Hobbles and the Laws of Nature

Hobbes and the Law of Nature, by Perez Zagorin; Princeton University Press, 2009, 177 pages, US$29.95.

Thomas Hobbes is known today as the political philosopher who wrote Leviathan. Although quoted frequently—“the life of man, solitary, poor, nasty, brutish, and short”—Leviathan is nevertheless a classic work comparable to, say, de Tocqueville’s Democracy in America—often cited but seldom read. This is a pity. Hobbes discussed the foundations of sovereign authority and political obligation in a way that still has much relevance.

Perez Zagorin, who died last year, is the author of a number of well-received works, including one on Milton, and others on Thucydides, Francis Bacon, and now Hobbes. Zagorin remarks in his preface that he has been reading Hobbes for over fifty years. Hobbes published a translation of Thucydides’s History of the Peloponnesian War in 1629 and, during the 1620s, while translating Thucydides, worked as a part-time secretary to Bacon. Zagorin is thus ideally placed to write about this significant, albeit controversial, thinker.

Hobbes and the Law of Nature combines three discussions. Zagorin first describes Hobbes’s ideas of natural law in the state of nature, then discusses Leviathan, and finally and in opposition to many commentators attempts to show that Leviathan is restricted by moral standards that are derived from the law of nature or natural law. He outlines the importance of Hobbes as not only a political but also a moral philosopher. Zagorin’s Hobbes believed in a moral natural law and is deeply interested in its relation to law, politics and the state.

When Hobbes published Leviathan in 1651, Charles I had been executed, Charles II was an exile in France, and Oliver Cromwell was the most powerful man in England. Zagorin is steeped in this period. He is particularly good at showing how the politics of the day are reflected in Leviathan. For instance, according to Hobbes, obedience to the sovereign was given in exchange for protection. When the sovereign was no longer able to provide protection, subjects could transfer their allegiance to someone who could. Those in power were thus legitimate rulers—a position the royalists bitterly contested. As one royalist noted: “whear thear is might thear is right, it is dominion if it succeed, but rebellion if it miscarry, a good argument for pyrates uppon the sea, & for theeves uppon the high way, fitter for hobbs & Atheists then good men and christians”.

The title Leviathan itself sheds light on Hobbes’s philosophy. His bleak understanding of human nature led him to a bleaker notion of what life would have been like in the state of nature before the creation of the state. It would, he argued, have been so miserable that all would quickly give their consent to the creation of a centralised state with absolute power that could enforce civil peace and obedience. While not denying that Hobbes did argue for an all-powerful state, Zagorin claims that natural law influenced “his theory of political absolutism”.

The transition from an anarchist state of nature to an absolutist state was also a transition from an order based solely on natural law to one based also on what we would now call positivist law. One of the important debates about Hobbes revolves around the question of whether he was indeed a legal positivist or not. According to legal positivism, of course, law is defined exclusively as the commands of the sovereign (or state) and is divorced from moral values. As seen in Jeremy Bentham’s dismissive phrase, “nonsense on stilts”, legal positivists usually reject the idea of natural law and natural rights. Although Hobbes is often seen as a forerunner of legal positivism, Zagorin begs to differ. Hobbes took natural law seriously.

Natural law was traditionally used to develop and justify revolutionary ideas about government accountability. According to the notion of a social contract, if government was founded on and legitimised by consent, then consent could be withdrawn in cases of misgovernment. According to this doctrine, government could be held accountable for its actions; a natural right of resistance to unjust government—a right, in other words, to revolution—exists. Indeed, both the civil war waged against, and the execution of, Charles I could be viewed as exercises of this right. Hobbes, who lived in exile in France during the civil war, opposed what he believed to be the corrosive and destructive nature of this doctrine. Zagorin’s theorist of natural law wanted to overturn one of its major doctrines.

Hobbes’s state is founded on consent—mutual covenants of every man with every other man—and emerges from a state of nature—and so his legal philosophy does indeed begin with natural law. In other words, Hobbes’s political philosophy is founded on the intellectual tradition of natural law and natural rights. The state of nature predates the state and thus predates positive law. Here the individual enjoys an unlimited freedom that is in fact limited by the unlimited freedom of everyone else. To understand Hobbes we must first examine his state of nature.

Unlike a John Locke, Hobbes saw mankind as largely incapable of co-operating in the state of nature. This is because he understood mankind, in Zagorin’s words, to be “naturally self-centered, competitive, and aspiring to domination, needing to be made fit for society by education, and driven by a multiplicity of emotions, desires, aversions, fears, and passions”. The fundamental emotion is the desire for self-preservation and the fear of death. At the same time, the desire for glory, honour and precedence triggers competition. To the strongest go the spoils—but the strongest is determined by the sword and, in Hobbes’s world, will always eventually come across someone stronger.

The state of nature, then, is a state of constant war, perpetual conflict, and great insecurity. Civilisation is not possible. There are, in Hobbes’s words, “no arts, no letters, no society”, but instead “continual fear and danger of violent death”. This explains why “the life of man” in the state of nature is “solitary, poor, nasty, brutish, and short”.

Since Hobbes believed that the fundamental characteristic of human nature is the desire to avoid death, and especially violent death, people in the state of nature will agree to relinquish a large part of the natural rights and freedoms they possess in the state of nature in exchange for a powerful state that will provide peace and curb violent death. By creating an all-powerful sovereign, mankind creates a fearsome power or “sword” that, because it is feared, will be obeyed. In return for the unequal relationship now created between sovereign and subject, they receive peace, law, order and security.

Once created, however, his state, Leviathan, becomes a proponent of positive law. Indeed, natural law in Hobbes’s understanding has been said to be “self-effacing”. However, Zagorin argues that it is not in fact wholly subsumed by the sovereign’s laws, and that the principles of moral law continue to function to impose moral (but not legal) limits on the state. Zagorin thus argues that natural law continues to play a role, however minimal, in the legal order of Leviathan.

Hobbes believed in the need for a strong, authoritarian government and argued that the creation of a commonwealth—a state—is in the interest of all. As Zagorin says, Hobbes believed that a commonwealth by definition must enjoy “a supreme sovereign power possessed of a comprehensive authority to govern its subjects”. Any attempt to limit or divide sovereignty threatens political stability. Thus, while he began with the state of nature, and accepted the existence of natural law and natural rights, ideas which usually produced a belief in a natural right to revolt, Hobbes differed from other natural rights theorists in endeavouring “to strip it of its revolutionary import”. Zagorin states that Hobbes’s “political theory succeeded in adapting the language of contract and rights to his advocacy of authoritarian government and in cancelling the populist and revolutionary implications of this language by his concept of absolute sovereignty”.

Hobbes offered a stark choice between order and stability on the one hand and a perpetual war of all against all on the other. “The contrast between Leviathan and the state of nature was thus fundamentally a contrast between civil peace and the benefits of civilization, on the one hand, and fear, insecurity, violence, and reversion to barbarianism on the other.”

He stressed the “dissolute condition of masterless men, without subjection to law and a coercive power to tie their hands from rapine and revenge”, and claimed that “the worst thing that could befall a people under any type of government amounted to little compared with the miseries and calamities” produced by a lack of government. He insisted that rebellion was always wrong, and never morally justifiable. In reply, Zagorin stipulates that Hobbes “could not have foreseen or imagined the … unspeakable terror, repression, violence, mass slaughter, and genocide brought upon their own peoples and the world by the leviathan fascist, Nazi, and communist states of the twentieth century”.

To the extent that security and the benefits of security—arts, letters and civilisation—rest on the ability to end the war of all against all and to achieve peace, Hobbes can indeed be viewed as a moral philosopher. The question is: Is Leviathan necessary to achieve these ends? Does stability always require that unlimited power be bequeathed to the state? Some modern people (including Zagorin and many of his readers) do have an alternative to Leviathan—the stable modern state that combines a separation of powers and constitutional (or limited) government with peace. But instances of lawless states surely suggest that Leviathan might be justified in some circumstances.

Zagorin has immersed himself in the works of Hobbes and in the massive body of secondary material on Hobbes, and squabbles politely with the latter throughout the book, especially in the copious endnotes. He has written a wonderful, opinionated, knowledgeable work.

David Askew reviewed Marx’s General by Tristram Hunt in the April issue.