Crime & Punishment according Thomas Hobbes

By Enzo Finocchiaro
1. Intro
In this paper well try to examine Chapters XXVII and XXVIII of Sir
Thomas Hobbess Leviathan", and visualize the concept that the
author had about the punitive issue, as a part of his state doctrine.
To do this , first were going to draw a brief outline of the historical
context of the time where Hobbes wrote, framing the moment when
was conceived one of the most significant works of the theoretical
position known as "Social Contract", the same one that in the next
two centuries would have much preaching and success.
2. Thomas Hobbes & Leviathan. England in the XVIIst Century.
Thomas Hobbes of Malmesbury was born on the 5 of april, in 1588, on
Westport village, near Malmesbury, Wiltshire county, southeast
England. He was premature, because his mother was very frightened,
like the rest of the villagers, in part duly to an imminent invasion of
the Spanish Armada (In fact , his father said that her mother had
twins: Thomas and fear) . Although little is known of his childhood and
even the name of his mother is unknown , it is known that his father,
also named Thomas , was the vicar of Charlton , ie , belonged to the
Church.
His uncle, Francis Hobbes, was a wealthy merchant who had no
family, which in turn had to take care of Thomas Jr., his older brother
Edmund and even their mother, because Thomas Sr. had to travel to
London, after a fight with a clergyman outside his own church.
Thomas Jr. went to school in Westport for four years and enrolled then
in the Malmesbury School first and then in a private school, ran by
Robert Latimer, a graduate of the University of Oxford. Famous as a
good student, in 1603 he was sent to Magdalen Hall, a school which
had the patronage of Hertford College, one of the schools that made
the University of Oxford. The head of the Magdalen , John Wilkinson
was a Puritan who had wide influence on Hobbes.
At school, Hobbes built his own curriculum of studies, little attracted
by the scholastic doctrine, completing a BA in 1608. However, he was
recommended by his teacher at Magdalen, Sir James Hussey, to be
the guardian of William, son under William Cavendish, second Earl of
Devonshire and a well-known English politician of the Middle Ages.
That relationship went throughout their lives.

In fact, a close friend of Hobbes sponsored him by undertaking what is

known in Europe as "Grand Tour". In this trip, took in 1610, Hobbes
has first-hand contact with the new critical methods and european
scientists, opposed to that traditional scholastic he had learned in
Oxford. Upon his return, he continued his studies and made contact
with the greek and latin classics, highlighting, in 1628, with a brilliant
translation of the "History of the Peloponnesian War", by Thucydides,
in what is known the first English translation of the text (Oxford kept
the original greek manuscript). Many authors argue that this work and
the translation of three latin speeches known as "Horae Subsecivae",
represent the thinking of Hobbes from this period, also influenced by
Francis Bacon and Ben Johnson.
In 1628 his employer Cavendish dies, as a victim of the plague, and
his wife decided to dispense Hobbes from services. He quickly got a
job, this time as guardian of Gervase Clifton, son of Sir Gervase
Clifton, Knight of Bath, First Baronet, English politician and another
very famous person at the time, educated at Cambridge.
Guardianship of Hobbes, developed in Paris, lasted until 1631, when
the family returned to Cavendish hire him to be the tutor of the son of
his former ward, also called William.
While developing their tutelage, - as we see it was a very common
service in the families of the English upper clases -, Hobbes took the
opportunity to continue studying philosophy, and took part of what
was known as philosophical debate. He visited Florence in 1636 and
settled in Paris 1637 where he had a discussion with Marin Mersenne
-, a French theologian well known in 1600. There, Hobbe gained the
title of "philosopher and scholar."
In Paris he began his philosophical developments studying the
doctrine of physical movement and physical momentum. He tried to
stand in the conception of a system of thought, to which he devoted
all his life.
In his work schedule, he first took to develop a systematic doctrine of
body, showing how physical phenomena are universally explicable in
terms of motion. Then he took to show how certain body movements
were linked in the production of peculiar phenomena of sensation,
knowledge, desires and passions, typical of human relationships.
Finally, he considered how men determined to cluster in society,
arguing how it should be regulated if they wanted to avoid that men
end up in total misery and brutality. These three points then
presented as the phenomena of the body, man and the state.
In 1637 Hobbes returned to his people, being immersed in a
discontent, neglecting the development of his philosophical doctrine
country. Nevertheless, in 1640 he wrote a small treatise known as
"The elements of Law, Natural and Politics", which does not publish,
circulate only among known manuscripts, so height of the political

moment, since by this time reached its finally what is known as "Short
Parliament". Despite the non-publication of their work, we can see in
the English political environment heavily influenced by the ideas of
Hobbes in this work, although he would reverse many of them in the
Leviathan, probably by his philosophical clashes with patriarchal
thinking of Sir Robert Filmer, between 1640 and 1651. By that time,
Hobbes was part of what is known in England as the "Engagement
Controversy," a debate that occurred on English soil between 1649
and 1652, after the execution of King Charles I, on whether to accept
- or not - the "new Regime" that is, the right of the British to regulate
their own government, or whether to accept a new monarch. This
lasted until 1660, when Charles II was crowned, son of the executed,
in what is known as the beginning of the Restoration.
Hobbes developed his philosophical task in a very turbulent time,
which was beginning to be questioned harshly absolute monarchy, in
an increasing gravitation of Parliament. When Hobbes returned to
England, Charles I ruled, and for 1642 the first English Civil War
breaks out, counting both sides, the parliamentarians ("roundheads")
and realistic ("cavaliers"), setting the entire conflict over how rule the
kingdom. In this conflict, and in the second Civil War (1648-1649),
supporters of Charles I against the supporters of the Long Parliament
were facing. This second war ended with the execution of the King.
Despite the death of the monarch, there was a third war, between
1649 and 1651, where supporters of the son of Charles I, natural
successor to his father, against supporters of the Rump Parliament
met, succeeding the latter in the battle of Worcester and should exile
the young successor.
In the decade between 1649 and 1660, England went through several
forms of republican government, called "Commonwealth". The most
renowned political figure of this period was Oliver Cromwell, Lord
Protector of the Kingdom between 1653 and 1658, considered the
mastermind of the execution of Charles I, was succeeded on his death
by his son Richard. Cromwell is even today one of the most renowned
and controversial English history, considered by some as a traitor, for
others a brilliant military strategist and diplomat figures and others
simply a political opportunist.
When was the Long Parliament in 1640, Hobbes, whose ideas
extensively circulated among the detractors of parliamentarism, was
considered in danger and went to Paris and did not return to England
until 1651, earning him the nickname "monarchical" . In France, we
had a monarchy, he resumed his discussions with Mersenne and
result of this published a critique of "Meditations on First Philosophy"
Descartes, containing some of the ideas that later mature into the
Leviathan, generating a rich philosophical opposition to French. At
that time it was of some renown in courtly philosophical circles, to the
point that with Descartes, Gilles de Roberval, among others, was

chosen to comment on the controversy between John Pell and

Longomontanus on the problem of squaring the circle .
When the English Royalist cause began to decline in 1644, many of
those who supported the Republican side went to the mainland and
some arrived in Paris, making contact with Hobbes. This further
enhanced the figure of Hobbes, republicndose all his works, with
great acceptance.
For 1647 he was appointed instructor in mathematics the young
Charles, Prince of Wales, the son of slain Carlos I, successor to the
British throne, in exile in France. This task developed until 1648 when
Charles went to the Netherlands and earned a great friendship with
the future king.
For that time, Hobbes ill and had to be held in Paris. That, and the
matured ideas with the exiled royalists led him to resume his political
theory and thus was born the "Leviathan", the great work of Hobbes,
which sets its doctrine on the creation of the State and its mission and
operation, which he sees like a big monster (use one of the biblical
names of the devil), composed of men. It was first published in mid1651 and had an immediate impact, turning its author into one of the
thinkers most loved and hated in his time. In fact, the first effect of
the book was a profound rejection carry potential between the
royalists, who were his supporters. This made should seek protection
English revolutionary government, reaching feared his death, having
also created antipathy between Anglicans and French Catholics, the
secular spirit of the work.
So, he came to London for the English winter 1651 then submitted to
the Council of State, he was allowed to retire to private life in a
building on the street that got Fetter Lane, in the heart of the English
capital.
Already devoted entirely to end its systematic proposal, published De
Corpore in 1654 the same year also published a small treatise called
On freedom and necessity, in the printing of Bishop John Bramhall,
who then began a philosophical dispute with Hobbes in several works
that either He answers were published between 1656 and 1658.
In 1658 Hobbes published the third and final section of his system, De
Homine, completing the scheme raised over twenty years ago.
With the restoration of the monarchy in England, Hobbes took a new
celebrity status. In fact, being "hobbyist" was an adjective widely
used that they liked using the members of upper classes. Because of
this, the former student of Hobbes, the now King Charles II,
remembered his old tutor and summoned him to court, offering office
and a pension of a hundred pounds.

King became a great protector of Hobbes when in 1666 the House of

Commons introduced a law against atheism and secular and
resolution accordingly where it is specifically mandated to investigate
whether the book of Hobbes was issued - the Leviathan - encouraged
the atheism, blasphemy and heresy. This caused panic Hobbes, who
burned all his manuscripts and had to clarify that the Leviathan was
not opposed at all to any of the creeds of the church. What I produced
the decision against which Hobbes was banned in England since
posting. In fact, the only publication that followed was living in
Amsterdam in 1668, where his works were republished. This is why
many of his later works find new light after the death of Hobbes.
For many years it was not even allowed to respond to criticisms and
comments about him throwing his detractors. Despite this, acquired
an international reputation, which made all the nobles and foreign
renowned thinkers who came to England were to his house to pay
their respects.
His final work was an autobiography in Latin verse, in 1672, an
English translation of the Odyssey, in verse, in 1673, he completed a
translation of the Iliad in 1675.
In October 1679, Hobbes suffered a bladder disorder that led to a
paralytic stroke and died on 4 December of that year. He was buried
in the church of St. John The Baptist, in the small town of Ault
Hucknall in Derbyshire, in the geographical center of England.
Then we will make a brief analysis of Chapters XXVII and XXVIII
Leviathan concerning crime theory holding Hobbes and how it should
be implemented punitive power in the hands of State that he
proposed.
Prior to that must be taken into account for purposes of correct
analysis, that Hobbes was a philosopher much influenced by medieval
theology and religious thoughts, and this is present in all his work.
Likewise, so is the Cartesian analytic philosophy and historic events
that played live, standing on the side of those who believe in the
mission of the state as a social pacifier, in advance of the times of
feudal lordship.
3. Chapter XXVII analysis Crimes, defenses and extenuating
Hobbes starts this chapter defining bad actions as sins, and argues
that within this genre come all those transgression to the law (natural,
divine and mens) and disobeying commands and can be committed
both by commission and by omission and even just with the very
purpose of it, observed in some act of execution.
Then, he focuses on crime as a sort of sin. Hobbes says that a crime is
a sin, consisting of both in the commission of what the law prohibits,

and the omission of what it intended. Therefore, every crime is a sin,

but not all sin is an offense, since not all bad actions are punished,
because its not necessarily translated into deeds or words.
As we see, the english philosopher already receive the theory that
argues states the crime as behavior consisting in both, actions and
omissions, encompassing behaviors that then many famous modern
criminologists would abandon (specifically, the causal theory of
action).
Then, he holds that the thoughts of man, until they manifest "in
anything done or said", do not constitute a crime. Then he notes that
"With regard to the intentions that never manifested by an outward
act, there is no place for human accusation" and that "crimes are
those sins which can be evidenced before a judge and, therefore, are
not mere intentions". Thus, Hobbes and understood, in the XVII
Century, that the mere thoughts, while not externalized, are within
man and are therefore infallible and immune from state prosecution.
Then, Hobbes argues that "Where the law stops, ceases sin, ceasing
civil law, and ceases crimen and having no place for any other law,
there is no place for accusation". This is nothing but a clear
recognition of the principle of lege stricta, difficult to be understood
even today by some legislators, and also contains several of the
axioms of the theory presented by italian jurist Luigi Ferrajoli, some
few years ago, showing that far from be presented as a modern
conquest, it is possible to trace it in XVII Centurys England. Then,
later, Hobbes will say "No law can be passed after an act, can make
this a crime". This is what is known as the principle of lege praevia,
another axiom appropriated by former Italian judge.
Then, Hobbes states that "when sovereign power ceases, also ceases
crime; indeed, where is no such power, there is no protection that can
be derived from the law. From this can be drawn several interesting
conclusions for our mill. First, Hobbes refers to what is known as
jurisdiction, which is the state ability to say which law applies to the
case in conflict with the law. Secondly, refers that the act of validity of
a law, presupposes the creation of a State as a being necessary for
passage of a law; ie, that without a State, there nevear can be a law,
and therefore a crime. If the crime requires a prior law to criminalize
it, then needs a State to passes laws. From this it follows that there is
no crime where there is no state.
For Hobbes, the offense has three possible sources: a) A defect in the
understanding; b) A defect in reasoning; c) A sudden violence in the
passions.
a) Regarding the defect in the understanding, Hobbes called it
"Ignorance" and argues that it is of three types: the Law, the
sovereign and the penalty. Recalling that Hobbes distinguishes

between Natural Law and Civil Law, states that ignorance of natural
law does not excuse anyone and that ignorance of the civil law - that
is our law in the formal sense - excuses sometimes. Meanwhile, the
ignorance of sovereign power does not excuse those who are
subjected to it, and that ignorance of it, when the law that provides is
sanctioned and duly published, not exempt anyone, since they want
to voluntarily performed action, accepts all known consequences of it
being punishment manifest consequence of the violation of a law.
In this paragraph, we want to rescue the notion of punitivism of
Hobbes, in addition to account for the different error classes and its
excusability, in the dogmatic framework. For Hobbes, the punishment
is a necessary consequence derived from the notion of the state. So,
punitivity is tied to the notion of state, without which would be
unthinkable its existence.
b) Regarding the defect in reasoning, to which Hobbes called "error",
he argues that men violate the law in three ways: by holding false
principles (as calming injustice by force), to follow false teachers who
misinterprets natural law and making false inferences from true
principles.
Third, Hobbes refers to the passions that most frequently are the
cause of crime. First, lists to vainglory, ie, the senseless esteem of
self-worth. This means that men who develop this passion understand
that the punishments inflicted on the subjects has not to be imposed
with the same rigor. Within the pride, includes those who flaunt their
wealth and their ability to corrupt and buy public justice to those who
have powerful relatives and friends and those who believe in a false
wisdom, derived from office or position. Also notes that there is other
passions that motivate crime, as lust, ambition and greed. He argues
that of all the passions, the one that inclines the crime in a lesser
degree, is fear.
About fear, Hobbes argues that a common fear does not justify the
action that produces, but only the fear of a bodily harm, which he
calls "physical fear" and which one does not know how to get rid of it
but by that harming action. So, from fear as a motive for the crime,
he turns to physical fear as a causa of justification.
Interestingly, a phrase that Hobbes inserted here: "when powerful
men break the laws of your country, they consider the weak and
unsuccessful people in their businesses as the only criminals". As we
see, like for modern critical criminology, for our english thinker the
only only crime is the one committed by members of lower states,
with high media exposure and vulnerability, making invisible any
other type of crime, the comparatively speaking, generates the same
or a higher supra-individual damage, in addition to be aware that the
powerful one have greater decision-making power, the greater
availability of resources and opportunities to act alternately to crime.

Follow his system, Hobbes argues that not all crimes are equal. Then,
he refers that there are defenses, under which what appears to be a
crime, proof not to be it at all, and extenuating, under which an
offense that seemed to be great, is minimized.
Regarding the defenses, he refers that what fully excuse a fact and
eliminates the nature of the crime of it, can not be anything other that
what at the the same time removes the obligation established by law.
Starting his route through the defenses, Hobbes believes that the lack
of means to know the Law fully exempts the crime. This is what is now
known as excusable error of law (although at present it is not
excusable!). The thinker believes that the law which one has no way
to learn it, is not mandatory (think of the media for a law by the
common people, in the english seventeenth century).
Second, he estimates that when a man is held captive or enemy, if
this is not due to his fault, the legal obligation ceases, because he
must obey or die. This would be comparable to modern obedience or
a kind of necessity as a valid excuse against unjust penalty.
Third, states that if a man, by terror of imminent death, is forced to
perform an act against the law, is totally excused, as no law can
compel him to give up his own preservation. This is another variant of
state of necessity.
Fourth, states that when a man is deprived of food, in times of great
scarcity, and take by force food or steal what you can not get with
money or charity, is fully exempt.
Then Hobbes focuses on defenses against the author. He argues that
the contrary act, done with others authorization, relieve the autor
and states on the authorizer.
Subsequently, he indicates that the offense has degrees (of
seriousness), which are measured by various scales or parameters.
The first is the malignancy; the second, the possibility of contagion or
imitation; the third, the damage caused; and fourth, the conditions of
manner, time, place and number of people participating. As we see,
these are all modern standards for judicial sentencing, present in
most contemporary punitive orders.
Hobbes refers that the presuntion pf power is an aggravating. That is,
the same act committed against the law, if it comes from the
assumption of power, wealth and friendships, to resist the execution
of the law, it is a more serious crime that if it proceeds from the hope
of not being discovered or escape.

Moreover, for Hobbes the existence of examples of impunity

attenuate the criminal offense of an author, as they are signs that the
sovereign itself gives the non-application of the law.
As at our time, premeditation in Hobbes is an aggravating. He refers
that a crime that has its origin in a sudden passion is not as great as if
derived from a long meditation. In the first case, there is a possibility
of attenuation. However, there is insufficient sudden passion for a
total excuse, because all the time past between the knowledge of the
wrongfulness of the act and the commission of it, should be counted
as a period of deliberation. This is what is known today as "state of
violent emotion" and it is actually usually considered as a mitigating
circumstance or excusability of the fact.
In one application of seriousness scale of the harm caused by the act,
Hobbes states that when a crime is detrimental for a large number of
peoplie, is more sreious tan when damages a few or just an individual,
or when damages to the future and not only the present . As an
example, points that maintain doctrines against established religion is
worse in a priest than in a particular, or to perform acts of hostility
against the state is more serious than conduct hostilities against the
individual members of that state. Within this scale, mentions perjury
as more serious than a simple insult, or a bribe to harm another in a
lawsuit against a simple bribe; also lists the robbery and fraud to the
treasury or public revenue as a more serious crime than robbery or
fraud to a particular.
Clearly this is no longer applicable today, given that the state is not
the center of the legal analysis, but Man, and therefore falls upon him
as protection of the penal system, to the detriment of supra-individual
legal rights. The crime against the nation is not more serious than a
simple homicide, or a aggravated robbery, by the mere fact of not to
be harmed the state integrity. Today philosophical analysis goes
through the individual.
Already within crimes against individuals, Hobbes says that the most
serious offense is the one in which the damage is more sensitive and
therefore refers to the worst crime as homicide, and within the
homicides, the aggravated homcide by use of torment is a more
serious crime than simple homicide. And so, he statutes the legal
good life as the one that receives greater protection. And argues that
maul is more serious crime than robbery and robbery is worse crime
than stealing, and stealing is worse than crime a hoax or a scam.
Hobbes refers that violate is a more serious crime than sexually
corrupting by seduction, being most severe to do so in the case of a
marreid woman than a one did it to an unmarried woman, because on
the family value that the first case means.

Then, he still holds that a crime against an individual may be

aggravated by issues of person, time, manner and place. So, kill the
father is more serious than killing another person; robbing a poor is
worse than robbing a rich, given the sensitivity of the harm.
Thus, in a few paragraphs, Hobbes develops a synthesis of the crime
theory dominant at that time, and then a racconto of what today is
known as "special part", that is, the different figures that fall within
that dogmatic sieve mentioned previously. And suddenly, we observe
many points of contact with modern theories and even the most
critical of those who try to overcome the punitive power over the
rights of individuals indicted or victim of a crime.
4. Chapter XXVIII analysis Penalties and rewards.
In the previous chapter, Hobbes examined in detail the circumstances
causing the crime and once configured, the ones that characterize it,
aggravate it, mitigate it and relieve it, showing several examples of
typical figures. In the section that we analize here, the english
philosopher will examine the second stage of the question: What
happens when a crime is committed?
For Hobbes, the answer to this question is simple: Penalty. Thus,
begins the section giving the concept of penalty: he understands it as
harm inflicted by public authority to a person who has committed a
crime. And what is the purpose of it? For Hobbes is none other than to
modify the will of men.
From the above paragraph, two central issues can be extracted. First,
Hobbes understands public punishment - the application of punitive
power of the State -, as a suffering that is imposed on a person.
Hobbessian penalty is harm, is suffering. The second point to be
drawn from this first, is that suffering has a meaning, and that is to be
exemplary to other men: It is intended that through the application of
penalties for those who commit crimes, you can frighten potential
criminals. This is nothing more than the old - and failed - general
theory of negative prevention, where the State try to send - using
individuals subjected to criminal proceedings - a message to the
population through fear. We see that, as we have said, nothing new
under the sun, and what is to invent, and has been thought nearly
four hundred years ago.
Then, Hobbes makes a digression on how is that punitive power, as
monopoly of penalties enforcement, goes to the State. He argues that
when the State is instituted, men forfeit the right to defend others in
a particular way, and even the right to defend itself. He notes that the
right that the State has to punish is not based on a concession of his
subjects. Hobbes remembers that, before the State, the man was
entitled to everything and do what he thought necessary for his own
preservation subduing, hurting or killing another man to do it.

Therefore, Hobbes hangs the concept of pure penalty and exclusively

as stated a few paragraphs above, and begins to list what similar
issues should not be considered "punishment" in the strict sense. In
one of these examples, indicates that the evil inflicted by public
authority without a prior conviction, is not punishment, but merely a
hostile act, because the act whereby a man is punished must first be
judged by the public authority, for to be considered as a transgression
of the law.
The latter is nothing more than a new consecration of Ferrajolis
thesis, on which we have already discussed in the previous chapter,
and an enhancement of the principle of the adversarial, whereby
there can be no punishment without a trial, founded on a
transgression of a law, prior to the event to be charged, and that
judgment must have the basic stages of the prosecution and the
defense mentioned before.
Also, Hobbes states that if the harm done is less than the satisfaction
obtained by the commission of the crime, then it should not be
considered worth to that injury, being rather a price or redemption.
Clearly, in this case, the negative prevention theory that Hobbes
deemed necessary in a sentence is not met.
Hobbes then returns to enhance the principle of lege stricta, noting
that if a sentence is determined and prescribed in the law itself, and
after committing the crime more punishment is inflicted, the excess is
not punishment, but another simple hostility. Hobbes remembers:
"The purpose of punishment is not revenge, but terror", banishing the
paradigm that later Hegel and Kant will mantein, stating the purely
retributive nature of the punishment (an eye for an eye, in the
modern sense), but to was purely preventive and oppositional: to
cause terror.
Inherent to the abovementioned legality, Hobbes says that where
there is no penalty determined by law, any punishment inflicted is an
arbitrary punishment.
Hobbes reaffirms the concept of lege praevia: "The damage done by
an accomplished fact before there is a law prohibiting it, is another
mere hostility because prior to the law there is no transgression of the
law".
Then, Hobbes takes a concept that until now invades the field of
criminal law, with its necessary even laborious exile: the enemy. He
claimed that the damage inflicted on who is considered the enemy
does not fall under the name of punishment and therefore is not
subject to the Law. This was unfortunately taken by authors as
German Gunther Jakobs or spanish Manuel Cancio Meli, when
developing the pseudo theory of "criminal law of the Enemy". Even

then says Hobbes: "In terms of punishment established by law, these

are for subjects, not to enemies and have to be considered such who,
having been subjects for their own actions, deliberately, deny the
sovereign power". We see that the german teacher and his spanish
colleague have not been very creative, but just good compilers.
Hobbes relates that "In cases of declared hostility all infliction of evil
is lawful" readjusting the old adage that "in war everything goes",
albeit quite true that it is not.
After this, Hobbes begins to catalog and classify penalties. Notes that
the first great distinction, typical of that time is split between divine
and man, leaving criminal law to deal with the second category. He
says that human penalties are inflicted by man commandment
(embodied here the State in the "man"), may be they physical or
pecuniary, or consisting of ignominy, imprisonment or exile, or the
combination of these five major penalties.
He reports that corporal punishment is applied directly on the body,
and consists of flogging, injury or deprivation of physical pleasures
normally enjoy. Among the body, there are the capitals, which are
providing to death as punishment.
Meanwhile, the pecuniary penalty is deprivation consisting of a sum of
money or property with economic value.
Then Hobbes regards the third category of human penalty, the
shame, ie, the act of inflicting dishonor, either through injury or
deprivation of property considered "honorable".
Fourth, Hobbes states that "the prison exists when a man is deprived
of his freedom by a public authority, and this can happen in various
ways: one is to guard and watch a man accused and the other is to
inflict a penalty on a convicted. The first is not worth it, because
nobody can be punished before being judicially heard and declared
guilty. Therefore, any damage that is caused to a man before his case
is heard, beyond what is necessary to ensure its custody, is against
the law of nature. In these simple and short words, Hobbes
summarizes modern constitutional theory against preventive
detention, and painted as the measure of exceptional safety and very
limited, which is imposed on processed, in order to ensure
safekeeping and already set denaturation of things to detain someone
who has not been heard in court and sentenced accordingly.
Hobbes says then, returning to the concept of prison as a punishment
although, that "under the word prison we understand any restrictions
on the freedom of movement caused by an external obstacle, be it a
building, commonly called jail, or island, when confined to men to it,
or a place where they are made to work, as in ancient times

condemned men to the quarry and now rowing in the galleys, or be

chained, or suffer some other impediment such".
Regarding the fifth and final category, exile, Hobbes states that the
punishment for which a convicted of a crime must leave the territory
of the State or remain in a region outside of it, failing or never return
for a preset time. Despite this, for Hobbes is a subterfuge to avoid
punishment, and further argues that the exile is a legitimate enemy of
the state.
After this categorization, Hobbes undertakes a statement of principles
of punishment. He argues that the punishment of innocent subjects is
contrary to the law of nature. Hobbes recalls that that is a natural
law; he understoods the primacy of natural law over the men law,
which he calls, as we have seen, civil law. He reports that "can not
derive any good for the state of punishment of the innocent" and this
violates the principle of equitable distribution of justice, as observed
Equity, one of the key principles of the early Anglo-Saxon system, of
Hobbes era that still survives today.
5. Epilogue
We annotated very briefly the two chapters mentioned to show the
reader a summarized description of the concept of crime and
punishment in Thomas Hobbes, one of the most famous contractarian
thinkers of all times, forward almost a hundred years in comparison to
his thematic colleagues, and the first one to break the mold dictated
by the scholastic.
Weve highlighted in our analysis several institutes and concepts that
some believe are contemporary achievements of modern theories of
the state, as the adversarial system, as modern axioms such as
exceptional and limited conception of preventive detention, as the
presence of "enemies" in the Criminal Law, as the concept of harm or
suffering public shame for the individual.
Undoubtedly, we face products with deep philosophical and historical
roots in our metier, which for centuries were tried to quell or to
reverse, when in the analysis we proposed you can observe clearly
the true intention of the british thinker.
Addenda Hobbes works
1602. Latin translation of Euripides' Medea (lost).
1620. Three of the discourses in the Horae Subsecivae: Observation and
Discourses (A Discourse of Tacitus, A Discourse of Rome, and A Discourse of
Laws).[13]
1626. De Mirabilis Pecci, Being the Wonders of the Peak in Darby-shire, (a
poem first published in 1636)

1629. Eight Books of the Peloponnesian Warre, translation with an

Introduction of Thucydides's History of the Peloponnesian War
1630. A Short Tract on First Principles, British Museum, Harleian MS 6796, ff.
297308: critical edition with commentary and French translation by Jean
Bernhardt: Court trait des premiers principes, Paris, PUF, 1988 (authorship
doubtful: this work is attributed by some critics to Robert Payne).[25]
1637 A Briefe of the Art of Rhetorique (in Molesworth's edition the title is
The Whole Art of Rhetoric)
1639. Tractatus opticus II, (British Library, Harley MS 6796, ff. 193266) [26]
1640. Elements of Law, Natural and Politic (circulated only in handwritten
copies, first printed edition, without Hobbes's permission in 1650)
1641. Objectiones ad Cartesii Meditationes de Prima Philosophia (Third
series of Objections)
1642. De Cive (Latin, first limited edition)
1643. De Motu, Loco et Tempore (first edition 1973 with the title: Thomas
White's De Mundo Examined) [27]
1644. Part of the Praefatio to Mersenni Ballistica (in F. Marini Mersenni
minimi Cogitata physico-mathematica. In quibus tam naturae qum artis
effectus admirandi certissimis demonstrationibus explicantur)
1644. Opticae, liber septimus, (written in 1640) in Universae geometriae
mixtaeque mathematicae synopsis, edited by Marin Mersenne (reprinted by
Molesworth in OL V pp. 215248 with the title Tractatus Opticus)
1646. A Minute or First Draught of the Optiques (Harley MS 3360;
Molesworth published only the dedication to Cavendish and the conclusion
in EW VII, pp. 467471)
1646. Of Liberty and Necessity (published without the permission of Hobbes
in 1654)
1647. Elementorum Philosophiae Sectio Tertia De Cive (second expanded
edition with a new Preface to the Reader)
1650. Answer to Sir William Davenant's Preface before Gondibert
1650. Human Nature: or The fundamental Elements of Policie (first thirteen
chapters of The Elements of Law, Natural and Politic, published without
Hobbes's authorization)
1650. Pirated Edition of The Elements of Law, Natural and Politic,
repackaged to include two parts:
Human Nature, or the Fundamental Elements of Policie (chapters 1419 of
Part One of the Elements of 1640)
De Corpore Politico (Part Two of the Elements of 1640)
1651. Philosophical Rudiments concerning Government and Society (English
translation of De Cive)[28]
1651. Leviathan, or the Matter, Forme, and Power of a Commonwealth,
Ecclesiasticall and Civil
1654. Of Libertie and Necessitie, a Treatise
1655. De Corpore (Latin)
1656. Elements of Philosophy, The First Section, Concerning Body
(anonymous English translation of De Corpore)
1656. Six Lessons to the Professor of Mathematics
1656. The Questions concerning Liberty, Necessity and Chance (reprint of Of
Libertie and Necessitie, a Treatise, with the addition of Bramhall's reply and
Hobbes's reply to Bramahall's reply)
1657. Stigmai, or Marks of the Absurd Geometry, Rural Language, Scottish
Church Politics, and Barbarisms of John Wallis
1658. Elementorum Philosophiae Sectio Secunda De Homine

1660. Examinatio et emendatio mathematicae hodiernae qualis explicatur

in libris Johannis Wallisii
1661. Dialogus physicus, sive De natura aeris
1662. Problematica Physica (translated in English in 1682 as Seven
Philosophical Problems)
1662. Seven Philosophical Problems, and Two Propositions of Geometru
(published posthumously)
1662. Mr. Hobbes Considered in his Loyalty, Religion, Reputation, and
Manners. By way of Letter to Dr. Wallis (English autobiography)
1666. De Principis & Ratiocinatione Geometrarum
1666. A Dialogue between a Philosopher and a Student of the Common
Laws of England (published in 1681)
1668. Leviathan (Latin translation)
1668. An Answer to a Book published by Dr. Bramhall (published in 1682)
1671. Three Papers Presented to the Royal Society Against Dr. Wallis.
Together with Considerations on Dr. Walllis his Answer to them
1671. Rosetum Geometricum, sive Propositiones Aliquot Frustra antehac
tentatae. Cum Censura brevi Doctrinae Wallisianae de Motu
1672. Lux Mathematica. Excussa Collisionibus Johannis Wallisii
1673. English translation of Homer's Iliad and Odyssey
1674. Principia et Problemata Aliquot Geometrica Ant Desperata, Nunc
breviter Explicata & Demonstrata
1678. Decameron Physiologicum: Or, Ten Dialogues of Natural Philosophy
1679. Thomae Hobbessii Malmesburiensis Vita. Authore seipso (Latin
autobiography, translated in English in 1680)
1680. An Historical Narration concerning Heresie, And the Punishment
thereof
1681. Behemoth, or The Long Parliament (written in 1668, unpublished at
the request of the King, first pirated edition 1679)
1682. Seven Philosophical Problems (English translation of Problematica
Physica, 1662)
1682. A Garden of Geometrical Roses (English translation of Rosetum
Geometricum, 1671)
1682. Some Principles and Problems in Geometry (English translation of
Principia et Problemata, 1674)
1688. Historia Ecclesiastica Carmine Elegiaco Concinnata