (1988) (claiming that Hobbes grants the right to resist only because it is "politically irrelevant"). Remember, the right to resist is only a "blameless liberty," not a legally enforceable claim. Hobbes does not imagine that any government entity will honor and enforce the individual's right to resist punishment. That would be nonsensical. Rather, the right to resist punishment simply means that we should not be surprised if the condemned man fights back, nor can we say that he is wrong to do so.
[90]. Thomas S. Schrock, The Rights to Punish and Resist Punishment in Hobbes's Leviathan, 44 Pol. Res. Q. 853, 886-87 (1991).
[91]. Id. at 854. Leo Strauss also notes the tension between a right to punish and a right to resist, but does not seem to view it as fatal to Hobbes's theory. Strauss, supra note 40, at 197.
[92]. Thomas Schrock contrasts the resisting criminal to Odysseus, who ordered his men to tie him to the mast and yet still resisted the bonds: "If Odysseus had broken the bonds and gone straightway to the Sirens, Homer would have recorded a moral loss. By contrast, if [the person to be punished] successfully resists and escapes, Hobbes finds no moral loss, even if the defendant is guilty of the crime for which he had beforehand authorized the sovereign to 'Kill me."' Schrock, supra note 90, at 878.
[93]. It is clear that "right" and "authority" are not always interchangeable in Hobbes's theory. At least some rights are natural, but all authority is artificial. Every person has rights in the state of nature, regardless of what other persons do, say, or think. But persons--note the plural--must create relationships of authority. As Hanna Pitkin points out, the person who attempts to establish authority all by himself is, for Hobbes, a fraud. See Hanna Fenichel Pitkin, The Concept of Representation 23 (1972); see also Hobbes, supra note 18, at 113. Hobbes himself seemed to finesse this point by asking, "[B]y what door the right or authority of punishing in any case came in." Id. at 214.
[94]. Cf. Gauthier, supra note 88, at 148 ("Each man authorizes, not his own punishment, but the punishment of every other man. The sovereign, in punishing one particular individual, does not act on the basis of his authorization from that individual, but on the basis of his authorization from all other individuals.").
[95]. Hobbes argued that it did not make sense to speak in moral terms--of right and wrong, or good and bad--until there was a commonly recognized authority to settle moral disagreements. Many contemporary theorists follow this line of reasoning to defend democratic decision-making procedures. See, e.g., Jeremy Waldron, Law and Disagreement (1999).
[96]. I leave aside civil commitment for the mentally incapacitated.
[97]. The important individualist and egalitarian claims of Hobbes's account are neglected in a recent discussion by Corey Brettschneider. According to Brettschneider, Hobbes thought it unnecessary to justify punishment to the criminal; criminals were "enemies" of society and as such, "unworthy" of arguments justifying the use of force against them. Corey Brettschneider, The Rights of the Guilty: Punishment and Political Legitimacy, 35 Pol. Theory 175, 176, 179 (2007). But Hobbes did not argue that justifying punishment to the criminal is unnecessary; rather, his claim was that this task is impossible. I do not think Hobbes was indifferent to the fact that criminals are subject to violent responses from the state. He simply refused to assuage lingering discomfort about this violence by pretending that the criminal has consented to it.
[98]. See Alan Norrie, Thomas Hobbes and the Philosophy of Punishment, 3 L. & Phil. 299, 314 (1984) ("It is because of Hobbes's contractualist framework that his work exhibits a retributivist tendency.").
[99]. See Cattaneo, supra note 48, at 289 ("Hobbes's conception contains in essence the basic principles of a utilitarian theory of punishment ....").
[100]. See, e.g., Norval Morris, Desert as a Limiting Principle, in Principled Sentencing 201 (Andrew von Hirsch & Andrew Ashworth eds., 1992); Robinson, supra note 11, at 38-39.
[101]. Hobbes claimed that punishments must be sufficiently severe to deter illegal action: "If the harm inflicted be less than the benefit, or contentment that naturally follows from the crime committed, that harm is not within the definition [of punishment] and is rather the price, or redemption ... because it is of the nature of punishment, to have for end, the disposing of men to obey the law ...." Hobbes, supra note 18, at 215.
[102]. Id. at 106; see also id. at 240 ("[T]he end of punishment is not revenge, and discharge of choler; but correction, either of the offender, or of others by his example....").
[103]. Hobbes might have enjoyed Cool Hand Luke, the film in which Luke Jackson, played by Paul Newman, repeatedly resists punishment by escaping a rural prison. When Luke is captured and returned to the prison after one escape attempt, a prison captain has him shackled and advises him never to stop listening to the sound of his chains, "because they gonna remind you of what I've been sayin'--for your own good." Luke replies, "I wish you'd stop being so good to me, Cap'n." Cool Hand Luke (Warner Brothers 1967).
[104]. The phrase comes from C.S. Lewis, who explains that God inflicts pain on humans not to be cruel, but to awaken them to their sins and to the truth. C.S. Lewis, The Problem of Pain 95 (Macmillian Co. 1965) (1940). Retributive theorists have adopted this phrase. See Jean Hampton, An Expressive Theory of Retribution, in Retributivism and Its Critics 1 (Wesley Cragg ed., 1992); Robert Nozick, Philosophical Explanations 718 n.80 (1981).
[105]. "[T]he virtue ethics theory of punishment takes the principal justifying purpose of the criminal law to be the inculcation of virtue or habituation to virtue." Kyron Huigens, Street Crime, Corporate Crime, and Theories of Punishment: A Response to Brown, 37 Wake Forest L. Rev. 1, 11 (2002) (footnote omitted).
[106]. The philosopher Bernard Williams argued that many situations present us with moral dilemmas, in which it is not possible to satisfy every morally weighty claim. He used the phrase "remainders" to describe the "moral oughts" that remain unsatisfied. See Bernard Williams, Problems of the Self 179 (1973). These remainders are cause for regret--which is not to say that we would act differently if faced with the dilemma again. "Regret necessarily involves a wish that things had been otherwise, for instance that one had not had to act the way one did. But it does not necessarily involve the wish, all things taken together, that one had acted otherwise." Bernard Williams, Moral Luck: Philosophical Papers 1973-1980 31 (1981). For a somewhat broader understanding of the term "moral remainder," see Bonnie Honig, Political Theory and the Displacement of Politics 213 n.1 (1993).
[107]. See Michael Walzer, Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Aff. 160 (1973).
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