In a state ruled by Hobbes’S sovereign, we might expect the kind of justice on display in a dystopian novel. Would violating the smallest of laws for any reason whatsoever lead to immediate execution, simply because the sovereign says so? And yet, what we find in today’s lengthy section is that Hobbes expects nothing of the sort. In fact while we may not agree with all of his pronouncements about the law, justice, punishment, or reward, we can at least say that many of them are quite rational, humane, and firmly grounded in common sense. The key passage seems to be this:
From these different sources of crimes [reason and passion] it appears already, that all crimes are not (as the Stoics of old time maintained) of the same allay. There is place, not only for Excuse, by which that which seemed a crime is proved to be none at all, but also for Extenuation, by which the crime that seemed great is made less. For though all crimes do equally deserve the name of injustice, as all deviation from a straight line is equally crookedness, which the Stoics rightly observed, yet it does not follow that all crimes are equally unjust, no more than that all crooked lines are equally crooked, which the Stoics, not observing, held it as great a crime to kill a hen, against the law, as to kill one’s father. (XXVII.21)
This is the heart of Hobbes’s approach to justice relative to the sovereign and the commonwealth and is why he delves so much into the motivation, knowledge, and results of breaking or obeying the laws. Both external circumstances and internal circumstances must be taken into account when judging guilt, as must the state of mind of the accused when the crime was being committed. The nature and gravity of the crime itself must likewise be considered. (Treason versus murder versus petty theft, for example.) Only when all of this is taken together can guilt be determined and punishment be applied. And though I am not an attorney, that all sounds like pretty decent jurisprudence to me.
We won’t go into detail through these chapters since there is more material here than can reasonably be covered in a blog post. Instead, I’ll highlight a handful of points that jumped out at me:
1) Despite dipping his toe into the theological discussions of sin of his time (mostly to refute the Calvinist view of total depravity—or the idea that every part of the human being is touched by sin in some way, however small), by and large Hobbes tries to stick to “crime” in the civil sense of the word. That is, “…the civil law ceasing, crimes cease… when the sovereign power ceaseth, crime also ceaseth” (XXVII.3). Hobbes only wants to think about external actions and the thoughts that generate them. If we build a kingdom in our minds where we are supervillains ruling a criminal empire but externally live normal lives of regular obedience to the laws of the state, whatever that may mean for our relationship to God, as far as Hobbes is concerned we are okay in the eyes of the commonwealth.
2) When judging someone accused of a crime, motivations must be accounted for. Sometimes we commit crimes because we have made a rational error and sometimes because great passions drive us to do so. This distinction is an interesting one—particularly given his earlier discussion of the relationship between reason and passion. The long and the short of it is that Hobbes ends up with a sort-of hierarchy of crime, where sometimes the criminal has a total pass because he could not reasonably have known that his action was a crime; sometimes he should get a lighter sentence because of a sudden overwhelming passion or an error in reasoning (we might think of the effects of “fighting words” or making a mathematical mistake on your taxes); and sometimes the criminal should have the book thrown at him when he knew the law, used his reason to break it, and passionately spent much time in planning and executing his crime. Hobbes’s summary of how this should work is as follows:
The degrees of crime are taken on divers scales, and measured, first, by the malignity of the source of cause; secondly by the contagion of the example; thirdly, by the mischief of the effect; and fourthly, by the concurrence of times, places, and persons. (XXVII.29)
While I might reverse the order of two and three, it does seem that Hobbes is asking us to consider all the right factors.
3) The accused should not be judged in isolation. Both the effect of the crime on society must be accounted for, as well as the possibility that the accused himself was under the influence of a charlatan, an eloquent scoundrel, or a heretic. In such cases the punishment might be more or less and should be guided by precedent (XXVII.8).
4) We need to use the word “depeculation” more.
5) Hobbes has to dance a little bit to give the sovereign the “right” to punish in the first place. If the one thing we can never give up is our right of self-defense, it would seem to follow that when the police show up to arrest us for murder with the end result that we will be executed, we should be within our rights under the law of nature to lock the doors and shoot it out. The sum of Hobbes’s eleven-point defense of the power of the sovereign to punish seems to be this:
For in denying subjection he [the criminal] denies such punishment as by the law hath been ordained, and therefore suffers as an enemy of the commonwealth, that is, according to the will of the representatives. For the punishments set down in the law are to subjects, not to enemies; such as are they, that having been by their own act subjects, deliberately revolting, deny the sovereign power. (XXVIII.13)
In other words, criminals have thrown themselves back into the state of nature and so the sovereign has every right to do whatever he wants to these enemies of the state with all the power at his disposal. In a sense, the specific warnings of what will happen to lawbreakers are informational only for subjects at the time (“set down in the law are to subjects”), though of course the sovereign has a vested interest in being seen to keep his word. This is why the state can technically do whatever it wants to individuals who are in the borders of the state but not a part of the covenant (XXVIII.23). Again, there may be good policy reasons not to do so in most circumstances, but if one must brutalize illegal immigrants, missionaries, or any other category of possible resident aliens who have somehow dodged the covenant there is no law forbidding it (this would not include those there legally such as tourists, students, diplomats, or businessmen, who have agreed to abide by the covenant).
6) I’ve mentioned in an earlier post that the idea of state “rewards” has largely gone by the wayside in modern America. I do wonder if this is because we’ve ditched nobility as a formal class? Hobbes thinks that together with punishment, rewards “are, as it were, the nerves and tendons that move the limbs and joints of a commonwealth” (XXVIII.26). While I’m not calling for the reestablishment of the aristocracy, I do wonder if we have limited our own motion by not having some formal kind of public award system—or would that bring us too close to the “bread” part of the “bread and games” that eventually broke the Roman citizen body?
This discussion of justice, according to Hobbes, is the point where we need to shift our focus from the state in its prime of life to the state in decay and collapse. We will pick up with this topic in the next post.
Coyle Neal is Assistant Professor of Political Science at Southwest Baptist University in Bolivar, Missouri.