LA DOCTRINE DU CHATIMENT PUBLIC ET LES FONDEMENTS DU DROIT PENAL DANS LE LEVIATHAN
THE DOCTRINE OF PUBLIC PUNISHMENT AND THE FOUNDATIONS OF CRIMINAL LAW IN THE LEVIATHAN

Summary/Abstract: The Doctrine of Public Punishment and the Foundations of Criminal Law in the Leviathan. Modern political philosophy is always guided by a "metaphysical coherentism", proper to its systemic constitution. In this respect, there is a close correlation between the realism specific to secularization, which transgresses scholastic tradition, and human ontology, in its turn liberated from the medieval frames of thought. These two constitute, by means of correspondences and mutual legitimation, what Leo Strauss called „a nuova scienza of man and state”. The system of Hobbes’ Leviathan is exemplary in this respect, especially regarding one of its most innovative aspects, the doctrine of punishment. Hobbes’ theory of criminal law seems, however, to undermine the strictly conventionalist foundation of sovereignty, as well as the absolute legitimacy of the sovereign. Among the difficulties it generates, we emphasize the absence in the state of nature of a right to punish which could later be contractually assigned to the sovereign. On the other hand, the right of life and death over the subjects seems contrary to any regulated institution of public punishment, which would impinge precisely on the absolute nature and unlimited extent of the sovereign power as dominium. Moreover, the principle of proportionality and the deontology of public punishment increase the incompatibility between the two. Starting from the primacy of the public power’s effectiveness and efficiency over the principles of conventionalism, we are able to state the hypothesis of the doctrine of punishment’s autonomy in the system of the Leviathan. Thus emerges a clear distinction between the right of life and death – which identifies itself with sovereignty as such, as an attribute of its symbolic exceptionality – and the right to punish – pivot of an actual semiology of sovereign power. Although at different levels, the two interact vertically, through a complex dynamics which shapes even the typical modern dialectic between public and private. In this outlook, the doctrine of punishment acquires the importance of vehicle of the sovereignty legitimate in itself. Therefore, the Hobbesian stake of establishing a public criminal law is, precisely by virtue of coherentism, the achievement of a redemptive compromise between ontological psychology and political realism.

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