Hobbes and the law of nature

Hobbes and the Law of Nature

Volumn , Issue , 2009, Pages

  Zagorin, Perez ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78651230876     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Book

References (253)

1. For the reader's convenience, Inote that there are a number of biographies of Hobbes. Among those in English are Miriam Reik, The Golden Lands of Thomas Hobbes (Detroit, MI: Wayne State University Press, 1977), and the most recent one, by the philosopher and well-known Hobbes scholar A. P. Martinich, Hobbes: A Biography (Cambridge: Cambridge University Press, 1993). Noel Malcolm provides an up-to-date review of Hobbes's life and career in "A Summary Biography of Hobbes," in idem, Aspects of Hobbes (Oxford: Clarendon Press, 2002).
2. Otto Gierke, Natural Law and the Theory of Society, 1500 to 1800 (Boston: Beacon Press, 1960), p. 61; this work is an English translation of a part of vol. 4 of Gierke's Das deutsche Genossenschaftsrecht, published in 1913;
3. Carl J. Friedrich, The Age of the Baroque, 1610-1660 (New York: Harper, 1952), p. 27.
4. Among recent accounts of Hobbes as a natural law theorist, see, e.g., Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), a helpful survey that is disappointing, however, in its mistaken assumption that Hobbes was a follower of the Dutch jurist Hugo Grotius. The intellectual relationship between Hobbes and Grotius is discussed later in this chapter and the next. J. B. Schneewind includes comments on and selections from Hobbes in his useful collection of texts, Moral Philosophy from Montaigne to Kant, 2 vols. (Cambridge: Cambridge University Press, 1990), vol. 1, and rightly calls Hobbes (vol. 1, p. 112) "an indispensable central figure in the history of ethics."
5. Michael Oakeshott, "The Moral Life in the Writings of Thomas Hobbes" (1962), Rationalism in Politics and Other Essays, new exp. ed. (Indianapolis: Liberty Press, 1991), pp. 312, 323, and n., 332.
6. David Gauthier, "Hobbes: The Law of Nature," Pacific Philosophical Quarterly 82, no. 2 (2001): 258-284, reprinted in Hobbes on Law, ed. Claire Finkelstein (Aldershot, UK: Ashgate, 2005). This useful anthology reprints twenty-six essays of recent vintage dealing with Hobbes's legal philosophy.
7. A.P. Martinich, The Two Gods of Leviathan (Cambridge: Cambridge University Press, 1992).
8. On the subject of legal positivism and its origins, see H.L.A. Hart, "Legal Positivism," in The Encyclopedia of Philosophy, ed. Paul Edwards, 8 vols. (New York: Macmillan and Free Press, 1967); The Concept of Law (Oxford: Clarendon Press, 1986), pp. 181-189; "Positivism and the Separation of Law and Morals," in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983); and "John Austin," in International Encyclopedia of the Social Sciences, 17 vols. (New York: Mac millan and Free Press, 1968); on the contribution of Bentham
9. see also Jeremy Waldron, "Nonsense Upon Stilts?" (London: Methuen, 1987), chap. 3. Noted twentieth-century legal positivists such as Hart and Hans Kelsen reject the imperative theory of law, which defines it as the command of the sovereign, but continue to maintain that the concept of law does not entail any necessary connection with morals. On the meaning and different interpretations of legal positivism, see the papers collected in The Autonomy of Law: Essays on Legal Positivism, ed. Robert P. George (Oxford: Clarendon Press, 1996), and in Natural Law Theory, ed. Robert P. George (Oxford: Clarendon Press, 1992).
10. Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition (Chicago: University of Chicago Press, 1993), pp. 147, 148. The original Italian edition was published as Thomas Hobbes (Turin: Einaudi, 1989).
11. Thomas Hobbes, De Corpore, 1655, Epistle Dedicatory, EW, vol. 1, pp. 8-9.
12. DC, Epistle Dedicatory, p. 27; L, A Review and Conclusion, 13.
13. L, chap. 43.24; Hobbes makes this remark in connection with the interpretation of Scripture.
14. Oakeshott, "The Moral Life," p. 332.
15. Aristotle, Nicomachean Ethics, 1134b-1135a, bk. 5, chap. 7; Politics, 1252-53, bk. 1, chap. 2.
16. The continued pertinence of Cicero in natural law thinking is illustrated by Hadley Arkes, "That 'Nature Herself Has Placed in Our Ears A Power of Judging': Some Reflections on the 'Naturalism' of Cicero," in George, Natural Law Theory.
17. Cicero, De Re Publica (On the Commonwealth), 3.22. Save for some passages, this work was lost for centuries until the rediscovery of considerable fragments of it in 1820. Its definition of natural law was preserved in the Divine Institutions by the Christian apologist Lactantius of the later third century and became very widely known.
18. These opinions, cited in Digest, 1, "On Justice and Law," were those respectively of the jurists Ulpian, Gaius, and Paulus; the texts are reproduced in Sigmund, pp. 32-34; on the Roman lawyers' theory of the law of nature, see Carlyle and Carlyle, A History of Medieval Political Theory, vol. 1, chap. 3.
19. See Carlyle and Carlyle, A History of Medieval Political Theory, vol. 1, chap. 9, on the church fathers and natural law.
20. These passages in Decretum, 1, are cited by D. E. Luscombe, "Natural Morality and Natural Law," in The Cambridge History of Later Medieval Philosophy, ed. Norman Kretzmann, Anthony Kenney, and Jan Pinborg (Cambridge: Cambridge University Press, 1996), p. 707.
21. This is the title of Koyré's well-known book on the scientific revolution; Alexander Koyré, From the Closed World to the Infinite Universe (New York: Harper Torchbooks, 1958).
22. John McDowell, "Two Sorts of Naturalism," in Virtues and Reasons: Philippa Foot and Moral Theory, ed. Rosalind Hursthouse, Gavin Lawrence, and Warren Quinn (Oxford: Clarendon Press, 1995), p. 7.
23. G.H. Sabine, A History of Political Theory, 3rd ed. (New York: Holt, Rinehart, and Winston, 1964), p. 460.
24. Commenting on the revolutionary conflicts of the later sixteenth and seventeenth centuries, Gierke noted (Natural Law, pp. 37, 231 n. 13) that "the champions of popular sovereignty...availed themselves of the weapons of Natural Law," and mentions a number of writers as examples;
25. see also Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978), vol. 2, chap. 9, and Jonathan Scott, Commonwealth Principles: Republican Writing of the English Revolution (Cambridge: Cambridge University Press, 2004), passim. This subject is further discussed in chap. 2.
26. DC, Preface to the Reader, pp. 30-31.
27. EL, p. 17; pt. 1, chap. 15.1, p. 57; DC, Epistle Dedicatory, pp. 25-26; L, chap. 26.21.
28. Thomas Hobbes: Three Discourses. A Critical Modern Edition of Newly Identified Work of the Young Hobbes, ed. Noel B. Reynolds and Arlene W. Saxonhouse (Chicago: University of Chicago Press, 1994), pts. 1, 4.
29. Andrew Huxley, "The Aphorismi and A Discourse of Laws: Bacon, Cavendish, and Hobbes 1615-1620," The Historical Journal 47, no. 2 (2004): 399-412. This work by Bacon, Aphorismi, was discussed and translated by Mark Neustadt in "The Making of the Instauration: Science, Politics, and Law in the Career of Francis Bacon," Ph.D. diss., Johns Hopkins University, 1987. It has also been discussed in my Francis Bacon (Princeton, NJ: Princeton University Press, 1998), pp. 151, 198-99.
30. Digest, 1.1.1, 9; see A. P. D'Entrèves, Natural Law, new ed. (New Brunswick, NJ: Transaction Publishers, 1994), p. 29, and the discussion and citations in Carlyle and Carlyle, A History of Medieval Political Theory, vol. 1, chap. 3, on the Roman lawyers' theory of the law of nature.
31. See his comment on Aristotle's philosophy in L, 46.11, which is part of a chapter entitled "Of Darkness from Vain Philosophy and Fabulous Traditions," a critical survey of ancient and medieval scholastic philosophy.
32. Among the works listed in the Hardwick library catalogue is Melchior Goldast's Monarchia Sancti Romani Imperii (1611-14), a three-volume collection of political tracts that includes writings by William of Ockham and Marsilio of Padua.
33. In her essay "Hobbes and the Beginnings of Modern Political Thought," in Reynolds and Saxonhouse, Thomas Hobbes: Three Discourses, Arlene Saxonhouse argues for and considerably exaggerates the points of intellectual contact between Hobbes and Machiavelli based on the attribution to Hobbes of the first discourse, "A Discourse upon the Beginning of Tacitus."
34. Pufendorf, The Law of Nature and Nations, p. 96; Specimen Controversiarum, pp. 11-12, cited in Malcolm, "Hobbes and the European Republic of Letters," in Aspects of Hobbes, p. 525.
35. Grotius, The Law of War and Peace, vol. 2, Dedication, p. 4; Prolegomena, 1-3, 28.
36. Tuck, "The 'Modern' Theory of Natural Law," p. 104.
37. Rommen, The Natural Law, chap. 3; d'Entrèves, Natural Law, pp. 53-56; see also Chroust, "Hugo Grotius," pp. 354-55, 364, who stresses the influence of scholasticism and in particular of Suárez on Grotius's theory of natural law.
38. Haakonssen, Natural Law and Moral Philosophy, p. 15.
39. Tierney, The Idea of Natural Rights, chap. 13, p. 319.
40. Grotius, The Law of War and Peace, Prolegomena, 11.
41. For the sources of Grotius's statement and the literature on the subject, see Zagorin, "Hobbes without Grotius," pp. 28-30, and Tierney, The Idea of Natural Rights, pp. 319-20; see also the pointed comments of John Finnis, Natural Lawand Natural Rights (Oxford: Clarendon Press, 2004), pp. 43-44, 54 n.
42. Quoted from Gierke's Johannes Althusius und die Entwicklung der naturrechtlichen Theorien in F. W. Maitland's translation of Otto Gierke, Political Theories of the Middle Ages (Cambridge: Cambridge University Press, 1913), p. 174 n.
43. For Suárez's reflections on whether natural law might be licit even if there were no God, see On Laws and God the Lawgiver: Selections from Three Works, 2 vols., Classics of International Law (Oxford: Clarendon Press, 1994), vol. 2, bk. 2, chap. 6.3, pp.189-190. Bernd Ludwig, Die Wiederentdeckung des epikureischen Naturrechts (Frankfurt am Main: Klostermann, 1998), p. 430 and n. 75, emphasizes the direct link between Grotius, Suárez, and Spanish neoscholastic natural law.
44. Grotius, The Law of War and Peace, vol. 2, bk. 1, chap. 1.10.1, pp. 38-39.
45. Suárez, On Laws and God the Lawgiver, vol. 2, bk. 1, chap. 5.16, 24; bk. 2, chap. 5.5-6, pp. 67, 72, 180-81.
46. On the discussion of method in early modern philosophy and Grotius's view of method, see Zagorin, Francis Bacon, pp. 51-57, and "Hobbes without Grotius," pp. 22-23.
47. Richard Tuck, "Grotius and Selden," in The Cambridge History of Political Thought 1450-1700, ed. J. H. Burns (Cambridge: Cambridge University Press, 1991), p. 518, and Philosophy and Government, p. 171.
48. Grotius, The Law of War and Peace, Prolegomena, 58.
49. Barbeyrac, An Historical and Critical Account of the Science of Morality, pp. 67, 70.
50. Grotius, The Law of War and Peace, Prolegomena, 56; see also the discussion of Grotius's method by Alfred Dufour, "L'influence de la méthodologie des sciences physiques et mathématiques sur les fondateurs de l'école du droit naturel moderne (Grotius, Hobbes, Pufendorf)," Grotiana, n.s., 1 (1980): 33-52, reprinted in Grotius, vol. 2.
51. George Croom Robertson, Hobbes (Philadelphia, 1886), p. 143.
52. Grotius, The Law of War and Peace, vol. 2, Prolegomena, 40.
53. L, A Review and Conclusion, 15.
54. Grotius, The Law of War and Peace, vol. 2, bk. 1, 12.1, p. 42.
55. EL, pt. 1, chap. 15, p. 57; cf. the similar refutation of this view in DC, chap. 2.1.
56. Quoted in Waldron, Theories of Rights, Introduction, p. 4.
57. H.L.A. Hart, "Are There Any Natural Rights?" reprinted in Waldron, Theories of Rights.
58. Janet L. Nelson, "England and the Continent in the Ninth Century: II. Rights and Rituals," Transactions of the Royal Historical Society, 6th ser., 24 (2004), indicates some meanings of right in the ninth century in the primary sense of what is right or just and in a secondary sense as a justifiable legal or moral claim.
59. Fred D. Miller, Jr., Nature, Justice, and Rights in Aristotle's Politics (Oxford: Clarendon Press, 1995), has argued interestingly but, I think, unconvincingly that Aristotle held a conception of natural rights based on the notion of natural justice. I do not believe this idea was present either in Aristotle or in classical Greek political theory. Philip Mitsis has attempted to show that natural rights originated in ancient Stoicism; see his "The Stoic Origin of Natural Rights," in Ierodiakonou, Topics in Stoic Philosophy
60. See the statements by Ulpian and Florentinus quoted in Carlyle and Carlyle, A History of Medieval Political Theory, vol. 1, p. 76, from Digest, 1.1.4; 1.5.4.
61. Tierney, The Idea of Natural Rights, pp. 185, 210; on William of Ockham and natural rights, see also McGrade, The Political Thought of William of Ockham, chap. 4.
62. Suárez, On Laws and God the Lawgiver, bk. 1, chap.2.5, p. 30; cf. bk. 2, chap.17.2, pp. 325-26, where the author notes that ius is an ambiguous term that can mean either a law or a moral right to something.
63. Tierney, "The Origins of Natural Rights Language," p. 619.
64. On Aquinas's interchangeable use of lex and ius and their relationship to justice, see Thomas Aquinas, Summa Theologiae, IIa-IIae, qu. 57, art. 1. In Aquinas: Political Writings, ed. R. W. Dyson (Cambridge: Cambridge University Press, 2002), p. 158 and n.2, the editor comments that "the subtleties of meaning" in Aquinas's various uses of ius, lex, and iustum "sometimes defy translation." Aquinas conceived of right almost entirely in the objective sense of rightness or justice rather than as a subjective right pertaining to individuals.
65. Suárez, On Laws and God the Lawgiver, bk. 1, chap. 2.1,6, 9, pp. 28-29, 31-32, 33.
66. Grotius, The Law of War and Peace, bk. 1, chap. 1.4-5, pp. 35-36.
67. See above, n. 88.
68. Peter Haggenmacher, "Droits subjectifs et système juridique chez Grotius," in Politique, droit et théologie chez Bodin, Grotius et Hobbes, ed. Y. C. Zarka (Paris: Éditions Kimé, 1997).
69. Grotius, The Law of War and Peace, bk. 1, chap. 4.7.2-3, p. 149.
70. John Locke, Two Treatises of Government, ed. Peter Laslett, 2nd ed. (Cambridge: Cambridge University Press, 1967), Second Treatise, 57, pp. 323-324.
71. L, chap. 30.21. Quentin Skinner has noticed the similarity between Locke and Hobbes on this point in his essay, "Thomas Hobbes and the Proper Signification of Liberty," Transactions of the Royal Historical Society, 5th ser., 40 (1990): 135.
72. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953).
73. Thomas Hobbes, The History of the Grecian War by Thucydides, EW, vol. 8, p. 8.
74. L, chap. 46.15. For Hobbes's earlier development as a philosopher, see Frithiof Brandt, Thomas Hobbes's Mechanical Conception of Nature (Copenhagen: Leven and Munksgard, 1928), and the biographical accounts in Malcolm, Aspects of Hobbes, pp. 9-14, and Martinich, Hobbes: A Biography, chap. 4.
75. This tripartite division of philosophy is briefly described by Hobbes in DC, Preface to the Reader, p. 35, and is later discussed in De Corpore (1655), EW, vol. 1, pt. 1.
76. DC, Epistle Dedicatory, pp. 25-26.
77. EL, Epistle Dedicatory, p. 17.
78. Grotius, The Law of War and Peace, vol. 2, Prolegomena, 5-6.
79. See Michael Frede, "On the Stoic Conception of the Good," in Ierodiakonou, Topics in Stoic Philosophy, who comments (p. 71) that the Stoics believed that "nature has constructed human beings in such a way that, if nothing went wrong, we would in the course of our natural development become virtuous."
80. EL, pt. 1, chap. 7.3, p. 22; DC, chap. 1.2. Hobbes took no account of akrasia, or weakness of will, a subject much discussed by present-day moral philosophers, or of the fact that weakness of the will could lead individuals to desire things they knew were not good.
81. Thomas Hobbes, On Man (1658) in Man and Citizen, ed. Bernard Gert (Indianapolis: Hackett, 1991), chap. 11.6; DC, chap. 3.12; for the term "reproach" in the English translation of DC, Hobbes's original Latin version uses contumeliam, which is better translated as slander or insult.
82. Hobbes, On Man, chap. 11.6.
83. EL, Epistle Dedicatory, p. 17.
84. Hobbes does speak, however, of Adam's sin in eating of the tree of knowledge, for which he and his posterity were punished by the loss of eternal life; L, chap. 38.2.
85. It should be noted that Aristotle's Rhetoric includes an analysis of the passions and that Hobbes held this work in the highest regard despite his general disparagement of Aristotle's philosophy. In the 1630s he made a Latin translation and an English paraphrase of the Rhetoric, which subsequently influenced his discussion of the passions in EL; see Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1996), p. 38.
86. For the idea of natural human equality in Stoicism, Cicero, Seneca, and the New Testament, see the discussion and texts cited in R. W. Carlyle and A. J. Carlyle, A History of Medieval Political Theory, vol. 1, chaps. 1, 2, 7, 10.
87. William James, Pragmatism (Philadelphia: Hackett, 1981; first published 1907), Lecture I.
88. See Carlyle and Carlyle, A History of Medieval Political Theory, vol. 1, pp. 23-26.
89. Quentin Skinner notes its use by Molina, however, who spoke of the "status naturae"; Skinner, The Foundations of Modern Political Thought, vol. 2, p. 155.
90. Richard Hooker, The Laws of Ecclesiastical Polity (1593), in Works, ed. John Keble, 2 vols. (New York, 1873), vol. 1, bk. 1, chap. 10.1.4.
91. Suárez, On Laws and God the Lawgiver, vol. 2, bk. 3, chap. 1.2-3, pp. 363-364.
92. Johannes Althusius, Politica (1614 ed. abridged), ed. Frederick S. Carney (Indianapolis: Liberty Fund, 1995), chap. 1, pp. 23, 24.
93. Grotius, The Law of War and Peace, vol. 2, Prolegomena, 16.
94. François Tricaud, "Hobbes's Conception of the State of Nature from 1640 to 1651: Evolution and Ambiguities," in Rogers and Ryan, Perspectives on Thomas Hobbes, p. 114.
95. See George Klosko and Daryl Rice, "Thucydides and Hobbes's State of Nature," History of Political Thought 6, no. 3 (1985): 405-409.
96. Bernd Ludwig's Die Wiederentdeckung der epikureischen Naturrechts advances the view that Hobbes's theory of natural law underwent a significant change in Leviathan from what it had been in The Elements of Law and De Cive. His argument on behalf of this thesis is unsupported by the evidence and wholly unconvincing, as is his claim, set forth in chap. 9, that Hobbes became an Epicurean; see also Karl Schuhmann's review of Ludwig's work in Archiv für Geschichte der Philosophie 83, no. 1 (2001): 100-103.
97. L, chap. 15.21. In formulating this law of nature, Hobbes explicitly repudiates the famous Aristotelian doctrine that men are born unequal by nature and states that "the inequality that now is has been introduced by the laws civil."
98. On the contractual tradition of political theory, see Otto Gierke, The Development of Political Theory (New York: Norton, 1939), chap. 2, and idem, Natural Law, pt. 3, sec. 14, chap. 4, both valuable discussions with rich documentation which note among other things Hobbes's unique position in this tradition; see also Gough, The Social Contract, chaps. 5-8. The contractual tradition has been revived in our time by the influential treatise of John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
99. A mong the Hobbes scholars who have discussed this problem are David Gauthier, The Logic of Leviathan (Oxford: Clarendon Press, 1969), and "Hobbes's Social Contract," in Rogers and Ryan, Perspectives on Thomas Hobbes; Kavka, Hobbesian Moral and Political Theory; and Hampton, Hobbes and the Social Contract Tradition.
100. On the concept of right reason and its history, see Robert Hoopes, Right Reason in the English Renaissance (Cambridge, MA: Harvard University Press, 1962), and Herschel Baker, The Wars of Truth (Cambridge, MA: Harvard University Press, 1952), chap. 3 et passim.
101. Cicero, De Legibus, 1.6.18; Disputationes Tusculanae, 4.15.34; Seneca, Epistulae Morales, 66.33; the latter two passages are quoted in Hoopes, Right Reason, p. 35.
102. Hooker, The Laws of Ecclesiastical Polity, bk. 1, chap. 7.4.
103. See Luscombe, "Natural Morality and Natural Law."
104. Suárez, On Laws and God the Lawgiver, vol. 2, bk. 2, chap. 6. 5; chap. 7.7, pp. 191, 212.
105. Hooker, The Laws of Ecclesiastical Polity, bk. 1, chap. 10.5.
106. Suárez, On Laws and God the Lawgiver, vol. 2, bk. 1, chap. 3.9, 11; chap. 5; bk. 2, chap. 5.5, pp. 42, 44, 58-72, 181; cf. the discussion of Suárez's concept of natural law and obligation by Finnis, Natural Law and Natural Rights, passim, and M.W.F. Stone, "The Scope and Limits of Moral Deliberation: Recta Ratio, Natural Law, and Conscience in Francisco Suárez," in Imagination in the Later Middle Ages and Early Modern Times, ed. Lodi Nauta and Detlev Patzold (Louvain: Pesters, 2004).
107. Willis B. Glover, "God and Thomas Hobbes," in Brown, Hobbes Studies, pp. 160-161.
108. Frederick A. Olafson, "Thomas Hobbes and the Modern Theory of Natural Law," Journal of the History of Philosophy 4, no. 1 (1966): 15-30. Note also the essay by G.A.J. Rogers, "La religion et la loi naturelle selon Hobbes, Les lois de la nature et la loi morale," in Politique, droit et théologie chez Bodin, Grotius et Hobbes, ed. Y. C. Zarka (Paris: Éditions Kimé, 1997), which concludes (p. 281) that the laws of nature in Hobbes are both scientific theorems conducive to human conservation and commandments of God.
109. Martinich, The Two Gods of Leviathan, pp. 100-101, chap. 4.
110. This is spelled out at greatest length in DC, chap. 4, which quotes many scriptural passages as divine confirmation of the laws of nature.
111. Hobbes says in L, chap. 26.37, that natural laws "have been laws from all eternity, and are called not only natural but also moral laws, consisting in the moral virtues."
112. Note Glover's formulation (p. 160) that for "all who believe in God's governance of the world...this belief is sufficient to transform the laws of nature...into the commands of God." Karl Schuhmann has similarly and correctly pointed out that the laws of nature are not laws except for those who believe in God; see his "La notion de loi chez Hobbes," in Karl Schuhmann, Selected Papers on Renaissance Philosophy and Thomas Hobbes (Dordrecht: Kluwer Academic Publishers, 2004), pp. 187-188.
113. I believe that this was the case despite the importance that Quentin Skinner's Reason and Rhetoric in the Philosophy of Hobbes has attributed to Hobbes's use of rhetorical devices in Leviathan.
114. Hobbes here makes the important comment consistent with his general viewpoint that it is the sovereign power that makes the law of nature law, otherwise it would be "a great error to call the laws of nature unwritten law (whereof we see so many large volumes published, and in them so many contradictions of one another, and of themselves)"; L, chap. 26.22.
115. L, chap. 26.8, 21, 37, 38. Hobbes also distinguishes between human and divine positive law, the latter being God's commands that are not from eternity nor addressed universally to all men, but only to certain persons; L, chap. 26.39-49. On the origin, meaning, and understanding of the concept of positive law in legal philosophy, see James B. Murphy's valuable work, The Philosophy of Positive Law.
116. Grotius, The Law of War and Peace, vol. 2, Prolegomena.16, 41; bk. 1, chap. 1.14, p. 44.
117. S.A. Lloyd, "Hobbes's Self-Effacing Natural Law Theory," Pacific Philosophical Quarterly 82, no. 3 (2001): 285-308, reprinted in Finkelstein, Hobbes on Law.
118. See above, chap. 1.
119. Tierney, The Idea of Natural Rights, pp. 340-341.
120. See Quentin Skinner's discussion of Hobbes's use of this concept in "Hobbes on Persons, Authors and Representatives," in Springborg, The Cambridge Companion to Hobbes's Leviathan.
121. Grotius, The Law of War and Peace, vol. 2, bk. 1, chap. 3.7, p. 102.
122. L, chap. 20.11. Hobbes finds no incompatibility between conquest, force, and the principle of consent. Given his expansive view of the presupposition of consent in political subjection, he might perhaps be accused of straining the concept of consent beyond plausibility.
123. Grotius, The Law of War and Peace, vol. 2, bk. 2, chap. 11.7.2, p. 335.
124. L, chap. 21.3; Grotius, The Law of War and Peace, bk. 2, chap. 11.7.2, p. 335; Aristotle, Nicomachean Ethics, 1110a, bk. 3, chap. 1. Aristotle takes a more nuanced view than Hobbes in attempting to draw the line between voluntary and involuntary actions.
125. I have not been able to find the exact source of this often used Latin phrase, which enjoins that covenants should be kept. A probable source is Cicero, De Officiis (On Duties), 1.7.23, which associates the idea with the Stoics and calls good faith in abiding by promises and agreements the foundation of justice. Grotius states that "it is a rule of the law of nature to abide by pacts"; Prolegomena, 15.
126. An example he cites (L, chap. 14.27) is being forced to redeem oneself from a thief by promising him money, which one is obliged to pay until the promise is discharged by the civil law. Most people, I think, would hold that no one is obliged by a promise to pay money to a thief, a kidnapper, or a blackmailer.
127. L, chap. 14.31. In his treatment of crimes, Hobbes stated that fear "is the only thing (when there is appearance of profit or pleasure by breaking the laws) that makes men keep them." L, chap. 2.19.
128. Gierke, The Development of Political Theory, pp. 155-158, and see also pt. 2, chaps. 2-3, on the doctrines of the state contract and popular sovereignty; J. N. Figgis, Studies of Political Thought from Gerson to Grotius 1414-1625, 2nd ed. (Cambridge: Cambridge University Press, 1931; first published 1907), p. 127, and chap. 5 on the Monarchomachs.
129. The Vindiciae contra Tyrannos is listed as no. 1219 in Richard A. Talaska's edition of the Hardwick library catalogue that Hobbes compiled; see Talaska, The Hardwick Library and Hobbes's Early Intellectual Development. No. 317 of the "Libri Theologici" in this catalogue is headed "Monarcho-Machia" and lists an antimonarchomach work by John Barclay against the revolutionary theory of George Buchanan.
130. Henry Parker, Observations upon Some of His Majesties Late Answers and Expresses, 1642, quoted in Margaret Judson, The Crisis of the Constitution (New Brunswick, NJ: Rutgers University Press, 1949), p. 416.
131. Richard Overton, An Arrow against Tyrants, 1646, in The Levellers in the English Revolution, ed. G. E. Aylmer (Ithaca, NY: Cornell University Press, 1975), p. 69.
132. John Milton, The Tenure of Kings and Magistrates, 1649, in Milton, Prose Selections, 2nd ed., ed. Merritt Y. Hughes (New York: Odyssey Press, 1947), pp. 277, 280.
133. Suárez, On Laws and God the Lawgiver, bk. 3, chap. 4.2, 8, pp. 384, 388.
134. See Skinner, Hobbes and Republican Liberty, pp. 159-161, which includes the quotation from Parker's Observations.
135. L, chaps. 18.16; 29.16. The theory of mixed monarchy and government was quite widely entertained in England and elsewhere during the sixteenth and seventeenth centuries; see the account of the sources and exponents of this theory in Zera S. Fink, The Classical Republicans (Evanston, IL: Northwestern University Press, 1945), and Michael Mendle, Dangerous Positions (Tuscaloosa: University of Alabama Press, 1985).
136. L, chaps. 36.20; 20.16-18, includes some of the scriptural justifications of sovereignty, a subject dealt with at length in the third part of L.
137. EL, pt. 2, chap. 8, p. 137; the Hardwick library catalogue, nos. 546, 547, and 1280, list French, Latin, and English editions of Bodin's treatise; see Talaska, The Hardwick Library and Hobbes's Early Intellectual Development.
138. L, chap. 26.11. Hobbes also expressed his criticism of Coke and the common lawyers' view of law in A Dialogue Between a Philosopher and a Student of the Common Laws of England (1681), ed. Alan Cromartie (Oxford: Clarendon Press, 2005). For Coke's conception of the artificial reason of the law and the supremacy of the common law, see John Underwood Lewis, "Sir Edward Coke (1552-1634): His Theory of 'Artificial Reason' as a Context for Modern Basic Legal Theory," and Charles M. Gray, "Further Reflections on 'Artificial Reason,'" both in Law, Liberty, and Parliament, ed. Allen D. Boyer (Indianapolis: Liberty Fund, 2004).
139. Seneca, De Beneficiis, 7.4, quoted in C. H. McIlwain, The Growth of Political Thought in the West (New York: Macmillan, 1932), p. 394.
140. See the discussion of Areopagitica in Perez Zagorin, Milton, Aristocrat and Rebel (Woodbridge, Suffolk, UK: D. S. Brewer, 1992), pp. 49-59.
141. The Act for Subscribing the Engagement is printed in The Stuart Constitution, ed. J. P. Kenyon, 2nd ed. (Cambridge: Cambridge University Press, 1986), pp. 307-308.
142. Thomas Hobbes, Six Lessons to the Professors of the Mathematics, 1656, EW, vol. 7, p. 336.
143. The most recent accounts of the seventeenth-century reception of Leviathan and Hobbes's philosophical and religious ideas are Jon Parkin's essay, "The Reception of Hobbes's Leviathan," in Springborg, The Cambridge Companion to Hobbes's Leviathan, and the same writer's comprehensive study Taming the Leviathan (Cambridge: Cambridge University Press, 2007).
144. Edward Hyde, Earl of Clarendon, A Brief View and Survey of the Dangerous and Pernicious Errors in Church and State, in Mr. Hobbes's Book, Entitled Leviathan (1676), quoted in Perez Zagorin, "Clarendon against Leviathan," in Springborg, The Cambridge Companion to Hobbes's Leviathan, p. 466.
145. Quoted in Hoekstra, The De Facto Turn in Hobbes's Political Philosophy, p. 33, from a letter written by Saye in 1657.
146. Skinner, "Thomas Hobbes on the Proper Signification of Liberty"; see Hobbes's reference to the subject's "harmlesse liberty, which supreme Commanders are bound to preserve...by the Lawes of nature"; DC, chap. 13.15. A similar expression occurs in the Latin 1668 edition of Leviathan, quoted by the editor in L, chap. 30, 21 n.: "the end of laws is not to restrain people from a harmless liberty."
147. Skinner, "Thomas Hobbes on the Proper Signification of Liberty," is mistaken, I think, in stating (pp. 126-128) that Hobbes was not an exponent of a pure negative theory of liberty.
148. Skinner, Hobbes and Republican Liberty.
149. Skinner, Hobbes and Republican Liberty, p. 10.
150. Thomas Hobbes, De Corpore, EW, vol. 1, p. 8.
151. See L, chap. 6.1-2; this chapter's title explains that it deals with "the interiour beginnings of voluntary motions, commonly called the passions."
152. Skinner, Hobbes and Republican Liberty, pp. 16, 129.
153. Skinner, Hobbes and Republican Liberty, pp. 150-152.
154. Skinner, Hobbes and Republican Liberty, pp. 163, 165.
155. Kramer, The Quality of Freedom, pp. 38-39, notes this point as a criticism of Hobbes's position.
156. It should be noted that the idea of liberty as one's inheritance and birthright, which Hobbes was attacking here, was not related to the republican theory of liberty but was very much a part of the English conception of liberty as based on law and precedent prescribed in the kingdom's ancestral constitution.
157. John Bramhall, The Catching of Leviathan (1658), reprinted in Leviathan: Contemporary Responses to the Political Theory of Thomas Hobbes, ed. G.A.J. Rogers (Bristol: Thoemmes Press, 1995), p. 145-146; this collection also contains selections from Filmer's, George Lawson's, and Clarendon's critiques of Leviathan.
158. Hampton, Hobbes and the Social Contract Tradition, pp. 197-205, which includes references to Hobbes's contemporary critics; the quotations are on pp. 202 and 203.
159. See Desiderius Erasmus, The Education of a Christian Prince, ed. Lisa Jardine (Cambridge: Cambridge University Press, 1997).
160. Among the three discourses of the 1620s that Noel B. Reynolds and Arlene W. Saxonhouse attributed to Hobbes and that I discussed in a previous chapter, one was "A Discourse upon the Beginning of Tacitus"; see Reynolds and Saxonhouse, Thomas Hobbes: Three Discourses (Chicago: University of Chicago Press, 1995).
161. L, chap. 25.2-4; in distinguishing in The Elements of Law, pt. 2, chap. 8.6, p. 136, and De Cive, chap. 14.1, between counsel and command, Hobbes does not mention that a command is directed to the benefit of the commander. The general point he emphasizes is that the reason of a command is the will of the commander, whereas the reason of counsel is the substance of its advice.
162. See Noel Malcolm, "Hobbes, Sandys, and the Virginia Company," in Aspects of Hobbes (Oxford: Clarendon Press, 2002).
163. Keith Thomas, "The Social Origins of Hobbes's Political Thought," in Brown, Hobbes Studies, contains an excellent account of the philosopher's social and economic ideas.
164. Hobbes deals at length with crimes and punishments in L, chaps. 27-28; see on this subject Mario A. Cattaneo, "Hobbes's Theory of Punishment," in Brown, Hobbes Studies, reprinted in Finkelstein, Hobbes on Law, and Dieter Hüning, "Hobbes on the Right to Punish," in Springborg, The Cambridge Companion to Hobbes's Leviathan.
165. L, chap. 24.7: "in what cases the commands of the sovereigns are contrary to equity and the law of nature is to be considered hereafter." The reference is probably to L., chap. 30, on the duties of the sovereign.
166. L, chap. 18.20; see the similar argument in DC, chap. 6.13.
167. St. German, Dialogue Between a Doctor of Divinity and a Student of the Laws of England.
168. Suárez, On Laws and God the Lawgiver, vol. 2, bk. 1, chap. 2.9-10; bk. 2, chap. 16, pp. 33-35, 309-325.
169. Aristotle, Nicomachean Ethics, 1137b-1138a, bk. 5, chap. 10. Aristotle also discusses equity in his Rhetoric, 1374a24-b23, bk. 1, chap. 13, where he says, among other things, that equity makes up for the defects in a written code of laws and requires thinking less about what the legislator said than what he meant.
170. EL, pt. 1, chap. 17.2, 14-15.
171. DC, chaps. 3.15, 31; 4.12; 13.10-11. It is worth pointing out that among Hobbes's predecessors, Suárez had noted that "natural equity" was identical with "natural justice" and had quoted instances of this concept in the Roman law's Digest. From these citations he inferred that "equity is not an emendation of legal justice [ius], but rather the source or rule thereof "; Suarez, On Laws and God the Lawgiver, bk. 1, chap. 2.9, p. 34.
172. L, chaps. 15.26; 24.7; 30.15; chap. 15.24 lists equity as a law of nature.
173. Dialogue, pp. 29-30, 65-66, 68.
174. May, p. 242.
175. See Perez Zagorin, Rebels and Rulers, 1500-1660, 2. vols. (Cambridge: Cambridge University Press, 1982).
176. DC, Preface, pp. 30-31, 35-36; this preface was published in 1651 with the English translation of DC .
177. DC, Preface, pp. 31-32.
178. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1986), p. 193.
179. John Locke, Questions concerning the Law of Nature, ed. Robert Horwitz (Ithaca, NY: Cornell University Press, 1990), question VI, p. 203. This work, which dates from the 1660s, has been published in an earlier edition as John Locke: Essays on the Law of Nature, ed. Wolfgang von Leyden (Oxford: Clarendon Press, 1954).
180. Parkin, Taming the Leviathan, pp. 371-375.
181. Joel Kupperman, "Classical and Sour Forms of Virtue," in Morality and Self-Interest, ed. Paul Bloomfield (Oxford: Oxford University Press, 2008), p. 280.
182. Gauthier, The Logic of Leviathan, p. 98, cited by Hampton, Hobbes and the Social Contract Tradition, p. 56.
183. Thomas Nagel, "Hobbes's Concept of Obligation," Philosophical Review 68, no. 1 (1959): 74, quoted in Lloyd, Ideals as Interests in Hobbes's Leviathan, p. 325, n. 9.
184. Lloyd, Ideals as Interests in Hobbes's Leviathan, p. 12.
185. See in particular R. E. Ewin, Virtues and Rights (Boulder, CO: Westview Press, 1991), and David Boonin-Vail, Thomas Hobbes and the Science of Moral Virtue (Cambridge: Cambridge University Press, 1994).
186. Plato, Protagoras, 358d. A friendly critic has commented that the mention here of Socrates is unhelpful because of the latter's belief that being just is always in one's interest and his doctrine of the soul, which held that to do wrong is the worst thing that can happen to a person.
187. Hobbes in Gert, Man and Citizen, pp. 47, 48. This edition contains a portion of the English texts of De Homine and De Cive.
188. EL, pt. 1, chap. 7.3, p. 22; L, chap. 6.7. As I pointed out in an earlier chapter, Hobbes's proposition that whatever men desire they call good can't be universally true, because all human beings know that some of their desires are contrary to their good.
189. W.D. Falk, "Morality, Self, and Others," in Bloomfield, Morality and Self-Interest, p. 234.
190. L, Review and Conclusion, 13.
191. L, Introduction, p. 4: "To describe the nature of this artificial man, I will consider first, the matter thereof, and the artificer, both which is man."
192. Grotius, The Law of War and Peace, vol. 2, Prolegomena, 16.
193. L, Review and Conclusion, 4
194. DC, 3.5; cf. the parallel passage in L, chap. 15.9.
195. See above, chap. 2.
196. Immanuel Kant, Idea of a Universal History from a Cosmopolitan Point of View (1784), in Kant on History, ed. Lewis White Beck (Indianapolis: Bobbs-Merrill, 1985), pp. 17-18.
197. Because "every man is presumed to do all things in order to his own benefit," the sixteenth law of nature prohibits a man from being a judge or arbitrator in his own cause; L, 15.31.
198. I owe this formulation to my friend Professor George Klosko of the Department of Political Science of the University of Virginia, who has written extensively on the subject of political obligation.
199. L, chap. 14. 7; cf. DC, chap. 8.3: "all obligation derives from Contract."
200. See the discussion of legal duty and obligation by H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), chap. 6. Hart notes (pp. 127, 128) the frequent use of "obligation" in reference to both law and morals and points out that some writers hold that there is a common element in legal and moral obligation and that the former in some sense presupposes the latter. This, I believe, accords with Hobbes's view.
201. L, chap. 26.3, 8; in DC, chap. 14.2, Hobbes also makes a distinction, as I have noticed previously, between being obliged and being tied. Thus contracts oblige, and a person ought to perform because he has promised, while the law ties the person who is obliged, that is, "it compels him to make good his promise, for fear of the punishment appointed by the Law."
202. On pacta sunt servanda as an obligation of the law of nature, see above, chap. 2.
203. Watkins, Hobbes's System of Ideas, pp. 76-77, 83, 84, 87; Watkins states (p. 84) that "Hobbes wanted to reduce morality to rational self-interest."
204. Philip Pettit, Made With Words: Hobbes on Language, Mind, and Politics (Princeton, NJ: Princeton University Press, 2008), p. 165, n.5.
205. Taylor, "The Ethical Doctrine of Hobbes."
206. Stuart M. Brown, Jr., "The Taylor Thesis: Some Objections," in Brown, Hobbes Studies.
207. C.B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962), pp. 72-74; Gauthier, The Logic of Leviathan, pp. 91, 98, quoted in Boonin-Vail, Thomas Hobbes and the Science of Moral Virtue, p. 62.
208. Lloyd, Ideals as Interests in Hobbes's Leviathan, p. 14.
209. Falk, "Morality, Self, and Others," pp. 230, 232.
210. H.A. Prichard, "Does Moral Philosophy Rest Upon A Mistake?" (1912), reprinted in idem, Moral Obligation (Oxford: Oxford University Press, 1968); see the discussion of Prichard's essay and moral philosophy by David Schmidtz, "Because It's Right," in Bloomfield, Morality and Self-Interest, and W. D. Hudson's excellent Modern Moral Philosophy (Garden City, NJ: Doubleday, 1970), pp. 89-92.
211. Aristotle, Nicomachean Ethics, 1140a 25-27, bk. 6, chap. 5.
212. Aquinas, Summa Theologiae, Ia-IIae, qu. 57, art. 4.
213. L, chaps. 3.7.10; 5.21; 8.11; 46.2.
214. Thomas Hobbes, Behemoth, ed. Ferdinand Tönnies and Stephen Holmes (Chicago: University of Chicago Press, 1990), p. 44. Hobbes wrote this work in the 1660s.
215. Further on in L, Hobbes includes among the false principles that breed crime the opinion that "justice is but a vain word," but he does not discuss or attempt to refute it; L, chap. 27.10.
216. It is not quite clear to me whether Hobbes is referring to the state of nature when he uses the example of the keeping of covenants in a condition of war. If he is, this may be his only mention of the possibility of confederacies or alliances in that condition.
217. Unlike the just man, the fool's will "is not framed by justice, but by the apparent benefit of what he is to do"; L, chap. 15.10.
218. Quoted from Philippa Foot, "Moral Beliefs," Proceedings of the Aristotelian Society 59 (1958-59): 103-4, in Hudson, Modern Moral Philosophy, pp. 272-273.
219. David Hume, A Treatise of Human Nature, ed. David Fate Norton and Mary J. Norton (Oxford: Oxford University Press, 2003), bk. 3, pt. 1, sec. 1, p. 302.
220. See the discussion of natural law and legal positivism in chap. 1.
221. Lloyd L. Weinreb, Natural Law and Justice (Cambridge, MA: Harvard University Press, 1987), p. 3.
222. Rommen, The Natural Law, pp. 85, 141-143, and chap. 8.
223. Finnis, Natural Law and Natural Rights, chap. 2
224. See Hobbes's discussion of metaphysics in L, chap. 46.14-15, which defines it as '"first philosophy" consisting of the definition of the most universal terms that pertain to the nature and generation of bodies. This chapter in L is mainly a critique of "vain philosophy" as exemplified in the metaphysics and ethics of Aristotle and the "supernatural philosophy" of scholasticism.
225. Hume, Treatise, 1.4.7, p. 177.
226. See above, chap. 1
227. R. S. Peters, Hobbes (Harmondsworth: Penguin, 1956), p. 170; Watkins, Hobbes's System of Ideas, p. 76, which also cites the work by Peters.
228. Zagorin, "Cudworth and Hobbes on Is and Ought."
229. See, e.g., DC, Epistle Dedicatory, pp. 25-27.
230. DC, Epistle Dedicatory, p. 27; L, Review and Conclusion, 13.
231. DC, Preface to the Reader, p. 36.
232. Zagorin, "Cudworth and Hobbes on Is and Ought."
233. See, e.g., DC, Epistle Dedicatory, pp. 25-27.
234. DC, Epistle Dedicatory, p. 27; L, Review and Conclusion, 13.
235. DC, Preface to the Reader, p. 36.
236. On Hobbes's religion and beliefs, see the discussion by Sommerville, Thomas Hobbes, chaps. 5-6, and Patricia Springborg, "Hobbes on Religion," in Sorell, The Cambridge Companion to Hobbes.
237. L, chaps. 33; 42.3; on Hobbes's negative view of Moses's authorship of the Pentateuch and its historical context in earlier biblical scholarship, see Noel Malcolm, "Hobbes, Ezra, and the Bible: The History of a Subversive Idea," in Aspects of Hobbes.
238. L, Dedication, p. 2.
239. Quoted from Edward Hyde, Earl of Clarendon, A Brief View and Survey of the Dangerous and Pernicious Errors in Church and State, in Mr Hobbes's Book, Entitled Leviathan, 1676, in Perez Zagorin, "Clarendon against Leviathan," in Springborg, The Cambridge Companion to Hobbes's Leviathan, p. 473.
240. The Correspondence of Thomas Hobbes, vol. 1, p. 140.
241. Behemoth, ed. Tönnies and Holmes, pp. 89, 95.
242. L, chap. 21.37; see Jeremy Waldron, "Hobbes on Public Worship," in Toleration and Its Limits, ed. Melissa S. Williams and Jeremy Waldron, Nomos 48 (New York: New York University Press, 2008).
243. On the Christian theory of persecution, see Perez Zagorin, How the Idea of Religious Toleration Came to the West (Princeton, NJ: Princeton University Press, 2003), chap. 2.
244. See the balanced account by Edwin Curley, "Hobbes and the Cause of Religious Toleration," in Springborg, The Cambridge Companion to Hobbes's Leviathan, which refers to previous writings on this subject.
245. See the discussion of the origin of the concept of heresy in Zagorin, How the Idea of Religious Toleration Came to the West, chap. 2.
246. See the details of this attack on Hobbes in England's Parliament in Tuck, "Hobbes and Locke on Toleration," pp. 157-158.
247. On the Scargill affair, see Parkin, Taming the Leviathan, pp. 244-252.
248. Alan Ryan touches on this subject in his essay, "Hobbes, Toleration, and the Inner Life," in The Nature of Political Theory, ed. David Miller and Larry Siedentop (Oxford: Clarendon Press, 1983).
249. Behemoth, ed. Tönnies and Holmes, p. 62.
250. On the precedent of Naaman, see Perez Zagorin, Ways of Lying: Dissimulation, Persecution, and Conformity in Early Modern Europe (Cambridge, MA: Harvard University Press, 1990), pp. 32-34 et passim.
251. EL, pt. 2, chap. 6.5, p. 116; Hobbes uses the term "superstructure" in the same sense in L, chap. 42.25.
252. On Castellio, see Zagorin, How the Idea of Religious Toleration Came to the West, chap. 4.
253. Collins, The Allegiance of Thomas Hobbes, chaps. 4-6.