In the Leviathan, Thomas Hobbes discusses how a ruler and his or her subjects should enter into a covenant in order to form the ideal Commonwealth. Hobbes believes that people desire to enter a Commonwealth in order to procure certain safety in preserving his or her life. In II.xxviii.16-17 of Leviathan, Hobbes addresses corporal and capital punishment unto subjects. The infliction of any corporal and/or capital punishment is in direct conflict with the grounds on which a Hobbesian Commonwealth arises.
In the selected excerpt of Hobbes’ Leviathan, (II.xxvii.16-17), Hobbes addresses the way in which specific (corporal and capital) punishments are to be exacted in the ideal Commonwealth. To be clear, a Leviathan, whom is an autocratic monarch, would rule this Commonwealth. Part 16 states that “corporal punishment is that which is inflicted on the body directly, and according to the intention of him that inflicteth it, such as are stripes, or wounds, or deprivation of such pleasures of the body as were before lawfully enjoyed” (206, Hobbes). This is the widely accepted definition of corporal punishment, meaning any sort of infliction of pain or deprivation of bodily necessities.
Capital punishment is also the typically accepted definition of the term, “the infliction of death, and that either simply or with torment” (206, Hobbes). Not only is Hobbes allowing for humane punishment by death inflicted on a subject, but also inhumane. I use humane in a very loose sense, only meaning without any unnecessary pain.
The issue of corporal and capital punishment is a problem that any political entity will encounter when establishing its laws. In Hobbes’ Commonwealth, however, the proposal of these types of punishment is contradictory to its essential foundation. Hobbes defines punishment as “an evil inflicted by public authority on him that hath done or omitted that which is judged by the same authority to be a transgression of the law, to the end that the will of men may thereby be disposed to obedience” (203, Hobbes). In short, punishment serves the purpose to set an example for other subjects of the Leviathan, not to serve as a justice system for those who committed the crime.
This definition Hobbes gives us comes with certain implications. In order to adhere to this meaning of punishment, an absurd amount of effort needs to be put into crime and punishment in the ideal Commonwealth. By Hobbes’ logic, every single punishment for a crime would need to be broadcasted to every single citizen. When a subject is put to death, every single subject of the Leviathan must view the death, as well as knowing why he or she is receiving such punishment. That is the only way punishment as described would succeed. Thus, a man who is sentenced to death, but the subjects of the Commonwealth do not know of this conviction and death, that death is completely pointless. The point of any punishment in the Commonwealth is to set an example. If no one sees the example, it serves no purpose.
Not only are these forms of punishment (corporal and capital) rendered pointless by the Hobbes’ reasoning if they are not used as example, but they also directly contradict the very foundation of the Commonwealth. The way in which a Commonwealth and Leviathan arise is from the Leviathan naturally rising and seizing power. After a Leviathan comes to power, he or she must form a social contract with the subjects. That is not to say that the Leviathan itself is giving anything up, but the subjects are. In this contract each subject gives up his or her right to everything (as Hobbes believe is the true state of nature) except for anything contradicting the Law of Nature. For Hobbes, that Law of Nature is that no person can do anything that is destructive to him or her, or what takes away from preserving themselves. (79, Hobbes)
By entering into a contract with the Leviathan, the citizens of the Commonwealth are giving up their right to everything, meaning the right to take whatever they desire and do whatever they desire also. Once subjects have entered into the contract with the Leviathan, however, they give up that right in exchange for peace of mind rather than a constant state of war (“war” meaning any time of fear for ones own self-preservation). This is the true reason for the foundation of a Leviathan and Commonwealth. Humans, according to Hobbes, are mechanical beings who work from logistical calculations. We work from appetites and aversions. An appetite being that which we desire, and an aversion is that which we avoid. Human’s greatest aversion is death.
This eminent aversion to death is what necessitates a Leviathan. In Hobbes view, people will voluntarily surrender their ultimate freedom to the world in order to live free from the fear of death. Thus, the Leviathan and his or her subjects enter into a contract in which the only freedom that is not claimed is that of self-preservation.
If this contract is as clear and comprehensible as it should be, the subjects of the Leviathan should then know what they are agreeing to. In this contract, whether it is written or verbal, the idea of punishment should be of the utmost importance, as it is one of the only aspects that could possibly compromise their only freedom under the Leviathan. For the point of this paper, let us say that a hypothetical written contract reads just as the Leviathan reads, namely the definition of punishment, as well as the allowance of corporal and capital punishment. The subjects should immediately be averse to agreeing to such a thing. It is contradictory to agree to a contract that has a clause built into it that goes against the only reason you are agreeing to it in the first place.
The only way it seems that a subject would, or should, agree to such a contract is if punishment were serving a purpose for the criminal. For example, if a subject were to kill their neighbor, and that subject was then sentenced to death for the crime, one would hope that the sentiments behind such a punishment is to honor the victim of the crime as well as teach the criminal that what he or she did was wrong. If that were the definition of punishment, then corporal and capital punishment would not raise so many problems for the social contract Hobbes proposes. If subjects of the Leviathan were agreeing to the sort of punishment just explained, then giving up a degree of their right to self-preservation might be justified.
That is not the definition of punishment Hobbes gives us, however. The punishment the Leviathan would be exacting is to set an example, not to show that his authority and power is just. Not only does this form of punishment greatly contradict the grounds on which the Commonwealth is built, but it also creates an immense problem with the figure of the Leviathan itself. The purpose of entering into a contract under a Leviathan is to serve as a safeguard against harm that could come from an utterly free world. The fundamental reason behind the Commonwealth is in order to protect the most sacred thing humans possess: their lives. By inflicting pain or death upon someone, that is stripping them of their only right, and violating the very reason they entered the social contract to begin with.
It seems that there is a simple solution to this problem. If Hobbes, therefore the Leviathan, would merely change the purpose of punishment in the Commonwealth, this concern of self-preservation could perhaps be dissolved. Not only does the possibility of being used to set an example awaken a fear in the Leviathan’s subjects, but also suspicions of an unjust ruler. One would begin to wonder if the Leviathan were wrongly using people to set an example, which would cause people to question if the Leviathan were doing what is truly best for the Commonwealth and its subjects.
The idea of a punishment system in a monarchy will always encounter problems. However, many problems with the punishment system necessarily follow the elementary definition on which punishment is built off of in the Leviathan. The justification of punishment in the Commonwealth that is supposedly protecting self-preservation, the only freedom the subjects have, very much falls short. The use of corporal and capital punishment directly contradicts the grounds on which the contract of the Commonwealth arises.
Hobbes, Thomas. Leviathan: With Selected Variants from the Latin Edition of 1668. Ed. E. M. Curley. Indianapolis: Hackett Pub., 1994. Print.