Vol. 15 No.11 (November 2005), pp.1001-1004

 

HOBBES ON LAW, by Claire Finkelstein (ed). Burlington, VT: Ashgate Publishing Company. 603pp. Cloth $225.00/£110.00. ISBN 0-7546-2178-2.

 

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu

 

“Come on in! What’s your problem? You say you had a discussion on Hobbes and the law in Smith’s class and you still feel a bit lost? Why don’t you talk to Dr. Smith? Oh, he’s ill and you have a test coming up? Well, it’s been awhile since I read Hobbes. You know I’m not an expert on him either, right? OK, I’ll do my best. If I remember right, Hobbes was the first legal positivist. He’s like Austin or Hart; he sees laws as commands from governments. Yes, he is a contract theorist too, but you probably heard in class that his ideas about the social contract are just a justification for setting up a sovereign authority. The rule of law? I’m guessing that your class decided that Hobbes wouldn’t have gone along with the idea; limits on the sovereign wouldn’t appeal to him. Yes, it’s a pretty uncomplicated view of law and government. Clearer now? Good. Glad I could help.”

 

I can imagine a conversation just like this between students and even fairly sophisticated scholars who are not Hobbes specialists. On the surface, every assertion above is supported by a reading of the summaries of his work in common use. Further, this second-hand knowledge is seldom corrected by deep study of his ideas. While Hobbes is one of the greatest English stylists to ever live, few assay to read all of LEVIATHAN, DE CIVE, or his lesser known works unless they are focusing closely on him as an academic interest.

 

Yet, as the readings in Clare Finkelstein’s new collection make clear, virtually all of the views expressed above are either incorrect or leave out substantial qualifications. It is true that Hobbes saw laws as commands, but it is probably a misunderstanding to see him as a legal positivist. He was a contract theorist, but his ideas on the character of the social contract are both complex and controversial and extend far beyond a justification for governments. Further, Hobbes’ sovereign is not unlimited; he had very particular ideas about the legitimacy of laws and the power of governments. He strongly supported the rule of law as well, though his version of the concept is different from that of more recent commentators.

 

Finkelstein has done non-specialists a service by collecting, in one place, a variety of readings that make close analysis of Hobbes’ ideas on these and other subjects readily available. HOBBES ON LAW is organized efficiently around a variety of topics: legal theory; natural law and natural right; equity; contract; punishment and compensation; self-defense, revolution, and the duty to obey the law; and international law. Each topic is represented by a selection of articles and something of profit can be learned in each section.

 

I want to assure potential readers that none of the articles in this volume are a [*1002] waste of time; anyone who wants to learn more about Hobbes’ views on the law can read them all with profit. However, rather than saying something about each article (there are 26 of them), I will instead concentrate on the interpretations that I found most useful in correcting the common errors in analysis I cite at the beginning of this review. Inevitably, this will seem to favor some authors and some topics above others, but I hope this review will lead interested scholars to a closer reading.

 

“If I remember right, Hobbes was the first legal positivist. He’s like Austin or Hart; he sees laws as commands from governments.” As the readings in the first section of HOBBES ON LAW make clear, this commonly held opinion is actually controversial. It is true, as all the contributions point out, that Hobbes did see civil laws as commands. But that is by no means the end of the story. Only M. M. Goldsmith follows the more conventional script of seeing Hobbes as a precursor of modern legal positivism. Other perspectives differ, mainly in how they treat Hobbes’ account of the relationship between civil and natural law. Mark Murphy sees Hobbes as more akin to medieval natural law theory, comparing his theory of law closely to Thomas Aquinas’. By this view, Hobbes, unlike modern legal positivists, asserts the existence of natural law and gives it a considerable role to play in determining which commands are lawful. David Gauthier’s essay, on the other hand, portrays Hobbes as a contract theorist in law as well as politics. Gauthier takes Hobbes to argue that when we contract with each other to establish a sovereign, the contract is based on a priori recognition of natural laws; predispositions apprehensible by reason that form the basis of social peace. As he points out, both here and in a later essay on Hobbes’ views on natural law, Hobbes goes to considerable pains to delineate natural laws. Gauthier also holds, however, that while Hobbes thought everyone could apprehend natural law through an application of reason, without a sovereign it has no practical application. The natural right to self-preservation prevails instead. If a sovereign has been established, however, then natural law will be given enforceable form in the sovereign’s commands; civil law will “contain” natural law. Hobbes, then, is not a theoretical legal positivist since we can acknowledge natural laws that have force beyond the coercive power of the state (since God gave us reason, they must be His commands and we are obligated to obey them), but that he is a practical one in that those laws can only have force as a sovereign’s commands, commands that we have contracted with each other to obey. However, perhaps David Dyzenhaus and Robert Ladenson are closer to the truth in their contributions. Both assert that Hobbes is sui generis as a legal theorist and that trying to identify him with other schools of thought is an interesting, but ultimately fruitless exercise.

 

 “Yes, he is a contract theorist too, but you probably heard in class that his ideas about the social contract are just a justification for setting up a sovereign authority.” Here our protagonist is somewhat closer to the truth, but, again, the complexities of Hobbes’ thought go far beyond such a simple presentation. The dilemma in which Hobbes finds himself when he begins to talk about contracts and the establishment of [*1003] sovereignty is well described in the essays in Part 4 of HOBBES ON LAW. Robinson Grover’s essay lays out the problems with Hobbes’ views clearly. Hobbes says we “covenant” with each other to create a sovereign in a state of nature. We keep to these covenants because it is in our interest to do so; getting a reputation for being unreliable is socially dangerous and violates the law of nature that we should seek peace. But asserting this makes the entire argument for creating a sovereign superfluous; why have a sovereign to enforce contracts if everyone lives up to their promises anyway?

 

The essays by M. T. Dalgarno and Larry May try to find a path out of this conundrum. Both see the sovereignty as a three step process. First, individuals in a state of nature, seeing that their position is dangerous, must consent to an initial agreement to transfer their natural right to govern themselves to a third party, a sovereign. In a second step, individuals will contract with each other to obey the sovereign, a contract that only becomes effective on the first party to the agreement when the other party agrees to obey as well. The third step is the establishment of an actual sovereign, what May calls a constitutional contract, binding all parties to a sovereign third party established through majority vote. As Dalgarno says, this allows both the obligations that citizens have to each other to obey the sovereign and the lack of limits on sovereign authority Hobbes insists on to coexist. These qualifications do not get Hobbes out of the difficulties Grover describes, but, again, the advice given to our inquiring student has turned to be too simple by half.

 

 “The rule of law? I’m guessing that your class decided that Hobbes wouldn’t have gone along with the idea; limits on the sovereign wouldn’t appeal to him.”  As the essays in Part 6 of HOBBES ON LAW show, this may be the most common error made about Hobbes’ thought. As both Larry May and Clare Finkelstein show, Hobbes does allow for a right to resist sovereigns, a right built on his assumption that no rational individual can give up the right to self-preservation. Reconciling this with a sovereign whose commands we have obligated each other to obey is not easy. The solutions suggested by these authors are slightly different. May interprets Hobbes to hold that, once a social contract is made, individuals have an obligation to obey all sovereign commands that seem likely to preserve the social peace that was the contract’s object. The contract, in other words, has established a public will that cannot be gainsaid. On the other hand, however, there are many areas where public will does not reach and self-preservation may be threatened. Here individuals have no obligation to obey commands; indeed, quite the contrary. Finkelstein sees Hobbes as holding that rationality is pragmatic in nature; i.e. that it depends not on the rationality of particular acts, but on judgments of the rationality of courses of action. Pragmatic rationality combined with the right to self-preservation becomes a tool to use against sovereigns who by their actions undermine the protection presumed by the social contract. In short, our natural right to self-defense becomes a bulwark against tyrannical rule.

 

And what of the rule of law? In a pair of linked essays, Jean Hampton and Michael Zuckert contend very different [*1004] positions on this question. As Hampton points out, Hobbes’ ideas are not congruent with constitutionalist visions of the rule of law. For instance, Hobbes would have thought the institutional convolutions involved in the American constitution a waste of time; what actually counts in making the rule of law work is to have a single sovereign will behind it. All law demands interpretation, and only a public will can make such determinations. Hampton suggests that Hobbes’ views pay insufficient attention to the need for institutional restraints. Zuckert, in reply, points out that Hampton’s interpretation of Hobbes does not see that he was first and foremost committed to the rule of law; it is at the center of his vision of the social contract. The constitutionalist views of his great protagonist Locke allow more sources for extralegal moral judgments concerning the law, but Hobbes did allow a role for both natural right and natural law in considering justifications for legal obligations. Further, both Hobbes and Locke agree that moral judgments concerning policy, however grounded, must be expressed and interpreted in legal terms and using legal processes. The two sides of this debate, then, are not as diametrically opposed as they seem.

 

“Yes, it’s a pretty uncomplicated view of law and government.” If there is nothing else we can learn from HOBBES ON LAW, it is that Hobbes is very far from a simple thinker and that his views are very far from the impressions of his theories in common circulation. Further, I have barely scratched the surface here. Entire sections of interesting work on Hobbes’ thinking on issues of capital punishment, natural law, equity, and international law are not addressed in this review. Finkelstein’s editorial eye has covered and evaluated a vast amount of research on all these topics. While I am not expert enough on Hobbes research to judge her final decisions, I can say that she has selected very interesting and well written articles for her book. I found HOBBES ON LAW a challenging, but useful read. I will never teach or think about him in the same way again.

 

I must now end with a regret. Finkelstein has written a single editorial introduction to the articles that addresses some of the major concerns in research on Hobbes and the law, then presents brief summaries of the essays in each part. Non-specialist readers of HOBBES ON LAW would have benefited greatly from more detailed editorial treatments at the beginning of each topical division. I suspect that Finkelstein was not given the opportunity to do this. Obviously, the publisher has made every effort to reduce costs; the book consists of re-prints of articles from various sources and not even the fonts of the originals have been changed. I realize that HOBBES ON LAW is aimed at a limited audience, but its usefulness could have been significantly enhanced by slightly more liberal publishing values.

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© Copyright 2005 by the author, Tracy Lightcap.