Abstract
Hobbes’ natural law theory has been discussed far and wide. Some interpreters ended up defining Hobbes as a natural law theorist, some others as a legal positivist. In this paper, I analyse the work of two important scholars, Howard Warrender and Norberto Bobbio, whose insights have stimulated an interesting debate about Hobbes’ political theory. Warrender gives God a central function in Hobbes’ political science. On his account, God is a lawmaker, his will is the source of a universal obligation, and civil order is necessary to give force to the natural law that is the expression of divine will. In Bobbio’s interpretation, Hobbes is the first legal positivist of Modern age, as natural law is only ever given content by the sovereign’s will. Finally, I ask which is natural law and God’s function in Hobbes’ political thought, questioning some contemporary scholars in order to clarify Hobbes’ modernity.
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Physical obligation, it seems to us, is what Hobbes describes in De Cive, XV, 7: “But there are two Species of naturall obligation, one when liberty is taken away by corporall impediments, according to which we say that heaven and earth, and all Creatures, doe obey the common Lawes of their Creation […]” (Hobbes 1987, p. 187).
Into this vein, we find: Hood 1964; Martinich 1992. Less recently, in a 1938 article, Alfred E. Taylor approaches a similar perspective and goes so far as to state that Hobbes’ work takes a deontological perspective that anticipates some Kantian theses. Hobbes distinguishes between the justice of actions and the justice of persons, and this distinction mirrors, according to Taylor, the Kantian distinction between action performed in simple accord with the law and action that proceeds from the law. Hobbes, however, would reduce the law that determines the action of the virtuous man to the only law that prescribes the fulfilment of a duly made promise. Despite this difference and despite Kant introducing the universalisation of the maxim, Kant and Hobbes agree on the imperative of the moral law, the law of right reason (Taylor 1938, 408–410). Taylor insists that the moral obligation to obey the law of nature precedes the institution of the civil sovereign and that therefore natural laws also oblige to the state of nature. Warrender also places S.P. Lamprecht (1940) in this vein: he distinguishes the nominalistic and therefore legalistic character of post-Hobbesian philosophy from what Hobbes actually advocated.
Such as covenants against the law, both of nature (Hobbes 1946, XIV, 23) and civil law, non-consensual covenants (Hobbes 1946, XIV, 22–23), covenants that commit to something impossible (Hobbes 1946, XIV, 24–25, Hobbes 1987, XVI, 18) covenants that compel the renunciation of the right of self-preservation (Hobbes 1946, XIV, 29), covenants that impose obligations on strangers (Hobbes 1928, II, III, 7), covenants that impose obligations in respect of things already involved in other covenants (Hobbes 1946, XIV, 28, Hobbes 1987, II, 17).
Hobbes and Locke share an empirically-based account of the human condition but arrive at different conclusions (Sokolowski 2011, 103 ff).
For this reason, Macpherson has described Hobbes’ state of nature as representing a “possessive” and therefore conflictual market society: an embryonic form of market society compared to the mature one represented in Locke’s natural society as an association of owners bound by mutual interests (Macpherson 1962).
For a problematic account of vanity in Hobbes, cf. Strauss 1996, 13–15.
War is no longer seen as the instrument for reacting to the infringement of the natural and divine order, as in pre-modern times, but as the normal condition in relation to which all human relations must be interpreted (cf. Biral 1999, 91).
Riley highlights that in Hobbes sovereign power legitimacy is based on consent, but “it is difficult to see how consent could be morally binding or how authority could be granted if the will is not a moral agency or faculty”—since Hobbes speaks of will as an appetite, the last one in deliberation (Riley 1982, 25). In Riley interpretation, Hobbes does not distinguish between a physiological-psychological will and a moral or elective will. His definition of willing does not always seem to accord with some of his most relevant sentences about promises, duties, covenants, obligations, and the like arising from consent.
“True and false are attributes of speech, not of things. And where speech is not, there is neither truth nor falsehood” (Hobbes 1946, IV, 11, 21).
Cf. Bobbio 2009, 65–67. Biral has a different opinion: “It would be erroneous to claim that utility, an element that varies from man to man and also changes ceaselessly for a single man, is the foundation of the laws of nature; they actually refer for their origin to the knowledge finally attained of the cause of the war of each against all” (Biral 1999, 95).
According to Schmitt, the universal and representative rationality of the state institution cannot be deduced from the state of nature and is a Blitz rather than a passage (Schmitt 1996, 31).
Bobbio and Strauss (1996) agree that Hobbes uses the notions of the earlier natural law theory even though he strategically reverses their meaning.
Hobbes, De Cive, XIV, 23.
Unlike Locke. Cf. Harrison 2003, 190–218.
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Crosato, C. What About Natural Law in Hobbes? Dialogue Between the Natural Law and the Legal Positivist Hypothesis. Jus Cogens 5, 195–227 (2023). https://doi.org/10.1007/s42439-023-00085-w
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DOI: https://doi.org/10.1007/s42439-023-00085-w