THE RIGHT TO PUNISH

THE RIGHT TO PUNISH IN

THOMAS HOBBES’S LEVIATHAN

The habitual reading of the Hobbesian foundation of the State, with more or less nuances, reads as follows: the constitution of sovereignty originates in a pact "moved" by reciprocal fear or by fear of those who recognize themselves as sovereign.

Such an agreement consists in accepting the composition of a power that effects the collectivization of the golden rule. "To be content with so much freedom in his relationship with other men, as he would allow others in his dealings with him." In correlation, by "authorization" is granted to the person holding the common representation "have the use" of the "greatest power of human powers" the power of the civil person or Leviathan. Obviously, while for Hobbes the right is not a "property" but a "freedom", its transfer does not result in alienation but in the "renunciation" of its exercise. However, when transferring individual authority -i.e. the right over acts and words - to the representative and, therefore, "authorize" . allow him to act the will and judgments of those he represents - this "comes to possess and exert so much power and so much force" that all wills, out of terror or fear of that power, conform to their own.

In this article I want to point out how much more Hobbes says about the origin of the "essence of the State" and its unity. Following his argument through a series of inflections, it is observed that the brief description of the pact formula does not exhaust by itself the central political problem: the relationship between obligation and resistance. More concretely, Hobbes realizes two fundamental precisions: it recognizes the reservations to the pact that are derived from the rights that can not be transferred "neither by means of words nor by another sign"; and it points out the difference between "punishment" and "hostility" that enables one to assume the politicity of the question for the just.

In this article we study the definition of the "right to punishment" incorporated into Hobbesian political theory; I affirm that the definition of "punishment" makes explicit the conflict that goes through the composition of the sovereign power and, consequently, the very constitution of the people. That is, in the tension that the sovereign will finds when personifying the "authority" of the "authors" and defining what a crime is, it is expressed, as in no other way, the artificial and unstable political link that demarcates the border between the town and its enemies. This finding allows Hobbes to infer that, despite the necessary absolute character of sovereignty, the political nature of the functions of the representative entails the challenge of conceiving what is just, considering, in turn, the power relations within the State and also of the particular time in which those definitions of the just are formulated.

Now, in defining the "right to punishment", Hobbes makes a double inflection that I seek to highlight. On the one hand, it identifies in the active presence of the "multitude" a constitutive limit of the sovereign will itself. On the other, it elaborates principles that, although considered "natural", lack a meta-ethical anchoring. In this way, Hobbes presents a sovereign "duty" without weakening the central premise of his contractualism, according to which the sovereign does not agree. But, at the same time, without subordinating politics to morality.

But we also approach this analysis from the various edges it presents. In section II, the politicity of the fair question is derived from the difference between "punishment" and "hostility". In section III, it is argued in favor of a reading of Leviathan that contemplates the centrality of the will that Hobbes locates after the right reason and, in correlation, warns the permanent reconstitution of the conditions of possibility of the order of the State.

In the definition of the right to punishment that appears at the beginning of chapter 28 of Leviatán, it is made explicit that this "right" is not received by means of a pact but is "founded" on the "right to everything" of each one. In this way, Hobbes seems to offer the sovereign the exercise of a right "as absolutely as that which was given in the condition of mere nature and war of each against his neighbor." Any normative symmetry between the sovereign and the subjects is thus apparently resolved after the latter's renunciation of exercising their own right to everything. In other words, by authorizing the use of the "greatest power of human powers", what Noel Malcolm considers a legal conflict between overlapping individual rights is actually remedied.

However, it is necessary to emphasize that in the exercise of the right to punishment, the interdependence of life in society described by Hobbes becomes evident and, consequently, the need to permanently reconstitute the foundation of the State. That is, by differentiating the punishment from hostility it becomes clear that the individual or the sovereign are not, according to Hobbes, the "first" cause of their actions and, much less, the "sufficient cause" of those. From which follows the impossibility of relegating the foundation of sovereignty to a singular and finite event occurred in the past or an unsolvable alternation between order and anarchy. On the contrary, I point out that the Hobbes Leviathan figure denotes practices of conferring or taking away honor that constitute a complex symbolic framework in which power is not "achieved" or "appropriated", but rather "acts".

The understanding of power as acting implies that it derives from the accidents of the bodies of the "agent" and the "patient". The Hobbesian subjects are, to use an expression of Judith Butler, "effect of an earlier power". The commitment to order is based on the ability of the power to create a second nature that stabilizes the avatars of the movement. But Hobbes, like Butler, warns that the power of the subjects makes them "the continued condition of possibility to remain a subject". In this way, just as the search for power after power assures the individual the capacity to act in the future, the constant recomposition of this symbolic complex guarantees to those who occupy the "seat of sovereignty" to retain the capacity to "produce" in the future the same effect: obedience.

In short, in the definition of punishment it is evident that the sovereign, like the solitary Hobbesian man, is not alone and that, therefore, he acts only on the condition of attending to the social process in which he effectively exercises his power.

In order to advance this argument, I consider that the similarity between the prescriptions that individual and sovereign find in Leviathan should be noted. To the man in the state of nature, Hobbes advises him to use prospective lenses to see the abyss that separates frivolous happiness from individual preservation. The chain of reasoning that is linked in Leviathan (especially between chapters 11 to 15) tries to show that when looking to the future it must be recognized that the satisfaction of humanity's prime aspiration (preserving life) depends on the quality of the interactions with the other. That is, it depends on "lifestyles" compatible or conducive to peace. For this Hobbes proposes to correctly identify the "passionate thoughts" that will direct and govern the mental discourse if you want to achieve "peace as a means of conservation for men in multitude".

This same interdependence does not disappear in the exercise of the coercive power of the sovereign. Although Hobbes argues that the "right to everything" of the natural person of the representative receives from the agreement the authority to exercise his freedom alone, does not fail to mention that in the States that right is deployed with a view to the preservation of "all". It can be inferred, then, that Hobbesian political science distinguishes the personal interest of the representative sovereign and the political body. It even points out the "duty" to make them coincide so that they can not distinguish between them. Therefore, while the private "hostility" of man in the state of nature or of the sovereign does not require any foundation beyond the individual will, the violence of the sovereign only becomes "punishment" when it is clothed with a prior conviction, collective authorization; exemplary intention: and, finally, there is a perception of equity in its administration to the various strata of the people.

This specificity of the "right to punishment" allows one to reject a Leviathan reading according to which the resolution of the conflict between the rights of the subjects and the sovereign is based on the celebration of the covenant or coercion that substantiates the obligation. However, I would also like to highlight two central aspects of my argument. First, the "requirements" of legality that determine the presence of "punishment" do not limit power through the pact.12 On the contrary, the Hobbesian sovereign, by demanding something "by virtue of his power" and not a positive law, invalidates without injustice the lawsuits that demand the repair of the positive right that has been violated. Second, the mentioned legality of the "right to punishment" - a necessary indicator of the shift from the individual to the public - does not expel private hostility from the sphere of law. On the contrary, it survives "captured" by the sovereign as a condition of possibility of the validity of the agreement that enables the use of the categories of justice in the world.

CONCLUSION

It was said that the sovereign is the person who holds the power of the State. He has the right to act by representing his subjects, in ways that they must consider what he has done as if they had done it themselves. Now, the sovereign is the one who has that power so necessary for the preservation of social peace as is the right to punish. What is the foundation of that right? Hobbes can not affirm, without more, that the sovereign has the right to punish a subject because he has given it to him: that right can not be granted. The subject, at the moment of being punished, can not consider the order to punish him as coming from himself: the necessary object of all human action is the proper good. And yet, the sovereign must have the right to punish: without such a right, the creation of the State would be useless.

The foundation of the right to punish the sovereign is none other than the same right to everything he had in the state of nature. In the words of Hobbes himself: "I have also shown that, before, before the Institution of the Republic, every man had a right to anything, and to do whatever he deemed necessary for his own preservation, subjugate, wound or kill any a man for that purpose, and this is the foundation of that right to punish that is exercised in every republic, because the subjects did not give such a right to the sovereign, but only by renouncing his, they strengthened him to use his, such as he considered it necessary, for the preservation of all of them: so that it was not given, but left, and he alone, and (excepting the limits imposed by the natural law) as complete, as in the condition of mere nature, and of each one's war against his neighbor ". Thus, the right to everything from the state of nature becomes, in the case of the sovereign, the right to punish. In the state of nature there is no punishment; there can be retribution of evil for evil, but not punishment. The right to punish arises with the State: it is a way of the right to all of the state of nature: the way it acquires in the sovereign of a political community.

But the sovereign not only has the right to punish: it also has the duty to do so. And such a duty is a moral duty. In effect: the sovereign is subject to moral laws. That the subjects can not question their orders does not imply that they can be arbitrary: the sovereign is always subject to the laws of nature, even when no subject can discuss whether he has complied with the requirements of these or not.

Bye…..

Omar Colmenares Trujillo.