The Political Philosophy of Hobbes: His Theory of Obligation

PREFACE HOBBES'S political doctrine presents the unusual feature that it has given rise to an 'official' interpretation...

Author: Howard Warrender

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PREFACE HOBBES'S political doctrine presents the unusual feature that it has given rise to an 'official' interpretation, in terms of which, for example, students are expected to show their proficiency in the schools, and at the same time, a general suspicion that the text itself bears only a very approximate relationship to it--a situation which appears to have persisted in spite of the fact that both the 'official' interpretation and the grounds of suspicion have changed from time to time. It is not that Hobbes has been regarded as a particularly careless thinker; he is not obviously more contradictory than say Locke, nor more ambiguous than Rousseau, yet here, commentary has been more successful in defining the sphere within which interpretations may legitimately differ. The root of the paradox in the case of Hobbes lies in the fact that in his moral and political philosophy there is most doubt about his most central themes, and in particular about the construction to be put upon his theory of moral and political obligation. In view of this uncertainty, it is surprising that while attention has been given to Hobbes's theory of the physical world, for example, or to his psychological assumptions or his contribution to contractarian thought, so little has been written upon his theory of obligation. It is, therefore, not inappropriate that this subject should be re-examined, and if the present work has made any contribution towards such a problem, it will have served its purpose. The thesis of this book, substantially as it appears here, was written in 1949 on the strength of reading the Leviathan a number of times until its argument assumed some coherence. It remained to set this thesis against the rest of Hobbes's English and Latin works. Although I consider that there is sufficient support in the Leviathan for the views expressed below, I have chosen for exposition those parts of Hobbes's -vii-

text which appeared to state his position most clearly and concisely, without regard to their source. There is some variation to be found in the different versions of his political doctrine, but it is of secondary importance, and I could find no evidence of a development or change in his thought, of which special note had to be taken for the purpose in hand. I have made a more extensive use of direct quotation from Hobbes's text than is customary. This appeared to be more desirable than the alternatives. To have relied entirely upon page references to the text would have left the reader with the acrobatic task of manipulating several of Molesworth's volumes in addition to the present one. A considerable use of paraphrase appeared also to have disadvantages. Apart from the fact that I could not hope to emulate Hobbes's style and so should allow him to speak for himself as far as possible, the reader who is well acquainted with Hobbes's works can read the argument more easily and quickly where he can recognize the relevant passages at a glance, than where he must stumble through a more or less faithful paraphrase. I have attempted to construct an interpretation of Hobbes's theory of obligation out of his various writings, and have been concerned entirely with his statements and the inner coherence of his doctrine. No explanation is offered, therefore, of the place of this doctrine in the history of political thought, nor is it made to 'live' as a contribution to the theory of the twentieth-century Welfare State. I had hoped originally to provide some historical explanation of Hobbes's views, and such material as I had collected to this end suggested that Hobbes's dependence upon Aristotle is even greater than has been supposed, despite Hobbes's own protests against his Aristotelian studies in Oxford. This material has been excluded from the present inquiry, however, as it would have interrupted the argument as it is here presented. It would also have introduced a different type of conjecture into the interpretation of Hobbes's theory from that based entirely upon internal evidence. In any event, I have been less concerned with the problem of how Hobbes's theory originated or how -viii-

it is to be explained, than with the prior question of what his theory is, and that I found to be a sufficient occupation. The reader may find the number of footnotes a matter of regret. These are, however, concerned almost entirely with references to Hobbes's text or to other parts of the present work, or they relate to the views of other commentators; they do not contain anything pertinent to the main argument that is not stated more adequately elsewhere. They are intended therefore for the reader who is attempting to trace some particular item, and may otherwise be ignored. The first complete draft of the present work was finished at the end of 1953, and such commentary as has appeared upon its subject since that date, has been accommodated where possible in revision. In writing this book I have incurred many debts. In the past, I have benefited from discussions with tutors and friends, and must mention Professor D. M. MacKinnon, Mr. W. D. Falk, and Mrs. R. Kydd, who stimulated my interest in Hobbes's philosophy and improved my understanding of it. More immediately, I am indebted to Professor J. L. Austin, Professor W. G. Maclagan, and Mr. W. Harrison for reading through my manuscript, and should like to express my gratitude for their valuable advice and criticism. I wish also to thank my wife whose cheerfulness and encouragement have made authorship the pleasant task it has been. My greatest debt to published material I owe to the comments, made by Professor M. Oakeshott and by the late Professor A. E. Taylor, which are examined in an Appendix to the present work. Since I have frequently disagreed with their observations, I must emphasize that they have not been the less profitable on that account. J. H. W. Department of Political Science The University, Glasgow November 1955 -ix-

CONTENTS INTRODUCTION I. THE PROBLEM II. THE FRAMEWORK OF THE DISCUSSION PART I OBLIGATION IN THE STATE OF NATURE III. COVENANTS IV. THE LAWS OF NATURE V. CONDITIONS OF LAW AND CONDITIONS OF OBLIGATION PART II OBLIGATION IN CIVIL SOCIETY VI. POLITICAL OBLIGATION VII. THE LAWS OF NATURE AND THE CIVIL LAW VIII. RIGHTS AND DUTIES OF SOVEREIGN AND SUBJECT IX. SELF-INTEREST AND SELF-PRESERVATION X. COVENANT AND CONSENT XI. NATURAL LAW AND NATURAL RIGHTS PART III THE GROUND OF OBLIGATION XII. WILL, MOTIVE, AND THE HARMONY OF INTERESTS XIII. OBLIGATION BASED UPON SALVATION XIV. OBLIGATION BASED UPON COMMAND AND LAW XV. CONCLUSION: MIGHT AND RIGHT IN HOBBES'S PHILOSOPHY APPENDIX. OTHER INTERPRETATIONS REFERENCES INDEX -xi-

1 13

30 48 80

103 146 177 200 222 250

266 278 299 312 330 338 341

INTRODUCTION policy, and destructive to all relations of mankind, between prince and subject, father and child, master and servant, husband and wife; and . . . they who maintain them obstinately, are fitter to live in hollow trees among wild beasts, than in any Christian or political society. So God bless us.' Bishop Bramhall on Hobbes (E.W., vol. 5, p. as)

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T is commonly asserted that Hobbes is a logical thinker where this ought to be a matter for debate. This may be due in part to the fact that the first two centuries of commentary upon Hobbes's work were directed mainly towards refutation of his premisses or conclusions, and the earlier critics were often willing to concede the logical nature of his argument provided that its pessimistic, if not diabolical, character were also recognized. During the last hundred years, however, there has been a greater tendency to treat the initial assumptions of Hobbes's system with academic neutrality, and to concentrate upon alleged logical defects within the system itself. It has been pointed out, for example, that Hobbes's materialism and theory of motion are not consistent with his phenomenalism or with his egoistic psychology; that his account of reason and of names will not bear the weight that has to be put upon it; or again, that his ethical and political theory requires a fresh start and is related only in an approximate and confused way to his first principles. And yet the contemporary account of his doctrine still closes with a tribute to his logical rigour. If Hobbes's system as a whole is ignored, and attention focused upon his ethical and political theory, often regarded 5774

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as his main contribution to philosophy, the same situation obtains. Hobbes himself, it is true, appears to have been troubled by little doubt on this matter; he concludes the Leviathan with the assurance, '... as to the whole doctrine, I see not yet, but the principles of it are true and proper; and the ratiocination solid'.1 In the De Cive, he makes a similar claim, making exception only of his defence of monarchy, 'which one thing alone I confess in this whole book not to be demonstrated, but only probably stated'.2 Commentators have been inclined to concede this claim to a remarkable degree, but to deny the evidence for it. Hobbes's treatment of the psychology of man has been challenged since Shaftesbury by those who have argued in support of some basic altruism in human nature. Even within his psychological framework, however, Hobbes has been accused of presenting a confused mixture of naturalistic and non-naturalistic ethics, of employing the concept of natural law with different meanings on different occasions to suit his own convenience, or of producing a theory of obligation that in fact condemns the rebel only when he is unsuccessful. Where such charges are not made, moreover, the exposition of his argument which is presented is normally one in which there are clearly gaps in the reasoning or points which are defended by a number of mutually destructive 'proofs'. The effect of this particular combination of praise and explicit or implicit criticism of a destructive kind, has been to produce a strong expectation that there is a core of logical argument in Hobbes's philosophy and a great deal of doubt as to what that argument is. The most pressing task for the commentator at the present time is, consequently, to piece together Hobbes's argument in so far as it may legitimately be done. Of recent years an attempt has been made to evade this issue by advising the student of Hobbes's doctrine not to take 1

Leviathan, English Works (Molesworth ed.), vol. 3, p. 710. Philosophical Rudiments concerning Government and Society. E.W., vol. 2, p. xxii. We have followed the usual procedure of using the Latin title of this work for general purposes, in preference to the more cumbersometitleof the English version given in Molesworth's volume. 2

T H E PROBLEM

his writings too literally, or else to regard them as providing a perspective rather than an argument. This advice would not have pleased Hobbes, nor does it satisfy those who are concerned with the propositions he may be said to establish. In any event, despite his reputation as a philosopher, Hobbes has rarely been granted the close scrutiny accorded to others. His works have been read by pages, when those of many smaller figures have been read by sentences. For this, it is true, he may himself be largely to blame; the vitality of his style and the colour of his thought encourage vigorous if not reckless handling. Nevertheless, a more detailed study of his theory may correct the effects of this treatment. A comprehensive account of Hobbes's philosophy from this point of view lies outside the scope of the present inquiry. An attempt is made, however, to discover the logical structure of his argument in one of its central aspects, namely his theory of obligation. Although this is only a part of Hobbes's doctrine, it is an important part and has wide-spread implications. If the burden of his ethical and political theory is to demonstrate that, in some sense, the citizen ought to obey the civil law, and if his argument is to survive, his general theory of obligation must be capable of consistent formulation. Although Hobbes's theory of obligation has rarely been discussed directly and in any detail, most writers who have concerned themselves at all with his ethical and political philosophy, have been forced to discuss it at least by implication. Many interpretations, therefore, exist and they exhibit considerable variety. Nevertheless, a commentator who sets out to explain or to explain away what Hobbes says about obligation, may, in general, take only one of three paths, and the views which have been held upon this subject may, accordingly, be classified under three main heads, as follows. I. The possibility of the entire project of expounding Hobbes's theory of obligation may be questioned on the ground that there is no such theory to be found in any significant form in his doctrine. On this view, Hobbes's ethical and political philosophy is

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essentially a theory of how men do act, but in spite of appearances to the contrary, it does not offer any further theory concerning how men ought to act, which can in any way differ from this. It would allow of a theory dealing with men's observance of laws of the type studied in natural science— generalizations about what happens, and the term obligation could be used in this connexion, as when we might say that a person falling from a cliff is obliged to fall with a certain acceleration, which is no more than to emphasize the invariable and involuntary nature of his action. Such an interpretation, however, rules out any normative use of the term, obligation, and denies the existence in Hobbes's work of any theory of obligation which is properly applicable to laws of a moral or legal character. Hobbes is therefore to be regarded, for example, as having put forward a number of psychological principles as facts or empirical generalizations, to the effect that men seek their own interest or selfpreservation. He is then entitled to describe and compare the operation of these principles under different circumstances; in particular when men live under a sovereign authority and when they do not. He may also point out that men are not always efficient or economical in pursuing these objectives, but he is able to offer no further theory concerning whether they ought to pursue them or to be efficient in doing so. It follows also that there is no theory of the general obligation of the citizen to obey the civil law, for in such a context there is no cause to introduce the concept of obligation at all. The only kind of principle which would be relevant to the introduction of such a term would be a scientific generalization of the form that men always do in fact obey the civil law. But such an assertion is clearly untrue and not intended by Hobbes when he maintains that the citizen is obliged to obey the commands of the sovereign. Thus Hobbes's use of the term obligation, with regard to civil obedience is illegitimate, and his political theory, properly appreciated, becomes, say, an analysis of power relationships, more or less effectively exploited, in which the citizen will obey the sovereign or rebel as the case may be.

THE P R O B L E M 5

If this kind of interpretation is correct, any suggestion there is to be found in Hobbes's works of a theory of obligation that goes beyond this point, falls to be explained outside his philosophy. It is to be regarded as a subterfuge or a piece of refined propaganda on Hobbes's part, used in order to induce men to obey the civil law without giving real reasons why they should; or it is a device designed to avoid public outrage or religious persecution; or, alternatively, it is the product of complete misunderstanding by Hobbes and sheer confusion. This view has not often been advocated in a straightforward fashion. But, of the modern British commentators, Sir Leslie Stephen appears, with some hesitation, to have accepted it,1 and many who have concluded that Spinoza provided the logical conclusion of Hobbes's political philosophy have approximated to it in varying degrees. The interpretation which has been described is examined briefly at appropriate stages of the argument below.2 In so far, however, as the proper answer to such a denial of a theory of obligation in Hobbes's philosophy is to state what that theory is, the whole of the inquiry which follows may be taken as a reply to this charge. The remaining two classes of interpretation admit of more scope in Hobbes's theory of obligation, and may be distinguished as follows. 2. It is contended that on Hobbes's theory, a generically new type of obligation comes into existence with the institution of civil society. Normally, on this interpretation, the type of obligation which is taken to bind the citizen to obey the civil law is moral obligation. Although the general formula given above will accommodate other cases, this view may be presented, therefore, in terms of moral obligation and may be summarized as follows: Hobbes's State of Nature is a moral vacuum; moral obligations begin only in civil society and moral distinctions become valid only through the alchemy of a sovereign will. 1 1

L. Stephen, Hobbes. See, e.g., pp. 156-7, 208 ff. See, e.g., below, pp. 8 ff., 99-100, 312 ff.

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It follows that the so-called laws of nature or divine laws in Hobbes's theory do not impose moral obligations upon the individual apart from their being the commands of the civil sovereign, though it is, of course, possible that they may oblige in a quite different sense. In one of the most recent and most notable commentaries upon Hobbes's work, Professor Oakeshott has given, in some detail, an interpretation of Hobbes's theory of obligation that falls into this category.1 It is the argument of the present work that this class of interpretations of Hobbes's theory of obligation does not represent the most probable construction to be put upon Hobbes's text and that an alternative explanation can be justified on these grounds. It is further contended below, that any account which relies upon the postulate that a generically new kind of obligation comes into being with civil society, has the effect of reducing considerably the value of Hobbes's argument, as all these interpretations can be shown to reduce either to a dogmatic assertion that the citizen is obliged, or to a merely circular argument to the same end. A moral obligation, for example, to obey the civil law cannot logically be extracted from a system in which man has no moral obligations before or apart from the institution of that law. Any view that assumes otherwise, contains a hiatus in the argument that cannot be surmounted, and if, in fact, this is Hobbes's position, he must be held to have failed in his main enterprise. The original postulate common to interpretations of this class, however, may be put into a more subtle form by distinguishing a number of different types or senses of obligation in Hobbes's theory. Indeed, as we shall see, such interpretations can be plausibly stated at all, only if at least three distinct senses of the term, obligation, can be established as being used in Hobbes's doctrine. But even if this expedient is employed, our objection remains, and is simply translated into 1 M. Oakeshott, Introduction to the text o£ Leviathan, pp. xl-l, Iviii-lxvi. This interpretation, though supported on other grounds, is also put forward, for example, by L. Strauss in The Political Philosophy of Hobbes. (See, e.g., PP. 69, 129.)

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more specific terms. If the subject is to be regarded as obliged in sense 's', to obey the civil law, he must be regarded as obliged in sense 's' to something in the State of Nature; if he has a moral obligation to obey the commands of the sovereign, he had a moral obligation of the same type to something before the sovereign was instituted, or, put into a less historical mode, he would have some obligation of this sort apart from the sovereign and all he does. In other words, the civil sovereign can never himself provide the moral foundation which is to be used in his own justification. 3. The third class of interpretations of Hobbes's theory of obligation is the one to which the present study belongs, and is based upon the postulate that the obligation of the citizen to obey the civil law is a type of obligation that is essentially independent of the fiat of the civil sovereign. This view implies that there is in Hobbes's philosophy a theory of an obligation of the same type, that runs through the whole of his account of man, both apart from and within civil society. Hence if the obligation to obey the civil law is a moral obligation, men have moral obligations in Hobbes's State of Nature. The most sustained attempt to carry out an interpretation of Hobbes's doctrine on these lines is to be found in an article by A. E. Taylor,1 which differs, however, in a number of important respects from the analysis presented below. The purpose of the present inquiry is to provide an alternative interpretation of Hobbes's theory of obligation rather than to give a systematic exposition and criticism of other views that have been taken upon this subject. The works of other commentators are not, therefore, treated at length, especially where, as is often the case, they have not considered the problem directly and in detail. Some of the assertions which they have made, however, have inevitably to be met at appropriate stages of the argument below; and a brief statement of the very different interpretations put forward by Professors 1 A. E. Taylor, "The Ethical Doctrine of Hobbes', Philosophy, vol. xiii (1938), pp. 406-24. Similar in character are the conclusions of S. P. Lamprecht as put forward in his 'Hobbes and Hobbism' (The American Political Science Review, vol. xxxiv (1940), pp. 31-53) and his introduction to the text of De Cive.

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Oakeshott and Taylor will be found in an Appendix to the present work, together with an indication of the points at which they diverge from the account which we have given. Types of obligation It will be necessary to add a brief comment upon the different meanings or types of obligation to be encountered in Hobbes's writings, though the more detailed evidence upon this subject must be deferred. In the De Cive Hobbes maintains that there are two types of natural obligation: One, when liberty is taken away by corporal impediments, according to which we say that heaven and earth, and all creatures, do obey the common laws of their creation. The other, when it is taken away by hope or fear, according to which the weaker, despairing of his own power to resist, cannot but yield to the stronger. From this last kind of obligation, that is to say, from fear or conscience of our own weakness in respect of the divine power, it comes to pass that we are obliged to obey God in his natural kingdom; reason dictating to all, acknowledging the divine power and providence, that there is no kicking against the pricks.1 These two types of obligation may be readily distinguished by the fact that whereas the first type does not implicate the will of the individual at all in the actions that he is obliged to do or refrain from doing, the second type of obligation does implicate his will. Thus, there is one type of natural obligation that concerns involuntary actions; and one type that concerns voluntary actions, and these, moreover, exhaust all the types of obligation that are to be found in Hobbes's doctrine. As Hobbes writes sometimes of 'natural obligation', and at other times simply uses the word 'obligation', it may be argued that, in the passage quoted above, he did not intend to give a complete list of the types of obligation which he employs in his philosophy, but merely enumerated a special group of natural obligations. We shall maintain, however, that 1

De Cive, E.W., vol. 2, p. 209.

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9

all obligation in Hobbes's doctrine reduces to 'natural obligation'. Although, as we shall see, obligations differ with different circumstances, new types of obligation are not involved, and though the pattern of obligations may alter, what it means to be obliged is not affected. Here it may be indicated briefly, that the obligation of the citizen to obey the civil law, which is our chief concern, is regarded by Hobbes as being grounded upon an obligation which he describes as a 'natural obligation', and hence, presumably, he covers this case in the types of obligation enumerated above. For a civil law, that shall forbid rebellion, (and such is all resistance to the essentialrightsof the sovereignty), is not, as a civil law, any obligation, but by virtue only of the law of nature, that forbiddeth the violation of faith; which natural obligation, if men know not, they cannot know the right of any law the sovereign maketh.1 Thus we shall hold that whenever Hobbes uses the term, obligation, it bears one or other of the two meanings that correspond to the two types of natural obligation which he distinguishes. The type of obligation mentioned first in the passage quoted above—the corporal impediments according to which heaven and earth obey the laws of their creation—may conveniently be called physical obligation. It involves the type of involuntary obedience that is given to the laws of natural science and is concerned with sheer physical constraint whether exercised by inanimate objects or by human agents, as when, for example, the bodies of men must obey the laws of physics whether they fall or whether they are pushed by others. Physical obligation does not, however, play an important part in Hobbes's doctrine. It is rarely mentioned in his work and then for purposes of distinction or exclusion, and Hobbes himself implies, elsewhere, that this; particular 1

Leviathan, E.W., vol. 3, pp. 323-4. This passage is considered in more detail below, at pp. 147-50.

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usage of the term, obligation, is exceptional or metaphorical.' It may, therefore,, with slight exception be safely neglected. The second type of obligation—the obligation to obey God in his natural kingdom, based upon fear of divine power—is, we shall contend, the normal meaning of the term in Hobbes's doctrine and the proper subject-matter of the present inquiry. This type of obligation may be called moral obligation to distinguish it from physical obligation, but this description does not carry all the implications which may be supposed. As we shall see, this type of obligation, as it is found in Hobbes's theory, presents some unusual features and there may be some difficulty in calling it moral obligation as the term is commonly used. It is, nevertheless, what stands for moral obligation in Hobbes's doctrine—it is moral obligation as he saw it and it is the type of obligation which he regarded as binding the citizen to the civil law. The term may, therefore, be used as the best approximation available until a more precise analysis can be given. Thus, as against those interpretations of Hobbes's political philosophy which rely upon the postulate that moral obligations begin only in civil society and require, for their consistent statement, that further types of obligation be distinguished in his account, it is contended that Hobbes uses the word, obligation, with only two distinct meanings and that one of these usages is exceptional. Apart from a marginal reference to physical obligation, he uses the word consistently to mean moral obligation as he conceived it. The expression, 'political obligation' is not found in Hobbes's writings; it has, however, a convenient use in commentary upon his work. As employed in the account given below, it does not signify a new type of obligation, but simply a particular content of obligation, and is merely a contracted description for the obligation of the citizen to obey the civil law or the commands of the sovereign.2 As indicated, in Hobbes's philosophy this is a moral obligation as Hobbes con1

See, e.g., Leviathan, E.W., vol. 3, p. 344 (quoted below at pp. 83-84). For the different use of the term, political obligation, made by Professor Oakeshott, see below, pp. 331-3. 2

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n

ceived it, and therefore can only be completely evaluated when his particular conception of moral obligation has been analysed. After a further introductory chapter, in which the framework of the discussion is presented, the present study is divided into three parts: In Part I, an examination is made of obligation in Hobbes's State of Nature, and a complementary account of obligation in civil society is the theme of Part II. In these two Parts, an attempt is made to show the relationships which hold, in Hobbes's theory, between those things that the individual is obliged to do and, equally necessary, between those things that the individual cannot be obliged to do. The case is here presented for the view that there is a single and consistent theory of obligation connecting the duties of man, considered apart from civil society, with those of the citizen. In other words, Part II will be concerned with a particular application of the theory of obligation presented in Part I. This theory as it affects both the State of Nature and civil society, may be regarded in the first place as a theory of a persistent moral obligation to obey natural law. In Part III the moral obligation to obey natural law is, in turn, examined with a view to discovering the ultimate ground of this obligation and determining more precisely the character which natural law exhibits in Hobbes's doctrine. The conclusions reached in this Part, however, are more open to conjecture than those offered in the earlier sections, and a number of alternative solutions have to be considered. Nevertheless, any of the solutions of which account has to be taken, will fit the requirements of the previous study. The logical pattern of obligations (rights and duties) in Hobbes's philosophy is largely independent of the final and completed analysis that is given of his term, obligation, and a great deal of the discussion which follows can be conducted profitably with a central concept that is not completely evaluated. The division between Part III and the earlier sections, therefore, represents more than a convenient break in the argument. A rejection of the

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conclusions of the final section does not of itself prejudice the conclusions which precede them, and against these a further case would be required. It is in order to preserve the validity of this distinction that Hobbes's term, obligation, is not elaborated at an earlier stage of the argument than the occasion demands.

II THE

FRAMEWORK

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H

OF

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O B B E S ' S doctrine contains a theory of what the individual is obliged to do; it also contains, however, a theory of what the individual cannot be obliged to do, which is worthy of examination upon its own merits and which has been largely ignored. These two theories are related to each other, but they are, nevertheless, distinct and stem from different roots. Whereas the theory of what the individual is obliged to do derives from Hobbes's treatment of the prescriptions of natural and civil law and the account that is to be given of the authority which they bear, the theory of what the individual cannot be obliged to do derives from Hobbes's logical analysis of what is implied in being obliged. These implications which are mere logical articulations of what Hobbes means by moral obligation, are independent of the source of men's duties and so stand apart from his whole theory of natural law. These same implications are mixed, moreover, with empirical postulates to give a further series of principles made applicable to human nature, as Hobbes saw it, and to the varying circumstances in which men find themselves. If the separation is maintained between Hobbes's account of obligations and authority, on the one hand, and his analysis of the term, obligation, and its applicability to human conditions, on the other hand, his argument can be seen more clearly and a guide is provided to the problem of how much or what part of Hobbes's doctrine is rejected, when certain of his propositions are denied. It will be convenient to provide labels for various aspects of the type of moral obligation that is to be found in Hobbes's philosophy.

T H E F R A M E W O R K OF T H E D I S C U S S I O N 14

T h e main aspects to be distinguished are: 1. T h e grounds of obligation. 2. T h e validating conditions of obligation. 3. T h e instruments of obligation. T h e conditions of moral obligation in general are simply the conditions which must be satisfied, or the factors which must be present, before the individual can be obliged. Not all these conditions or factors, however, play the same part in giving rise to obligations; some conditions constitute obligations in that an action is obligatory because it fulfils this or these conditions, and its obligatoriness derives from this source. Such a condition or factor we call a ground of obligation. Thus if, for example, the ground of obligation is conformity to the will of God, and if 'x' is obligatory, it is obligatory because God wills 'x'. T h e ground of obligation in Hobbes's doctrine is revealed when the ultimate answer is given to the question of why the civil law obliges, or, taking the problem a stage farther, to the question of why natural law obliges, and belongs to the theory of what the individual is obliged to do. There are other conditions of obligation, however, which are not grounds. Their function is not to constitute obligations, but they are conditions which must be satisfied if a ground of obligation is to be operative. Apart from their conjunction with such a ground, however, they are not related to obligation at all. Such conditions may be termed validating conditions of obligation, or if they are expressed in their negative form, they may be called invalidating principles, in that they state the absence of some validating condition that by its absence renders inoperative some ground of obligation. Though this particular use of terms is unfamiliar, it may readily be illustrated. Validating conditions that are found, explicitly or implicitly, in nearly all ethical systems are the conditions of sanity and maturity. This is often expressed by the assertion that obligations do not apply to lunatics and

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15

children. In such ethical systems, however, the individual is not obliged, because he is sane or because he is adult, in the sense in which he is obliged because of the particular grounds which these systems may propose. If 'x' is obligatory, for example, because God wills it, or because it tends to the greatest happiness of the greatest number, it is obligatory for an entirely different class of reasons because the subject of the obligation is sane and mature. Nevertheless, the individual cannot be obliged if he is insane or a child. Sanity or maturity, therefore, operate in most ethical systems, as they do in that of Hobbes, as validating conditions for obligations deriving from another source; or, to convert to the negative form, insanity or immaturity operate as invalidating principles for such obligations. It is clear that in the absence of the grounds for moral obligation themselves, these validating conditions have no necessary connexion with obligation, and we could deduce nothing at all regarding our duties from the assumption that they were satisfied. In terms of the example taken above, to say that a person is sane and adult is not, of itself, to say anything at all about his obligations, and would be consistent with his having no obligations whatsoever. Thus, validating conditions, taken strictly by themselves, supply no key, not even a formal key, to the content of duties, and leave the possible content of duty as wide and unspecified as it was before. T h e example noted above, however, will serve to illustrate a further characteristic of validating conditions of obligation. Though they do not prescribe a content to duty, they do present the classes of persons to whom obligations at any point apply. T h u s any ethical system which employs the validating conditions of sanity and maturity, and specifies grounds of obligation 'x', will be of the form 'x-type actions are obligatory for sane persons and mature persons'. It is submitted, in the present work, that although not always stated explicitly, the relationship of obligation always bears some pattern of this form. When stated properly, obligations show the following general formula—action of type 'a' is obligatory for persons


of class 'p'. In such a relationship, in the terms defined above, Grounds of obligation specify 'a', the type of action. Validating Conditions specify 'p', the class of persons. It may be objected at this point that we have made a completely artificial extension of the relationship of obligation by stipulating in general that a reference to a class of persons is always implied. In connexion with such an objection, it must be admitted that it is logically possible to construct an ethical system in which there are no validating conditions. Then the grounds of obligation would be the sole conditions of obligation. Even in the case of such a system, however, we should assert that the most complete formulation of obligations would be of the form 'actions of type " x " (the grounds) are obligatory for all persons'. This has at least the advantage of showing the ethical system in question to be the limiting case which in fact it is. It may be replied, moreover, that although it is logically possible to construct an ethical system without validating conditions, it would be extremely difficult to find a use for such a system or to find an instance that had actually been put forward in the history of moral philosophy. T o take the matter no farther, an ethical system that required insane persons, for example, to be obliged in exactly the same way as sane persons, would present a very unusual appearance. It may again be objected that such a reply avoids the main issue, which is the propriety of redefining the relationship of obligation in order to accommodate exceptional and irrelevant cases. In other words, the use of the term 'person' in the formula given above is unjustifiable in a theory of obligation, for such a theory deals only with rational beings, and an insane person, for example, is not a person in any sense pertinent to it. It may be answered, however, that this objection implies an undue impoverishment in the philosophical terms to be used in the discussion of a theory of obligation. Theories of obligation do not deal only with rational beings and it is


17

to be noted in this connexion that even Kant, for example, who took this matter to some extremity, did not provide a theory of obligation for rational beings (for the Holy Will has no obligations), but a theory for imperfectly rational beings, which is by implication, at least, a wider concept. In any event some validating conditions are such that it would be extremely difficult to regard the class of persons excluded from obligation as not being persons. In many ethical systems, children are excluded from obligation, yet it is not very plausible to say that they are not persons. Still further, in Hobbes's doctrine, we should be forced by the same token to say that atheists or 'insecure men', for example, were not persons, which becomes increasingly artificial. Even if we take the most unfavourable case, that of insane persons, there is a sense in which such persons are at least potential subjects of moral obligations in a way that chairs and tables, for example, are not. It is useful, therefore, to employ a term which means any one who is actually or potentially a subject of moral obligations under any possible circumstances. This gives the maximum extension of the class of those who may be obliged, and the definition of 'person' as this term is used in the formula presented above. T h e temptation to raise the objections which have been stated, springs from the fact that in most ethical theories the problem of the validating conditions of obligation and that of the potential subjects of obligation are not treated explicitly or are not, for various reasons, of great significance. In Hobbes's doctrine, however, they are of considerable importance and the framework of the discussion must be expanded accordingly. T h e conditions of obligation are so intimately connected with the concept of rights, that an introductory comment upon this topic is also required.

5774

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Hobbes's Theory of Rights Hobbes uses the term right with two distinct meanings: (1) as that to which one is morally entitled; (2) as that which one cannot be obliged to renounce. These two usages merit further examination. 1. A 'right', as the term is generally used in moral and political philosophy, means something to which one is morally entitled. In this sense, it is used as a comprehensive description of the duties of other people towards oneself in some particular respect. T h u s a phrase such as 'a right to property' may be translated into a series of statements that set out the duties of neighbours or of the State towards oneself with regard to various kinds of property. It may be noted, however, that used in this sense, the term 'right' has a rhetorical rather than a philosophical value. Whatever can be said in the rightsformula can be said in the (other people's) duties-formula, and therein stated more precisely. When a person asserts his right to property, for example, he usually asserts something extremely complicated; other people ought not to burgle his house, the State ought not to take his house compulsorily except in the public interest and after paying fair compensation, nor to tax him except under a general law, passed in an assembly in which he is represented, and so on. Any serious examination of this alleged right would have to be a scrutiny of the duties-formula that corresponds to it. T h e rightsformula, therefore, is a loose, summarizing expression that would be useful in an argument where others are denying this right, or where longwindedness is to be avoided, or where its emotional and personal reference is to be emphasized, but, as a vehicle of philosophical inquiry, it is insignificant. Hobbes uses the word, right, with this sense of entitlement on some occasions, particularly when he is discussing the rights of the sovereign. It is not, however, an important use in his theory and he never breaks philosophically new ground with such an instrument. As we shall see, the points covered


19

by this term are more precisely determined by a corresponding duties-formula, and it is the duties-formula that has to be reckoned with, both in constructing Hobbes's argument and in criticizing it. Sometimes, it is true, the rights-formula has historical interest, as when Hobbes asserts that the sovereign has the right to levy money or raise troops—an argument to be used against those of his contemporaries who contended that the king was not entitled to take such measures. But the defence of this position depends essentially upon the dutiesformula for the subject and for the sovereign. In fact, taken by themselves, some of Hobbes's statements about the rights of the sovereign can be definitely misleading as they appear to imply a universal obligation upon the citizen to obey his commands. If the duties-formula is examined, however, it will be seen that the subject would not be obliged, for example, by a command that he should commit suicide, nor by any command if the sovereign had lost the power to protect him, and this represents the considered statement of Hobbes's doctrine. Rights, in the sense described above, are concerned with the specification of the content of (other people's) duties, and belong, with the grounds of obligation, to the theory of what the individual is obliged to do. Such rights are merely the shadows cast by duties, and are not considered again in the present chapter. 2. Hobbes uses the word, right, however, in another and philosophically more important sense. Here it specifies something that the individual cannot be obliged to renounce. Whereas in the sense considered first, rights are the shadows of duties, in the present sense they are the antitheses of duties and a right is a freedom or exemption from obligation. It is in this sense that Hobbes defines right when he is considering the matter strictly. In a notable passage from the Leviathan, for example, he declares: For though they that speak of this subject, use to confound jus, and lex, right and law: yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear; whereas LAW, determineth, and bindeth to one of them: so that law, and right,


differ as much, as obligation, and liberty; which in one and the same matter are inconsistent.1 It is with this meaning that Hobbes speaks of the 'true liberties' of the subject, which, as we shall see, are concerned with those things that the citizen cannot be obliged to do. 2 It is also the type of right exemplified by the so-called 'right to all things' in the Hobbesian State of Nature. T h u s Hobbes's 'right to all things', for example, does not imply that men are entitled to everything, but that th cannot be obliged to renounce anything. These two cases have different implications; if a man is entitled to all things, others have duties to make provision for him, but if the situation is that he cannot be obliged to renounce anything, other people may still, consistently with duty, resist him or even take away that to which he has a right in the sense relevant. Likewise, a right to life or to self-preservation, in Hobbes's doctrine, does not signify that the individual is entitled to life, in the sense that other men or the sovereign have a duty to spare him; it signifies that the individual cannot be obliged to renounce his life and so it is always consistent with duty for him to resist or escape attempts upon his life. But with this provision, such a right is exhausted, and if, for example, fellow citizens have a duty to refrain from killing the individual, this will derive from the civil law, forbidding murder, or from another source, and not from his right to life. Likewise, the sovereign may attempt to put a subject to death and the subject may resist violently, and both sovereign and subject be completely justified. These are typical situations in Hobbes's philosophy. T h e fact that Hobbes uses the word, right, on some important occasions with the unusual meaning of freedom from obligation, has been emphasized at various times since Pufendorf. 3 Those who have noted this usage, however, have tended to condemn it as a weakness or confusion in Hobbes's theory, 2 See below, pp. 188-95. Leviathan, E.W., vol. 3, p. 117. See, e.g., Pufendorf's De Jure Naturae et Gentium, 1. vi. 10; 11. ii. 3, 4, 9; II. iii. 16. 1

3


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on the ground that rights, properly understood, always imply duties to abstain on the part of other people. This section of Hobbes's doctrine, therefore, has been discounted as a mistake, rather than brought forward as a contribution to political philosophy. At other times, the special nature of rights in Hobbes's theory has been overlooked; he has then tended to be taken as the father of modern political philosophy in basing his defence of the State upon rights; or, for example, he has been held to deduce obligations from his 'rights of nature'. Such estimates, however, are in need of revision. T h e first assertion has to be modified in view of the fact that political philosophy since Hobbes has generally used the word, right, to mean entitlement and so has departed from his principal use of the term. The second assertion leads to paradox. If Hobbes bases obligations upon rights of nature, and we take account of Hobbes's definition of right, he must be held to base obligations upon freedoms from obligation and it is difficult to see how this can, legitimately, be done. T h e answer to this paradox, however, is that this is not Hobbes's position, for the rights of nature do not belong to Hobbes's theory of what men are obliged to do, but to his theory of what they cannot be obliged to do. There is, then, an important use of the term, right, in Hobbes's doctrine that implies a freedom from obligation. Thus: a duty is what a person is obliged to do; a right is what a person cannot be obliged to renounce. Rights, in this sense, do not imply corresponding duties in other people, and belong, with the validating conditions of obligation, to the theory of what the individual cannot be obliged to do. Validating Conditions of Obligation and Rights T h e anatomy of the theory of what the individual cannot be obliged to do, becomes more apparent if we consider the


relationship between validating conditions of obligation and rights, taken in the sense of freedoms from obligation. As indicated above, the validating conditions of obligation are conditions that must be satisfied if a ground of obligation is to be operative. Thus, if an ethical system is considered, for example, in which the sole ground of obligation is 'x' (say production of the greatest happiness) and the sole validating condition is sanity, the following assertion is made: 'All sane persons are obliged to do x-type (greatest happiness producing) actions', though the implication of this assertion is brought out more clearly if it is written 'all persons are obliged to do x-type actions, except insane persons'. If attention is given to the position of the insane persons in this formula, it is apparent that they cannot be obliged within the ethical system presented. They have no obligations and may be said to have a 'right to all things'. In this sense, an insane person could not be obliged, for example, to refrain from crime, but other people could be fully justified in resisting him or shutting him into a safe place. Thus the right to all things is an absence of obligation that carries no implication of corresponding duties for other people. It is the general 'right' of persons who are dispensed from obligation by a validating condition, and this is how the term is used by Hobbes. Such a dispensation, however, is specific to a given ground of obligation, and in a system of multiple grounds of obligation a given validating condition may serve to dispense a given class of persons from x-type actions, but not from y-type or z-type actions, or in the latter cases it may dispense a different class of persons. If we consider the validating condition of maturity, for example, it may be that a philosopher who really tried to grapple with the problem, would propose an ethical system with a number of grounds, some of which obliged children, but others which applied only to adults did not. It would therefore be necessary to classify children with insane persons, for example, only for some grounds of obligation. On some grounds, they would have 'a right to all things';


23

on other grounds they would be obliged. 1 For any given ground of obligation, then, there may be a validating condition or a number of validating conditions that have the effect of separating the universe of persons into a class that satisfies the condition or conditions and is therefore obliged, and a class that does not satisfy these conditions and is dispensed from obligation. T h u s such validating conditions as sanity and maturity, or, to take examples more peculiar to Hobbes, security and belief in God, give classes of persons obliged, namely sane persons, adults, secure persons, believers, and classes of persons dispensed from obligation, namely lunatics, children, insecure persons, and atheists. T h e greater the number of validating conditions that apply to any ground, the smaller is the final class obliged, and the larger is the class free of obligations. Thus if all the validating conditions given immediately above, apply to one ground, only a sane, adult, secure believer is obliged and any person who is insane or atheistical, &c., is dispensed from the operation of that ground, and with regard to that ground has a 'right to all things'. If the ethical system has a number of grounds, the validating conditions are not necessarily identical for each ground, and the process must be repeated with each one of them. T h e validating conditions of obligation are a logical articulation of what is implied in being obliged. For Hobbes, 'ought' implies 'can', and the account of this principle as applied to human affairs is the account of validating conditions and rights, understood as freedoms from obligation. It will be submitted below that the principal validating conditions derived by Hobbes in this way are that (in order to be obliged) the individual (1) must be capable of knowing the law by which he is obliged, and (2) must be capable of having a sufficient motive to perform the action which it prescribes. 1 It is largely because such problems as the duties of children have been banished to a philosophical limbo, that the validating conditions of obligation have in the past been insufficiently examined.


Other validating conditions may be drawn from these. T h u s if we hold that an insane person cannot know the law, such persons cannot be obliged, and sanity is also a validating condition of obligation. U p to this point we have considered the validating conditions of obligation only in so far as they specify a class of persons who may be obliged, and hence by implication a class of persons dispensed or disqualified from obligation, who may be said to have 'a right to all things'. This would not be sufficient in itself, however, to provide an interpretation of the specific rights which are described by Hobbes as the 'true liberties' of the subject and which are logically on a different level from the 'right to all things'. In this connexion the function of the validating conditions is not terminated when they have prescribed the classes of persons obliged or free from obligations. They may further operate with regard to the specific obligations of the class of persons who are generally obliged. Thus, from the condition of sanity, we can immediately say that all insane people are free from obligations, and their position is relatively simple, But it may also be the case that the sane persons are free from some specific obligations on the same score, if we maintain that some specific actions imply insanity in the agent with regard to those actions. T h u s if suicide is always the act of a (temporarily) insane person, no one can be obliged to commit suicide. In this way, validating conditions of obligation operate selectively for persons within the general class of obliged persons, and dispense a freedom from obligation for some actions and not for others. T h e actions freed from obligation by such a formula, are the 'true liberties' of the agent. It is to be remarked, however, that the designation of specific rights always requires a supplementary hypothesis to be added to the validating condition, as such a condition in its pure form can only refer to classes of persons and not classes of actions. Thus, for example, the right to life or selfpreservation may be derived in the following way: I. T h e individual cannot be obliged to do that for which


25

he cannot have a sufficient motive (a pure form of a validating condition that would give a class of persons with a sufficient motive and a class without such a motive, 1 though either, of course, may be in fact a null class) and 2. T h e additional hypothesis that a person cannot have a sufficient motive to kill himself. But whereas the first principle is a logical principle derived from the analysis of obligation, the additional principle may be an empirical generalization, based upon observation or introspection. In some cases, therefore, it is necessary to distinguish between the validating condition of obligation and the extra principles used in its application, in order to separate the sphere of Hobbes's logic from the sphere of his psychology. Thus it is always possible to state rights (in the sense of freedoms from obligation) in the form of validating conditions of obligation. T h e right to self-preservation, for example, can be written as the validating condition that obligations must be consistent with it, and, therefore, that a person, otherwise obliged, cannot be obliged to do anything self-destructive. But in such an applied form, the validating conditions always rest in part upon supplementary hypotheses, and only in part upon the analysis of what is implied in being obliged. T h e theory of rights, in the sense of freedoms from obligation, cannot be deduced from the theory of duties though it is related to it. From a catalogue of duties, we can only infer what are not duties; we cannot find what cannot be duties—in other words, we cannot find rights. Likewise a negative 1 The validating condition regarding sufficient motive clearly has some unusual features. It is more formal than some of the other examples given above, such as the conditions of sanity and maturity, and, in the absence of supplementary principles, it is not so immediately instructive. It operates in essentially the same way, however, in that under the principle of sufficient motive, some types of action would be obligatory for some persons and could not be obligatory for other persons. In the present chapter, examples of validating conditions have been taken at random where they best illustrated the matter in hand or were intelligible without long explanation. T h e question of the hierarchy of such principles has not been considered, as this can be treated more profitably when Hobbes's text is examined. T h e character and role of the validating condition of sufficient motive are, therefore, presented more adequately below. See, e.g., pp. 87-97, 263-5; Ch. X I I passim.


inference from rights, would only give what may be duties, and not what are duties. Rights and duties, therefore, have separate theories. As indicated above, the validating conditions of obligation do not in any way specify the content of duties. In so far as they go beyond a classification of persons, they may, with the addition of supplementary hypotheses, specify the content of what cannot be duties. T h e theory of the validating conditions and the rights they designate is the theory of what the individual cannot be obliged to do, and in providing such a theory in addition to the theory of what the individual is obliged to do, Hobbes may claim to offer an entire theory of moral obligation, where others have left their task only half completed.

Suspended. Obligation and Prima-facie Obligation In general, when any of the conditions of obligation are unfulfilled, the obligation does not hold. An entirely different situation is produced, however, according to whether in any given case it is the ground of obligation or the validating conditions that are not satisfied, and in order to take account of this difference, two further terms will be employed. When the ground of an obligation is present, but one or more validating conditions pertinent to that ground are lacking, this case may be described as a suspended obligation. Again, when the ground is present, but it is not specified whether the relevant validating conditions are satisfied or not, this case will be called a prima-facie obligation. 1 In these situations, the hypothetical proposition is true that if validating conditions 'a' to 'n', were/are present, the individual would be/ is obliged. If, on the other hand, the grounds of obligation themselves are lacking, the situation may be described as a moral vacuum, whether the relevant validating conditions are satisfied or not. 1 This term is used here with a very different meaning from that given to it by Sir David Ross, and would, in consequence, have been avoided had it not been difficult to find an alternative expression to meet this case.


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These terms may be illustrated with some possible Hobbesian determinants for an ethical system, as follows: If we take the sole ground of obligation to be God's will, and validating conditions to be sanity and security, then: if there is nothing in the situation that God wills (no ground) there is no obligation at all and a moral vacuum; if, however, there is something which God wills which bears on the situation, then, if 'x' is what God wills, duties may be written out as follows: All persons are obliged to perform 'x' except insane persons and insecure persons, and for insane and/or insecure persons 'x' is a suspended obligation, and if it is not specified with regard to given persons whether they are sane and secure or not, for those persons 'x' is a prima-facie obligation. Likewise, if the validating condition were that the moral agent should think himself to be secure, then all persons would be obliged except those who thought themselves to be insecure, and the latter would have a suspended obligation, and so on. Suspended obligations and to a less extent prima-facie obligations, however, appear so readily to be concepts born to fall victims to Occam's razor, that further illustration of their use is desirable. W e assume for the occasion a simple system in which the ground of obligation is God's will and the sole validating condition is sanity. If, now, the entire membership of the community to which this system relates were to become insane, no one would have any obligations, but the hypothetical statement would be true that if the members of this society were sane, they would be obliged to obey God's will, and hence they may be said to have a suspended obligation to do so. T h e justification for describing the situation in this way rather than by the simple assertion that the persons involved have no obligations, is that it diminishes the tendency to draw false inferences from this position. T o continue; if we further suppose, for example, that a psychiatrist appears who cures these persons and restores them

T I I E F R A M E W O R K OF T H E D I S C U S S I O N 28

to sanity, their full obligations hold again. Can the psychiatrist, however, in this case be described as the creator of moral obligations or the founder of moral distinctions? He has restored a moral system under suspension by fulfilling the validating condition necessary for its operation, the sanity of the moral agent; but he has not created the system, and he controls or affects neither the grounds of obligation nor the validating conditions themselves in the sense that he decides what they shall be. That he is responsible for the fulfilment of the condition of sanity by the members of this community is itself a purely contingent fact—some of them might have become sane again by other methods. But even if he represents the only means whereby these persons could become sane again in multitudes or in any individual case, he is in no sense an architect or creator of their moral liabilities. W e shall contend, below, that this is essentially the position of Hobbes's civil sovereign and that he is concerned with the fulfilment of validating conditions of obligation, in a system of rights and duties that he does not himself control or create except in the most trivial sense. It is to sustain the difference between a state of affairs, on the one hand, where a moral system is in suspension because some of the validating conditions of obligation are unfulfilled, and a moral vacuum on the other hand where there are no grounds of obligation, that the notion of a suspended obligation is introduced. T h e use of the term, prima-facie obligation, shares the same defence. The Instruments of Obligation Finally, the instruments of obligation are the standard means whereby an obligation is incurred. Unlike the grounds of obligation, the instruments are pertinent to the question of how we are obliged, and not why we are obliged, though there is a connexion between these two problems. As we shall see, the sole instruments of obligation, in Hobbes's system, are laws and covenants. L a w is the instrument whereby obligations are imposed upon the individual; covenant is the instru-


29

ment whereby the individual takes obligations upon himself. Since these two instruments are the only means by which the individual can be obliged, the conditions of (valid) law 1 and the conditions of valid covenants are the conditions of obligation in general, and therefore supply a valuable key to both its validating conditions and its grounds. T h e framework of discussion presented above will be of assistance in the analysis of Hobbes's text that must now be undertaken. 1 As Hobbes uses the term (law), invalid law is not law, and so the expression, valid law, is superfluous. Hobbes does, however, still allow for a description of both valid and invalid covenants.

PART

I

OBLIGATION IN THE STATE OF NATURE III COVENANTS O B B E S' S theory of obligation begins with his account of man in the State of Nature—that is of man outside or apart from the State. 1 Even here, on Hobbes's view, the individual is bound by some obligations, though these obligations are always dependent upon the satisfaction of certain validating conditions. Taking the argument in the order presented in Leviathan, we learn in the first place that obligations may be incurred by covenant. Covenants, which have a technical meaning in Hobbes's writings, arise when individuals make a promise to, or an agreement with, each other, when there is a consideration or matter of benefit involved for both parties, and where one or both parties are to perform in the future and are to be trusted in the meantime.2 Any agreement which showed a deviation from these requirements would not be regarded as a covenant by Hobbes and would play a very different part in his theory.3 Covenants impose a prima-facie obligation4 upon the party or parties who have been trusted to carry out their pledges— 1 Hobbes writes at times as though this were an historical account of the condition of man before the State is established, but his State of Nature is a logical rather than an historical postulate. See below, pp. 237-42. 1 See Leviathan, E.W., vol. 3, pp. 120-1; De Cive, E.W., vol. 2, pp. 18-21. 3 On the difference between covenants and simple promises in Hobbes's doctrine, see below, pp. 233-5. 4 Defined above at pp. 26-28.

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an obligation which holds whether the original agreement was made from fear or from some more agreeable motive. Covenants entered into by fear, in the condition of mere nature, are obligatory. For example, if I covenant to pay a ransom, or service for my life, to an enemy; I am bound by it: for it is a contract, wherein one receiveth the benefit of life; the other is to receive money, or service for it; and consequently, where no other law, as in the condition of mere nature, forbiddeth the performance, the covenant is valid. . . . For whatsoever I may lawfully do without obligation, the same I may lawfully covenant to do through fear: and what I lawfully covenant, I cannot lawfully break.1 A covenant made from fear may be an unwelcome, but it is nevertheless, on Hobbes's view, a voluntary action, even where the subject covenants in order to avoid present death.2 As when men throw overboard a valuable cargo during a storm at sea for fear of shipwreck, the less of two evils is being chosen, and such a covenant obliges. In spite of his severity upon this point, however, Hobbes lays important limitations upon covenant as a source of obligations, and the passage which has been quoted above is an overstatement of his position in a number of respects. Only valid covenants are obligatory, and, according to Hobbes's theory, some covenants may be invalid ab initio and hence do not give rise to obligations, whereas others may be invalidated at some time after they are made and thereupon cease to oblige the parties concerned. A. The covenants that are invalid ab initio are those that: (i) are against the law. This principle operates mainly against the covenants that subjects may make to do things forbidden by the civil law. As affecting man in the State of Nature, which is our present concern, since there is here no civil law, the class of covenants ' Leviathan, E.W., vol. 3, pp. 126-7; see also, De Corpore Politico, E.W., vol. 4, pp. 92-93; De Cive, E.W., vol. 2, pp. 23-24. * See, e.g., Liberty, Necessity, and Chance, E.W., vol. 5, pp. 180, 260, 272.

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against the law is a null class,1 except for covenants which break the laws of nature themselves. Under this head, therefore, all covenants in the State of Nature are valid, except those inconsistent with the laws of nature.2 (ii) require the agent to perform something which is impossible for him to do. For Hobbes, 'ought' implies 'can', and the individual cannot therefore be obliged to perform an impossibility, though in the matter of covenants, he may, in some circumstances, be obliged to perform the nearest equivalent to what he has promised, that is open to him. And therefore, to promise that which is known to be impossible, is no covenant. But if that prove impossible afterwards, which before was thought possible, the covenant is valid, and bindeth, though not to the thing itself, yet to the value; or, if that also be impossible, to the unfeigned endeavour of performing as much as is possible: for to more no man can be obliged.3 Hobbes gives the further explanation that: Covenants are made of such things only as fall under our deliberation. For it can be no covenant without the will of the contractor. But the will is the last act of him who deliberates; wherefore they only concern things possible and to come. No man, therefore, by his compact obligeth himself to an impossibility . . . [etc.].4 (iii) purport to take away the right of the individual to defend himself in extremis. A covenant not to defend myself from force, by force, is always See in the passage quoted immediately a b o v e , . . where no other law, as in the condition of mere nature, forbiddeth the performance, the covenant is valid . . . ' . See also De Cive, E.W., vol. 2, pp. 23-24: 'It holds universally true, that promises do oblige, when there is some benefit received, and when the promise, and the thing promised, be lawful. . .' (etc.). 2 ' . . . they that vow anything contrary to any law of nature, vow in vain; as being a thing unjust to pay such vow.' Leviathan, E.W., vol. 3, p. 126. 3 Leviathan, E.W., vol. 3, p. 126; see also De Corpore Politico, E.W., vol. 4, p. 94. 4 De Cive, E.W., vol. 2, p. 23. T h e fact that covenants concern things to come may be taken as a part of Hobbes's stipulation that they concern things possible, and is not separately listed. 1

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void. For . . . no man can transfer, or lay down his right to save himself from death, wounds, and imprisonment, the avoiding whereof is the only end of laying down any right; and therefore the promise of not resisting force, in no covenant transferreth any right; nor is obliging.1 Upon a similar basis, Hobbes maintains that a covenant to accuse oneself, without assurance of pardon, is also invalid.2 With regard to the principle which stipulates that covenants purporting to take away the right of self-defence are invalid, the view will be taken, below, that this principle is a special case of the principle set out under the previous head, namely that the individual cannot be tied by covenant to the performance of impossibilities. This contention may be supported here from a passage in the De Cive: No man is obliged by any contracts whatsoever not to resist him who shall offer to kill, wound, or any other way hurt his body. For there is in every man a certain high degree of fear, through which he apprehends that evil which is done to him to be the greatest; and therefore by natural necessity he shuns it all he can, and it is supposed he can do no otherwise. . . . Since therefore no man is tied to impossibilities, they who are threatened . . . with death . . . [etc.]., and are not stout enough to bear them, are not obliged to endure them . . . . . . by the contract of not resisting, we are obliged, of two evils to make choice of that which seems the greater. For certain death is a greater evil than fighting. But of two evils it is impossible not to choose the least. By such a compact, therefore, we should be tied to impossibilities; which is contrary to the very nature of compacts.3 T h e remaining types of covenant which are initially invalid may be described more briefly. A covenant is void: (iv) where the individual has already covenanted away his right to the thing he pledges by a previous valid covenant. A former covenant, makes void a later. For a man that hath 1 3

Leviathan, E . W . , vol. 3, p . 127. De Cive, E . W . , vol. 2, pp. 25-26.

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D

Ibid., p. 128.

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passed away his right to one man to-day, hath it not to pass tomorrow to another: and therefore the later promise passeth no right, but is null.1 (v) where either party to the covenant has not declared his acceptance of its terms. It is on these grounds that Hobbes maintains that we cannot covenant with beasts, as they cannot understand and accept. Likewise no man can covenant with God, but by mediation 'of such as God speaketh to, either by revelation supernatural, or by his lieutenants that govern under him, and in his name: for otherwise we know not whether our covenants be accepted, or not'. 2 (vi) where the individual under covenant does not know to whom he is to perform it. T h e main use to which Hobbes puts this principle is in its capacity to invalidate covenants that were previously valid, and under it, covenants may become invalid with the death of a person to whom obedience is due. Thus, for example, in the case of a servant, . . . ignorance of who is successor to his deceased master, discharged him of obedience: for no covenant holdeth longer than a man knoweth to whom he is to perform it.'3 Likewise in a commonwealth, upon the death of the sovereign, ignorance of the succession removes the obligation to obey. 4 A t the same time, however, it is a principle that would invalidate covenants ab initio, and if a covenant were made to obey someone unknown, it would, under this principle, be invalid from the time when it was made. It is therefore included in the present group. Hobbes would probably have regarded this principle as another special case of the principle that the individual cannot be tied to impossibilities, and would, perhaps, have added the proviso that the individual ought to Leviathan, E.W., vol. 3, p. 127. See also De Cive, E.W., vol. 2, p. 24. Leviathan, E.W., vol. 3, pp. 125-6. See also, De Cive, E.W., vol. 2, p. 22. ' De Corpore Politico, E.W., vol. 4, p. 152. 4 See, e.g., ibid., p. 148. 1

2

COVENANTS

35

try his best to discover the person whom, if he succeeded, he would then be obliged to obey. There are thus, as described above, some types of covenant which are always invalid from the time when they are made. The principles which determine these cases, however, may be set down in another form as the conditions of initially valid covenants. In this form, the conditions which have been examined may be summarized as follows: A covenant is valid at the time when it is made, if it is a covenant to do something permitted by law, and if both parties have accepted it, and further, if it is not a covenant to do something known to be impossible, nor one resigning the right of self-defence, nor stipulating obligations to a person unknown to the party obliged, nor, finally, a covenant to give or do something, the right to which has previously been covenanted away. If a covenant satisfies this rubric, it is valid at the time when it is made and obliges at that time; if it fails to meet any of these provisions it is invalid and does not oblige. This holds true universally in Hobbes's philosophy, and applies alike to covenants in the State of Nature and to those in civil society. T h e operation of this rubric may, it is true, produce different results under different circumstances. Under the condition, for example, that a covenant must pledge something that is permitted by law, if it is to be valid, it may be that some covenants which would have been valid in the State of Nature are invalid in civil society. In fact, unless the civil law simply enacts the laws of nature and nothing more, it will constrict 'what is lawful', and so diminish the area of possible valid covenants. T h e principle itself, however, is not affected. T h e remaining conditions of valid covenants—that they cannot require the performance of known impossibilities, nor the resignation of a right to self-defence, and so on—operate still more obviously in civil society as they do in the State of Nature. One of the most characteristic features of Hobbes's doctrine of civil society is his repeated insistence that the subject cannot covenant away his right to resist attempts upon his life, and

36

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that a continuous right of self-defence in the face of extreme danger is, consequently, a basic limitation upon political obligation. 1 Up to this point, however, we have considered only those covenants which are invalid from the time when they are made, and the rubric derived from them concerning the validity of covenants. T h e conditions of validity enumerated above, therefore, guarantee only that a covenant is initially valid; they do not guarantee that a valid covenant will remain valid. Thus it may happen that a covenant which satisfies all these conditions, is invalidated at a time subsequent to the making of the covenant. It will, therefore, be necessary to examine those valid covenants, which become invalidated. B. Covenants which are invalidated at some time after they are made. Valid covenants are invalidated: (i) when all obligations under the covenant have been performed or forgiven. A covenant no longer obliges when the parties have discharged their pledges, or when those to whom obligations are owed have forgiven the persons obliged, and may, therefore, be said to be invalidated in this event. Men are freed of their covenants two ways; by performing; or by being forgiven. For performance, is the natural end of obligation; and forgiveness, the restitution of liberty; as being a retransferring of that right, in which the obligation consisted.2 These are, however, two special cases and do not belong to the context of the problem under discussion in the same way as the other examples considered. They are, nevertheless, introduced by Hobbes under the sub-title 'Covenants how made void' when he is dealing with the conditions of valid covenants, and are included here for the sake of completeness. See below, pp. 114-18, 188-95. Leviathan, E.W., vol. 3, p. 126. See also, De Cive, E.W., vol. 2, p. 23; where Hobbes adds the provision that the forgiveness is from *he whom we obliged ourselves to'. 1

2

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37

(ii) T h e conditions of initially valid covenants, considered in the preceding section above, may have been fulfilled at the time when the covenant was made, but some of them may fail to be fulfilled at a later time through a change of circumstances. If any of these conditions are no longer met, the covenant becomes invalid at this point and no longer obliges. Under the condition that a valid covenant must be lawful, for example, two citizens could covenant with each other regarding a matter permitted by the law, and this covenant would be valid. But if the sovereign subsequently passed a statute declaring the matter in hand to be illegal, the covenant would at that point become invalid and would no longer oblige the parties to it. In the State of Nature, however, this could not happen as the laws of nature are eternal and unchangeable. As far as these laws are concerned, therefore, a covenant which was initially valid and consistent with them could not fail later because of new law,1 though it might fail on other grounds. Examples have already been given of covenants which prescribed something thought possible when the covenant was made, but which later turned out to be impossible. These covenants no longer oblige to a performance of the pledge (but they do oblige to a bona-fide attempt to supply an equivalent service). Likewise, a covenant may prescribe an obligation to a person known at the time when it is made and it will be valid, other conditions being satisfied, but by a change of circumstances (the death of the person to whom the obligation is owed) it may be invalidated. Other conditions of the initial validity of covenants, however, have by their nature a once-for-all application. T h e requirement that both parties must accept the covenant and that a person cannot pledge what he has previously covenanted away, can operate only when the covenant is made, and if these two tests are passed initially the covenant cannot be invalidated on these grounds at a later stage. Thus a covenant which satisfies the 1 This applies only to the State of Nature, because in civil society, the civil law is an extension of the laws of nature. See below, pp. 159-68, 174-6.

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rubric for an initially valid covenant must continue to satisfy that rubric if it is to remain valid, and while some conditions of validity are such that once satisfied they are always satisfied, other conditions may fail to be satisfied under changed circumstances. One condition of initially valid covenants, namely that the individual cannot covenant away his right of resisting mortal danger, has not been considered in the preceding paragraph and requires separate treatment. In itself, it is a condition of the type that is satisfied once and for all, if it is satisfied initially. A specific covenant not to defend oneself in danger of death is always invalid, but covenants with a different content are not affected. This principle, however, derives from the same root as a further principle which applies to all covenants whatever their content, and which only operates to invalidate covenants which are initially valid. This further principle is that a covenant is invalidated if one party has a reasonable or just suspicion that the other party to the covenant will not perform his pledge. Both of these principles are based upon the incapacity of the individual to choose death or ruin before breach of covenant, for man of necessity shuns death as the greatest evil that can befall him. 1 From the point of view of human motivation, therefore, they are examples of the postulate that the individual cannot be obliged by covenant to perform impossibilities. In spite of their common root, however, these two principles are very different, in that one is specific and invalidates ab initio, whereas the other is general and invalidates covenants only at some time after they have been made. T h e latter principle plays such an important part in Hobbes's doctrine that it may be considered under a separate head. Valid covenants are invalidated: (iii) when one party to the covenant has a reasonable or just 2 suspicion that the other party will not perform his share of the agreement. This principle, like those considered above, is a part of 1 1

See above, pp. 32-33, and below, pp. 91-93, 188-95. In this context, Hobbes uses 'reasonable' and 'just' as interchangeable terms.

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39

Hobbes's general theory of obligation and has universal validity in his ethical and political system. But, although covenants are invalidated wherever this principle applies, its field of application will be different in different circumstances. In civil society the principle of just suspicion of non-performance is not applicable except in a limiting case, such as the dissolution of the sovereign power. If the individual has covenanted with others to obey the sovereign or if he has covenanted under the civil law with fellow citizens on the various matters of civil life (trade agreements, See.), these covenants (if lawful, &c.) are valid except, for example, where the sovereign has lost the power to defend the individual involved, or to ensure that others keep their bargains. Apart from such limiting cases,1 the invalidating principle is inoperative because, on Hobbes's theory, there is no reasonable cause of fear or suspicion in civil society of such a nature as to justify its being adduced. In fact, as we shall see, it is the function of the sovereign to take away the excuse of just fear or suspicion. In the State of Nature, however, this invalidating principle is of general application. Covenants, which would otherwise be valid,2 are here invalidated at any time between their contraction and their fulfilment by such a reasonable or just cause of suspicion. T h e essential argument is contained in the following passage: If a covenant be made, wherein neither of the parties perform presently, but trust one another; in the condition of mere nature, which is a condition of war . . . , upon any reasonable suspicion, it is void: but if there be a common power set over them both, with right and force sufficient to compel performance, it is not void. For he that performeth first, has no assurance the other will perform after; because the bonds of words are too weak to bridle men's ambition . . ., without the fear of some coercive power . . . . And therefore he which performeth first, does but betray himself to his enemy; contrary to the right, he can never abandon, of defending his life, and means of living.3 1 With regard to these limiting cases, for a more adequate description and further examples, see below, pp. 114-18, 149-50. 2 i.e. which were not contrary to natural law nor covenants not to defend oneself, &c. 3 Leviathan, E.W., vol. 3, pp. 124-25, or in the De Cive. 'But the covenants

11

COVENANTS

or . . . contracts are invalid in the state of nature, as oft as any just fear doth intervene.1 As, furthermore, in the State of Nature there is no agreed authority, each man must be judge of what is a reasonable cause of fear or suspicion in his own case. For it suits not with reason, that any man should perform first, if it be not likely that the other will make good his promise after; which, whether it be probable or not, he that doubts it must be judge o f . . . .'2 Thus, in the State of Nature, any man is entitled not to perform what he has covenanted to do, if, in his own opinion, there is reasonable doubt about the performance of the other side. Hence of no single particular covenant, where both parties are to be trusted, can it be said that the obligation necessarily holds, for any circumstance, however unlikely to the external observer, is capable of being a reasonable ground of fear for some man. This is clearly a grave limitation upon the efficacy of covenanting in the absence of a sovereign power, and Hobbes describes man's dilemma in this respect in vivid terms in a number of famous passages, to the effect that in such a condition covenants, without the sword, are but words, and of no strength to secure a man at all,3 or, more explicitly, But because covenants of mutual trust, where there is a fear of not performance on either part. . . are invalid; . . . injustice actually there can be none, till the cause of such fear be taken away, which while men are in the natural condition of war, cannot be done. which are made in contract of mutual trust, neither party performing out of hand, if there arise a just suspicion in either of them, are in the state of nature invalid. . . E.W., vol. 2, p. 21. 1 De Cive, E.W., vol. 2, p. 169. See also De Corpore Politico, E.W., vol. 4, 2 De Cive, E.W., vol. 2, p. 21. pp. 91, 129. 3 Leviathan, E.W., vol. 3, p. 154. See also De Cive, E.W., vol. 2, pp. 67-68, 151,184.

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41

Therefore before the names of just, and unjust can have place, there must be some coercive power, to compel men equally to the performance of their covenants.... So that the nature of justice, consisteth in keeping of valid covenants: but the validity of covenants begins not but with the constitution of a civil power, sufficient to compel men to keep them. . . As these statements have been the chief support of those who have regarded Hobbes as maintaining that man is subject to no obligations before the institution of the sovereign power, this position requires examination. It appears from these passages that valid covenants and injustice (which here in Hobbes's text equals blameworthy breaking of covenants2) begin only in the civil state. As we indicate below, this cannot be accepted as a complete account of Hobbes's position. But, in general, we can say that if a reasonable cause of fear invalidates covenants retrospectively, and each man may judge the reasonableness of his own fears, there is no particular covenant that necessarily stands. Commentators have tended, however, to slide from the proposition, (1) that there are no valid covenants in the State of Nature (which we can say, for the moment, is almost true), to the proposition (2) that there is no obligation to keep valid covenants in the State of Nature, and hence to regard the State of Nature as a moral vacuum and the sovereign as the creator of an obligation to keep valid covenants, which is a complete mistake. If there is no obligation to keep valid covenants prior to the institution of the State, Hobbes's whole theory of political obligation is nonsensical. Even if we assumed that there were no valid covenants whatsoever in the State of Nature, it would still be true that in this state the individual would be obliged to perform his part if there were any valid covenants. In other words, the sovereign does not provide an obligation to keep valid covenants; he makes possible circumstances in which there can exist valid covenants to keep. Leviathan, E.W., vol. 3, p. 131. For the different meanings of 'injustice' to be found in Hobbes's work, see below, p. 132. 1

2

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Even at this, however, the position in the State of Nature regarding covenants is underestimated, for it is not true to say that there are no valid covenants in this state. Covenants, against the law (laws of nature) or covenants not to defend oneself, &c., are, as we have indicated, invalid ab initio and present little difficulty at this point; what we might call the retrospective invalidating principle, however (doubt of nonperformance), does not work freely against all covenants. i . It does not work against covenants where one party has already performed. It is to be noted that, in the passages quoted above for example, 1 where Hobbes introduces the question of just suspicion as invalidating covenants, it is introduced for covenants 'wherein neither of the parties perform presently, but trust one another . . . ' or 'neither party performing out of hand'. 2 In a case where one party has performed already, this cannot presumably provide an escape, and the other party is obliged to perform if the covenant is otherwise valid and stays valid on the initial grounds. Discussing the keeping of covenants, Hobbes remarks, For the question is not of promises mutual, where there is no security of performance on either side; as when there is no civil power erected over the parties promising; for such promises are no covenants: but either where one of the parties has performed already; or where there is a power to make him perform... .3 It will be noted that in the two cases cited as valid covenants, only one presupposes the civil sovereign. This limitation, it is true, is not very important in its bearing on the central problem in Hobbes's theory of political obligation. Since, in the institution of the State, would-be citizens covenant with each other to give up certain rights, &c., they are covenanting to perform or to refrain from a continuous future stream of actions, and the covenant of the type where one party has performed already and finally discharged his obligation cannot serve as a model for this situation. This 1 2 3

pp. 39, 39-4° n. Our italics. See also De Corpore Politico, E.W., vol. 4, p. 91. Leviathan, E.W., vol. 3, p. 133.

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example is, nevertheless, significant in indicating that the State of Nature is not a state where there are no obligations, but a state where circumstances are found in which many obligations are not operative. T h e case in which one party has performed already, is a case that a particular group of these invalidating factors cannot reach. More important limitations upon the invalidation of covenants in the State of Nature become apparent if we examine more closely Hobbes's stipulation that covenants are invalidated by reasonable or just causes of fear or suspicion. 2. In order to be considered just and to free the covenantor from his obligation under the heading of suspicion of nonperformance, the fear or suspicion must arise from some event subsequent to the agreement itself. Considering covenants in the State of Nature, Hobbes declares, The cause of fear, which maketh such a covenant invalid, must be always something arising after the covenant made; as some new fact, or other sign of the will not to perform: else it cannot make the covenant void. For that which could not hinder a man from promising, ought not to be admitted as a hindrance of performing.1 Likewise if a weaker prince, make a disadvantageous peace with a stronger, for fear; he is bound to keep it; unless there ariseth some new, and just cause of fear, to renew the war.2 In a footnote to the De Cive, Hobbes makes the same point. Having said that a just suspicion of non-performance invalidates covenants in the State of Nature, he adds For, except there appear some new cause of fear, either from somewhat done, or some other token of the will not to perform from the other part, it cannot be judged to be a just f e a r . . . .3 Thus in order to be just, the fear of non-performance must be due to some new or subsequent event. As far as the proviso that only a subsequent cause of fear entitles one to disregard 1 1

Leviathan, E.W., vol. 3, p. 125. De Cive, E.W., vol. 2, p. 21 n.

1

Ibid., p. 127,

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agreements is concerned, there is little practical or external difference made to man's conduct in the State of Nature by it. Since the State of Nature, in Hobbes's theory, is a condition where new and subsequent causes of fear are ever likely to arise, there will be few covenants which are not invalidated in that state. This proviso does, however, affect the argument regarding the function of the sovereign in the institution of civil society. Hobbes's argument is sometimes misrepresented when the following problem is put: If the sovereign is necessary for the existence of valid covenants, how can he be instituted by covenant? If Hobbes's theory is, however, as we suggest, that I am obliged by my covenant unless some subsequent cause of fear invalidates it, the function of the sovereign is not to make valid a covenant that was previously invalid, but to prevent (by taking away subsequent causes of fear) what is already a valid covenant from becoming invalidated. T h e difference between making an invalid covenant valid, and saving a valid covenant from wreck is clear enough. 3. A final limitation on the invalidation of covenants concerns bona fides. With the proviso that a just suspicion can be based only upon an event subsequent to the agreement, each individual, in the State of Nature, is judge of what is just suspicion or fear in his own case. A t the same time, however, he must be able to justify breach of covenant to his own conscience as being attributable to just fear, and not to other motives. Here again, in the State of Nature an obligation cannot be made to hold as a requirement to perform any particular external act, as any event subsequent to the agreement is capable of being a just cause of defection to the persons involved, and as one man may not in the State of Nature pass valid judgement on the justice of the fears of another, the individual cannot be held accountable to other men. This does not, however, mean that the individual is freed from the obligation to perform where he has no bona-fide cause of fear; it simply means that he is accountable only to his own conscience and to God for his bona fides. 1 1

See passages quoted below at pp. 59-60.

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16

Hence the predicament of man in the State of Nature is not that he does not have an obligation to fulfil the valid covenants which he has made, but that circumstances are such that these obligations as requiring specific and determinate external actions are largely inoperative. But still the individual must answer for his conduct to his conscience. Although nearly all determinate covenants are capable of being excused on some hypothesis or another regarding the fears of the covenanting parties, this does not mean that all breaches of covenant in the State of Nature are in fact excused regardless of the justifiability of these hypotheses. Though almost any breach of covenant can be blameless, it is not necessarily exempt from blame. We are now in a position to review the conditions which must be satisfied if a covenant is to be valid. There are two special conditions which are not of present interest. A covenant is no longer valid and no longer obliges when all the obligations which it prescribes have been duly performed, or forgiven by the persons to whom the obligations are owed. Another condition may be singled out. In order for a covenant to be valid in the first place, it must be agreed to or accepted by both parties. This principle may, perhaps, be taken to be an extension of the definition of covenant (it takes two parties to make a covenant or agreement) rather than a condition of the validity of a covenant. There remain a number of principles which control the validity of covenants. If a covenant is to be initially valid, it must, at the time when it is made, be lawful, and it must also prescribe something which (in a number of very different ways) is possible of performance by the agents concerned. In particular, a covenant must not prescribe known impossibilities, nor the resignation of ultimate self-defence, nor obligations to persons unknown, nor convey rights that have already been covenanted away. In general, therefore, a covenant must be lawful and possible of performance in the first place. As some of these conditions, however, are such that they may be

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satisfied under some circumstances, but fail to be satisfied later under other circumstances, a covenant that is valid initially may become invalidated at a later time on these grounds. In order to remain valid, therefore, a covenant must continue to be lawful and possible of performance. Taken by themselves, these principles constitute only a slight restraint upon covenants, and leave a very wide field of valid and obligatory covenants particularly in the State of Nature, where the only law is an unchangeable natural law. There is, however, a further principle under which covenants may be invalidated—the principle that a just fear or suspicion that the opposing party will not perform his share of the bargain, frees the agent from his obligation. This principle has potentially a very wide field of application as, unlike the principles described above, it does not invalidate covenants with a specific content or form, but may apply to covenants whatever their content. It is the application of this principle which is responsible for the very different position of covenants in the State of Nature as compared with those in civil society. In civil society under normal circumstances, a suspicion that the other party to a covenant will not honour his agreement cannot, on Hobbes's view, be a just suspicion. As the sovereign will enforce the performance of covenants lawfully made by the citizen, each man has sufficient security against the defection of his fellow citizens. In this circumstance, therefore, any covenant which meets the conditions that it is lawful and possible of performance will remain valid. 1 In the State of Nature, however, the absence of a satisfactory enforcing mechanism means that doubts about the good faith of other people can often be justified, and many covenants can be invalidated on the ground of just suspicion. It is a part of man's dilemma in this condition, that very few covenants necessarily stand. T h e operation of the invalidating principle of just suspicion, 1 This summarizes the conditions that a valid covenant cannot resign the right of self-defence in mortal danger, nor require the performance of obligations to a person unknown, &c. See above, pp. 32-36.

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however, is not a complete bar to the existence of valid covenants in the State of Nature. Unlike the principles summarized above, it does not control the initial validity of covenants, but may only operate to invalidate covenants at some time subsequent to the time at which they are made. As Hobbes stipulates, a just fear or suspicion of non-performance can arise only from some new factor subsequent to the agreement itself. T h e agent, moreover, could not be said to have a just suspicion where he was not in fact suspicious or afraid. There is no public test for this matter, for who shall say what fears some men may entertain? At the same time, however, the individual who excuses himself from the obligations which he has incurred by covenant must justify his action to his own conscience in terms of the existence and reasonableness of his fears. Otherwise the covenant is still valid and obliges him. Finally, a just suspicion of non-performance cannot be pleaded where the other party has already performed his share o f the agreement, and if such a covenant is already valid, it cannot fail on grounds of suspicion. Even in the State of Nature, therefore, there are some covenants which are valid and give rise to obligations, and there are some covenants which are valid for a period of time, though they may fail later. If this were not so, men could never make the transition from the State of Nature to civil society, for a covenant is necessarily involved in this transition. It may also be remarked with respect to the obligations deriving from covenants, that the difference between the State of Nature and civil society is a difference of circumstance and not of moral principle. This will become more apparent as we turn from the special case of covenants to the general case of obligations to obey the laws of nature.

IV THE

LAWS

OF

NATURE

T

H E condition in which man is placed by mere nature is one of conflict and insecurity—a war of every man against every man. Reason, nevertheless, suggests to the individual conditions of society or peace, which his fear of violent death or his desire for 'commodious living' may lead him to accept.1 These 'convenient articles of peace, upon which men may be drawn to agreement' are, according to Hobbes, the principles which are otherwise called the laws of nature.2 A law of nature is further described as a 'precept or general rule, found out by reason, by which a man is forbidden to do that, which is destructive of his life, or taketh away the means of preserving the same; and to omit that, by which, he thinketh it may be best preserved'.3 Elsewhere, Hobbes refers to the laws of nature as dictates of reason concerned with the constant preservation of life,4 and regards those laws of nature which are relevant to the doctrine of civil society as 'dictating peace, for a means of the conservation of men in multitudes'.5

Though there is some discrepancy between these descriptions of natural law,6 it is not of immediate importance, and it will be sufficient here to proceed to the content of the laws of nature and to indicate the first four of these laws, as Hobbes presented them. The first and fundamental law of nature is 'to seek peace, and follow it' where peace may be obtained.7 The second law of nature is derived from the first law, in that its observance is necessary for the realization of peace, and 1 "The passions that incline men to peace, are fear of death; desire of such things as are necessary to commodious living; and a hope by their industry to 1 Ibid. obtain them.' Leviathan, E.W., vol. 3, p. 116. 1 Ibid., pp. 116-17. 4 Be Cive, E.W., vol. a, p. 16. 5 Leviathan, E.W., vol. 3, p. 144. * On this point see below, pp. 213-19,274-5. 7 Leviathan, E.W., vol. 3, pp. 116-17-

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is formulated by Hobbes as follows: 'that a man be willing, when others are so too, as far-forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.'1 As indicated above,2 Hobbes uses the word 'right' on a number of important occasions to mean something which the individual cannot be obliged to renounce, and it is in this sense that he speaks of the 'right to all things' m the State of Nature. In that state, man's condition may be described as one in which he cannot be obliged to renounce anything which he regards as tending necessarily to his own preservation, and as he is entitled to his own opinion of these necessities, it can happen that very few obligations stand. As we attempt to show in the preceding and present chapters, some obligations remain, even in the State of Nature, but it may be that in the circumstances in which men find themselves, very few determinate and external actions can be ruled out as necessarily a breach of obligation. This state of affairs, on Hobbes's view, can only be terminated by a mutual laying down of rights as prescribed by the second law of nature. As this laying down of rights is a necessary step for the entry of man into civil society, Hobbes's explanation of what is involved in laying down a right is of great significance for his later theory. To lay down a man'srightto any thing, is to divest himself of the liberty, of hindering another of the benefit of his own right to the same. For he that renounceth, or passeth away his right, giveth not to any other man a right which he had not before; because there is nothing to which every man had not right by nature: but only standeth out of his way, that he may enjoy his own original right, without hindrance from him; not without hindrance from another. So that the effect which redoundeth to one man, by another man's defect of right, is but so much diminution of impediments to the use of his own right original.3 1 See above, pp. 18-21. ' Leviathan, E.W., voL 3, p. 118. Leviathan, E.W., voL 3, p. 118. See also L.W., voL 3, pp. 103-4. Some of the implications of this passage are examined in more detail below. See pp. 105-8. 3

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T H E LAWS OF N A T U R E 3

It may be observed here that Hobbes uses the term 'right' with the same meaning as he employs in the expressions 'the right to all things' and 'rights of nature'. It is a usage which requires that such a phrase as 'a right to " x " ' shall be translated as 'a freedom from obligation to renounce " x " ' , whereby rights do not imply corresponding duties in other people. Thus, by laying down a right, the individual resigns a freedom from obligation in some particular respect; he does not transfer a right in the modern sense of making over to others an entitlement to some object or service to which he himself was entitled previously. By the transference of a right, therefore, the individual impedes his future action as against the person to whom the right is given, but he does not impede the action of other men as against that person. Likewise, the individual who resigns or transfers a right, takes upon himself a duty which he did not have before, but the rights of other people remain the same, whether the transference of the right in question was to them or not. Thus if, for example, the individual transfers a right to person 'p', but not to person 'q', he will have a duty not to hinder 'p' in some respect and no duty to 'q' in this respect; but the rights of both 'p' and 'q' will remain the same as before. This assertion appears less paradoxical if Hobbes's special usage of the word, right, is emphasized. Thus, to resign a freedom from obligation (a right), does not as such increase other people's freedoms from obligation (rights), although, as Hobbes adds, it does affect the convenience of their exercise. Similarly, to transfer a right to a particular person, does not increase his freedoms from obligation, but it does increase the facility with which he can exercise these freedoms. It is of rights in this sense that the second law of nature requires a resignation or a transference. The third law of nature prescribes 'that men perform their covenants made',1 and follows from the second law, since any agreement for the mutual laying down of the rights that hinder peace would be ineffective if there were not a further obligation that men should honour their covenants. Hobbes some1

Leviathan, E.W., voL 3, p. 130.


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times uses the word, justice, in a wider, and sometimes in a narrower and more precise sense.1 As it is used in the narrower sense, justice is defined by Hobbes as the keeping of (valid) covenants, and injustice as the non-performance of (valid) covenants.2 T h e third law of nature is, in consequence, often referred to as the law which prescribes justice. The fourth law is called the law of gratitude, and is formulated in the Leviathan in the following terms: 'that a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will.'3 Under this law, a person who receives a benefit will not have discharged his obligations unless he endeavours to act in such a way that his benefactor will gain also ;4 he will fail even more if he gives his benefactor good reason to think that he has put himself at a disadvantage by his act of 'generosity'. One of the most important considerations regarding Hobbes's law of gratitude, is its relevance for his theory of 'tacit covenant'. Hobbes's doctrine is mainly concerned, not with the keeping of promises as such, but with the keeping of covenants, and his law of justice is framed accordingly. As covenants are agreements in which there is always a consideration or matter of benefit involved for the parties concerned, it will be seen that the law of justice and the law of gratitude bear a greater similarity to each other than they would have done in a theory based upon the principle of keeping promises. Hobbes, like other contractarian philosophers, however, runs upon the problem of the citizen who has not apparently made an explicit agreement, and as we shall see below,5 he meets this problem with a theory of 'tacit covenant'. Such a covenant arises where a person accepts the benefit of protection without See below, pp. 132-3. 1 Ibid, p. 138. Leviathan, E.W., vol. 3, pp. 130-1. 4 'For no man giveth, but with intention of good to himself; because gift is voluntary; and of all voluntary acts, the object is to every man his own good; of which if men see they shall be frustrated, there will be no beginning of benevolence, or t r u s t ; . . . , and therefore they are to remain still in the condition of tear; which is contrary to the first and fundamental law of nature, . . . * 5 See below, pp. 235-7. Leviathan, E.W., voL 3, p. 138. 1

1

T H E L A W S OF N A T U R E 52

having previously made the corresponding promise of nonresistance or obedience, but it obliges him nevertheless. In Hobbes's case, however, even if this example cannot properly be brought under the law of justice, it will fall under the law of gratitude which is very similar, and the person concerned will be obliged thereby to act in such a way that his protector could not reasonably wish that he had never protected or spared him. Thus Hobbes cannot be classified exactly with those philosophers who employed the concepts of 'tacit consent' or 'tacit promise', nor is he open to the charge that he bases obligations in these cases entirely upon a promise which was never made. Hobbes proceeds to elaborate a further series of laws, all of which are regarded by him as following directly or indirectly from the first law, that requires men to seek peace. These laws, however, play a less important part in his doctrine than the four principles which have been described.1 These laws of nature are regarded by Hobbes as constituting obligations for man both in the State of Nature and in civil society, but they do so only in a particular way and subject to the satisfaction of a number of validating conditions. And whereas such laws oblige always upon the satisfaction of the same validating conditions, the manner in which these conditions are satisfied and the extent to which they are fulfilled will differ in different circumstances. With regard to the State of Nature, Hobbes maintains that the laws of nature oblige in conscience always,2 but that they oblige the individual to act according to their dictates only where there is security. This statement is elaborated in an Important passage of the Leviathan as follows: The laws of nature oblige in foro interno; that is to say, they bind to a desire they should take place: but in foro externo; that is, to 1 The description of the laws of nature given above follows the text of Leviathan. Although the corresponding passages of De Cive and De Corpcre Politico show some variation in the wording and number of these laws, they do not require special comment, except for the fact that in De Cive, Hobbes adds a final law of nature (the 20th) which is not found in this form in the other versions, and which is of interest. This is considered below at p. 218. 2 See sub-title. Leviathan, E.W., vol. 3, p. 14s-


53

the putting them in act, not always. For he that should be modest, and tractable, and perform all he promises, in such time, and place, where no man else should do so, should but make himself a prey to others, and procure his own certain ruin, contrary to the ground of all laws of nature, which tend to nature's preservation. And again, he that having sufficient security, that others shall observe the same laws towards him, observes them not himself, seeketh not peace, but war; and consequently the destruction of his nature by violence.1 There are thus two classes of obligations—obligations in foro interno or 'in the court of conscience', which are not affected by the proviso of sufficient security, and which, according to Hobbes, oblige always; and obligations in foro externo or the realm of external action, which are contingent upon the security of the agent. It will be convenient, in the first place, to consider these two classes of obligations separately. Obligations in foro interno In the passage from Leviathan which is quoted above, Hobbes describes the laws of nature in their capacity of imposing obligations in foro interno, as binding 'to a desire they should take place'. This is one of the most obscure of Hobbes's statements. A desire that the laws of nature 'should take place' is presumably a desire that these laws should be fully operative or that peaceful actions in accordance with them should be possible, but it is still not clear what Hobbes means by the assertion that the individual is bound to a desire in this matter or how such a claim can be reconciled with the remainder of his doctrine.2 Elsewhere, however, Hobbes explains the same 1 Leviathan, E. W., vol. 3, p. 145. See also De Cive, E.W., vol 2, pp. 45-46; L.W., vol. 2, pp. 194-5; -De Corpore Politico, E.W., vol. 4, p. 108. 1 In other parts of his work, Hobbes appears to maintain that although the actions which proceed from passion may be voluntary, the passions themselves are not voluntary. Appetite and desire therefore could not fall under obligation in the moral sense, which is relevant here; and to be obliged in this way simply to desire something would appear to be impossible. For this reason the alternative readings given above regarding obligation in foro interno, have been preferred to the passage from the English version of Leviathan, quoted on pp. 5253. Regarding Hobbes's contention that the passions are not voluntary, see, e.g.,


obligation in a manner which is more readily intelligible. On some occasions, he presents his contrast between obligation in foro interno and obligation in foro externo in terms of the difference between 'a disposition of the mind' with regard to the law (or virtue and vice) on the one hand, and specific action in accordance with or against the law on the other hand. In such terms, Hobbes's contention that the law obliges always in foro interno becomes the statement that there is always an obligation to maintain a favourable disposition towards obedience of its dictates or towards peace, whereas by contrast, the obligation to act strictly as the law commands, is qualified by the degree of security enjoyed by the agent concerned. This distinction between law-abiding dispositions which are always obligatory, and law-abiding actions which are not always obligatory, lies behind the exposition of Hobbes's doctrine in such passages as the following: For pride, ingratitude, breach of contracts (or injury), . . ., will never be lawful, nor the contrary virtues to these ever unlawful, as we take them for dispositions of the mind, that is, as they are considered in the court of conscience, where only they oblige and are laws. . . .1 On other occasions the obligation in foro interno is described as an obligation to 'endeavour peace' or to maintain 'a readiness of mind to observe them [the laws of nature], whensoever their observation shall seem to conduce to the end for which they Human Nature, E.W., vol. 4, pp. 68-69: 'Voluntary actions and omissions are such as have beginning in the toilI;... Voluntary also are the actions that proceed from sudden anger, or other sudden appetite in such men as can discern good or evil: for, in them the time precedent is to be judged deliberation: . . . Appetite, fear, hope, and the rest of the passions are not called voluntary; for they proceed not from, but are the trill; and the will is not v o l u n t a r y : . . ( e t c . ) Compare Leviathan, E.W., vol. 3, pp. 39, 114. See also below, pp. 266-72, 289-92. 1 De Cive, E.W., vol. 2, p. 46. In the Latin version of Leviathan, Hobbes does not repeat the puzzling sentence from the English version -which has been noted, but relies instead upon the distinction under consideration—presented here as a distinction between criminal action (in foro externo) and what might be called criminal disposition (in foro interno). 'Leges naturales obligant in foro interno, id est, earum transgressio, non crimen proprie, sed vitium dicendum est. Sed in foro externa non semper o b l i g a n t . . . L . W . , vol. 3, p. 121. Compare E.W., vol. 3, p. 145 (quoted above at pp. 52-53)-

THE

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55

ordained'.1

were Or again, Hobbes maintains that in the State of Nature, the laws of nature require no more but the desire and constant intention to endeavour and be ready to observe them, unless there be cause to the contrary in other men's refusal to observe them towards us. The force therefore of the law of nature, is not in foro externa, till there be security for men to obey it, but is always in foro interno, wherein the action of obedience being unsafe, the will and readiness to perform, is taken for the performance.2 By this duty to endeavour peace or preserve a readiness of mind or disposition to observe the law, Hobbes sometimes appears to suggest, and has often been taken to mean, that the individual has a duty to intend peace, but that no appropriate external action whatsoever is required under any circumstances.3 In view of other passages from Hobbes's text examined below, however, it will be submitted that this is an unjustifiably restricted interpretation of the obligations in foro interno, and it may be noted here that in one formulation of this principle, Hobbes does explicitly mention actions, and describes the individual performing his duty, not as having an intention to observe the law, but as shotting clearly that he has a mind to do so. It is evident... how easily the laws of nature are to be observed, because they require the endeavour only, (but that must be true and constant);... For he who tends to this with his whole might, namely, that his actions be squared according to the precepts of nature, he shows clearly that he hath a mind to fulfil all those laws; which is all we are obliged to by rational nature.4 It would appear that such an obligation covers an intention to secure peace where this is practicable, and presumably a readiness to support any scheme that will ensure an observance of peace all round, of the type, for example, enjoined by the second law of nature. It would not, however, oblige to a De Cive, E.W., vol. 2, p. 46. De Corpore Politico, E.W., voL 4, p. 108. 3 See, e.g., Leviathan, E.W., voL 3, pp. 145-6. * De Cive, E.W., voL 2, p. 47.

1

2


unilateral and specific observance of the laws of nature on the part of the individual in his external acts in the absence of reasonable guarantees. The laws of nature do not, therefore, oblige always in foro externo, but they do oblige where these guarantees exist. The style of argument is sufficiently familiar. We do normally distinguish between people who endeavour peace or maintain a desire for peace, on the one hand, and those who fail to do so on the other. We expect the former to reciprocate tentative peaceful gestures, or to support a disarmament conference or show themselves co-operative in any scheme to enforce disarmament all round, and even in a state of 'war' we can distinguish people who are gratuitously provocative or insulting.1 But although we may regard it as a duty to endeavour peace, we do not regard this as necessarily implying a duty here and now to throw away our arms, without suitable guarantees that this will not simply leave us as a prey to others. A more trivial, but similar argument to that employed by Hobbes is in common use, for example, by the aristocratic leftwing candidate for Parliament. In advocating more equal property or wages, he is liable to meet the embarrassing query of how much he himself owns or earns and why he does not give such a surplus away. The reply of the candidate must normally be that he regards himself as obliged to sustain the desire for equal wages, &c., and to work for the adoption of a system which will enforce them all round. But such an obligation (in foro interno) does not imply an obligation in foro externo, here and now in the (capitalist) State of Nature to divest himself of his privileges and so leave himself a prey to his enemies, in a world not designed to give his moral act its true effect. Whether such an argument is accepted or not, it is possible to distinguish specific unilateral performance in accordance with a principle, from actions which support the principle within the limits of safety; and both in turn differ from actions which ignore the principle or discourage its adoption. 1 Cf. Hobbes's 5th-ioth laws of nature (concerning unsociableness, revenge, insult, arrogance, &c.).

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With regard to obligations in foro interno, however, Hobbes makes a further stipulation. Such obligations hold where there is no outside authority whose rulings cover the matter in question, and where, as a result, the individual is bound by the dictates of his own conscience. But in these cases, the individual is obliged to act with the intention of fulfilling the law, and not merely in conformity with it. And whatsoever laws bind in foro interno, may be broken, not only by a fact contrary to the law, but also by a fact according to it, in case a man think it contrary. For though his action in this case, be according to the law; yet his purpose was against the law; which, where the obligation is in foro interno, is a breach.1 Elsewhere, Hobbes repeats his assertion that it is not a sufficient discharge of an obligation in foro interno merely to have acted in conformity with the law, and that a person who intended to defy the law but acted lawfully by chance or by a mistaken opinion would not have done his duty. In the case of such a person, Hobbes adds, 'though the act itself be answerable to the laws, yet his conscience is against them',2 or 'though the action chance to be right, yet in his judgment he despiseth the law'.3 The view has sometimes been taken that Hobbes regarded the individual as being under an obligation to act for the sake of the law or out of reverence for the law as well as in conformity with it, and the passages in which he lays down his stipulations for obligations in foro interno have been used as a partial justification for this interpretation. We shall, however, give reasons for rejecting this view,4 and it may be remarked that in the passages quoted, Hobbes is not concerned with the problem of motive but with the problem of intention. The case which he examines is that of the person who acts in conformity with the law, but intends otherwise, and so it is an insufficient discharge of obligation to do the act which the law prescribes, * Leviathan, E.W., vol. 3, p. 145. See also, ibid., pp. 277-8. 2 De Cive, E.W., vol. 2, p. 46. 3 De Corpore Politico, E.W., vol. 4, p. 109. 4 See below, pp. 87-93, 289-92.


unintentionally, or by accident, or by defect of knowledge. But all this is consistent either with acting from reverence for the law, or from some other motive such as fear of the penalty. In the State of Nature, then, there is a general obligation to endeavour peace or to preserve a readiness of mind to obey the laws of nature, and in this kind of obligation, intentions will be judged as well as actions. The specific performance of the actions prescribed by the laws of nature is, however, a different matter. Obligations in foro externo Hobbes does not say that the laws of nature do not oblige in foro externo, but that they do not always oblige in this way. He expands this statement by indicating that the individual is obliged to perform the external acts prescribed by the laws where he has sufficient security against other men, but where it can happen that performance of the law will put him into mortal danger, the obligation does not stand. 'Sufficient security', therefore, acts as a validating condition for obligations in foro externo, and where this condition is not met, obligations are suspended. It is the thesis of the present inquiry that there is a single and consistent theory of obligation which runs through the whole of Hobbes's doctrine, and it is a part of that thesis that the validating conditions of law in the State of Nature or elsewhere, are the validating conditions of all law in Hobbes's system. Thus, in this case, if any law is to be valid law, or in other words to be law and oblige, it must operate in a context in which the validating condition of 'sufficient security' may be said to be fulfilled. It will follow also, on this view, that the features which distinguish obligation in foro externo in the State of Nature, when it is compared with obligation in foro interno in that state, or with obligation in civil society, will not be matters of principle, but of circumstance. As we have seen, the laws of nature are generally obligatory in foro interno in the. State of Nature. Such obligations meet the conditions of 'sufficient security' because they are ex


59

hypothesi a 'safe' version of what natural law prescribes. A readiness to obey the law would be consistent with conciliatory action where the individual judged other people to be friendly, or with fighting where he judged them to be menacing. It would not require the individual to take any measures which he considered to involve grave risk to himself, provided that he had reached a bona-fide estimate of his position.1 Likewise, the laws of nature oblige in general in civil society, since there is deemed to be 'sufficient security' against other men in that state, and a similar argument validates, on this score at least, the civil law which the sovereign imposes. Where the validating condition is no longer satisfied, however, the obligation to the law ceases as it does in civil society in a few limiting cases. With the dissolution of sovereign power and hence of security, the civil law no longer obliges; similarly if the sovereign commanded a citizen to kill himself, that command would not be a law for him.2 The State of Nature, however, as far as external actions are concerned, is a state of general insecurity, and here the laws of nature as requiring specific performance of peaceful actions, may be said in broad terms to be no law and to impose no obligations. Hobbes describes this situation by stating that in such a condition, man has 'a right to all things', an expression which may be translated as a general freedom from obligations. Nature hath given to every one a right to all; that is, it was lawful for every man, in the bare state of nature, or before such time as men had engaged themselves by any covenants or bonds, to do what he would, and against whom he thought fit, and to possess, use, and enjoy all what he would, or could get.3 Or . . . in such a condition, every man has a right to every thing; even to one another's body.4 There is, however, an important limitation upon this 'right to all things' even where external actions are concerned. The 1 1

2 See above, pp. 32-33, andbeIow,pp.188-95,257. See below, pp. 63-67. De Cive, E.W., vol. 2, pp. 9-10. * Leviathan, E.W., vol. 3, p. 117.

6o


individual is permitted to do anything which he regards as necessary for his security, but this does not mean that his obligations are suspended where he does not honestly think his action to be required on grounds of self-preservation. As in the case of covenants, the question of bona fides arises also with regard to the laws of nature, and here even with regard to actions in foro externo. T o the passage quoted above from De Cive, which sets out man's right to all things, Hobbes adds the significant footnote: This is thus to be understood: what any man does in the bare state of nature, is injurious to no man; not that in such a state he cannot offend God, or break the laws of nature; for injustice against men presupposeth human laws, such as in the state of nature there are none.... But if any man pretend somewhat to tend necessarily to his preservation, which yet he himself doth not confidently believe so, he may offend against the laws of nature. . . Thus the validating condition of 'sufficient security' dispenses the individual from obligations which he would otherwise be required to meet, but there must be read into this validating condition the provision that where the individual conscience is the only guide, it is only a bona-fide plea of danger or self-preservation on the part of the individual that will serve as a good excuse and invalidate the obligation in question. As Hobbes's statements regarding the right to all things have been relied upon extensively by those who have taken them to imply that obligations are completely absent before civil society is established, it is worth while to recount the order in which they are presented. Hobbes does not begin with the right to all things, but with the individual right to save himself from mortal danger. In the State of Nature, however, the individual conscience is the only judge, and it is necessary to take what the individual regards as reasonable precautions for himself, to be in fact reasonable in his case. Thus another man cannot complain of his conduct, whatever it is, as being unjust. In any event, he could only set his own test for 1

De Cive, E.W., vol. 2, pp. 9-10 n.

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reasonableness against that of the agent and in the State of Nature, there is no one to judge between them. And because the condition of man . . . is a condition of war of every one against every one; in which case every one is governed by his own reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemies; it followeth, that in such a condition, every man has a right to every thing; even to one another's body.1 Thus the right to all things follows as a conclusion from the right of self-preservation. But the problem is not that all actions always preserve all persons, and therefore no actions can be obligatory; but that the actions which tend to his preservation must be left to the bona-fide estimate of each man, and there is no way in which any specific action can be ruled out in general. As Hobbes claims, there is nothing a man may not find a help to him. This does not, however, mean that everything which a man does is justified or excused; it means that a specific external action cannot be prescribed that could not be a bona-fide means to preservation for some man in some circumstances. However unreasonable a man's action might appear to the outside observer, it could be that the agent had an adequate defence in terms of his own fears. But the permanent possibility of a good defence for any determinate external action does not imply that such a defence is forthcoming in each case, and the individual is accountable to his own conscience and to God for his conduct. On some occasions, moreover, Hobbes appears to be prepared to commit himself further in stipulating obligations which are valid in the State of Nature, as when he suggests that there are some types of external action which are specifically forbidden even in time of war. But there are certain natural laws, whose exercise ceaseth not even in the time of war itself. For I cannot understand what drunkenness or cruelty, that is, revenge which respects not the x Leviathan, E.W., vol. 3, p. 117. See also De Corpore Politico, E.W., vol. 4, pp. 117-18.

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future good, can advance toward peace, or the preservation of any man.1 We have maintained that Hobbes's doctrine is that the laws of nature oblige, but that a bona-fide defence in terms of selfpreservation invalidates that obligation in foro externo. Here again the same principle appears to be in operation, with the additional suggestion that there may be some laws of nature where there is a strong presumption against the possibility of a bona-fide defence of this kind for breaches of the law. In the case of drunkenness which is mainly a personal matter, it is difficult to think of circumstances in which the specific observance of the law could honestly be regarded by the agent as endangering his life. It is, however, possible that in an exceptional case a person could avoid serious danger by becoming drunk, and if Hobbes is to be consistent, he would have to allow such a case if the agent could justify it to his own conscience. But there may be said to remain a strong presumption against breaches of the law forbidding drunkenness, even in the State of Nature. The case of cruelty may be a matter of definition. Here Hobbes describes cruelty as 'revenge which respects not the future good'. Elsewhere, he adds that it is 'glorying in the hurt of another, tending to no end'2 or hurting without reason. It would appear, therefore, that anything done with the bona-fide intention of securing the agent could not, by definition, fall under the principle of cruel actions. In this event, the natural law forbidding cruelty will always satisfy the validating condition of 'sufficient security', and so, on this count at least will always oblige, even in the State of Nature or in time of war. The matter of definition is not, it is true, of great significance for the substantive problem of the obligations of the individual. Instead of asking himself whether his act of revenge was justified by its bearing upon his security or not, he could ask himself if it were technically an act of revenge or an act of cruelty, and in either event, he would discover what was not permissible. At the same time, " De Cive, E.W., vol. 2, p. 45 n. Leviathan, E.W., vol. 3, p. 140.

1


63

however, this case does give some indication that the State of Nature is not a condition in which natural law always fails to oblige to external action, but one in which a great many obligations are invalidated through what is, in the circumstances, the permissible excuse of self-preservation. And some cases are left (cruelty and drunkenness) where this excuse is unlikely to be, or cannot be, permissible. Such is the condition of man in the State of Nature as Hobbes expounds it. There remains, however, a source of confusion in his exposition which makes it necessary to reconsider some of its aspects. The effect of the validating condition respecting 'sufficient security' as it operates in the State of Nature, may be summarized as follows: the laws of nature oblige, but only if and where and to the extent that the condition of 'sufficient security' is satisfied.1 This validating condition, as is to be expected, does not as such specify actions which are obligatory, but a class of persons who are obliged under certain circumstances. While it is the laws of nature which lay down the actions which men are obliged to do, the validating condition prescribes that these are laws for 'secure persons', but do not oblige 'insecure persons'. The test for 'sufficient security' or for 'secure persons' as applied by Hobbes, however, is made up from a number of very different factors. It must be noted in the first place that whether men live in the State of Nature or in a political society, they can never be completely secure from the possibility of violent death, and Hobbes grants to the individual the permanent right to defend himself in extremity. In other words, it is always consistent with duty for him to take action in order to avoid patent mortal danger, whatever breach of natural or civil law this may apparently involve.2 The relationship between security and obligation, therefore, raises no problem for Hobbes in the case of patent mortal danger. The The detailed account of this principle has been given above, at pp. 58 ff. Hobbes describes this position by stating that here the law is no law for the person concerned. 1

2

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difficulties arising from this relationship are essentially concerned with the question of what action is legitimate in the face of hypothetical danger or upon suspicion of danger. In fact, in Hobbes's treatment of the security problem, sheer selfdefence is only of secondary interest; as a principle, selfdefence as such is not really an obstacle to peace, for if all men fought only when they were actually attacked, there would of course be peace. Hobbes's main theme is an investigation into the circumstances in which action upon suspicion of danger or preventive war are or are not justifiable.1 Thus the validating condition of 'sufficient security' relates only to a security that is enough to nullify a plea of hypothetical danger. Or more simply, a 'secure person' may act in sheer self-defence, but otherwise he is obliged to obey the law; whereas an 'insecure person' may act either in self-defence or in some cases upon suspicion of danger, without having failed to do his duty. It remains, however, to examine more closely the test for 'sufficient security' and for a 'secure person'. Some of the factors which mark out a position of 'sufficient security' in Hobbes's system, refer to the external circumstances of the case, or what we shall call the 'situation'. Hobbes is introducing a factor of this kind, for example, when he declares that the State of Nature is a state of war or general insecurity and contrasts it with political society on this account. But his reference to external circumstances goes beyond this simple contrast. Though the State of Nature is a state of general insecurity, it is not a state of total insecurity, and there are secure positions or 'situations' within it. Thus in his detailed consideration of covenants in the State of Nature, Hobbes is making an appeal to factors involved in the 'situation' when he maintains that where one party to a valid covenant has already performed, the other party has no good excuse for default; or again, that a just suspicion of the good faith of a party to a covenant can arise only from some event subsequent to the agreement itself.2 The function of factors of this kind is to specify secure and insecure 'situations',


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and the general principle which underlies Hobbes's theory of their effect upon obligations is as follows: in a secure 'situation', the agent is always obliged to obey the law; but in an insecure 'situation', the position is still indeterminate. The test for 'sufficient security', however, is not based entirely upon factors relating to external circumstances; it involves not merely the question of whether the agent is confronted by a secure or an insecure 'situation', but also the question of whether the agent sincerely thinks himself to be secure. There is therefore to be added a further consideration and this is the bona-fide judgement of the individual regarding the reasonableness of his own fears. This factor is relevant, however, only in an insecure 'situation', and in such a case the agent is exempted from obligation if he has a fear of danger, sincerely regarded by him as reasonable; but otherwise he is obliged to obey the law. With such a factor, the formula relating obligation to security is completed, and now reads: in a secure 'situation', the individual is always obliged; in an insecure 'situation' he is obliged where he has no good excuse in terms of his own fears, but where he has such an excuse he is exempt from the duties that are covered by it. The manner in which the two kinds of factor operate may be illustrated from the case of covenants. In the State of Nature, granted the permanent right of the individual to act in sheer self-defence and granted an initially valid covenant, the agent cannot excuse himself from honouring his pact if the other party has already performed, nor can he plead as an excuse for breach of covenant any cause of suspicion arising prior to his making the agreement. These principles define secure 'situations' and are valid regardless of what suspicions the agent may entertain, or in other words, there are here no 'just fears'. The possibility of a good excuse for default only begins therefore beyond this point (and so can apply only to covenants where the other party has not yet performed, &c.). But even here the good excuse is not provided unless the agent can in addition plead fears which are sincerely regarded by him as reasonable in the situation. Likewise, the laws of nature always 5771

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oblige in foro interno in that men are always required to 'endeavour peace', for this way of obeying natural law is always safe. Specific performance of the actions prescribed by natural law, however, may involve an insecure 'situation', and here the individual is exempt from obligation, but only in so far as the case is justified through a sincere evaluation of his own fears. With regard to any particular action, therefore, the validating condition of 'sufficient security' defines a class of persons who are 'both in an insecure situation and according to their own conscience justly or reasonably afraid'.1 Such persons are exempt from the obligations involved, and a corresponding class of persons is obliged to obey the law. Thus membership of the class of exempted persons, and the class of obliged persons in consequence, depends partly upon whether the agent is in fact in an insecure 'situation' and partly upon whether he sincerely thinks himself to be insecure. This double test gives to the validating condition of 'sufficient security' a dual character which is retained throughout Hobbes's doctrine and is pertinent to obligations in civil society as well as those of the State of Nature. Such a consideration is obscured sometimes, it is true, by a tendency on Hobbes's part to over-emphasize the contrast between the State of Nature and civil society where the security problem is concerned. He gives prominence, for example, to his contention that in the State of Nature men are 'judges of the justness of their own fears'; 2 he does not always lay equal stress upon the fact that according to his doctrine fear, judged in this way, does not provide an exemption from all obligations,3 for even in the State of Nature there are some secure 'situations' where Hobbes simply claims that no fear or suspicion is just. Contrariwise, Hobbes is inclined to describe obligations in civil society as though the problem of security had been completely solved, and to represent the citizen as living in a secure 'situation' in which the question of his fears does not have to 1 Thus the same action in the same external circumstances may be obligatory for one person, but not for another person, &c. Cf. above, pp. 15-16, 21—26 and 2 See, e.g., Leviathan, E.W., vol. 3, p. 124. below, pp. 93-97. ' See above, pp. 42—44.

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be considered. As we shall see, however, he does elsewhere admit the existence of a number of limiting cases, where the citizen may have to ask himself if the sovereign still has the power to protect him, or if the sovereign is attempting to kill him, and here presumably it will be relevant to consider whether the citizen can justify disobedience or resistance in terms of his own suspicions and fears.1 In spite of changes in scope under different circumstances, therefore, factors relating to the 'situation' are never completely absent from the account of obligations in the State of Nature, and the factor introduced by the agent's evaluation of his own fears is not completely eliminated from the account of obligation in civil society. A further difficulty in the interpretation of Hobbes's doctrine arises from the ambiguous manner in which he refers to obligations in foro interno, and it will be convenient to reexamine his argument in this respect. As indicated above, Hobbes begins his treatment of the subject by drawing a distinction between obligations in foro interno and obligations in foro externo. Superficially, this may appear to be a distinction simply between an obligation to intend peaceful actions, and an obligation to act peacefully. This is not, however, the best reading of Hobbes's entire text. Apart from the fact that an obligation to continue intending to act morally, without taking any action whatsoever of an appropriate kind, is an absurdity and would not have the implications which Hobbes requires for his own doctrine, his later statements would seem to indicate that more is required of the individual under this head than a mere intention. The essential distinction appears to be not between intentions and actions, but between two classes of actions. The laws of nature may be observed in two ways: 1. A second-best and approximate way, where men try to be as peaceful as they safely can. They will fight where they feel it is necessary, but avoid gratuitous provocation and insult, and will look for favourable opportunities for peace. This is the style of obligation in foro interno or 'endeavouring' peace. 2. Specific performance of the law, where what the law 1

See below, pp. 114-18, 149-50, 188

ff.

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prescribes is carried out precisely in action. This is the style of obligation in foro externo. An example of the different implication of these two classes of obligations to act, may be taken from the operation of the third law of nature. The law requires that men keep their covenants. An obligation in foro externo, under this law, would be satisfied only by a specific fulfilment of the agreements which the agent had made. In a dangerous situation, however, the corresponding obligation in foro interno may be satisfied by not performing the pledge or performing only the safe parts of it, or even by fighting, as all these may be consistent with endeavouring peace in some circumstances. The duty to endeavour peace is not, however, idle, and though it allows of divergence from strict performance of the law, the individual is never in the position where he may just do what he pleases. Now Hobbes maintains that in the State of Nature the individual is always obliged in foro interno to obedience of the law, but he is obliged in foro externo, only when he has 'sufficient security'. In terms of the distinction outlined above, this means that the individual is always obliged to approximate, second-best, safe, peaceful actions, but to a specific performance of the law, only when he has 'sufficient security'. 1 This distinction is essentially bound up with the problem of danger and risk; and although Hobbes has introduced here the question of intentions also, such a question, as we shall see, enters from a different direction and is not pertinent to this particular distinction. The obligations of man in the State of Nature can be made to show very different characteristics according to the perspective from which they are described. If the problem is considered from the point of view of the individual living in the State of Nature, the distinction made above, between endeavouring peace and the specific performance of what the law apparently requires, is of great significance. Specific performance may involve the individual in great danger, whereas a 1 The implications of this position with regard to the third law of nature (keeping covenants) have been presented already in the previous chapter.


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general obligation to take advantage of what peaceful opportunities safely present themselves can only work towards his preservation. He may represent his obligations in foro interno as obligations to perform actions of a relatively indeterminate character, where he makes his own conscientious version of what is involved in trying to live according to the general trend or purpose of the law under various circumstances. He will, however, see the law itself as an objective law of nature or law of God, and will represent his obligations in foro externo as obligations to meet the letter of a determinate law. His position, then, will appear to him as one in which he is always obliged to act according to the general purpose or what may for convenience be called the spirit of the law, but he is obliged to observe the strict detail or letter of the law, only when he has 'sufficient security'. With respect to the fact that the interpretation of the spirit of the law allows for more personal discretion and has for the individual a subjectivity which can be contrasted with the relative objectivity of the letter of the law, a distinction can be made between being obliged in conscience (in foro interno) and being obliged to strict and specific performance (in foro externo). At this stage, the moral problem for the individual is one of satisfying himself that he has discharged his obligations in good faith, and where he has observed the spirit rather than the strict requirement of the law, that the case is covered by a bona-fide judgement regarding his own security. He is not here concerned with any divergence there may be between his own conclusions and those of other men as a moral issue, and is answerable for his conduct only to God, who will judge both his action and the intention which lies behind it, 'for God that seeth the thoughts of man, can lay it to his charge'. The outside observer, however, who contemplates the condition of men in the State of Nature, will see the situation in a different light. He will see each man's entire interpretation of the laws of nature as subjective, though the best solution available in the circumstances. There will also be divergent tests of 'sufficient security' from person to person and different


views as to what are reasonable precautions. In this condition men may discharge their obligations, but in their relations with their fellow men, they may present to the external observer forms of behaviour which would be consistent with a situation in which no obligations existed whatsoever. This possibility, it is true, arises in part because of the problem of security. The State of Nature is a state of general insecurity, and many obligations are consequently invalidated. But it also arises in part from the role that has perforce to be played by subjective interpretation and judgement. Even if the State of Nature were a condition of security, but still a condition where every man had to interpret the law for himself, duty could be completely discharged with each man obeying his version of natural law, but men could still present the external appearance of living in a state without obligations. If this situation is contrasted with the condition of men living under a code of positive law, with determinate and public obligations prescribed by a human lawgiver and judged in their performance by a civil magistrate, its subjective elements are thrown into relief. By the measure of this contrast, even the obligations to specific performance of law in the State of Nature are obligations to observe relatively indeterminate rules interpreted and administered by the individual conscience. From such a point of view, therefore, all the obligations of men in the State of Nature could be described as obligations in conscience or in foro interno. As Hobbes observes: Briefly, in the state of nature, what is just and unjust, is not to be esteemed by the actions but by the counsel and conscience of the actor. That which is done out of necessity, out of endeavour for peace, for the preservation of ourselves, is done with right, otherwise every damage done to a man would be a breach of the natural law, and an injury against God.1 The two contrasts involved in these different perspectives may be summarized as follows: i. An obligation to 'endeavour peace' (in foro interno) is 1

De Cive, E.W., vol 2, p. 46 n.

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contrasted with an obligation to perform the specific external actions which the laws of nature apparently prescribe to each individual (in foro externo). 2. Obligation to a system of laws, interpreted and administered by the individual conscience (in foro interno), is contrasted with obligation to a system of laws laid down by an external human lawgiver and administered by an external human judge. (This contrast may be said to provide also, by analogy, a second meaning for the expression, obligation in foro externo, though Hobbes does not use these words in such a context.) If the meanings derived from the second contrast are compared with those derived from the first, it will be observed that obligation to render a strict performance of law (in foro externo) is interpreted more narrowly in the second case; and that obligations in conscience (in foro interno) are interpreted more widely and include all obligations where the individual conscience is the sole interpreter and judge. The meanings indicated in the second contrast, moreover, differ from those indicated in the first contrast, in that they are not related essentially to the question of whether the agent is secure or not, but to the question of the judgement to which, and for which, the agent is responsible. The principle which controls this responsibility may be stated in its most general form as follows: Where an external human authority does not make and enforce rules upon a particular matter, the individual must be guided by his own conscience as far as that matter is concerned. For the individual living in civil society, this implies that he must be directed by his own conscience in those subjects upon which the civil law is, in fact, silent, and in those subjects also upon which the civil law cannot by its nature give prescriptions.1 In the State of Nature there is no human authority, and, as we have indicated, the individual conscience has to be the guide on all matters. It is this principle, which is of 1 This question, which belongs to the doctrine of civil society, is examined in more detail below. See pp. 147-59.


significance for the citizen as well as for the individual outside society, that defines obligations in conscience in the wider sense noted above. With this meaning, therefore, obligations in foro interno are a class of obligations which includes all the obligations of men in the State of Nature and those obligations upon the citizen which lie in a field where the civil law for some reason or another does not apply. In his account of the State of Nature, Hobbes is really using the concept of obligations in foro interno with this wider meaning when he deals with the question of intention to obey the law. He stipulates that such obligations are not discharged by actions which conform to the law where the agent intended otherwise; and so it is not enough to do the correct action by chance or by mistake. This requirement is not connected with the problem of security, but that of the judgement and interpretation of obligations. Obligations in foro interno as used in the wider sense, are all those obligations for which the individual conscience is the guide, and for the performance of which the agent is responsible to God, who judges intentions as well as actions. Here the contrast lies with a system of civil law, where specific performance alone always satisfies that law, whatever the design of the agent; for the civil magistrate cannot adequately scrutinize the thoughts, but only the external actions (and words) of men, and it is typical of Hobbes that he does not grant to the civil sovereign the capacity to impose obligations which he cannot enforce. This does not mean that the citizen has necessarily discharged all his obligations when he has merely conformed to the civil law, but he has discharged all his obligations to the civil law qua civil law. If anything remains, it will be a matter for conscience and not the civil magistrate, and there intentions will be pertinent.1 Thus the concept of obligation inforo interno has a relevance for the whole of Hobbes's doctrine and not merely for the theory of the State of Nature. But it is a concept which has i These propositions and the relevant passages from Hobbes's text are discussed below under the heading of 'The Laws of Nature and the Civil Law', See below, pp. 150 ff.


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two different meanings, and some of Hobbes's statements which employ one meaning will not fit the other case. In its narrower sense it serves to distinguish an obligation to endeavour peace from an obligation to specific performance of natural law. In the State of Nature, the endeavour is always obligatory, but the specific performance is not always so. This statement would, however, be false if applied to the wider meaning of obligation in foro interno, for here it embraces all obligations for which interpretation and judgement are matters for individual conscience, and so includes all obligations in the State of Nature. Likewise, Hobbes's stipulation that in the case of obligations in foro interno, the intention is judged as well as the action, belongs to the wider and not the narrower concept. Here the contrast lies with obligations to the civil law qua civil law, and intention is important in all cases judged by individual conscience. Hobbes is inclined, however, to change his perspective in this matter without warning, and so at times he appears to maintain that in the State of Nature there are two distinct classes of obligations, at other times that all obligations in this state are obligations in foro interno, and yet again that there are no obligations whatsoever. All these statements are true in different contexts. If it is borne in mind that Hobbes's natural-law predecessors usually posited a system of obligations for man outside society that was closely analogous to that demanded by a code of positive law, some emphasis on Hobbes's part is, perhaps, to be expected. There is no determinate code of behaviour of this kind applicable to Hobbes's State of Nature, because he gave full weight to the effects of insecurity and the subjectivity of individual interpretation and judgement. The observer, therefore, who looks for duties of a completely determinate and public character of the type laid down by civil law, will find none. There is, nevertheless, a very great difference in the State of Nature, between meeting one's obligations and failing to do so. Commentators upon Hobbes's doctrine have differed widely in the construction they have put upon obligations in the State of Nature. The main alternatives to the account


given above may be illustrated, however, from two brief examples. A. E. Taylor has taken the view that Hobbes regarded man as subject to moral obligations both in the State of Nature and in civil society. But the peculiar aspect of obligations in the State of Nature is attributed by Taylor to the fact that these obligations are reciprocal in character1 and are dependent upon the guarantee that others will perform also. This way of putting the matter is useful in that it stresses the point that obligations to specific performance of law in the State of Nature are contingent upon the satisfaction of conditions. But it is, at the same time, a misleading explanation in so far as it suggests that Hobbes regarded reciprocity as being centrally concerned in obligation. The individual is freed from his obligation to perform his covenant or to act specifically in accordance with the dictates of natural law in Hobbes's system, not essentially because of lack of reciprocity, but because of lack of security. In other words, he may refuse, not because the others may (for all he knows) default, but because their default may render his action dangerous to him, and hence an action which he is not obliged to perform. We have, therefore, maintained that the operation of the validating condition of 'sufficient security' covers this position, and that it indicates also the qualifications that have to be included in its description. The notion of reciprocity in obligations does not, moreover, fit other cases. Obligations in foro interno in the narrower sense, as found in the State of Nature, do not depend for their validity upon the reciprocity of other people. The individual is always obliged to endeavour peace or to be ready for favourable opportunities. The reciprocity of others will affect the actions which may be regarded as an appropriate fulfilment of this duty under various conditions; if other people are friendly, more peaceful actions will normally be required of the agent. But 1 'Hobbes could have conveyed his meaning more unambiguously perhaps, if he had laid more stress on the point that the fundamental law of nature and morals, as he conceives it, is a law of reciprocal obligation. . . . " A. E. Taylor, 'The Ethical Doctrine of Hobbes', Philosophy, vol. xiii (1938), p. 411.


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the obligation itself, to endeavour peace and to preserve a readiness of mind for peace, &c., does not depend in any way upon reciprocity. If it did, it would be pointless. It is in virtue of the fact that obligations in foro interno, in the narrower sense, are obligations to a version of natural law which is 'safe' even if it is followed unilaterally, that such obligations always stand. Likewise, there may be some laws of nature which are valid and require specific performance even in a general condition of insecurity, because their observance cannot imperil the life of the agent under any circumstances. From Hobbes's statements regarding cruelty and his definition of the term, it seems likely that the agent is obliged to refrain from cruel actions, even where other people are cruel.1 Finally, apart from raising difficulties in the theory of civil society comparable with those examined here,2 the principle of reciprocity obscures the fact that there are some obligations in which other people are not obviously involved. Although in his moral and political writings, Hobbes is primarily concerned with the laws of nature which pertain to men in society, he does suggest that there are other natural laws outside the social framework. Having enumerated the laws of nature, he concludes, These are the laws of nature, dictating peace, for a means of the conservation of men in multitudes; and which only concern the doctrine of civil society. There be other things tending to the destruction of particular men; as drunkenness, and all other parts of intemperance; which may therefore also be reckoned amongst those things which the law of nature hath forbidden; but are not necessary to be mentioned, nor are pertinent enough to this place.3 If such laws give rise to obligations, these obligations are not, presumably, dependent upon any reciprocity by others. 'I ought not to get drunk unless other people do', may be a useful social maxim, but it is not a Hobbesian law of nature. A very different interpretation of obligations in the State of Nature is presented by Professor Oakeshott. As he maintains that according to Hobbes's doctrine, moral obligations 1 3

2 See below, pp. 196-9. See above, pp. 61-63. Leviathan, E.W., vol. 3, p. 144. See also De Cive, E.W., vol. 2, pp. 48-49.

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are imposed upon the individual only through the commands of the civil sovereign, Hobbes's numerous references to obligation outside society must be otherwise explained. In this connexion, Oakeshott describes the pre-political obligations of men which have been considered above, as rational obligations, and these are to be set apart from the moral obligations which hold in civil society. A rational obligation is said to arise when a man is 'prevented from willing a certain action because he perceives that its probable consequences are damaging to himself'.1 Professor Oakeshott does not, however, supply any precise rules for translating Hobbes's statements about obligations into his terms, and it is difficult to see how such a translation can be made. If we assume, for example, that in these cases, 'I am obliged to do " x " ' means something like 'I am prevented (by foresight of damaging consequences) from willing "x'", we reach an absurdity as I could never do what I was obliged to do, if 'x' is a voluntary action. If 'x' is an involuntary action, the two propositions cannot be related. It is more reasonable to assume that 'I am prevented from willing " x " ' is equivalent to 'I am obliged not to do " x " ' . Now Hobbes maintains that the individual is always obliged to observe the laws of nature in foro interno. In this case, what is he prevented from willing and where are the damaging consequences ? The obligation in foro interno is merely an obligation to endeavour peace or maintain a readiness of mind to follow natural law where possible. This is ex hypothesi a 'safe' version of natural law, and does not require action beyond the point of safety, with the result that there are no damaging consequences involved. The obligations in foro externo, however, are more pertinent. Here Hobbes stipulates that the laws of nature do not oblige where there is insufficient security, but where this security is present, they do oblige. This case will not, however, fit Professor Oakeshott's formula, for Hobbes is not saying that (in view of damaging consequences) I am obliged not to obey the laws of nature, but that I am not obliged to obey these laws. 1

Introduction to Hobbes's Leviathan, p. lix. See also below, pp. 330-5.


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In other words, the foresight of damaging consequences does not oblige me (by preventing me from willing), but it frees me from an obligation that would otherwise stand. If the individual is genuinely afraid, he is not obliged to strict performance of natural law in these circumstances. The foresight of extreme danger, therefore, is not connected in such cases with a special kind of obligation, but with a particular way in which obligations which derive from another source can be invalidated. If there is no foresight of danger, the individual is obliged, but this obligation does not itself spring from foresight of danger or from its absence. A problem would also arise from the application of another part of Professor Oakeshott's formula. If obligations in the State of Nature are to conform to his rational type of obligation, they are to be found where a person is prevented from willing a certain action (because of the foreseen consequences). But if the individual concerned is prevented from willing some types of action, these obligations, presumably, cannot be broken. In that event, it is difficult to see why Hobbes should add, with regard to obligations in foro interno, the observation that the laws of nature are easily observed because they require only a constant endeavour. This could hardly be applied to an unbreakable obligation. It is, moreover, unlikely that Hobbes would have placed so much emphasis upon the intention of the agent to obey the law, as apart from his merely conforming to it by chance, unless he had taken the law in these cases to have imposed some kind of moral obligation. What makes Hobbes's account of moral principles unusual is the extent to which he refuses to be content with loose generalizations. His theory is not that there are different basic types of obligation which separate the duties of the citizen from those of natural man, but that the same moral principles are modified in their application, sometimes drastically, by circumstances. The laws of nature are immutable and eternal-, what they forbid, can never be lawful; what they command, can never be unlawful. For pride, ingratitude, breach of contracts . . . [etc.] will never be

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lawful, nor the contrary virtues to these ever unlawful, as we take them for dispositions of the mind, that is, as they are considered in the court of conscience, where only they oblige and are laws. Yet actions may be so diversified by circumstances and the civil law, that what is done with equity at one time, is guilty of iniquity at another; and what suits with reason at one time, is contrary to it another. Yet reason is still the same, and changeth not her end, which is peace and defence, nor the means to attain them, to wit, those virtues of the mind which we have declared above, and which cannot be abrogated by any custom or law whatsoever.1 We have reached the position, then, that the individual has always an ultimate right to act in sheer self-defence, and in such cases the law does not oblige him. As we shall see, this is equally true whether the individual is living in the State of Nature or in civil society, and this provision does not serve in any way to distinguish these two states from each other.2 The right to act in self-defence, however, is to be interpreted narrowly and does not as such cover action taken upon suspicion of danger or in order to forestall possible danger. It is actions of the latter kind—actions to meet hypothetical danger —that are the obstacle to peace, and Hobbes's discussion of the security problem is concerned essentially with the conditions under which hypothetical danger provides an exemption from obligation. Granted always a right to sheer self-defence, the laws of nature oblige the individual in the State of Nature. But they oblige him subject to the satisfaction of validating conditions. He is always obliged to endeavour peace as this is always safe, but in the case of specific external action in accordance with the law, hypothetical danger may be pleaded, and the agent is not obliged if he honestly considers that the action p r e s c r i b e d by the law would prejudice his life or means of living. If, however, he cannot honestly regard himself as insecure in this way, his full obligation to specific performance of the law becomes 1 De Cive, E.W., vol. 2, pp. 46-47. See also Leviathan, E.W., vol. 3, p. 145. , The two different senses in which Hobbes uses the concept of being obliged in conscience have been noted above, pp. 67-73. 1 See below, pp. 114-18, 188 ff.


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operative. And there may be some laws of nature, such as those forbidding drunkenness and cruelty, whose neglect hardly admits of a genuine defence in terms of self-preservation, and these will oblige even in a general condition of insecurity. This whole situation respecting hypothetical danger has been described by the statement that 'sufficient security' is a validating condition of law, and the pattern of obligations outlined above is the consequence of the operation of so much law as satisfies such a condition. All that has been stated in this chapter, however, has been based only upon a consideration of the security problem, and has carried the assumption that if the validating condition of 'sufficient security' is met, subject to an ultimate right of self-defence the law is valid and obliges. But there are other conditions which the law must satisfy if it is to oblige. The pattern of obligations as described up to this point would not be binding upon children or madmen, for example, because it would fail to satisfy other validating conditions of law. These further conditions have an effect upon obligations in the State of Nature which is much less dramatic than that of the condition regarding security. They will, however, require examination, and are our next concern.

V CONDITIONS CONDITIONS

OF

OF

LAW

AND

OBLIGATION

I

F the law is to oblige, or in other words if it is to be law, it

must, as we have seen, satisfy the validating condition of 'sufficient security', and the aspect of obligation in the State of Nature is largely to be attributed to the fact that for some forms of the law this condition is here only partially fulfilled. There are, however, further conditions which the law must satisfy. These are not, it is true, stated by Hobbes in general terms in his account of the State of Nature, and it is necessary to draw from his later doctrine for their formulation. Hobbes is careful, nevertheless, to show that they are applied in the State of Nature, though their importance is not made apparent, and a consideration of them may conveniently begin at this point. If the law is to be valid, the following conditions must be fulfilled: (i) The law must be known or knowable to the person to be obliged. To rule by words, requires that such words be manifestly made known; for else they are no laws: for to the nature of laws belongeth a sufficient, and clear promulgation, such as may take away the excuse of ignorance. . . .1 This requirement has a special solution in the case of the laws of nature, as, according to Hobbes's account, each man who has his faculty of reason unimpaired is able to know them through the exercise of that faculty alone. It may be objected, says Hobbes, that the deduction of these laws is so hard that it is not to be expected that they will be vulgarly known, and 1 Leviathan, E.W., vol. 3, pp. 344-5. See also De Cive, E.W., vol. a, p. 44 ('for laws, if they be not known, oblige not, nay indeed, are not laws'). Also ibid., pp. 191-3. and A Dialogue of the Common Laws, E.W., vol. 6, pp. 26-28.

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therefore neither will they prove obliging. Hobbes's answer to this type of objection is that the laws of nature may easily be known, at least in the simplified and summarized form—do as you would be done by. The laws of nature . . . need not any publishing, nor proclamation; as being contained in this one sentence, approved by all the world, Do not that to another, which thou thinkest unreasonable to be done by another to thyself.1 Hence, Ignorance of the law of nature excuseth no man; because every man that hath attained to the use of reason, is supposed to know, he ought not to do to another, what he, would not have done to himself.2 Hobbes likewise refuses to admit that a valid claim for exemption from the laws of nature could arise from inattention or preoccupation with other things. . . . it is true, that hope, fear, anger, ambition, covetousness, vain glory, and other perturbations of mind, do hinder a man, so as he cannot attain to the knowledge of these laws whilst those passions prevail in him: but there is no man who is not sometimes in a quiet mind.3 Under the heading of this condition that the law be known, therefore, only those persons who have not the proper use of reason, namely children and madmen, are exempted from obligation to natural law. 4 (ii) The author of the law must be known or knowable: 'for no man is understood to be obliged, unless he know to whom he is to perform the obligation.' 5 Such a provision is met by the fact that the author of the laws of nature, God, like the laws themselves, may be known by 2 Ibid., p. 279. Leviathan, E.W., vol. 3, p. 258. De Cive, E.W., vol. 2, p. 44. * See, e.g., Leviathan, E.W., vol. 3, p. 288. 5 De Cive, E.W., vol. 2, p. 113; see also ibid., p. 191; De Corpore Politico, E.W., vol. 4, p. 148. As indicated above, this is true also of obligation by covenant; * . . . no covenant holdeth longer than a man knoweth to whom he is to perform it'. De Corpore Politico, E.W., vol. 4, p. i s a. 1

3

6771

G

82

CONDITIONS OF L A W A N D

the use of reason, and although our knowledge of God by reason is incomplete, it is sufficient to oblige us to obey his commands. Hobbes seems to have taken the view that by reflection on the causal sequences of our experience, we may come to the notion of an all-powerful first cause. Such a pursuit of causes proceeds, till of necessity he [a man] must come to this thought at last, that there is some cause, whereof there is no former cause, but is eternal; which is it men call God. So that it is impossible to make any profound inquiry into natural causes, without being inclined thereby to believe there is one God eternal; though they cannot have any idea of him in their mind, answerable to his nature.1 Such knowledge of God may be called natural knowledge and is open to all men who use their reason, Christian and heathen alike, as it depends not at all upon revelation. There is, however, a difference between the standard of rational activity necessary for this type of knowledge of God, and that required for a knowledge of natural law, at least in its simple and summarized form. Although the existence of God may always be known by reason, there may be some men who are generally classified as possessing unimpaired the rational faculty, who cannot attain to this knowledge. Now that I have said, that it might be known by natural reason that there is a God, is so to be understood, not as if I had meant that all men might know this; except they think, that because Archimedes by natural reason found out what proportion the circle hath to the square, it follows thence, that every one of the vulgar could have found out as much.2 There may, in consequence, be a group of atheists who do ' Leviathan, E.W., vol. 3, p. 92. See also ibid., pp. 95-96. 'But the acknowledging of one God, eternal, infinite, and omnipotent, may more easily be derived, from the desire men have to know the causes of natural bodies, and their several virtues, and operations; . . . For he that from any effect he seeth come to pass, should reason to the next and immediate cause thereof, and from thence to the cause of that cause . . . shall at last come to this, that there must be, as even the heathen philosophers confessed, one first mover; that is, a first, and an eternal cause of all things; which is that which men mean by the name of G o d : . . . ' 2 De Cive, E.W., vol. 2, p. 198 n.

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not acquire the knowledge and belief in God as an omnipotent first cause that is required to validate the law. Such people Hobbes appears to regard as in some sense blameworthy, but he does not regard them as obliged. Atheists are clearly in a different position, in Hobbes's opinion, from that of children and madmen, but, as we shall see, this difference is connected with the question of divine grace and salvation, and not the question of obligation as such. 1 In all these cases, natural law is no law, and imposes no obligations. It is sometimes maintained that Hobbes intended his laws of nature to apply only to Christians, and would exclude nonChristians as well as atheists from their operation. Such a view would not appear to be justified. There are occasions, it is true, when Hobbes writes as though the laws of nature are laws, properly, only for Christians, as they are laws only if taken as the Word of God given in Holy Scripture. Concluding his discussion of the laws of nature in De Cive, he adds, But those which we call the laws of nature, (since they are nothing else but certain conclusions, understood by reason, of things to be done and omitted; but a law, to speak properly and accurately, is the speech of him who by right commands somewhat to others to be done or omitted), are not in propriety of speech laws, as they proceed from nature. Yet, as they are delivered by God in holy Scriptures . . . they are most properly called by the name of laws. For the sacred Scripture is the speech of God commanding over all things by greatest right.2 Elsewhere, however, in De Cive and particularly in Leviathan, Hobbes draws a clear distinction between three ways in which God governs the world. 1. The first is a governance over all things that exist, but this is not immediately pertinent to the problems of law and moral obligation. Whether men will or not, they must be subject always to the divine p o w e r . . . . But to call this power of God, which extendeth itself not only to man, but also to beasts, and plants, and bodies The case of the atheist is discussed more fully below, at pp. 283 ff. ' De Cive, E.W., vol. 2, pp. 49-50. 1

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inanimate, by the name of kingdom, is but a metaphorical use of the word. For he only is properly said to reign, that governs his subjects by his word, and by promise of rewards to those that obey it, and by threatening them with punishment that obey it not. Subjects therefore in the kingdom of God, are not bodies inanimate, nor creatures irrational; because they understand no precepts as his: nor atheists, nor they that believe not that God has any care of the actions of mankind; because they acknowledge no word for his, nor have hope of his rewards or fear of his threatenings. They therefore that believe there is a God that governeth the world, and hath given precepts, and propounded rewards, and punishments to mankind,, are God's subjects; all the rest, are to be understood as enemies.1 Apart from this general governance, which does not involve moral obligation, God reigns by commands and through the hopes and fears of reward and punishment in his subjects in a twofold kingdom. 2. A natural kingdom, 'wherein he governeth as many of mankind as acknowledge his providence, by the natural dictates of right reason'.2 In this capacity it would appear that all human beings (except children, madmen, and atheists) are obliged by the laws of nature. 3. A prophetic kingdom, in which God governed his chosen people, the Jews, not only by natural reason but by positive law interpreted by the prophets. Christians in a different way also share in such a kingdom, wherein the Holy Scriptures add further evidence of God's will to that knowledge of natural laws which may be acquired by the use of reason alone. Membership of such a kingdom, however, is by covenant (taken by Christians in their baptism) and an obligation to ' Leviathan, E.W., vol. 3, p. 344. See also De Cive, E.W., vol. 2, pp. 204-5. 2 Leviathan, E.W., vol. 3, p. 345. See also De Cive, E.W., vol. 2, p. 206. 'And according to the difference which is between the rational word and the word of prophecy, we attribute a two-fold kingdom unto God: natural, in which he reigns by the dictates of right reason; and which is universal over all who acknowledge the divine power, by reason of that rational nature which is common to all: and prophetical, in which he rules also by the word of prophecy, which is peculiar, because he hath not given positive laws to all men, but to his peculiar people and some certain men elected by him.'

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obey God's positive law, unlike the obligation to obey the laws of nature, is based upon a prior act of consent.1 In view of Hobbes's distinction between natural law and divine positive law, it is difficult to avoid the conclusion that the laws of nature oblige all rational beings who accept the idea of God as all-powerful, whereas the word of God as given in Holy Scripture in so far as it goes beyond natural law, obliges only the Christian who has covenanted to observe it. 2 If, moreover, Hobbes intended the laws of nature to apply only to Christians, it is difficult to understand why he should single out the atheist only, when speaking of the enemies of God, and not include the infidel also, in this category.3 Apart, then, from the case of children and madmen (who are excused) and that of the atheist (who is not obliged, but not excused) the laws of nature meet those conditions of law, which require that its dictates and its author be known. (iii) T h e law must be interpreted. The legislator known; and the laws, either by writing, or by the light of nature, sufficiently published; there wanteth yet another very material circumstance to make them obligatory. For it is not the letter, but the intendment, or meaning, that is to say, the authentic interpretation of the law (which is the sense of the legislator), in which the nature of the law consisteth; . . .4 Hobbes groups this provision with the previously mentioned requirements that the law and the legislator must be capable of being known to the person obliged, and for that reason it is noted here. It differs from the previous requirements, however, in a number of important respects. The knowability of the legislator and the law are validating conditions of obligation and law in the proper sense, as defined above, and operate in such a way as to prescribe a class of persons who cannot know either the law or the legislator and are not obliged (children, madmen, atheists, &c.) and a corre' In civil society, if civil laws are made regarding the Scriptures this complicates the problem, but still leaves this proposition true. 1 See Leviathan, E.W., vol. 3, pp. 377-80. 1 More detailed evidence in support of the position taken here is presented 4 Leviathan, E.W., vol. 3, pp. 261-2. below at pp. 224-9, 294-S n -

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sponding class of persons who are obliged, or for whom the law is law. The provision regarding interpretation, however, operates at a second level, and is used by Hobbes, not in the validation of law, but in order to distinguish valid from invalid interpretations of it. Granted that a valid law exists, which means granted that the grounds are present and all the validating conditions proper are satisfied, there is always some valid interpretation in any given situation. In general terms, therefore, the condition that the law must be interpreted is always satisfied if the law exists at all, and this condition does not operate to validate or invalidate law. But there exist a number of false or pretended interpretations of the law. These do not oblige and it is in order to discount them that Hobbes employs his provision regarding interpretation. T h u s such a provision is used, for example, in his stipulation that the interpretation of natural law binding in civil society is the version commanded by the sovereign and not, for instance, that which may be offered by notable churchmen or scholars, for the authoritative interpretation of the law in this context 'dependeth not on the books of moral philosophy'. 1 Here Hobbes is not attempting to show that natural law is invalid under certain circumstances or for some persons, but to point out that some professed interpretations of natural law have no authority. The principle which controls the valid interpretation of natural law in Hobbes's doctrine, has been set out above,2 and may be formulated as follows: that where there is an external human authority (in other words, a sovereign), the interpretation given by that authority is law, and where there is no such authority, or where that authority is not or cannot be competent, the law must be interpreted by the individual reason and conscience. The chief interest of this principle lies in its application to the problem of natural law in civil society,3 but it does bear upon the State of Nature in indicating that each man's interpretation of natural law in this condition is law for him. Such a means of interpretation presents the prob' Leviathan, E.W., vol. 3, p. 263. This problem is examined below, at pp. 147-68.

1

2

See pp. 71-73-


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lem that in the State of Nature, each man's version of the law may differ from that of others, and this is a part of man's dilemma; since there is no determinate public authority in that state, the individual is free from obligation to any specific and generally applicable formulation of natural law. He is, nevertheless, obliged by his own bona-fide version. In this sense, therefore, the requirement that the law must be interpreted is always satisfied in the State of Nature in those cases where the law is otherwise valid. (iv) The person obliged must have a possible sufficient motive to obey the law. A final validating condition of law may be said to be that a person obliged must be capable of having an adequate motive to obey it. This condition is not listed by Hobbes with those given above in his account of law. It may, however, be constructed out of other parts of his doctrine. Any ethical theory which rests upon the assumption that 'ought' implies 'can', contains as a necessary inference that it is a validating condition of obligation that the agent be capable of having a sufficient motive to do what he is obliged to do. As Hobbes maintains that in the type of obligation which is the subject of the present inquiry, 'ought' does imply 'can', he is committed to this proposition from the beginning. If it is contended that the idea of law or the idea of duty itself can provide a sufficient motive for the performance of the obligations prescribed, this problem is capable of a comparatively simple solution, and some philosophers have taken this course. In the case of Hobbes, however, such a solution appears to be precluded by his whole account of motivation and the human will, and the role he gives to reason in this account. It remains, therefore, as a charge upon his theory that the individual be shown to have, otherwise, a sufficient motive to perform the obligations it entails. In spite of his theory of motivation, however, Hobbes has been interpreted on some occasions as asserting that the individual has a duty to act for the sake of the law or from reverence for the law, and it is advisable that in the first place

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the passages in Hobbes's text upon which this interpretation has been based should be examined. With regard to obligations in foro interno, as we have seen, Hobbes maintains that the law may be broken not only 'by a fact contrary to the law, but also by a fact according to it, in case a man think it contrary'.1 But this example concerns intentions and not motives, and rules out the fulfilment of the law by accident or through lack of information where the agent intended to defy or ignore the law, and leaves the question of motive open. A similar issue is involved in Hobbes's distinction between sin and crime. Both sin and crime are breaches of obligation, but sin is the wider term and covers intentions as well as actions. A SIN, is not only a transgression of a law, but also any contempt of the legislator. For such contempt, is a breach of all his laws at once. And therefore may consist, not only in the commission of a fact, or in speaking of words by the laws forbidden, or in the omission of what the law commandeth, but also in the intention, or purpose to transgress.2 A crime, on the other hand, is a sin which consists strictly in doing what the law forbids or omitting what it commands; so that every crime is a sin, but not every sin is a crime. Although Hobbes regards sin as covering contempt of the legislator, however, and elsewhere he describes contempt of the law in the same way, what is involved is the intention or purpose to transgress, and the motive is again unspecified. Perhaps the strongest support for the view that Hobbes considered the individual to have a duty to act for the sake of the law, is to be derived from those passages in which Hobbes draws a distinction between the justice of actions and the justice of persons. In the Leviathan, he describes this distinction in the following terms: The names of just, and unjust, when they are attributed to men, signify one thing; and when they are attributed to actions, another. When they are attributed to men, they signify conformity, or in* See above, pp. 57-58.

1

Leviathan, E.W., vol. 3, p. 277.


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conformity of manners, to reason. But when they are attributed to actions, they signify the conformity, or inconformity to reason, not of manners, . . . but of particular actions. A just man therefore, is he that taketh all the care he can, that his actions may be all just: and an unjust man, is he that neglecteth it. And such men are more often in our language styled by the names of righteous, and unrighteous; than just, and unjust; though the meaning be the same. Therefore a righteous man, does not lose that title, by one, or a few unjust actions, that proceed from sudden passion, or mistake of things, or persons: nor does an unrighteous man, lose his character, for such actions, as he does, or forbears to do, for fear: because his will is not framed by the justice, but by the apparent benefit of what he is to do. That which gives to human actions the relish of justice, is a certain nobleness or gallantness of courage, rarely found, by which a man scorns to be beholden for the contentment of his life, to fraud, or breach of promise . . . But the justice of actions denominates men, not just, but guiltless: and the injustice of the same . . . gives them but the name of guilty.1 This passage is not, however, free from ambiguity. One point which Hobbes seems to be concerned to make, is that the just man is a man who generally does just actions, but does not invariably do so; thus a just man does not lose that title by a few unjust actions. It could be that this is all that Hobbes is trying to say, and that what he appears to assert about motives is a loose way of describing a just man who does some but is unlikely to do many unjust actions, and an unjust man who does some but is unlikely to do many just actions. This is not, however, an entirely convincing interpretation; moreover, in a corresponding passage from the De Cive, Hobbes emphasizes the motive more strongly and the notion of 'average' behaviour disappears. So as the justice or injustice of the mind, the intention, or the man, is one thing, that of an action or omission another; and innumerable actions of a just man may be unjust, and of an unjust man, just. But that man is to be accounted just, who doth just things because the law commands it, unjust things only by reason ' Leviathan, E.W., vol. 3, pp. I35-6.

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of his infirmity; and he is properly said to be unjust, who doth righteousness for fear of the punishment annexed unto the law, and unrighteousness by reason of the iniquity of his mind.1 It is to be remarked, however, that although Hobbes appears to regard the man who acts from certain motives as superior in some way to the man who acts from other motives, this does not amount to an assertion that the individual is obliged to act for the sake of the law. Hobbes maintains that the unjust man does not obtain the title of just through actions motivated by fear of the penalty of disobedience, or by hope of benefit; he is merely called 'guiltless'. But he does not claim that such a man is obliged not to act from fear or cupidity, and nowhere does he make the explicit statement that a man is obliged to be a just man.2 As we shall see, the justice of persons is not connected with obligation as such, but with salvation; and the theory of obligation itself is concerned with the justice of actions and with guiltless persons.3 There are some occasions, it must be admitted, when Hobbes appears to assert that the idea of the law can provide a sufficient motive for its observance, as, for example, in the Elements of Law, where he makes the statement that 'when the command is a sufficient reason to move us to the action, then is that command called a LAW'.4 Later in the same work, however, he recovers all that he had apparently given. And not every command is a law, but only . . . when the command is the reason we have of doing the action commanded. And then only is the reason of our actions in the command, when the omitting is therefore hurtful, because the action was commanded, not because it was hurtful of itself; and doing contrary to a command, were not at all hurtful, if there were not a right in him that De Cive, E.W., vol. 2, p. 33. The nearest Hobbes comes to making such a statement is his assertion that 'he that hath done all he is obliged to, is a just man'. (See, e.g., De Cive, E.W., vol. 2, p. 47.) Even this assertion, however, must be treated with some reserve, as in the relevant passage, Hobbes is not distinguishing explicitly between the justice of persons and their guiltlessness, and here again his preceding statements would appear to be concerned with the intention to fulfil the law 3 See below, pp. 289-92. rather than the motive from which it is obeyed. * Elements of Law (ed. Tonnies), p. 52. (E.W., vol. 4, p. 75.) 1

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commandeth to punish him that so doth. He or they that have all punishments in their own disposing, cannot be so commanded, as to receive hurt for disobeying, and consequently no command can be a law unto them.1 The difficulty of solving the problem of sufficient motive in Hobbes's doctrine, by an appeal to reverence for the law as such, becomes apparent when Hobbes's theory of motivation and will are considered. This part of Hobbes's theory cannot be studied in detail conveniently at this stage of the argument, but his position may be briefly outlined. Hobbes appears to have taken the view that the will is determined by the hope of benefit or fear of damage which the agent considers to be attendant upon his actions. Forasmuch as will to do is appetite, and will to omit, fear; the cause of appetite and fear is the cause also of our will: but the propounding of the benefits and of harms, that is to say, of reward and punishment, is the cause of our appetite, and of our fears, and therefore also of our wills, so far forth as we believe that such rewards and benefits as are propounded, shall arrive unto us; and consequently, our wills follow our opinions, as our actions follow our wills',.. .2 Men of necessity choose the greater apparent good or the less apparent evil that is open to them in any situation. They will differ among themselves in what they account good or evil, as not only will they vary in their capacity to foresee consequences, but each man will have different appetites. All men will agree, however, according to Hobbes, in that each man will regard his own death as the greatest evil that can befall him. When faced with the prospect of death, therefore, the individual will of necessity choose any alternative course that is open to him. For every man is desirous of what is good for him, and shuns what is evil, but chiefly the chiefest of natural evils, which is death; ' Elements of Law (ed. Tonnies), pp. 136-7. (E.W., vol. 4, p. 205.) z Human Nature, E.W., vol. 4, pp. 69-70. See also De Corpore Politico, E.W., vol. 4, p. 1 1 7 : ' . . . the opinions men have of the rewards and punishments which are to follow their actions, are the causes that make and govern the will to those actions.'

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and this he doth by a certain impulsion of nature, no less than that whereby a stone moves downward.1 Thus a man cannot be obliged to encompass or condone his own death because he cannot have a sufficient motive to perform such actions. It is for this reason that Hobbes states that the individual has a natural right (or freedom from obligation) with respect to the preservation of himself. T o take the matter no farther,2 obligations must be at least consistent with the selfpreservation of the agent, and this requirement is a validating condition of law. A validating condition of law of this kind would rule out as invalid any law which expressly commanded the agent to kill or seriously endanger himself. Such a principle would be relevant to civil society, and if the sovereign were to command that a subject kill himself or that he be killed, that command would be no law for him, though it might be a law for his fellow citizens.3 In the State of Nature, however, the law cannot expressly command the individual to kill himself, as natural law expressly enjoins peace which tends to preservation; although, as we have seen, the principle does operate to make all covenants void which explicitly contract away the right of self-preservation.4 But the law may endanger the agent, not by express provision, but by implication, and under certain circumstances a rule which is designed for peace, such as the keeping of covenants, can endanger the life of him who observes it. In this situation, the law is invalidated by the same principle, and its operation in this respect has been examined above, under the heading of the validating condition of 'sufficient security'.5 A corresponding application of the same principle to the case of covenants which are not explicitly dangerous but are implicitly so under certain circumstances, is what we have called the retrospective principle that any covenant may be invalidated upon 'just' suspicion of non' De Cive, E.W., vol. 2, p. 8. 1 The problem of motive and will is examined more adequately below, in Chs. IX and XII. 5 See below, pp. 188-95. -» See above, pp. 32-33. 5 See above, pp. 52-67, 77~79-


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party. 1

performance by the other All these cases, therefore, are different modes of the validating condition of obligation, which prescribes that what the agent is bound to do must be consistent with his preservation. It is to be remarked, however, that this validating condition of obligation is partly a logical and partly a psychological principle. T h e provision that the agent must be able to have an adequate motive to perform what he is obliged to do, may be extracted from Hobbes's concept of moral obligation, and if this provision is denied, a different type of obligation is introduced. T h e further postulate, however, that no man can have a sufficient motive to kill himself, is a psychological principle and Hobbes appears to have regarded this as being based upon introspective or observational evidence, though he does occasionally suggest that it may also be deduced from his first principles of motion. Neglecting the latter possibility, the psychological principle is contingent. Men might have been motivated otherwise, and have taken something other than preservation as their highest value. In that event the pattern of their obligations would have been different, but still they could not be obliged to do that for which they could not have a sufficient motive, whatever that might be under the new circumstances. Hobbes says so much about self-preservation that it is easily regarded as being central in his theory of obligation. This is so far from being the case that it is not a part of that theory as such, but an empirical postulate employed in its application. A denial of Hobbes's psychology, therefore, merely poses a new problem of application, but leaves his theory of obligation, in the proper sense, unaffected. For this reason, the validating condition considered here, has been formulated in terms of motive and not in its applied form in terms of self-preservation. The Validating Conditions of Obligation The validating conditions of obligation in general, may now be reviewed. Since (valid) laws and valid covenants are the 1

See above, pp. 38-47.

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necessary and only instruments whereby obligations may be incurred, what validates law or covenant validates obligation. Hobbes's concept of moral obligation may be expanded by logical process to give a series of readings for the proposition 'ought implies can', and these readings are the validating conditions of obligation in their proper sense. As we have seen, in order to be obliged by law, it is necessary that the individual shall be able to know the law and its author; in a similar way with regard to covenants, the agent cannot be obliged to perform known impossibilities, nor to fulfil an obligation to a person he cannot know. Whether the obligation is alleged to spring from law or covenant, moreover, he cannot be obliged to obey the law or to perform his covenant where he cannot have a sufficient motive to do so. These conditions of obligation may of course overlap, and it may, for example, be held that where the individual cannot know the law or its author, he also cannot have a sufficient motive to obey the law. As these validating conditions are derived from an analysis of Hobbes's concept of moral obligation, they may be summarized by the statement that the individual cannot be obliged where this is logically impossible, and they show what this implies. It has been contended that in this logical form, the validating conditions do not specify actions, but classes of persons who are or are not obliged in any particular case, and it is typical of their operation that a given type of action is binding upon some persons but not others, or upon the same person at some times but not at other times. This is the case because these conditions depend in the first place upon the relationship of the agent to the law and its author, and not to any particular content of the law. Thus persons who cannot have a sufficient motive to obey the law, or who cannot know the law are not obliged by it, regardless of its content; and persons who can have such a motive and can know the law, are obliged whatever the content. These principles are formal, and may bear little meaning until they are applied. W e do not, as a rule, have special names for persons who have or do not have sufficient


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motives; but if children, madmen, and atheists may be taken to be, by definition, persons who cannot know the law or its author, it may be ruled at this stage that such persons cannot be obliged. Still within the logical framework, however, there is one example of an action or content of obligation which cannot be obliging, and so appears to break the rule that only classes of persons are involved. T h e agent cannot be obliged to perform a logical impossibility. A law commanding him to make a round square, for example, or a colourless red object would not be a law for him, regardless of his personal relationship to the law and its author. But this is not a genuine case. Such a law would not be a law in any sense of the term; it is merely a meaningless jumble of words and lies outside the context of the present discussion. T h e validating conditions are concerned with a different source of logical impossibility—that which arises from the concept of obligation itself. Thus the statement that the agent is obliged to do something for which he cannot have a sufficient motive, presents a logical impossibility. But this is not logically impossible because the content of the obligation is logically impossible; a person may do things for which he has no sufficient motive. He may not be capable of a sufficient motive to kill himself, but he may kill himself by accident. T h e logical impossibility arises from the conjunction of the term, obligation, with such an action. Similarly, he may conform to a law he cannot know; the logical impossibility is to be obliged to obey such a law. The consideration that validating conditions in their logical form show classes of persons, is not fundamentally affected by the fact that in some applied cases the class of persons obliged or not obliged may be a null class or the class of all persons. This simply shows them to be the limiting cases which they are. It may be, for example, that all men are motivated in the same way and in such a manner that no man can have an adequate motive to kill himself, but it is not logically necessary that all men should be similarly motivated or that the same man should be motivated in the same way at different times.

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We do tend to recognize this in cases of obsessions, and sometimes think of the agent as not obliged where others would be obliged, or where he would be obliged at different times. In other words, the validating condition of sufficient motive, though generally satisfied, may not be satisfied in all cases. If we are content to make no assertions, the validating conditions can be extended farther by logical hypothesis, in such a way as to particularize further classes of persons who are obliged, or to produce classes of actions or contents of obligation which are or cannot be obligatory. T h u s if no man can have an adequate motive to kill himself, no man can be obliged to commit suicide. Here a content of obligation is specified, but such a principle differs from the validating conditions outlined above, in that it is not based upon an analysis of obligation in the first place, but upon a hypothesis regarding motive. Similarly, all the secondary logical extensions of the proposition 'ought implies can', are based upon hypotheses concerning motive or knowledge, and refer to obligation only through their dependence upon the validating conditions themselves. These extensions, therefore, belong to a different logical order from the validating conditions described. If we are concerned to make assertions, similar propositions may be made by applying the validating conditions of obligation to empirical material. This is, in fact, what Hobbes does. Accepting the empirical generalization that no man can have a sufficient motive to destroy himself, he reaches a further group of conditions of law and valid covenants. A law which commands the agent to kill himself is no law for him, and a covenant which expressly renounces the right of self-preservation is void. Similarly, the law does not oblige where its performance is highly dangerous, and so does not bind 'insecure persons',1 and covenants are void for such persons upon 'just suspicion' of non-performance by the opposing party. The validating conditions of obligation of this type, however, all depend in part upon empirical data, and are merely probable. These further conditions may be summarized by the statement 1



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that the individual cannot be obliged where this is psychologically impossible. Thus the validating conditions of obligation in general, are so many tests for the logical and psychological possibility of obligations. As such, they clearly impose no obligations upon their own account, but qualify obligations which derive from another source. T h e preceding discussion of the State of Nature has been concerned entirely with the conditions of the possibility of obligations, and it has been based throughout upon the assumption that the ground or true source of obligation is present. But this ground of obligation itself must now be considered. The Ground of Obligation Hobbes describes the essential character of law, as he sees it, in his assertion that 'law, properly, is the word of him, that by right hath command over others'; 1 or as he formulates it elsewhere, 'it is manifest, that law in general, i s . . . command; nor a command of any man to any man; but only of him, whose command is addressed to one formerly obliged to obey him'. 1 It is thus at least a part if not the total requirement for a law to be law, and hence to oblige, that it be the command of an author whom the subject of the obligation is previously obliged to obey. In this description, the instrumental character of the law is apparent, in that the ethical term is not eliminated but transferred to the author of the law. Laws oblige, in that they are the commands of an agent who ought to be obeyed, and the question of why the individual ought to obey the law turns into the question of why he ought to obey the author of the law. If this general condition that law must be the command of one entitled to obedience is applied to the case of law in the State of Nature, the same pattern emerges. At the end of his discussion of the laws of nature, Hobbes asserts that, considered merely as rational principles, these dictates may not 1 2

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Leviathan, E.W., vol. 3, p. 147. Ibid., p. 251. H

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properly be regarded as laws, but only as maxims of prudence,1 unless they are further regarded as the commands of their author, God. These dictates of reason, men used to call by the name of laws, but improperly: for they are but conclusions, or theorems concerning what conduceth to the conservation and defence of themselves; whereas law, properly, is the word of him, that by right hath command over others. But yet if we consider the same theorems, as delivered in the word of God, that by right commandeth all things; then are they properly called laws.2 A slightly different formulation of the same point occurs in De Corpore Politico: And forasmuch as law, to speak properly, is a command, and these dictates, as they proceed from nature, are not commands, they are not therefore called laws, in respect of nature, but in respect of the author of nature, God Almighty.3 Thus, if the laws of nature in the State of Nature are considered as the commands of God, they may properly be regarded as laws, and it is this factor which is responsible for constituting their obligatory character. It is also in terms of such a ground that a certain type of question about obligations must be answered. If it is asked with regard to the State of Nature, for example, 'why ought I to keep my covenants or to refrain from cruel actions ?', the immediate answer is, 'because the laws of nature prescribe such behaviour'. If it is then further inquired, 'why ought I to obey the laws of nature?', the reply may be made, 'because these laws are the commands of God, who is entitled to obedience'. T h e search for the ultimate ground of obligation may be pursued beyond this point by such questions as 'why ought I to obey the commands of God ?' or 'why is God entitled to obedience?' This search cannot, however, be pursued profitably at this point, and forms 1 This term is used in the general and ordinary sense, and not with the special meaning given to it by Hobbes, for example, in Leviathan, E. W., vol. 3, pp. 14-16. 1 Leviathan, E.W., vol. 3, p. 147. 1 De Corpore Politico, E.W., vol. 4, p. 109. See also ibid., p. m ; De Cive, E.W., vol. 2, pp. 49-50.


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the proper subject of Part I I I of the present work. It is sufficient for our immediate purpose to accept the formula that granted the laws of nature are God's commands, they do oblige. The fact that the commands of God constitute obligations does not, however, render superfluous what has been stated above concerning the validating conditions of obligation. Although the authority of the law, in Hobbes's theory, derives from the authority of its author, the author of the law does not oblige indiscriminately, but only through his commands which are laws. God could, no doubt, produce what effects in the world he desired, but he could not produce all effects through moral obligation. Though he might legislate on all matters and alter the natural operation of the universe including the motivation of men, he could not oblige persons who could not know him or his law, or who could not have a sufficient motive to obey him. This position is guaranteed by the logical properties of Hobbes's concept of moral obligation. If the laws of nature in the State of Nature are not regarded as the commands of God, they may be taken to be merely rational principles of prudence. T h e atheist, presumably, would have some use for these maxims as they would be a guide to his preservation, but he could not consider them as laws, and, as we have seen, could not be obliged by them. There are some interpretations of Hobbes's doctrine which consist in identifying his whole theory of morals and politics virtually with this atheistical viewpoint. If it is denied that God plays an essential role in Hobbes's doctrine, the laws of nature in the State of Nature cannot be taken to be more than prudential maxims for those who desire their own preservation. Those commentators, therefore, who have seen the place of God in Hobbes's theory as the product of confusion or pretence on Hobbes's part, have taken this view. They have consequently regarded themselves as entitled to take seriously the first assertion made by Hobbes in the passages quoted above, to the effect that the laws of nature as they proceed from nature are not commands, but to pass

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over his second assertion that they are laws as they proceed from God. If such a view were sustained, political obligation would turn out like natural law to be no more than another prudential maxim, as there is nothing which the civil sovereign could do that would retrieve this position. T h e charge that Hobbes's doctrine is essentially atheistical in character has not, however, been well established. It has often been based upon argumenta ad hominem. And even where an appeal has been made to Hobbes's text, the question of his atheism has frequently been confused with the more debatable but irrelevant question of whether he was in any precise sense a Christian; or a case has been made, as noted above, by relying heavily upon one part of an antithesis and ignoring the other part which completes its meaning. In the present work, Hobbes's statements regarding the place of God will be taken as a necessary part of his theory, and it will be contended that this allows the most probable construction to be put upon his text. 1 Thus it will be held that, with regard to natural law, the ground of obligation is always present as this derives from the commands of God in his natural kingdom, and does not depend in any way upon the covenant and consent of the individual or upon the command of a civil sovereign. With regard to covenants also, the ground of the obligation to perform a valid covenant is always present, as this is immediately to be found in the injunction of the third law of nature, and thereafter follows the ground of the laws of nature themselves. This ground of obligation, it is true, is not always fully operative in the State of Nature, since the validating conditions of obligation are not always satisfied. But it is always true that if the atheist knew God in the relevant sense, or the madman were sane, or the 'insecure' man were 'secure', &c., the laws of nature would oblige these persons, and under one of these laws they would also be obliged to fulfil any valid covenants which they had made. 1

See in particular the passages examined in Chs. IX, X , X I I , XIII, below.


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The Meaning of Obligation The question of the meaning of obligation in Hobbes's doctrine, or what it means to be obliged, is a question which requires various answers according to the information sought. Such a query may simply be a request for a dictionary equivalent for the word, obligation, or it may really be a demand for a statement of the instruments, or the validating conditions or the grounds of obligation. (a) On the first point, the dictionary equivalent of obligation, Hobbes does not say a great deal. T o be obliged, is to be bound or to suffer impediment. In describing the obligation arising from the transference of rights by covenant, he uses the following words: And when a man hath . . . granted away his right; then is he said to be OBLIGED, or BOUND, not to hinder those, to whom such right is granted, or abandoned, from the benefit of it: and that he ought, and it is his DUTY, not to make void that voluntary act of his own: and that such hindrance is INJUSTICE, and INJURY, as being sine jure; the right being before renounced, or transferred.1 Elsewhere, Hobbes contrasts obligation with liberty, and on one occasion describes obligation as thraldom. . . . RIGHT, consisteth in liberty to do, or to forbear; whereas LAW, determineth, and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same matter are inconsistent. 2

If being obliged is taken as simply equivalent to being bound or suffering impediment, and is contrasted with liberty, its meaning fits both types of obligation mentioned by Hobbes. Physical obligation, which controls involuntary actions, as when men are constrained by the laws of physics, and moral obligation, which controls voluntary actions, as when men are bound by natural law to seek peace or keep covenants, are each in different ways restrictions upon the freedom of the * Leviathan, E . W . , vol. 3, p. 119. 1 Ibid., p. i t 1 See also ibid. pp. 87, 276.

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individual. If these two types of obligation are to be held apart, however, and a distinct meaning is to be given to Hobbes's moral type of obligation, which is our present concern, some reference is required to the instruments and the conditions of this obligation. With regard to moral obligation, 'person " p " is obliged to do action " a " ' , means, in the terms used above: (b) (with regard to instrument) either there is a law, valid for 'p', which prescribes 'a'; or 'p' has made a valid covenant to do 'a': which means also (c) (with regard to grounds) G o d has commanded 'a'; or 'a' follows from what God has commanded: and further (d) (with regard to validating conditions) what God has commanded, directly or indirectly, is a command which it is logically and psychologically possible for 'p' to know and obey. T h e thesis of the present work is tantamount to the assertion that with this account of obligation in the State of Nature, Hobbes's entire theory of moral obligation has now been given in outline, and what remain are matters of explanation or the application of this theory to the affairs of men under various circumstances. A s indicated above, the State of Nature is not by any means a condition of man in which there are no obligations; still less is it a state where there are no moral principles. Provided that certain validating conditions are satisfied, men are always bound by law and they may further extend such obligations by covenant. T h e account of civil society is essentially an account of how these validating conditions may become satisfied. T h e civil sovereign prescribes neither the ground of obligations nor the terms under which they are valid in any particular case, but is concerned entirely with the satisfaction of conditions that he does not himself specify. The resultant pattern of obligations in civil society is, therefore, the product, under special circumstances, of moral principles which bind men as men, and not simply as citizens.

PART O B L I G A T I O N

IN

II CIVIL

S O C I E T Y

VI POLITICAL

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I

F the interpretation presented above is correct, the dilemma of man outside civil society is constituted, in Hobbes's theory, not by the absence of a moral law, but by the total or partial frustration of that law. This frustration arises from the fact that moral principles must perforce be left to the interpretation of the individual conscience, and may be suspended or partially suspended as far as external action in accordance with them is concerned, through the prevalence of insecurity. Hobbes was led, therefore, to assert that in the State of Nature, . . . notwithstanding the laws of nature, which every one hath then kept, when he has the will to keep them, when he can do it safely, if there be no power erected, or not great enough for our security; every man will, and may lawfully rely on his own strength and art, for caution against all other men.1 Hence there obtains Hobbes's famous 'state of war', with every man's hand against every man. This intolerable state of affairs cannot be terminated simply by men joining together in small or even in great numbers, for the distrust of each other and diversity of viewpoint would remain. Such men, according to Hobbes, would constitute a mere multitude or aggregate unless they were directed by one judgement. There follows the necessity for a political society and a unitary sovereign authority, who will ensure the observance of a determinate code of rules by the use of force. For if we could suppose a great multitude of men to consent in ' Leviathan, E.W., vol. 3. P- '54-

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the observation of justice, and other laws of nature, without a common power to keep them all in awe; we might as well suppose all mankind to do the same; and then there neither would be, nor need to be any civil government, or commonwealth at all; because there would be peace without subjection.1 It is not enough, moreover, for the continuous security of men that they shall be directed by one judgement for a limited time. Men will sometimes combine against a common enemy, but when that enemy is defeated, they fall apart again and the general state of insecurity returns. T h e only way in which a a common power, which can satisfactorily ensure peace, can be established is through men being prepared: . . . to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will: which is as much as to say, to appoint one man, or assembly of men, to bear their person; and every one to own, and acknowledge himself to be author of whatsoever he that so beareth their person, shall act, or cause to be acted, in those things which concern the common peace and safety; and therein to submit their wills, every one to his will, and their judgments, to his judgment. This is more than consent, or concord; it is a real unity of them all, in one and the same person . . . [etc.].2 This political relationship is always established, on Hobbes's view, by covenant, which is, as we have indicated, the standard means whereby men may extend their obligations by taking new ones upon themselves. He describes the essential nature of this covenant by stating that it is,

...asifeveryman should say to every man, I authorize a up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and author izeall his actions in like manner* Such, Hobbes concludes, is the generation of 'that great or . . . of that mortal god, to which we owe under immortal God, our peace and defence', and in which the

LEVIATHAN,

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essence of the commonwealth consists. It is a sovereign power, whether exercised by one man, or a group of men, or the people as a whole, but providing a unitary judgement, that bears the person of the commonwealth and the authority of each citizen, and it is the existence of this sovereign which distinguishes a society of men from a multitude of individuals. There are two notions involved in Hobbes's account of the political covenant, namely that of renouncing or transferring rights of nature, and that of authorizing a representative to bear the person of the commonwealth, and in both cases Hobbes's statement of the position is misleading if it is taken out of the context of his doctrine. As we have seen, a right of nature, as Hobbes uses the term, is not an entitlement to something which implies duties for other people, but a freedom from obligation in some particular respect, and the 'right to all things' in the State of Nature is to be construed as a general (though not in this case an absolute) freedom from obligation. Likewise, to lay down a right is to divest oneself of a freedom from obligation, either with regard to men in general, or with regard to some particular man or group of men; it is not to give to others any right (freedom from obligation) which they did not have before, though it may facilitate the exercise of those rights or make them more profitable.1 Hobbes makes a distinction in this respect between transferring a right to another person or group, and simply renouncing a right. Right is laid aside, either by simply renouncing it; or by transferring it to another. By simply RENOUNCING; when he cares not to whom the benefit thereof redoundeth. By TRANSFERRING; when he intendeth the benefit thereof to some certain person, or persons. And when a man hath in either manner abandoned, or granted away his right; then is he said to be OBLIGED, or BOUND, not to hinder those, to whom such right is granted, or abandoned, from the benefit of it: . . .2 1 2

See Leviathan, E.W., vol. 3, p. 118 (quoted above at p. 49). Ibid., pp. 118-19.

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Thus, though the rights of other people remain the same, if the individual renounces a right, he will henceforth have a duty not to impede other men in this matter; if he transfers a right, he will have a duty not to impede a particular man or group of men in this matter. The political covenant is evidently a case of transference of rights, as a particular recipient of benefit is designated. Hobbes describes it as a covenant in which each man gives up his right of governing himself to this man or to this assembly of men, on condition that others do the same. T h e effect of such a transference is that each man has taken upon himself an obligation not to impede the sovereign, where no obligation of this kind existed before. T h e rights of the sovereign, however, are unaffected by this transaction and remain the rights of any man in the State of Nature. T h e sovereign will, nevertheless, benefit from the obligations of others and be able to exercise his rights more profitably than was possible before. Now it is the duty of each man who has covenanted in this way, according to Hobbes, not to hinder the sovereign from the benefit which accrues to him under the agreement. But it is essentially a duty of negative import, in that it is a duty not to impede some man or body of men from the benefit of their freedoms from obligation, such as they may be in the State of Nature. And though such a duty implies non-resistance, it does not, in itself, imply active assistance of the person to whom the right is transferred.1 Hobbes's treatment of this topic would have been less

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misleading, perhaps, had he described the would-be citizen simply as taking an obligation upon himself, rather than as transferring rights to the prospective sovereign, for if we take into account Hobbes's special use of the term, right, in this context, these two descriptions are two ways of saying the same thing. On some occasions, it is true, particularly in the earlier version of his doctrine, Hobbes does make statements about the individual obliging himself by means of the political covenant, not to resist the will of the sovereign.1 As a rule, however, he prefers to make the same point by saying that the individual transfers rights. This preference may be due in part to Hobbes's general inclination to use legalistic rather than moralistic language whenever this is possible. There may, however, be a further explanation in the fact that elsewhere Hobbes makes numerous assertions to the effect that the individual cannot oblige himself, and such cases have to be distinguished from that under consideration. Hobbes maintains that the individual cannot oblige himself, for he who can bind or oblige can loosen or forgive, and so can abolish any obligations that may appear to have been incurred. It is on these grounds, for example, that Hobbes contends that the civil sovereign cannot be bound by the civil law, and so sweeps away the whole notion of constitutional guarantees or restrictions laid upon the exercise of sovereignty by that law. Hobbes's employment of such a principle, however, is confined to the context of law. Law imposes obligations on those to whom it applies, and a man cannot be bound by his own law. Covenants are, nevertheless, a different matter. A man may take obligations upon himself by covenant, which he did not have before, and what he pledges by covenant is subject to his own choice and decision. But although this extension of his duties is self-made, the performance of his covenant is obligatory and cannot be forgiven by him. This is, however, a case of the individual obliging himself only in a manner of 1 S e e , e.g., DeCive, PP. i s i - z .

E.W., vol. 2, p. 68; De Carport Politico, E.W., vol. 4.

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speaking. The covenant is binding, because there is a law which commands that all valid covenants are binding, and this law is not made by the individual himself. Ultimately, therefore, the individual cannot oblige himself, but he can extend and particularize obligations required by law, through the covenants which he makes. In this sense, the transference of rights to a sovereign is equivalent to obliging oneself not to resist him in the matters specified in the covenant. Hobbes's account of authority and authorization tends to the same end. The civil sovereign or the person of the commonwealth is not a natural, but a contrived or artificial authority, who is the product of a process of authorization. The manner in which such an authority may arise, is described by Hobbes in the following terms: Of persons artificial, some have their words and actions owned by those whom they represent. And then the person is the actor; and he that owneth his words and actions, is the AUTHOR : in which case the actor acteth by authority... .And as the right of possession, is called dominion; so the right of doing any action, is called AUTHORITY. So that by authority, is always understood a right of doing any act; and done by authority, done by commission, or licence from him whose right it is.' The only way in which a multitude of men can become a unity, is through each man authorizing the actions of the same representative, and owning all his actions or some part of his actions, as the case may be.

A multitude of men, are made one person, when they are by one man,oroneperson,represented;sothatit be done with the sentofeveryoneofthatmultitude in particular. For it is the of the representer, not the unity of the represented, that maketh the person one... And because the multitude naturally is not one, but many; they cannot beunderstoodforone;butmanyauthors,ofeverything their representative saith, or doth in their name; every man giving their common representer, authority from himself in particular; and owning all the actions the representer doth, in case they give 1

Leviathan, E.W., vol. 3, p. , 4 8 .

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him authority without stint: otherwise, when they limit him in what, and how far he shall represent them, none of them owneth more than they gave him commission to act.1 The scope of the authorization, which is necessary for the formation of a political society, is indicated by Hobbes, sometimes with the statement that the citizen has authorized all that the sovereign shall do, and sometimes with the statement that the citizen has authorized all that the sovereign shall do in those things which concern the common peace and safety, to which is added the proviso that the sovereign shall decide what is necessary for these purposes. As Hobbes holds, moreover, that whatever is done on the authority of the individual can be no injury to him, he concludes that no action of the sovereign can be injury to the citizen. Injury is a term used by Hobbes to mean a type of moral affront or moral wrong, and not physical damage. His position, therefore, is that no action of the sovereign is a breach of obligation as far as the subject, who has authorized all his actions, is concerned. The process of authorization does not, however, carry all the implications which would be supposed from the words used by Hobbes in its description. T h e fact that the citizen has authorized or 'owned' all the actions of the sovereign does not mean that the sovereign cannot commit a breach of obligation in any respect, still less does it imply that the subject is morally responsible for what the sovereign does. As we shall see, if the sovereign commands the subject to worship God in a manner which is sinful or to follow religious practices that are against God's law, and the subject obeys, the blame will fall on the head of the sovereign and not the subject. In spite of the authorization granted by his subjects, the sovereign is still accountable to his own conscience and to God for his actions, and though he cannot commit injury against the subject, he can offend against God and will ultimately be brought to account for these offences. 2 And the sovereign's accountability to God will extend over his actions done in damage or detriment of the subject as well as over his other actions. The ' Leviathan, E.W., vol. 3,p. 151.

* See below, pp. 1 2 8 - 3 3 , 1 7 8 - 8 6 .

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authorization of the sovereign, therefore, does not effect a transference of ultimate moral responsibility, nor does it mean that everything the sovereign does against the subject is exempt from moral blame. It means that the conduct of the sovereign cannot be a moral affront of which the citizen may take note, and authorization serves to indemnify the sovereign from accountability to the citizen on such grounds. In the State of Nature, the conscience of the individual is the measure of his own actions; it is also, rightly, the measure of the actions of other men as considered by him. In authorizing the actions of the sovereign, the citizen resigns this position as a judge within the relevant sphere, and afterwards is bound to accept the actions of the sovereign as though they were moral or reasonable, whether they correspond to his own original notions of morality or reasonableness, or whether they do not. Though Hobbes is not explicit at this point, it would appear from other parts of his doctrine that the citizen is not therefore obliged to believe that the conduct of the sovereign is reasonable; for belief does not itself fall under obligation,1 and in any event the civil law does not extend to a control of men's inner thoughts. 2 A t the same time, however, the citizen would not be entitled to speak against the actions of the sovereign on the ground of their unreasonableness or immorality; and if in the transference of rights, the subject gives up the right to resist the sovereign (except in sheer self-defence); in the process of a u t h o r i z a t i o n he may be said to give up the right to accuse or to c o m p l a i n and criticize in the matters involved. This is all that is meant by authorization. A political authority is a person, or a body of persons, whose decisions must be regarded as though they were reasonable in virtue of their source. The question of the citizen taking moral responsibility for the decisions of the sovereign does not really arise. One person cannot take moral responsibility for another person's actions; neither can one person transfer a moral right to another. Any transference of rights in the modern sense that 1

See e.g., D e C i v e ' E W - v o 1 s e e below, pp. 150-1, 173-4.

P- 6 a ;

Leviathan,

E.W.,

vol. 3, P-

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would be possible on Hobbes's theory, would be a transference of legal rights under the civil law; but these are not implicated in the covenant which establishes the political relationship. Though Hobbes uses terms sometimes which suggest that such things are possible, therefore, as when he claims that the citizen 'owns' the actions of the sovereign authorized by him, if his statements are read in their context they will be seen to be subject to the qualifications which have been indicated. In connexion with the authority of the civil sovereign, a further consideration may here be briefly noted. A theory of law in which the source of all legal authority is traced to the commands of the civil sovereign, prompts questions such as the following: Does the sovereign also legalize his own position?, or Does this supreme authority authorize itself?, or Is the original exercise of authority not really an exercise of authority, but of power ?, and so on. All these questions which may be urged against the so-called Austinian theories, or the modern British theory of parliamentary sovereignty as it is sometimes formulated, may be brought also against Hobbes's doctrine as it is often regarded. It may be remarked, however, that so far as Hobbes's account of the authority of the civil sovereign is concerned, this authority is explained as deriving neither from the civil law nor from sovereign command, but from the authorization of the actions of the sovereign by each citizen, and it is in virtue of this fact that Hobbes is able to say that all forms of government are ultimately democratic. Political authority, in Hobbes's doctrine, is not absolute. It is authority only for and over some person, and here where that person has authorized it or for so much as he has authorized. In virtue of his transference of rights and authorization of the actions of the sovereign, the individual has taken upon himself an obligation of non-resistance to the sovereign, and has indemnified the sovereign from accountability to himself. A further problem remains, however, in that the sovereign requires not only a moral status of this kind, but also sufficient power to keep the subject in awe, if he is to succeed in providing the conditions of civil society. And this may imply an

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active co-operation from the citizen in addition to the privileged action of the sovereign. From some of the statements which Hobbes makes, it might appear that this point has been already met with the transference of rights itself, as on some occasions he adds that the individual transfers his power and strength in this transaction. But it turns out that the individual cannot transfer his power in a natural manner, and we are still left with the duty of nonresistance. In dealing with the question of sovereignty, Hobbes continues: Which power and right of commanding, consists in this, that each citizen hath conveyed all his strength and power to that man or council; which to have done, because no man can transfer his power in a natural manner, is nothing else than to have parted with his right of resisting.1 In spite of some suggestion that the individual transfers his power or strength, therefore, Hobbes rightly refuses to allow that political power can be accumulated in this manner, when he is considering the point directly. T h e most autocratic ruler must rely upon the co-operation of at least his henchmen or police force, and the strength of men can be utilized only if their wills can be brought to conformity with the commands which are issued to them. Hobbes, as we shall see, was well aware of this fact, and treats political power throughout as a problem of submission of the human will, and how that submission can be made lasting.2 If mere non-resistance by the subject should prove insufficient for the maintenance of sovereign power, the only remedy open to Hobbes in this case is an expansion of the obligations of the citizen. And this Hobbes attempts to effect by an appeal from the express provisions of the political covenant to the purpose behind its contraction: The end for which one man giveth up, and relinquisheth to another, or others, the right of protecting and defending himself by his own power, is the security which he expecteth thereby, of 1 1

De Ctve, E.W., vol. 2, p. 70. Hobbes's theory of power is discussed more fully below at pp. 312-33.

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protection and defence from those to whom he doth so relinquish it; and a man may then account himself in the estate of security, when he can foresee no violence to be done unto him, from which the doer may not be deterred by the power of that sovereign, to whom they have every one subjected themselves:1 and without that security, there is no reason for a man to deprive himself of his own advantages, and make himself a prey to others How far therefore in the making of a commonwealth, man subjecteth his will to the power of others, must appear from the end, namely, security. For whatsoever is necessary to be by covenant transferred, for the attaining thereof, so much is transferred, or else every man is in his natural liberty to secure himself.2 Here Hobbes is beginning a different style of argument. In this case, whatsoever is necessary for securing the objective of the political covenant is deemed to be transferred to the sovereign authority. In the later part of his theory, 3 Hobbes progressively enlarges the scope of this principle, so as to place upon the citizen a general obligation to act in such a way that the purpose of the covenant shall not be frustrated. And if this purpose is to provide peace and security through the preservation of a human society, the obligations of the citizen may be expanded from mere duties of non-resistance to duties involving active co-operation, where the continuance of this society demands it. In the final section of Leviathan, Hobbes adds a further law of nature to those he has enumerated previously, which is symptomatic of this progression. To the Laws of Nature, declared [above] . . . I would have this added, that every man is bound by nature, as much as in him lieth, to protect in war the authority, by which he is himselfprotected in time of peace.* But, as we have seen, nothing can be transferred by the political covenant except rights of resistance, and Hobbes's 1 'Indeed, to make men altogether safe from mutual harms, so as they cannot he hurt or injuriously killed, is impossible; and, therefore, comes not within deliberation. But care may be had, there be no just cause of fear; for security is the end wherefore men submit themselves to others; which if it be not had, no man is supposed to have submitted himself to aught, . . .' De Give, E.W., vol. 2, 1 De Corpore Politico, E.W., vol. 4, PP- 128-9. pp. 74-75. 3 See below, pp. 188-95,235-74 Leviathan, E.W., vol. 3, P- 7°3-

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appeal to the objective of the covenant, is really a partial desertion or a recognition of the insufficiency of the covenant itself. There is, in consequence, a dualism in Hobbes's account of political obligation. On some occasions the argument is conducted in a very legalistic mode, where Hobbes appeals to the express provisions of the political covenant. Elsewhere, however, his style is more moralistic, and here he tends to rely upon a general obligation to observe the laws of nature. T h e use he makes of an obligation to further the objective of the covenant, peace and society, as opposed to an obligation to observe the clauses of the covenant, is of this order, and his theory of tacit covenant, also, is to be regarded in the same light. 1 Since Hobbes maintains that there is an obligation to obey the laws of nature, and since he regards the principle of keeping covenants as but one natural law among several, this dualism is not necessarily an inconsistency on his part. It does, however, mean that an interpretation of his doctrine that represents political obligation as the simple effect of the obligatory character of a covenant, cannot accommodate its scope. Hobbes elaborates a number of laws of nature stemming from the obligation to keep peace, and his theory requires them. Hobbes's appeal to the purpose of the political covenant provides an avenue for the expansion of the obligations of the citizen; it also serves, however, to recall a limitation upon these obligations that is not apparent from the more strictly legalistic treatment of the covenant. T h e individual contracts himself into a political society in order to provide more effectively for his security and self-preservation, and cannot be supposed thereby to have obliged himself to anything inconsistent with this purpose. Although he may appear to have transferred all his rights to resist the sovereign by the express terms of the covenant, therefore, he has not granted away his ultimate right of self-defence. A s in the State of Nature, a covenant which explicitly transfers the right of self-defence is not valid, and a covenant which may appear to have transferred this right by implication, must be read otherwise. 1

See below, pp. 121-4 passim, 235-7.

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. . . no man is supposed bound by covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a commonwealth, every man giveth away the right of defending another; but not of defending himself. Also he obligeth himself, to assist him that hath the sovereignty, in the punishing of another; but of himself not.1 As a result, the effect of the political covenant is not to restrain the individual from action in the face of patent mortal danger, but to restrain him from action on suspicion of danger, or to put the matter more precisely, it narrows the field of 'just suspicion'. As indicated above, a covenant not to defend oneself is invalid at the time when it is made, and a valid covenant may be subsequently invalidated by a just suspicion that the other party involved will not perform his share of the agreement. The security provided by civil society does not affect the first principle in any way, but it does alter the operation of the second, and the citizen is obliged to meet obligations, from which he would be dispensed in the State of Nature by what we have termed the retrospective invalidating principle for covenants.2 Although Hobbes's doctrine is sometimes described as requiring the individual to resign his natural right of self-defence,3 therefore, this is extremely misleading, since the right of self-defence is fully retained, and what are changed are the opportunities for reasonable or just suspicion. In connexion with this problem, the effect produced by the institution of a sovereign power is indicated by Hobbes in the following passage: If a covenant be made, wherein neither of the parties perform presently, but trust one another; in the condition of mere nature . . . upon any reasonable suspicion, it is void: but if there be a ' Leviathan, E.W., vol. 3, p. 297. It may be noted that this p a s s a g e provides also an example of the point previously made, regarding a duty of assisting the sovereign (in punishing another), and not merely of not resisting him. * See above, pp. 32-33, 38-45. 3 See, e.g., G . C . Robertson, Hobbes, p. 145. The transference of power consists, as it only can consist, in parting with the natural right of self-defence belonging to each individual; . .

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common power set over them both, with right and force sufficient to compel performance, it is not void . . . . . . . in a civil estate, where there is a power set up to constrain those that would otherwise violate their faith, that fear is no more reasonable; and for that cause, he which by the covenant is to perform first, is obliged so to do.1 or elsewhere, Nature gave a right to every man to secure himself by his own strength, and to invade a suspected neighbour, by way of prevention : but the civil law takes away that liberty, in all cases where the protection of the law may be safely stayed for.2 On the assumption that a sovereign power exists who will protect the law-abiding citizen, civil society becomes what we have termed a 'secure situation'.3 That is to say, the citizen is not absolutely safe and may have to exercise his right to selfdefence in an extremity, but he has a security sufficient to take away the excuse of acting upon suspicion of danger or of conducting preventive war. In these circumstances the validating condition of 'sufficient security' is satisfied, and the citizen is fully obliged by the law, except for his ultimate right of selfdefence in those cases where the protection of the law cannot l be safely stayed for'. Hobbes is inclined, however, to underemphasize the limiting cases in this position. It is clear that granted the protection of the sovereign, fear of hypothetical danger is an unjust fear. But the subject may doubt the assumption that the sovereign can or will protect him, and the kind of question which was raised concerning his neighbours in the State of Nature must now be raised concerning the sovereign himself. T h e subject may, for example, legitimately ask whether the sovereign has in fact the power to protect him. In normal cases the answer to this question may appear obvious, but in times of civil or foreign war it may not be so. And assuming that the sovereign has the requisite power, is he intending to use it in order to protect the subject, or, for example, is he plotting to kill him ? 1 2

Leviathan, E W . , vol. 3, pp. 124-5. See also De Cive, E.W., vol. 2, pp. 21-22. 5 See above, pp. 63-67, 113 n. Leviathan, E W . , vol. 3, p. 276.

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Hobbes does consider these limiting cases, and states definitely that the subject is exempted from obedience to the civil law where the sovereign has lost the power to protect him, and that a command to the effect that a subject be killed would be no law for the subject concerned. What Hobbes does not admit, however, or at least does not make clear, is that these limiting cases cannot be brought simply under the subject's basic right to self-defence in an extremity. These are essentially 'insecure situations' and in such cases hypothetical danger may be considered as well as patent mortal danger. This will mean, if we are to apply Hobbes's former rule, that the subject is entitled to act upon suspicion, or in prevention of danger provided that he sincerely considers his fears for his life to be reasonable.1 In civil society, fear based upon hypothetical danger has been deemed to be unjust because the protection of the civil law is available. But the civil law provides no protection from the sovereign's lack of power nor its use to encompass the death of the citizen. On these counts, a second and superior 'sovereign' would be needed in order to give to the citizen a protection against his sovereign, equivalent to that which he has against his fellow citizens, and so on to a further 'sovereign' in order to guarantee the previous one. Thus, if a citizen makes a covenant with a fellow citizen, it is clear that he cannot claim an exemption from his obligation to honour the agreement by pleading a suspicion of the good faith of his fellow citizen; for if the covenant is valid and therefore lawful, the sovereign will enforce its fulfilment. But if the citizen should claim exemption from this obligation on the ground that he suspects that the sovereign has not the power to enforce the agreement and then on the ground that his fellow citizen is not to be relied upon, it would appear that Hobbes would have to concede such a claim, though he would be entitled to insist that the suspicions or fears of the agent must be bona fide if his obligation is to be set aside. This admission is not fatal to Hobbes's thesis, but it does imply that the difference between the State of Nature and civil 1

See above, pp. 38-47, 52-67.

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society is not so radical as he sometimes suggests. T h e problem of hypothetical danger and preventive war is greatly simplified by men's transition to political society. Whereas the individual in the State of Nature must sincerely judge the reasonableness of his own fears regarding all manner of relationships with his neighbours; the citizen must perform this task only with respect to the question of whether the sovereign has the power to protect him and whether the sovereign will use that power in order to protect or to destroy him. T h e right to resist the sovereign, moreover, must not be exaggerated. A valid pretext for resistance can arise only from a bona-fide plea of personal insecurity, and it would still be pertinent for Hobbes to point out that such a pretext cannot be based, for example, upon dislike of the religious observances or the property relationships prescribed by the civil law, nor even upon an intention to protect other citizens. T h e fact remains, nevertheless, that for each man the comprehensive test for 'sufficient security' is always to some extent subjective, in that both in the State of Nature and in civil society it depends in part upon the individual's estimate of his own safety,1 and this means that in some circumstances only he can know what his duties are. Hobbes's case rests upon the consideration that if men in general honestly examine the reasonableness of their fears, they will find less occasion for just fear as citizens than they would if they were living outside civil society, and that the law obliges them to a corresponding degree. Perhaps the most interesting application of Hobbes's treatment of the security problem at the present time, lies in the field of international relations. Sovereign States are, on Hobbes's view, in the State of Nature with regard to each other,2 as there is no overriding unitary authority which can subject them to a code of law enforceable by its superior power. See below, pp. 149-50, 188 ff. • • yet in all times, kings, and persons of sovereign authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms; and continual spies upon their neighbours; which is a posture of war.' Leviathan, E.W., vol. 3, p. 115. 1

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If the question is raised as to why such States have not been driven to contract themselves into a unitary society on the Hobbesian pattern, it may be pointed out that their position in the past, at least, has not corresponded exactly with that of Hobbes's individuals in the State of Nature. Here the individuals were all equal in power or equally dangerous to others, in the sense that each man was a legitimate source of extreme fear, for the weakest could kill the strongest by guile or by banding together with others to secure this end. States, however, are not subject to the same opportunities for destruction as private men, and the strong States have not feared the weak. They have, in consequence, preferred to secure their ends by treaties and alliances, rather than by a resignation of their sovereignty. If, however, the development of modern weapons proceeds to a sufficient degree, the position may be reached where the strongest State could be annihilated with ease by a mere principality. In such a situation the equality of fear to which men are subject in Hobbes's State of Nature, may hold also in international affairs,1 and States may be prepared to jettison their power, provided that some or any unitary authority will accept a monopoly of it, and this without any constitutional guarantees that can be effectively sustained. The chief source of instability and distrust in international relations, as in Hobbes's State of Nature, is not that men will act to meet patent danger, but that they will also act to meet hypothetical danger. States do not merely fight when they are actually attacked, but follow what are sometimes called in diplomatic language, abstract principles of precaution. It is with such actions, designed to meet potential danger, that Hobbes's theory is centrally concerned, and it is these actions which are only conditionally excused in his ethical theory. As indicated above they are justifiable if undertaken in good faith in a state of 'insecurity', but not where the individual is 'secure'.2 Actions against patent danger, on the other hand, are 1 Cf. Leviathan, E.W., vol. 3, p. 666: 'Philosophy was not risen to the Grecians, and other people of the west, whose commonwealths... had never peace, but when their fears of one another were equal; . . .' See above, pp. 63-67.

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justifiable in all circumstances. Now general 'security' can only be attained by a transaction which erects Leviathan, and although this power may be resisted in extremity, resistance is overwhelmingly likely to be futile, for otherwise there would be no 'security'. And so the individual chooses between two hypothetical dangers, the future conduct of the sovereign in society and the future conduct of his neighbours in the State of Nature. It is necessary, however, for Hobbes to justify a distinction between these two hazards, if political society is to be defended. This is partly a question of ethics and partly a question of motive, and Hobbes thought that the distinction could validly be drawn on both counts for a group of men who lived in his condition of equal and extreme fear. With regard to speculation about international relations of the type indicated, it may be added that Hobbes would not require a State to give up the right to resist violence. Such a renunciation would, on his view, be psychologically impossible, and this provision distinguishes his theory from pacifistic solutions. T h e sacrifice involved is a renunciation of a right to act upon suspicion of danger (except in limiting cases1) and a sacrifice of accountability. Hobbes's contention in this connexion, moreover, is not that men will necessarily opt for Leviathan, but that they ought to do so, because this is the alternative which meets the laws of nature that command peace. It is also a solution to which men in general might be adequately motivated, granted the equality of fear, because with sufficient knowledge and foresight, each man could see it as the best means open to him for securing his own preservation. But with men of no foresight or with men who hold some things to be more valuable to them than preservation, the matter may well proceed otherwise. Types of Sovereignty The political relationship, according to Hobbes, is always established by covenant, and though, as we have seen, he sometimes makes what is virtually a more general appeal to the * See above, pp. 116-18.

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laws of nature as a whole, covenant is the only instrument whereby men may extend their obligations on their own initiative, and is an indispensable ingredient. Such a relationship may be contracted, principally, in two ways. i . Sovereignty by Institution, wherein the sovereign authority is constituted by agreement among themselves of a body of would-be citizens. T h e particular form of agreement made is described by Hobbes in the following terms: A commonwealth is said to be instituted, when a multitude of men do agree, and covenant, every one, with every one, that to whatsoever man, or assembly of men, shall be given by the major part, the right to present the person of them all, that is to say, to be their representative-, every one, as well he that votedfor it, as he that voted against it, shall authorise all the actions and judgments, of that man, or assembly of men, in the same manner, as if they were his own, to the end, to live peaceably amongst themselves, and be protected against other men. From this institution of a commonwealth are derived all the rights, and faculties of him, or them, on whom sovereign power is conferred by the consent of the people assembled.1 Any individual in the group would appear to have the choice of belonging to the assembly, and hence being obliged by the decision of the majority respecting the person or persons who are to be instituted as sovereign, or of becoming an outcast. . . . because the major part hath by consenting voices declared a sovereign; he that dissented must now consent with the rest; that is, be contented to avow all the actions he shall do, or else jusdy be destroyed by the rest. For if he voluntarily entered into the congregation of them that were assembled, he sufficiently declared thereby his will, and therefore tacitly covenanted, to stand to what the major part should ordain: and therefore if he refuse to stand thereto, or make protestation against any of their decrees, he does contrary to his covenant, and therefore unjustly. And whether he be of the congregation, or not; and whether his consent be asked, or not, he must either submit to their decrees, or be left in the 1 Leviathan, E.W., vol. 3, p. 159. See also De Corpore Politico, E.W., vol. 4, PP. 126-9.

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condition of war he was in before; wherein he might without injustice be destroyed by any man whatsoever.1 If he stays in the assembly, the individual is thenceforth regarded as having covenanted, openly or tacitly, to yield to the sovereign such rights as are adequate to provide security. It follows, briefly, that as security cannot be purchased at a less price, the individual who enters political society is regarded as having authorized all that the sovereign shall do, which carries the implications set out above.2 2. Sovereignty by Acquisition is, for Hobbes, a case where the sovereign power is acquired by force; . . . and it is acquired by force, when men singly, or many together by plurality of voices, for fear of death, or bonds, do authorize all the actions of that man, or assembly, that hath their lives and liberty in his power.3 This form of authority Hobbes describes in De Cive as ' a natural government; which may also be called acquired, because it is that which is gotten by power and natural force' .4 He examines this relationship by considering two examples of the acquisition of dominion of one person over another in the context of a family. In one case, this position may be reached when a man is taken prisoner or overcome in battle, and makes a promise of obedience to his conqueror on condition that his life be spared and his natural liberty be respected. If these terms are satisfied, such a person is regarded by Hobbes as obliged, thenceforth, as by covenant to obey his conqueror. Hobbes was quite clear, however, that a simple grant of life was not enough to constitute obligations. A person whose life is spared, but is kept within prisons or bound with irons, is not on Hobbes's view a servant, but a slave, and has, as such, no obligations towards his master .s Thus the obligation of a servant to his lord, . . . ariseth not from a simple grant of his life; but from hence Leviathan, E.W., vol. 3, pp. 162-3. See pp. 108-11. Some of these implications are examined in more detail below under the heading of the rights and duties of sovereign and subject (Ch. VIII). 3 Leviathan, E.W., vol. 3, p. 185. See also De Corpore Politico, E.W., vol. 4, 4 De Cive, E.W., vol. 2, p. 108. See also ibid., pp. 70-71. P-149s See Leviathan, E.W., vol. 3, p. 189. 1

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rather, that he keeps him not bound or imprisoned. For all obligation derives from contract; but where there is no trust, there can be no contract, . . . so that if no obligation nor bonds of contract had happened, he might not only have made his escape, but also have killed his lord who was the preserver of his life.1 There is, in consequence, an element of trust reposed in the servant who is obliged, and, as Hobbes goes on to explain: It is not therefore the victory, that giveth the right of dominion over the vanquished, but his own covenant. Nor is he obliged because he is conquered; . . . but because he cometh in, and submitteth to the victor; nor is the victor obliged by an enemy's rendering himself, without promise of life, to spare him for this his yielding to discretion; which obliges not the victor longer, than in his own discretion he shall think fit.2 Another way in which dominion may be acquired by one person over another is that illustrated by the authority of parents over their children. Paternal dominion, as Hobbes calls it, however, is not derived from the generation of the child, but from the child's consent, 'either express, or by other sufficient arguments declared'. T h e right of the parent derives essentially from the fact that the child is in his or her power, and ought to obey a person by whom it is preserved. This situation, on Hobbes's view, is sufficient ground for an argument that a (tacit) covenant of obedience exists— . . . because preservation of life being the end, for which one man becomes subject to another, every man is supposed to promise obedience, to him, in whose power it is to save, or destroy him.3 From the point of view of Hobbes's argument in general, the chief importance of this passage is the enunciation of the principle that every man is presumed to have promised obedience to him who has power of life and death over him, but yet spares or protects him, and this principle will require later consideration. Apart from this general provision, however, the propriety ' De Cive, E.W., vol. 2, p. n o . See also De Corpore Politico, E.W., vol. 4, P. 150. 2 Leviathan, E.W., vol. 3, p. 189. See also ibid., pp. 704-5. 3 Ibid., pp. 186-8.

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on Hobbes's part of applying the notion of tacit covenant to the child-parent relationship is very doubtful. As we have seen, Hobbes has already maintained that natural law does not oblige children and madmen, and in this event there would be no law to underwrite a covenant made by a child. Elsewhere, Hobbes argues that children have not the power to make a covenant or to understand its consequences,1 and such a conclusion would appear to be more sensible and more consistent with the rest of his doctrine. His insistence, in the present case, that even the authority of the parent over the child depends upon covenant may be attributable, perhaps, to an anxiety to forestall at their inception, contemporary paternalistic theories of sovereign authority. A family cannot itself be properly regarded as a commonwealth, .. . . unless it be of that power by its own number, or by other opportunities, as not to be subdued without the hazard of war. For where a number of men are manifestly too weak to defend themselves united, every one may use his own reason in time of danger, to save his own life, either by flight, or by submission to the enemy, as he shall think best; . . .2 In spite of the fact, however, that for this reason the political relationship is not established in the family, these two cases of family dominion show the characteristics of this relationship. Sovereignty by acquisition would appear to be simply Hobbes's master-servant relationship (despotical dominion) on a sufficiently large scale. The difference between sovereignty by institution and sovereignty by acquisition, such as it is, seems to have been regarded by Hobbes as unimportant, and is summarized by him in his discussion of sovereignty by acquisition. And this kind of dominion, or sovereignty, differeth from sovereignty by institution, only in this, that men who choose their sovereign, do it for fear of one another, and not of him whom they institute: but in this case, they subject themselves, to him they are afraid of. In both cases they do it for fear: which is to be noted by 1

See below, p. 256.

2 Leviathan, E.W., vol. 3, p. 191.

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them, that hold all such covenants, as proceed from fear of death or violence, void: which if it were true, no man, in any kind of commonwealth, could be obliged to obedience. . . . But the rights, and consequences of sovereignty, are the same in both.1 In both cases, the power of the sovereign cannot, without his consent, be transferred to another; the sovereign cannot be accused by any of his subjects of injury, he cannot be punished by them; he is judge of what is necessary for peace, judge of doctrines; he is the sole legislator and the supreme judge of controversies, and of the times and occasions of war and peace; he has the right inter alia to choose magistrates, commanders, and ministers and to determine rewards and punishments.2 In both cases the subject becomes the author of all the sovereign shall do, in a relationship, established by covenant and based upon his own consent. T h e mere fact that this consent may be extracted from the individual by a threat to his life, does not, on Hobbes's view, alter its basic character as a choice taken by the individual between the alternatives open to him.3 Is the Sovereign a Party to the Covenant? Hobbes was concerned to revise the traditional contractarian picture of an agreement between the ruler on the one hand, and the ruled on the other, which appeared to carry the implication that both parties to the agreement exercised their functions under prescribed conditions, and further that these conditions could be broken and suitable punitive action taken as a result by either party. On this subject more than any other, 1 Leviathan, E.W., vol. 3, pp. 185-6. See also, ibid., p. 190 (where Hobbes adds 'and for the same reasons'). 2 See ibid., pp. 159-68 and 186. 3 'For it is e v i d e n t . . . that the right of all sovereigns is derived originally from the consent of every one of those that are to be governed; whether they that choose him, do it for their common defence against an enemy, as when they agree amongst themselves to appoint a man or an assembly of men to protect them; or whether they do it, to save their lives, by submission to a conquering enemy.' Leviathan, E.W., vol. 3, p. 573-

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perhaps, Hobbes's writings take on an appearance of a tract for the times, influenced more by the arguments and events that he was concerned to condemn than by the strict requirements of his own theory. Certain aspects of this account have, in consequence, received an emphasis which is out of all proportion to their theoretical value. In the first place, the political covenant cannot, according to Hobbes, be an agreement between ruler and ruled, because the ruled, considered by themselves, are a mere multitude of individuals and cannot be a contracting body. As being party to a contract implies a single will, the only possible form of covenant open to such an aggregate is one between its several members. T h e citizenry, as such, is a unit only through its unitary representation or personation by the sovereign authority, and can therefore be a party to a covenant only through the action of that authority on their behalf. Thus, in opposition to those of his contemporaries who had urged the validity of popular protest against the conduct of the monarch, Hobbes draws a firm line between the people as a political authority and the people as a multitude of individuals. . . . it is a great hindrance to civil government, especially monarchical, that men distinguish not enough between a people and a multitude. The people is somewhat that is one, having one will, and to whom one action may be attributed; none of these can properly be said of a multitude. The people rules in all governments. For even in monarchies the people commands; for the people wills by the will of one man\ but the multitude are citizens, that is to say, subjects. In a democracy and aristocracy, the citizens are the multitude, but the court is the people. And in a monarchy, the subjects are the multitude and (however it seem a paradox) the king is the people.1 In spite of this distinction, however, Hobbes employs the notion of a decision by a majority in his account of sovereignty by institution. A sovereign authority is erected in this case through the agreement of an assembly of men to authorize the actions of a sovereign chosen by the majority. On some occa' De Cive, E.W., vol. 2, p. 158.

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sions, he even goes so far as to regard each individual who has voluntarily entered the assembly as having tacitly covenanted to follow the majority decision in this matter, and therefore as acting unjustly if he later refuses to abide by that decision; on other occasions, he contents himself with the statement that a person who does not submit to this decision is an outlaw, who is still in the condition of war and may be destroyed by any man without injustice. 1 But if the sovereign is designated by a majority decision, the majority cannot derive its unity from the sovereign in this instance, and if such a majority has a will capable of performing this function which plays a part in establishing obligations to obey a determinate sovereign, it is not clear why it should not have sufficient unity to allow it to become a party to a covenant of obedience. In the earlier versions of his ethical and political theory, Hobbes attempts to mitigate this discrepancy in his account by the suggestion that the majority of the instituting assembly is the first sovereign.2 Thus all instituted States begin as democracies ruled in this way, though they may, in turn, resolve themselves immediately by majority decision into another form of government. Hobbes does not, however, persist with this explanation, and such a defence would in any event still leave over the problem of the erection of the majority principle itself. If a multitude can assemble and agree to be guided by a majority decision, it is difficult to see why they cannot also be a party to a covenant,3 and the fact that the majority, in designating say a particular monarch, may in that act be * See, e.g., Leviathan, E.W., vol. 3, pp. 162-3; De Cive, E.W., vol. 2, pp. 73741 'Those who met together with intention to erect a city, were almost in the very act of meeting, a democracy. For in that they willingly met, they are supPosed obliged to the observation of what shall be determined by the major part; which, while that convent lasts, or is adjourned to some certain days and places, 15 a clear democracy . . . ' (etc.) De Cive, E.W., vol. 2, pp. 96-97- See also, ibid., P-100; De Corpore Politico, E.W., vol. 4, pp. I39"45- This point is raised by J. Laird (Hobbes, pp. 199 ff.). It may of course be the case that government requires a continuous source of unitary decision such as could be provided for a group of men, only by the unity °f the representer or sovereign. But Hobbes does not show that in order to be a party to a covenant of obedience, a group would need a unity so rigorous as this.

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regarded as a sovereign authority does not greatly alter the matter. Even if Hobbes's claim is conceded, however, that the citizenry as such is a mere multitude and so cannot covenant as a body with the sovereign, the question still remains of whether the political relationship could not be established by a covenant between the sovereign and the citizens as individuals. In this event, there would not be a simple covenant between ruler and ruled, but a number of covenants between the ruler and the several subjects, with the sovereign as a party to each agreement. In this connexion it is, perhaps, unfortunate that Hobbes began his account of sovereignty with a description of sovereignty by institution rather than of sovereignty by acquisition, where his essential argument appears in a clearer form. T h e case of sovereignty by institution, as defined by Hobbes, occurs where a number of would-be citizens covenant with each other to set up a sovereign power over them, and in such a case, the sovereign himself is not a party to the covenant. Hobbes was inclined to emphasize this consideration. . . . because the right of bearing the person of them all, is given to him they make sovereign, by covenant only of one to another, and not of him to any of them; there can happen no breach of covenant on the part of the sovereign; and consequently none of his subjects, by any pretence of forfeiture, can be freed from his subjection. That he which is made sovereign maketh no covenant with his subjects beforehand, is manifest; because either he must make it with the whole multitude, as one party to the covenant; or he must make a several covenant with every man. With the whole, as one party, it is impossible; because as yet they are not one person: and if he make so many several covenants as there be men, those covenants after he hath the sovereignty are void; because what act soever can be pretended by any one of them for breach thereof, is the act both of himself, and of all the rest, because done in the person, and by the right of every one of them in particular.1 Elsewhere, Hobbes attempts to strengthen his argument to 1


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the effect that the subject cannot covenant with the sovereign, by suggesting that as the sovereign bears the person of the subject, the subject would be covenanting with himself by such a proceeding, which he cannot do; or that the subject, in authorizing the actions of the sovereign, is also guilty of any unjust actions the sovereign may do and so in complaining of them is merely accusing himself. On such occasions, particularly in his earlier writings, Hobbes appears almost to have foreshadowed Rousseau's theory of the General Will. Continuing his discussion of the relationship between the individual and the sovereign in terms of his distinction between the multitude and the people (as sovereign authority), Hobbes asserts: Now, if after that government is framed, the subject make any contract with the people, it is in vain; because the people contains within its will the will of that subject, to whom it is supposed to be obliged; and therefore may at its own will and pleasure disengage itself, and by consequence is now actually free.1 . . . whatsoever the people doth to any one particular member or subject of the commonwealth, the same by him ought not to be styled injury. For first, injury, by the definition . . . is breach of covenant; but covenants . . . there passed none from the people to any private man . . . Secondly, how unjust soever the action be, that this sovereign demus shall do, is done by the will of every particular man subject to him, who are therefore guilty of the same. If therefore they style it injury, they but accuse themselves. . . . Nevertheless nothing doth hinder, but that divers actions done by the people, may be unjust before God Almighty, as breaches of the laws of nature.2 Here Hobbes is trying to prove more than he is able, and considerably more than his theory requires. T h e proposition which he needs to establish is that the sovereign is not accountable to the subject for his actions, though he is accountable to his own conscience and to God for breaches of natural law. T h e judgements of men concerning what is good and evil, and their interpretations of natural law are so diverse 1 De Cive, E.W., vol. a, p. 98. See also ibid., pp. 153-4. am1 compare 1 De Corpore Politico, E.W., vol. 4. P- *4°PP- 154-8, below.

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the subject under consideration was not, himself, involved. Thus the conduct of the sovereign towards a fellow subject or a foreign State would be no injury to the subject, and, if this is to have point, it means that the sovereign is not accountable to the subject for that conduct. Thus the principle is not concerned with actions against the subject as such, but with accountability to the subject for all types of actions committed by the sovereign. In other words, whatever the sovereign does cannot be a moral wrong capable of being pronounced by the subject to merit censure or punishment, though another judge may be differently placed. And this position is not affected by the question of whether the action complained of is against the subject or not.1 Hobbes may have been induced to intrude the question of the parties to the political covenant into what should have been a discussion of authorization, through his ambiguous use of the terms 'injury' and 'injustice'. 2 On some occasions he uses these words with a wider meaning to describe something which is contrary to some law, natural or civil, or contrary to right, or contrary to reason.3 Elsewhere, however, he defines them more narrowly to mean breach of covenant, and he then uses the term, iniquity, for the wider moral wrongs such as offences against God and natural law.4 Hobbes needs to claim that whatever the sovereign may do cannot be a moral offence to the subject, in the sense of a moral wrong of which the subject may justifiably take note (though these same actions may be judged by God). This may be represented by the statement that whatever the sovereign does cannot be injury to the subject. ' Cf. Hobbes's distinction between injury and damage, noted below at pp. 136-7. Hobbes distinguishes injustice from injury in a footnote in De Cive, though for many purposes they are interchangeable terms: ' T h e word injustice relates to some law: injury, to some person, as well as some law. For what is unjust, is unjust to all; but there may an injury be done, and yet not against me, nor thee, but some other; and sometimes against no private person, but the magistrate only; sometimes also neither against the magistrate, nor any private man, but only against God . . . ' (etc.). (E.W., vol. 2, p. 31 n.). 1

5 See, e.g., De Cive, E.W., vol. 2, pp. 31 n. (noted above), 32-33,46 n., 198-9 n.; Leviathan, E.W., vol. 3, pp. 119, 135. 4 See, e.g., Leviathan, E.W., vol. 3, pp. 130-31,137, 163; De Cive, EAV., vol. 2, p. toi.

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Such a statement is then translated by Hobbes into the narrower meaning of 'injury', and he proceeds with a more technical discussion, purporting to show that the sovereign cannot commit breach of covenant, and so can never commit injury or injustice (though he may commit iniquity). In this process, however, he is arguing for a more absolute exemption from moral blame for the sovereign than is required by his theory. He needs to assert that the subject cannot accuse the sovereign of breach of covenant, but it is not necessary that the sovereign be shown to be incapable of breaking covenant provided that the judgement on this matter be left to God. But Hobbes seems to have passed over this point, and it then appears to him advantageous to show that such a breach can never happen because the sovereign can never be a party to the covenant. The emphasis placed upon this point by Hobbes has been followed by his commentators to such an extent that the traditional account of his work gives, as one of his most important contributions to political philosophy, the revision of the theory of the social contract in terms of a covenant between citizen and citizen, and not between sovereign and citizens either collectively or severally. That such an emphasis has been misplaced, however, is evident from the fact that when Hobbes turns from the case of sovereignty by institution to consider that of sovereignty by acquisition, he maintains quite definitely that the covenant involved in these examples is one which holds between sovereign and subject. • . . seeing sovereignty by institution, is by covenant of every one to every one; and sovereignty by acquisition, by covenants of the vanquished to the victor, or child to the parent;.. As Hobbes further maintains, moreover, that the two types of sovereignty have 'the same consequences and for the same reasons', the mere consideration that the sovereign is not a party to the covenant in one of these cases can hardly be a matter of central interest. In striving to establish the position 1


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that the sovereign holds his authority without conditions that can be interpreted against him by the subject, it is curious that Hobbes should use an argument which is so uneconomical in assumptions and which can at best vindicate only one kind of sovereignty. In fact, Hobbes's insistence that the sovereign is not a party to the covenant in the case of sovereignty by institution, raises difficulties for his theory. How, for example, is he to explain the sovereign's position if it should happen that one of the original covenanting parties who agreed to abide by a majority decision, should himself be chosen as sovereign by this process? Hobbes says nothing that would preclude such a choice, or render it improbable. Apart from such an eventuality, however, there is a more serious problem and one of more general application. If the sovereign is not a party to the covenant, it does follow that he cannot be accused of breaking the covenant or of injury to his subjects; but at the same time, presumably, the citizens could break their covenant, without injury to the sovereign who is no party to it. It is true that each citizen alone, if he failed to keep the agreement, would commit injury towards his fellow citizens with whom he had covenanted; but if all the citizens agreed to the change, all parties to the covenant would be capable of dissolving it without blame. In this situation, the obligation towards the sovereign, which is in essence an obligation under covenant of one citizen to his fellow citizens, would disappear. Hobbes is fully aware of this difficulty: Forasmuch as the supreme command is constituted by virtue of the compacts which each single citizen or subject mutually makes with the other; but all contracts, as they receive their force from the contractors, so by their consent they lose it again and are broken: perhaps some may infer hence, that by the consent of all the subjects together the supreme authority may be wholly taken away.1 Hobbes attempts to meet the problem in a number of ways; 1

De Cive, E.W., vol. 2, pp. 89-90.

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he emphasizes the fact that it is extremely unlikely that all subjects without exception would combine against the sovereign. As in this case, apparently, a majority would not be sufficient to count for all,1 there would be some citizens remaining with a valid claim against the innovators. Even if this rather doubtful argument is admitted, however, the question is still pertinent as to what the position would be in the unlikely circumstance of all citizens agreeing to dissolve the covenant. Hobbes is led eventually to concede that if the right of the sovereign depended only upon the covenant which each man made with his fellow citizens, it could happen that he might be deprived of his dominion under pretence of right. This situation is safeguarded, however, according to Hobbes, because in addition to the obligations contracted to each other by the citizens, there is a further obligation involved. But though a government be constituted by the contracts of particular men with particulars, yet its right depends not on that obligation only; there is another tie also towards him who commands. For each citizen compacting with his fellow, says thus: I convey my right on this party, upon condition that you pass yours to the same: by which means, that right which every man had before to use his faculties to his own advantage, is now wholly translated on some certain man or council for the common benefit. Wherefore what by the mutual contracts each one hath made with the other, what by the donation of right which every man is bound to ratify to him that commands, the government is upheld by a double obligation from the citizens; first, that which is due to their fellowcitizens; next, that which they owe to their prince. Wherefore no subjects, how many soever they be, can with any right despoil him 1 A majority would not be enough to count for all because . . it is not from nature that the consent of the major part should be received for the consent of all, neither is it true in tumults; but it proceeds from civil institution: and is then only true, when that man or court which hath the supreme power, assembling his s u b j e c t s , . . . allows those that are elected a power of speaking for those who elected them; and will have the major part of voices . . . to be as effectual as the whole'. De Cive, E.W., vol. z, pp. 90-91- This, as Hobbes points out, the sovereign is hardly likely to allow in this case. Such an argument cannot be regarded as strong, however, since on Hobbes's theory, in the institution of the State, all are supposed to agree to the sovereign designated by the majority. The particular majority which chooses the sovereign cannot itself be validated on the formula given by Hobbes above.

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who bears the chief rule of his authority, even without his own consent.1 It is very difficult, however, to find the principle under which it is possible for Hobbes, in terms of his own theory, to introduce this additional obligation to the sovereign. Even if we allow an extension of Hobbes's term 'injury' to cover not merely breach of covenant, but also a failure to keep a promise to make a gift, or a withdrawal of a gift already made, 2 as Hobbes himself is sometimes inclined to do, the question still remains as to whether the obligation is owed entirely to the person to whom the promise is made that something will be given, who may release the promiser from his obligation, or whether the obligation is, in part, owed also to third parties who may benefit under the agreement. If we suppose that the political covenant is of the form that citizen 'a' covenants with 'b' (his fellow citizen) to convey rights to 'x' (the sovereign), the mere fact that 'x' benefits from the covenant would not normally, in Hobbes's system, create any obligation for 'a' towards 'x'. The obligation, on the contrary, would be owed entirely to 'b' and could be rescinded by 'b' though its discharge involves obedience to 'x'. The fact that the political covenant is with all fellow citizens, each with each, complicates but does not alter the argument. Hobbes himself recognizes this point in another context where he draws a distinction between 'injury' and 'damage'. But the injustice of an action, that is to say injury, supposeth an individual person injured; namely him, to whom the covenant was made: and therefore many times the injury is received by one man, when the damage redoundeth to another. As when the master commandeth his servant to give money to a stranger, if it be not done, the injury is done to the master, whom he had before covenanted to obey; but the damage redoundeth to the stranger, to 3 whom he had no obligation, and therefore could not injure him De Cive, E.W., vol. 2, pp. 91-92. Some additional considerations regarding Hobbes's theory as it bears upon the question of gifts, are presented below, at pp. 233-5. 1 Leviathan, E.W., vol. 3, p. 136. 1

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If the sovereign is not a party to the covenant, it is difficult to see how he could suffer more than 'damage' should all citizens agree to revise their covenants, and 'damage' does not imply the breach of an obligation to the person affected. 1 But even if Hobbes had modified his whole theory in order to allow that a covenant or promise could erect an obligation, not only to the person with whom the covenant or promise was made, but also to a beneficiary under the agreement, he would not have escaped serious theoretical difficulties. Such a principle could then have been extended to beneficiaries of all kinds, and would have had the effect of compromising the position of the sovereign vis-a-vis the subject. As we shall see,2 the sovereign owes a duty to God in which his subjects are the beneficiaries, as that duty consists inter alia in upholding the safety of the people. Under the principle in question, the sovereign would then have to be regarded as holding an obligation to his people, and not simply an obligation to God on the people's behalf, and this would make the sovereign accountable to his subjects as well as to God—a responsibility that Hobbes was particularly concerned to deny. It would seem to be very unlikely, therefore, that the obligation of the citizen to the sovereign can be satisfactorily covered simply by the principle that obligations are owed to those who benefit from covenants in which they do not themselves participate. Is it possible for Hobbes's contention to be salvaged by less expensive means ? An attempt to solve the problem of the additional obligation of the subject to the sovereign by positing a second covenant has little chance of success. Apart from the fact that Hobbes makes no suggestion that two covenants are involved at any stage, the objections to such an enterprise are formidable, in that it would be impossible, on Hobbes's theory, to establish a relationship between them. If we assumed, as in Locke's theory, an original covenant between citizens, 1 See De Corpore Politico, E.W., vol. 4, p. 96. 'In all violation of covenant, (to whomsoever accrueth the damage) the injury is done only to him to whom the covenant was made' (etc.). See also Hobbes's statement on the invalidation of covenants through forgiveness, noted above at p. 36. 1 See below, pp. 180-6,

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and then a secondary covenant between citizens and sovereign, the continuing validity of the original covenant could not be assured on Hobbes's premisses, as it would presuppose the existence of sovereign power. If, however, in order to overcome the hiatus between the two covenants, they were to be regarded as two parts of a contemporaneous covenant, Hobbes would lose the substance of his assertion that the sovereign is not a party to the original covenant. A more profitable solution, however, may be sought in an appeal to the general principle of the laws of nature themselves. If the political covenant is an agreement between citizen and citizen, and all citizens agree to its abolition, they cannot incur moral censure under the third principle of natural law, namely that covenants should be observed. It may, nevertheless, be contended that once the sovereign is instituted, this abolition would offend against the first principle of natural law—that of seeking peace, as this act would unmake a society.1 In any event, the paradoxical conclusion emerges that within the framework of Hobbes's system, his sovereign by acquisition or conquest is morally in a much stronger position than the apparently more democratic sovereign by institution. Apart from any obligation the subject may have to obey his sovereign under the general obligation at natural law to seek peace, the sovereign by acquisition is unambiguously a party to a covenant which requires obedience by the subject, and from which the subject cannot be released through the collusion of his fellow citizens. The most satisfactory solution for Hobbes would have been to place his sovereign by institution in the same position. In addition to solving a theoretical difficulty, this course would have involved very little concession on his part, for the sovereign need only have been supposed to promise to sustain sufficient power to protect his subjects in return for their promise of obedience. If he had lost this power, it is true, he would have broken his part of the bargain and the 1 This possibility, which is pertinent to the problem of whether the c o v e n a n t is really necessary i n Hobbes's system, i s considered below at pp. 2 3 2 - 4 9 -

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subject would have been discharged from his obligation to obey the civil law. But this is substantially so in any case, as Hobbes asserts that the obligation of the subject to obey lasts only so long as the sovereign power can protect him, though he, himself, bases this assertion, not on the fact that the sovereign has broken the covenant, but upon the permanent right of the subject to defend himself in extremis. Both of these cases would, however, give the same limits to the obligation of the subject. At the same time, it must be conceded that there is, in fact, this difference, that if the sovereign by institution were assumed to make a covenant of the type proposed, it would appear to imply that ruler and citizen were equal partners in the agreement and both equally entitled to interpret that agreement and hence to decide when it had been broken. Hobbes appears to be very anxious to avoid any conclusion which gives the citizen the right to judge his own case of extremity, presumably in order to escape the danger of having to concede the position that restrictions could be placed upon the exercise of sovereignty. These are, however, two separate problems, and we shall maintain with regard to the first of these problems that consistency requires Hobbes to take the view that the right of the subject to preserve his life does involve a right of the subject to decide for himself when a crisis has been reached.1 For all he may gain, therefore, by his assertion that the sovereign by institution is not a party to the covenant, Hobbes could profitably have assimilated his account to that which he gives of sovereignty by acquisition, where this postulate is not made. The question of whether the sovereign is a party to the political covenant is brought forward by Hobbes to support the statement that the sovereign cannot break the covenant and hence be accused of injury by the subject. A better defence of the position that the sovereign cannot break the covenant and holds his authority without conditions interpretable by the subject, however, would appear to lie in another direction. 1 On the question of the citizen interpreting natural law for himself in civil society, see below, pp. 146-54.

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It is therefore in vain to grant sovereignty by way of precedent covenant. The opinion that any monarch receiveth his power by covenant, that is to say, on condition, proceedeth from want of understanding this easy truth, that covenants being but words and breath, have no force to oblige, contain, constrain, or protect any man, but what it has from the public sword; that is, from the untied hands of that man, or assembly of men that hath the sovereignty, and whose actions are avouched by them all,. . Hobbes's argument, here, appears to be that 1. (as indicated above in Part I) Covenants, and here particularly the political covenant, are valid only on the condition that there exists 'sufficient security' subsequent to their being entered into. 2. Only the unfettered exercise of sovereign power can under general circumstances give the security which Hobbes regards as 'sufficient'. 3. In this case the free exercise of sovereignty becomes a condition of the continuing validity of the political covenant. 4. In view of this, no exercise of sovereignty can be a breach of valid covenant with the subject, and hence an injury to him. Were that sovereign exercise of power to cease, since the covenant would be no longer a valid covenant, all that the sovereign could do would be, presumably, to invalidate the covenant (by resignation, &c.) but not to break it. This would be true not only of Hobbes's sovereignty by institution, but also of his sovereignty by acquisition, and thus escapes the objections raised by the question of the sovereign being a party to the covenant. The Effect upon Obligation of the Establishment of Civil Society Although the establishment of the political relationship alters neither the grounds of obligation, nor the validating conditions which must be satisfied if those grounds are to be operative, the advent of civil society affects the existence of obligations in a number of ways. ' Leviathan, E.W., vol. 3, p. 162.

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1. The provision of security, which is deemed 'sufficient security', renders valid some obligations to natural law and to covenants falling under this law, which were previously invalidated upon this account. In other words, some suspended obligations are converted into obligations. 2. The laws of nature are given a determinate, public interpretation by the sovereign authority. 3. Obligations are extended and particularized under a framework of obligations, validated and interpreted as under the previous heads. In particular, they are extended by the political covenant and the civil law consequent upon it. As far as the provision of security is concerned, what is involved is a simple application of the ethical theory outlined by Hobbes when considering man in the State of Nature. Provided that covenants are consistent with law and that they do not covenant away the ultimate right of self-defence, &C.,1 they are valid, and oblige the participating individuals. Valid covenants may, however, be invalidated in a condition of insecurity, if there is a bona-fide fear or suspicion of the opposing party. Apart from limiting cases,2 the provision of a sovereign authority is presumed by Hobbes to be also the provision of a security sufficient to prevent covenants from becoming invalidated on this account. It is necessary, however, that Hobbes's theory should provide not merely for the validation of covenants within civil society, but for the validity of the political covenant itself which erects the political relationship, and it has frequently been suggested that Hobbes's formula cannot meet this demand. Such an objection is made, for example, by Leslie Stephen, and his statement sufficiently illustrates the typical question at issue: In the 'state of nature* men can promise but cannot make a binding contract. A contract means an exchange of promises, and in a 'state of nature' neither party can depend upon the other 1 1

See above, pp. 30 ff. Where the sovereign has lost his power, &c. See above, pp. 114-18.

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keeping his word. Obligation follows security. It seems rather difficult, perhaps, to see how you can ever get out of the state of nature, or why the agreement of each man to take the sovereign will for his own is more likely to be observed than any other agreement. Hobbes, however, assumes that this is possible; . . An objection of this kind, however, is based upon a misreading of Hobbes's position. In the first place, Hobbes is primarily concerned at this point with obligation and not with sociological probabilities. He does not claim that men are likely to observe the political covenant though he may have believed this to be so; he claims that the individual who covenanted would be under an obligation to observe it, and further that on grounds of self-preservation, he could be shown to have a possible sufficient motive to observe it. In the second place, Hobbes's treatment of covenants in the State of Nature is misrepresented. Hobbes's contention is not that obligation follows security, but that insecurity may invalidate obligations which would otherwise stand. In a general condition of insecurity, valid covenants, as indicated above, may be invalidated through just suspicion or reasonable fear of the other party. In order to be just or reasonable, however, this fear must not merely be bona fide, but must arise from some cause subsequent to the agreement itself, if it is to provide a valid excuse for defection.2 T h e problem of the State of Nature in this respect, therefore, is not the difficulty of making valid covenants, but of preserving their validity through time. The political covenant, like any other lawful covenant made in the State of Nature, is valid when it is made; its peculiarity rests in the fact that it provides a political authority and mechanism for enforcement, which, apart from limiting cases, take away the excuse of insecurity or reasonable suspicion of others; and so the covenant is not subsequently invalidated on these grounds unless, for example, the sovereign power collapses, or, as we have suggested,3 unless the citizen sincerely fears such a collapse to be imminent. 1 3

L. Stephen, Hobbes, pp. 194-5. See above, pp. 116-18, and below, pp. 149-50.

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If we turn from the question of obligation, to the sociological or historical aspects of the problem, Hobbes is not, it is true, so well armed. Here the difficulty of seeing how man could make the transition from the State of Nature to civil society is more in point. As David Hume argued, social life no doubt existed long before political agreements, and the political covenant presupposes some general acceptance of social virtues such as promise-keeping or the recognition of property.1 From this perspective, Hobbes's doctrine bears an artificiality which is common to most contractarian thought. It is easy, however, to exaggerate the significance of this criticism. Hobbes was writing for the benefit of the citizen and not the anthropologist or the historian. His men in the State of Nature are not in any sense primitive men. They have already a knowledge of the moral principles which are required for civil society, or may readily acquire it by the use of reason. The function of the civil sovereign is not to create moral principles nor even to educate the citizen, but to enforce and interpret law. Hobbes is concerned essentially with the role of political authority, and his main contention is that without such an authority morality is frustrated, either through men's passions or their insecurity. In such a condition, human society is fundamentally unstable, and this State of Nature may occur at any point in the historical life of a collection of people, and would be as relevant if applied to the future as to the past. T o revert, however, to a consideration of the moral problem, the provision of security through the erection of a sovereign authority does not only affect the validity of covenants, but also the operation of the laws of nature in general.2 These laws bind always in conscience in the State of Nature, but they impose an obligation to act specifically (in foro externa) in accordance with them, only if there is 'sufficient security'.3 In providing that security in general, the sovereign normally ' See, e.g., A Treatise of Human Nature, bk. iii, part ii, sect. 8. See, e.g., De Cive, E.W., vol. 2, pp. 64-65. 3 For a fuller statement see above, pp. 52-73.

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takes away this excuse for default. He fulfils a further condition of obligation also, in increasing the adequacy of the motive to obey the law on the part of the subject by his imposition of punishments. Now, it appears likely that Hobbes considered that a person who regarded the laws of nature as the commands of God and who deliberated fully upon them, would have an adequate motive to obey them as far as Hobbes deemed the individual to be obliged in the State of Nature. Hobbes suggests, however, that as the laws of nature are contrary to our passions,* the unthinking man at least may benefit from a more visible deterrent than is found in the State of Nature. In that state, there is fear of the power of 'spirits invisible', which 'is in every man, his own religion: which hath place in the nature of man before civil society'; there may also be fear of other men, but that fear is not strong enough to deter would-be breakers of the law, because 'in the condition of mere nature, the inequality of power' between men 'is not discerned, but by the event of battle'.2 In civil society, however, the visible power of the sovereign and the rewards and punishments he prescribes are a valuable addition to the sanctions behind the law. These two conditions we have noted, which must be satisfied if the law is to oblige, namely that there must be 'sufficient security', and an adequate motive to obey the law, are connected in that, from my point of view, the sanction of the law provides a motive for obeying the law, and as it operates on other men it provides my security, and vice versa. Thus the sovereign provides conditions which render operative obligations, which previously are but imperfectly effective, or as we have described the situation elsewhere, he is responsible for some suspended obligations being turned into full obligations through his manipulation of circumstances. This fact often leads Hobbes to write as though the sovereign were himself responsible for the creation of obligations, where there were none before.3 1 1 1

See Leviathan, E.W., vol. 3, p. 153. See ibid., p. 129. See, e.g., ibid., pp. 131, 253.

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In a manner of speaking of course, this is true. The operation of a determinate and public pattern of obligatory actions does await the security and punishments of the sovereign power; but this is superimposed upon the same framework of obligations interpreted for each individual by his own conscience, put into operation as far as the circumstances of his life allow of it, and functioning before civil society is constituted. The effects upon obligation of the authentic interpretation of natural law provided by the sovereign, and the extension of obligations for the citizen through the enactment of civil law, raise the whole problem of the relationship between natural and civil law and require separate treatment.

5774

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VII THE LAWS THE

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I T H the advent of a sovereign authority and the civil law which it provides, the laws of nature are not superseded, though their manner of operation is altered. They persist in civil society together with the civil law itself, and play, in Hobbes's theory, a part in determining the pattern of obligations in civil society no less essential than their function in the State of Nature. The civil sovereign provides an official or authentic interpretation of the dictates of natural law, and this interpretation will present a code of public and determinate rules to the subject which are enforced by public authority. In this form, therefore, natural law will appear as a part or branch of the civil law, and Hobbes emphasizes this aspect of natural law in society with his assertion that the 'law of nature, and the civil law, contain each other, and are of equal extent'.1 This is not, however, an adequate statement of Hobbes's position. The civil law and the authentic interpretation of natural law made by the sovereign do not cover the whole field of law, and where these official enactments are not or cannot be applied, the individual subject is still under a necessity to interpret natural law for himself, though he is accountable only to his own conscience and to God in these matters. There are, thus, two different styles of natural law, both of which bear upon the obligations of the citizen. (a) Natural law in the old style—interpreted by the individual and applied by him to his own situation and actions. For this interpretation and the actions done under this head, the individual is accountable only to his own conscience and to God. In this case natural law operates as it does in the State

W

* Leviathan, E.W., vol. 3, p. 253.

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of Nature except for the fact that the increased security of civil society will presumably make some suspicions of danger less reasonable. Still this is a matter for individual conscience and bona fides. (b) Natural law in the new style—interpreted by the sovereign authority as part of the civil law, and coextensive with the civil law as far as the subject is concerned. These two styles of natural law are not by any means clearly distinguished by Hobbes in his account of civil society. It is, nevertheless, essential to preserve the distinction if many of Hobbes's leading assertions are to be accommodated in any intelligible system. A. Natural Law in the Old Style—The Private Conscience i. Natural law in the old style operates where the civil law is not or cannot be effective. Perhaps the most important case where this holds true is that of political obligation itself. The general obligation of the subject to obey the civil law, cannot itself be the creation of the civil law, nor of the 'official' version of natural law, but must depend upon prior authority. This authority is the authority of natural law as it is interpreted by each individual, and can derive from no other source. This consideration, which alone is sufficient to cast grave doubt upon any interpretation of Hobbes's theory which requires that all obligations shall derive from the commands of the sovereign, was fully recognized by Hobbes. Rebellion was for him essentially a breach of natural and not civil law and, apart from a prior obligation at natural law to obey the sovereign, the punishments of the sovereign could be regarded simply as acts of hostility, to be resisted by force on any favourable occasion. . . . For a civil law, that shall forbid rebellion, (and such is all resistance to the essential rights of the sovereignty), is not, as a civil law, any obligation, but by virtue only of the law of nature, that forbiddeth the violation of faith; which natural obligation,1

1 In view of this statement in particular, it is difficult to fol

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if men know not, they cannot know the right of any law the sovereign maketh. And for the punishment, they take it but for an act of hostility; which when they think they have strength enough, they will endeavour by acts of hostility, to avoid.1 The same point is made, even more forcibly, in a passage from De Cive: But that sin, which by the law of nature is treason, is a transgression of the natural, not the civil law. For since our obligation to civil obedience, by virtue whereof the civil laws are valid, is before all civil law, and the sin of treason is naturally nothing else but the breach of that obligation; it follows, that by the sin of treason that law is broken which preceded the civil law, to wit, the natural, which forbids us to violate covenants and betrothed faith. But if some sovereign prince should set forth a law on this manner, thou shalt not rebel, he would effect just nothing. For except subjects were before obliged to obedience, that is to say, not to rebel, all law is of no force... . z If a civil law forbidding rebellion is ineffective unless there is a prior obligation to obey the sovereign, the official version of natural law provided by the sovereign is similarly ineffective, unless there is a prior obligation upon the subject to take note of, and observe, this version of law. Quite apart from Hobbes's recognition of this fact in the passages quoted, he is committed to this position in any event from his general definition of law. As indicated above, law is defined by Hobbes as the word of him that by right hath command over others, or as a command only of him whose command is addressed to one formerly obliged to obey him.3 Similarly, covenants are to be distinguished from laws, in that 'in contract, it is first determined what is to be done, before we are obliged to do it; but in law, we are first obliged to perform, judgement that Hobbes denies natural obligation. (See, e.g., L. Strauss, Political Philosophy of Hobbes, pp. 129 ff.) It should be added, however, that the corresponding passage from the Latin version of Leviathan is less specific on this point. (See L.W., vol. 3, p. 241.) 1 Leviathan, E.W., vol. 3, pp. 323-4. * De Cive, E.W., vol. 2, pp. 200-1. See also ibid., p. 190; L.W., vol. 3, pp. 328-9. 5 Our italics; see above, p. 97.

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afterwards'.1

and what is to be done is determined Thus a certain body of law obliges because the author of that law obliges and not vice versa, and the civil law obliges because there is a prior obligation to obey the commands of the sovereign. This prior obligation, however, cannot itself be laid down by the command of the civil sovereign because it is what gives that command authority and distinguishes it from the nonobligatory commands of other persons. And so the general obligation to obey the sovereign's command is an obligation to a different level of law, namely the law of nature as interpreted by the individual conscience. The fact that political obligation, in Hobbes's system, depends ultimately upon an individually interpreted natural law, bears also this consequence that the individual subject must decide for himself the point at which his overall obligation to the sovereign is terminated. The obligation of the subject lasts only so long as the sovereign has power to protect him; the subject may also resist the sovereign where his own life is directly menaced by him. But if the sovereign is engaged in a foreign or a civil war, for example, who is to decide the point at which he has lost effective control of his society?; or if the subject surprises the sovereign or his henchmen creeping into his house and heavily armed, is he to believe their assurance that this is just a party game ? As noted above,2 Hobbes has no answer to this type of problem except to leave the decision to the individual affected, though he has a right to insist that he will be accountable to God for having acted in good conscience. Hobbes is naturally inclined to underemphasize such contingencies, and rarely states the position in this matter clearly. When he is discussing salvation, however, he does maintain that in so serious a matter, the individual will ultimately follow his own judgement rather than that of the sovereign,3 and in a matter of life and death generally, it is evident from his theory that the individual cannot be motivated otherwise. It is for this 1 See pp. 114-18. ' De Cwe, E.W., vol. 3, p. 185. 3 Leviathan, E.W., vol. 3, p. 684. 'For who is there . . . whom the natural •are of himself, compelleth not to hazard his soul upon his own judgment, rather than that of any other man that is unconcerned in his damnation ?'

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reason that Hobbes has to show that under normal circumstances, obedience to political authority can be seen by the citizen to be the best means to his own preservation. In addition to supporting civil law in general, the laws of nature in the old style affect the obligations of the subject in a special way by supplementing the civil law. 2. Obligations in foro interno. In the inner realm of intentions and conscience, the civil law cannot be effective, for a human judge can properly accuse only that which is made manifest by external action or by words. The citizen is, nevertheless, still accountable under natural law for his intentions, though that accountability is to God. Thus he has a dual source of obligations, one deriving from the commands and interpretations of the sovereign and the other from his own interpretation of natural law. It is this duality which leads Hobbes to make his distinction between sin and crime. A SIN, is not only a transgression of a law, but also any contempt of the legislator. For such contempt, is a breach of all his laws at once. And therefore may consist, not only in the commission of a fact... by the laws forbidden,... but also in the intention, or purpose to transgress.1 A crime, on the other hand, is more narrowly defined, and is a sin which consists in committing by deed or word what the law forbids or in omitting what it commands; so that every crime is a sin; but not every sin is a crime. Thus: To intend to steal, or kill, is a sin, though it never appear in word, or fact: for God that seeth the thoughts of man, can lay it to his charge: but till it appear by something done, or said, by which the intention may be argued by a human judge, it hath not the name of crime:... But of intentions, which never appear by any outward act, there is no place for human accusation, [etc.]2 The citizen must answer, however, not only for his crimes, but also for his sins, and although in civil society the definition 1 2

Leviathan, E.W., voL 3, p. 277. Ibid., p. 278. See also ibid., p. 547.

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of what is right or wrong and the interpretation of natural law are affected by the dictates of the sovereign,1 there remains a branch of natural law controlling intentions which is selfadministered by the individual subject. From this relation of sin to the law, and of crime to the civil law, may be inferred, first, that where law ceaseth, sin ceaseth. But because the law of nature is eternal, violation of covenants . . . [etc.], and all facts contrary to any moral virtue, can never cease to be sin. Secondly, that the civil law ceasing, crimes cease: for there being no other law remaining, but that of nature, there is no place for accusation; every man being his own judge, and accused only by his own conscience, and cleared by the uprightness of his own intention. When therefore his intention is right, his fact is no sin: if otherwise, his fact is sin; but not crime.2 Although Hobbes takes the view that it is impossible to extend the civil law in order to control effectively the inner thoughts and the intentions of men, he is aware that rulers have from time to time attempted to use the civil law for this purpose. But all such attempts are illegitimate and are regarded by Hobbes as being contrary to natural law. There is another error in their civil philosophy,... to extend the power of the law, which is the rule of actions only, to the very thoughts and consciences of men, by examination, and inquisition of what they hold, notwithstanding the conformity of their speech and actions. . . . But to force him to accuse himself of opinions, when his actions are not by law forbidden, is against the law of nature;.. .3 3. It appears that, apart from the realm of intentions which the civil law cannot reach, natural law supplements the civil law also in matters of external action where the civil law is in fact silent, and Hobbes suggests at times that the subject is obliged to follow natural law as he himself interprets it, where these lacunae exist. Discussing the problem of the relationship between the individual conscience and the civil law, Hobbes points out that the right to decide according to private 1 3

See below, pp. 159 If. Ibid., p. 684.

2

Leviathan, E.W., vol. 3, pp. 278-9.


conscience is, in part, resigned when the individual enters civil society in yielding to the public conscience of the sovereign. Nevertheless, the use of private conscience has still its place, And whatsoever is done contrary to private conscience, is then a sin, when the laws have left him to his own liberty, and never else.1 Hobbes's statements about the position of the citizen when the civil law is silent are not, however, free from ambiguity. On some occasions, he appears to hold the view that only the sphere of intention is controlled by natural law in the old style, and that all external action is controlled by the type of natural law which is coextensive with the civil law whether the civil law itself is silent on that matter or not. For the natural law, although it be distinguished from the civil, forasmuch as it commands the will; yet so far forth as it relates to our actions, it is civil. For example, this same, thou shalt not covet, which only appertains to the mind, is a natural law only; but this, thou shalt not invade, is both natural and civil. For seeing it is impossible to prescribe such universal rules, whereby all future contentions, which perhaps are infinite, may be determined; it is to be understood that in all cases not mentioned by the written laws, the law of natural equity is to be followed, which commands us to distribute equally to equals; and this by the virtue of the civil law, which also punisheth those who knowingly and willingly do actually transgress the laws of nature.2 Here, however, Hobbes is avoiding the main issue. Granted that by virtue of the civil law, those will be punished who transgress the laws of nature, the question remains of what the laws of nature are in this case, or what is to be taken as equity. If the subject who breaks the law of nature is to be punished 1 De Corpore Politico, E.W., vol. 4, p. 187. For an application of this principle, see ibid., pp. 92-93. See also, Leviathan, E.W., vol. 3, p. 310."... I observe the diseases of a commonwealth, that proceed from the poison of seditious doctrines, whereof one is, That every private man is judge of good and evil actions. This is true in the condition of mere nature, where there are no civil laws; and also under civil government, in such cases as are not determined by the law. But otherwise, it is manifest, that the measure of good and evil actions, is the civil law;.. .* (etc.). 1 De Cive, E.W., vol. 2, p. 194.


by the civil sovereign, it can only be natural law as interpreted by the sovereign, or in other words the official version of natural law that is in point, and this is admittedly coextensive with the civil law. But in those cases where the subject is not constrained either by the civil law or the official version of natural law, there is still a problem of whether the subject has an obligation to act and not merely have good intentions under a self-administered and self-interpreted law. This discussion is confused through the introduction by Hobbes of an entirely different consideration. Where the law is silent, natural law is to be applied by the magistrates or other subordinate officers of the sovereign authority. When he or they in whom is the sovereign power of a commonwealth, are to ordain laws for the government and good order of the people, it is not possible they should comprehend all cases of controversy that may fall out, or perhaps any considerable diversity of them... and in such cases where no special law is made, the law of nature keepeth its place, and the magistrates ought to give sentence according thereunto, that is to say, according to natural reason.1 This case is, however, entirely different from the point of view of the subject, as here the natural law applied is the interpretation of that law made by the sovereign or his judges and not by the individual himself. Such an application of natural law is public and official, but it still leaves open the problem of the obligations of the subject to act where the law is silent and neither the sovereign nor the judges have pronounced. Beyond this point, Hobbes must either free the individual from any obligation to act, or he must admit the operation of a branch of natural law regulating actions that is not in any sense civil law. For actions of this kind, the individual will be accountable to his own conscience, and the obligations involved may be grouped with those involving intentions and described generally as obligations in foro interno, according to the wider meaning of that term noted above.2 2


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That a dual accountability for breaches of natural law pervades civil society becomes more evident when Hobbes turns to the question of punishment. There are some who think that those acts which are done against the law, when the punishment is determined by the law itself, are expiated, if the punished willingly undergo the punishment; and that they are not guilty before God of breaking the natural law, (although by breaking the civil laws, we break the natural too, which command us to keep the civil), who have suffered the punishment which the law required; . . . Vain . . . is that. . . distinction of obedience into active and passive; as if that could be expiated by penalties constituted by human decrees, which is a sin against the law of nature, which is the law of God; or as though they sinned not, who sin at their own peril.1 It would be difficult to explain this passage on the assumption that natural law in civil society is simply a branch of the civil law, interpreted and enacted by the sovereign and receiving its authority from his command, or even that any obligation beyond this point is confined solely to the sphere of intentions. Thus, as far as the subject is concerned, natural law appears to operate in some matters in the same way as it does in the State of Nature, to give obligations in conscience to a selfinterpreted law. Such obligations cannot be reached by the civil law, and what the civil law cannot do, the official interpretation of natural law enforced by the sovereign cannot do, as everything which disqualifies the one, also disqualifies the other. We turn now from the duties of the subject to those of the sovereign. 4. The duties of the sovereign are completely determined by natural law in the old style. Rejecting that notion of the rule of law, which presupposes a legislator tied by his own law, Hobbes regards law as a command, whereby he who commands can free himself at will and hence is not bound. Thus the sovereign as creator of the civil law is above that law. He is subject, nevertheless, to the commands of God and must 1

De Cive, E.W., vol. 2, pp. 201-2. See also ibid., pp. 225-6.


155

observe the dictates of natural law according to his own conscience.1 Although the interpretation of natural law made by the sovereign will appear to the subject as a determinate public code enforced as positive law, from the point of view of the sovereign himself it will be a self-interpreted law under which there is no accountability to a human judge. In this most essential respect, therefore, the sovereign in a civil society is still in the State of Nature. As far as the theory of obligation is concerned, the significant difference between living in civil society and in the State of Nature, is the kind of law under which the individual is obliged. The making of covenants is not in itself crucial, for covenants are possible in the State of Nature though their validity may be short-lived. It is not sufficient, therefore, to take the sovereign out of the State of Nature that he be a party to a valid covenant, and whether we agree with Hobbes on the occasions when he declares that the sovereign is outside the political covenant, or whether we regard the more consistent theory to be that he is a covenanting party, the matter at issue is not greatly affected. Even where the sovereign is a participating member in the political covenant, the fact remains that for breaches of such an agreement he is accountable only to a law which he interprets himself and to the judgement of God, whereas the subject is partly accountable in this way, but partly obliged also by a law interpreted and enforced by a human judge. Thus it is not the fact of the political covenant which is distinctive, but its effect which is to place the citizen under an obligation to the civil law that the sovereign escapes. If the civil sovereign is essentially in the State of Nature, and we are to take for granted what has been set out in the first Part of this work, that would imply that the sovereign is obliged to obey his own bona-fide version of natural law and 1 See De Cive, E.W., vol. 2, pp. 166-73; Leviathan, E.W., vol. 3, pp. 200, 298; De Corpore Politico, E.W., vol. 4, pp. 213-17. It is a corollary of Hobbes's assertion that the duties of the sovereign derive from natural law, that where the sovereign is silent, the public officers of the State are obliged also to take that law for their instructions. (See Leviathan, E.W., vol. 3, p. 258.)


to keep such covenants as he makes in the realm of external action, in so far as in his own opinion he enjoys adequate security. His position differs from that of the individual in the State of Nature in that he has presumably a greater expectation of security than is found in that condition. His obligations in foro externo should in consequence approximate more nearly to his obligations in foro interno, in the narrower sense;1 or, in other words, he should be more nearly obliged to specific performance of natural law as he sees it, and not simply to approximate peaceful actions, than is the case in the State of Nature. Still this is a matter for his own conscience and no new principle is involved. If the individual in the State of Nature found himself, perchance, in a position of security or greater security, he would be similarly circumstanced. Although the duties of the sovereign are altered by the security of civil society, therefore, they are based upon the same foundation as those of man in the State of Nature. In fact, one of the most serious objections to that interpretation of Hobbes's theory which involves the assumption that there are no moral obligations in the State of Nature, is that such an interpretation makes it difficult to explain how, in civil society, the sovereign can have any duties at all, as they can have no other source. This difficulty in explaining the duties of the sovereign may be illustrated from the account which is given on this point by Professor Oakeshott. Since he bases all moral obligations in Hobbes's doctrine upon the declared will of the civil sovereign, his easiest course would be to deny that the sovereign has any duties. But as Hobbes devotes an entire chapter of the De Cive and practically a chapter of Leviathan to an exposition of what these duties are,2 such an explanation is not available. Professor Oakeshott, in consequence, is committed to the exacting proposition that the sovereign may have duties, 1 See above, pp. 67-73; and, for a more adequate statement regarding covenants, Ch. III. 1 Here we are concerned with the status of the sovereign's duties and not with the question of what those duties are; the latter problem is considered below, at pp. 180-6.

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157

obligations.1

but has no As his account continues, however, he describes the duties of the sovereign in language appropriate to moral imperatives, as when he asserts that the rights of the sovereign are what he may do; his duties are what he must do,2 and he appears finally to modify if not to contradict his original assertion, at least as far as a Christian sovereign is concerned, when he concludes: But if the sovereign as Christian has specific rights, he has also duties. Indeed, he may be said almost to have obligations. For in the Christian Commonwealth there exists a law to which [the] sovereign is, in a sense, obliged. What had previously been merely the rational articles of peace, have become (on being determined in scripture) obligatory rules of conduct. The sovereign, of course, has no obligations to his subjects, only duties; but the law of God is to him (though he has made it himself), no less than to his subjects, a command creating an obligation, [etc.]3 If the ambiguities in this passage are removed, particularly respecting the assertion that the sovereign makes the law of God, it would appear that Professor Oakeshott is committed either to the view that the sovereign is really obliged (and not almost obliged) to obey a natural law whose authority does not derive from his command, though admittedly it is an obligation owed to God and not to his subjects; or to the view that in some sense the sovereign can bind himself. On the first alternative it will be difficult to explain why obligations independent of the sovereign's command should be confined to this case, and Professor Oakeshott's main position is endangered; on the second alternative, he will have to sustain a proposition that Hobbes explicitly denies. There is, of course, a sense in which any person who makes a covenant is the author of the obligations respecting himself that flow from it. On these grounds, the Christian sovereign who belongs to the kingdom of God by covenant as well as to the natural kingdom, will be differently circumstanced from the infidel sovereign who belongs only to the latter. But this 1 2

Introduction to Leviathan, op. cit., p. xxxix n. 3 Ibid., p. xlis. Ibid., p. xl.

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does not affect in any way the authority of natural law in either case.1 Indeed the same situation holds with regard to the citizen and the civil law, since in the same sense, he is the author of the obligations that follow for him from his political covenant. This cannot, however, be made the beginning of an argument for the position that the citizen creates his civil obligations, still less that he is obliged because he says so, and this is equally true for the case of the sovereign and divine law. 5. Sovereign authorities are still in the State of Nature also with regard to each other, and a self-interpreted natural law determines their mutual obligations. Concerning the offices of one sovereign to another, which are comprehended in that law, which is commonly called the law of nations, I need not say anything in this place; because the law of nations, and the law of nature, is the same thing. And every sovereign hath the same right, in procuring the safety of his people, that any particular man can have, in procuring the safety of his own body. And the same law, that dictateth to men that have no civil government, what they ought to do, and what to avoid in regard of one another, dictateth the same to commonwealths, that is, to the consciences of sovereign princes and sovereign assemblies; there being no court of natural justice, but in the conscience only; where not men, but God reigneth; . . . 2 These obligations are like those of the individual in the State of Nature, and Hobbes nowhere maintains that they are illusory. As we have seen, he even goes so far as to suggest that there are some actions, such as drunkenness and cruelty or pointless revenge, which are not excusable even in a time of war itself, as it is difficult to show that they are required in the interests of self-preservation.3 Here again, the natural law which governs these cases cannot be regarded as part of the civil law, for no sovereign is bound by such law. There are thus a number of cases where obligations are 1 On the propriety of distinguishing the Christian sovereign from the infidel sovereign in respect of their obligation to obey natural law see below, pp. 172-6, 224-9, 294-5 n1 Leviathan, E.W., vol. 3, pp. 342-3. See also De Corpore Politico, E.W., vol. 4, p. 228. 3 De Cive, E.W., vol. 2, p. 45 n. See also above, pp. 61-63.

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based upon a type of natural law which cannot in any sense be regarded as civil law, or as a part of civil law. The general obligation upon the subject to observe the political covenant, his obligations to God in the inner realm of conscience, affecting his intentions, and probably his external actions also where the civil law and the civil magistrates are silent; the obligations of the sovereign with regard to his subjects and at international law; all these are based upon a natural law interpreted by the person obliged himself and outside the range of the civil law. In order to make apparent, however, the role of natural law in civil society, it is necessary to consider also the manner in which natural law is altered with the introduction of a sovereign authority. B. Natural Law in the New Style—The Public Conscience As indicated above, the obligation upon the citizen to observe natural law, in so far as such law affects 'external actions', is modified by the institution of a sovereign power in that the protection afforded by that power takes away the general excuse of insecurity, and the sanctions enforced by the sovereign provide an increased motive to obey the law.1 The operation of natural law in civil society is, however, further affected by the sovereign's interpretation of what that law enjoins. Natural law, no less than civil law, is in need of interpretation. The legislator known; and the laws, either by writing, or by the light of nature, sufficiently published; there wanteth yet another very material circumstance to make them obligatory. For it is not the letter, but the intendment, or meaning, that is to say, the authentic interpretation of the law . . . in which the nature of the law consisteth; and therefore the interpretation of all laws dependeth on the authority sovereign;.. .2 In the case of the laws of nature, Hobbes suggests that the proper use of individual reason would have sufficed, were not men misled by passion and therefore in the State of Nature 1 1

See above, pp. 140-5. Leviathan, E.W., vol. 3, pp. 261-3. See also De Cive, E.W., vol. 2, pp. 220-1.

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they are not excused for their failures to observe these laws. In civil society, however, a standard version of natural law becomes possible. All laws, written, and unwritten, have need of interpretation. The unwritten law of nature, though it be easy to such, as without partiality and passion, make use of their natural reason, and therefore leaves the violators thereof without excuse; yet considering there be very few, perhaps none, that in some cases are not blinded by self-love, or some other passion; it is now become of all laws the most obscure, and has consequently the greatest need of able interpreters.1 An authentic interpretation, however, 'dependeth not on the books of moral philosophy' and can come only from the sovereign. An official version of natural law (in so far as it affects external action), therefore, becomes a part or an aspect of the civil law. This raises the whole problem of the status of the moral consciousness of the individual citizen, and the question of what is to be termed right and wrong, good and evil, in civil society. Hobbes's formulation of the problem is not always free from ambiguity. He defines civil law at one point as being 'to ever)' subject, those rules, which the commonwealth hath commanded him, . . . to make use of, for the distinction of right, and wrong; that is to say, of what is contrary, and what is not contrary to the rule'.* This can be construed broadly in two different ways. On the one hand, it may mean that the civil law, and the sovereign's interpretation of natural law, prescribe the content of what is right and what is wrong for the subject, and so resolve an ethical problem for the individual over the field concerned. On the other hand, it may mean that the civil law prescribes rules which define a non-ethical content, and which the subject must then employ in making definitive his own ethical judgements. Hobbes apparendy regards the civil law as performing both of these functions though he does not always distinguish them clearly. 1 2

Leviathan, E.W., vol. 3, p. 262. See also above, pp. 85-87. Leviathan, E.W., voL 3, p. 251.

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Thus, on some occasions, Hobbes describes the civil law and the interpretations of the sovereign as though they gave an official meaning to the propositions of natural law in a fundamental manner and fixed a standard for the distinction between right and wrong itself. Here it is suggested that since the reason of different individuals produces different conclusions upon what constitutes sin, the sovereign must provide a determinate answer. We must therefore enquire what it is to be blameable with reason, what against reason. Such is the nature of man, that every one calls that good which he desires, and evil which he eschews. And therefore through the diversity of our affections it happens, that one counts that good, which another counts evil', . . . In consequence as . . . there are no other reasons in being, but only those of particular men, and that of the city: it follows, that the city is to determine what with reason is culpable. So as a. fault, that is to say, a sin, is that which a man does . . . against the reason of the city, that is, contrary to the laws.1 In this case, the sovereign is responsible for drawing moral distinctions, and the subject is bound to obey his version of natural law as far as external action is concerned. Whether or not this version of natural law is a justifiable one, is a matter for the conscience of the sovereign, not of the subject. . . . though he that is subject to no civil law, sinneth in all he does against his conscience, because he has no other rule to follow but his own reason; yet it is not so with him that lives in a commonwealth; because the law is the public conscience, by which he hath already undertaken to be guided. Otherwise in such diversity, as there is of private consciences, which are but private opinions, the commonwealth must needs be distracted, . . ,2 Hobbes writes sometimes, however, as though the problem were not so much the interpretation of natural law, as the provision of standard and agreed definitions of the material that might fall under its rubrics. Such definitions would differ from 1 1

De Cive, E.W., vol. 2, pp. 196-7. Leviathan, E.W., vol. 3, p. 311. See also De Cive, E.W., vol. 2, pp. 150-2.

«7t

M

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the type of interpretation first mentioned, in that no moral distinctions would necessarily be involved, and they would be matters for decision rather than moral reflection. The laws of nature, as Hobbes describes them, are clearly highly formal in character. Such principles as 'seek peace', 'keep promises', &c., leave, in the State of Nature, a very extensive content to be determined by the individual himself. If they are to be regarded as obliging the citizen to perform a range of external actions of any determinacy, there is a need for definition of the material that may fall under their categories. It is part of the function of the civil law in any country to supply a pattern of ethically neutral definitions, simply in order that a number of people may reach a common basis for ethical action. Thus the civil law will prescribe the conditions under which, for example, the individual will be officially regarded as having made a will, sold or bought merchandise, been married, &c. and these forms will be accepted between persons. Hobbes writes on these occasions as though there is likely to be found agreement among men about the general propositions of natural law themselves, but a lack of agreement on the neutral material that may fall under them. They [men] may agree indeed in some certain general things, as that theft, adultery, and the like are sins; as if they should say that all men account those things evil, to which they have given names which are usually taken in an evil sense. But we demand not whether theft be a sin, but what is to be termed theft; and so concerning others, in like manner.1 Or elsewhere: Theft, murder, adultery, and all injuries, are forbid by the laws of nature; but what is to be called theft, what murder, what adultery, what injury in a citizen, this is not to be determined by the natural, but by the civil law. For not every taking away of the thing which another possesseth, but only another man's goods, is theft; but what is our's, and what another's, is a question belonging to the civil law [etc.].2 ' De Cive, E.W., vol. 2, pp. 196-7. Ibid., p. 85. See also ibid., pp. 189-91.

2

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As Hobbes points out, what in one society will be termed theft, murder, or adultery, may be legal in another.1 Hobbes's sovereign would appear, nevertheless, to perform two distinct functions by interpreting the ethical content of natural law and by providing determinate but ethically neutral 'measures' upon which moral action may be based among a number of people. The question of whether the civil sovereign determines what is right and what is wrong for his subjects is not capable of a simple answer. Sometimes Hobbes appears to define the terms 'right' and 'wrong' (though not the terms 'good' and 'evil') as what the civil law enjoins or forbids, with the consequence that the assertion that the civil law creates the distinction between right and wrong is tautological. More often, however, he is discussing the substantial problem of the status of the ethical notions of the individual citizen in relation to the authority of the civil law. On this substantial problem, commentators upon Hobbes's doctrine have tended in interpreting his position to run to the extremes, either of basing all distinctions between right and wrong in civil society upon the civil law, or else of denying that the civil law does anything more than define what may then fall under ethical categories. It is clear that we may regard theft or adultery as sins, but that these sins are indeterminate until there is some marriage law or some law of property that gives them definition, and this is done by the civil law.2 It would appear, however, that Hobbes intended the civil law to reach farther than this. Men 1 In some cases Hobbes appears not to separate these two types of interpretation and in the same passage provides examples belonging to both categories. In De Corpore Politico, for instance, he writes: * In the state of nature, where every maa is his own judge, and differeth from other concerning the names and appellations of things, and from those differences arise quarrels and breach of peace, it was necessary there should be a common measure of all things, that might fall in controversy. As for example; of what is to be called right, what good, what virtue, what much, what little, whatmeumand tuum, what a pound, what a quart, etc.' (E.W., voL 4, p. 225.)

* Mr. Brown draws attention (Political Studies, vol. i, p. 61) to Hobbes's definition of civil law as rules, which the commonwealth commands the subject 'to male use of, for the distinction of right, and wrong' (Leviathan, E.W., vol. 3, p. 251), In view of the other passages quoted above, however, this is insufficient Report alone for the minimal interpretation of the function of the civil law.

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differ in what they regard as good and evil, and confusion would arise if each man followed his private notions in this matter in his external conduct. Hobbes requires in consequence that each man shall give up his right to judge on these points, where the civil law operates, and shall take refuge in a public conscience for which the sovereign must answer to God. From this point of view what is good or evil is determined by the command of the sovereign. At the same time, however, men do not disagree in all things which are to be called good or evil; they agree in regarding salvation or selfpreservation as their summum bonum and death or ultimate destruction as their summum malum,1 and Hobbes never suggests that these are such because the sovereign has commanded that it shall be so.2 These two values, therefore, stand outside the ethical field which is determined by the civil law. In fact, it is in terms of these values that Hobbes justifies the subjection of the other ethical values of man to the civil law, and if they had no status independent of that law, the law itself would lose its standing. There is, moreover, to be added the further reservation that the civil law does not cover all the actions of men in civil society, and for the actions outside its orbit, it cannot create the distinction between good and evil. Hobbes is asserting that the political relationship requires the sacrifice of the private conscience over a certainfieldand the substitution of the public conscience of the sovereign. In this his theory is not peculiar. Any political philosophy except one of sheer anarchy proceeds on the assumption that some rules are necessary and must be enforced by the State. This is an implicit or explicit recognition of the principle that the plea of a personal conscientious objection by the subject will not be accepted against all rules. And normally a distinction is This point is stated more adequately below; see Chs. IX, XII, XIII, jaunt. Professor Oakeshott regards Hobbes as taking the view that the civil la* creates the distinction between right and wrong. These categories are then die consequences, not the causes, of sovereignty. It is not clear, however, how far this principle is to be taken. Professor Oakeshott sees man as having, in Hobbes's doctrine, asummummalum, death, and, if no summumbonnm,felicity which stasis in its place. (See Introduction to Leviathan, op. cit., pp. xxxi-xxxiv, xl ft) These can hardly owe their position to the fiat of the sovereign. 1

2

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made within a society between those matters upon which a person may appropriately be said to have a conscientious objection, and those matters upon which such a defence would be regarded as evidence of fanaticism or an unworthy intention to dodge civic responsibilities, or treason, &c. What distinguishes the doctrine of Hobbes from the more traditional expositions of natural-law and natural-right theory, is the point at which the line is drawn between the sphere of public and that of private conscience. In Hobbes's account the public conscience is coextensive with the civil law, and it is this principle, perhaps, more than any other which gives his theory its modern appearance. It is of course consistent with this doctrine that the civil law may recognize a conscientious objection to the law and absolve accredited individuals from their responsibilities in some matters. But this, like the rest of the civil law is laid down by, and at the discretion of, the political sovereign. Thus the sovereign may legislate on all matters upon which he can legislate, and the moral sentiments of the individual subject cannot be used as an argument against the validity of his law. Later philosophers have been more successful in debating the problem of who should exercise this sovereign authority, than in upsetting Hobbes's fundamental position on this point. At the same time, however, if Hobbes regards the public conscience as reaching as far as the civil law, he also does not extend it beyond what he takes to be the confines of that law, and where the civil law, on his view, cannot be effective, the individual conscience recovers its authority. It may be that Hobbes seriously underestimated the field over which the civil law could be made effective, and would have to revise his theory in this respect in the light of subsequent history. As his doctrine stands, however, a citizen of a nationalistic State or a victim of religious persecution or of modern political 'conditioning', may regard as not entirely illiberal an author who allowed to the individual the right to ponder the ultimate problem of his allegiance to the State and the question of his own preservation, and further granted him the right to think

THE

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what he liked, provided that his overt words and actions conformed to the civil law. T h e relationship between the natural and the civil law is summarized by Hobbes in an important, but very misleading passage from the Leviathan: The law of nature, and the civil law, contain each other, and are of equal extent. For the laws of nature... in the condition of mere nature . . . are not properly laws, but qualities that dispose men to peace and obedience. When a commonwealth is once settled, then are they actually laws, and not before; as being then the commands of the commonwealth; and therefore also civil laws: for it is the sovereign power that obliges men to obey them. For in the differences of private men, to declare, what is equity, what is justice... [etc.] . . . and to make them binding, there is need of the ordinances of sovereign power, and punishments to be ordained for such as shall break them; which ordinances are therefore part of the civil law. The law of nature therefore is a part of the civil law in all commonwealths of the world. Reciprocally also, the civil law is a part of the dictates of nature. For justice, that is to say, performance of covenant, and giving to every man his own, is a dictate of the law of nature. But every subject in a commonwealth, hath convenanted [covenanted] to obey the civil law; . . . and therefore obedience to the civil law is part also of the law of nature. Civil, and natural law are not different kinds, but different parts of law; whereof one part being written, is called civil, the other unwritten, natural, [etc.]1 This passage—around which most of Hobbes's political theory could be written—represents, perhaps, the most adverse statement which Hobbes made against the thesis of the present work. On the face of the matter, Hobbes is saying that natural law becomes law only as commanded and enforced by the sovereign. In other words, all law is essentially civil law. A t the same time, however, he appears to think that it is worth while to add that in turn, civil law is a part of natural law in that it is the unfolding content of a political covenant, the keeping of which is required by natural law. ' Leviathan, E.W., vol. 3, pp. 253-4 (L.W., vol. 3, p. 198).

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167

Such a view, as we have indicated elsewhere,1 involves serious internal difficulties. The obligation of the citizen to obey the civil law is based upon his having made a political covenant; his obligation to keep his covenant is based upon his obligation to obey natural law; his obligation to obey natural law is then based upon his obligation to obey civil law or the commands of the sovereign; this is then based upon the political covenant, and so on. From this circular argument, no satisfactory account of the authority of the sovereign can be given, and political obligation is simply a dogma. If this should be Hobbes's theory, he must then face the type of question which has been raised above as to how the sovereign can be instituted by covenant, and how he can have any obligations even to God. It appears to be initially unlikely that Hobbes would have treated natural law at such length in his writings if all that he intended was a reductio ad absurdum of natural-law theory of the kind indicated here, and his anxiety to distinguish his own views from traditional accounts may have led him into some exaggerations in this matter. If the passage quoted above is not isolated from the rest of Hobbes's doctrine, it will be seen to be a true statement of his position as far as it goes, but to be seriously incomplete and in need of qualification. In the light of those parts of Hobbes's text which bear upon the respective functions of the public conscience and the private conscience in civil society,2 Hobbes's statement to the effect that the law of nature and the civil law contain each other and are of equal extent, and that 'the law of nature is a part of the civil law in all commonwealths of the world' can be accepted only as applying to the official version of natural law interpreted by the sovereign and supported by his penalties. Hobbes could only claim with justice that the other parts of natural law were part of the civil law, if he supposed there to be civil law competent in the spheres involved. This he does not do. Apart from the fact that the fundamental obligation to obey the civil law cannot itself be prescribed simply by ' See pp. 5-7.

1


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CIVIL

LAW

another civil law, such a view would have presupposed a competence in civil law that Hobbes could not allow. With regard to the duties of the sovereign, it would have involved a notion of constitutional law which he could not accept, and with regard to the intentions of the subject it would have been contrary to the whole spirit of his doctrine to suppose that the civil law could cover cases where it could never be enforced. Similar reservations must be entertained also with regard to Hobbes's apparent suggestion that the laws of nature are not laws, apart from their being enacted in the civil law and supported by the punishments laid out in the ordinances of the sovereign. While it is true that without the security afforded by these punishments, natural law may be inoperative as regards the external action of the individual until such a condition is satisfied, Hobbes's assertion that it is the sovereign power that obliges men to obey the laws of nature cannot be taken to mean that the sovereign creates obligations which in no sense existed before. Such a view would involve not only a neglect of Hobbes's former statement that if the laws of nature are regarded as God's commands, then they are laws, but an abandonment of Hobbes's theory of political obligation, of the duties of the sovereign and of those other aspects of natural law which cannot be based on the civil law. Further evidence that Hobbes did not regard natural law as taking its character as law from the civil law and its penalties, is also provided by his statements about punishment for breach of the natural law in civil society. Here Hobbes puts forward the view that those who break the law and suffer the civil penalty may still be liable for a further reckoning to God, whose law they have also broken. A sin against natural law cannot be expiated simply by penalties constituted by human decrees.1 Such passages can hardly be explained upon the assumption that with regard to natural law, the political sovereign obliges in any fundamental sense. Although he made the assertion that the natural and the 1 See De Cive, E.W., vol. 2, pp. 201-2 (quoted above at p. 154). Also ibid., pp. 225-6.


civil law contained each other, Hobbes went on to inquire into the question of a possible repugnance between these two sorts of law, giving a comprehensive account of their relationship in a passage from the De Cive: That which is prohibited by the divine law, cannot be permitted by the civil', neither can that which is commanded by the divine law, be prohibited by the civil. Notwithstanding, that which is permitted by the divine right, that is to say, that which may be done by divine right, doth no whit hinder why the same may not be forbidden by the civil laws; for inferior laws may restrain the liberty allowed by the superior, although they cannot enlarge them. Now natural liberty is a right not constituted, but allowed by the laws. For the laws being removed, our liberty is absolute. This is first restrained by the natural and divine laws; the residue is bounded by the civil law; and what remains, may again be restrained by the constitutions of particular towns and societies. . . Thus there are two types of case: 1. The civil law may take away a freedom allowed by natural law.1 In fact unless the civil law simply enacts an 'official version' of natural law, it cannot do otherwise. This raises no special problem. 2. The civil law may not command what natural law forbids nor forbid what it commands. Hobbes puts this supremacy of natural law over the civil law, on some occasions, in uncompromising terms. In his works are to be found a number of passages of which the following may be taken as an example: But because the law of nature is eternal, violation of covenants, ingratitude, arrogance, and all facts contrary to any moral virtue, can never cease to be sin.3 Or where in summarizing his account of civil society, Hobbes remarks'... that subjects owe to sovereigns, simple obedience, in all things wherein their obedience is not repugnant to the " De Cive, E.W., vol. 2, pp. 185-6. See De Corpore Politico, E.W., vol. 4, p. 223; Leviathan, E.W., voL 3, P. 52 54Leviathan, E.W., vol. 3, pp. 278-9, 1

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LAW

laws of God, I have sufficiently proved . . suggesting that the obedience of the subject ceases in the event of a violation of this eternal law. As far as the sovereign is concerned, natural law is the only law by which he is obliged, and such obligation presumably includes an obligation to see that his civil law is not repugnant to natural law as he interprets it. Such an obligation, at least, extends, in Hobbes's view, to the sovereign's judges in the matter of judicial precedent, and may be taken as an index of the sovereign's duty. Princes succeed one another; and one judge passeth, another cometh; nay, heaven and earth shall pass; but not one tittle of the law of nature shall pass; for it is the eternal law of God. Therefore all the sentences of precedent judges that have ever been, cannot altogether make a law contrary to natural equity: nor any examples of former judges, can warrant an unreasonable sentence, or discharge the present judge of the trouble of studying what is equity, in the case he is to judge, from the principles of his own natural reason.2 As far as the subject is concerned, however, Hobbes's position is more complex, and requires the distinction to be preserved between natural law in the old and in the new style. On some occasions, after stating the permanent and unalterable character of natural law, Hobbes applies this assertion to natural law only as it affects the inner realm of individual conscience, and proceeds to maintain that pride, ingratitude, breach of covenant, &c., can never be lawful as we take them for dispositions of the mind.3 Here in any event there can be no repugnance between natural law and civil law, whatever the sovereign may enact, since, on Hobbes's view, the civil law from its nature cannot be competent in this field. In the realm of external action on the other hand, where there could be a clash between the civil and an eternal natural law and hence a problem for the subject regarding which rule 2 Ibid., E.W., vol. 3, p. 264. * Leviathan, E.W., vol. 3, p. 343. See, e.g., De Cive, E.W., vol. 2, pp. 46-47, 194; Leviathan, E.W., vol. 3i p. 145. See also above, pp. 52-56, 150-4. 3

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is to be followed, the difficulty is largely solved by Hobbes through the extensive function of interpretation which he grants to the sovereign. The official version of natural law or the public conscience, which is also part of the civil law, covers not only the articles of peace already described, but extends to matters of religion and the authentic interpretation of God's word. That the individual should obey the commands of God is clear enough, but what are those commands? Apart from the dictates of reason available to each man (natural law), and personal revelation which gives an added knowledge of God's positive law, but which has been granted only to a few priviledged people in history, every man is dependent upon knowledge at second hand of the word of God. The individual, therefore, is forced to accept the interpretation of such prophets, teachers, or recorders of the Scripture as he may believe to give a true account, but unless he enjoys personal revelation he is taking these on trust. Interpretations of God's word, however, are as diverse as men's interpretations of natural morality and lead to similar controversies, as Hobbes's own experience so adequately illustrated. Similarly, therefore, there is need of an authentic interpretation in this field, if civil society is to be secure, and some replacement of the individual conscience by the public conscience of the sovereign. Thus Hobbes grants to the sovereign authority the right to determine what shall be for the subject the authentic interpretation of the Bible or other works of prophecy, and the parts thereof that shall be published, and likewise for the manner and form in which God shall be worshipped. In these matters, again, there can be no repugnance between natural law or divine positive law and the civil law. It is true, that God is the sovereign of all sovereigns; and therefore, when he speaks to any subject, he ought to be obeyed, whatsoever any earthly potentate command to the contrary. But the question is not of obedience to God, but of when and what God hath said; which to subjects that have no supernatural revelation, cannot be known, but by that natural reason, which guideth them, for the obtaining of peace and justice, to obey the authority


of their several commonwealths, that is to say, of their lawful sovereigns.1 At the same time, however, Hobbes qualifies this position by pointing out 1. That the sovereign must be responsible to God (but not to his subjects) for the interpretation he gives. If the sovereign passes civil laws inconsistent with true religion, and the subject obeys them, with his own mental reservations, the sin is that of the sovereign, not the subject. . . . whatsoever a subject... is compelled to do in obedience to his sovereign, and doth it not in order to his own mind, but in order to the laws of his country, that action is not his, but his sovereign's; nor is it he that in this case denieth Christ before men, but his governor, and the law of his country.2 2. The civil law can, in any case, command only external actions, and not belief. But what... if a king, or a senate, or other sovereign person forbid us to believe in Christ ? To this I answer, that such forbidding is of no effect; because belief and unbelief never follow men's commands. Faith is a gift of God, which man can neither give, nor take away by promise of rewards, or menaces of torture. And if it be further asked, what if we be commanded by our lawful prince to say with our tongue, we believe not; must we obey such command? Profession with the tongue is but an external thing, and no more than any other gesture whereby we signify our obedience;.. .3 3. All that is necessary to salvation, as an indispensable nucleus of belief, is faith in Christ and after that obedience to Leviathan, E.W., vol. 3, p. 366. See also ibid., pp. 377-9. Ibid., pp. 493-4. See also De Corpore Politico, E.W., vol. 4, pp. 186-7. 'And though it be true, whatsoever a man doth against his conscience, is sin; yet the obedience in these cases, is neither sin, nor against the conscience. For the conscience being nothing else but a man's settled judgment and opinion, when he hath once transferred his right of judging to another, that which shall be commanded, is no less his judgment, than the judgment of that other. So that in obedience to laws, a man doth still according to his own conscience, but not his private conscience. And whatsoever is done contrary to private conscience, is then a sin, when the laws have left him to his own liberty, and never else.' 3 Leviathan, E.W., vol. 3, p. 493. 1 1


173

law.1

the laws of nature and the civil If the sovereign himself is a Christian, he allows belief in the article that Jesus is the Christ and of the articles contained in or deducible from it,2 and matters of religious dogma and observance may therefore be left to be regulated by the civil law with safety to the subject. There is possibly a residual case, however, where the subject is in a difficult position, particularly where the civil sovereign is an infidel, though Hobbes regards such a case as problematical. Subjects who resisted an infidel sovereign would, as in the case of a Christian sovereign, sin against the laws of nature in breaking their political covenant, and, as for their faith, 'it is internal, and invisible;' and they 'need not put themselves into danger for it'. Hobbes allows, however, that if the command of the civil sovereign 'cannot be obeyed, without being damned to eternal death; then it were madness to obey it'.3 This situation, as we have seen, can hardly arise, but if the subject should need to put himself in danger to preserve the essential nucleus of faith necessary for salvation, he is not entitled to rebel, but to give his life for his faith, and must 'expect [his] reward in heaven, and not complain of [his] lawful sovereign; . . . For he that is not glad of any just occasion of martyrdom, has not the faith he professeth, . . ,'4 Apart then from the residual possibility of martyrdom, the subject is obliged to obey the civil law in all its spheres, whether the sovereign be Christian or infidel, and a conflict * Leviathan, E.W., vol. 3, pp. 585-7. 1 Ibid., p. 600. 3 Ibid., pp. 585, 601. See also De Corpore Politico, E.W., vol. 4, p. 188. 4

general, causes for martyrdom can hardly arise or that it is unnecessary, there does seem to be one case where it is required by him, or at least approved. 'If . . . a pastor lawfully called to teach and direct others . . . do external honour to an idol for fear; unless he make his fear and unwillingness to it, as evident as the worship; he scandalizeth his brother, by seeming to approve idolatry. . . . And this scandal is s i n , . . . For an unlearned man, that is in the power of an idolatrous king, or state, if commanded on pain of death to worship before an idol, he detesteth the idol in his heart, he doth well; though if he had the fortitude to suffer death, rather than worship it, he should do better. But if a pastor... should do the same, it were not only a sinful scandal.. • but a perfidious forsaking of his charge.' Leviathan, E.W., vol. 3, pp. 655-6.


between the subject's duty to obey the civil law and the laws of nature or the positive laws of God laid down in the religion he follows, cannot arise. The general pattern which emerges from Hobbes's treatment of the relationship between the civil law and natural law or divine positive law, is that of a series of kingdoms in which, or in some of which, any particular individual may be a citizen.1 Membership of a kingdom carries obligations to its system of law and ignorance of it or exclusion from it carries no obligations, though the individual concerned may be treated as an enemy of that kingdom. Thus all men of sound reason who believe in an omnipotent God, are members of the natural kingdom of God and are obliged by a natural law which in various ways commands peace, and is discovered to each man by his rational faculty. These laws of nature, however, are of a highly formal character and leave considerable scope for individual discretion and interpretation. Beyond this point the individual may contract himself into further kingdoms and into an obligation under the further legal systems involved. Such a step, however, always requires an initiative by the individual and a voluntary covenant upon his part, for though reason may tell him that peace necessitates membership of further kingdoms, it cannot tell him unambiguously which kingdoms he should join. He may become a Christian, or a member of the kingdom of God by covenant, but this will involve a logical hiatus, bridged perhaps by revelation or by an act of faith in some prophet. In the sphere of obligation, it will be met by his covenant and his obligation under natural law to keep valid covenants, but what motives made him conclude this particular covenant rather than any other, are from the point of view of the rational faculty, obscure. Granted, however, that he has made such a covenant, he will now be obliged under a divine positive law as well as under natural law. This will both extend his obligations and make them more determinate. In such a kingdom idolatry and apostasy, for example, become sins which were unknown to natural law as 1

See also above, pp. 83-85.

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given to reason,1 and Hobbes suggests that the Ten Commandments are in part a definition, or translation into more concrete terms, of the original natural law dictating peace. Peace requires, however, that this process shall be taken farther. Natural law may be said to put upon the individual a general and indeterminate obligation to contract himself into some civil society if favourable opportunities arise,2 though here again it cannot bind him to join this society rather than that, and an initiative is left to him. If, however, he has made a political covenant, he will be obliged to obey the civil law belonging to the system he has joined, and his obligations will be correspondingly extended and defined. The civil law will make illegal matters which were left open by the laws of nature, but it will also convert natural law into a public and determinate code. For the man who belongs to all these kingdoms, the more determinate rule will replace the less determinate. Thus the civil law will to that extent replace natural law and divine positive law. But the previous law is abolished only in the sense that it is replaced or given an official interpretation. And where it is not replaced in this way, it holds as before. Where the civil law is not or cannot be effective, therefore, the more general and previous law covers the obligation of the individual. In the broadest sense the object of all law is peace, and all law can be regarded as natural law at some degree of articulation. The civil law is simply one level at which the citizen can obey natural law, but it is neither comprehensive nor self1 See, e.g., De Cive, E.W., vol. 2, pp. 313-14. 'Seeing therefore that atheism, and the denial of the Divine Providence, were the only treason against the Divine Majesty in the kingdom of God by nature; but idolatry also in the kingdom of God by the old covenant; now in this kingdom, wherein God rules by way of a new covenant, apostacy is also added, or the renunciation of this article once received, that Jesus is the Christ. Truly other doctrines, provided they have their determination from a lawful Church, are not to be contradicted; for that is the sin of disobedience. But it hath been fully declared before, that they are not needful to be believed with an inward faith.' See also ibid., pp. 223-4, where Hobbes explains in a footnote the difference between idolatry in the natural kingdom of God, and idolatry in the kingdom of God by covenant. ' Cf. the second law of nature (quoted above at pp. 48-49) which covers the laying down of rights. An indeterminate duty to join some political society may be said to follow also from the first law of nature—seek peace.

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justifying, and is in need of natural law at other levels on both counts.1 This pattern will become more apparent as we proceed. 1 Hobbes's division between the function of the private and the public conscience in civil society is sometimes regarded as a logical inconsistency on his part. See, e.g., J. Laird (Hobbes, p. 187): 'A man transferred his privaterightof judgment to his political superior, and was seditious if he held that he ought, nevertheless, to obey his private conscience. If so, Hobbes should have inferred that it was seditious to retain a private conscience at all.' Laird's criticism, however, does not meet Hobbes's main point that there are important spheres of obligation that cannot be reached by civil law or the public conscience, and in these cases, including general political obligation itself, private conscience keeps its place. As the whole pattern of obligation depends ultimately upon private conscience, its total removal by Hobbes would have been neither logical nor sensible. Though this may in some measure be no more than poetic justice, Hobbes has suffered a great deal from comment which has confused logic with surgery.

VIII RIGHTS

AND

DUTIES

AND

OF

SOVEREIGN

SUBJECT

T is to be expected, perhaps, that in setting out his table of the divisions of science, Hobbes should list in the order he does, 'the rights, and duties of the body politic or sovereign' and the 'duty and right of the subjects'.1 But if, in the account which follows, Hobbes places more emphasis upon what the subject owes to the sovereign than upon what in turn is owed to the subject, it is nevertheless significant that all four of his divisions should have their place, for his advocacy of absolute sovereignty never involves a theory in which subjects have no rights and sovereigns no duties. The general relationship between the sovereign and the subject is described by Hobbes in his account of the political covenant, and has already been presented in outline. As we have seen, Hobbes defines the term 'injury', on some occasions to mean simply breach of covenant, and then tries to show that the sovereign cannot commit injury at all, as far as the political covenant is concerned. In this connexion, he argues that the sovereign cannot break the covenant because he cannot be a party to it, but this is a fruitless venture as in addition to the difficulties it involves in other parts of his doctrine, it will not fit the case of his sovereign by acquisition, whom he admits to be a participant. More successfully, he also argues that the sovereign cannot actually break the covenant, as apart from causing it to become invalid, since the continuing validity of the covenant presupposes the exercise of sovereignty.2 In spite of the emphasis which Hobbes put upon these arguments, however, they do not play a very important part in his entire theory, and the main factors in determining the relationship between sovereign and subject are to be found elsewhere.

I

1


5774

* See above, pp. 139-40. N

I78

RIGHTS AND DUTIES

OF

They derive from the procedure whereby the subject authorizes the actions of the sovereign, from the duty upon the subject not to resist the sovereign (except in self-defence), and further, from the obligation to act in such a way that the purpose of the political covenant shall not be frustrated. In concluding the political covenant, the subject, as we have seen, has authorized all that the sovereign shall do, and from this Hobbes draws the consequence that whatever the sovereign does can be no injury to the subject. . . . because every subject is . . . author of all the actions, and judgments of the sovereign instituted; it follows, that whatsoever he doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice. For he that doth anything by authority from another, doth therein no injury to him by whose authority he acteth: but by this institution of a commonwealth, every particular man is author of all the sovereign doth: and consequendy he that complaineth of injury from his sovereign, complaineth of that whereof he himself is author; . . . [etc.]1 The authorization process, however, does not give a complete discharge for the action authorized; it merely gives an indemnity as against the person who has authorized it. As indicated above,2 it is essentially a resignation of accountability. Thus in authorizing the actions of the sovereign, the subject frees him from accountability to himself, and therefore cannot justifiably accuse the sovereign of unreasonable or immoral conduct. At the same time, although the sovereign cannot offend against the subject and the civil law, he may by the same act commit iniquity or, in other words, an offence against God and the laws of nature. As a subject of God, he is obliged by these laws, which 'cannot by any man, or commonwealth be abrogated',3 and the duties they prescribe are 'required at [his] hands to the utmost of [his] endeavour, by God Almighty, under the pain of eternal death'.4 The fact that the 1

1 Leviathan, E.W., voL 3, p. 163. See above, pp. 108-11, 129-33. Leviathan, E.W., vol. 3, p. 312. 4 De Carport Politico, E.W., vol. 4, p- 2*3- Hobbes makes numerous assertions (though sometimes expressed more mildly) to the effect that the sovereign is 3

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sovereign is bound by natural law, however, does not alter the circumstance that in virtue of their authorization, his subjects have no right to interpret that law as against him, nor to exact retribution for any breach of it he may commit. It is true, that a sovereign monarch, or the greater part of a sovereign assembly, may ordain the doing of many things in pursuit of their passions, contrary to their own consciences, which is a breach of trust, and of the law of nature; but this is not enough to authorize any subject, either to make war upon, or so much as to accuse of injustice, or any way to speak evil of their sovereign; because they have authorized all his actions, and in bestowing the sovereign power, made them their own.1 The extent to which Hobbes was prepared to accept the logical consequences of this position is illustrated by his statements concerning the punishment of an innocent subject. Such a proceeding by the sovereign is always a breach of natural law, but it is an injury to God and not to the subject himself.2 It is a transference of accountability of this character, effected by the process of authorization, that forms the basis of Hobbes's theory of political obligation. The Rights of the Sovereign In addition to his general freedom from accountability to the subject, the sovereign possesses a number of specific rights which, like this freedom, are regarded by Hobbes as belonging to sovereignty in the special sense that they are essential to its nature. The sovereign cannot be justly punished by his subjects; he always bound by natural law. See, for example, in addition to passages cited above: E.W., vol. 2, pp. 80-83; voL 3, pp. 199-200, 215; vol. 4, p. 140. ' Leviathan, E.W., voL 3, p. 235. See also De Corpore Politico, E.W., vol. 4, pp. 203-4. 1 See Leviathan, E.W., vol. 3, p. 200 (quoted above at p. 131). 'And therefore it may... happen in commonwealths, that a subject may be put to death, by the command of the sovereign power; and yet neither do the other wrong . . . " (etc.). See also ibid., pp. 304-5. 'All punishments of innocent subjects . . . are against die law of nature — ' (etc.). Only in virtue of the authorization conveyed by the subject is Hobbes able to reconcile these two assertions.

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is the judge of the means of peace and defence and may do whatever he shall think necessary to preserve peace both at home and against outside enemies, including the supervision of opinions and doctrines and the publication of books. He has the right to make civil laws covering what he shall think necessary to civil security, including as we have seen the doctrines and observances of religion, and the property of his subjects; he has the right of judicature, that is of hearing and deciding all controversies. He may make war and peace with other nations, direct the armed forces, and levy money to pay for them. He has the right to choose all counsellors, ministers, magistrates, and officers; to reward or punish his subjects according to the civil law, or if there be no law made, as he judges most conducive to the safety of the commonwealth; and to give titles of honour and dignity to his citizens.1 Concerning these rights, Hobbes maintains These are the rights, which make the essence of sovereignty; and which are the marks, whereby a man may discern in what man or assembly of men, the sovereign power is placed and resideth. For these are incommunicable, and inseparable.2 Such rights may not be granted away without resigning sovereignty itself, and if any of them seem to be granted to others, such a grant is void unless the sovereign power is in direct terms renounced. There are other rights of the sovereign, Hobbes suggests, such as the right to coin money or to dispose of the property of infant heirs, that may be transferred by the sovereign to other hands, but the essential rights are always retained as a condition of the sovereign's preserving the power to protect his subjects. The Duties of the Sovereign Civil society, on Hobbes's view, was 'not instituted for its own, but for the subjects' sake', and the duties of the sovereign, * We follow here mainly the account given in Leviathan, E.W., vol. 3, pp. 160-8. Similar statements (with slight variations) are given elsewhere; see, e.g., De Corpore Politico, E.W., vol. 4, pp. 137-8; De Cive, ch. vi. 2 Leviathan, E.W., vol. 3, p. 167.


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though owed to God and not to the subject, concern the subject as a beneficiary. These duties may be summarized as an obligation to preserve the safety of the people, in so far as care may be taken of each particular man through the provision of universal laws. The provision of safety, however, is regarded by Hobbes as covering not merely the preservation of life but also of the means to live well. The OFFICE of the sovereign, be it a monarch or an assembly, consisteth in the end, for which he was trusted with the sovereign power, namely the procuration of the safety of the people-, to which he is obliged by the law of nature, and to render an account thereof to God, the author of that law, and to none but him. But by safety here, is not meant a bare preservation, but also all other contentments of life, which every man by lawful industry, without danger, or hurt to the commonwealth, shall acquire to himself. And this is intended should be done, not by care applied to individuals, further than their protection from injuries, when they shall complain; but by a general providence, contained in public instruction, both of doctrine, and example; and in the making and executing of good laws, to which individual persons may apply their own cases.1 The detailed account given by Hobbes of the duties of the sovereign varies to a minor degree in the different versions he presents. These duties in general would appear, however, to be directed towards securing three distinct, but interdependent, objectives. i. Security It is a duty of the sovereign to preserve his own power and the rights necessary for the full exercise of sovereignty, and to see that his subjects are taught the grounds of those rights.2 He must preserve peace from both domestic and foreign dangers, and to this end has a duty to maintain adequate armed forces, and military intelligence, and the money to pay for these services; to fight if he must, but to avoid unnecessary 1 Leviathan, E.W., vol. 3, pp. 322-3. See also De Corpore Politico, E.W., vol. 4, pp. 213-14; De Cive, E.W., vol. 2, pp. 166-7. 2 Leviathan, E.W., voL 3, pp. 323-32.

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1

war; to watch over doctrines and political factions and forestall thereby attempts at rebellion.2 The sovereign must, further, attempt to secure his citizens from the hazards of the next world as well as this, in establishing the religion he considers best. And forasmuch as eternal is better than temporal good, it is evident, that they who are in sovereign authority, are by the law of nature obliged to further the establishing of all such doctrines and rule, and the commanding of all such actions, as in their conscience they believe to be the true way thereunto.3 2. Prosperity It is the duty of the sovereign to pass laws which will lead to the increase of wealth—to encourage husbandry, manufactures, and fishing, to discourage idleness, and to pass marriage laws such as will tend to the profitable increase of mankind.4 The fact that in the economic sphere Hobbesian individualism does not imply laissez-faire, is illustrated from Hobbes's ruling that although the strong and idle should be forced to work, the poor and weak should be provided for by the State.5 3. Equity, and the harmless liberty of the subject It is the duty of a ruler to administer justice without discrimination to all his subjects. The safety of the people, requireth further, from him, or them 1

'For such commonwealths . . . as affect war for itself, that is to say, out of ambition, or of vain-glory, or that make account to revenge every little injury... if they ruin not themselves, their fortune must be better than they have reason to expect.' De Carport Politico, E.W., voL 4, p. 220. 2 De Ctve, E.W., vol 2, pp. 167-76. De Corpore Politico, E.W., vol. 4, pp. 21620. 3 De Corpore Politico, E.W., vol. 4, p. 214. The residualrightof the dissenting subject to a non-resistant martyrdom in an extreme case has been noted above, pp. 172-4. 4 De Corpore Politico, E.W., voL 4, pp. 214-15. De Cive, E.W., vol. 2, pp. 176-8. 5 'And whereas many men, by accident inevitable, become unable to maintain themselves by their labour; they ought not to be left to the charity of private persons; but to be provided for, as far forth as the necessities of nature require, by the laws of the commonwealth.* Leviathan, E.W., vol. 3, p. 334.


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that have the sovereign power, that justice be equally administered to all degrees of people; that is, that as well the rich and mighty, as poor and obscure persons, may be righted of the injuries done them; so as the great, may have no greater hope of impunity, when they do violence . . . [etc.] . . . to the meaner sort, than when one of these, does the like to one of them: for in this consisteth equity; to which, as being a precept of the law of nature, a sovereign is as much subject, as any of the meanest of his people.1 The sovereign is likewise obliged to settle by law the property rights of his subjects2 and to lay the burdens of the commonwealth equally upon them. Equity demands that there should be an equality of material sacrifice to the public good, which in the particular matter of taxation, for example, requires 'an equality, not of money, but of burthen; that is to say, an equality of reason between the burthens and the benefits. For although all equally enjoy peace, yet the benefits springing from thence are not equal to all; for some get greater possessions, others less; and again, some consume less, others more'.3 Hobbes decides finally that this problem is most equitably met by a system of indirect taxation, as proportioning taxation, not to wealth, but to the benefit the citizen has received in the consumption of goods. The sovereign has, further, an obligation to make good laws. What, however, is to be understood as a good law?—not a just law for no law can be unjust.4 A good law, on Hobbes's view, is one that is 'needful, for the good of the people, and withal perspicuous'. The requirement of perspicuity is satisfied if the reason for the law is apparent or made clear to the subject and if the text of the law itself is short and unambiguous.5 But the 1

Leviathan, E.W., vol. 3, p. 332. De Corpore Politico, E.W., vol. 4, p. 216. 3 De Cive, EM., vol. 2, pp. 173-4. 4 'The law is made by the sovereign power, and all that is done by such power, is warranted, and owned by every one of the people - and that which every man will have so, no man can say is unjust. It is in t},e c { a commonwealth, as in the laws of gaming: whatsoever the gamesters all agree on, is injustice to none of them.*Leviathan,E.W., vol. 3, p. 335. 2

* " F o r ^ e n I consider how short were the l a w s o f ancient times; and how they grew by degrees still longer; methmk, I ^contention between the penners, and pleaders of the law; the former seeking t 0 dxcu«*cribe the latter;**!

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law must also be needful. The proper use of laws is not to restrain men from all voluntary actions, but to guide them so that they do not harm themselves by their own desires or indiscretion, 'as hedges are set, not to stop travellers, but to keep them in their way'. It is a failure of duty in the sovereign, therefore, to legislate against the harmless liberty of the subject. . . . it is against the charge of those who command... that there should be more laws than necessarily serve for good of the magistrate and his subjects. For since men are wont commonly to debate what to do or not to do, by natural reason rather than any knowledge of the laws, where there are more laws than can easily be remembered, and whereby such things are forbidden as reason of itself prohibits not of necessity, they must through ignorance, without the least evil intention, fall within the compass of laws, as gins laid to entrap their harmless liberty; which supreme commanders are bound to preserve for their subjects by the laws of nature.1 It belongs also to the duty of the sovereign to make a proper application of punishments and rewards. Hobbes saw that by definition, punishment is retributive or penal. There can be no punishment, properly called, where there has been no transgression of the law, and such a description cannot therefore be applied to actions against the innocent.2 At the same time, however, punishment cannot be justified, on Hobbes's view, in terms of its definition. It is a part of natural law that in revenges, men should look not at the greatness of the evil past, but the greatness of the good to follow,3 and the purpose of punishment must not be revenge, but some social good, including correction either of the offender or of others by his example. Thus the severest punishments should be inflicted for crimes of most danger to the public. Crimes that proceed from infirmity, great fear, or need, however, should be treated the latter to evade their circumscriptions; and that the pleaders have got the victory.' Leviathan, E.W., vol. 3, p. 336. 1 De Cive, E.W., vol. 2, pp. 178-9. See also De Corpore Politico, E.W., vol. 4, 2 pp. 213-16. See, e.g., Leviathan, E.W., vol. 3, p. 304. 3 Ibid., p. 140. For a discussion of the utilitarian aspect of Hobbes's theory of punishment, see J. Laird, Hobbes, pp. 221-3.


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more leniently, and lenience where there is justification for it is required by natural law. Punishment is less justifiable also when the sovereign himself is partly at fault; leaders of factions should be dealt with more severely than their ignorant followers for this ignorance may be imputed in great part to the sovereign, who should have seen that they were better instructed;1 and greater penalties should not be exacted for breach of the law than are defined by that law, for if the penalty advertised was too light, the sin is partly attributable to the legislator himself. The sovereign, finally, must choose good counsellors and public officers and see that his judges are not corrupt. For the law badly applied no less than superfluous law, takes away the harmless liberty of the subject. Corrupt judges '. . . put wicked men in hope to pass unpunished' and 'honest subjects encompassed with murderers, thieves, and knaves, will not have the liberty to converse freely with each other, nor scarce to stir abroad without hazard;.. .' 2 It may be noted that the duties of the sovereign as recounted above, are not by any means confined solely to the maintenance of order and the preservation of life. Hobbes does, it is true, summarize the office of the sovereign as being to procure the safety of the people, but he adds that by safety here, he does not mean a bare preservation of life, but of other 'contentments of life' also, or of means to live well. Similarly, his detailed discussion of the duties of the sovereign is only partly concerned with the provision of security; it is concerned also with obligations designed to secure the prosperity of the citizen, the equitable administration of the law, and the preservation of the harmless liberty of the subject. Thus the goal of political association, as reflected in the duties of the sovereign, includes the realization of other values besides sheer physical preservation. Although it may be conceded that Hobbes often adds these other values or objectives with considerably 1 2

Leviathan, E.W., vol. 3, p. 337. De Cive, E.W., voL a, p. 181. See also De Corpore Politico, E.W., vol.

DO

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less theoretical support than he offers in the case of physical preservation, it is significant that the terms of his account are not nearly so circumscribed as they are traditionally represented.1 With regard to Hobbes's description of the rights of the sovereign, it is pertinent to consider what he means by rights in this case. We have maintained elsewhere2 that Hobbes uses the term 'right' or 'rights' with two different meanings. On some occasions, rights are true antitheses of duties, and here the word is applied to something which the individual possessing the right cannot be obliged to renounce. Rights in this sense, therefore, are freedoms from, or exemptions from obligation but do not imply corresponding duties in other people. It is this usage which is employed by Hobbes when he speaks of the right to all things in the State of Nature and the transference of rights of nature by the political covenant. On other occasions, by contrast, a right in Hobbes's account means an entitlement to something and implies corresponding duties for other people. We have suggested, however, that this usage does not have an important employment in Hobbes's doctrine because here the significant vehicle of his theory is the corresponding duties-formula, which bears the weight of any precision or justification supplied. When Hobbes reaches the question of the rights of the sovereign as outlined in the present section, he uses the word, right, in this sense and as equivalent to entitlement. He is not trying to say that the sovereign cannot be obliged to renounce the levying of taxes, the choosing of ministers, or the raising of an army, but that he is entitled to do these things. The interest of Hobbes's account of the rights of the sovereign is twofold. It is partly historical—Hobbes was here simply selecting some of the implications of sovereignty for the benefit of his contemporaries. In the face of current controversies about rights of taxation, judicature, and so on, it was necessary to point out that the exercise of sovereignty implied these rights. But at this level, there were many other rights * See below, pp. 213-ig, 272-7.

1

See above, pp. 18-21,105-8.


11

that Hobbes could equally well have chosen had he been so disposed, and his theory would not have been affected. A second point, and one of greater theoretical significance, is Hobbes's attempt to divide the rights of the sovereign authority into those that are essential to its nature, and those that are expendable. Thus the rights to make war and peace, to levy money, and to direct the armed forces, for example, cannot be divorced from sovereignty and are some of the marks which show where sovereignty resides; whereas the right to coin money, for instance, which is undoubtedly a right which the sovereign may use if he wishes, may, nevertheless, be transferred by the sovereign to other hands. It is to be remarked, however, that the rights which are essential to sovereignty are also duties of the sovereign, and are produced by Hobbes under both heads. The sovereign, no less than the subj'ect, has a general duty under natural law to seek peace and this may be taken to be a duty to preserve political society where this is possible. From the sovereign's point of view, this is a duty to maintain and exercise the rights necessary to sustain the sovereign power, and Hobbes is careful to show that the sovereign can also have an adequate motive to do this in terms of his own safety and well-being.1 That Hobbes is here using the word, rights, with a different meaning from his more important and original use, is evident from the fact that these rights are also duties, for in his original sense, rights differ from duties as liberty from obligation and both terms cannot be applied to the same thing.2 In connexion with Hobbes's theory of the rights of the sovereign, if we are concerned with the justification of his position and with a precise statement of its implications, it is to the theory of duties that attention must be paid. From the point of view of the subject, the position is already covered by the fact that he has authorized all that the sovereign shall do, and further that he has a duty to act in such a way that the purpose of the political covenant shall not be frustrated. In 1 1

See, e.g., Leviathan, E.W., vol. 3, pp. 326, 336. See above, pp. 19-20.

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general, this means that the sovereign is entitled to decide what is necessary for the maintenance of peace, and this will cover taxation or the levying of troops or anything else he may regard as requisite. The duties-formula, moreover, gives also the limitations of these rights or entitlements of the sovereign. The subject may still be justified in running away from the battle line when he is hard pressed, and the entitlements of the sovereign exist no longer when he has lost the power to protect the citizen. Thus in giving an account of the duties of the citizen and the duties of the sovereign including his exercise of the functions necessary for sovereignty, Hobbes has already given his most precise account of the rights or entitlements of the sovereign. Where his statements are defended, the duties-formula is used; and where his statements appear to go beyond this formula, they are misleading in that they omit necessary qualifications, laid down by Hobbes elsewhere, and suggest duties in the citizen to obey, or entitlements in the sovereign to obedience that do not in fact hold in his doctrine. Such a use of the term, rights, is therefore, as we have argued, mainly of rhetorical value. When Hobbes turns from the rights of the sovereign, however, to those of the subject, he reverts to his original usage, and the rights or liberties of the subject are essentially freedoms or exemptions from obligation and are to be contrasted with duties. The Rights and Duties of the Subject The duties of the subject have to a large extent been described already in the account which has been given of the authorization of the sovereign, the making of a political covenant, and the relationship between the natural and the civil law. This section, therefore, is concerned mainly with his rights. In contracting into civil society, the subject does not and cannot grant away all his rights. As it is necessary for all men that seek peace, to lay down certain


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rights of nature; that is to say, not to have liberty to do all they list : so is it necessary for man's life, to retain some; as right to govern their own bodies; enjoy air, water, motion, ways to go from place to place; and all things else, without which a man cannot live, or not live well.1 It is upon this necessity to preserve the bare conditions of a tolerable life, that Hobbes bases his description of what he calls the true liberty of the subject, or in other words . . . the things, which though commanded by the sovereign, he may nevertheless, without injustice, refuse to do; . . .2 Hobbes turns to consider what rights the individual renounces when a commonwealth is made and he authorizes all the actions of the sovereign without exception. As there are no obligations to the political sovereign owed by the subject but what arise initially from his own consent, such obligations as exist must be held to derive either . . . from the express words, I authorize all his actions, or from the intention of him that submitteth himself to his [the sovereign's] power, which intention is to be understood by the end for which he so submitteth;.. . the peace of the subjects within themselves, and their defence against a common enemy. First therefore, seeing sovereignty by institution, is by covenant of every one to every one; and sovereignty by acquisition, by covenants of the vanquished to the victor, or child to the parent; it is manifest, that every subject has liberty in all those things, the right whereof cannot by covenant be transferred.3 Covenants, as we have seen, not to defend a man's own body in extreme danger are always void. It follows, on Hobbes's view, that if the sovereign command a man, though justly condemned, to kill or hurt himself, or not to resist those who assault him, or to abstain from food, air, or other necessity of life, that man has the liberty to disobey.4 Likewise a 1 Leviathan, E.W., vol. 3, p. 141. As we have seen above (pp. 122-3) Hobbes maintains throughout his work that a man held in prison or bonds cannot be understood to be obliged to his captor. See e.g., Leviathan, E.W., voL 3, p. 208. 1 Ibid., p. 203. J Ibid., pp. 203-4. 4 Ibid.

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subject accused of crime is not obliged to confess it unless he has an assurance of pardon. The actions of the sovereign are, it is true, all authorized by the citizen, and as there is thereby no restriction placed upon the sovereign's former natural liberty, he may kill the citizen without 'injury' to him, but the citizen is not therefore bound to kill himself when commanded to do so, nor is he bound to suffer, without resisting, attempts made upon his life by the sovereign or by other men.1 In the account given in Leviathan, Hobbes then concludes: It followeth therefore, that No man is bound by the words themselves, either to kill himself, or any other man; and consequently, that the obligation a man may sometimes have, upon the command of the sovereign to execute any dangerous, or dishonourable office, dependeth not on the words of o u r submission; but on the intention, which is to be understood by the end thereof. When therefore our refusal to obey, frustrates the end f o r which the sovereignty was ordained; then there is no liberty t o refuse: otherwise there is.2 Hobbes s positi0n

in general appears to be that by the words of the political covenant, the subject has simply authorized what action the sovereign shall take, and has effected a transference of rights that places upon him the negative duty of nonresistance the sovereign except in sheer self-defence. But the citizen is not thereby committed to the positive duty of helping the sovereign.3 From the passage quoted above, it would appear that in particular the subject is not obliged by the words of covenant to kill or endanger himself or others,

5 See vo1 ' ^/byfot?* ' 3» PP-127-8- 'A covenant not to defend myself from jve hirrT**" always void. F o r . . . no man can transfer, or lay down from his right only death, wounds, and imprisonment, the avoiding whereof >3 force, J?*1 of laying down any right; and therefore the promise of 0 not resist^ m a y ! ? covenant transferred any right; nor is obliging. For though 3 unless /'"Slant thus, unless I do so, or so, kill me; he cannot covenant Mature ch ^ so, or so, / mil not resist you, taken you come to kill me. For man W g r e a t e ^ ^ h the lesser evil, which is danger of death in resisting; rather tb*" \j to be tvf* ^hich is certain and present death in not resisting. And this is grif'^jined n w V all m" 1 . t*131 ^ ^ I e a d criminals to execution, and prison, ^ ^ J i i c h the?" notwithstanding that such criminals have consented to the law, W j l , condemned.* 1 Vq 5 Levia^ '- 3, pp. 204-5See above, pp. 104-18.


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nor to perform dishonourable actions even though he is commanded to do so. Such obligations as he may have to assist the sovereign derive from the intention of the covenant which is that civil society shall be sustained. His positive duties and his true liberty are therefore controlled by the relationship between his prospective actions and the possibility that the State will be disrupted. It is from this point of view that Hobbes describes the position of a man called upon to endanger his life. Upon this ground, a man that is commanded as a soldier to fight against the enemy, though his sovereign have right enough to punish his refusal with death, may nevertheless in many cases refuse, without injustice; as when he substituteth a sufficient soldier in his place . . . And there is allowance to be made for natural timorousness . . . When armies fight, there is on one side, or both, a running away; yet when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonourably. For the same reason, to avoid battle, is not injustice, but cowardice. But he that inrolleth himself a soldier, or taketh imprest money, taketh away the excuse of a timorous nature;. . . And when the defence of the commonwealth, requireth at once the help of all that are able to bear arms, every one is obliged; because otherwise the institution of the commonwealth, which they have not the purpose, or courage to preserve, was in vain.1 It is clear that Hobbes regards the words of the covenant as allowing some rights in the subject to refuse to obey the commands of the sovereign. He does not, however, make equally clear the precise scope of his argument that the purpose or intention of the covenant should not be frustrated. From the text of the Leviathan, noted above, it is difficult to discover how much of his preceding account Hobbes is taking in with the statement that ' w h e n . . . our refusal to obey, frustrates the end for which the sovereignty was ordained; then there is no liberty to refuse: otherwise there is'. This proviso could clearly be pushed to the point where the individual subject could be said to have no 'true liberty* at all. 1


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In view of what Hobbes says elsewhere, it is unlikely that he intended his argument concerning the frustration of the purpose of the covenant to cover the subject in mortal danger. Hobbes has said on many occasions that a covenant not to defend oneself is always void and has suggested that an individual could not be obliged to kill himself or not to defend himself. For the subject who killed himself if commanded to do so, the purpose of his political covenant would in any event clearly be frustrated by the very act of obedience whatever happened to society, as he is alleged to have entered society in order to preserve himself. As, moreover, on Hobbes's view, the subject would regard danger to his life as the greatest evil possible, he could not be motivated otherwise than to safeguard it.1 Since 'the end for which sovereignty was ordained' presumably must exclude for each individual his own certain death, it would appear that Hobbes can urge his limitation derived from the purpose of the covenant only for the smaller degrees of danger or dishonour, such as killing others or taking risks. In this event, there would be two distinct categories of action, which are actions the individual may without injustice decline to perform, despite the command of the sovereign. 1. The right of the individual to defend himself in mortal danger and to preserve the necessities of life appears to be absolute, and to provide an argument for the individual more ultimate than the preservation of civil society itself. In this matter, the individual has, presumably, the right to disobey under all conditions. 2. The subject may decline to perform some actions (kill others, take up dangerous and dishonourable missions, &c.) unless his refusal would frustrate the intention of the political covenant by destroying society. But who is to decide when the State is in danger? If this liberty or right is to mean anything to the individual, he must be entitled to assess this factor 1 See, e.g., Leviathan, E.W., voL 3, pp. 120,127-8, 141; De Cive, E.W., vol. a, pp. 25-26, 39-40; DeCorporePolitico, E.W., vol. 4, p. 83. See also above, pp. 32-33, 91-93, 114 ff- and below, p. 257.


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for himself, and in such a case, he would be justified in refusing to obey, if in his own opinion, his refusal would not endanger society. The sovereign could of course, with equal justice, put him to death, being just, as may happen, in two senses: (a) that he commits no 'injury' against the subject himself who has authorized all his actions; (b) that he commits no 'iniquity' against natural law, because in his opinion his act is justified. This would be quite consistent with Hobbes's doctrine for, as we have seen, it is possible on his theory for both sovereign and subject to be justified in a case where the subject takes a course of action which the sovereign punishes; because where one or both parties are obliged by a sphere of natural law outside the civil law, they may start from different postulates. In the account given of this same problem in the De Cive, Hobbes makes use again of the distinction between the express words of the political covenant and the intention to sustain political society. There is so much obedience joined to this absolute right of the chief ruler, as is necessarily required for the government of the city,... Now this kind of obedience, although for some reasons it may sometimes by right be denied, yet because a greater cannot be performed, we will call it simple. But the obligation to perform this grows not immediately from that contract, by which we have conveyed all our right on the city; but immediately from hence, that without obedience the city's right would be frustrate,... For it is one thing if I say, I give you right to command what you will; another, if I say, I will do whatsoever you command. And the command may be such, as I would rather die than do it. Forasmuch, therefore, as no man can be bound to will being killed, much less is he tied to that which to him is worse than death. If therefore I be commanded to kill myself, I am not bound to do it. For though I deny to do it, yet the right of dominion is not frustrated; since others may be found, who being commanded will not refuse to do it; neither do I refuse to do that, which I have contracted to do. In like manner, if the chief ruler command any man to kill him, he is not tied to do it; — Nor if he command to execute a parent, 5774

O

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. . . There are many other cases in which, since the commands are shameful to be done by some and not by others, obedience may by right be performed by these, and refused by those; and this without breach of that absolute right which was given to the chief ruler. For in no case is the right taken away from him, of slaying those who shall refuse to obey him.1 Here if anything, Hobbes lends support to the view that the subject is free from all obligation to kill himself if commanded by the sovereign to do so; but in suggesting that such a refusal could not frustrate the purpose of the covenant because some other person could be found to kill the subject, Hobbes evades the question of whether the discharge of the subject from obedience in this case is absolute or not. T o have met the point Hobbes would have needed to answer the hypothetical question, what is the duty of a subject if commanded to kill himself, when his refusal would imply the dissolution of political society? For the reasons given above, it appears that on the assumptions of his own system, Hobbes would have had to absolve the subject from any duty to obey such a command. It is worthy of note that what Hobbes describes as the true liberty of the subject, a right of self-defence, is what we have termed elsewhere an invalidating principle for covenants (i.e. a covenant made by a person not to defend himself is always void). There is an inverse relationship between the validating conditions of obligation and the true liberties of the subject, since these liberties arise where the individual cannot be obliged. In this particular case, Hobbes is concerned with the rights of the subject as against the sovereign, and, as the obligation of the subject to obey the sovereign depends upon covenant, Hobbes emphasizes the point that the individual cannot be obliged to do something that invalidates covenants or something that cannot be covenanted. He might have expanded his account of the true liberties of the individual, however, by adding the other validating conditions of obligation; he could, for example, have cited the conditions of law 1

De Cive, E.W., vol. z, pp. 82-83.


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that the law and its author be sufficiently knowable; for if this condition is not satisfied, the individual cannot be obliged by the law and would have a freedom in this case which runs, as we shall see, not only against the political sovereign but also against God. 1 Apart from what Hobbes terms the true liberty of the subject, other liberties depend upon the silence of the law. In cases where the sovereign has prescribed no rule, there the subject hath the liberty to do, or forbear, according to his own discretion. And therefore such liberty is in some places more, and in some less; and in some times more, in other times less, according as they that have the sovereignty shall think most convenient.2 In any event there can never be enough rules to cover all the words and actions of men, and because of their number and variety, 'it is necessary that there be infinite cases which are neither commanded nor prohibited, but every man may either do or not do them as he lists himself'.3 It is, moreover, as we have seen, a duty of the sovereign to keep this field of action outside the civil law as ample as possible, and so to preserve the harmless liberty of the subject. The problem of the liberties of the citizen is not, however, entirely a problem of liberty against the sovereign alone, but also of liberty against fellow citizens. The individual has a number of freedoms from obligation that are never renounced, even to the sovereign power. But he has no rights against the sovereign in the sense of entitlements that put duties upon the sovereign, except for the duties owed by the sovereign to God under natural law, in which the subject is a beneficiary. In civil society, nevertheless, he does collect some entitlements as against his fellow citizens, for the civil law does impose obligations upon them that secure him in some respects. Although the subject, therefore, cannot prevent the sovereign from making what laws for property he will, for example, he 1 A further discussion of the role of the conditions of obligation in Hobbes's theory, is presented below, at pp. 252-65. 1 Leviathan, E.W., voL 3, p. 206. 3 De Cive, E.W., vol. 2, pp. 178-9. See also Leviathan, E.W., vol. 3, p. 199.

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does gain by those laws a right to exclude all other subjects; and Hobbes concludes that what right the sovereign has not taken away, cannot be taken by a fellow citizen, and that in what is not regulated by the commonwealth, it is equity and a law of nature that every man equally enjoy his liberty.1 Men should remember that . . . the liberty of a state is not an exemption from the laws of their own country, whether made by an assembly or by a monarch, but an exemption from the constraint and insolence of their neighbours.2 Thus Hobbes's theory provides, not merely for a general duty of the subject to obey the commands of the sovereign where his will has been sufficiently declared, but also for rights of the subject and duties on the part of the sovereign. What makes Hobbes's account confusing at first sight is that there is absent the correspondence between these rights and duties that is normally expected. It has become axiomatic to regard the duties of the sovereign as implying rights in the subject and vice versa. Nevertheless, Hobbes denies these implications, for the rights of the subject against the sovereign are freedoms from obligation and do not imply duties for the sovereign, and the duties of the sovereign are owed to God and not to the subject. Thus the subject has a right to defend his life, but the sovereign has not necessarily a duty to spare it, and the sovereign has a duty to observe natural law, but the subject has no right to exact that observance. Far from being a convenient key to Hobbes's theory of obligation, therefore, the notion of reciprocity as suggested by Professor Taylor, for example, is here definitely misleading, for Hobbes's system is essentially hierarchical. There is a basic disproportion between the place of the sovereign and the place of the citizen. Whether we take the sovereign to be a party to the political covenant (as we must in the case of sovereignty by acquisition) or whether we take him or them to be outside that covenant (as Hobbes, ill— * See, e.g., Leviathan, E.W., vol. 3, pp. 235,275, 685. Behemoth, E.W., vol. 6, p. 237.

1


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advisedly, regarded the sovereign by institution), the sovereign is essentially in the State of Nature,1 whereas the subject is in civil society. The citizen is bound by law, mainly as interpreted and enforced by an external agency that he has accepted for this purpose by his own consent. The sovereign is bound by the dictates of his own conscience regarding his duties to God. In the absence of a coercive agent accepted by him, he is not necessarily obliged by any rules which are specifically interpreted and administered in a public manner, and with him the plea of general insecurity can be a good excuse for default in matters of obligation. His right to govern is not based on a gift from his citizens, but it is the right of all men in the State of Nature to control others subject to circumstances and natural law, and likewise, his right to punish is the right of all men in the natural state. . . . to covenant to assist the sovereign, in doing hurt to another, unless he that so covenanteth have a right to do it himself, is not to give him a right to punish. It is manifest therefore that the right which the commonwealth . . . hath to punish, is not grounded on any concession, or gift of the subjects. B u t . . . before the institution of commonwealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation;... And this is the foundation of that right of punishing, which is exercised in every commonwealth. For the subjects did not give the sovereign that right; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him only; and (excepting the limits set him by natural law) as entire, as in the condition of mere nature, and of war of every one against his neighbour.2 Thus consistently with his account of what is involved in transferring rights of nature, Hobbes maintains that the subject gives the sovereign no right to punish, but makes his power more effective by resigning his own right to resist, except where he is himself put into mortal danger. A further illustration of the lack of reciprocity between the 1

See above, pp. 154-6-

2

Leviathan, E.W., vol. 3, pp. 297-8.

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rights and duties of the sovereign and subject is afforded by the position Hobbes assumes regarding the case of a sovereign losing the power to protect his subjects. The obligation of subjects to their sovereign lasts only so long as the power lasts by which he is able to protect them.1 But although the obligation of the subject disappears, the right of the sovereign, which is independent of that obligation, remains. On the dissolution of a commonwealth with a sovereign monarch, . . . though the right of a sovereign monarch cannot be extinguished by the act of another; yet the obligation of the members may. For he that wants protection, may seek it any where; and when he hath it, is obliged . . . to protect his protection as long as he is able.2 The sovereign, however, presumably still has the right that any person has who has not covenanted to obey another, unless he removes that right by his own consent. Sovereign and subject, therefore, cannot belong to a reciprocating system of obligations because in the circumstances in which they act they belong to two different legal contexts, that of the State of Nature and that of civil society. Hobbes could hardly avoid this conclusion without inconsistency. Sovereign and people cannot be the two contestants of a controversy, because 'the people' is either apolitical expression which presupposes the exercise of sovereignty itself or it is a multitude of individuals. Disagreements, moreover, between the sovereign and individual subjects, cannot be regarded as a special case of disagreements between one subject and another. In the former case, who is to judge and whence will be derived a determinate interpretation of law by which the problem may be resolved ? T o those who dislike this conclusion, Hobbes can only reply that the existence of an agent outside the framework of civil law is a condition of sovereignty, and that the exercise of 1 Leviathan, E.W., vol. 3, p. 208. * Ibid., p. 322. The case of a sovereign assembly is complicated by the fact that when it is once suppressed it is itself extinct, and itsrightperishes, making necessary afreshbeginning for a new exercise of sovereignty.


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sovereignty is a condition of society. To those who regard this as too great a price to pay for society, Hobbes offers the consolation that the exercise of sovereign power causes less harm than civil war,1 or more profoundly perhaps, that it cannot be avoided. And whosoever thinking sovereign power too great, will seek to make it less, must subject himself, to the power, that can limit it; that is to say, to a greater.2 1

See, e.g., Leviathan, E.W., vol. 3, p. 170.

2

Ibid., p. 195.

IX S E L F - I N T E R E S T

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H E question of why the citizen should obey the civil law may be answered in two very different ways. One type of answer would describe what would be an adequate motive for the citizen in the performance of this obedience; the other would present the grounds of political obligation. Hobbes provides a number of answers to this question, but one of the most difficult tasks in the interpretation of his doctrine is to separate those answers which concern motives from those which concern grounds of obligation, and to establish the relationship which holds between them. It will be an initial contribution towards the solution of this problem, however, if the part played in Hobbes's theory by self-interest and self-preservation can be made apparent. The discussion of both self-interest and self-preservation is complicated by the fact that the relevant calculations of the individual agent may be made from two distinct perspectives. The agent may consider his own interest in terms of the pleasures and pains, rewards and punishments that are likely to accrue to him in his life on earth: he may also balance his estimate of his own interest, however, in terms of the eventual rewards and punishments of God in some future life or in some final reckoning. Likewise, he may be concerned with his own preservation, meaning by this his biological survival; or meaning eternal life or ultimate salvation. Although the one type of calculation does not necessarily exclude or impede the other, it is unprofitable to confuse them. In the present chapter, therefore, self-interest and self-preservation will be considered in isolation from the factors introduced by Hobbes's account of the ultimate operations of God upon the individual in a life to come, and will be concerned with mundane benefits

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and physical survival. The unexamined parts of this problem are taken up in turn, in subsequent chapters which deal with the place of God and the role of salvation in Hobbes's theory.1 Much of the difficulty regarding the part played by selfinterest in Hobbes's doctrine, arises from his insistence that covenants without the sword are but words, or that law without its sanction is futile. This insistence encourages the assumption that according to Hobbes, the reason why the citizen ought to obey the law is that it can be shown to be in his interest to do so if the penalty prescribed by the law is taken into account. Neglecting considerations arising from the eventual punishments of God, however, it seems reasonably certain that this is not Hobbes's answer, but that self-interest bears a more complicated relationship to obedience than such an assumption allows. Hobbes regards law without sanctions as vain, but he does not say that such law is necessarily invalid, nor does he confuse the law with its sanction, though he is often accused of having done so. In this respect, Hobbes makes a distinction between that part of the law which commands or prohibits an action and which is addressed to all citizens, and that part which lays down a penalty for breach of the law and is addressed as a command to the magistrates alone. But in vain do they . . . prohibit any men, who do not withal strike a fear of punishment into them. In vain therefore is the law, unless it contain both parts, that which forbids injuries to be done, and that which punisheth the doers of them. Tbe first of them, which is called distributive, is prohibitory, and speaks to all; the second, which is styled vindicative or penary, is mandatory, and only speaks to public ministers.1 1

See below, Chs. X I I and X I I I . De Cive, E.W., voL a, p. 189. See also ibid, pp. 65-66. It is not necessary, on Hobbes's view, that the penal provisions should always be explicitly stated, for every civil law has a penalty annexed to it, explicitly or implicitly. Where the penalty is not defined, either in the law or by the example of a case previously decided, the penalty is understood to be arbitrary and to depend upon the will of the sovereign. (See ibid., p. 189.) 1

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He expands his statement on this point in De Corpore Politico. And from the difference of the persons to whom the law appertaineth, it proceedeth, that some laws are called simply laws, and some penal. . . . Now in those laws, which are simply laws, the commandment is addressed to every man; but in penal laws the commandment is addressed to the magistrate, who is only guilty of the breach of it, when the penalties ordained, are not inflicted; to the rest appertaineth nothing, but to take notice of their danger.1 What obliges the citizen, therefore, is the general command or prohibition of the law; the penal provisions may serve as a warning to him, but oblige only the magistrate who must impose them. Hobbes relies again upon the same distinction when he separates the sin of breaking the law, from the retribution exacted by it. There are some who think that those acts which are done against the law, when the punishment is determined by the law itself, are expiated, if the punished willingly undergo the punishment; and that they are not guilty before God of breaking the natural law, (although by breaking the civil laws, we break the natural too,...), who have suffered the punishment which the law required; as if by the law the fact were not prohibited, but a punishment were set instead of a price, whereby a license might be bought of doing what the law forbids. By the same reason they might infer too, that no transgression of the law were a sin; but that every man might enjoy the liberty which he hath bought by his own peril.2 He complicates the issue at this point, it is true, by introducing as a further possibility the notion that the law may have a conditional sense and may be a command to the effect that the individual shall not do some action unless he will suffer punishment,3 but he concludes in general, nevertheless, with 1

De Corpore Politico, E.W., vol. 4, p. 224. De Cive, E.W., vol. 2, pp. 201-2. 3 Hobbes suggests that the law could be conditional; in this event the citizen does not sin if he accepts, but only if he evades, the punishment, because granted his acceptance of the penalty, he has not done what is forbidden him. But in what sense the law is to be taken depends upon the will of the sovereign. This 1

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ao3

a rejection of the idea that those do not sin, who sin at their own peril. That there is a problem involved in breaking the law, quite distinct from the punishment it may invoke, is further corroborated by Hobbes's contrast between command and counsel. Command is issued for the benefit of its author, and Hobbes states that the reason for its being obeyed is that it is the will of the person who commands; counsel, on the other hand, is an injunction to do or to forbear some action for reasons derived from the benefit of the action to the person advised. Therefore between counsel and command, one great difference is, that command is directed to a man's own benefit; and counsel to the benefit of another man. And from this ariseth another difference, that a man may be obliged to do what he is commanded; as when he has covenanted to obey: but he cannot be obliged to do as he is counselled, because the hurt of not following it, is his own; or if he should covenant to follow it, then is the counsel turned into the nature of a command.1 It is not obvious that law should be directed necessarily to the benefit of its author, it is true, and Hobbes gives a more acceptable formulation elsewhere, perhaps, when he holds that it is directed to the end or purpose of the lawgiver. notion of the law as not simply prohibiting, but only as prohibiting the individual to do x and evade the penalties would still not imply that he ought not to break the law because of the penalty, as it simply affects the question of whether or not he has broken the law. This is, however, very much a minority view in Hobbes's theory and hardly upsets the main point. There is a further instance of the separation between the sin involved in doing an action prohibited by the law, and the punishment prescribed by the law, in Hobbes's statement on treason. The subject who renounces the political covenant, renounces all the civil laws at once and commits a more grievous sin than he would in breaking some of the civil laws themselves, for he commits treason by the natural and not the civil law. The sovereign may himself, however, declare by law that it shall be accounted treason to do certain other actions (coin money, &c.). In this case, he that after this declaration does these things is then just as guilty of treason as the rebel. But he sins less, because he breaks not all the laws at once, but one law only. For the law by calling that treason which by nature is not so, may set a more grievous punishment on the guilty persons, but it does not make the sin itself more grievous. De Cive, E.W., vol. 2, pp. 199-200 (paraphrased). * Leviathan, E.W., vol. 3, p. 241- See also ibid., p. 244.

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To follow what is prescribed by law, is duty, what by counsel, is free-will. Counsel is directed to his end, that receives it; law, to his that gives it. Counsel is given to none but the willing; law even to the unwilling. . . . [etc.].1 The main distinction, nevertheless, remains between law or command on the one hand, and counsel on the other. But if the reason why I ought to obey the law were the self-interest involved in avoiding the punishment enforced by the sovereign for breach of it, such a distinction would lose point. Considered in this light, laws would be essentially rules for gaining rewards or avoiding penalties, and hence sufficiently similar to principles of counsel as hardly to justify a theory which stresses the obligatory character of the one and the optional character of the other. Likewise, Hobbes's contention that the individual cannot be obliged to do as he is counselled because the hurt of not following it is his own, could be applied to the law also unless great weight were placed upon minor differences. Again, if we neglect the complications which may arise from the possibility of divine punishment, the thesis that I ought to obey the law because of the civil penalty would make it impossible to explain Hobbes's account of obligations in faro interno. As indicated above,2 Hobbes's doctrine may be said to involve a duty to act with the intention of fulfilling the law and not merely to act in accordance with it. The civil law itself, however, cannot take note of men's inner thoughts and beliefs where these do not issue in external actions of any kind. But the obligation to obey natural law in Hobbes's State of Nature, and that law in the civil state where it is the selfadministered natural law and not the official version of the sovereign, would appear to include, not only an obligation to obey this law, but an obligation to obey all law with the intention of doing so.3 Thus the citizen who obeys the civil law or the natural law by accident or through some mistake may be 2 P l8 1 3 Cf ' " 3See above, pp. 5 7 - 5 8 , 6 7 - 7 3 . H * - * - , above at pp. 57* \ ^ t a x i e n t s a l * > « contempt of the law or the legislator, noted

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regarded as inadequate, though he is at this point a sinner and not a criminal, as he has satisfied the civil law itself and that part of natural law that is contained therein. But for sins that are not crimes, there is no penalty imposed by men, and such a penalty cannot therefore be adduced as a reason why these obligations should be respected. The reason why the individual ought to obey the civil law is, in the first place, that he has covenanted to do so, and not that the punishments of the sovereign bring it about that obedience is in his interest. This is made more evident by Hobbes in a passage where he distinguishes between the citizen's being obliged to obey the covenant for its own sake, and 'being tied being obliged', or being compelled by the sanctions of the civil law to honour his obligations. Contracts oblige us; laws tie us fast, being obliged. A contract obligeth of itself-, the law holds the party obliged by virtue of the universal contract of yielding obedience. This statement is expanded in a footnote: To be obliged, and to be tied being obliged, seems to some men to be one and the same thing; and that therefore here seems to be some distinction in words, but none indeed. More clearly therefore, I say thus: that a man is obliged by his contracts, that is, that he ought to perform for his promise sake; but that the law ties him being obliged, that is to say, it compels him to make good his promise for fear of the punishment appointed by the law.1 In any event, an interpretation of Hobbes's doctrine which presented as the reason why the citizen ought to obey the law, the avoidance of the civil penalty, would have to accommodate Hobbes's position in two further respects. As we have seen, he maintains that the punishments of the sovereign could be regarded simply as acts of hostility apart from a prior obligation upon the subject to obey his commands, and it may or may not be in the interest of the subject at any time to suffer, resist, or evade such hostile actions.2 If the reason why the * De Cive, E.W., vol. 2, p. 185. See also L.W., voL 2, p. 314 n. Leviathan, E.W., vol. 3, pp. 323~4~ See above, pp. 146-50.

4

206

S E L F - I N T E R E S T AND

citizen ought to obey the law were the avoidance of the penalties administered by the sovereign, this distinction between punishment and act of hostility would lose its point as both would bear the same relationship to the interest of the citizen. Difficulties would arise also from Hobbes's contention that a just man does not obey the law through fear of its sanctions. . . . But that man is to be accounted just, who doth just things because the law commands it, unjust things only by reason of his infirmity; and he is properly said to be unjust, who doth righteousness for fear of the punishment annexed unto the law, and unrighteousness by reason of the iniquity of his mind.1 Since we have argued elsewhere2 that the individual is not obliged to be a just person, this passage cannot be adduced here as directly refuting the thesis under consideration. But it is, nevertheless, the case that if the ground of obligation in Hobbes's theory is taken to be the self-interest involved in avoiding civil penalties, the relationship between his theory of obligation and his account of the justice of persons will have to be regarded as extremely complicated. For a number of reasons, therefore, there would appear to be a moral problem involved for Hobbes in breach of the law, quite apart from the self-interest which is implicated in the civil sanctions supporting it. Such a conclusion, however, still leaves unexplained the importance which Hobbes did assign to the sanctions administered by the sovereign. Is it simply that the subject has a duty to obey the law upon other grounds, but that the unjust subject may neglect these considerations, and that Hobbes is concerned to persuade him to obedience by an argument at second level? It has often been suggested that this is in fact Hobbes's purpose, and that he is trying to show that, apart from being a duty, obedience is also in the interest of the citizen, with the hope that those who will not be converted by a statement of their obligations will at least succumb to a demonstration of their interest. ' De Cive, E.W., vol. 2, p. 33. See also ibid., p. 197. See above, pp. 87-93 and below, pp. 289-92.

1

SELF-PRESERVATION

2o7

Such an explanation is, however, improbable. Having said so much about the difference between obligation and selfinterest, and about the necessity of intending to obey the law as apart from merely performing the actions prescribed by it, it is unlikely that Hobbes would have been so concerned with the sanctions of the law, unless his contention were more serious. His statement is that without sanctions the law would be vain. This consequence is of general application, and covers more intimate connexions between punishment and obligation, than those provided by a second-order defence of obedience for the unjust man who neglects his obligations. Even the person who is concerned to discover and to fulfil his duties will find that these duties are affected by the sanctions of the law. i. No man is obliged to act in foro externo where there is not adequate security against his neighbours and where he may honestly regard himself as endangered by fulfilling the law. The provision of this security by the punishments of the sovereign is therefore a condition of obligation generally for external action in accordance with the law. The same is true of covenants also. It is not simply that the punishments of the law compel the individual to the performance of covenants to which he is already obliged, but that these sanctions provide the security which is a condition of his being fully obliged to meet his promises. In other words, it is not a case of using the argument of sanctions where the argument of obligation has failed; Hobbes's knowledge of political power was sufficient to show him the futility of such a manoeuvre. It is a case where the argument of obligation presupposes sanctions in some circumstances: those situations in which 'sufficient security' is a validating condition of obligation, and in which this validating condition cannot be satisfied without sanctions. It is not enough to obtain this security, that every one . . . do covenant with the rest. . . not to steal, not to kill, and to observe the like laws; for the pravity of human disposition is manifest to all, and by experience too well known how little (removing the punishment) men are kept to their duties through conscience of their promises. We must therefore provide for our security, not

2o8

SELF-INTEREST

AND

by compacts, but by punishments; and there is then sufficient provision made, when there are so great punishments appointed for every injury, as apparently it prove a greater evil to have done it, than not to have done it. For all men, by a necessity of nature, choose that which to them appears to be the less evil.1 These sanctions are necessary because men cannot be sufficiently relied upon to perform their duties through 'conscience of their promises', and until this defect is compensated, obligations cannot be fully operative for anyone. 2. A second connexion between duty and interest arises from Hobbes's theory of the motivation of voluntary actions. Although Hobbes requires that the individual shall not only obey the law, but shall also intend to do so, he does not regard the idea of duty as constituting in itself an adequate motive for action. Reason does, it is true, supply the individual with a knowledge of natural law, and if he is otherwise motivated to seek peace he may follow these principles, but reason remains essentially the slave of the passions, in that it is concerned with means to their satisfaction and not with ends. The voluntary actions of all men have as their object, according to Hobbes, some good or the avoidance of what is hurtful to the agent.2 It appears that by a necessity of his nature, man is compelled to choose that course of action which seems best for himself out of the alternatives before him ; 3 that is presumably with the state of his knowledge and the stage in his deliberation obtaining at the time when he acts. It i s . . . manifest, that all voluntary actions have their beginning from, and necessarily depend on the will; and that the will of doing or omitting aught, depends on the opinion of the good and evil, of the reward or punishment which a man conceives he shall receive by the act or omission: so as the actions of all men are ruled by the opinions of each.. . .* Since Hobbes holds all actions which the individual is 1 1 3 4

De Case, E.W., vol 2, p. 75. See also ibid., pp. 63, 65-^6. See Leviathan, E.W., voL 3, p. 120. De Corpore Politico, E.W., vol 4, p. 83; De Cive, E.W., voL 2, p. 7SDe Cive, EAV., vol. 2, p. 78.

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obliged to perform to be possible for the agent as voluntary actions, it follows that all obligatory actions must be at least capable of being regarded by the individual concerned as in his best personal interest. Otherwise he cannot be said to be obliged.1 It is clear that the sanctions of the civil law provide an immediately apparent motive for the citizen to obey the law rather than to disregard it, for the fact that obligation is in his interest may not otherwise be obvious to him. It must, however, be possible for Hobbes to show eventually that there is an adequate motive to obey the civil law apart from that provided by these sanctions, if we are to insist upon the obligation as being prior to the sanction. It would appear that when the ultimate operations of God are taken into account at least, there is a sufficient motive of this sort,2 provided that men address their minds properly to the problem. Apparently, however, there are insufficient of such men at large, or we cannot depend upon there being so, and in any event sudden passion in all men may hinder deliberation. In consequence, the visible deterrents of the law are needed to provide the security, without which obligations cannot become fully operative for anyone. The moral man may not require these sanctions as a motive to obedience in his own case, but he does require them as they provide a motive for his less moral neighbours, for it is in the provision of such a motive that his own security consists. Although Hobbes maintained that the individual would do that which seemed to him to be in his best interest at the time of acting, he does not appear to have been a psychological hedonist. He maintains consistently that . . necessity of nature maketh men to will and desire bonum sibi, that which is good for themselves, and to avoid that which is hurtful;.. ' 3 1 Although Hobbes is primarily concerned with the actions of the citizen, he attempts to show in addition that the actions which the sovereign is obliged to perform are in the sovereign's interest. See, e.g., De Carpore Pohtuo, H.W., vol. 4 > pp. 2 1 3 - 1 4 . This question is discussed below at pp. 272-7. 3 De Corpore Politico, E.W., vol. 4, p. 83.

5774

p

21O

SELF-INTEREST AND

But good and evil were not regarded by him as being simply equivalent to pleasure and pain. One of the reasons given for the fact that there is no natural concord among men is the relative complexity of their ambitions compared with those of some irrational but social creatures who are concerned entirely with pleasure and pain. The bees, for example, have no conception of right and wrong, but only of pleasure and pain, and therefore also no censure of one another, nor of their commander, as long as they are themselves at ease; whereas men that make themselves judges of right and wrong, are then least at quiet, when they are most at ease.. . . natural concord, such as is amongst those creatures, is the work of God by the way of nature; but concord amongst men is artificial, and by way of covenant.1 The goal of men's actions as far as realization of it in this life is concerned, is not a state of beatitude, but a restless and continuing satisfaction of desires, where felicity is always to be found in prospering rather than in having prospered.2 This is not merely a search for pleasure and ease from pain, but also a struggle for power and self-expression in which men measure their success by comparison with others. In this, they are to be contrasted with those creatures who are social by instinct. Men differ as compared one with another in what they regard as good and evil, according to their different desires. Hobbes contends, however, that all men will agree in regarding death as the greatest evil that can befall them as far as this life is concerned. Physical preservation, therefore, becomes for each man the supreme motive of action in so far as he is not affected by thoughts of God and eternal salvation. Neglecting the latter consideration, if Hobbes is to maintain that 'ought' implies 'can' and that the idea of duty is not itself a motive sufficient to ensure its performance, he must, in consequence, 1

De Corpore Politico, E.W., vol. 4, p. 121. See, e.g., Leviathan, E.W., vol. 3, p. 51. 'Continual success in obtaining those things which a man from time to time desire th, that is to say, continual prospering, is that men call F E L I C I T Y ; I mean the felicity of this life. For there is no such thing as perpetual tranquillity of mind, while we live here; because life itself is but motion, and can never be without desire, nor without fear, no more than without sense ' See also Human Nature, E.W., vol. 4, p. 53. 2

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be able to show that the individual can regard the performance of his duty as the best means to self-preservation; and this he attempts to do. This does not mean that what are duties for the individual will always and immediately appear to him as means to selfpreservation, but that given the proper use of reason, adequate knowledge, and sufficient deliberation on his part, they will appear to be so. Man is basically a creature of passion, but there is a great deal of difference between acting from blind passion, and acting from passion rationally informed, and Hobbes provides for this difference in taking an important step in his argument. Every man by natural passion, calleth that good which pleaseth him for the present, or so far forth as he can foresee; and in like manner, that which displeaseth him, evil. And therefore he that foreseeth the whole way to his preservation, which is the end that every one by nature aimeth at, must also call it good, and the contrary evil. And this is that good and evil, which not every man in passion calleth so, but all men by reason. And therefore the fulfilling of all these laws is good in reason, and the breaking of them evil. And so also the habit, or disposition, or intention to fulfil them good; and the neglect of them evil. And from hence cometh that distinction of malum poenae, and malum culpae\ for malum poenae is any pain or molestation of the mind whatsoever; but malum culpae is that action which is contrary to reason and the law of nature: . . .» This distinction made by Hobbes between the general pleasure and pain from which the unthinking man acts, on the one hand, and rational foresight of damage on the other hand, goes far to explain his account of fear. On some occasions, Hobbes states that the passion to be reckoned upon is fear, and appears to suggest that morality is based upon fear of violent death. Elsewhere, however, he deprecates fear as the unworthy motive of the unjust person, and denies that it can release the individual from his obligations. In this connexion, it has been alleged that there are 1

De Corpore Politico, E.W., vol. 4, pp. 109-10.

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two kinds of fear to be found in Hobbes's account; the fear of death which is informed with rational insight and which is identical with the sense of duty; and the fear which is panic or unthinking reaction to uncertain evil. Only rational fear is justifiable as the basis of society; the more instinctive fear is unworthy and can never be an excuse for the omission of a duty. In a commonwealth, it is true, the law must be enforced by sanctions because most men are not guided by reason but by immediate prospects of pleasure and displeasure, but the essential justification of civil society is conducted in terms of a morality based upon rational principles of self-preservation and is not a gospel of fear in the ordinary sense.1 This topic has been discussed at length, particularly by continental commentators upon Hobbes's writings, and need not be recounted in detail. Its value lies in emphasizing the fact that Hobbes's theory of fear is more refined than may be immediately apparent. It has not always been equally appreciated, however, that it does not, as such, supply a key to Hobbes's theory of obligation. Although a rational fear of death on the part of the individual is the basis of morality in that it makes society possible, this does not constitute the ground of his obligation to obey natural or civil law. The laws of nature, that command the individual to seek peace, keep covenants, &c., are from one point of view rational maxims for self-preservation; and one answer to the question of why the citizen should obey the civil law, is that obedience constitutes the best means to his preservation, short of the limiting cases, such as where his life is actually to be taken by the State, at which his obligation ceases.2 This answer, given in terms of self-preservation, however, is concerned with motive and not with obligation. Hobbes contends that the laws of nature considered as rational principles are principles of prudence or theorems regarding what pre' See, e.g., Z . Lubienski, 'Hobbes* Philosophy and its Historical Background', Journal of Philosophical Studies, vol. v (1930), pp. 183 ff. See also L . Strauss, The Political Philosophy of Hobbes, passim. R. Polin, 'LeBienetleroal dans la philosophic de Hobbes', Revue Pkilosophiqut de la France, 1946, PP389-321. 1 See above, pp. 114-18.

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serves men, but this consideration does not ensure their obligatory character; it is only in their aspect of being commands of God that they are laws and hence oblige.1 Thus, the reason why I can do my duty is that I am able (with adequate deliberation, &c.) to see it as a means to my preservation; but the reason why I ought to do my duty is that God commands it. The ground of obligation therefore is God's command; but God's commands oblige only on conditions, and one of those conditions is that the individual shall be capable of having a sufficient motive to do his duty. On Hobbes's hypothesis regarding human motivation, this means that it must be possible to reconcile duty with a rational principle of self-preservation. Self-preservation, in consequence, is what We have termed a validating condition of obligation and not a ground of obligation. In other words, it is not true that I am obliged to do 'x' (my duty) because 'x' will preserve me; but it is true that I cannot be obliged to do 'x' if 'x' will destroy me; taken by itself, a rational principle of self-preservation belongs only to the theory of what the individual cannot be obliged to do, and becomes pertinent to obligation only in conjunction with a ground of obligation deriving from another source. At this stage of the argument, we are left, therefore, with two systems in Hobbes's theory, a system of motives and a system of obligations. The system of motives ends with the supreme principle of self-preservation, based on the fact that all men will regard death as their greatest evil; the system of obligations ends with the obligation to obey natural law regarded as the will of God. It could of course be the case that Hobbes intended self-preservation to be not merely a validating condition of obligation, but also in fact a duty. In that event, the individual would be obliged to preserve himself, but he would be obliged to do this because God commands it, and not because the content of his command is such as it is. It will be worth while to examine Hobbes's theory further from this point of view. It would appear that self-preservation is a right, according 1


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to Hobbes, in the same sense as he uses the term when describing the right to all things, or rights of nature, or the 'true liberties' of the citizen; that is that it is something the negation of which the individual cannot be obliged to perform. In his treatment of obligations to obey both the natural and the civil law, Hobbes consistently upholds the view that the individual cannot be obliged to destroy himself or not to resist mortal danger.1 T o be obliged to do so would be to be tied to an impossibility, for self-preservation is what Hobbes describes as a right received from the uncontrollable dictates of necessity, for man shuns death 'by a certain impulsion of nature, no less than that whereby a stone moves downward'.2 Granted, however, that the individual cannot be obliged to acquiesce in his own destruction, is he on the other hand obliged to preserve himself? Although there would be nothing illogical in maintaining that both propositions were true, Hobbes does say with regard to rights in the sense relevant here that they exclude duties, and that the individual cannot have both a right and a duty in the same thing, for a right implies liberty to choose to do or not to do, whereas a duty binds to one of these alternatives. This would give at least a presumption against there being a duty to preserve oneself. Since Hobbes has often been regarded as assuming such a duty, however, or even as deriving all other duties from this source, it is pertinent to consider in more detail the passage in which he introduces his description of the laws of nature. THE RIGHT OF NATURE, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing any thing, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto.

Hobbes proceeds to explain what he means by this liberty. By LIBERTY, is understood, the absence of external impediments: which impediments, may oft take away part of a man's 1 See, e.g., Leviathan, E.W., vol. 3, pp. 120,127-8, 208,297; De Cive, E.W., 2 toL 2, pp. 39, 68, 82. See De Cive, E.W., voL 2, pp. ii, vii, 8-9, 25.

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power to do what he would; but cannot hinder him from using the power left him, according as his judgment, and reason shall dictate to him.1 A question arises here concerning what Hobbes means by the absence of external impediments. Liberty can mean here either (i) the absence of impediments of a purely physical character, in which case I have liberty in all cases where I am not physically prevented from action; this would also mean that I have liberty even in actions which the law forbids; or, (ii) the absence, in addition, of legal or moral impediments. Liberty in this sense would be legal or moral as well as physical and more in accordance with the normal use of the term 'right'. Although, in the passage quoted above, Hobbes seems to be thinking in terms of the first case rather than the second, his subsequent statements require us to adopt the meaning of the second case. A LAW OF NATURE, lex naturalis, is a precept or general rule, found out by reason, by which a man is forbidden to do that, which is destructive of his life, or taketh away the means of preserving the same; and to omit that, by which he thinketh it may be best preserved. For though they that speak of this subject, use to confoundjus and lex, right and law: yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear; whereas LAW, determineth, and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same matter are inconsistent.1 Here, evidently, liberty is not simply the absence of physical impediments but of obligation. Hobbes then recounts how the condition of man in the State of Nature is a condition of war, in which a man may use any device he thinks best in preserving his life and because anything may be a help to him in this, he has a right to everything. There can be no security in this arrangement; it is, in consequence, on Hobbes's view, • • . a precept, or general rule of reason, that every man, ought to ' Leviathan, E.W., voL 3, pp. 116-17.

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endeavour peace, as far as he has hope of obtaining it; and when h cannot obtain it, that he may seek, and use, all helps, and advantag of war. The first branch of which rule, containeth the first, and fundamental law of nature; which is, to seek peace, and follow it. The second, the sum of the right of nature; which is, by all means we can, to defend ourselves.1 Now Hobbes describes the fundamental law of nature as 'seek peace' and the right of nature as 'defend ourselves'; likewise his precept or general rule of reason is that men ought to endeavour peace where it is possible; and when that is impossible that they may use the advantages of war. If selfpreservation were meant to be taken as the principal duty of each individual, one would expect Hobbes to have regarded the precept that we should defend ourselves as a law and not a right, and that we ought to use the advantages of war where peace is unobtainable. As his words stand, however, the fundamental law of nature is not 'preserve thyself', but 'seek peace', and the further laws of nature are derived from the latter precept. Hobbes often speaks of the right to preserve oneself in danger as a part of natural liberty, and he further holds that natural liberty is not constituted but allowed by the law. If this natural liberty is then restrained (though not in respect of sheer self-defence) by the natural and then the civil law,2 selfdefence would appear to be allowed, but not commanded by the law. Although at times, therefore, Hobbes describes the laws of nature as precepts by which a man is, forbidden to do that which is destructive of his life, he would appear to have stated his position more accurately on those occasions where he refers to these laws as articles of peace, or principles for the constant preservation of life or for the conservation of men in multitudes.3 If this conclusion is justified, 'preserve thyself' plays the part of the supreme motive for the individual but 'seek peace' is his supreme duty. The seeking of peace will of course also preserve the individual, otherwise he may not be 1 Leviathan, E.W., vol. 3, pp. 1 1 6 - 1 7 . See also De Corpore Politico, E.W., vol. 4, pp. 222-3. * See, e.g., De Cive, E.W., vol. 2, pp. 185-6. 3 See above, p. 48; and below, pp. 274-7.

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motivated to do so, but where peace is impossible, he is allowed in the interest of his own preservation to take other measures such as the use of force and fraud, but Hobbes does not say that he is obliged to do so. If sheer physical selfpreservation were a duty, these devices would, presumably, where required, be obligatory. It is unfortunate with regard to the elucidation of this point that Hobbes does not give any full discussion of the problem of whether those who commit suicide are guilty of a breach of obligation, and if so, under what law they stand condemned. It is to be noted, however, that a reference is made in passing to this problem in the Dialogue of the Common Laws, and, though it is not by any means conclusive, the relevant passage may provide a useful guide to what Hobbes's answer would be. L[awyer]. He is a felon also that killeth himself voluntarily, and is called, not only by common lawyers, but also in divers statute laws, felo de se. P[hilosopher]. And it is well so; for names imposed by statutes are equivalent to definitions. But I conceive not how any man can bear animum felleum, or so much malice towards himself, as to hurt himself voluntarily, much less to kill himself. For naturally and necessarily the intention of every man aimeth at somewhat which is good to himself, and tendeth to his preservation. And therefore, methinks, if he kill himself, it is to be presumed that he is not compos mentis, but by some inward torment or apprehension of somewhat worse than death, distracted.1 [etc.] Hobbes's view here appears to be that if suicide is made illegal by the civil law, then it is to that extent a crime. But though he concedes that 'names imposed by statutes are equivalent to definitions', he throws doubt on the question of whether suicide is illegal at common law. As in this context Hobbes is taking the common law to be analogous to, if not identical with, natural law, we may, perhaps, conclude that he 1 A Dialogue of the Common Lazes, E.W., vol. 6, pp. 88-89- Hobbes will presumably allow for the exceptional case, where a man may will his death as necessary for eternal salvation. This is, however, a very special type of suicide.

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did not regard suicide, as such, as a breach of natural law. If his suggestion also that suicides are not compos mentis is true, it will of course be inappropriate for the sovereign to make suicide into a crime, but as we have seen elsewhere,1 this does not free the subject from his obligation to the civil law. It does, however, mean that the sovereign must make his reckoning with God for the punishment of innocent citizens. Apart from any law the sovereign might make, therefore, it does appear that suicide falls outside the commands of natural law, which is all that we require. If the fundamental principle which the individual is obliged to follow is one which enjoins peace rather than self-preservation as such, his duties are given a more social and less selfregarding appearance than is often associated with Hobbes's theory. It may be difficult, it is true, to regard all the duties which Hobbes stipulates as being social in character. One of the greatest obstacles to this view lies in the fact that in addition to the duties deriving from the principle of seeking peace, Hobbes suggests that there are other laws of nature, such as those forbidding drunkenness and intemperance, which tend to the destruction of particular men, but which he has ignored in his study of civil society.2 A case could be made, however, for the view that even these duties derive from considerations which affect others rather than the agent himself, in that apart from the social consequences of example, &c., a breach of these self-regarding duties undermines the rational faculty and hence the capacity to perform those duties which are derived from the principle of seeking peace. In support of this case, it may be adduced that in De Cive (though not in the other versions of his political theory), Hobbes introduces a twentieth law of nature which forbids the individual knowingly to weaken the rational faculty and he uses such an argument in order to show that drunkenness is a sin.3 That he would regard all duties, which are apparently concerned purely with the preservation of the agent, as capable ' See above, pp. 178-9. De Cive, E.W., vol. 2, p. 44.

1

- See Leviathan, E.W., vol. 3, p. 144.

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of being brought under the principle of forbidding actions that weaken the rational faculty, is perhaps unlikely. It may be remarked, nevertheless, that Hobbes is capable at times of deprecating sheer self-preservation in the physical sense to a surprising degree. His assertion, for example, that 'that which gives to human actions the relish of justice, is a certain nobleness or gallantness of courage, rarely found, by which a man scorns to be beholden for the contentment of his life, to fraud, or breach of promise',1 is hardly to be expected from a person who regarded it as a supreme duty to keep alive at any price. As we have seen, moreover, Hobbes conceded a right to a nonresistant martyrdom by the citizen in an extreme case, and even praised it or thought it a duty for some people.2 Quite apart from the question of duty, it may indeed be the case that Hobbes thought physical or biological self-preservation even considered as a motive, to be adequate only with qualifications. At one point in De Cive, for example, he appears to state that men are sometimes prepared to lose their lives (not to mention their peace) rather than suffer slander ; 3 elsewhere, in describing the passions that incline men to political society, he mentions not only fear of death, but also 'desire of such things as are necessary to commodious living' ;4 and often he maintains that seeking peace is not simply finding security for one's life, but a stable framework for living well. It is possible that men will react against their illogical and anarchical condition in the State of Nature because it makes their labour and their attempts at moral action largely fruitless, no less than because they run a high personal risk of violent death. Hobbes may not have been very far from this view. If the general interpretation given above is justified, Hobbes's doctrine concerning the relationship between self1

Leviathan, E.W., vol. 3, p. 136. See above, pp. 1 7 2 - 3 ; and below at pp. 273-7. 3 De Cive, E.W., vol. 2, p. 38. 'But because all signs of hatred and contempt Provoke most of all to brawling and fighting, insomuch as most men would rather lose their lives (that I say not, their peace) than suffer slander;... (etc.). Here the Latin version is less ambiguous: *.. . vitam, nedum pacem anuttere, • • (etc.), L.W., vol. 2, p. 188. See also Leviathan, E.W., vol. 3, P* See above, p. 48. 1

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interest and obligation may be summarized as follows. There is a class of voluntary actions, which are actions that men at various levels of enlightenment and deliberation regard as in their interest, though they may not of course be correct in their estimate at any particular time. These are the actions which men will do. Diverging from such actions in varying degree, there will also be a class of actions that are in fact in the interest of any given individual, as measured by the particular values which he strives to realize. These are the actions which the individual concerned would choose to do if he had sufficient knowledge and reflected adequately upon his problem, and may be described as actions for which he has a possible1 adequate motive. On the assumption that all men take self-preservation to be in their greatest interest, there will be a special sub-division of the class of actions that are in the interest of the individual, and this special sub-class will enter into the scheme for each man. These are the actions which tend to self-preservation, and where relevant to his situation they will be chosen by each man if he sees the whole way to this end without passion, and so are possible voluntary actions for him. This sub-class of actions, or rather those within this group that concern peace and not simply self-preservation for the individual by any means whatever,2 may be regarded by him as commanded by God, who is entitled to obedience. In that event, they are obligatory. Their obligatory character, however, depends upon their being commanded in this way and does not derive from their content as being conducive to peace or self-interest. A t the same time, the class of obligatory actions is always a sub-class of the actions that are in the interest of the individual. In this respect, self-interest or self-preservation serve as validating conditions but not as grounds of obligation. T h e obligatory character of the law has been traced, so far as 1 i.e. if the individual exercises sufficient knowledge and deliberation, he will have an adequate motive to perform the relevant action. On this point, see also below, Chs. X I I , X I I I passim. 1 See above, pp. 2 1 4 - 1 9 and below, pp. 274-5.

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this question has been examined, to an obligation to obey the commands of God. But it may be contended that selfinterest and self-preservation can be shown to have closer connexions with obligation than those considered above, if we inquire in turn why we are obliged to obey God. Such a question, however, introduces the problem of divine rewards and punishments, and though these may be more intimately connected with the ground of obligation than the rewards and punishments of the civil sovereign, they are of a different order. It is merely confusing to discuss fear of God's punishment, or the self-interest involved in obedience to God as an extension of the type of self-interest which has been under consideration. Likewise, the problem of eternal salvation cannot be taken simply as a special case of biological survival. These questions will therefore be discussed in a new context.

X C O V E N A N T

A N D

C O N S E N T

O B B E S ' S theory shows two instruments of obligation—law, whereby obligations are imposed upon the individual, and covenant, whereby the individual takes obligations upon himself by his own consent, though this consent may have been extracted, validly, by threat of death. Although we have described law and covenant, however, merely as means by which obligations are incurred, their function has important implications. An account of the respective scope offered to these two instruments in Hobbes's system will make apparent the structural pattern in the various obligations to which the individual is subject; and, as law has the character of being imposed as a command,1 whereas covenant is a species of promise dependent upon the consent of the person obliged, the relative status of these two instruments provides a key to the ground of obligation. Those who see in Hobbes's philosophy a strict theory of moral obligation are inclined, perhaps, to stress the element of covenant in this theory. Professor Taylor, for example, has argued that if Hobbes's ethical doctrine is disengaged from an egoistic psychology with which it has no logically necessary connexion, it foreshadows some of the characteristic theses of Kant,2 with this difference, inter alia, that Hobbes attempts to reduce the law from which the virtuous man acts, to the single law that a promise once duly made must be kept.3 Such a conclusion, however, particularly if it is expressed in terms of keeping promises as distinct from covenants, is

H

1 See, e.g„ De Corpore Politico, E.W., vol. 4, pp. 221-2. Also, De Cive, E.W., vol. 2, p. 183. 'They confound law and covenant, who conceive the laws to be nothing else b u t . . . forms of living determined by the common consent of men. Among whom is Aristotle,..(etc.). 1 The danger of emphasizing similarities between the philosophy of Hobbes and that of Kant is illustrated below at pp. 335-7. 3 A. E . Taylor, Philosophy, vol. 13 (1938), pp. 408-9.

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difficult to justify. Hobbes appears to suggest on some occasions, it is true, that all obligations flow eventually from some covenant made by the person obliged. In the Leviathan, for example, a statement is to be found which seems to carry this implication. . . . in the act of our submission, consisteth both our obligation, and our liberty, which must therefore be inferred by arguments taken from thence; there being no obligation on any man, which ariseth not from some act of his own: for all men equally, are by nature free.1 On other occasions, nevertheless, Hobbes appears to hold the view that all obligations derive from law, as for example when he maintains that where law ceases, sin ceases and when the civil law ceases, crimes cease.2 These apparent inconsistencies arise from the fact that in the different instances concerned, Hobbes is either discussing different spheres of action of the individual, or the means whereby he is obliged on different levels. It is possible, on his theory, for an action to be immediately obligatory because a law exists which commands it, and more ultimately so because, on a different level of generality, a covenant has been made which promises it, and vice versa. The external actions of the citizen are controlled immediately by the civil law, and the first answer to the question of why the citizen is obliged to do some actions and refrain from others is that the civil law or the declared will of the sovereign commands or forbids them. We are then led in turn to inquire why the citizen should obey the civil law or the will of the sovereign. The exercise of sovereign power and the punishments enforced by the sovereign are necessary for the efficacy of the civil law, and one reason which may be given as to why I should obey this law is that I should be punished if I failed to do so, or that it is in my interest to obey. As we have seen, ' Leviathan, E.W., vol. 3, p. 203. See also De Cive, E.W., vol. 2, p. Leviathan, E.W., vol. 3, pp. 278-9. See also ibid., pp. " 7 . 25 3 0 0 ' Behemoth, E . W . , vol. 6, p. 229. 2

COVENANT AND CONSENT

however, the obligatory character of the civil law does not derive, in any event immediately, from this f a c t whatever effect it may have upon motives. Although Hobbes regarded law without sanctions as inadequate, he distinguishes clearly between the law and its sanction, and in the case of the civil law, he traces the source of its obligatoriness to the political covenant of the citizen, and neither to the content of the civil law itself nor to the punishments appointed for its neglect.1 T o this point then, and with respect to the civil law, it is true that Hobbes does reduce the law from which the virtuous man acts, to the single principle that a promise, in this case the political covenant, must be kept. But the individual is subject to the divine as well as to the civil law. God governs the world, according to Hobbes, in three ways.1 1. A governance of all that exists, extending not only to man, but also to beasts and inanimate bodies; this is not, however, a governance by word and command, nor does it employ reward and punishment as a promise or threat, and it does not involve moral obligations. 2. A natural kingdom, wherein God governs men (excepting children, madmen, and atheists) by the natural dictates of right reason or natural law. 3. A prophetic kingdom, in which God governs also by his positive laws, but which extends only to the Jewish kingdoms of the past when they were governed by law interpreted by the prophets, and to the Christian who is obliged to observe, in some form, the record of God's will given in Holy Scriptures. As in the case of a commonwealth, membership of God's prophetic kingdom, and therefore an obligation to obey God's positive law, depends upon the covenant and consent of the individual. If it is granted that there is an obligation to obey God's will, the question still arises as to what that will is. A few people in history perhaps have personal revelations, and are obliged to carry out God's word as revealed therein.3 Apart from such exceptional cases, however, knowledge of 1

See above, pp. 200-6. > See, e.g., Behemoth, E.W., voL 6, p. 229.

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^

PP

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o. a83 85 " "


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God's positive law depends upon the acceptance of some prophet or scripture as authentic. The individual, in Hobbes's theory, is not obliged, however, to accept any such record received at second hand as being authentic unless he covenants to do so. It must be added, of course, that in so far as the individual is a member of a civil society and such record has been made part of the civil law by the sovereign he is also to that extent obliged. But here again, his obligation would flow from a covenant—in this case his promise to obey the civil law. There remains, however, God's natural kingdom, with its body of natural law which obliges all rational beings who accept the idea of an all-powerful God who governs the world. This law, unlike positive law divine or civil, is capable of being immediately known to all who use their reason, and its obligatory character does not depend upon any covenant by the individual to obey its dictates. Hobbes draws a distinction, for example, in describing the covenant of God with Abraham, between the obligations to obey God's positive law, contracted by covenant, and the prior obligation to obey natural law. For with him [Abraham] was the covenantfirstmade; wherein he obliged himself, and his seed after him, to acknowledge and obey the commands of God; not only such, as he could take notice of, (as moral laws,) by the light of nature; but also such, as God should in special manner deliver to him by dreams and visions. For as to the moral law, they were already obliged, and needed not have been contracted withal, by promise of the land of Canaan. Nor was there any contract, that could add to, or strengthen the obligation, by which both they, and all men else were bound naturally to obey 1 God Almighty: God governs his chosen people by covenant so far as his positive law is concerned, but his right to govern the natural kingdom derives from his power, and covenant and consent are not involved.

Now if God have the right of sovereignty from his power, it is manifest that the obligation of yielding him obedience lies on m 1

"74

Leviathan, E.W., vol. 3. P- 4 f i l a

COVENANT AND

CONSENT

by reason of their weakness. For that obligation which rises from contract,... can have no place here; where the right of ruling, no covenant passing between, rises only from nature. . . . [etc.]1 The view has often been taken, however, that Hobbes regarded natural law as applying only to Christians,2 and that the authority of such law is based by him either directly upon the authority of the Christian Scriptures or indirectly upon these Scriptures as certified by the civil sovereign. As either of these interpretations would be of critical importance in deciding the relative status of covenant and law in Hobbes's system, it is pertinent to add further support for the opposing interpretation presented above. W e have maintained that on Hobbes's theory, natural law binds in any event both Christian and non-Christian, provided that they believe in some sense in an omnipotent God who governs the world, and that the authority of this law is derived from God's omnipotence, being imposed upon such individuals as believe in it and in no way dependent upon their covenanting to observe such law. Although the Christian who has covenanted to obey God's positive law as revealed in Scripture, is obliged by natural law to keep his pledge, there is no obligation in the first place to covenant with God or to observe these Scriptures if one has not covenanted. Hobbes could hardly have provided any justification for going farther than such a statement, as he contended that although natural law and the existence of God (as omnipotent first cause) are known by reason, faith in supernatural law or in God as Christian lawgiver is a gift of God's grace and cannot therefore be a duty. Discussing evi' De Che, E.W., vol. 2, p. 209. See also Behemoth, E.W., vol. 6, p. I7°Hobbes makes a curious use of his position that natural law is prior to God's positive law and the covenant by which the individual is obliged to obey that law, in explaining the rights of men over the beasts. 'And this dominion is therefore of the law of nature, and not of the divine law positive. For if there had been no such right before the revealing of God's will in the Scripture, then should no man, to whom the Scripture hath not come, have right to make use of those his creatures, either for his food or sustenance. And it were a hard condition of mankind, that a fierce and savage beast should with more right kill a man, than a man a beast.* (De Corpore Politico, E.W., vol. 4, p. x 5 3 .) 1 For an example of such an interpretation see below, pp. 333-3.


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dences of God's will beyond the natural law which is known to reason, Hobbes maintains: For if the law declared, be not against the law of nature, which is undoubtedly God's law, and he undertake to obey it, he is bound by his own act; bound I say to obey it, but not bound to believe it: for men's belief, and interior cogitations, are not subject to the commands, but only to the operation of God, ordinary, or extraordinary. Faith of supernatural law, is not a fulfilling, but only an assenting to the same; and not a duty that we exhibit to God, but a gift which God freely giveth to whom he pleaseth; as also unbelief is not a breach of any of his laws; but a rejection of them all, except the laws natural.1 If he believed that natural law depended upon Christian Scripture, it is difficult to see why Hobbes should regard the unbeliever as rejecting Christian divine law, but not natural law. Again, in considering ignorance of the law as an excuse for a breach of it, Hobbes is led to contrast natural law with the civil law, and on the basis of the distinction he employs, any particular Scriptures would be in the same category as the civil law. • • . Ignorance of the law of nature excuseth no man; because every man that hath attained to the use of reason, is supposed to know, he ought not to do to another, what he would not have done to himself. Therefore into what place soever a man shall come, if he do anything contrary to that law, it is a crime. If a man come from the Indies hither, and persuade men here to receive a new religion, or teach them anything that tendeth to disobedience of the laws of this country, though he be never so well persuaded of the truth of what he teacheth, he commits a crime, and may be justly punished for the same, not only because his doctrine is false, but also because he does that which he would not approve in another,... But ignorance of the civil law, shall excuse a man in a strange country, till it be declared to him; because, till then no civil law is binding.2 In fact, if Hobbes had based the authority of natural law ' Leviathan, E.W., vol. 3, p. 273-

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IbiA

'


upon the authority of Christian Scriptures, he would have raised a further problem within his own theory. He gives to the civil sovereign the right to determine what are to be taken by the citizen as authentic Scriptures, 1 and as a source of authority the Scriptures then become in civil society like the civil law itself. But as Hobbes concedes, the general obligation of the citizen to obey the civil law cannot be imposed by another civil law commanding obedience, but must rest upon natural law. If the authority of natural law, however, is to rest in turn upon Scripture, the problem remains, for those who reject the civil law will also reject the sovereign's authentic interpretation of Scripture. And if this is set aside, what Scriptures are to be used and whose interpretation of them? If the interpretation by each individual of such Scripture as he accepts is taken, political obligation will rest on belief which has no necessary rational basis, whereas natural law itself is at least capable of being known to all men of right reason. Far from basing political obligation upon Christian Scriptures, Hobbes is able to give to the political sovereign such wide powers to interpret these Scriptures, because in his opinion, their significance is limited. When he discusses the problem of salvation, he contends that all that is required of the individual apart from obedience to law, is a belief in Christ that is so easily understood as not to need interpretation, and which is in any case internal and not a matter of public conformity in religious observances.2 The remaining (unnecessary) parts of Scripture can therefore be left to be interpreted by the sovereign and to be obeyed by the subject as part of the civil law, without prejudice to the subject's ultimate salvation. And when salvation is not in point, but simple duty, Hobbes appears to think that those who had no knowledge of Christian Scripture were not necessarily at a disadvantage. I confess, that for ought I have observed in history, and other writings of the heathens, Greek and Latin, that those heathens were - See, e.g., Leviathw, E.W vol. 3, pp. 426-7, 585-7; Behemoth, E.W., vol. 6, pp. 190, 221, 227-8. Also below, pp. 294-5 a . * See, e.g., Behemoth, E.W., vol. 6, pp. 232-3. Also above, pp. 170-6, and below, pp. 293 n-

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not at all behind us in point of virtue and moral duties, notwith1 standing that we have had much preaching, and they none at all Hobbes does, it is true, take some trouble to show that the Christian Scriptures enjoin political obedience and to reinterpret those biblical passages which seem to argue the contrary. But this is essentially an attempt to undermine the pretensions of the church or individual who would set up their own interpretation of true religion or their readings of Scripture as an argument against the exercise of political sovereignty;2 it is not Hobbes's proof of political obligation. Hobbes could hardly rest the moral position of sovereign and subject upon a document which could be given an authentic interpretation only by the sovereign. It would appear then that, while obligations to obey positive law, both civil and divine, spring from the covenant and consent of the person obliged, natural law cannot be regarded as positive law of either kind. Natural law, or more strictly that part of natural law which we have seen to be not a branch of the civil law, does not depend upon covenant for its obligatory force, but obliges all men of sound reason who take it as the command of an omnipotent God. This consideration sets a limit to the possibility of bringing all obligations in Hobbes's system under the principle of keeping covenants or promises. Had Hobbes wished to bring all obligations under such a principle, he could have made some modifications in his theory with comparative ease. The duties of the sovereign, for example, which are based upon natural law, could reasonably be given some basis on the principle of promise, by making the sovereign a party to the political covenant. Professor Taylor has pointed out that Hobbes was half-way towards this position in his insistence that for a covenant to be valid, it must be 'accepted' by the prospective sovereign3 though he is not 1

Behemoth, E.W., vol. 6, p. 243„ „ . . For after the Bible was translated into English, every man, nay. every >y and wench, that could read English, thought they spoke withGod AbmgH.tr, t . * . . . » .» r»ttr 1 £ M tnrt » 2

22


strictly a party to it. It has been maintained above that in any case Hobbes's sovereign by acquisition is a party to the covenant and that there are reasons to suppose that Hobbes would have been well advised to concede that his sovereign by institution was similarly placed.1 Other parts of Hobbes's theory, however, would have presented more difficulty. He would have had to discard the whole notion of the kingdom of God by nature, and to have regarded his natural laws as belonging to a kingdom of God by covenant. This would have left all non-Christians, who are outside the covenant, governed by God in the manner of atheists, beasts, and inanimate beings, and not by laws which impose moral obligations. It would have had the consequence of revising drastically the part played in obligation respectively by reason, power, and faith.2 It would also have raised the awkward problem that if all obligations derive from the principle that the individual must keep the promises which he has made, he who promises nothing has no obligations, and he who has promised has no obligations beyond those he has stipulated. An interpretation of Hobbes's doctrine that relies upon an affinity with that of Kant, moreover, is liable to be misleading in a further respect. It suggests not only that Hobbes's use of covenant is more comprehensive than it is, but also gives to the principle of promise-keeping, itself, a status that Hobbes's theory cannot accommodate. Hobbes appears to resemble Kant, it is true, in regarding breach of covenant as a form of contradiction in the will. . . . And there is some likeness between that which in the common course of life we call injury, and that which in the Schools is usually called absurd. For even as he who by arguments is driven to deny the assertion which hefirstmaintained, is said to be brought to an absurdity; in like manner, he who through weakness of mind does or omits that which before he had by contract promised not to do or omit, commits an injury, and falls into no less contradiction than 1 J

See above, pp. 125-40. See Chs. X I I I - X V , below.

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he who in the Schools is reduced to an absurdity. For by contracting for some future action, he wills it done; by not doing it, he wills it not done: which is to will a thing done and not done at the 1 same time, which is a contradiction It is to be noted, however, that Hobbes concludes that 'from these grounds it follows, that an injury can be done to no man but him with whom we enter covenant', and proceeds to draw his distinction between damage and injury. He does not deduce from the absurdity of a breach of covenant, the obligatory character of the principle that covenants should be kept, and nowhere in his writings does he suggest that the individual should keep his covenants because it would be a form of logical contradiction for him to break them. The rational character of the principle, keep covenants, is important in Hobbes's theory, not because it guarantees this principle as a moral imperative, but because it renders it knowable by natural reason, without any special promulgation. The laws of nature in Hobbes's theory, of which this principle is one, are, as we have seen,2 only theorems and not laws when considered simply as rational principles. It is only when considered as the commands of God or the commands of the civil sovereign that they take on the character of laws and constitute obligations. In other words, the rational character of the principle that covenants should be kept helps only to indicate to the individual that this is a natural law; it does not form the ground of its obligatory character. The law imposes obligations because it is the command of an agent entitled to obedience. In order to oblige, however, it must be known, and if it is to be known without promulgation, it must be known by reason and show a rational form. This rationality, therefore, is a validating condition of obligation in this case—a condition which must be satisfied before an obligation deriving from another source can operate, and has nothing to do with the ground of obligation itself. The immediate answer then to the question of why I should keep valid covenants, is that this principle is natural law and a 1 1

De Cive, E.W., vol. 2, p. 31. See also Leviathan, E.W., vol. 3, P- » 9 See above, pp. 97-98.


command of God—a place that it must share with a number of other laws of nature. If it is examined in its relationship to the remaining laws of nature, the principle of keeping covenant does not appear to hold the central position. It is true that at one point in the Leviathan, Hobbes suggests in passing that it is the most important principle,1 but when he is specifically considering the matter he never gives to it logical priority. The laws of nature are variously described as precepts forbidding what is destructive of a man's life,2 articles of peace,3 and conditions of society.4 What Hobbes describes as the first and fundamental of these laws is the principle, seek peace. From this law by which men are commanded to seek peace as far as may be possible, there follows a second law that a man should be willing when required for the sake of peace, to lay down his rights and be content with so much liberty himself as he would allow to others.s But it is necessary for the preservation of peace that if men agree to lay down rights, they should not subsequently break their agreements. And so if the second law of nature is to be effective, it must be supported by a further principle that men keep their promises or covenants. Such a principle, therefore, is regarded by Hobbes as the third law of nature, and as following from his second law.6 As indicated above, the laws of nature impose obligations because they are the commands of God, and considered merely as rational principles they are only theorems concerning selfpreservation. But even when regarded simply as a theorem, the principle of keeping covenants owes its place to, and is deduced from, the fact that peace or society would not be pos' Leviathan, E.W., vol. 3, p. 587. 'The laws of God therefore are none but the taws of nature, whereof the principal is, that we should not violate our faith, that is, a commandment to obey our civil sovereigns, which we constituted over us by mutual pact one with another ' » Leviathan, E.W., voL 3, pp. 1 1 6 - 1 7 . ' Ibid., p. 116. • De Cite, E.W., vol. 2, pp. 1 - 2 . » See, e.g., Leviathan, E.W., vol. 3, pp. I l 7 - l 8 . ibid., p. 130. We follow here the numbering of the laws of nature given in Leviathan.


223

sible without it, and not to the consideration that breach of covenant is a species of logical contradiction. He therefore that breaketh his covenant, and consequently declareth that he thinks he may with reason do so, cannot be received into any society, that unite themselves for peace and defence, but by the error of them that receive him; nor when he is received, be retained in it, without seeing the danger of their error; which errors a man cannot reasonably reckon upon as the means of his security:.. All societies, even those of thieves, presuppose that, to a significant degree at least, men will keep their agreements. It is with reference to a consideration of this sort that Hobbes is led to give an important, but nevertheless logically subordinate, role to covenants. Covenants oblige because they are necessary for the implementation of peace and society, or, in other words, the principle of keeping covenants has a moral status because it is natural law. But obedience to natural law, in Hobbes's theory, cannot itself be finally reduced to a case of keeping agreements. The individual has a duty to seek peace and to avoid acts of cruelty, for example, whether he has covenanted to do so or not. There is therefore some framework of law within which all covenants are made, and, as we have seen,2 Hobbes stipulates that if a covenant is to be initially valid, it must conform to that law. Even on such an estimate, however, the part played in Hobbes's theory by the principle of keeping promises has been overstated. Hobbes's third law of nature concerns covenants, and it is valid covenants which are always binding, and not promises as such. A covenant is, admittedly, a species of promise, but it is also something more. It is defined by Hobbes as an agreement in which there is a consideration or matter of benefit involved for both parties, and in which one or both parties are trusted to perform in the future. There are, therefore, always two principles operative in keeping covenants; that of keeping a promise and that of gratitude for the consideration involved. ' Leviathan, E.W., vol. 3, P- 134-

*

S e e above

'

PP

*

3

'"31'


Hobbes is prepared, it is true, to go beyond covenants and to discuss other types of promise, but although such promises are held by him to be sometimes obligatory, they are not obligatory in all cases. Thus, he allows that gifts may be made, but a bare promise to give something away at a future date does not, on his view, create an obligation to do so. Although such a case would normally be regarded as a genuine promise, Hobbes considers it to be 'an insufficient sign of a free-gift', unless, in addition to the words of the promise, it is supplemented by other signs of the will to transfer a right, and only then is the promise equivalent to a covenant.1 But if there be no other token extant of our will either to quit or convey our right, but only words; those words must either relate to the present or time past; for if they be of the future only, they convey nothing. . . . Nevertheless, although words alone are not sufficient tokens to declare the will; if yet to words relating to the future there shall some other signs be added, they may become as valid as if they had been spoken of the present. If therefore, as by reason of those other signs, it appear that he that speaks of the future, intends those words should be effectual toward the perfect transferring of his right, they ought to be valid. For the conveyance of right depends not on words, b u t . . . on the declaration of the will.2 In the account given in De Cive, Hobbes goes on to suggest that the 'other tokens of the will', which are required to make a promise of a future gift obligatory, are expectations by the donor of some eventual benefit to himself in the form of 'a mutual good turn without agreement.' Otherwise a person who promises a future gift must be supposed not to desire to have his words understood as obliging him. 'Nor is it suitable 1 See Leviathan, E.W., vol. 3, pp. 122-3. Hobbes adds, however, in the account given in Leviathan, an example of a promise of future gift that is obligatory. If a man propound a prize to him who comes first in a race, though the words are of the future, the promise obliges, for if the donor would not have his words so understood, he should not have let the contestants run. It is not clear from this example exactly what constitutes Hobbes's distinction between obligatory and non-obligatory promises; it may, however, be noted that in racing the ran testanw have given some quid pro quo (entertainment) to the donor. * De Ctte, E.VV,, vol. z, pp. 18-19.

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to reason, that those who are easily inclined to do well to others, should be obliged by every promise, testifying their present good affection.'1 Thus only some promises are equivalent to covenants and hence obligatory. In insisting upon an adequate declaration of the will, and in assimilating obligatory promises to covenants, Hobbes is moving from the principle that promises oblige towards the principle that benefits oblige. In the most important case of obligation incurred by covenant, the obligation of the citizen to obey the civil law, Hobbes likewise diminishes the element of promise involved by appealing on some occasions not merely to the words of the covenant, but to its purpose or the benefits it secures. 1. As we have seen, Hobbes took the view that the mere words of the political covenant, in transferring rights and authorizing all the actions of the sovereign, obliged the subject only to non-resistance; the subject was not thereby obliged to assist the sovereign in killing other men, for example, or in executing some dangerous or dishonourable office.2 The obligation, such as it may be, to execute a dangerous mission depends not on the words of submission, but on the intention of the covenant which, says Hobbes, is to be understood by its purpose. In considering this purpose, however, Hobbes does not ask what each man has in mind when he makes the covenant in order to find out what his 'real' promise must have been. He takes as the purpose of the covenant the maintenance of a political society, and the citizen is regarded as having a positive duty to secure this end. Thus Hobbes reaches his formula that when a refusal to obey frustrates the purpose for which sovereignty was ordained, there is no liberty to refuse; otherwise there is. If this purpose is the preservation of peace or society, it tends to replace the element of promise in determining the obligations of the citizen where these obligations exceed mere non-resistance. 2. Hobbes makes use also of the notion of 'tacit' covenant. 1

De Cive, E.W., vol. 2, p. 20. . , o„ c, Leviathan, E.W., vol. 3, pp. 437, 585; De Cive, E.W., vol. 2, BO vv' 78,299. * Liberty, Necessity, and Chance, E.W., voL s , p. 289. T h i passage is quoted in illustration of the efficacy of divine sanctions. In other respects however such passages from Hobbes's work can be misleading. The laws of nature themselves (seek peace keep covenants, &c.) never place a duty upon the individual that implies his death, since in circumstances of extreme danger, a 'safe' version of

677*

X

274

WILL, MOTIVE, AND THE

For the person who does not believe in God, however, or does not reflect about his ultimate judgement of men's conduct, the greatest sanction will be physical preservation, and this may be presumed to have a special significance for the believer also, though it remains for him secondary to salvation. Now there is, in Hobbes's system, an initial discrepancy between the duty and the interest of the individual, and again between private and public interest. This discrepancy is overcome only if divine rewards and punishments are posited, and without the sanction of salvation (or ultimate destruction) Hobbes's theory is incomplete. The individual acts naturally in such a way as to pursue what he considers to be his own greatest advantage, and in particular to preserve his own life. But there is no assurance that this type of action will automatically serve the interests of men in general. In fact man is initially (or naturally) antisocial, and Hobbes contrasts human society in this respect with that of such insects as the bees and ants, for 'amongst these creatures, the common good differeth not from the private; and being by nature inclined to their private, they procure thereby the common benefit'.1 For human society, however, an artificial harmony of interests has to be effected. It is clear that both the duty of the individual and the public interest are discharged through the observance of the laws of nature, but there exists a considerable gulf between these laws and the principles upon which Hobbes's natural man is motinatural law applies (see above, pp. 52-73). It is only with the kingdom of God by covenant and the introduction of God's positive law that such cases can arise, and even here, there is only a marginal possibility that the individual may have a duty of martyrdom if he cannot otherwise avoid committing idolatry. In many biblical instances quoted by Hobbes, however, the persons involved were the recipients of direct revelation of God's will (as opposed to reliance upon prophetical sources) and this imposed special obligations where danger was more frequently implied. But Hobbes takes the view that cases of revelation, in modern times at least, have been exceedingly rare or suspect, and, apart from biblical examples, this source of obligations is for practical purposes discounted by him. (See, e.g., Behemoth, E.W., vol. 6, p. 229.) Nevertheless, the fact remains that in the unlikely event of a conflict between physical preservation and salvation, the 1 Leviathan, E.W., vol. 3, p. 156. latter prevails.

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vated to action. Man shuns death 'by a certain impulsion of nature, no less than that whereby a stone moves downward',1 and yet the laws of nature are 'contrary to our natural passions' ;2 man is naturally egoistical, but the summary injunction of natural law is 'do unto others as you would be done by'. This gulf between natural law and the principles upon which selfinterest is pursued, is obscured by Hobbes on some occasions by the terms in which natural law is described. When he refers to the laws of nature, for example, as a body of precepts or general rules, 'by which a man is forbidden to do that, which is destructive of his life', he underemphasizes their universality, and describes them more appropriately where he calls them rational principles for the preservation of life, or for peace, or for the preservation of men in multitudes.3 The laws of nature which are pertinent to the doctrine of civil society, are not maxims for personal success, nor even personal rules for keeping alive. Apart from being the eternal and unchanging commands of God, they are general principles for the preservation of humanity. The convicted murderer, for example, who fights with his warders is not fulfilling natural law thereby; he is not performing a duty nor serving the public interest, but exercising a right; he cannot be obliged to abandon his life and may use what haphazard devices he can command in selfdefence. But natural law is not made up from this kind of principle; it enjoins men to seek peace, keep covenants, and so forth,4 and is concerned with the conservation of society or of men in general.5

constant

' De Cive, E.W., vol. 2, pp. 8-9. Leviathan, E.W., vol. 3, p. 153. 3 See above, pp. 48, 214-19. • See above, pp. 48-52, 212-21. 5 Hobbes does suggest, it is true, that there are some laws of nature relating to the preservation of particular men (laws forbidding drunkenness and intemperance, for example), but he regards such rules as falling outside the province of political philosophy. (See above, p. 75.) It may be observed, moreover, that even the laws concerning men as individuals may serve a social purpose in so far as their observance tends to preserve the rational faculty of the agent and a more faithful obedience to law in general (see above, pp. 218-19), and at least the duties they prescribe are not anti-social in character. Thus with regard to these laws also, it is possible to sustain a contrast between natural law and die expedients which the individual may find profitable to himself on a particular occasion. 2

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Thus, if the problem of obedience to natural law is regarded from the point of view of the motivation of a self-interested individual, it will be apparent that there are many occasions upon which such an individual could equivocate. It might well be to his immediate personal advantage to break this law. The sanctions of the civil sovereign, it is true, will go some way towards ensuring that crime does not pay in the long run, but the individual may hope to escape the vigilance of the civil magistrate. In any case the relative power of men may only be discoverable by battle, and rebellion is sometimes successful. Only the punishments of God, whose wrath cannot be escaped, are capable of providing an adequate sanction, and of effecting a reconciliation between duty and interest. Against the citizen who attempts rebellion it can be objected in the first place that such action is a breach of duty, but Hobbes goes farther and tries to show that it is also against his own interest. The reasons given by him for this conclusion may be summarized as follows: (i) the subject cannot rely upon being successful; (2) breach of faith teaches others in turn to use similar methods; and (3) the subject prejudices his salvation.1 It is evident that only the last of these reasons is conclusive; the rest is merely cautionary advice to those who might think that rebellion is too easy of success, and embark upon it without adequately weighing the chances. As Hobbes was aware, the individual who neglects the possibility of divine punishment may reach a false estimate of his own interest. Every man by nature, without discipline, does in all his actions look upon, as far as he can see, the benefit that shall redound to himself from his obedience. He reads that covetousness is the root of all evil; but he thinks, and sometimes finds, it is the root of his estate. And so in other cases the Scripture says one thing, and they think another, weighing the commodities or incommodities of this present life only, which are in their sight, never putting into the scales the good and evil of the life to come, which they see not.2 * Leviathan, E.W., vol. 3, pp. 132-4. * Behemoth. E.W., vol. 6, p. 231.

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It has been argued above that in order for the individual to be obliged, according to Hobbes's theory, he must be capable of having an adequate motive for the performance of his duty, and if he is always motivated to secure the greatest apparent good for himself, this implies that he must be capable of seeing his duty as consistent with his greatest interest. The sanction of salvation provides such a motive, in that with adequate knowledge and deliberation the individual will see obedience to natural law (in the form which applies to his circumstances) to be always in his interest if salvation is taken into account. At the same time, however, a coincidence of duty and interest does not imply that they are identical, nor that selfinterest is the ground of obligation. If the existence of divine punishment brings it about that I can always do my duty, this does not necessarily mean that the avoidance of such punishment constitutes the reason why I to do my duty. The question of why men ought to obey natural law must now be considered.

ought

XIII OBLIGATION

BASED

UPON

SALVATION

T

H E principal object of the present work has been to show the relationship which exists, in Hobbes's doctrine, between the obligations of the State of Nature and those of civil society, or between the duties of man as man and those of man as citizen; also to indicate men's rights or freedoms from obligation. This has been attempted above, in terms of a supreme duty to obey natural law and the conditions under which such a duty is suspended or modified. T o proceed beyond this point, however, to ask in turn, why the individual ought to obey natural law, is to make a new departure and the treatment of this problem is an addendum to, rather than a continuation of, the main argument which has been outlined in the first two Parts of this work. What has been examined above is the substructure of the obligation to obey natural law, in the sense of the pattern of consequences that derive from it; whereas the investigation of the ground of this obligation is concerned solely with its superstructure. Although the acceptance of different solutions to the question of the ultimate ground of obligation in Hobbes's theory, gives a differing significance to his pattern of rights and duties, it does not in itself change that pattern, nor prejudice the account of it in the form in which it has been presented. Whatever answer remains to be given, therefore, to the question of why men ought to do their duty, the civil sovereign and his sanctions, the authorization of the subject and the political covenant, rights to self-preservation and duties to seek peace, will play the part which has been allotted to them; and it will still be true, for example, that the sovereign is capable of exercising political power because of the duties of his subjects, and not that his subjects have duties because of his power. It is

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necessary to emphasize this point because a consideration of the superstructure of the obligation to obey natural law presents some difficulties. The relevant parts of Hobbes's text are both more fragmentary and more ambiguous than those which have been employed in the earlier sections of this work, and the construction to be put upon his argument is consequently more open to conjecture. It is advisable that such conjecture should be confined to the field to which it properly applies. There are a number of interpretations of the ground of obligation in Hobbes's doctrine, for which a reasonable case may be made from his statements. These interpretations may be conveniently grouped around two principles, namely: 1. Men ought to obey natural law because obedience is a means to salvation, which is their highest interest; or contrariwise, neglect of these laws leads to divine punishment, which represents their greatest evil. 2. Natural law is the will of God, and ought to be obeyed for that reason. These principles will be considered in turn. The propositions of natural law in Hobbes's theory have a self-evident character in that they are knowable by all men of right reason from the exercise of that faculty alone. As they stand, however, these dictates are but theorems or rational principles tending towards the preservation of men, and they are laws properly, and hence constitute obligations, only if regarded as the commands of God. Law is defined as the word of him who byrighthas command over others.1 Obligations to obey the law therefore are derived from a duty to obey the agent whose will it embodies (though in a special manner), and in the case of natural law from a duty to obey God. Having reached this point, however, Hobbes does not assume that a duty to obey God's will is axiomatic, but attempts a farther justification for it. God governs the world, on his view, in a number of different ways.2 His dominion over inanimate and non-rational creatures lies outside the 1 2

See, e.g., Leviathan, E.W., vol. 3, pp. 147, 251, 342 ft See above, pp. 83-85, 174-6, 224 ff.

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present argument as this dominion involves a control of events in which neither reward and punishment nor moral obligations are involved.1 Nor need we take account of the additional obligations to obey the will of God taken upon themselves by Christians or in former times by the Jews, for these obligations which belong to the prophetic kingdom of God are assumed by covenant, and supplement and depend upon natural law which obliges in any case.2 In looking for the basic source of obligation, therefore, attention must be directed to what Hobbes calls the natural kingdom of God; that is to the system of obligations which depend upon a knowledge of the law and of God that is derived from the application of reason alone, and not from prophetic or revealed religion.3 In his natural kingdom, God's right to command is regarded by Hobbes as being due to his omnipotence, and hence obligations are ultimately obligations to obey the dictates of an irresistible power. The right of nature, whereby God reigneth over men, and punisheth those that break his laws, is to be derived, not from his creating them, as if he required obedience as of gratitude for his benefits; but from his irresistible power. I have formerly shown, how the sovereignrightariseth from pact: to show how the same right may arise from nature, requires no more, but to show in what case it is never taken away. Seeing all men by nature hadrightto all things, they hadrightevery one to reign over all the rest. But because thisrightcould not be obtained by force, it concerned the safety of every one, laying by that right, to set up men, with sovereign authority, by common consent, to rule and defend them: whereas if there had been any man of power irresistible, there had been no reason, why he should not by that power have ruled and

' See, e.g., De Cive, E.W., vol. 2, pp. 204-5. See above, pp. 224-9, and below, pp. 294-5 n. 3 'And according to the difference which is between the rationalwordand the word of prophecy, we attribute a two-fold kingdom unto God: natural, in which he reigns by the dictates of right reason; and which is universal over all who acknowledge the divine power, by reason of that rational nature which is common to all: and prophetical, in which he rules also by the word of prophecy; which is peculiar, because he hath not given positive laws to all men, but to his peculiar people and some certain men elected by him.' De Cive, E.W., vol. 2, p. 206. See also Leviathan, E.W., vol. 3, pp. 345-6. 2


281

defended both himself, and them, according to his own discretion. To those therefore whose power is irresistible, the dominion of all men adhereth naturally by their excellence of power; and consequently it is from that power, that the kingdom over men, and the right of afflicting men at his pleasure, belongeth naturally to God Almighty; not as Creator, and gracious; but as omnipotent. And though punishment be due for sin only, because by that word is understood affliction for sin; yet the right of afflicting, is not always derived from men's sin, but from God's power.1 Elsewhere, Hobbes is further concerned to emphasize the fact that the laws of nature oblige because they are commanded by God, and not that God commands them because they are right or just. ... the power of God alone without other helps is sufficientjustification of any action he doth. That which men make amongst themselves here by pacts and covenants, and call by the name of justice, and according whereunto men are accounted and termed rightly just or unjust, is not that by which God Almighty's actions are to be measured or called just, no more than his counsels are to be measured by human wisdom. That which he does, is made just by his doing it; just, I say, in him, though not always just in u s . . . . Power irresistiblejustifies all actions, really andproperly, in whomsoever it be found; less power does not, and because such power is in God only, he must needs be just in all actions, and we, that not comprehending his counsels, call him to the bar, commit injustice in it.2 Any appeal, moreover, to the special attributes of God would appear to be precluded by the consideration that although God is the only irresistible power, this is a contingent fact, and any irresistible power would be similarly circumstanced. Having asserted that men owe a duty to God by reason of their weakness, Hobbes adds the following footnote: If this shall seem hard to any man, I desire him with a silent thought to consider, if there were two Omnipotents, whether were bound to obey. I believe he will confess that neither is bound. If 1 Leviathan, E.W., voL 3, pp. 345-6. See also De Cive, E.W., vol. 2, pp. 121 13. 206-7. Liberty and Necessity, E.W., vol. 4, pp. 349-50.

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this be true, then it is also true what I have set down; that men are subject unto God, because they are not omnipotent... Hobbes appears at first sight to have reversed entirely the theory of the divine right of kings, in that instead of investing the civil sovereign with divine attributes, he has presented God as a superior version of the secular civil sovereign, a king of kings whose will obliges of itself and whose claim to obedience is based upon his omnipotence—a claim that is adequate from this fact alone. If the laws of nature are binding because they are the commands of God qua irresistible power, the ground of obligation would appear2 to rest in the rewards and punishments that such a power may administer, rather than in the intrinsic character of the commands themselves. If, moreover, it is merely a contingent fact that God is the sole irresistible power, obligation will have more to do with the sanctions behind his commands than the consideration that these commands are his will. From this point of view, therefore, duties may be regarded as a special class of prudent actions—those that tend to salvation; the laws of nature ought to be obeyed because they are the commands of God, but in turn, the commands of God ought to be obeyed because his rewards and punishments bring it about that obedience is in the highest interest of the individual. This interpretation of Hobbes's theory of obligation has the merit of being the explanation most easily reconciled with his account of the way in which the individual is motivated to action. If we accept Hobbes's doctrine that men always act with a view to securing the greatest apparent good for themselves in any situation, there would appear to be room only for a theory of obligation which relates the actions of men at various stages of deliberation and knowledge. If we elaborate Hobbes's notion of the individual willing his own apparent good, three classes of action may be distinguished: i. The action which the individual, with his existing state ' De Cive, E.W., vol. 2, p. 209 n. An alternative interpretation is considered below, at pp. 299 ff.

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of knowledge and with the deliberation which he exercises upon his problem, will take to be productive of most good to himself. This is the action which he will do. 2. The action which in fact, given the particular values of the individual, would be in his best interest; or, in other words, the action which he would do if he had complete knowledge and exercised adequate deliberation. This would be the general formula for the most prudent act available to the individual under the circumstances, and would differ from person to person according to the various values which men strove to realize. This is also the formula for those actions for which the individual would have a possible adequate motive. 3. A special sub-class of prudent actions where eternal salvation is involved. These are actions which an individual, who took salvation as his greatest good, would perform if he had complete knowledge and exercised adequate deliberation, or, more briefly, they are the actions which tend to salvation. If obligation is taken to be a special form of prudence, this is the class of obligatory actions. It follows from such a system of motivation that any failure on the part of the individual to perform the most prudent action available to him, is to be explained entirely in terms of incomplete or faulty deliberation, as, for example, when he acts from sudden passion or on the spur of the moment; or it is to be explained in terms of ignorance of the correct meansends relationships involved and so to an incorrect notion of the consequences of actions and their relevance to his own interest. If obligatory actions are a particular class of prudent actions, the failure of the individual to perform his duty may be ascribed to the same factors. Hobbes, himself, appears to have taken this view. In the Leviathan, when considering crimes at least (breaches of the civil law), he maintains that 'the source of every crime, is some defect of the understanding; or some error in reasoning; or some sudden force of the passions.'1 It is at first sight a simplification to regard the agent who fails to observe his 1


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duties through being moved by passion, as presenting a case of inattention or ignorance with respect to what his duties are. In Hobbes's theory, however, although passion may hinder a man from fulfilling his obligations, there is no ultimate conflict between desire and duty. Passion hinders only because it may precipitate sudden action and so preclude adequate deliberation, but further deliberation which brings forward the totality of desires, hopes, and fears, relevant to any course of action produces a decision consistent with duty. With regard to his doctrine that failure to perform obligations arises also from error or ignorance in making meansends judgements, or is analogous to these mistakes, Hobbes makes a more explicit statement in the De Cive. Sin, in its largest signification, comprehends every deed, word, and thought against right reason. For every man, by reasoning, seeks out the means to the end which he propounds to himself. If therefore he reason right... he will proceed in a most direct way. Otherwise he will go astray, that is to say, he will either do, say, or endeavour somewhat against his proper end; which when he hath done, he will indeed in reasoning be said to have erred, but in action and will to have sinned. For sin follows error, just as the will doth the understanding. And this is the most general acception of the word; under which is contained every imprudent action, whether against the law, as to overthrow another man's house, or not against the law, as to build his own upon the sand. But when we speak of the laws, the word sin is taken in a more strict sense, and signifies not every thing done againstrightreason, but that only which is blameable; and therefore it is called malum culpae, the evil of fault. But yet if anything be culpable, it is not presently to be termed a sin or fault-, but only if it be blameable with reason. . . In terms of the present interpretation of Hobbes's theory of obligation, the distinction which he draws between 'sin in its largest signification' and sins in the more strict sense (malum culpae) is to be regarded as a distinction between violations of the two systems of prudence—general and special prudence— 1

De Cive, E.W., vol. 2, pp. 195-7. See also, e.g., ibid., pp. xvi-xvii, z n.


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as described above. When a man builds his house upon sand, he will fail (through incomplete deliberation or knowledge) to realize the values which he proposed to himself in building it. These values, however, have no special significance for salvation and he is not obliged to build onfirmland. The imprudence of breaking the law,1 however, is the violation of a means to salvation, and for a person who regards salvation as his greatest good, it is a breach of obligation. If sin or breach of obligation is analogous to choosing inappropriate means to a given end, though confined to the case where salvation is involved, what is to be said of the person who ignores or rejects this end? Such a person will not be obliged, and Hobbes appears to reach this conclusion with regard to the position of the atheist. In the Be Cive, the question is raised 'in what manner will he be said to sin, who either denies that there is a God, or that he governs the world, or casts any other reproach upon him'. Such a sin, Hobbes maintains, though a grievous one is to be accounted among the sins of imprudence or ignorance. It will not therefore be excused, but the atheist will be punished by God not as a subject because he fails to keep the laws, but as an enemy because he does not accept the laws; that is to say by the right of war. Hobbes adds an explanatory footnote to this assertion: Manyfindfault that I have referred atheism to imprudence, and not to injustice;... They object further, that since I had elsewhere said that it might be known there is a God by natural reason, I ought to have acknowledged that they sin at least against the law of nature, and therefore are not only guilty of imprudence, but injustice too. But I am so much an enemy to atheists, that I have both diligently sought for, and vehemently desired tofindsome law whereby I might condemn them of injustice. But when I found none, I inquired next what name God himself did give to men so detested by him.... Wherefore I placed their sin in that rank which God himself refers to. Next I show them to be enemies of God. But I conceive the name of an enemy to be sometimes somewhat * In thepassage quoted above, this refers to a breach of thecbil kw but for Hobbes, breach of the civil law is also breach of natural law. ' **

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sharper, than that of an unjust man. Lastly, I affirm that they may under that notion be justly punished both by God, and supreme magistrates; and therefore by no means excuse or extenuate this sin. Now that I have said, that it might be known by natural reason that there is a God, is so to be understood, not as if I had meant that all men might know this; except they think, that because Archimedes by natural reason found out what proportion the circle hath to the square, it follows thence, that every one of the vulgar could have found out as much. I say therefore, that although it may be known to some by the light of reason that there is a God; yet men that are continually engaged in pleasures or seeking of riches and honour; also men that are not wont to reason aright, or cannot do it, or care not to do it; lastly, fools, in which number are atheists, cannot know this.1 Throughout his work, Hobbes is inclined to consider the atheist as meriting censure in a way in which children and madmen do not, and in the passage quoted above, it may be that he is particularly concerned to meet charges made against him of condoning atheism, by emphasizing this fact. The point at issue, however, is what it can be that the atheist is being blamed for, and Hobbes's conclusion appears to be that it is for a type of imprudence or inattention that is distinct from a breach of obligation. The terms which he normally uses for a breach of duty are injustice (breach of covenant or civil law) and iniquity (breach of natural law) and both terms presuppose some law or covenant violated. In this case, however, he takes the view that there is no law under which atheists may be condemned and regards these terms as inappropriate. We are therefore entitled, perhaps, to consider the atheist as falling outside the system of obligations. He will suffer for his stupidity or negligence no doubt, but can he be blamed for anything more than placing himself unwittingly, on what must from Hobbes's point of view be the losing side ? Up to this point, therefore, it would appear that Hobbes is entitled to use the term 'ought' in the same way as it is used when we say that men ought to be consistent, that a person 1

De Cive, E.W., vol. 3, pp. 198-9 n.


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who wants to economize ought to buy in the cheapest market, and so on. The individual who aims at salvation but does not observe the law, will be choosing means inappropriate to his end, but his error would normally be described as a failure to act rationally rather than a breach of a moral imperative. There appears, moreover, to be no obligation upon the individual to choose salvation as an end in thefirstplace. Those who are assumed to have done so, have duties; but those who have ignored or who do not care for salvation are apparently outside the field of obligation entirely. Hobbes does, it is true, suggest that some blame attaches to the atheist, but this could be no more than a mistake which is easily made. The economist, for example, is inclined to stretch his doctrine of means unconsciously into a doctrine of ends, and to think that the person who does not desire to economize, nevertheless ought to do so. Likewise, the doctor may take a similar attitude to the patient who accepts his diagnosis, but who does not want to be healthy. If the choice of ends lies outside Hobbes's system, his Leviathan becomes essentially a manual of an economic character, whose purpose lies in setting out the connexion between obedience and salvation for those who happen to be interested. Such an estimate, however, posits in Hobbes's doctrine a greater neutrality with regard to the choice of ends than is justified. Duties are a class of prudent actions, but a special class, and salvation differs from other possible ends which men may set themselves. The individual who believes in God and that he governs the world, administering rewards and punishments in a future state of man, will not merely be moved to action by the thought of these sanctions, but will be moved necessarily, if his deliberation is adequate. Such a person may not always do what he takes God's will to be, as he may act from passion, for example, or may not attend to the particular case before him sufficiently to see it as an instance of his duty, but granted knowledge and deliberation, he will be faced with a sanction which is always adequate. God's power is irresistible and his punishments cannot be escaped,

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to obligation. Against this view, we have held that although men are obliged to act with the intention of fulfilling the law where judgement lies to their own conscience and to God, Hobbes does not require them to act with the motive of observing the law for its own sake, and self-interest is therefore still available as a motive for the performance of duties. In defence of the position which we have taken the following considerations may be put forward. 1. On Hobbes's theory of motivation, the individual always acts to secure his apparent good, and a disinterested reverence for the law would not be a possible motive for voluntary action in Hobbes's ethical system, unless this part of his doctrine were discarded. 2. As we have seen,1 those parts of Hobbes's text which are most favourable to the view that the individual is obliged to act for the sake of the law, are those in which he draws a distinction between the justice of actions (and guiltless men) and the justice of persons, and in particular where he makes such statements as the following: . . . But that man is to be accounted just, who doth just things because the law commands it, unjust things only by reason of his infirmity; and he is properly said to be unjust, who doth righteousness for fear of the punishment annexed unto the law, and unrighteousness by reason of the iniquity of his mind.2 With regard to this distinction, it may be answered that although fear of the penalty imposed by the civil law may not be the motive of the just man in obeying that law, this does not necessarily mean that fear of God's wrath is to be similarly condemned. Hobbes makes no statement which definitely implies that regard for divine sanctions would not be a perfectly proper motive for the just man, and it may well be that acting from fear of God and acting for the sake of the law would mean the same thing to him.3 In any event, with regard to the just man, it may further be maintained that: 3. Although there is an obligation to do just actions (or to 1 See above, pp. 88-90. * De Cive, E.W., vol. 2, p. 33. See also ibid., p. 197. * See, e.g., Elements of Lots (ed. Tannics), pp. 136-7 (quoted above, pp. 90-91).


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be a guiltless person), there is no obligation to be a just person, for the justice of persons is a matter of God's grace or gift. For the gaining of salvation, more is required of the individual than the performance of what the law requires: Now all things necessary to salvation are comprehended in two virtues, faith and obedience. The latter of these, if it could be perfect, would alone suffice to preserve us from damnation; but because we have all of us been long since guilty of disobedience against God in Adam, and besides we ourselves have since actually sinned, obedience is not sufficient without remission of sins. But this, together with our entrance into the kingdom of heaven, is the 1 reward offaith; nothing else is requisite to salvation Faith is unambiguously, in Hobbes's doctrine, a matter of grace and not of obligation;2 it remains therefore to consider the type of obedience that is required for salvation, which Hobbes goes on to specify: But by obedience in this place is signified not the fact, but the trill and desire wherewith we purpose, and endeavour as much as we can, to obey for the future. In which sense the word obedience is equivalent to repentance-,.. .3 That the repentant person in this context is equivalent to his just person, is made clear by Hobbes in a subsequent passage: Faith and obedience have divers parts in accomplishing the salvation of a Christian; for this contributes the power or capacity, that the act; and either is said to justify in its kind. For Christ forgives not the sins of all men, but of the penitent or the obedient, that is to say, the just. I say not the guiltless, but the just; for justice is a will of obeying the laws, and may be consistent with a sinner; and with Christ, the will to obey is obedience. For not every man, but thejust 4 shall live by faith Since Hobbes maintains, elsewhere, that repentance is not voluntary,5 it would appear that the justice of persons is a 1

De Cive, E.W., vol. 2, p. 300. *5 See, e.g., ibid., p. 62; Leviathan, E.W., vol. 3, pp. 273, 462. De Cive, E.W., vol. 2, p. 300, pp4 59&00* 5 Sec

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matter of grace and not of obligation, and the fact that only such persons can gain salvation would be consistent with his Calvinistic theology. Thus even if it is assumed that these passages concern motives (and not intentions), and that fear of divine punishment is an inferior motive in Hobbes's opinion, and both of these assumptions are open to doubt, it does not follow that there is an obligation to act for the sake of the law, though it may be granted that a just person will do so. The passages quoted above, however, bring to light a more serious difficulty. If obligation is to be based upon the selfinterest involved in gaining divine rewards or avoiding divine punishments, account will have to be taken of the fact that there is not a precise relationship between these rewards and punishments and the performance of dutiful actions. Although Hobbes suggests that if men had never sinned they could not be condemned, he adduces the sin of Adam and the fact that all men have themselves sinned at some time. In effect, therefore, the remission of sins is always required for salvation, and in addition to the performance of his duty, the individual must have faith in Christ and repentance, neither of which fall under obligation. Thus, although duties may be actions the performance of which tends to salvation, not all actions tending to salvation are obligatory, and a further principle will be required if obligations are to be specified. This difficulty may be illustrated from Hobbes's distinction between counsel and command. Hobbes appears to draw a hard line between counsel, which is in the interest of the person advised but the observance of which is optional; and command, which obliges.1 At the level of the civil law, this distinction can be translated fairly easily into terms of the present interpretation; counsel, though directed to the interest of the individual may be concerned with any of his interests and would fall under what we have called general prudence which is not obligatory; but the command of the civil law to the person who has covenanted to obey it, carries divine 1



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sanctions and so falls under the special prudence that is obligatory. This same distinction, however, is carried over by Hobbes into his account of God's word, and he speaks of God s advice which may be taken at option, and God's commands which oblige. But as in this case the observance of both advice and command tend to salvation or the avoidance of divine punishment, the interpretation of obligation in question will not serve to distinguish them. The most concise statement of the role of divine command and counsel is that which is given in De Corpore Politico. As for the first division of law into divine, natural, and civil, the first two branches are one and the same law. For the law of nature, which is also the moral law, is the law of the author of nature, God Almighty; and the law of God taught by our Saviour Christ, is the moral law. For the sum of God's law is, Thou shall love God above all, and thy neighbour as thyself; and the same is the sum of the law of nature,... And although the doctrine of our Saviour be of three parts, moral, theological, and ecclesiastical; the former part only, which is the moral, is of the nature of a law universal; the latter part is a branch of the law civil; and the theological, which containeth those articles concerning the divinity and kingdom of our Saviour, without which there is no salvation, is not delivered in the nature of laws, but of counsel and direction, how to avoid the punishment, which by the violation of the moral law, men are subject to. For it is not infidelity that condemneth, though it be faith that saveth, but the breach of the law and commandments of God, writtenfirstin man's heart, and afterwards in tables, and delivered to the Jews by the hands of Moses.1 In the doctrine of Christ, therefore, the moral part is of the nature of a universal law and obliges, whereas the theological part is advisory. But although both of these parts contain maxims bearing on salvation, there is this difference that punishment is due only for breach of the law, and not for lack of faith or neglect of divine advice, while faith will mitigate punishment for those who have violated the law. On the basis 1

De Corpore Politico, E.W., vol. 4, pp. 224-5.

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of this distinction, an attempt may be made to isolate obligatory actions by classifying them as prudent actions the neglect of which incurs divine punishment, as distinct from those prudent actions which mitigate this punishment. Such a formula, however, would be trivial and explain nothing, for while defining obligation in terms of a tendency to produce a certain end, it would contain an important principle that could not be translated into terms of that end. In other words, a system of prudence which requires a defining distinction between not incurring punishment and mitigating it, is making a latent appeal to a non-prudential principle. It is possible, however, to make the requisite distinction in another form. Sometimes Hobbes seems to regard the obligatory principles of the Christian kingdom of God as simply a translation of the laws of nature into a new context, such that there is a one-to-one relationship between the laws of both the natural and the Christian kingdoms. One example of this suggestion is to be found in the passage quoted above, where Hobbes maintains that the commandments of God were written first in man's heart and afterwards in tables. In any event, where the obligations of the two kingdoms differed, the extra obligations of the Christian could be covered by the fact that he had covenanted to observe them, and as in the case of the civil law, obedience would be enjoined under a natural-law principle of keeping valid covenants. The theological branch of Christian doctrine, however, which contains advice on seeking the kingdom of God, relies on prophecy which men cannot be obliged to follow farther than they have covenanted to do so.1 The distinction between the obligatory and the advisory 1 If the civil sovereign makes a work of prophecy a part of the civil law, it will of course oblige the subject, but it will do so as civil law, and not as prophecy. It will still be true therefore that all obligations fall under natural law and the valid covenants which men make under its provisions. See, e.g., Leviathan, E.W., vol. 3, pp. 586-7. "But what commandments are those that God hath given us ? Are all those laws which were given to the Jews by the hand of Moses, the commandments of God? If they be, why are not Christians taught to obey them? I f t h e y be not, what others are so, besides the law of nature? For our Saviour Christ hath not given us new laws, but counsel to observe those we are subject to; that is to say, the laws of nature, and the laws of our several sovereigns:... The laws of God


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maxims that tend to salvation, therefore, may be presented as a distinction between those maxims that can be known by the use of reason, and those that can only be taken on trust or at second hand. Obligations would then have to be defined as prudent maxims tending to salvation that can be known or seen to be such by the use of reason and without the aid ot prophetical testimony.1 In the light of this interpretation, Hobbes's account ot the obligations of men will run, briefly, as follows: There is a sphere of phenomena which God governs m a particular way, that is by the issue of commands, knowable by the use of reason and supported by rewards and punishments —a sanction which may be summarized as the sanction of eternal salvation or ultimate destruction. To the individual who has arrived at a belief in the existence of an omnipotent God through the use of reason and the elaboration of a body of natural law regarded as his command, the idea of the divine sanctions connected with the observance of these laws will necessarily determine him to obedience of them if his knowledge is sufficiently extensive and his deliberation adequate, for he will see such observance to be an indubitable means to his greatest good (salvation) or to the avoidance of his greatest evil. Those actions in any situation, which can be discovered on rational grounds alone to be actions tending to salvation, are obligatory actions or duties. On this view, therefore, duty therefore are none but the laws of nature, whereof the principal is, that we should not violate our faith, that is, a commandment to obey our civil sovereigns, which we constituted over us by mutual pact one with another. And this law of God, that commandeth obedience to the law civil, commandeth by consequence obedience to all the precepts of the Bible; which . . . is there only law, where the civil sovereign hath made it so; and in other places, but counsel; which a man at his own peril may without injustice refuse to obey.' The feet that the Bible, as a work of prophecy, is law only where the civil sovereign has made it so, has sometimes led commentators to the view that for the same reason, natural law is only law where the sovereign has decreed it. That Z

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is a type of prudence, but it has this special characteristic, that its sanctions concern men's highest ends and are at the same time inescapable; so that if duty is adequately known, it cannot rationally be rejected. Observance of the laws of nature involves inter alia the keeping of valid covenants, and men may, for example, covenant themselves into the Christian kingdom of God or into a particular civil society, and in fact as natural law in its general formulation commands us to seek peace, they may be regarded as generally under an obligation to do so, where favourable opportunities present themselves; or on other grounds, they may have motives for joining these kingdoms, though in these respects they cannot be said to be obliged to join. Nevertheless, having covenanted himself into citizenship, the individual is obliged to obey the legal system which he has promised to accept, and this becomes for him an extension of natural law, and rationally connected with his salvation in the manner described. A member of the Christian kingdom of God, it is true, may be acquainted with other principles that bear upon his salvation, but these are normally known only through the prophetical writings of other men, and as on rational grounds their necessary connexion with his salvation cannot be established, they will not oblige him. In other words, a person who aims at salvation will be able to deliberate upon them and reject them. Such principles, therefore, are advisory and not obligatory, save that where the civil sovereign has incorporated them into the civil law they will oblige, for they will then fall under the content of the political covenant, which the citizen is required to observe under natural law. It will follow also that the person who ignores or does not care for salvation or the punishments of God, will have no obligations. It may be, of course, that the atheist will have a summum bonum or a summum malum which will guide his actions, and if these are physical preservation and physical death, he will still have some use for the dictates of natural law, as they tend to these ends. For him, however, they will

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simply be theorems or rational principles, as t h e y must be unless they are regarded as the commands of God. I hey will embody what is generally good advice, but in his dealings with other men, the individual may always hope to gain by setting them aside in his own case, and so will not be obliged to follow them. Such an interpretation of Hobbes's theory of obligation would appear to be at least formally correct, in that the principles it employs would in fact divide what he regards as duties from what he maintains are not duties and would require the same hierarchy in the pattern of obligations as that which he presents. It has also the merit of being consistent with Hobbes's theory of motivation and the will, and the consequences which apparently he draws from the irresistible power of God. It may be objected, it is true, that Hobbes has really elaborated a system of prudence and not a theory of moral obligation; and that all that can be said against the atheist is that he is stupid, while the believer who seeks salvation and breaks the laws of nature is simply being inconsistent and not immoral. And what would be true of the laws of nature wrould of course follow for the civil law; the citizen who broke this law would not be breaking a moral rule, but acting inconsistently with his salvation. To this it may be replied that salvation is not just an end which men may set themselves, but one which it is rational to prefer to others, and that the atheist would choose this end also if he reasoned to better effect, or paid more attention to the problem, though in his ignorance he cannot be obliged. The individual who seeks salvation, moreover, is not concerned with a mere matter of maximizing pleasures or minimizing pains; he is concerned with his greatest good or evil and this may be taken to be a moral objective. Though seeking eternal life may appear superficially like the pursuit of the agent's own long-term interest, Hobbes would be entitled to insist that the analogy should not be pressed too far. Salvation requires that the individual shall accommodate himself to the cosmic order, and is sufficiently distinguished from the general

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case of self-interest to allow of its being regarded as the moral end of man. At the same time, however, there are some aspects of Hobbes's doctrine to which the interpretation given above does not, perhaps, do full justice.1 The divine sanctions with which we have been concerned have not been simply pleasant or unpleasant consequences, but rewards and punishments, and these carry the suggestion that they are merited in some way for observance or breach of the law. In Hobbes's account, moreover, it is always law which obliges at some stage (though as the command of a special agent) and breach of obligation is always breach of some law. If obligation is to be analysed entirely in terms of salvation, the significance of law is simply that its observance is the price, or part of the price, of securing this end or of averting divine punishment. In this way, it is indicated that obedience to law leads to salvation, but it is not explained why this obedience merits salvation, and there is implied a contingency between obligation and law that hardly justifies the extent to which Hobbes emphasizes their essential connexion. It is pertinent, therefore, to consider an alternative interpretation of the ground of obligation in Hobbes's doctrine, in which command and law play a more central part. 1 It should also be recalled that those parts of Hobbes's text which relate to the topics considered in the present chapter (particularly concerning the Christian kingdom of God and its laws) are oftenfragmentaryand ambiguous, and that the interpretation which has been put forward must be regarded with corresponding reserve.

XIV OBLIGATION COMMAND

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UPON LAW

A ship between obligation and the will of a superior agent or between obligation and law in Hobbes's theory, if a few of his statements may be construed less literally than has hitherto been done. Hobbes appears to make a clear assertion that the obligatory character of natural law depends upon its being regarded as the will of God; and, further, that God's title to oblige in the natural kingdom is to be attributed to his irresistible power, a quality that would oblige wherever it were found. Such statements cannot be set aside, but it may be remarked that there are a number of considerations which may be held to modify their consequences, and which ought, therefore, to be taken into account. Hobbes does not maintain that might is right, but that irresistible might justifies itself, obliging those whose power is less. It may be maintained that this is not simply a difference of degree but a difference of kind, and that if we consider what is implied in omnipotence, it can be seen to be not so inescapably opposed to justice as we normally take power in general to be. While the assertion that irresistible power obliges, therefore, suggests most readily a theory of obligation based upon sanctions, it is possible to discount this suggestion on the ground that such power is in any event a concept that has meaning only if applied to God. It is agreed by Hobbes that the only irresistible power is in fact God, but he appears at the same time to treat this as a contingent fact, taking as an example a hypothetical situation in which there are two Omnipotents where, he maintains, neither would be obliged by the other. If we contend, however, that the idea of two Omnipotents is in any event self-contradictory and the example

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misleading as a result, we may perhaps justifiably reduce Hobbes's assertion concerning the obligatory force of natural law as depending upon the will of an irresistible power, to one which rests it simply upon the will of God. The system of moral and political duties in Hobbes's theory would then be connected by way of natural law to God's will and would be held to oblige from the fact that they were God's will alone, and not because breach of these laws would entail divine punishment though it would of course do so. Such an interpretation would give a more convincing account of those parts of Hobbes's text where prominence is given to the relationship between obligation and law;1 or where Hobbes maintains, for example, that it is the law from whence proceeds the difference between moral and natural goodness ;2 or that when they are regarded as the commands of God, the laws of nature are laws and oblige. It is also to be recalled that Hobbes defines law as the word of him who by right has command over others; he does not define it as a rule bearing an inescapable or overwhelming sanction. If obligation is to be based upon God's will, moreover, and not upon his rewards and punishments, it is easier to explain Hobbes's statements concerning oaths. Discussing the inadequacy of the sanctions operating outside civil society, Hobbes continues:

All therefore that can be done between two men not subject to civil power, is to put one another to swear by the God he feareth: which swearing, or OATH, is a form of speech, added to a promise by which he that promiseth, signifieth, that unless he perform, renounceth the mercy of his God, or calleth to him for vengeanc himself... It appears also, that the oath adds nothing to the obligation. For a covenant, if lawful, binds in the sight of God, without the oath, as much as with it: if unlawful, bindeth not at all; though it be confirmed with an oath.3 1 See, e.g., above, pp. 97-102,147-51, 215-16, 223 ff. Many of these passages have been considered in Parts I and II, and need not be recounted here. z See, e.g., Liberty, Necessity, and Chance, E.W., vol. 5, pp. 192-3. 3 Leviathan, E.W., vol. 3, pp. 129-30. Elsewhere, Hobbes makes an even

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If the reason why the individual ought to obey the law were the avoidance of divine punishment for breach of it, it is dimcult to explain why Hobbes should regard oaths as increasing the prospect of such punishment, but not as increasing the obligation involved. If, however, the individual ought to obey the law simply because it is God's will, no problem arises. It follows from the view that obligation is grounded upon God's will, that God's right to be obeyed is not to be further explained, but is to be regarded as axiomatic or ultimately mysterious. The discussion of the role of divine sanctions bearing upon salvation, as presented in the last chapter, then becomes an amplified account of Hobbes's psychology of obligation, but not a treatment of the ground of obligation. In other words, these sanctions help to explain how the individual can be moved to do his duty, but not why he ought to do it, for the answer to this question is simply that his duty represents the will of God which ought to be obeyed. An interpretation of the ground of obligation in these terms, however, is not free from objection. In addition to requiring the assumption which was used initially to circumvent some of Hobbes's statements about irresistible power,1 it provides no satisfactory relationship between Hobbes's theory of obligation and his theory of human motivation. If the individual is obliged to obey the will of God simply because it is his will, it is fortunate that such a will commands maxims of salvation and preservation, which concern the highest values of the individual, and so provide principles which he has a motive to follow. A theory in which the individual is essentially obliged to obey the will of God rather than to respect his sanctions, and is essentially motivated to preserve himself in this world and the next, is not an impossible theory, but it does dearer statement to the effect that though the oath does not add to the obliga tion, it may nevertheless augment the punishment. 'And by the definition of an oath, it appeareth that it addeth not a greater obligation to perform the sworn, than the covenant carrieth in itself, but it putteth a man intoagreater danger, and of greater punishment.' (Be Corpore Politico, E.W., vol. 4,p.94 1 See above, pp. 299-300.

covenant

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UPON

make some appeal to coincidence. It also implies a considerable restriction upon what the will of God can be in this context. It may be further remarked that the view that obligation in Hobbes's doctrine reduces ultimately to a duty to obey the will of God just because it is his will, provides an incomplete analysis, in that it does not specify sufficiently the particular obligations which Hobbes postulates. The will of God does not always oblige in a manner which is relevant to the present discussion. God's physical power and will when directed towards the creation of the universe and the control of its physical processes, oblige in a physical but not in a moral sense. Likewise, it is necessary to be able to separate God's commands which oblige from his advice which does not. In its broadest meaning, the will of God is always obeyed, for nothing happens at all except what God wills; men do not, however, always obey God's commands,1 and these commands are a special group of principles for the guidance of conduct known in advance by the use of right reason. It is difficult on this theory, therefore, to avoid the introduction of the concept of law as well as that of God's will, for it is not simply God's will that obliges in the moral sense, but his laws in the form of the laws of nature. It may still be maintained, of course, that God's laws oblige just because they are willed by God, but a will which obliges, in the natural kingdom at least, only in willing a body of natural law, is far removed from the notion of an arbitrary and personal will that wills what it pleases, and such a position enhances the special content of that will—the law itself. A re-examination of the status of natural law will illuminate the part played in Hobbes's doctrine by his discussion of the ground of obligation, though this will involve a slight digression. The Status of Natural Law In general, when an attempt is made to justify any particular exercise of political authority, the argument will show a characteristic alternation between an appeal to rules and an appeal to persons. An individual who is arrested for an alleged * See, e.g., liberty, Necessity, and Chance, E.W., vol. 5, pp. 12-13, 103.

COMMAND AND LAW

33

crime, for example, may be concerned to inquire whether the conduct of the policeman towards him constitutes an act of authority or whether it is to be regarded simply as an act of violence upon him by another individual. In reply to such a query, he will normally have quoted to him certain sections of relevant statutes and the matter will be closed. If he refuses to agree that statutes have authority, however, and so are not like railway time-tables or cookery recipes, for example, he may be informed that a statute is the will of Parliament or the King in Parliament and that this is an authority. Yet Parliament is a body of persons and not all that they do or say is authoritative, but only their will expressed in a special way as law, or, put into Hobbesian terms, their command. The argument may then continue; Why is Parliament an authority in this respect, Is it authorized by some fundamental constitutional law and Is this authorized in turn by the people? But the sovereignty of the people is not necessarily axiomatic, and appeals may be made to natural law and beyond this to the commands of God. This type of argument can be represented in tabular form, as follows: Authorities ( 0 God Natural law (3) The People

(5)Parliament (or TheKingorthe People as Assembly)

(4) Fundamental constitutional law Statutes

(7) Policemen

Such a diagram represents only a specimen of an attempt to trace authority, and its terms may be amplified or varied to accommodate other cases. Other terms may be added: in a particular instance, for example, we may need to argue from

304


policemen to by-laws, to local councils, to statutes, to Parliament, &c.; and terms may be abandoned. In spite of such changes, however, the essential pattern will remain if the argument is about political authority at all; that is, there will be a characteristic sequence, persons-rules-persons, or rulespersons-rules, unless some of the terms of the argument have been illegitimately suppressed. It follows also that if an intermediate term is added to, or omitted from, the persons-column a corresponding term must be added to, or omitted from, the rules-column and vice versa. Thus in the diagram presented, for example, if item No. (3) is omitted and not replaced by some other personal authority, either (2) or (4) must be discarded, or (2) and (4) must be regarded as identical. Similarly, if (4) is omitted, either (3) or (5) must be discarded, or (3) and (5) must be regarded as identical. In this connexion it must be further remarked that the diagram as it stands does not correspond entirely to the plan of Hobbes's argument. Hobbes would omit items No. (3) and No. (4). In his theory, 'the people' is either a unitary sovereign authority or a mere multitude. If 'the people' is a sovereign legislative assembly with an institutionalized mechanism for unitary decision, it is equivalent here to Parliament or The King (No. 5), and is a form of government which Hobbes allows but regards as inferior to monarchy. If 'the people' is a mere multitude, it is not an authority at all, and has no place in this scheme. Likewise, there is no fundamental constitutional law which lies between natural law (2) and statute (6). For the discussion of Hobbes's position, however, it is useful to have marked in these extra terms. In investigating the authority of some particular action, the individual will normally start near the foot of some scale such as that illustrated, in terms relevant to his situation, and he will work his way upwards to an axiomatic point or term at which he seeks no further explanation. This axiomatic point then becomes the apex of a system of authorities that fall under it, and particular questions of authority or problems of alleged conflict between authorities can be resolved according to the

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hierarchy it presents. Subjectively, we maybeinclinedtoregard any point as a x i o m a t i c ; some persons may think of police men as authorities without further scrutiny; others may be satisfied when the case is brought under statute, for instance, or under a fundamental constitutional law. Political society, however, requires that, for certain purposes, some of these points shall be publicly recognized and agreed upon. In part, how far we travel up the scale of authority before we reach the axiomatic point or the apex of the system, will depend upon the purpose for which the inquiry is made. A legal theorist, for example, may well terminate his inquiry with the sovereignty of Parliament and he will organize all authoritative rules (laws, &c.) according to the formula that such an axiom has given him. The main purpose of his inquiry is to avoid the dilemma of being confronted with two equally authoritative rules that give different answers to the same question, and such a formula may solve his problem. A theory of Parliamentary sovereignty, for example, will enable him to deal with a tangle of statutes, common law, international law, &c., in which problems of conflict of law are all soluble in theory; for as a last resort Parliamentary enactment can cut all knots. He will not necessarily be unaware of the bearing upon political authority of the views of the electorate, but such factors will lie beyond the apex of his pattern of authority, and will not be a part of it. Similarly, the political theorist may take the sovereignty of the people as axiomatic, and attempt to justify the political institutions of a society in terms of popular assent, or choice, or representation; and the moral philosopher may, in turn, insist upon evaluating this assumption by reference to higher authority. How far the scale of authority is pursued, however, will also depend in part upon philosophical standpoint. Does authorityresideultimately in rules or in persons?; are authorities really like policemen and parliaments or like statutes and constitutional principles? The answer to such questions will give a presumption at any part of the scale of authority that axioms ought to be selected from the persons-column or the (174

306


rules-column as the case may be. If rules are ultimately authoritative, persons are merely the instruments of the law which authorizes them and derive their position from fulfilling the law; if authority resides in persons, law becomes instrumental and may be described in terms of command. This is essentially therefore a question of which of two vocabularies is appropriate for the whole discussion of the problem of authority, and at any point, these two vocabularies will give different readings and entail different consequences. If we take, for example, a discussion of authority at the level at which this is of interest to the legal theorist, such a document as the Statute of Westminster when it is described in the persons-vocabulary, will be classified as a statute (No. 6 in our diagram) in a system of authority that begins with a sovereign Parliament; whereas if it is described in the rules-vocabulary, it will be regarded as fundamental constitutional law (No. 4) in a system of authority that begins with such principles and in which legislatures become mere agencies. On the problem of philosophical standpoint, however, there are three questions which can be regarded as equivalent: 1. Does authority really reside in rules or in persons? 2. Is the rules-vocabulary or the persons-vocabulary the appropriate way of describing political authorities ? 3. If we project the scale of authority as far as itw i l lgo, is the final term a law or a person ? In other words, in the case of our diagram, is the final authority natural law or God? The answer to this question in any of its formulations exercises a persuasive influence upon the selection of axioms at any stage of the scale of authority. Thus although the legal theorist is interested in only a section of this scale, the formal projection of the total scale to the end may be taken to be relevant, in so far as its ultimate termination in a person or a rule inclines him to select the apex of his legal system of authority from the persons-column or the rules-column accordingly. Hobbes was principally concerned to interpret the particular section of the scale of authority that deals with the position of the personal civil sovereign. In this matter, he set out to show

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307

that a number of principles which his contemporaries regarded as fundamental constitutional law (No. 4) were really to be seen as statute (No. 6), and that common-law rights, for example, or principles about taxation or levying troops, had authority as instruments of the will of the personal sovereign, whether king or parliament or assembly of the people. They did not control the sovereign. There follows the account of civil authority as essentially personal in character, with a sovereign, exercising sanctions, who is entitled to legislate on all matters upon which effective legislation is possible.1 It is a part of the defence of this position that law should be capable of playing only an instrumental role as the command of a superior person who obliges, and that an appropriate vocabulary be adopted for the discussion of the problem of authority. The civil sovereign, however, turns out to be neither selfjustifying nor self-sustaining, and Hobbes is forced to extend the scale of authority beyond his personal sovereign to natural law, and it is in terms of such law that he is able to provide his theory of political obligation and a related theory of political power.2 But although natural law offers a termination of his substantial theory of civil society, he cannot allow ultimate authority to rest here without endangering his vocabulary of law and personal authority. If law is essentially the command of a personal superior, natural law is to be regarded as the command of God, supported by divine sanctions. This last step in Hobbes's argument, however, has a formal character and is concerned not so much with his theory of civil society as with a defence of his notion of law and command. Whether we take the view that obligation in Hobbes's doctrine is ultimately based upon divine sanctions, or whether simply upon the will of God, the formal aspect of this part of his theory may be illustrated from a consideration of what Hobbes thought could be known in this field by the use of reason.

3O8

O B L I G A T I O N BASED UPON

Rational knowledge of God is limited to the fact that he exists: And forasmuch as God Almighty is incomprehensible, it followeth, that we can have no conception or image of the Deity, and consequently, all his attributes signify our inability and defect of power to conceive any thing concerning his nature, and not any conception of the same, excepting only this, that there is a God: .. -1

We cannot therefore ascribe to God appetites and passions; to do so would be to commit not only an anthropomorphic fallacy, but to place in him wants and limitations that are inconsistent with his omnipotence.2 'And therefore when we ascribe to God a will, it is not to be understood, as that of man, for a rational appetite; but as the power, by which he effecteth every thing.'3 The rational knowledge of divine rewards and punishments is also restricted. Hobbes does, it is true, give some account of Heaven and Hell, where salvation is interpreted as the achievement of eternal life, whereas Hell is to be regarded, not as everlasting torment, but as a second and final death.4 In a very literal sense, therefore, the goal of human endeavour throughout the whole of Hobbes's system, is self-preservation and the avoidance of death, either in the immediate and biological sense, or in an ultimate dispensation by God in a second existence where a final ruling is given. This account of man's second existence, however, where divine judgement is pronounced, is based by Hobbes upon the construction of biblical texts and rests upon prophecy, the acceptance of which is a matter of faith. If such a source is to be set aside, this part of Hobbes's theory remains only as a formal, hypothetical projection on to a higher plane, of man's struggle for physical survival. As Hobbes admits, '. . . there is no natural knowledge of man's estate after death; . . . but only a belief grounded upon other men's saying, that they know it super1

Human Nature, E.W., vol. 4, p. 59. 3 See, Leviathan, E.W., vol. 3, pp. 349-54. Ibid., p. 352. • See, e.g., ibid., pp. 450-1,613-14,622-8; also L.W., voL 3, Appendix, pp. 564-6. 1

C O M M A N D A N D L A W 309

naturally, or that they know those, that knew them, that knew others, that knew it supernatural;...' 1 In this respect, however, natural law is differently circumstanced. By the use of right reason, and without the help of prophetical testimony or of revelation, the individual may attain a knowledge of a body of rules that command him to seek peace and to keep covenants, and to avoid cruelty, ingratitude, or needlessly insulting or provocative behaviour. The content of these principles is deduced neither from the attributes of God nor from the character of divine sanctions, for a substantial rational knowledge of these is impossible. Knowledge of natural law, therefore, marks a new beginning, in that its content is axiomatic or self-evident, and from its dictates the duties of sovereign and subject can be constructed. Thus the theory of civil obedience and political power are in the first place an elaboration of natural law and do not rely in content upon Hobbes's theory of the place of God. What the laws of nature lack, however, is status, and Hobbes maintains that they are simply theorems when taken by themselves; it is only as the commands of God (or essentially as supported by divine sanctions, if such a view is taken) that they are laws and oblige. This requirement, nevertheless, adds nothing to law, nor the theory of civil society, beyond the status it confers. In other words, if Hobbes's doctrine is considered solely in its capacity as a rational defence of political obligation, the function of his account of the place of God is, as we have indicated above, to support his vocabulary of law and command. Owing to Hobbes's use of language in the description of laws and personal authorities, it is easy to take too seriously his formal analogy between natural law as the command of God, and civil law as the command of the sovereign, and to minimize limitations which Hobbes, himself, recognized In spite of the existence of this analogy, the will of God is not like the will of a civil sovereign, neither is natural law like positive law. As we have seen, Hobbes maintained that God has no desires nor ends nor will as these are understood in any 1


310

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UPON

human context. The laws of nature, moreover, unlike positive law, are eternal and unchangeable,1 and the will of God that obliges as distinct from merely advising men, is a manifestation of that will that can be known by the use of reason.2 In Hobbes's theory, there is no opposition between God and Nature. The opening sentence of the Introduction to the Leviathan contains a description of Nature as the art whereby God has made and governs the world. If such a view, however, implies a dependence in Nature, it also implies a responsibility in God that rules out the exercise of arbitrary will construed according to any human analogy. Hobbes does, it is true, refuse ultimately to accept the position that God can be identified with an impersonal world-order,3 but there is, nevertheless, a considerable difference in his doctrine between the personal government by God of his chosen people by means of his positive laws, in a kingdom based on faith, grace, and voluntary covenant; and his government of all men who reason properly by means of the eternal laws of nature.4 It is evident that the place of natural law in such a doctrine and the character given to that law, constitute a revolution in the history of political thought of much smaller dimension than is generally allowed. The discussion of the ground of obligation may be briefly summarized. It has been suggested that Hobbes's answer to the question of why the individual ought to obey the law, is capable of two interpretations for which a reasonable case may be made. In the first place, the view may be taken that the individual ought to obey because of the divine rewards and punishments annexed to observance or neglect of the law, and operative in a second life where he is subjected to the judgement of God. These sanctions, which may be described collectively as the sanction of salvation, are such that men cannot appreciate them and their connexion with their own actions, and reject them. Alternatively, a second interpretation would rest the ground of obligation simply upon the fact that 1

See, e.g., Leviathan, E.W., vol. 3, p. 145; De Cive, E.W., voL 2, pp. 46-47. See above, pp. 292--7. See, e.g., Leviathan, E.W., vol. 3, p. 351. * See, e.g., ibid., pp. 377-9.

1

3

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the law is the will of God and ought to be obeyed for that reason. If Hobbes's theory, however, is considered solely in so far as it offers a defence of political obligation on rational grounds, the entire discussion of the ground of obligation as represented by these two interpretations, is seen to have a formal character. Reason tells us only that God exists as an omnipotent first cause, but his will is not like the will of men and we have no rational knowledge of his nature, nor of the condition of men after death. The two interpretations considered, therefore, are devoid of significant consequences for the deduction of men's duties, except that they provide a formal termination for the scale of authority. In this capacity they may be held to support Hobbes's general use of a vocabulary in which law is always the instrument of some personal authority whose command it is, for natural law can be described as the command of God. There are, nevertheless, many respects in which the substantial argument for political obligation begins with natural law. The laws of nature provide a content from which the duties of men and the power of civil society alike can be constructed. Though they oblige as the commands of God, they are eternal and unchangeable and may be known to all men by the use of right reason. Up to this point, therefore, the traditional natural-law theorists would not have quarrelled overmuch with the account given of them, and though Hobbes's vocabulary could not be used for this purpose, they could be described as having some intrinsic authority. But whether obligation is to be based upon salvation, or the will of God, or upon a self-evident body of natural law, the argumentfromnatural law to civil duty, as presented in the first two Parts of this work, is not affected.

XV CONCLUSION:

MIGHT

HOBBES'S

AND

RIGHT

IN

PHILOSOPHY

T is often asked whether Hobbes finally subscribes to the doctrine that might is right, or that power justifies itself. Such a question, however, may be raised in two contexts; it may refer to the power and sanctions of God, or it may refer to the power and sanctions of the civil sovereign, and as the discussion is entirely different in each case, this question can be considered intelligibly only if its context is specified. We shall, therefore, examine in turn the place of God and that of the sovereign. But, first, it is necessary to give some explanation of the notion of power. Generally speaking, we can distinguish two main types of power: 1. A capacity to move or alter physical objects in conformity with our will; this may be called physical power. 2. A capacity to move or alter the will of other people to produce results in conformity with our own will; this we shall call political power. It will be observed that in so far as power is used to produce actions in men, physical power always concerns the production of involuntary actions and political power the production of voluntary actions. A great deal of attention has been paid of recent years to the problem of refining the concept of power and of analysing its several categories. Too often, however, these attempts exhibit a confusion between physical power and the physical instrumentalities of political power—a mistake which Hobbes did not make. It is common, for example, to regard the shooting of people as an instance of political power, or, taking political institutions to be means for obtaining a conformity of wills, to list execution as a possible part of such an institution.

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313

It is to be added, however, that killing a person is not in itself a form of political power, except in so far as the terror created in the minds of others makes them amenable to the will of the killer. Power over a corpse is simply physical power and there is no conformity of will established. Likewise, imprisonment is an example of physical power, except in so far as it deters others or reforms the prisoner. This confusion between two entirely different kinds of power leads to a wrong assessment of the sources of political power.1 If, for example, a man holds a club over the head of another, his political power is not in the club nor in the strength of the arm that wields it, and his power is not necessarily increased if these are made larger or stronger. His power resides in the fear of the patient; and if the patient does not fear death or injury, he has no political power over him. There is a sense, therefore, in which all political power, however derived, is based upon the choice and consent of the patient, in that the source of that power is always his own will. It is in virtue of this consideration that Hobbes is able to maintain that all forms of government are ultimately democratic. What Hobbes does, of course, is to refuse to evaluate the motives behind consent. The will is determined by the appetites and aversions of the agent as they play upon his particular problem and circumstance, and to be free is simply to be able to act according to the will, whatever the relevant appetites and aversions may be. Thus if the individual promises to obey in order to avoid prospective death, this is a voluntary choice and his covenant obliges, just as it would if the alternatives open to him had been more agreeable. Sovereignty by conquest has the same moral consequences as sovereignty by institution, for both are cases of consent in that the will of the subject decides the issue. If it is objected that a threat of death is a form of compulsion, Hobbes would reply that in such a sense all forms of willing are compelled. We always will according to appetite and aversion; moreover, we only choose and do not choose to choose or will to will. There is therefore 1

C£. Hobbes's views on punishment (noted above at pp. 184-5).

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freedom to act according to the will whatever it may be, but outside this context freedom has no meaning. If it is further objected that there is little difference between being frightened into jumping and being pushed, Hobbes would answer that there is the significant difference that one is a voluntary action whereas the other is not, and that morality is based upon this distinction. In this connexion, it may be noted that the two kinds of power which we have described (physical power and political power) correspond to Hobbes's two types of natural obligation, and it will be convenient to repeat his statement on this point. . . . there are two species of natural obligation. One, when liberty is taken away by corporal impediments, according to which we say that heaven and earth, and all creatures, do obey the common laws of their creation. T h e other, when it is taken away by hope or fear, according to which the weaker, despairing of his own power to resist, cannot but yield to the stronger. From this last kind of obligation, that is to say, from fear or conscience of our own weakness in respect of the divine power, it comes to pass that we are obliged to obey God in his natural kingdom; reason dictating to all, acknowledging the divine power and providence, that there is no kick-

ing against the pricks.1

It will be seen that the first type of obligation, which we have called physical obligation, is a demonstration of God's physical power; whereas the second type of obligation, which we have called moral obligation and have been concerned to examine in this treatise, is a demonstration of God's political power, for it establishes conformity through the will of the patient. It follows also that physical power of itself never obliges morally;2 and that obligation in the moral sense is associated with political power in so far as it is associated with power at all. We must now consider more closely the way in which the power of God is exercised. * DeCive,E.W., vol a, p. 209. See also DeCive(ed. Lamprecht), pp. 179-80.

J

Thus Hobbes could say, for example, that a man in chains or fetters was not obliged to his conqueror, but only if he covenanted for his life or freedom and was trusted. (See above, pp. 122-3.) Compare also, e.g., Liberty, Necessity, and Chance, E.W., vol. 5, pp. 229,290-1, 310.

IN HOBBES'S PHILOSOPHY

315

Hobbes contends that 'power irresistible justifies all actions . . . less power does not' and so God is justified in all he does, though Hobbes is careful to add that what is justice in God would not necessarily be justice in us. So far, power is defended, but it is only irresistible power which is given this privileged position. Now if irresistible power is related to moral obligation it will be irresistible political power, and may be described as something in the patient or subject that necessarily determines his will on reflection. The thought of God or of his sanctions necessarily moves those who deliberate adequately to act in conformity with what they take to be God's will. The believer will not, of course, always obey God's will; he may act from passion or may not attend to the particular case before him sufficiently to see it as an example of what he takes God's will to be. Granted adequate knowledge and deliberation, however, irresistible political power may be otherwise called a sanction that is always sufficient; and if to be morally obliged is to be necessarily moved on reflection, then Hobbes's statement that irresistible power obliges is an analytical proposition, as understood of political power and moral obligation. There remains the case of the person who does not believe in God. With regard to such a person, on the terms which we have employed, God would have no political power, but only physical power; just as, for example, someone with a club would have no political but merely physical power over those who were too short-sighted to see the club. If the proposition that irresistible political power morally obliges is analytical, the person in question will have no moral obligations, and, as we have seen, this is the position of the strict atheist in Hobbes's doctrine. He is not a subject, but an enemy of God. In the context of the power of God, Hobbes avoids an identification of might and right only in virtue of the distinction that can be drawn between these two cases; that is between being governed by God's political power and being governed by his physical power. Political power is at least a 1

Sec above, pp. s8o-i.

3 I6

CONCLUSION: MIGHT AND RIGHT

form of power that is exercised through the will of the patient and so is a type of consent in him. Also in order for this type of power to be operative, the patient must have declared to him a command to which he is expected to conform. The commands of God, however, are general rules known in advance to all men of right reason, for God does not oblige in the moral sense indiscriminately, but only through his commands which are the laws of nature. In view of this notion of law, there is always possible a distinction between punishment for breach of the law and gratuitous violence or affliction, and though Hobbes maintains that God has the right to afflict all men at his pleasure, and this extends even to innocent and obedient subjects, such conduct would not be just in men, and a civil sovereign who proceeded in this way would be guilty of a sin. God is incomprehensible and his purposes are not to be questioned by men. Within the sphere of his law, nevertheless, and over his subjects, that is over all who believe in some sense in an omnipotent God and natural law as his command, there is a difference between physical power exercised for breach of the law or in accordance with the law, and physical power exercised in disregard of the law. This may be held to create some distinction between might and right, and though Hobbes regarded it as inappropriate to apply human categories to the actions of God, this does not imply an identity between these two terms. Where the field of law terminates, however, this distinction disappears. The atheist is not simply a criminal or a sinner; he exists outside the competence of natural law completely, in a state of nature or war much more fundamental than the Hobbesian State of Nature obtaining before the institution of civil society. In this condition, as subject only to the physical power of God, he is to be regarded as an enemy of God's kingdom, and here Hobbes is committed to the view that might is right or that right has no meaning. The discussion of the place of God and the power which he exercises, however, has little bearing upon the position of the civil sovereign and Ms sanctions, for these operate in an

IN H O B B E S ' S P H I L O S O P H Y

317

entirely different context. Though there is a sense in which irresistible power obliges and justifies itself, less power does not, and for all the less degrees of power there is always a clear distinction in Hobbes's doctrine between having the power to do something and having the right to do it. But in the first place, it is to be noted that even apart from the question of justification, the power itself which is exercisable by the sovereign is not a simple matter. Leviathan is terrible and Hobbes portrays its terror in a few striking metaphors; but it is also feeble and most of his argument is really concerned with this aspect, for apart from a few colourful phrases, what emerges most strongly from his account is the appalling weakness of the sovereign. As a person or a group of persons, the sovereign no doubt has a modicum of physical power. He may also be able to exercise some political power through the devotion or fear which he can inspire in other men. But the power of men is substantially equal, and a device is required to create the preponderance of power necessary for the control of a political society. The power that is needed is basically political, for the essential problem is to be able to command obedience; it is not to be able to dispose of physical resources. The sovereign, therefore, must acquire an enhanced capacity to bring the will of other men into conformity with his own, and this can only be done in a lasting and stable form, through their being put into a position where they regard themselves as having a duty to obey him. The political covenant, the device whereby the sovereign acquires his power, is essentially a means by which the citizen takes an obligation upon himself to obey the commands of the sovereign, and it retains this character throughout. From his general duty to observe natural law and the valid covenants which he makes under its provisions, the individual becomes bound by the civil law to which he is contracted, and the power of the sovereign is primarily the reluctance of his subjects to break natural law. Sometimes, it is true, Hobbes speaks as though the citizen

318

CONCLUSION: MIGHT AND

RIGHT

transferred his power to the sovereign on joining civil society, which may suggest that this power is a kind of physical substance which the sovereign can collect once and for all and can then use as a sanction upon the future conduct of the subject. Political power, however, cannot be accumulated in this way, as Hobbes admits where he states that the power in question cannot be transferred in a natural manner;1 and elsewhere he bases it squarely upon duty. . . . For if men know not their duty, what is there that can force them to obey the laws? An army, you will say. But what shall force the army? Were not the trained bands an army? Were they not the janissaries, that not very long ago slew Osman in his own palace at Constantinople?2 If the civil sovereign had been capable of governing through the terror of his own sanctions alone, Hobbes need not have troubled himself so much to insist that the subject ought to be taught the ground of his duty. Nor need he have set out to undermine the pretensions of the churchmen or the moral philosophers, for their danger lay in the alternative theses they presented concerning the duties of men, and the credence they might gain for their views. Likewise it would have been less necessary for Hobbes to have elaborated a moral and political doctrine to demonstrate that obedience to the civil law was the duty of the citizen. The possibility of political society is dependent upon most citizens or a critical number of them being prepared to do their duty once they see it, quite apart from the sanctions which the sovereign may be able to exercise against them. Whether they do their duty because they regard it as the will of God, or whether it is through hope of salvation or fear of divine punishment, is here immaterial; they do not do it through fear of the sovereign, for unless they are prepared to do their duty the sovereign is powerless and there is nothing to fear from him. Though civil sanctions may deter a few recalcitrants, they cannot withstand a general run on the bank. Hobbes is a moralist, therefore, at least in this * See above, pp. 105-14, 271-2. Behemoth, E.W., vol. 6, p. 237. See also ibid., p. 184.

1


319

sense, that far from holding might to be right, he perceives that might in the context of political sovereignty has to be based upon right. As we have stated above, the power of the sovereign is basically the reluctance of the subject to break natural law. At the same time, however, this does not mean that the sanctions which the sovereign exercises do not play an important part in the theory of political society, for they have a significant influence even upon the duties of men. Natural law obliges but does not oblige unconditionally, and as we have seen, it never commands men to abandon their lives.1 One aspect of this situation has been described above in the statement that 'sufficient security'2 is a validating condition of obligation; thus men are always obliged to 'endeavour peace' or to refrain from cruel actions, for these are always 'safe', but they are not obliged to specific performance of their covenants, for instance, where they have a just fear that other men may default. The purpose of the civil sanction is to provide a framework of security sufficient to validate obligations fully, or in other words sufficient to take away the grounds of just fear in these cases. Hobbes's position, therefore, may be stated as follows. Political society can be established and sustained only if there are a certain number of men who are generally prepared to do their duty quite apart from the coercion of human sanctions. But although this is a necessary condition of society, it is not a sufficient condition because in a state of distrust and war, the 'natural' state of men, their duties are modified in the interests of reasonable attempts at self-preservation. It is only by covenanting themselves into a duty to obey the commands of * It can happen in a marginal case, it is true, that a man may have a duty to perform an action which involves his death, namely where he may commit virtual suicide as a martyr in order to gain salvation. Such a duty, however, is not commanded by natural law as such, but is introduced by the positive law of God forbidding idolatry. This is therefore an annex to the rational theory of obligation and affects Christians only. But martyrdom as a duty under these circumstances is not stipulated by Hobbes for all Christians and this remains a very exceptional instance. See above, pp. 170-6, 273—4. 2 This provision has a technical meaning and its implications are set out in detail above in Chapters III and IV. Here a few examples are given simply for purposes of illustration.

320

CONCLUSION: MIGHT AND

RIGHT

a unitary sovereign that the problem can be resolved. Drawing upon the citizen's obligations to assist or not to resist him, in so far as these are observed by dutiful men, the sovereign has the power to assure them against a criminal minority. On the assumption now thatifthe citizen observes natural law in the strict and complete sense the machinery exists for protecting him from the criminal, the citizen no longer has reasonable ground for breach of covenant and so is obliged by the civil law, except for those limiting cases where the sovereign tries to kill him or where it appears to the citizen that the machinery of protection has manifestly broken down, either generally (civil war or foreign conquest) or locally and in some particular (self-defence against thugs and assassins).1 The sanctions exercised by the sovereign, therefore, do not enforce obedience in general, but where there are sufficient men willing to do their duty, these sanctions provide a framework of security against defaulters that is enough to make natural law fully operative.2 Having considered the power of the sovereign, we must turn to the question of his authority. The source of the sovereign's authority in Hobbes's doctrine is sometimes misinterpreted because of Hobbes's contention that when the sovereign loses his power to defend the subject, he also loses his right3 to the subject's obedience. But although a loss of power in this case involves a loss of authority, it does not follow that the sovereign's authority derives from his power, nor that other men who acquired power would also acquire authority. The position that the sovereign loses his right to obedience when he can no longer give protection, is a consequence from the consideration, put forward above, that the obligation of the individual is contingent upon 'sufficient security', and where * The civil law itself, of course, normally allows for self-defence in extreme and urgent danger, but in Hobbes's theory, even if the civil law declared it illegal, self-defence would always be permissible in extremity. See, e.g., Leviathan, E.W., vol. 3, p. 204; also above, pp. 3 2 - 3 3 , 1 1 4 - 1 8 , 188-95, 257-8! 1 See above, pp. J40-5, 200-9. 1 The word 'right' is used here with the usual meaning, and not in Hobbes's special sense. The statement made above, therefore, is simply another way of saying that die subject loses his duty to obey.


321

this security is lacking he may attempt to preserve himself by any means which seem justifiable to him in terms of his own circumstances and fears. Nevertheless, authority is not gained in the same manner as it is lost. The sovereign is an authority for the subject because in concluding a political covenant, the subject has 'authorized' his actions; he has in general obliged himself to obey the sovereign's commands and indemnified the sovereign from accountability to himself, though the sovereign may still of course be judged by God or other men who have not 'authorized' him.1 If we set aside the special case of the power of God, power in general never by itself constitutes authority. Thus in Hobbes's account, it is not the victory that makes the authority of the conqueror, but the covenant and authorization of the vanquished; and a man in chains or fetters is not obliged to his captor, but only if he covenants for his life and is trusted.2 Elsewhere on many occasions, Hobbes draws a distinction between a legitimate sovereign and a usurper; between having the supreme power in a society and having the right to govern, for power only becomes authority where it is authorized by the subject, and a wielder of power who has not been authorized is described by Hobbes as an 'enemy'.3 Hobbes's treatment of the case of the successful rebel is complicated, it is true, but it is consistent with this interpretation. Rebellion is always a sin, even successful rebellion, that is even when the rebel turns out to have been more powerful than the sovereign. Nevertheless, when the rebel has succeeded in establishing himself, it is not necessarily a new sin on his part to govern, and the citizen who has authorized him will have a duty to obey the new sovereign to whom he now owes his protection. As in any conquest, however, this acquisition of authority derives, not from the power of the rebel, nor from his victory, but from the covenant of submission made by the subject, and it is an authority which extends only over those who have made such a covenant.4 1

See above, pp. 108-12,

1

See above, pp.

5

See passages cited above at pp. 2 6 1 - 2 .

•

See, e.g.,

577*

122-3.

Leviathan,

129-33,

177-9.

E.W., v o l 3 , pp. 7°3"7'»

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