Abstract

Martin highlights the degree to which H. L. A. Hart’s legal positivism relies on Hobbesian assumptions. Like Hart, Hobbes combines utilitarian and retributivist elements. The best way to make sense of Hobbes’s theory of punishment is to follow Quentin Skinner and view both the “sovereign” and the “state” as distinct legal fictions. Unlike Hobbes, Hart asserts these fictions as facts. As a result, Hart’s philosophy of criminal law in Punishment and Responsibility is in tension with his legal philosophy in The Concept of Law. Martin worries that Hart’s mixed theory is untenable: the utilitarian element threatens to overtake his core retributivist thesis. Ultimately, however, neither Hart nor Hobbes has the resources to explain why the autonomous individual matters in the context of criminal law.