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Hobbes on Natural Right in Society: The Leviathan Account*

Published online by Cambridge University Press:  10 November 2009

D. J. C. Carmichael
D. J. C. Carmichael
Affiliation:
University of Alberta
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Abstract

This article examines Hobbes' conception of natural right in society as presented in Part Two of Leviathan (primarily chapters 21 and 26 through 28). In contrast to Hobbes' earlier works, this section contains an implicit but important account of natural rights (called “true liberties”) in society and a corresponding set of restrictions on the proper use of law and punishment. Authority is thus absolute, but its proper use is limited. I argue that these limits are significant, that they represent an important revision in Hobbes' theory and that the resulting conception of natural right provides a useful basis for understanding rights today.

Résumé

Le présent article examine la conception qu'a Hobbes du droit naturel dans la société, tel que présenté dans la partie deux du Léviathan (essentiellement dans les chapitres 21 et 26 à 28). Contrairement aux ouvrages précédents, on y trouve un exposé implicite mais important des droits naturels (appelés « vraies libertés ») en société et plus loin une série de limites quant à l'usage correct de la loi et des châtiments. Si bien que l'autorité est absolue, mais son usage correct limité. Je soutiens que ces limites sont significatives, qu'elles représentent une révision importante de la théorie de Hobbes, et que la conception du droit naturel qui en decoule fournit une base de toute première utilité pour la compréhension des droits aujourd'hui.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 23 , Issue 1 , March 1990 , pp. 3 - 21
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1990

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References

1 Passages in Leviathan are cited by chapter, followed by the page in the Macpherson edition. See Hobbes, Thomas, Leviathan, ed. by Macpherson, C. B. (Harmonds-worth, Middlesex: Penguin Books, 1968).Google Scholar

2 Gauthier, David, The Logic of Leviathan (Oxford: Clarendon Press, 1969)Google Scholar, chap. 4. Gauthier has recently revised his view in “Hobbes's Social Contract,” in Rogers, G. A. J. and Ryan, Alan (eds.), Perspectives on Thomas Hobbes (Oxford: Clarendon Press, 1988), 150–51.Google Scholar

3 This includes the right not to accuse anyone by whose condemnation one would fall into misery, such as a father, wife or benefactor.

4 Hobbes’ use of the word “man” is gender non-specific (that is, as “human adult”). This is clear, I think, from his treatment of the right of dominion (20:253–54).

5 Throughout Part Two of Leviathan Hobbes refers to natural rights as “liberties,” that is, as the rights of persons as subjects.

6 The same qualification (frustrating the end for which the sovereignty was established) occurs at 21:268. It is analyzed by Gauthier in “Hobbes's Social Contract,” 142–48.

7 The implications of mutual defence have not been appreciated. Unlike the other true liberties, it allows a right of collective action.

8 The same claim is made at 27:338. This limitation does not apply to natural law where it has not been given positive declaration.

9 Deborah Baumgold notes a number of cases in which the exercise of a “true liberty” would be excused from punishment. See Baumgold, Deborah, Hobbes's Political Theory (Cambridge: Cambridge University Press, 1988), 31–35.Google Scholar

10 Mario Cattaneo cites this as evidence of the liberal character of Hobbes’ views of punishment without relating the point to the true liberties of the subject. See Cattaneo, Mario, “Hobbes's Theory of Punishment,” in Brown, K. C. (ed.), Hobbes Studies (Oxford: Basil Blackwell, 1965), 286.Google Scholar

11 The limits on the proper use of law and punishment are not confined to the exercise of true liberties (natural rights). But that is our special interest here.

12 Tuck questions whether this is true of The Elements. If so, the development in Hobbes’ thought on this issue is even more significant. See Tuck, Richard, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), 120–24.CrossRefGoogle Scholar

13 In both The Elements (Part I, 17:2) and De Cive (3:14) the law of nature requiring the acknowledgment of equality is followed (as in Leviathan) by a reference to rights which cannot be renounced. There is also a statement in De Cive (2:18–19) but not in The Elements that no one can be obliged by certain contracts. There is nothing in either work corresponding to the “true Liberty” of Leviathan. On the contrary, liberty is understood simply as “that part of naturall Right, which is granted and left to Subjects by the civill Lawes” (13:15). References here are to T Hobbes, Homas, The Elements of Law, Natural and Politic, ed. by Tönnies, Ferdinand (2nd ed.; New York: Barnes and Noble, 1969)Google Scholar and to Hobbes, Thomas, De Cive, ed. by Warrender, Howard (Oxford: Oxford University Press, 1983).Google Scholar

14 This authority is also grounded in the continuing (non-renounced) right to all things of the sovereign.

15 Indeed, the restrictions on the proper exercise of law (in chapters 26–28) do not suggest any desire by Hobbes to limit authority as such. Rather, they probably arise from his efforts to establish this authority on behalf of the sovereign against the judiciary.

16 Howard Warrender notes that this has been a standard criticism of Hobbes since Pufendorf. See Warrender, Howard, The Political Philosophy of Hobbes (Oxford: Clarendon Press, 1957), 20–21.Google Scholar 1 address this criticism in the final part of this article.

17 I do not mean that the view was held in this form by Locke himself.

18 See, among others, Hampton, Jean, Hobbes and The Social Contract Tradition (Cambridge: Cambridge University Press, 1986), 243–46Google Scholar; and Tuck, Richard, Hobbes (Oxford: Oxford University Press, 1989), 75–76.Google Scholar Tuck, for example argues effectively against the common impression of Hobbes as a theorist of absolute state power (69–75) but then describes these limitations as moral duties as if the only alternative were enforceable rights of the subjects (75).

19 This interpretation is suggested by Hobbes’ definition of the law as command. But Hobbes is not a legal positivist in the full sense. His conception of law is not completely content-independent and, perhaps more important, he does not use the fact of command to define “obligation.” Rather, obligation is presupposed by the definition: law is not the command of a superior, but of one whom the subject is already obliged to obey (26:312).

20 There is nothing strange in this. If someone is offside in a football game and everyone sees it except the referee, the referee's call will be authoritative but recognizably incorrect.

21 Compare 18:237 and 27:346–47 with 14:192. See also Hobbes, Thomas, Behemoth, or the Long Parliament, ed. by Tönnies, Ferdinand (London: Simkin, Marshall, 1969), 118.Google Scholar

22 I owe it to readers to note one passage in Leviathan which might be cited against this interpretation. In his first discussion of punishment of the innocent (26:324–25) Hobbes remarks inter alia that “A written Law may forbid innocent men to fly, and they may be punished for flying” even in the case of a capital charge, which suggests that he would see no problem with laws making the exercise of “true Liberty” illegal and punishable. The statement occurs in the midst of a passage in which Hobbes mocks Coke's claim that flight from a capital charge might be treated as a presumption of guilt, even after a judicial acquittal. Hobbes declares that this is against the laws of nature, that “there is no place in the world, where this can be an interpretation of a Law of Nature, or be made a Law by the Sentences of precedent Judges” and that it “therefore is no Law of England”—even though the judiciary apparently treated it as such at the time! But if there can be laws forbidding flight, why can't there be laws instructing judges to treat flight as a presumption of guilt notwithstanding the fact of subsequent acquittal? Hobbes is emphatic here: there can be no such law and no such interpretation of natural law anywhere in the world. The only way to dispel the contradiction is to read laws forbidding flight as “authoritative” (but improper). I am not entirely happy with this, but it is better than saying he is “confused.”

23 The right of nature may seem to be limited to physical self-preservation insofar as Hobbes’ psychology is based upon the maintenance of vital motion (that is, life). But self-preservation is not asserted as a desire apart from the rest. All desires—intellectual as well as physical—express and promote vital motion. In respect of vital motion, there is not an absolute distinction between conditions which threaten physical survival and those which would be demoralizing or emotionally devastating.

24 This raises the question: which is primary, the right of nature or the law of nature? I have argued elsewhere that if either term is read as primary it will trump the other consistently out of Hobbes’ account. The only way to make sense of the text is to treat them together as complementary principles. The right of nature entitles individuals to judge the requirements of their life and nature; on this basis, the law of nature obliges them to act upon it. See Carmichael, D. J. C., “The Right of Nature in Leviathan,” Canadian Journal of Philosophy 18 (1988), 257–70.CrossRefGoogle Scholar Tuck (Hobbes, 63) argues a similar view.

25 Note how these limits indicate that the right of nature goes beyond bare physical survival. Hobbes does not say that certain rights cannot be renounced because this would threaten one's life, but because no good to oneself could be gained. Similarly, the equal recognition condition would be unintelligible if the right of nature were the same as bare survival.

26 Hobbes notes that “true Liberty” may be exercised unreasonably and is therefore a crime: “But to kill a man, because from his actions, or his threatenings, I may argue he will kill me when he can (seeing I have time, and means to demand protection, from the Sovereign Power,) is a Crime” (27:343).

27 This has been argued by Jean Hampton, in Hampton, Hobbes and The Social Contract Tradition, 197–207.

28 Ibid., 205. Hampton treats this as “cheating” because it is inconsistent with the view of persons as utility maximize rs (unconstrained by any sense of obligation) which she wants to read into Hobbes. In my view, this is mistaken. For a recent corrective, see Sorell, Tom, Hobbes (London: Routledge and Kegan Paul, 1986)Google Scholar, chap. 8. Gauthier has altered his own view on this point (“Hobbes's Social Contract,” 147).

29 See Terry Heinrich's warnings against the tendency to use Hobbes as a model for understanding American liberalism in Heinrich, Terry, “Hobbes and The Coleman Thesis,” Polity 16 (1983–84), 647–66.CrossRefGoogle Scholar

30 Recall that social rights are based on the duty to respect the legitimate exercise of natural rights.

31 It might be objected that universal (Lockean) rights could be defended in the same way; that is, by distinguishing between universal human rights and the means of meeting them in any specific society. This strategy is not open to a Lockean model, since duty is specified by the right which entails it. To advocate a socially specific duty is to suppose a different and equally specific right; socially specific duties (for example, medicare) cannot be asserted as universal or “human” rights.

32 It might be objected that natural rights play no real role in this account because “social rights” are established as duties not as entailed by natural rights. This is a mistake. The duty is specifically to respect the natural rights of the subjects; the fact that this duty is not specified by a right does not mean that the right is irrelevant. This is particularly important because subjects retain the right to apply this right for themselves.

33 This must be read in the light of the problems discussed in part two of this article. I thank David Braybrooke for drawing this point to my attention.

34 As noted earlier, this has been a standard criticism of Hobbes. As a result, the “right” of nature has widely been reinterpreted in weaker terms as a “permission.” As Gauthier put it, the right of nature is “what it is all right for one to do. It is not, however, what one has a right to…” (The Logic of Leviathan, 30; emphasis in original). I criticized this view in Carmichael, “The Right of Nature in Leviathan,” 266–69, but the issue now seems to me both simpler and more fundamental than I had realized.

35 Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974).Google Scholar