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Leviathan No More: The Right of Nature and the Limits of Sovereignty in Hobbes

Published online by Cambridge University Press:  14 April 2016

Abstract

This article challenges the prevailing interpretations of Hobbes's thought as providing only minimal protection for the natural right of individuals in political society. Natural right requires the protection of not just the subjects' lives, but their ability to live commodiously, and as a result the protection that natural right receives in political society places substantive constraints on the actions of the sovereign. When those entrusted with sovereign power overstep this constraint, they cease to be sovereign and the former subjects are returned to the state of nature to seek protection as each judges fit. I develop the substance of commodious living more thoroughly than similar analyses and demonstrate that this understanding is not limited to Leviathan but can be found in Hobbes's earlier political work as well.

Type
Research Article
Copyright
Copyright © University of Notre Dame 2016 

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References

1 All references to Hobbes works use initial (L = Leviathan, DC = De Cive) and page number. The editions used are Leviathan, ed. Noel Malcolm (New York: Oxford University Press, 2012); On the Citizen, ed. Richard Tuck and Michael Silverthorne (New York: Cambridge University Press, 1998).

2 E.g., John Laird, Hobbes (London: Ernest Benn, 1934); Carmichael, D. J. C., “Hobbes on Natural Right in Society: The Leviathan Account,” Canadian Journal of Political Science 23, no. 1 (1990): 321Google Scholar; Sheridan, Patricia, “Resisting the Scaffold: Self-Preservation and the Limits of Obligation in Hobbes's Leviathan,” Hobbes Studies 24 (2011): 137–57CrossRefGoogle Scholar; Andrew Levine, Engaging Political Philosophy (New York: Blackwell, 2002).

3 A. P. Martinich, The Two Gods of “Leviathan” (New York: Cambridge University Press, 1992), 173.

4 John Bowle, Hobbes and His Critics (New York: Barnes & Noble, 1951), 13.

5 Samuel I. Mintz, The Hunting of Leviathan (New York: Cambridge University Press, 1962).

6 Edwin Curley, introduction to Leviathan, with selected variants from the Latin edition of 1668, ed. Curley (Indianapolis, IN: Hackett, 1994), xxxviii.

7 Jon Parkin, Taming the Leviathan (New York: Cambridge University Press, 2007).

8 Ibid.

9 Levine, Engaging Political Philosophy, 44.

10 Steinberger, Peter J., “Hobbesian Resistance,” American Journal of Political Science 46 (2002): 858Google Scholar.

11 Curran, Eleanor, “Can Rights Curb the Hobbesian Sovereign?,” Law and Philosophy 25 (2006): 245Google Scholar.

12 Ibid., 257.

13 Ibid., 250.

14 Steinberger, “Hobbesian Resistance,” 857.

15 Eleanor Curran, Reclaiming the Rights of the Hobbesian Subject (New York: Palgrave Macmillan, 2007).

16 Howard Warrender, The Political Philosophy of Thomas Hobbes (New York: Oxford University Press, 1957).

17 Martinich, Two Gods of “Leviathan”; Lloyd, S. A., “Hobbes's Self-Effacing Natural Law Theory,” Pacific Philosophical Quarterly 82, no. 3–4 (2001): 285308Google Scholar.

18 Leo Strauss, The Political Philosophy of Hobbes (Chicago: University of Chicago Press, 1952).

19 Gregory S. Kavka, Hobbesian Political and Moral Philosophy (Princeton, NJ: Princeton University Press, 1986).

20 F. S. McNeilly, The Anatomy of Leviathan (New York: St. Martin's, 1968), 250.

21 Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition, trans. Daniela Gobetti (Chicago: University of Chicago Press, 1993), 45.

22 Kavka, Hobbesian Political and Moral Philosophy, 374.

23 Lloyd, “Hobbes's Self-Effacing Natural Law Theory.”

24 Kavka, Hobbesian Political and Moral Philosophy, 345.

25 The entirety of this argument about the natural law is predicated on the natural law being rational guidelines instead of divine commands. Hobbes leaves open the possibility that they are the word of God, in which case individuals would have an obligation to obey the natural law at all times, when he writes of the natural law, “These dictates of Reason, men use to call by the name of Lawes, but improperly; for they are but Conclusions, or Theorems, concerning what conduceth to the conservation of themselves; whereas Law, properly is the word of him, that by right hath command over others. Yet if we consider the same theorems, as delivered in the word of God … then are they properly called Lawes” (L 242). Martinich (Two Gods of “Leviathan”) takes the latter position and argues that Hobbes does consider the laws of nature to be divine commands, and therefore these laws are binding even in the state of nature. However, this position is problematic because Hobbes is unequivocal that there is “no obligation on any man which ariseth not from some act of his own” (L 336). The only kind of law that springs from individual action is positive law, originating from the sovereign that individuals empower, not divine law. Accordingly, it is more congruent with Hobbes's argument to find Hobbes's position in the first part of the aforementioned quote from chapter 15 and state that “if the laws of nature are to become obligatory, they must be imposed by a civil law. It therefore follows that it is the civil law which makes a natural law obligatory” (Bobbio, Thomas Hobbes, 129). For this reason I treat the natural law as prudential maxims.

26 Michael Oakeshott, Hobbes on Civil Association (Indianapolis, IN: Liberty Fund, 1937), 71.

27 See also Steinberger, “Hobbesian Resistance.”

28 Jean Hampton, Hobbes and the Social Contract Tradition (New York: Cambridge University Press, 1986), 199.

29 Ibid., 202–3.

30 Ibid., 197.

31 Susanne Sreedhar, Hobbes on Resistance (New York: Cambridge University Press, 2010); Joseph Raz, The Morality of Freedom (New York: Oxford University Press, 1986).

32 Not only is Raz not providing an interpretation of Hobbes when he articulates his framework, but by using a Hohfeldian understanding of rights Raz's model rests on assumptions contrary to Hobbes's. Although some scholars use a Hohfeldian framework when analyzing Hobbes's conception of right (e.g., Yates, Arthur, “A Hohfeldian Analysis of Hobbesian Rights,” Law and Philosophy 32 [2012]: 405–34Google Scholar), I do not do so here. Hohfeld's conception of rights and duties defines them as correlatives (Wesley Newcomb Hohfeld, Fundemental Legal Conceptions [New Haven: Yale University Press, 1919]), whereas Hobbes denies this and says that right and duty are as different as liberty and obligation (L 198). Since Hobbes allows rights to exist without corresponding duties and there are significant questions regarding the soundness of applying a framework for juridical relations to a prepolitical definition such as Hobbesian right (Curran, EleanorLost in Translation,” Hobbes Studies 19 [2006]: 5876Google Scholar; Curran, Reclaiming the Rights), whenever I discuss right I am using Hobbes's definition.

33 Curran, “Can Rights Curb.” See also Curran, Reclaiming the Rights.

34 Warrender, Political Philosophy of Thomas Hobbes, 118.

35 While it could be argued that this conclusion conflates the fact of preservation with the perception of it, Hobbes recognizes that when individuals determine how to act, perception is reality. Hobbes conceives of individuals as rational actors who seek to maximize benefits (L 202). However, he also differentiates between the world as it exists and the world as human beings perceive it through their senses (L 22–24). Individuals can only act on the basis of the world as they perceive it, not how it objectively is; the perception of protection thus carries more weight for individuals than the realty of it. Accordingly, the conflation of the ontological state (the absence of protection) with the epistemological state (the perception of an absence of protection) is an inevitable consequence of Hobbes's assumptions.

36 Lucien Jaume, “Hobbes and the Philosophical Sources of Liberalism,” in The Cambridge Companion to Hobbes's “Leviathan,” ed. Patricia Springborg (New York: Cambridge University Press, 2007).

37 A related objection is that this system lacks a method of impartially judging the sovereign. However, for Hobbes judgment can never be impartial. He defines will and deliberation solely in terms of the individual's appetites (L 90–92), and judgment in terms of our understanding of the past and future (L 98), which are themselves defined in terms of good and evil (L 98), which are little more than appetite and aversion (L 80–82). Therefore, since any judge will be partial in Hobbes's view, the partiality inherent to such an interpretation does not preclude it from being Hobbes's position.

38 Steinberger, “Hobbesian Resistance.”

39 Steinberger, “Hobbesian Resistance,” 861.

40 Thomas Hobbes, On the Citizen, ed. Richard Tuck and Michael Silverthorne (New York: Cambridge University Press, 1994 [1642]), epistle dedicatory.

41 John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis, IN: Hackett, 1980 [1689]), 50.

42 Hampton, Hobbes and the Social Contract Tradition, 195.

43 Richard E. Flathman, Thomas Hobbes (Newbury Park, CA: Sage, 1993), 121.

44 Quentin Skinner, “Hobbes on Persons, Authors and Representatives,” in The Cambridge Companion to Hobbes, ed. Tom Sorrell (New York: Cambridge University Press, 2007); Quentin Skinner, Hobbes and Republican Liberty (New York: Cambridge University Press, 2008).

45 Skinner, Hobbes and Republican Liberty, 164.

46 Sheridan, “Resisting the Scaffold,” 154.

47 Skinner, Hobbes and Republican Liberty, 164.

48 Warrender, Political Philosophy, 114.

49 Conal Condren, Thomas Hobbes (New York: Twayne, 2000), 46.

50 E.g., Richard Tuck, Philosophy and Government, 1572–1651 (Cambridge: Cambridge University Press, 1993).

51 Kavka, Hobbesian Political and Moral Philosophy, 82.

52 Curran, “Can Rights Curb,” 250.

53 Ibid.

54 Kavka, Hobbesian Political and Moral Philosophy, 212.

55 See also Eleanor Curran, “Hobbes's Theory of Rights—A Modern Interest Theory,” Journal of Ethics 6, no. 1 (2002): 63–86.

56 Warrender, Political Philosophy of Thomas Hobbes, 181.

57 Curran, Reclaiming the Rights.

58 Although Hobbes wrote De Cive a decade before Leviathan, his thought, especially regarding obedience and protection, is so consistent across texts that “if we are interested in Hobbes's political thought, we will still find it at least as clearly set out in De Cive as in Leviathan” (Richard Tuck, introduction to On the Citizen, ed. Richard Tuck and Michael Silverthorne [New York: Cambridge University Press, 1998], xxxiii). This position draws additional credence from Hobbes's later decision to have these two texts published together in a single volume, indicating he conceived of these works as being complementary in some manner (ibid.).

59 Steinberger, “Hobbesian Resistance,” 863, 864.

60 E.g., Burgess, Glenn, “On Hobbesian Resistance Theory,” Political Studies 42 (1994): 6283Google Scholar.

61 Gauthier, David, “Hobbes: The Laws of Nature,” Pacific Philosophical Quarterly 82, no. 3–4 (2001): 258–84Google Scholar.

62 The phrase “rule of law” as it is currently understood is contrary to Hobbes's statements regarding the relationship between the sovereign and the law. The idea of rule of law implies a system in which not only is governance conducted via law, but those who rule are bound by the laws. The latter criterion is especially important because in its absence it is possible to argue, as Oakeshott does, for Hobbes being a rule-of-law thinker (Michael Oakeshott, “The Rule of Law,” in On History and Other Essays [Oxford: Basil Blackwell, 1983]). Yet when this requirement is part of the definition of rule of law, Hobbes is easily recognized as one who “does rail against the rule of law” (Michael P. Zuckert, “Hobbes, Locke and the Problem of the Rule of Law,” in Launching Liberalism: On Lockean Political Philosophy [Lawrence: University Press of Kansas, 2002], 299; see also Hampton, Hobbes and the Social Contract Tradition, esp. in light of his statement that the sovereign “is not subject to the civil laws” [L 416]).

63 Martinich, Two Gods of “Leviathan,” 173.

64 Yves Charles Zarka, “The Political Subject,” in “Leviathan” after 350 Years, ed. Tom Sorell and Luc Foisneau (Oxford: Clarendon, 2004), 181.

65 Curley, introduction to Leviathan, xxxviii.