Thomas Hobbes’s Theory of Crime and Punishment Signy Thora Gutnick Allen Submitted in partial fulfilment of the requirements of the Degree of Doctor of Philosophy School of History, Queen Mary University of London 2016 1 I, Signy Thora Gutnick Allen, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. Signature: Signy Thora Gutnick Allen Date: March 22 2016 2 Abstract This thesis argues that over the course of his political writings Thomas Hobbes developed a complex yet coherent theory of crime and punishment. His account was designed not only as an element of his theory of the state, but also in response to a set of early modern debates concerning the nature of punishment in contractarian political thought. This argument challenges the claims, frequently advanced in the critical literature, that Hobbes was uninterested in the problem of crime, that his account fails to provide his sovereign with a right to punish at all, or that he considered punishment to be a non-civil activity located in a version of the state of nature. I claim by contrast that Hobbes’s accounts of the origins and location of the right to punish, of the purpose of punishment and of the nature of crime demonstrate that Hobbesian punishment is characterised by retained citizenship, due process and legal rights. Hobbes’s theory of political obligation draws a clear distinction between the punishment of criminals within the state, and the treatment of rebels and enemies outside it. As a result Hobbes is able to reconcile his commitment to subjects’ inalienable right to self-defence with a sovereign right to punish criminals. In addition to providing an account of this foundational aspect of Hobbes’s political theory, the thesis uses Hobbes’s discussion of crime to shed light on a number of related aspects of his work. In particular it argues that, once we have properly understood his criminology, we have strong reasons to reject any suggestion that he defends a right of rebellion. 3 Table of Contents Acknowledgements .................................................................................................... 6 Conventions ................................................................................................................ 8 Introduction ................................................................................................................ 9 Chapter 1: Hobbes’s Definitions of Crime and Punishment ............................... 19 Introduction: The Necessity of Definition ............................................................................. 19 Hobbes’s Definition of Crime ................................................................................................ 21 Excuses and the Jurisdiction of the Law ................................................................................ 25 Hobbes’s Definition of Civil Punishment .............................................................................. 33 Punishments as Permissions: Hobbes’s Warning to Sovereigns ........................................... 38 Natural and Divine Punishment ............................................................................................. 42 Chapter 2: Hobbes’s Account of the Right to Punish ........................................... 47 Introduction: The Paradoxical Origins of Punishment .......................................................... 47 Alternative Models of Punishment: Pre-Social and Pre-Political Accounts .......................... 52 Punishment and Resistance Before Authorisation: The Accounts in the Elements of Law and De Cive ................................................................................................................................... 58 The Account of the Right to Punish in Leviathan .................................................................. 63 Representation, Punishment and Resistance .......................................................................... 70 The Role of Authorisation in Leviathan’s Account of Punishment ....................................... 78 Chapter 3: The Hobbesian Criminal ..................................................................... 94 Introduction: Locating the Hobbesian Criminal .................................................................... 94 The Roots of Criminality: Passions and Deliberation ............................................................ 98 Dispositions and the Criminal Passions ............................................................................... 101 Defects of Reasoning and Understanding ............................................................................ 118 The Foolish Unjust Man ...................................................................................................... 125 Passion, Disposition and Criminal Responsibility ............................................................... 141 Chapter 4: Hobbes on the Purpose of Punishment ............................................. 149 Introduction: The Necessity of Punishment ......................................................................... 149 A Forward-Looking Theory of Punishment ........................................................................ 151 Punishment and the Deterred Will ....................................................................................... 172 The Role of Education: Complementing Prudence with Science ........................................ 181 Classifying Hobbesian Punishment ..................................................................................... 188 Chapter 5: Rebels and Enemies: Crimes Beyond Punishment .......................... 194 Introduction: Individuals Outside the Commonwealth ........................................................ 194 Distinguishing Enemies and Traitors ................................................................................... 197 The Hobbesian Response: Conflating Traitors and Enemies .............................................. 201 Hobbes’s Rejection of the Ius Gentium ............................................................................... 207 Chapter 6: Criminality and the Right to Rebel ................................................... 227 Introduction: Rebellion and the Resisting Criminal ............................................................ 227 Early Modern Resistance Theories 1: Individual Rights against Usurpers ......................... 232 Early Modern Resistance Theories 2: The People’s Right Against Tyrants ....................... 239 Early Modern Resistance Theories 3: Corporation Theory and the Hobbesian Response .. 244 The Rebel’s Catechism: The Liberties of Subjects and the Right to Rebel ......................... 255 4 Conclusion .............................................................................................................. 270 Works Cited ............................................................................................................ 275 Primary Sources ................................................................................................................... 275 Secondary Sources ............................................................................................................... 280 5 Acknowledgements It is a pleasure to thank the many people who have encouraged and supported me over the course of writing this thesis. In my first weeks as an undergraduate I attended a talk by Quentin Skinner about the frontispiece of Leviathan. I could not have asked for a better or more inspiring introduction to the history of political thought, and it has been both an honour and a joy to have had Professor Skinner as my supervisor on this project. As a PhD student I have benefited enormously from being part of the School of History and the Centre for the Study of the History of Political Thought at Queen Mary University of London. Richard Bourke generously provided comments on the thesis as a whole, and Georgios Varouxakis also offered guidance and mentorship. For their comments, challenges and suggestions I should also like to thank Alan Cromartie, A.P. Martinich and the members of the European Hobbes Society, in particular Adrian Blau, Johan Olsthoorn, Robin Douglass, Eleanor Curran and Arash Abizadeh. Jason Peacey supervised the MA thesis which laid the foundations for my arguments about Hobbes on treason. I would also like to thank my examiners, Hannah Dawson and Eric Nelson, for their probing and detailed responses to my project, and for all of their immensely helpful questions and comments. My doctoral studies were funded by a three-year Principal’s Studentship awarded by the