Journal of the History of Philosophy

Thomas Hobbes and the Modern Theory of Natural Law FREDERICK A. OLAFSON IT IS WIDELYAGREEDthat in the course of the seventeenth century there took place an extensive re-casting of some of the most fundamental assumptions with respect to the nature of law that had come down from classical antiquity and had been incorporated into the principal philosophies of law of the High Middle Ages. What is not always so clearly understood is the fact that this change was effected as an internal transformation of the theory of natural law and that the writers whose names are most closely associated with this change---Grotius, Pufendorf, and others--were merely the most illustrious representatives of a flourishing school of natural law jurisprudence that dominated political and legal thought in Western Europe down to the end of the eighteenth century. Some commentators have suggested the special character of this modern theory of natural law by describing it as essentially a doctrine of natural rights. Others have argued that the crucial innovation that inspired that theory was a shift from a substantive to a formal interpretation of the norms on which the positive law depends for its moral validity. Such characterizations undoubtedly contain much that is both true and important and yet it must be admitted that they do not by themselves afford much insight into the properly philosophical motives that led to the change they summarize. Too often the explanations offered are more sociological or political than philosophical and relate the distinctive features of modern natural law theory to the preoccupations of some special interest group that needed a theory of law tailored to its own aspirations . This is unfortunate to the extent that it blocks an understanding of the genuine and unavoidable theoretical issues which the older, medieval theory of natural law posed for its continuators in the early modern period as well as of the reasoning by which the latter were led to re-formulate that theory in their own distinctive way. In this paper I propose to reconstruct some of the considerations that led to the reinterpretation of natural law as a set of formal or procedural directives and for this purpose I propose to use as my guide the political philosophy of Thomas Hobbes. This choice may occasion some surprise. There is a long tradition that attributes to Hobbes the view--also imputed, rightly or wrongly, to Machiavelli before him and later to the legal positivists from Austin onward--that the state and its laws are subject to no moral controls at all; and if this imputation were well-founded, then ttobbes would indeed have to be classified with those writers [15] 16 HISTORY OF PHILOSOPHY who, by denying the reality of any higher moral law to which the sovereign authority is responsible, reject the fundamental premise of all natural law theory. Largely as a result of the remarkable study of Hobbes's political philosophy by Professor Howard Warrender, however, we are in a position to see just how inadequate and often flatly mistaken this version of Hobbes's achievement really is.1 It becomes apparent that the extraordinary power and permanent interest of Hobbes's theory are due, not to the simple absence of any theory of moral, as distinct from legal, obligation but to the way Hobbes transformed the notion of a higher law and the obligation it imposes so as to avoid the difficulties attendant upon this notion in its earlier forms. What emerges from this re-appraisal of ttobbes's thought is a figure with strong affiliations to the natural law tradition which he subjects to searching criticisms and equally profound revisions. If Professor Warrender's account places primary emphasis on the elements of continuity with the older tradition he has also clearly revealed the general nature of the innovation through which Hobbes set his stamp on so much subsequent political thought in the modern period. There is no single figure that illustrates as clearly as the Hobbes Professor Warrender has taught us to understand both the transformation of the older tradition of natural law and the initiation of a new one. What this paper undertakes to provide is simply a fuller statement of...