Hobbes on Resistance: Defying the Leviathan

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HOBBE S ON R E SIS TA NC E

Hobbes’s political theory has traditionally been taken to be an endorsement of state power and a prescription for unconditional obedience to the sovereign’s will. In this book, Susanne Sreedhar develops a novel interpretation of Hobbes’s theory of political obligation and explores important cases where Hobbes claims that subjects have a right to disobey and resist state power, even when their lives are not directly threatened. Drawing attention to this broader set of rights, her comprehensive analysis of Hobbes’s account of political disobedience reveals a unified and coherent theory of resistance that has previously gone unnoticed and undefended. Her book will appeal to all who are interested in the nature and limits of political authority, the right of self-defense, the right of revolution, and the modern origins of these issues. s u s a n n e s r e e dh a r is Assistant Professor of Philosophy at Boston University. Her main research area is the history of political thought, especially in the early modern period, and her work has been published in Political Theory. This is her first book.

Hobbes on R esistance Defying the Leviathan Susanne Sreedhar

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521197243 © Susanne Sreedhar 2010 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2010 ISBN-13

978-0-511-77640-3

eBook (NetLibrary)

ISBN-13

978-0-521-19724-3

Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Acknowledgements

page vi

Introduction

1

1 Hobbes’s right of self-defense

7

2 The true liberties of subjects

53

3 Limited obedience to an unlimited sovereign

89

4 Is Leviathan a “rebel’s catechism”?

132

Conclusion

168

Bibliography Index

176 181

v

Acknowledgements

This project has benefited from the assistance of many people. Gratitude goes first to my former professors at the University of North Carolina, Chapel Hill: Jerry Postema, Bernie Boxill, Tom Hill, Geoff Sayre-McCord, and Don Garrett. Each provided invaluable guidance and advice not only when I was writing my PhD thesis on this topic, but also in the years since. I am also in debt to my colleagues at Boston University:  Aaron Garrett, David Lyons, Amelie Rorty, David Roochnik, and Ken Simons. They formed a reading group to work through the manuscript as a whole, providing substantive comments and suggestions. I count myself lucky to have such generous and supportive colleagues and mentors. I am especially grateful for the excellent critical feedback that I have received from Kinch Hoekstra, Sharon Lloyd, and Johann Sommerville. Their careful and insightful scrutiny challenged me to think through some of the main problems in greater detail and greatly improved the account that I advance in this book. In doing so, they taught me how much I have yet to learn about Hobbes, and just how much thinking on this topic remains to be done. I doubt that I have provided adequate answers to every challenge they raised, but their criticisms and suggestions have made this a much better book. I am incredibly lucky to have a small but mighty team of volunteer editorial and support staff, who not only read and then reread large portions of the manuscript as it developed, but also remained an infinitely patient and helpfully engaging audience as I formulated and reformulated my thoughts and arguments. Heather Burke, Katya Hosking, Nancy Lawrence, Colleen Murphy, and Matt Smith have served in this role from the very beginning. Neither the manuscript, nor I myself, would have survived without them. Their willingness to become involuntary Hobbes scholars for so many years is both astonishing and admirable. A special mention goes to Alice MacLachlan, whose help in the final stages of this vi

Acknowledgements

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project was absolutely invaluable. Everyone should be fortunate enough to have friends like these. I must also thank Bryce Huebner, who has been not only my toughest and most loyal interlocutor, but also, in many ways, my philosophical partner-in-crime. Without his unique combination of deadly analytic precision, delight in all things philosophical, unwavering patience, and dark sense of humor, all of this would not be. An earlier version of Chapter 1 appeared as “Defending the Hobbesian Right of Self-Defense,” Political Theory 6, no. 36 (December 2008): 781– 802. I have also presented portions of the manuscript at various conferences and colloquia too numerous to mention. In each case, I am grateful for the thoughtful and insightful challenges that have been offered by members of the audience. This list of acknowledgements, like my thinking on Hobbes more generally, remains a work in progress. To all of you who have helped me along the way, please know that I am grateful. And of course, I take full responsibility for whatever mistakes remain. I dedicate this book to my mother, Kathy Sreedhar, whose passion and power have always inspired me and whose enthusiasm and abundant pride have continually sustained me.

Introduction

Many of the philosophical problems that were raised by Thomas Hobbes in the founding moments of modern political theory remain alive today; however, his solutions to these problems have been universally rejected. Because it is almost always characterized as an endorsement for overarching state power and a prescription for virtually unconditional obedience to the will of the great Leviathan, Hobbes’s project appears to have little to offer to those interested in the limits of governmental authority and individual rights – the hallmark tenets of contemporary political theory. Thus, Hobbes’s philosophy has been largely dismissed as lacking relevance in the current intellectual and political climate; and with few exceptions, his views have been relegated to the status of historical artifact – Hobbes is not seen as potential ally or even interlocutor. In spite of its prevalence, this dismissal of Hobbes is much too hasty. It is based, at least in part, on the widely accepted but deeply mistaken view that Hobbes makes no interesting contributions to the debates concerning the limits of a person’s obligation to obey the law. On the question of political resistance, the exclusion of a Hobbesian perspective is particularly acute: he is not taken seriously even as a potential opponent of those seeking to defend resistance to state power. Yet, a careful examination of his corpus reveals that Hobbes has an innovative and intriguing account of the instances in which resistance is justified. He argues that some resistance rights are inalienable and that there are some situations in which people are not obligated to obey the laws of their political community. This book is a comprehensive investigation of this largely neglected aspect of Hobbes’s work. Hobbes’s insistence that subjects retain some rights to resist the sovereign appears to stand in stark contrast to his commitment to the necessity and desirability of absolute sovereignty. The idea that defying the Leviathan state could be legitimate seems self-contradictory. I argue that this apparent inconsistency yields a pair of interpretive puzzles that must be addressed when considering Hobbesian political theory. As it 1

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turns out, the Leviathan is constructed to withstand subjects who would defy it. The first puzzle derives from the fact that Hobbes’s account of the range of resistance rights that are retained by subjects, including his defense of the underlying principles from which these rights are derived, is unclear at best, and downright baffling at worst. Hobbes claims that subjects in a commonwealth retain a right of self-defense. However, his conception of the right to disobey – or resist – the sovereign goes far beyond the oftrecognized right to defend oneself against an imminent, deadly threat. Hobbes argues that subjects have the right to resist arrest and to avoid being drafted into the military; and, perhaps more surprisingly, he argues that subjects retain the right to disobey the dictates of the sovereign even when neither their lives nor their security are threatened. He extends a right against self-incrimination to allow for the protection of anyone whom the subject loves or upon whom the subject depends; and he allows subjects to disobey some commands they find simply dishonorable. These facts force consideration of two interrelated questions: on what grounds is the narrow right of self-defense predicated; and how can this far broader set of resistance rights be derived, as Hobbes claims they are, from the narrow right of self-defense? It seems that there is an obvious gap between the justification of the right to resist an immediate attack on one’s person and the justification of the right to protect others or to protect one’s reputation. This apparent gap is the first interpretive puzzle that I tackle in this book. This puzzle arises because Hobbes’s argument for the right of self­defense is dubious and he then simply asserts an entailment between the right of self-defense and the corollary set of retained rights. Much worse, he devotes very little time to explaining or defending many of the broader resistance rights that he posits. So, in the first half of this book, I attempt to shed light on those issues where Hobbes appears to have left only darkness. I demonstrate that, despite the apparent confusion, a coherent narrative can be recovered by a careful analysis of the texts. I demonstrate that a plausible interpretation  – one that eliminates these ambiguities  – can be defended, and I argue that Hobbes should thus be seen as advancing a theory of resistance rights. This brings us to the second interpretive puzzle, which concerns the relationship between Hobbes’s theory of resistance rights and the fundamental philosophical and practical goals of his political theory, namely, the justification of political absolutism and the prevention of rebellion. How can Hobbesian subjects be understood to authorize any adequate sovereign, let alone one with unlimited and undivided power, if they

Introduction

3

always retain the right to act against that sovereign when they judge necessary? How can Hobbes purport to maintain a staunch prohibition on rebellion when he gives subjects the right to join with others against the sovereign to protect themselves? These questions arose naturally for Hobbes’s original audience, and, indeed, assumed special importance given the uncertain and tumultuous political climate of the times. The seventeenth century witnessed a series of challenges to monarchical rule, and notions of inalienable rights and self-defense against tyranny were often invoked in the defenses of rebellion that proliferated throughout Europe during this period. In the debates surrounding the English Civil War, the parliamentarians and their followers used this rhetoric to justify deposing and executing King Charles I. Hobbes’s endorsement of absolute monarchy and his forceful arguments against rebellion meant that he tended to be unpopular in this camp. On the other side, those committed to the royalist cause opposed any attempt to accuse or punish the king. Monarchs, many argued, were accountable only to God; and absolutism was taken to be incompatible with allowing for any rights that could be enforced against a sitting ruler. Hobbes’s royalist contemporaries, thus, charged him with unwittingly undermining his antirevolutionary goals by incorporating inalienable rights – traditionally the tools of those trying to limit state power – into his broader philosophical project. Indeed, in 1658, Bishop Bramhall famously accused Leviathan of being nothing more than a “Rebells catechism.”1 It is no surprise, then, that Hobbes is typically seen as advancing a view that was not appealing to anyone in the debate. More recent philosophical analyses of Hobbes’s philosophy have typically ignored his complicated views on the right to disobey the sovereign; furthermore, in those instances where this issue has been addressed in any detail, Hobbes’s views tend to be disparaged or criticized. For example, in one of the strongest critiques, Jean Hampton famously argues that Hobbes’s articulation of resistance rights is the Achilles heel of his political theory because resistance rights directly contradict his account of absolute sovereignty.2 In the second half of this book I demonstrate that Hobbes’s theory of resistance rights is not only compatible with his justification for absolute John Bramhall, “The Catching of Leviathan, Or the Great Whale” in Leviathan, Contemporary Responses to the Political Theory of Thomas Hobbes, ed. G. A. J. Rogers (Bristol: Thoemmes Press, 1995), 145. 2 Jean Hampton, Hobbes and the Social Contract Tradition (Cambridge University Press, 1986), 197–207. Also see Hampton’s “The Failure of Hobbes’s Social Contract Argument” in The Social 1

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sovereignty, but, in fact, required by that justification. Yet, Hobbes might have had compelling reasons for not providing a more clearly developed defense of his theory of resistance rights. Insofar as Leviathan was intended to serve as a pedagogical tool, providing instruction to subjects regarding the duties of obedience, a full elaboration of the theory of resistance rights might have been either superfluous or outright dangerous. Nevertheless, to the extent that he justifies obedience by appealing to people’s rational self-interest, some discussion of the limits of obligation was required. Ultimately, Hobbes manages to co-opt and quarantine the idea of inalienable rights in a way that both acknowledges these rights and prevents them from being used as a rhetorical foundation for rebellion in a stable political regime. Thus, it will become clear that Hobbes’s views on the rights of subjects are far more interesting and complicated than has been recognized. Revisiting the Hobbesian project in light of this fact seems to call for a thorough reassessment of his work and, ultimately, its legacy for modern political philosophy. In Chapter 1 I discuss the starting point of Hobbes’s account of political resistance  – his description of, and arguments for, the existence of an inalienable right of self-defense. I begin by laying out the central features of Hobbes’s notion of self-defense and his general theory of rights. I then present the “standard interpretation” of his arguments for this right, according to which Hobbes grounds the right of self-defense in two arguments, which I call the “conceptual impossibility” and the “psychological impossibility” arguments. Both arguments are unavoidably problematic for reasons that are discussed, making it necessary to look for other Hobbesian resources to establish the right of self-defense. My strategy Contract Theorists: Critical Essays on Hobbes, Locke, and Rousseau, ed. Christopher Morris (Lanham, MD: Rowman & Littlefield, 1999), 41–58. It should not be surprising that this issue has received very little attention in contemporary Hobbes scholarship, especially in comparison to other aspects of his work. Most studies of Hobbes’s philosophy mention that Hobbes makes an exception in his account of political obligation for the right of self-defense; but they do not concern themselves either with the details of his arguments for that right or with the broader account of resistance that he derives from it. The oversight is understandable; Hobbes spends relatively little time on the subject, and many of his remarks – at least on the surface – are so odd and quirky that they appear to discourage further investigation. Indeed, in some cases, authors will pause to express puzzlement or skepticism at Hobbes’s strange views before they move on. Finally, those who attempt a thoroughgoing analysis of this issue almost always conclude that Hobbes’s account – either in part or in whole – simply does not work. For another staunch critique of this particular aspect of Hobbes’s thought, see Gregory S. Kavka, Hobbesian Moral and Political Theory (Princeton University Press, 1986), especially chapters 8 and 11; and George Kateb, “Hobbes and the Irrationality of Politics,” Political Theory 17, no. 3 (1989), 384–387. There are, of course, complications and exceptions to these trends, many of which will be discussed in the proceeding discussion.

Introduction

5

of analysis is twofold. First, I distinguish the social contract from other contracts. Second, I uncover and articulate three Hobbesian principles of covenanting that make it the case that the right of self-defense cannot be alienated in the social contract. I call these principles the “reasonable expectations principle,” the “fidelity principle,” and the “necessity principle.” These principles provide conditions that, Hobbes insists, must be met in order for a putative covenant to be valid – in other words, to succeed in actually imposing obligations on the parties to the covenant. On my interpretation, subjects in a commonwealth retain the right of selfdefense because they cannot make a valid covenant to transfer that right when they enter into the social contract; any such covenant would violate all three principles. In Chapter 2 I continue this analysis with a careful examination of Hobbes’s corollaries to the right of self-defense – what he calls the “true liberties of subjects” – which are comprised of various resistance rights, including the right to resist arrest, corporal punishment, and imprisonment; the right to refuse to give incriminating testimony against oneself or certain other people; and the general right to refuse “dangerous or dishonorable commands,” including the right to resist a military draft. The details of Hobbes’s discussion at first seem disconnected from one another and from the rest of his theory; however, I show that when correctly understood they form a unified whole. I also illustrate how the framework presented in Chapter 1 (defined by the reasonable expectations principle, the fidelity principle, and the necessity principle) is implicit in Hobbes’s discussion of the true liberties of subjects. Taken together, then, the first two chapters provide a strong case for the existence of a coherent theory of resistance rights in Hobbes’s philosophy. The second half of the book locates this newly articulated theory of resistance rights within Hobbes’s larger project. In Chapter 3 I address the question of whether his seemingly broad set of resistance rights is consistent with his insistence that the political sovereign enjoy absolute authority. My strategy is to revisit Hobbes’s notion of political authority by employing the conceptual framework of the contemporary philosopher Joseph Raz. Raz’s analysis of authority is particularly helpful in clarifying Hobbes’s picture, and the Razian concept of “exclusionary reasons” provides a new way of understanding and framing Hobbesian resistance rights. Additionally, it helps to answer the most well-known and wellarticulated objection to Hobbes on this point, namely, Hampton’s accusation that Hobbes’s resistance rights bring about the downfall of his entire justification for sovereignty.

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Hobbes on Resistance

In Chapter 4 I take up the issue of the right of rebellion in particular. I argue that given Hobbes’s general position on the right to resist, there must be, in some sense, a Hobbesian right to rebel. However, this right  – correctly understood  – is consistent with Hobbes’s various prohibitions on rebellion. A close look at his views on rebellion reveals that he was only concerned to prohibit certain kinds of rebellions, what I call, “ideological rebellions.” He can, and indeed he must, allow subjects to organize against their political rulers under certain conditions of necessity. Thus, what at first seems to be an especially anti-Hobbesian conclusion turns out to be compatible with the central tenets of his political theory – including his conception of the purpose of sovereign authority and his diagnosis of the causes of political conflict. Ultimately, Hobbes’s recipe for preventing rebellion should be understood to include as much, if not more, guidance for the sovereign on preventing rebellion as guidance for the subjects not to rebel. One final point must be made. The methodology employed in developing the arguments of this book is a method of interpretation, not of reconstruction. Hobbesian arguments, grounded in rational reconstructions that attempt to make Hobbes’s views more amenable to contemporary philosophers, have played a prominent role in a certain segment of Hobbes scholarship.3 In contrast to this trend, the goal of this book is to construct the most plausible and most accurate interpretation  – i.e., closest to the text – of Hobbes’s views on political resistance. Thus, although I argue that Hobbes’s political philosophy should be understood to include a theory of resistance rights, I do not provide an independent defense of that theory. To put the point another way, I provide a defense of the theory on Hobbesian grounds, but I do not defend those grounds themselves. Nevertheless, recognizing the nuances of Hobbes’s approach has significant implications for how we locate him both in relation to his philosophical and political contemporaries, and also in the context of current debates over state sovereignty, individual rights, and political resistance. In my analysis, it becomes clear that Hobbes’s theory is rich in resources for those working on issues of political obligation – even if, to many, it most usefully serves as a challenge to be answered.

Though others have followed suit, Kavka is likely the original and the most well-known example of this kind of scholarship; see his Hobbesian Moral and Political Theory. For a more recent example of the rational reconstruction approach, see Peter Vanderschraaf, “War or Peace?:  A Dynamical Analysis of Anarchy,” Economics and Philosophy 22, no. 2 (2006), 243–279.

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Ch apter 1

Hobbes’s right of self-defense

Questions about the nature, origin, and limits of political obligation are brought to bear in a particularly poignant way in the story of the death of Socrates. In the famous dialogue, Crito, Socrates wrestles with the question of whether his obligation to obey the laws of his government extends to an obligation to inflict a death sentence upon himself. Socrates concludes that he is obligated to obey, and so he refuses to escape when given the chance, and willingly drinks the hemlock the next morning.1 The philosophical case was not closed with Socrates’ death, however, and the question of his putative obligation has been a subject of much subsequent debate in political philosophy. Although we would not characterize it as such today, Socrates’ case falls squarely within the realm of Hobbes’s conception of the right of selfdefense, in which Hobbes insists that subjects never have an obligation to obey a command to commit suicide. The goal of this chapter is to defend a particular interpretation of Hobbes’s arguments for the existence of the right of self-defense. I begin by laying out the central features of this right, as Hobbes conceives it, and highlighting the uniqueness of Hobbes’s theory of rights in general. De f i n i ng Hobbe s’s r ig h t of s e l f -de f e ns e Hobbes never gives a precise definition of the right of self-defense, but one can be inferred from the various examples he gives of its exercise. Hobbes Other commentators have used the example of Socrates in the Crito as a way of introducing or illustrating Hobbes’s account of justified disobedience to the law. See, for example, Larry May, “Hobbes on Fidelity to Law” in Hobbes on Law, ed. Claire Finkelstein (Burlington, VT: Ashgate, 2005), 397–409; and Alice Ristroph, “Respect and Resistance in Punishment Theory,” California Law Review 97 (2009), 601–632. For those interested in this aspect of Hobbes’s political philosophy, the choice of text is not surprising. The Crito explores the nature and scope of political obligation, framed in terms of consent, and it does so in the specific context of the condemned man’s obligation to submit to – and even inflict – his own death sentence. It thus serves as a natural foil to Hobbes’s discussion.

1

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Hobbes on Resistance

primarily conceives of the right of self-defense as a subjective, permission right retained by subjects in a commonwealth and exercised in the form of disobedience or resistance to the commands of a sovereign power. One of the examples he uses most often is that of a convicted criminal either resisting the imposition of the death penalty or disobeying a command to commit suicide. He repeatedly insists that, “if I am told to kill myself, I have no obligation to do so.”2 In fact, as we shall see in the discussion to follow, by Hobbes’s account, not only was Socrates under no obligation at all to drink the hemlock, he would have been justified in killing his guards if doing so was necessary for his escape. Furthermore, according to Hobbes, one may permissibly defend oneself against attacks from other citizens if the help of the law is unavailable; this is how we usually think of the legal use of self-defense.3 Hobbes makes it clear that the right of self-defense can be exercised even in the absence of a direct attack. One can permissibly break the law in order to procure the necessities of life. In an especially perspicuous passage, Hobbes explains saying, If a man, by the terror of present death, be compelled to do a fact against the law, he is totally excused, because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory, yet a man would reason thus: If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained. Nature therefore compels him to the fact.4

If a person needs to do X in order to survive  – that is, without doing X, she will die – she has a right to do X. If a subject is starving, she has the right to do whatever she can to alleviate this condition. If she steals food, for example, she has not committed an injustice, even though she broke the law.5 In sum, the right of self-defense can best be characterized as the right to take whatever actions one judges necessary to avoid an immediate threat of death. De Cive, 6.13. This claim is reiterated, often verbatim, in a number of other places; see De Cive, 21.12, 21.14 and Leviathan, 14.29, 21.14–15. Hobbes’s works are cited by chapter and paragraph number using the following editions of his texts: Thomas Hobbes, The Elements of Law: Natural and Politic, ed. Ferdinand Tönnies (London: Frank Cass, 1969); Thomas Hobbes, On the Citizen [De Cive], ed. and trans. Richard Tuck and Michael Silverthorne (Cambridge University Press, 1998); Thomas Hobbes, Leviathan with Selected Variants from the Latin Edition of 1668, ed. Edwin Curley (Indianapolis, IN: Hackett, 1994); Thomas Hobbes, De Homine in Man and Citizen, ed. Bernard Gert (Indianapolis, IN:  Hackett, 1991); and Thomas Hobbes, Behemoth, Or The Long Parliament, ed. Ferdinand Tönnies (University of Chicago Press, 1990). I have retained the original spelling, capitalization, punctuation, and italics. 3 4 Leviathan, 27.24. Leviathan, 27.25. 5 Hobbes’s position on this issue was not unusual. This necessity rule, or something like it, was endorsed by most in early modern Europe; see Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991). Present-day legal systems also tend to 2

Hobbes’s right of self-defense

9

Strictly speaking, then, “right of self-defense” is a bit of a misnomer, because the right Hobbes has in mind does not always involve defense against attack. Hobbes clearly believes that there is some kind of basic and inalienable right to save oneself from death possessed by subjects in a commonwealth. Although this right is sometimes invoked in cases where the threat of death does not come from a physical attack (e.g., starvation), Hobbes most often conceives of it as a right to defend oneself from attacks by other people. So, for simplicity’s sake (and to follow commentators’ usage), I refer to this right as the right of self-defense, although strictly speaking, it would be more accurate to refer to the “right to save one’s own life.” In Hobbes’s theory, the right of self-defense is a remnant of the natural right that people give up when they leave the state of nature and enter civil society. In Leviathan Hobbes introduces the right of self-defense in Chapter 14, “Of the First and Second Natural Laws and of Contracts.” The chapter begins with Hobbes’s well-known definitions of the “right of nature” and the “law of nature” followed by a clarification of the difference between a right and a law. He then explains why our natural rights are so extensive and reiterates his claim from the previous chapter that the state of nature is a state of war. After a powerful statement about the imperative of laying down one’s natural rights in order to secure peace, he immediately makes the qualification that “Not all rights are alienable,” explaining that “a man cannot lay down the right of resisting them that assault him by force, to take away his life.” Similarly, as soon as Hobbes introduces the conceptual machinery of contracts and covenants (the means by which rights are given up), he insists, “A man’s Covenant not to defend himself is void.”6 References to the inalienability of the right of self-defense and the impossibility of valid agreements to give it up are frequent in both Leviathan and the earlier work, De Cive.7 Perhaps the most important feature of the right of self-defense is its status as a retained right. As I understand it, Hobbes’s right of self-defense recognize conditions of necessity as possible excuses or mitigating circumstances for some crimes. Hobbes stands out from among this relative consensus, however, because he often conflates selfdefense with conditions of necessity. That is, he did not take the source of a threat to one’s preservation to be the defining factor. The danger posed by threats of violence from the state, i.e. state-inflicted punishment, is treated in the same manner as the danger in threats of violence from private individuals, and even the danger posed by lack of food or medicine. In each case, the subject has the same right to protect herself from an imminent threat. 6 Leviathan, 14.8, 14.29. 7 In Leviathan, 14.18 he alludes to “the right (he can never abandon) of defending his life.” In De Cive, 2.18, he says: “No one is obligated by an agreement he may have made not to resist someone who is threatening him with death, wounds, or other bodily harm.” These kinds of claims

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is first and foremost a right possessed by a particular group of people in a particular condition, namely, subjects in a commonwealth. Hobbes emphasizes the retention of the right of self-defense in the social contract, the contract in which people undertake their obligations of obedience to a sovereign. Indeed, the majority of Hobbes’s descriptions of, or references to, the social contract include the right of self-defense proviso. For example, in Leviathan Hobbes says, “In the making of a Commonwealth, every man giveth away the right of defending another; but not of defending himselfe.” Similarly, in De Cive, he describes the social contract as a contract in which every person agrees “not to resist the will” of the sovereign “that is, not to withhold the use of his wealth and strength against any other men than himself (for he is understood to retain the right of defending himself against violence).”8 This latter passage is an especially good example, because we see Hobbes describe the act of submission to the sovereign as involving an agreement of nonresistance, immediately adding the qualification about the retention of the right of self-defense. Hobbes’s right of self-defense is fundamentally a right of resistance, although in Hobbes’s theory, resistance is understood quite broadly; resistance to the sovereign’s will includes simple noncompliance, or the mere refusal to obey, his commands. Importantly, the right of self-defense is not by any means the only right subjects retain in the commonwealth; Hobbes also affords them the right to protect themselves from certain sorts of nondeadly harms. He at times conflates the narrow right of self-defense with these broader rights of selfprotection, speaking of them together in one breath. On a number of occasions we find Hobbes referring to the right not only to defend one’s life but also to defend one’s “limbs,” “body,” or “liberty” (and sometimes he even adds phrases such as the entirely unclear “means of living”).9 These broader rights are discussed at length in Chapter 2; indeed, part of the project of this book is to show how all of Hobbes’s retained rights are of a piece. For the sake of clarity, and because I intend to discuss each right in detail, I set these additional rights aside for the moment and focus exclusively on the most narrow, and also most fundamental, right: the right to save one’s own life in the face of an immediate threat of death. are ubiquitous with very similar, sometimes verbatim, wording. Though not anywhere close to an exhaustive list, further representative examples can be found at Leviathan, 14.8, 14.29, 14.30, 21.11–14, 27.20, 28.2; and at De Cive, 2.14, 5.7. 8 Leviathan, 28.2; De Cive, 5.7. Interestingly, Hobbes omits this qualification in the official description of the social contract in Leviathan, 17.13. 9 See, for example, Leviathan, 14.18, 27.24.

Hobbes’s right of self-defense

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Some commentators use the terms “right of self-defense” and “right of self-preservation” interchangeably, but this can be misleading.10 As explained above, I understand the right of self-defense to refer to the particular right that Hobbesian subjects retain when they enter the commonwealth to take measures to avoid imminent death. The right of self-preservation is used to refer both to this narrow right and to the much broader right of nature. The right of self-defense is, of course, a vestige of the right of nature, but it needs to be clearly distinguished from it. The scope of the Hobbesian right of self-defense can certainly be debated, but it must be more restricted than the right of nature, or else nothing would be given up in the social contract. In order to get a full picture of the shape of Hobbes’s right of selfdefense, it is necessary (1) to distinguish it from the right of nature and situate it within the framework of Hobbes’s general theory of political obligation; (2) to place it in historical context and briefly discuss how it relates to the discussions of self-defense in the seventeenth century; and (3) to compare and contrast it with the modern-day notion of self-defense. The right of nature Hobbes has an idiosyncratic and, to modern eyes, strange conception of rights. We can see the features of his general conception of rights by looking at the right he takes to be both the original and the foundational right, that which he calls the “right of nature.” The right of nature is Hobbes’s term for people’s natural rights. These are the rights people have in the absence of a civil state – namely the state of nature. In Leviathan he defines the right of nature saying, The Right of Nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power, as he will himself, for the preservation of his own nature, that is to say, of his own life, and consequently of doing anything, which in his own judgment and reason, he shall conceive to be the aptest means thereunto.11

The exact character of and justification for Hobbes’s right of nature has been the subject of much scholarly debate. However, it can be said For a representative example, see Richard Tuck, Philosophy and Government, 1572–1651 (Cambridge University Press, 1993), 304–307. While Tuck moves back and forth between the two expressions, other commentators speak only in terms of the right of self-preservation, making it hard to draw many of the relevant distinctions between short-term vs. long-term threats, certain vs. uncertain threats, deadly vs. not, and the like (see, for example, R. E. Ewin, Virtues and Rights: The Moral Philosophy of Thomas Hobbes [Boulder, CO: Westview Press, 1991], chapter 3). 11 Leviathan, 14.1. 10

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relatively uncontroversially that the right of nature is the right a person has to act on her own judgment about how best to survive. More precisely, the right of nature accords one the right to X if one believes that X is necessary for one’s preservation (i.e., one believes one will die without X), or if one believes that X contributes to one’s preservation (i.e., one believes that doing X will further one’s chances of preserving oneself). The first important feature of the right of nature is that it is entirely subjective. As the above definition makes clear, the right of nature is the right to do what “in his own judgment and reason” is the “aptest means” to preserve “his own life.” The one and only condition that Hobbes puts on the right to act according to one’s own judgment is that of sincerity.12 As long as a person sincerely judges that doing X is necessary or conducive to her preservation, she has the right to do X, even if her judgment is mistaken. Hobbes says, “In the judgment of the person actually doing it, what is done is rightly done, even if it is a wrong, and so is rightly done.” He immediately adds that if a person does something even though she does not believe it will contribute to her self-preservation, she does so without right and has sinned against the law of nature. Of course, in Hobbes’s state of nature almost anything might be seen as contributing to one’s preservation; as he famously says, the right extends “even to one another’s body.”13 It is for this reason that the right of nature gives people the right to attack each other in the state of nature. Hobbes is in effect saying that in the state of nature, “I have the right to kill you if I think that your death will further the chances of my own survival, and there is a good chance that it will, given that you are most likely a threat to me, or could become a threat in the future (especially because you are aware that I have this belief about you).” By Hobbes’s account, the right of nature affords one the right to kill another simply because she judges the other’s death to be helpful to her preservation. She need not judge the other’s annihilation as necessary for her survival, but rather may merely judge that it is conducive to her self-preservation to eliminate the other as a possible future threat, assuming, of course, that this elimination poses relatively little threat in and of itself. In The Elements of Law, Hobbes gives a very broad characterization of the right of nature, saying that it is the right “to do whatsoever he listeth to whom he listeth, to possess, use, and enjoy all things he will and can.” Indeed, Hobbes sometimes characterizes the right of nature as the right Hobbes also makes it clear that his account is not meant to apply to “children and madmen” (e.g., Leviathan, 27.23). 13 De Cive, 1.10; Leviathan, 14.4. 12

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to “everything.”14 But strictly speaking, this is an overstatement and elsewhere Hobbes acknowledges that the right of nature is not literally the right to every single thing. He recognizes that there are some things that even the very broad right of nature does not cover. Some things can never be sincerely judged to tend to one’s preservation. Suicide is an obvious example. Hobbes mentions others: vainglory, cruelty, and drunkenness. Consider the example of cruelty. Hobbes defines cruelty as “vengeance without regard to a future good” and says that he “cannot see what … cruelty … contribute[s] to any man’s peace or preservation.”15 The right of nature only licenses those things that can be sincerely judged to be necessary or conducive to one’s preservation (that is, useful in a person’s quest for survival), and since cruelty is, by definition, done without regard to a future good, it cannot be judged as such. So the right of nature does not permit cruelty. Since there are actions that no sincere, sane person could judge conducive (even in the most general terms) to self-preservation, Hobbes’s right of nature is not literally without limits. However, since the state of nature is a condition of radical uncertainty, almost anything can be seen as helping a person preserve her life, and so the right of nature is virtually unlimited. The criterion for inclusion is very weak; one could say of most things that they “may tend to [one’s] preservation some time or other.”16 Given the overall trajectory of Hobbes’s argument, it is not surprising that his emphasis is on the broadness of the right of nature and not on its possible limits. The second important feature of the right of nature is that it is conceived of as a kind of liberty or freedom. After defining the right of nature, Hobbes contrasts the definition of a right with that of a law by explaining that right is to law as liberty is to obligation; law is a fetter while right is a freedom, and they differ like contraries.17 Liberty is a tricky notion for Hobbes; it has a number of different meanings, which will be discussed in Chapter 2. Here, as opposed to a law, which is a fetter, a right is a freedom to do something (i.e., the absence of a fetter). But exactly what kind of freedom is it? For Hobbes, a right is a “blameless liberty of using our own natural power and ability.” Since a Hobbesian right gives one freedom from blame; it bestows a kind of moral permission on an action. We can, thus, understand Hobbesian rights as permission rights. The Elements of Law, I.14.10; Leviathan, 14.4. De Cive, 3.27. 16 The Elements of Law, I.14.10. 17 Leviathan, 14.3. 14 15

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With this understanding of rights, if one has the right to do X, then one is morally permitted to do X. That is, one does nothing wrong when one does X, nor does one have an obligation to refrain from doing X. Importantly, a permission right does not impose any duties on anyone else to respect its exercise. Hobbesian rights do not impose any moral claims on others, nor are they the kinds of things that can be violated. They are simply, as he says, “blameless liberties.”18 The conception of rights employed by Hobbes appears philosophically coherent  – that is, it seems perfectly intelligible and does not admit of any obvious inconsistencies – but it is clearly at odds with how we conceive of rights in present times. Although understanding rights as simple moral permissions is foreign to us today, I adopt Hobbes’s usage for the purposes of this project and ask for the indulgence of the reader. Thus, unless explicitly noted otherwise, when I use the term right, I mean what Hobbes means, namely permission right.19 The subjectivity and extensiveness of people’s natural rights are a contributing factor to the miseries of the state of nature. In Hobbes’s view, people in the state of nature have unlimited moral permission to do whatever they judge will help them in their quest for survival. Hobbes’s right of nature, however, ends up practically worthless, such that upon reflection it is a right people would rather not have. The Hobbesian state of nature is an horrendous condition that rational people would want to leave behind, if possible. People can “get out” of the state of nature by entering into a social contract to establish a commonwealth. In this contract, people divest themselves of their natural rights and undertake obligations to obey the will of a sovereign. Many have been tempted to invoke Wesley Hohfeld’s notion of a “privilege” (or “liberty right”) in order to explain the seemingly odd normative concept captured by Hobbes’s understanding of “right.” If a person has a Hohfeldian privilege to do X, she has no duty to refrain from doing X. She has the option to do or not to do X; she violates no obligation either way (Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning: and Other Legal Essays [New Haven, CT:  Yale University Press, 1919], 39). Recently the analogy between Hobbesian “blameless liberties” and Hohfeldian “privileges” has been called into question; see Eleanor Curran, “Lost in Translation: Some Problems with a Hohfeldian Analysis of Hobbesian Rights,” Hobbes Studies 9, no. 1 (2006), 58–76. 19 As a matter of fact, my analysis could have been constructed without the use of the word right at all. It is possible to explain the main elements of Hobbes’s account using only the language of moral permissibility. What Hobbes uses the word right to capture is a particular kind of freedom from blame. For Hobbes, rights – at their most basic level – attach to those actions that it is unreasonable to blame someone for doing. And since it would be unreasonable to blame people for trying to avoid being killed, we cannot require them not to do so. As George Kateb puts it, Hobbes can be understood as asking, “With what right, with what possible authority, could anyone require a fellow creature not to try to preserve itself?” (“Hobbes and the Irrationality of Politics,” Political Theory 17, no. 3 [1989], 385). 18

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In Hobbes’s picture, one gives up a right by undertaking an obligation to refrain from doing that which the right previously permitted. Suppose, for example, that one has the right to do X. If one gives up this right, then one strips oneself of the moral freedom to do X. If one obligates oneself not to do X, it becomes morally impermissible to do X. Obligations, then, are a kind of moral fetter. In the social contract, when one obligates oneself to obey the will of the sovereign, one gives up the right and thus the liberty to act in accordance with one’s own judgment in all things. Hobbes defines “injustice” as the breaking of a contract, and so breaking the law in civil society constitutes an injustice because it breaks the social contract. Herein lies another reason the right of nature is so extensive in Hobbes’s view:  there are virtually no obligations in the state of nature. Since there are no (civil) laws and therefore no obligations imposed by them, we are free to do whatever we think useful to survive. Of course, the laws of nature exist in the state of nature, but they do not impose obligations in the Hobbesian sense. When introducing these concepts, Hobbes employs specific terminology and makes a number of careful distinctions. For example, there are two ways to “lay down a right.” If one simply renounces a right, one does not intend anyone in particular to benefit from the renunciation. But if one transfers a right, one “intendeth the benefit thereof to some certain person or persons.” A contract is a “mutual transferring of right.” A covenant is a particular kind of contract; in a covenant, at least one of the parties is “to perform his part at some determinate time after.”20 The right of self-defense is a vestige of the right of nature. When one enters into civil society, one agrees to give up or transfer the large majority of one’s natural liberties. Every subject retains the right to defend her life from imminent deadly attack and to procure those things, such as food, necessary for immediate bodily survival, but no one any longer has the general right to do what simply appears advantageous. The right of self-defense is narrower than the right of nature, then, for two reasons. First, it only covers those actions undertaken in life-threatening situations. If the right of nature is the right to do what one judges necessary or conducive to one’s preservation, then the right of self-defense can be seen as the right to only the former.21 Second, the right of nature is such that it will be exercised on a regular basis in the state of nature. Since there are far fewer threats in civil Leviathan, 14.6–11. In practice this distinction might be difficult to maintain; often it is hard to tell whether something is really necessary for someone’s survival, and there might not be a fact of the matter in all cases. The concept of necessity is somewhat vague, and there are a number of questions that

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society, it is only the rare case in which the right of self-defense needs to be exercised. After all, one of the main virtues of civil society is precisely the absence of circumstances in which people must fight for their lives. While the scope of the right of self-defense is much narrower than the scope of the right of nature, it shares its main features qua right. The right of self-defense, like the right of nature from which it derives, is a permission right. It is for this reason that Hobbes speaks of subjects who resist the sovereign power in self-defense as “having the liberty to disobey,” or of their resistance being “without injustice.”22 Because it is simply a moral permission, the right of self-defense does not impose any duties on anyone else to respect its exercise. In particular, it imposes no obligations on the sovereign to respect that right; indeed, since the sovereign is not party to the contract, the sovereign has no obligations to his subjects at all. Crucially for Hobbes, the right of self-defense does not obligate the sovereign to refrain from punishing his subjects as he sees fit, including the use of executions. By Hobbes’s account, the Athenian state had a right to order Socrates to drink the hemlock, even though Socrates had a right to disobey. Hobbes makes a strong point of separating the subjects’ right to resist the sovereign in self-defense from the sovereign’s right to punish the subjects. Indeed, in Chapter 28 of Leviathan, he gives a separate explanation for the sovereign’s right to punish; it is part of his right of nature and thus independent of the rights transferred to him in the social contract. Thus, Hobbes renders compatible the sovereign’s right to punish his subjects with the subjects’ right to resist that punishment.23 Hobbes’s right of self-defense in historical context A key political issue at the time Hobbes was writing (the early to middle seventeenth century) was the permissibility of resistance to an existing ruler. Debates raged over when, if ever, such resistance was legitimate. A host of interrelated and often conflated questions were brought to bear on this issue, including the nature of the relationship between subjects and Hobbes simply does not address (e.g., exactly how certain does one have to be that the threat is deadly? or how imminent must the threat be?). However these questions get resolved, it is clear that the right of self-defense will be much narrower than the natural right to whatever will help a person preserve herself. 22 Leviathan, 21.10, 21.12; also see De Cive, 6.13. 23 A number of people have questioned the success of this argument; e.g., Thomas S. Schrock, “The Rights to Punish and Resist Punishment in Hobbes’s Leviathan,” Political Research Quarterly 44, no. 4 (1991), 853–889.

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sovereign, the existence of natural rights and liberties, the source of the subjects’ obligation of obedience, and the origin and limits of the sovereign’s right and power to rule. At the very center of many of these debates was the notion of self-defense. Players on both sides had strongly held positions on whether there was a natural right of self-defense (or any natural rights at all), whether the right was inalienable, who held it, and whether it justified political resistance. Both general questions about political obligation and specific questions about the right of self-defense have a long and interesting history; in what follows I wish to convey only a taste.24 For examples of positions that were influential for Hobbes and his contemporaries, one might turn to the views of Hugo Grotius or John Selden. Grotius insisted that the right of resistance was precisely what needed to be given up in order to create civil society. Yet he also claimed that the right of common property resumes in times of necessity, thus excusing breaking the law in such cases. Unlike Hobbes, Grotius separates such cases of necessity from cases of self-defense. But like Hobbes, he reserves to subjects certain rights of self-protection, though he includes rights Hobbes does not, such as the right to protect one’s chastity. Like Hobbes, he is adamant that it is never legitimate to use force (“to make war,” as Grotius calls it) against a superior; but unlike Hobbes, he takes this to rule out the legitimacy of using force to protect oneself against the state. Interestingly, though Grotius’s official position is antirebellion, he briefly acknowledges that rebellion might be allowed in certain severe circumstances, “the most extreme and inevitable danger.”25 His argument, as Richard Tuck characterizes it, is one of “interpretive charity”: we should not understand people as having renounced their right to resist in such extreme cases.26 Much of what follows is influenced by the discussion in Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge University Press, 1979). For other excellent discussions of the right of resistance in the context of the English Civil War, see Tuck, Philosophy and Government, chapters 6–7; John Sanderson, “But the People’s Creatures”:  The Philosophical Basis of the English Civil War (Manchester: St. Martin’s Press, 1989); J. P. Sommerville, Politics and Ideology in England, 1603–1640 (London: Longman, 1986); and Perez Zagorin, A History of Political Thought in the English Revolution (New York: Humanities Press, 1966). For a discussion of the relevant history of the right of resistance leading up to the English Civil War, the canonical source is Quentin Skinner, The Foundations of Modern Political Thought, Vol. II, The Age of Reformation (Cambridge University Press, 1978). Lastly, Sommerville’s Thomas Hobbes: Political Ideas in Historical Context (Houndmills, UK: Macmillan, 1992) is an indispensable resource for those interested not only in the historical context of Hobbes’s philosophy, but also in the ways in which Hobbes’s views on particular issues were or were not original. 25 Hugo Grotius, The Rights of War and Peace, ed. Richard Tuck (Indianapolis, IN: Liberty Fund, 2005), I.IV.II.1; II.II.VI.1; I.IV.VII.2. 26 Tuck, Natural Rights Theories, 80. 24

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Selden provides an interesting foil to Grotius. He insisted on the alienability of all rights, including the right of self-defense. By Selden’s account, a foolish agreement must be kept, even if the keeping of it results in one’s death. No excuses were permitted, even in cases of extreme necessity. Interestingly, Selden did not hold that all rights necessarily were alienated, just that they could be. Moreover, he denied that the relevant contract – namely, the one between king and subjects in Britain – was one in which all rights were renounced. People could divest themselves of all their rights, but whether they in fact had done so was a different ­question.27 The complexities and ambiguities of Grotius’s and Selden’s views illustrate the difficulty people had in disentangling and making sense of these issues, especially when the issues were of pressing political concern. And, of course, many of the arguments given in the 1630s and 1640s were motivated by, and explicitly intended as justifications for, particular political positions on the standing of the king vis-à-vis parliament. In the context of the English Civil War, appeals to the inalienable rights of subjects often played a key role in the case against the king, and the right of self-defense was frequently invoked in this context. In November 1642, for example, Parliament declared that it was time “for us to stand upon our self-defence, which nature teacheth every man to provide for.”28 Henry Parker famously argued that it would be against nature if people did not react with resistance to such threats as posed by the king’s claim to absolute power. According to Parker, people have a natural duty to protect themselves, and those who fulfill their contract of obedience at the cost of their own preservation are to be condemned for being “felonious to themselves and rebellious to nature.”29 Accordingly, military action against the king’s forces was not only justified, it was also required. Similar sentiments were echoed in various speeches, pamphlets, and treatises calling for Parliament to defend the people of England against the enemy, the tyranny of absolute and arbitrary monarchical rule. Justifications of the rebellion also made use of notions of divided government and limited monarchy, charges that the king had acted illegally by, for example, levying taxes without the consent of Parliament, the claim that monarchs are accountable to their subjects and so could be rightfully punished, and general ideas about the fundamental rights and liberties of mankind. The cry of self-defense was used in conjunction with these John Selden, Opera, III, col. 2041; I, col. 638, quoted in Tuck, Natural Rights Theories, 96–97. “A Remonstrance of the Lords and Commons,” cited in Sanderson, Philosophical Basis for the English Civil War, 15. 29 Henry Parker, Observations, quoted in Tuck, Natural Rights Theories, 104. 27 28

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to justify not only the uprising against the king but also his subsequent removal and execution. The parliamentary rebels were not concerned with cases like Socrates’, or even with individual cases in general; rather, they were interested in the right of self-defense as it could be used to justify collective resistance to the Crown. But, the arguments that Parliament had a right – and maybe even a duty – of self-defense that justified violent resistance to the king rest on one key move: an analogy between the individual right of self-defense and a collective right of self-defense. From the idea that each person has a natural, God-given, inalienable right to defend himself from unjust attack, it was argued that the people as a whole must have a similar right against their ruler. We see this move made explicitly by John Milton when he says, They [Milton’s opponents] tell us that the Law of nature justifies any man to defend himself, eev’n against the King in Person:  let them shew us then, why the same Law may not justifie much more a State or whole people, to doe justice upon him, against whom each privat man may lawfully defend himself; seeing all kind of justice don, is a defence to good men, as well as a punishment to bad; and justice don upon a Tyrant is no more but the necessary self-defence of a whole Common wealth.30

Henry Parker, William Prynne, and others also used this analogy in defense of Parliament’s resistance to the king, but it dates back to at least the sixteenth century.31 Interestingly, many who held that public self-defense was not only permissible but obligatory were also concerned to deny the existence of a right of resistance that could be exercised by individuals. This caveat appears in most theories of resistance at this time – from the anonymously penned Huguenot tract, Vindiciae contra tyranno to Francisco Suarez’s A Defence of the Catholic and Apostolic Faith and John Locke’s Second Treatise of Government.32 And defenders of parliamentary resistance to the king in England in the first half of the seventeenth century were no exception. Parker himself was apparently loath to admit or discuss individual inalienable rights. Thus, while he agreed with Parker, Milton, and others John Milton, The Tenure of Kings and Magistrates, ed. William Talbot Allison (New York: Henry Holt & Co., 1911), 53. 31 Sommerville, Hobbes: Political Ideas in Historical Context, 34–35. Skinner provides a host of specific examples, including an especially perspicuous one from Suarez (Foundations of Modern Political Thought, Vol. II, 177). 32 Skinner discusses the few exceptions to this trend, suggesting that one of the most radical (at least among the Calvinist revolutionaries) was George Buchanan, who insisted on an individual right to kill or remove a tyrant (Foundations of Modern Political Thought, Vol. II, 333–334). 30

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about the existence of a right of self-defense, Hobbes conceived of it as a permission right held by individuals, not as a duty of a collective body. There is a second point of contrast: in the hands of Parker, Milton, and others, the notion of an inalienable right of self-defense was used as a tool by those agitating for political resistance and political change. Ironically, these were the very things Hobbes himself decried. Among the supporters of Charles I, talk of the subjects’ enduring right of self-defense was, unsurprisingly, seen as an anathema; instead, they advocated a “doctrine of nonresistance.” Divine right theorists, such as Robert Filmer, adamantly denied the existence of a natural right to resist one’s ruler and rejected the possibility of a state of natural liberty. Filmer instead maintained that political authority originated when God created Adam and gave him the right to govern, a right that has been passed down ever since.33 Believers in divine right understandably found the very terms of the debate over the inalienability of natural resistance rights absurd. They took any and all resistance to royal power to be wrongful, no matter how incompetently or tyrannically the king behaves. Furthermore, since they not only liken to but also derive the authority of kings from the authority of God, believers in divine right could argue that disagreeing with the king is akin to disagreeing with God, and at the very least shows profound disdain for God’s choice of rulers. The obligations of subjects to obey their rulers are subsumed under their primary obligation to obey God, and, like their obligation to God, should be just as total. King James I, a great espouser of divine right theory, draws this comparison saying, “That as to dispute what God may doe, is Blasphemie … So is it sedition in Subjects, to dispute what a King may do in the height of his power.”34 If one’s duty to God requires universal submission to all aspects of a king’s rule, then the only solution to even the worst tyranny is an appeal to heaven. Or, as Bramhall so eloquently (and disturbingly) puts it, “he [the subject] is bound to acquiesce, and may not oppose or resist, otherwise than by prayers and tears, and at most by flight.”35 A common concern in the sixteenth and seventeenth centuries was what to do in the event that the king issued an order in direct opposition to one’s understanding of the will of God. This happened quite ­frequently, given the proliferation of different sects of Christianity and Sir Robert Filmer, Patriarcha and Other Writings, ed. Johann P. Sommerville (Cambridge University Press, 1991). 34 King James VI and I, “Speech to Parliament of 21 March 1610” in King James VI and I: Political Writings, ed. Johann P. Sommerville (Cambridge University Press, 1994), 184. 35 Bramhall, “Catching of Leviathan,” 136. 33

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their different and conflicting interpretations of God’s will. Some versions of divine right theory deny this as a possibility; after all, the king is supposed to be akin to God on earth and so cannot act against God. But other versions accept that a king may indeed act heretically, and recommend that in those cases subjects disobey the heretical command, but only on the condition that they passively submit to the punishment for their disobedience. The “doctrine of passive obedience,” as it is sometimes called, rested on a distinction between passive noncompliance (or nonobedience) and active resistance. While subjects were allowed to refuse to comply with the law in very special cases, under no condition was active resistance – explicit or organized protest or out-and-out rebellion – permitted. Understandably, then, believers in divine right found the terms of the debate ridiculous; since it is never legitimate to resist the king, there cannot be a – natural, inalienable, or otherwise – right to do so. While royalists of the divine right stripe simply refused to engage the issue of self-defense and the natural rights it presupposed, other royalists, such as Dudley Digges, William Chillingworth, and Henry Hammond, were very concerned to address natural rights precisely because they wanted to show how such rights could and should be given up. They insisted not only on the possibility of completely divesting oneself of all of one’s rights, including the right of self-defense, but also on the necessity of doing so. Many in this camp saw the complete renunciation of natural right as itself the source of subjects’ obligation to obey the law. They made the case that because subjects in civil society possess none of their natural defensive rights, they have no potential justification for resisting their ruler. Various proponents of this view offered slightly different, but generally compatible arguments. Digges, for example, endorsed a Hobbesian account of the state of nature, natural law, and natural right, but he claimed that the right of self-defense in particular must be given up. According to Digges, self-defense “ceases to be lawfull, after we have made our selves sociable parts in one body because we voluntarily and upon agreement restrained our selves from making use of this native right.”36 Hobbes, of course, would have agreed that there is a sense in which self-defense “ceases to be lawfull” in civil society, namely, when subjects enjoy the protection of law, which presumably will be most of the time. Hobbes makes it clear that a right of self-defense is legitimately exercised only when the help of the law is unavailable. 36

Dudley Digges, The unlawfulness of subjects taking up armes, sig. A3–A3V, quoted in Tuck, Natural Rights Theories, 103.

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The real disagreement was over the existence of a right of self-defense that could be exercised by subjects in resistance to the law itself. Hobbes insists on such a right and conceives of the right of self-defense as exercised in primarily this way, namely, in opposition to the dictates of a political order. Digges denies the existence of such a right, explicitly contradicting Hobbes’s account. Digges unambiguously states that a subject is obligated not to resist but rather to submit herself to law enforcement, even if she knows that she will be unjustly punished or killed as a result.37 The notion that subjects have a duty to “suffer patiently” through the state’s efforts to prosecute and punish them is a recurring theme in the writings of Digges and the other members of the Tew Circle.38 They clearly would have supported Socrates’ decision to drink the hemlock. In order to explain why people would undertake a covenant requiring the renunciation of all of their natural rights, many of these royalists appealed to self-interested probability calculations. According to this argument, people in the state of nature will agree to “part with this right of self-defence” because “reason tells us, wee shall thereby obtaine a more excellent good, the benefit of Peace and Society … Because in probability; we shall be in lesse danger, living amongst men who have agreed to be governed by certaine Laws, then if every one followed his owne inclination.”39 It would be wise for people to give up their natural right of self-defense in exchange for membership in civil society, because it is so much safer to live under a system of enforceable and enforced laws than it is to live in their absence. Employing a quasi cost-benefit analysis, these royalists thus attempted to establish the rationality of divesting oneself of all of one’s natural rights, including and especially one’s right of self-defense. The central thought seems to be: given the expected benefit of living under peaceful rule and the small chance that one will be the victim of the punishment power of the state, it seems clear that it is in one’s own self-interest to agree to give up the totality of one’s natural rights in order to procure one’s safety. In all likelihood, one will live out one’s entire life without finding oneself in the kind of position where exercising the Ibid., 104. The passage reads as follows: “though it should happen to me in particular, to be condemned by the Magistrate without cause, I am bound to suffer patiently, because having made such a bargaine, which might have beene profitable, I have no right to recall it, when it appears disadvantageous. I ow, that I have beene safe thus long, to the benefit of this Covenant, and therefore am bound in justice to share the inconveniences” (An answer to a printed book, sig. C3V, quoted in Tuck, Natural Rights Theories, 105). An answer to a printed book [Parkers’ Observations] was published anonymously, but, according to Tuck, the likely authors included Digges, Chillingworth, and other members of the Tew Circle. 39 Ibid. 37 38

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right of self-defense is even a possibility, especially if one is a law-abiding citizen. The doctrine of nonresistance is, thus, derived from the notion of an original contract. Notice that the undefended assumption is that establishing a peaceful social order requires the total alienation of natural right; as we will see, it is precisely this assumption that Hobbes disputes. The argument continues with the claim that contracts must be kept even if doing so entailed the contractor’s suffering or death. Doing otherwise involved violations of the moral law and risked God’s wrath. Hammond sums this up in his powerful statement that because the “right of repelling force by force” must be given up, it follows that “though it be founded in self-defence, he that thus violently resists the powers, shall receive to himself damnation.”40 Hammond’s portrayal of the person who “violently resists the powers [of the state]” in self-defense would aptly cover the majority of the cases of self-defense that Hobbes describes. For Hammond, resistance in these circumstances condemns the person to eternal punishment in hell, while on Hobbes’s account, such resistance is entirely blameless. Indeed, Hobbes takes it as one of his goals to demonstrate the moral permissibility of resistance to the state in self-defense, thereby diverging yet again from the views commonly propounded by royalists, even those willing to entertain the idea that people have natural rights and liberties that can be given up in exchange for the protection of civil society. Perhaps Hobbes was impelled to develop such lengthy arguments for the inalienability of the right of self-defense in part because of the presence of such forceful denials of the right and of such powerful and extreme condemnations of those who resisted the power of the law only to save their lives. Notice that despite being in direct opposition on many issues, the royalists and the parliamentarians were in agreement on one thing, namely, the denial of an individual right of resistance. As noted above, the parliamentarians’ defense of collective resistance explicitly excluded individual resistance. And, even those versions of the doctrine of nonresistance that allow for passive disobedience prohibit all active resistance, individual or otherwise. It is exactly on this point that Hobbes enters the fray. Behind these royalist arguments lurks a common fear that is best understood along consequentialist lines. Most royalists subscribed to the doctrine of passive obedience and worried that legitimating any resistance, no matter how insignificant, would have destabilizing and potentially disastrous consequences. Digges and his cohort assumed that allowing disobedience – even in the case of the innocent man who is unjustly accused – was   Henry Hammond, Works, quoted in Tuck, Natural Rights Theories, 108.

40

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incompatible with a stable and peaceful political order. They argue that even where a person was facing a gruesome or deadly fate at the hands of the state, the claim that he did not have a duty to submit willingly would yield chaos and even anarchy. This kind of fear is also evidenced in many of the royalists’ complaints about Hobbes’s individual right of self-defense. Filmer characterizes Hobbes’s view as a doctrine that is “destructive to all government whatsoever, and even to the Leviathan itself”; he imagines a nightmarish scenario in which hordes of criminals awaiting punishment attempt to assassinate the king thereby plunging us back into the state of nature.41 Even when viewed from a consequentialist perspective, this is clearly a weak argument  – especially in the case of punishment. Moreover, the general point seems undefended. Why would recognizing such a moral right of the condemned usher in chaos and anarchy? As Hobbes will acknowledge, people in this situation are likely to resist regardless of whether they have a right to do so. This being the case, merely condoning this action by claiming that there is such a moral right is unlikely to have any interesting consequences whatsoever:  subjects will resist the infliction of punishment regardless of what a philosophical theory of rights happens to require. Moreover, an individual right to resist seems far less dangerous than a collective one. This issue will be a recurring theme in the subsequent chapters. The royalist and parliamentarian approaches, taken together, reveal part of the reason why Hobbes’s political philosophy was so idiosyncratic. Hobbes based his justification for absolute monarchy on nonreligious, individualistic, self-interested premises and took as one of his sticking points the inalienability of the individual right to resist the sovereign in self-defense. He was an absolutist who denied the possibility of absolute subjection. Although this discussion offers merely a glimpse of the differences and nuances in the literature, it has illustrated the uniqueness of Hobbes’s position in relation to that of his contemporaries. This may be part of the reason why he was simultaneously loved and hated by both those loyal to the king and the king’s opponents. Hobbes’s right of self-defense as compared to the modern-day right of self-defense Before turning to Hobbes’s specific arguments for the claim that subjects necessarily possess a right of self-defense, I will briefly expound the Filmer, Patriarcha and Other Writings, 195. For further examples of royalist warnings about the catastrophic potential of allowing an individual right of self-defense against a prince, see Sommerville, Thomas Hobbes: Political Ideas in Historical Context, 34–37.

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differences between Hobbes’s conception of self-defense and the modern concept, at least as it is represented currently by the modern criminal code of the United States. Clearly, Hobbes’s account of the right of self-defense is distinctive because of its origins; it derives from the Hobbesian right of nature, which is specific to his account. Other versions of the right of selfdefense, including the modern-day version, have different genealogies and justificatory stories. That is, one does not have to buy into the Hobbesian account of the state of nature (or even into a broadly contractarian theory) in order to hold that people have a right of self-defense. But there are other interesting features of the Hobbesian right of self-defense that serve to sharply distinguish it from our own. Hobbes’s notion of self-defense diverges from our own on a variety of counts, partly because today we employ a number of important distinctions that Hobbes simply did not make and partly because we focus on different questions and issues. First, as discussed above, the fundamental right with which Hobbes is concerned is a general right to save one’s own life, and so he combines defending one’s life against the threat of a physical attack by another person with defending one’s life against the threat posed by a lack of basic necessities. The modern criminal code differentiates the two, calling the former “self-defense” while subsuming the latter under a “necessity” or a “lesser evils” defense. Second, the modern notion of self-defense can be invoked only against certain kinds of attack, namely, wrongful ones. As Jeremy Waldron points out, “the provisions of most penal codes justify self-defense only in response to unlawful or unjustified aggression.”42 Present-day courts would never recognize the escape attempt of a death row inmate as an exercise of the inmate’s right of self-defense; acts of aggression by agents of the state are considered lawful and self-defense is only justified against unlawful aggression. In contrast, it is a peculiar feature of Hobbes’s account that the right of self-defense exists irrespective of the guilt of the subject and the lawfulness of the attack. Hobbes insists that the guilty and the innocent alike have the right to defend themselves against the infliction of punishment by the state. On Hobbes’s account, all are morally permitted to resist the sovereign if he tries to use force to threaten their lives. In modern times, it is thought that a person gives up or forfeits his rights, including his right of self-defense, when he commits certain crimes. This is the precise point 42

Jeremy Waldron, “Self-Defense:  Agent-Neutral and Agent-Relative Accounts,” California Law Review 88, no. 3 (2000), 717.

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Hobbes denies; indeed, he takes the paradigmatic case of self-defense to be the accused man  – guilty or not  – defending himself against a lawful threat from agents of the state. This difference cannot be chalked up to a difference in time period. Just a few decades after Hobbes, Locke expresses the modern idea saying, “nor ought any private Persons, at any time, to use Force; unless it be in self-defence against unjust Violence.”43 Justifying self-defense against a lawful attack was a stance unique to Hobbes, not to the seventeenth century. At certain points, Hobbes does allude to the function of the right of self-defense as a legal excuse, saying that if a subject acts in self-defense, she commits no crime and “is totally excused.”44 In these passages Hobbes comes closest to describing something we would recognize today as a right of self-defense. However, such references are relatively rare, and Hobbes is much more concerned with justifying the right of self-defense conceived as the right exercised against, or in opposition to, state power. Third, while Hobbes sees self-defense as a subjective, permission right, the modern notion rejects both counts. The modern criminal code does take the subjective state of mind of the agent into account, but it also uses standards such as the reasonableness of belief. But most importantly, the modern conception of what it means to have a right stands in stark contrast with Hobbes’s conception of rights as “blameless liberties.” The presence of a Hobbesian right has only one effect: it determines the moral status of a person’s action when exercising the right. Having a Hobbesian right to some action only signifies that the action is morally permissible and that the actor has not committed an injustice. Acting with right has no normative effect on anyone else; no one has a duty to respect the right, and one’s action is still legitimately punishable by law. The inalienable right of self-defense allows a Hobbesian subject to retain moral innocence if she refuses to obey a command to commit suicide or otherwise resists the sovereign’s attempt to execute her. All Hobbes wants to establish is that there is no obligation to submit to deadly force and therefore no injustice when the subject does not. But the liberty to resist seems to make little difference in either practice or theory; it does not help to save a life (by, say, imposing duties on others to help), nor does it effect the moral status of the sovereign’s actions as he likely executes the subject anyway. It is no surprise, then, to find commentators disparaging the apparent weakness of the Hobbesian right of self-defense. James Martel, for example, John Locke, A Letter Concerning Toleration, ed. James Tully (Indianapolis, IN: Hackett, 1983), 31. Leviathan, 27.25; but, more importantly, see Leviathan, 27.20.

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refers to it as nothing but the “right to kick and scream on the way to the gallows”; Gordon Schochet describes it as “peculiar”; and Deborah Baumgold calls it “politically irrelevant” and “inconsequential.”45 The feebleness of Hobbes’s notion of a right stands in contrast with the current notion.46 Today, it is believed that if someone has a right to something, then, at least prima facie, others have a correlative duty to respect the exercise of that right. Of course, there is much debate about the nature of rights; however, it is simply taken for granted that, whatever a right is, it is not merely a permission. Because Hobbes is working with this very particular idea of what a right is, he is entitled to say that the sovereign is not obligated to respect the self-defense rights of his subjects and that their right of self-defense does not obligate the sovereign to refrain from killing them. These sorts of claims would be virtually incomprehensible in modern rights discourse. Finally, many of the questions and controversies about self-defense that are relevant today simply were not addressed nor presumably entertained by Hobbes. For example, contemporary philosophers and legal theorists debate about innocent bystander (or nonculpable aggressor) cases. Questions about imminence, proportionality, reasonability, and the duty to retreat preoccupy modern scholars. Hobbes is unconcerned with such issues, and his theory is likely too coarse to make such distinctions, though it remains to be seen whether he could have added anything beneficial to those debates. It is worth mentioning that while Hobbes’s accounts of the justification for and the scope of the right of self-defense are importantly different from that of modern times, it is possible that in practice they could come to resemble one another. A Hobbesian civil society can allow any legal right James R. Martel, “The Radical Promise of Thomas Hobbes: The Road not Taken in Liberal Theory,” Theory and Event 4, no. 2 (2000), 34; Gordon J. Schochet, “Intending (Political) Obligation: Hobbes and the Voluntary Basis of Society” in Thomas Hobbes and Political Theory, ed. Mary G. Dietz (Lawrence, KS: University Press of Kansas, 1990), 62; Deborah Baumgold, Hobbes’s Political Theory (Cambridge University Press, 1988), 29, 30. Despite these remarks, Baumgold does not deny that Hobbes’s right of self-defense holds theoretical interest; indeed, she devotes significant time to discussing it, giving one of the most useful analyses of the relevant historical and intellectual context. Baumgold simply dismisses the right of self-defense as politically uninteresting. 46 In her recent work, Eleanor Curran has challenged the assumption that Hobbesian rights are nothing more than bare freedoms incapable of affecting anything beyond the moral status of the right-holder. Curran defends a novel interpretation according to which Hobbesian rights are “protected,” so they can and do generate obligations on the part of others, both for other subjects and, surprisingly, for the sovereign. See Reclaiming the Rights of Hobbesian Subjects (Houndmills, UK:  Palgrave Macmillan, 2007). I find many aspects of Curran’s reading appealing, but her focus is not on the rights to act in opposition to the will of the sovereign, and I suspect that such rights fit only uneasily in her account. 45

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of self-defense against other subjects that is both consistent with Hobbes’s basic theory and commanded by the sovereign’s law. This could in fact look rather like our legal right of self-defense, if the sovereign so ordered. I n t e r pr e t i ng t h e i n a l i e n a bi l i t y a rgu m e n t Now that we have a more robust understanding of the nature and origin of Hobbes’s right of self-defense, the question to ask is: what is Hobbes’s argument for this right? Hobbes devotes quite a lot of attention to justifying his claim that subjects in a commonwealth possess an inalienable right of self-defense, which is understandable given the centrality of the question of the alienability of rights at the time Hobbes was writing. But there are important interpretive questions about how to understand his claim. In addressing this issue, I first discuss the passages upon which the standard interpretation relies most heavily. I then explain two of the major problems with the standard interpretation. Finally, I give my own interpretation of Hobbes’s account of the inalienable right of self-defense. The standard interpretation of Hobbes’s argument for the inalienability of the right of self-defense There are two ways to understand Hobbes’s claim that the right of selfdefense is inalienable. First, it could mean that there is no possible covenant in which the right of self-defense is alienated (this is what I call the “standard interpretation”). Second, it could mean that the right of self-­defense cannot be alienated in the social contract. Hobbes is generally taken to have meant the first, which is unsurprising given the way in which he talks about the inalienability of the right of self-defense; the wording he uses tends to be absolute (e.g., “a covenant not to defend myself from force by force is always void”).47 He speaks as though it is categorically impossible to alienate the right of self-defense; that is, there can never be an obligation to refrain from doing what one judges necessary in order to save one’s life. While Hobbes is virtually always read in this way, such a reading fails to do justice to the text as a whole and exposes Hobbes’s arguments to a variety of unwarranted criticisms. In my view, we should reject this standard reading of Hobbes in favor of the second interpretation, namely, that the inalienability of the right 47

  Leviathan, 14.29 (emphasis added).

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of self-defense pertains solely to the social contract. In my view, the claim Hobbes is concerned to establish is that subjects in the commonwealth retain the right of self-defense. It follows that subjects do nothing wrong when they disobey or resist the sovereign in self-defense. Now, because of his theory of obligation – specifically, the fact that he grounds all obligations in contract – the only way he can explain why subjects never have an obligation not to defend themselves against the sovereign is to say that subjects never could have given up their natural right of self-defense in the social contract. Both interpretations establish the requisite conclusion, namely, that subjects retain a right of self-defense. On the standard interpretation, the move is simple:  the right of self-defense cannot be transferred in the social contract, because it cannot be transferred at all. But there are several reasons to reject this reading, not the least of which is the fact that Hobbes does, in fact, recognize that there can be circumstances under which people can give up the right of self-defense. In private contracts  – contracts other than the one that establishes the commonwealth – the right of self-defense can be alienated. Hobbes discusses the question of the inalienable rights in all of his major works on political philosophy. For example, in The Elements of Law he says that “entering the commonwealth consisteth in the transferring of every man’s right of resistance against him to whom he hath transferred the power of coercion,” entailing that no subject has the right to resist the sovereign; however, this only holds “supposing the not-resistance [is] possible.” And while it “was necessary that a man should not retain his right to everything, so also was it [necessary], that he should retain his right to some things:  to his own body (for example) the right of defending, whereof he could not transfer.”48 Similar sentiments are also expressed in De Cive; but what appears to be the official version of Hobbes’s argument for the inalienability of the right of self-defense is found in Chapter 14 of Leviathan. On a natural reading of the pertinent passages in this chapter, Hobbes offers two different but related arguments for the inalienability of the right of self-defense: a conceptual impossibility argument and a psychological impossibility argument.49 The Elements of Law, II.1.7; I.17.2. Tuck defends a different interpretation of Hobbes’s position in The Elements of Law; cf., Tuck, Philosophy and Government, 317. But see Sommerville, Hobbes: Political Ideas in Historical Context, 175–176 for a rebuttal of Tuck’s argument. My reading coheres with Sommerville’s on this point, but this dispute has no significant effect on the interpretive argument I give below. 49 It is debatable whether Hobbes is better understood as offering two arguments or two versions of the same argument. In Leviathan, they appear in the same chapter, but the psychological impossibility argument comes a number of paragraphs after the conceptual impossibility argument. 48

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The conceptual impossibility argument The first appearance of the right of self-defense in Leviathan reads as follows: Whensoever a man transferreth his right, or renounceth it, it is either in consideration of some right reciprocally transferred to himself or for some other good he hopeth for thereby. For it is a voluntary act, and of the voluntary acts of every man the object is some good to himself. And therefore there be some rights which no man can be understood by any words or other signs to have abandoned or transferred. As, first, a man cannot lay down the right of resisting them who assault him by force, to take away his life, because he cannot be understood to aim thereby at any good to himself.50

This argument is called the “conceptual impossibility argument,” since, for Hobbes, it is something central to the concept of transferring a right that rules out transferring the right of self-defense.51 The first premise is that when an agent transfers a right, he is always doing so with an eye to some benefit, what Hobbes calls some “good to himself.” One cannot transfer one’s right of self-defense, because there can be no benefit to oneself in doing so. The reason for this presumably is that death is the worst evil, and, as such, there can be no possible advantage in submitting to it. There is no remedy for death, and no imaginable good could make up for that kind of loss. Accordingly, any transfer of the right of self-defense must be merely apparent, because actually transferring that right would contradict a crucial element of what is involved in transferring a right at all. Hobbes’s emphasis in this passage is on the idea that there is nothing one can say or do that could be construed as agreeing to divest oneself of the liberty of defending one’s life. I can scream until I am hoarse that I agree not to resist you if you try to kill me, but I cannot thereby obligate While there is significant overlap between them, they represent sufficiently different lines of reasoning and it is useful to treat them separately. Other commentators, notably Claire Finkelstein and Jeremy Waldron, have also separated out these particular arguments, though they call them by different names. Finkelstein uses the “argument from benefit” and the “argument from involuntariness”; and Waldron calls them the “argument based on the unintelligibility of any covenant purporting to renounce the liberty of self-defense” and the “argument based on the impossibility of performing any such covenant” (see Finkelstein, “A Puzzle about Hobbes’s Right of Self-Defense,” Pacific Philosophical Quarterly 82, no. 3–4 (2001), 338–339; and Waldron, “SelfDefense: Agent-Neutral and Agent-Relative Accounts,” 719). 50 Leviathan, 14.8. 51 Of course, calling something a “conceptual impossibility” argument has certain connotations that do not apply here. Transferring the right of self-defense is not a conceptual impossibility in the same way that a round square is a conceptual impossibility. I call this the conceptual impossibility argument because it emerges from the nature of the relevant concepts: the concept of transferring a right (it is a voluntary action) and the concept of voluntary action (it always aims at some good for oneself). Add the premises that death is always the worst evil and so willingly submitting to one’s own death can never be seen to aim at some good to oneself, and you get the argument.

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myself. Any attempt at the renunciation of a right of self-defense, no matter how forcibly implored, is simply incomprehensible to others. In contrast, consider rights to physical objects. In Hobbes’s state of nature, everyone has the right to all material resources, land, water, food, and so on, insofar as one judges them useful for one’s survival. In the social contract, each reciprocally lays down this right to possessions, with an eye to “some good to oneself..” One of the conditions necessary for the institution of a peaceful and secure civil society is that everyone (except the sovereign) lay down these rights. People obligate themselves to abide by the sovereign’s laws in order to achieve this good. The transfer of rights to material things, then, does constitute an intelligible covenant. But unlike the promise to obey the laws of the state concerning property, there is no possible “good to oneself” at which the promise not to defend one’s life can be understood to aim. So, according to Hobbes, one cannot make a genuine (i.e., binding) transfer of the right to defend one’s life, and each individual retains this right in civil society. This means that there is no obligation not to resist attacks on one’s life, and when one resists such attacks, it is done, as Hobbes says, “without injustice.” The psychological impossibility argument On the standard view, Hobbes’s second argument for the inalienability of the right of self-defense is that it is psychologically impossible to undertake an obligation not to resist death. According to Hobbes, the practice of covenanting is constrained in a number of ways such that certain conditions must be fulfilled for a putative covenant to be binding. One of these conditions is that whatever an agent promises to do must be possible. For Hobbes, ought implies can. For example, a person could not make a binding promise to sprout wings and fly, because it is not possible. The promise to repay one’s debts or refrain from killing others does fulfill this condition, however, because such actions are within one’s power. Hobbes says, “to promise that which is known to be impossible is no covenant” and explains that “the promise of not resisting force in no covenant transferreth any right, nor is obliging” because, man by nature chooseth the lesser evil, which is danger of death in resisting, rather than the greater, which is certain and present death in not resisting. And this is granted to be true by all men, in that they lead criminals to execution and prison with armed men, notwithstanding that such criminals have consented to the law by which they are condemned.52   Leviathan, 14.25, 14.29.

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Hobbes takes the fact that the condemned are led to their death in chains to be evidence for his psychological claim that people would inevitably choose the lesser evil of possible escape. His idea is that if prisoners sentenced to hang were unchained and unguarded on their walk to the gallows, they would reasonably and justifiably attempt to escape. Hobbes expresses the sentiment slightly differently in De Cive, saying, An obligation not to resist [death] is an obligation to choose what will seem the greater of two present evils. For certain death is a greater evil than fighting. But it is impossible not to choose the lesser of two evils. Hence by such an agreement we would be obligated to the impossible, and that is contrary to the nature of agreements.53

The argument seems to be: it is impossible for people to choose the greater evil over the lesser evil; death is always the greater evil, so it is impossible for people to choose death.54 A promise to do the impossible is not binding:  ought implies can. Therefore, one cannot promise to choose death. Hence, one is always morally permitted to do what one judges necessary to preserve one’s life. Moreover, these passages make it clear why scholars such as Martel see Hobbes’s right of self-defense as (literally) providing nothing more than “the right to kick and scream on the way to the gallows.” As construed by the standard interpretation, Hobbes’s argument is that it is impossible, either conceptually or psychologically, to transfer the right of self-defense in a binding covenant. It is clear from the text why commentators have been led to adopt this version of his argument for the right of self-defense. However, the standard interpretation has at least two serious problems: the argument is based on a flawed premise and is subject to various counterexamples. The “ death as worst possible evil” premise Much of the received wisdom on Hobbes takes this strong premise about death to be at the center of his philosophical project, though this has increasingly become a matter of debate. There is a lot of textual support to understanding Hobbes in this way. He repeatedly characterizes death as the greatest of all evils and claims that man fears death, especially painful death, above all else. At one point he even says that man avoids death with the necessity that a stone falls downward.55 De Cive, 2.18. There are at least two ways of construing this impossibility. It could mean that no matter how hard one tries, one cannot choose the greater evil, or it could be understood as pointing to a principle of rationality that dictates choosing the lesser evil over the greater one. 55 De Cive, 1.7; see also Elements of Law, I.14.6. Of course, Hobbes is not saying that people always in fact act to secure their own lives. He was well aware of people who committed suicide and 53

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Many have taken Hobbes at his word, interpreting him to be unequivocally committed to the view that bodily death is the ultimate evil, necessarily feared and avoided by all mankind (at least insofar as their minds are not diseased). For example, J. W. N. Watkins says that Hobbes “regarded aversion to violent death as men’s overriding passion.” Similarly, according to Mark Murphy, Hobbes subscribed to the view that “for every human agent, any state of affairs that includes that agent’s remaining alive is preferable to any state of affairs that includes that agent’s not remaining alive.”56 Although it is easy to read Hobbes in this way, there are compelling reasons to reject this type of interpretation. First, it is implausible as a claim about human nature, and second, a close look at the text reveals that it is unlikely that Hobbes wanted or needed to espouse it. The principle of charity urges us to hesitate before accepting an interpretation of Hobbes that credits him with the view that death is always the worst evil. After all, this view seems untrue. Indeed, some attribute this view to him only to turn around and disparage him for it. Jean Hampton calls his views on death “the most crude and overly simplistic aspect of Hobbesian psychology.” Gregory Kavka takes himself to show that, contrary to what Hobbes says, choosing death is not always choosing the greater evil.57 For example, if the sovereign gave a person a choice between her life and the life of her child, she could plausibly see her own death as the lesser evil. Even if she thought she had a chance to escape, she still might prefer to die rather than see her child killed. The force of the example is this: if it is psychologically possible to choose – without total irrationality – not to resist threats to one’s life, then both the conceptual and the psychological arguments for the retention of the right of self-defense fall apart. Note that the unconditional claim about the badness of death is indeed necessary in order to establish the unconditional prohibition on ever giving those who put their lives in grave danger to gain glory or for other trivial, unworthy reasons (e.g., A Dialogue Between a Philosopher and a Student of the Common Law, 116). But often he suggests that such people are irrational or insane. More specifically, he describes them as having diseased minds, or as confusing their apparent goods with real goods. So the claim Hobbes appears to be making, more accurately, is that death is always feared and avoided above all else for normal people. 56 J. W. N. Watkins, Hobbes’s System of Ideas: A Study of the Political Significance of Philosophical Theories (London:  Hutchinson, 1973), 93; and Mark Murphy, “Hobbes on the Evil of Death,” Archiv für Geschichte der Philosophie 82, no. 1 (2000), 36–61. The claim is echoed in many of the canonical commentaries on Hobbes; for example, see Leo Strauss, The Political Philosophy of Thomas Hobbes: Its Basis and its Genesis, trans. Elsa Sinclair (University of Chicago Press, 1963), 121; and David Gauthier, The Logic of Leviathan: The Moral and Political Philosophy of Thomas Hobbes (Oxford University Press, 1969), 7. 57 Hampton, Hobbes and the Social Contract Tradition, 15; Kavka, Hobbesian Moral and Political Theory, 80–81.

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up one’s right of self-defense. It is clear that the conceptual and psychological impossibility arguments rely on the categorical claim about death. If death was not the worst evil, then (1) there could be some conceivable benefit in agreeing to submit to it (contra the conceptual impossibility argument), and (2) it would not be the case that choosing death was always choosing the greater evil (contra the psychological impossibility argument). Either way, it would be possible to renounce one’s right of self-defense and so undertake an obligation not to resist attacks on one’s life. Thus, it seems that without the absolute claim about the evilness of death, people would not have a problem transferring the right of self-defense in the social contract or any contract at all. If this were the case, Hobbesian subjects would be like Socrates – bound to aid in (or at least refrain from resisting) the infliction of a death sentence and other such harms. Waldron, another proponent of the “death as the worst evil” interpretation, notices that the arguments for the right of self-defense fail on precisely this point, stating, “the Hobbesian account of self-defense is hostage to the peculiarities of his psychology. So long as people care ultimately about nothing other than their own preservation, the argument goes through. But if they care about other things, the argument collapses.”58 Waldron’s observation is crucial; it illustrates how completely the argument of the standard interpretation depends on this very strong claim about death. As I will show, Hobbes does not need this strong assumption about death in order to establish the right of self-defense; however, it is necessary to briefly survey some of the textual evidence that casts doubt on this oft-held view that Hobbes believed death to be the worst possible evil. The following represent some important junctures at which Hobbes himself seems to dispute this claim. There are a number of passages which suggest that Hobbes did not mean for the fear of death to be taken in such an absolute way. These are places where he implies that humans, or at least some humans, are able to overcome the fear of death without irrationality or a diseased mind. First, he recognizes that people might rationally prefer death to life if their lives are sufficiently painful.59 Second, in a striking passage in De Cive, he acknowledges that “there are commands that I would rather be killed than perform.” He gives an example in which a son is ordered on pain of death to kill his own father, saying the son “may prefer to die rather than live in infamy and loathing.”   Waldron, “Self-Defense: Agent-Neutral and Agent-Relative Accounts,” 721. De Homine, 11.6.

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Hobbes insists that even though disobedience condemns him to death, the son would be “right to refuse” to obey such a command, because obedience “offend[s] the law of nature” and is “contrary to the requirements of right reason.”60 I do not see any way to square this passage with the traditional view of Hobbes; indeed, this passage seems to demonstrate conclusively that Hobbes did not think death is always the worst evil. Third, courage, “the contempt of wounds and fear of death, when they oppose a man in the way to his end,” is defined in terms of overcoming one’s fear of death.61 Moreover, the Hobbesian political system relies on people who possess courage. For instance, it needs a force of police and soldiers to keep internal peace and protect the commonwealth from external threats, and such people must be willing to risk their lives. The collective weight of these three considerations lends credence to the claim that Hobbes could not have really believed that it was psychologically impossible for people to accept death. Indeed, S. A. Lloyd, the most prominent critic of the “death as the worst evil” interpretation, argues convincingly that Hobbes understood people to have many “transcendent interests” which move them to override their fear of death.62 Upon close examination, even the passages that seem to provide the most support for the “death as the worst evil” reading are open to interpretation. In the following passage, Hobbes gives the argument for the right of nature. Let us consider it in detail: [In the state of nature] Amid so many dangers therefore from men’s natural cupidity, that threaten every man every day, we cannot be blamed for looking out for ourselves; we cannot will to do otherwise. For each man is drawn to desire that which is Good for him and to Avoid what is bad for him, and most of all the greatest of natural evils, which is death; this happens by a real necessity of nature as powerful as that by which a stone falls downward. It is not therefore absurd, nor reprehensible, nor contrary to right reason, if one makes every effort to defend his body and limbs from death and to preserve them. And what is not contrary to right reason, all agree is done justly and of Right. For precisely what is meant by the term Right is the liberty each man has of using his natural faculties in accordance with right reason. Therefore the first foundation of natural Right is that each man protect his life and limbs as much as he can.63 De Cive, 6.13. 61 Elements of Law, I.9.4. S. A. Lloyd, Ideals as Interests in Hobbes’s Leviathan: The Power of Mind over Matter (Cambridge University Press, 1992), 250–254. A number of others have also made the argument that Hobbes should not be interpreted as endorsing a view of human psychology in which death is always the greatest evil; e.g., Bernard Gert, “Hobbes’s Psychology” in The Cambridge Companion to Hobbes, ed. Tom Sorell (Cambridge University Press, 1996), 163. 63 De Cive, 1.7. 60 62

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First, what is Hobbes saying about human psychology? His descriptive claim appears to be that it is a natural fact that humans seek to preserve their lives and avoid death. It also seems to follow from this that Hobbes’s claim about the evilness of death must be absolute and universal. But on closer look, what Hobbes is saying is not at all clear. Grant that it is the “necessity of nature,” a force as constant and inevitable as gravity acting upon us, which makes people avoid death. It is possible to agree that death is the greatest natural evil without taking it to mean that it is the greatest evil of all. Even if death is the greatest of natural evils, there could still be an even greater social evil. In fact, certain kinds of social stigma seem to play this role in Hobbes’s theory. The creation of civil society brings into existence distinctive new goods; it follows that it might also make possible new and greater evils. Moreover, there could be a combination of evils that outweighs the evil of death.64 In my view, we should interpret Hobbes as saying that there is a very strong natural tendency to avoid death and preserve one’s life. A tendency is a potential that is always present, but its realization can be interfered with by various factors. For example, a stone tends to fall downwards under the influence of gravity, but its fall can be interfered with by a table or other object. Sugar tends to dissolve in water, but will fail to do so under certain circumstances, such as when the water is too cold or already saturated. But the tendency to dissolve in water is always present in the sugar, even if it is not being realized. Similarly, our tendency to avoid death is omnipresent and always acting on us, but it can be overridden in certain exceptional circumstances. Second, how does Hobbes argue for the right of nature, and what role does death play in this argument? On the “death as the worst evil” reading, Hobbes’s argument seems to be as follows. If “ought implies can,” then by modus tollens, “cannot” implies “is not obligated to.” It follows that, if people literally cannot refrain from preserving themselves, then when they do so, they have not violated any “ought” command.65 If one cannot help but to avoid death, then avoiding death can never be “against right.” Normative principles are limited by facts about human nature. But there is an alternative reading. I suggest that Hobbes’s argument for the right of nature be taken not as a claim about what follows from Kavka, Hobbesian Moral and Political Theory, 81. This point could be put another way: If it is necessary for the existence of an obligation that its fulfillment is possible, then “X is obliged to Φ” implies “X is able to Φ”; and by modus tollens, “X is not able to Φ” implies “X is not obligated to Φ.”

64 65

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the mandates of human psychology, but rather as a claim about reasonability. On this reading, Hobbes’s key claim is that it is never unreasonable to act to save your life; “it is not contrary to right reason … if one makes every effort to defend his body and limbs from death and to preserve them.” He does equate death avoidance with the natural necessity of gravity, but he does not need that strong a claim. Even if people can refrain from avoiding death and even do so on rare occasions, it could still be unreasonable to expect them to, or to hold them accountable for not doing so. Hobbes observes, quite uncontroversially, that there is a very strong natural human tendency to avoid death; elsewhere he acknowledges that man comes equipped with a fight or flight mechanism.66 But, as noted, Hobbes recognizes that this tendency is not absolute, and can, under certain conditions, be overcome. Thus, the argument for the right of nature, as I understand it, does not rely on the premise that there is an irresistible natural impulse to avoid death in a compulsive way that can never be overcome. Rather, the key premise is that it is unreasonable to expect people to overcome such a powerful human urge. Hobbes’s argument can be put as follows. (1) Man has a very strong impulse to preserve himself. (2) If man has a very strong natural impulse to do X (preserve himself), then it is not unreasonable for him to do X. And (3), if it is not unreasonable for man to do X, then when he does X, he does it justly and with right (“and what is not contrary to right reason, all agree is done justly and of Right”). At bottom, the form of the argument is thus: very strong natural impulse to X → not unreasonable to do X → doing X is done with right. Given the ambiguities and tensions in the text, it is useful to proceed by asking:  what kinds of assumptions about human psychology does Hobbes need in order to establish the key components of his theory? If he needs the premise that death is the worst evil in order to make his overall argument, then that would be good reason to attribute it to him. But he can establish at least one essential part of his philosophy  – the right of nature  – without it. In sum, the claim that death is the worst possible evil is not only implausible in its own right, it is doubtful that Hobbes believed or needed it to be true. However, as we will see, there are other grounds for constructing an argument for the Hobbesian right of self-defense that do not depend on this overly strong claim about the disvalue of death. Undermining the categorical claim about death is sufficient to undermine Hobbes’s self-defense arguments (at least as they are 66

  De Cive, 2.18.

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understood by the standard interpretation), but there is a further, equally compelling reason to reject the standard interpretation. The soldier contract The second objection to the standard interpretation is that its conclusion (namely, that there is no possible valid covenant in which the right of self-defense can be transferred) seems open to various counterexamples. For example, Claire Finkelstein imagines the following situation. You threaten to kill me right now unless I promise to relinquish my right of self-defense on all future occasions. Obviously, I would benefit from making this agreement, even if the benefit is only more time alive. Finkelstein thereby concludes that it is “surely false … that it cannot be to a person’s benefit to transfer away the right to self-defense.”67 Consider another scenario. Suppose you hold my daughter hostage but are willing to trade her life for mine. You say, “Let me kill you and I will release your daughter.” Arguably, I can make this covenant. The object of the covenant is a good to myself (saving the life of my daughter), and surely in that situation it would be psychologically possible for me to stand there and accept your blows. Notice that this example is supposed to demonstrate the possibility of seeing my own death as the lesser of two evils. But it seems that on the Hobbesian principles just discussed, such a covenant is impossible. If we want to recognize the possibility of this kind of covenant – and I agree with Finkelstein that we do – then we must also recognize the inadequacy of the standard interpretation of Hobbes’s arguments for the inalienability of the right of self-defense. Many fail to acknowledge, however, that Hobbes does recognize the validity of contracts in which the right of self-defense is alienated, namely the contract made by a soldier to fight in an army. In Chapter 21 of Leviathan he makes the following two claims: (1) If an ordinary citizen is ordered to fight in battle, he can desert without injustice. (2) If a person enlists in the army (by volunteering or accepting money), he is then obligated to stay and fight until given leave by his captain.68 Finkelstein, “A Puzzle about Hobbes’s Right of Self-Defense,” 338. These claims are drawn out in the text as follows: “Upon this ground a man that is commanded as a soldier to fight against the enemy, though his sovereign have right enough to punish his refusal with death, may nevertheless in many cases refuse without injustice, as when he substituteth a sufficient soldier in his place; for in this case he deserteth not the service of the commonwealth. And there is allowance to be made for such natural timorousness, not only to women (of whom no such dangerous duty is expected), but also to men of feminine courage. When armies

67 68

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39

Consider the implications. If an enlisted soldier – as opposed to a drafted citizen – fears for his life on the battlefield, he is obligated to stay and fight. Ordinary subjects, however, do not have this obligation; so when they flee the battlefield, they do no wrong. Hobbes makes it clear that in becoming soldiers, people create new obligations for themselves. Deborah Baumgold calls this the “soldier contract,” and points out that what makes this an alienation of the right of self-defense is Hobbes’s stipulation that soldiers give up their right to flee mortal danger.69 The soldier obligates himself to stay and fight, even when he sees that doing so will invariably lead to his own death. This must mean that the soldier does not have the right to do whatever he judges necessary to preserve himself. Hobbes, therefore, is not only capable of recognizing the validity of a covenant in which the right of self-defense is renounced; he does so with the soldier contract. Of course, the soldier retains the right to defend himself from enemy soldiers that are trying to kill him. It is not as though the soldier is obligated to submit willingly to his own death by, say, not resisting enemy attacks. However, the soldier contract must still be understood to involve the alienation of the soldier’s right of self-defense. For example, there is a military tactic known as “standing in the breach.” If the walls of a city were breached, commanders would order their soldiers to stand in the hole in the wall in order to try to ward off the besieging army. In many cases this order entailed certain death. On Hobbes’s account, an enlisted soldier would be obligated to follow an order to stand in the breach, even if he believed that he would most certainly die if he did so. This suggests that the soldier must be understood to have given up his right of self-­defense, because he is not at liberty to disobey a command that will surely lead to his death. Recall that the right of self-defense, properly understood, is the right to save one’s own life, meaning the right to do what one judges necessary in order to stay alive. It is clear, then, that the soldier does not have this right. The case of the soldier contract will be examined in greater detail in the next chapter. Two reasons to revisit Hobbes’s argument for the inalienability of the right of self-defense have been offered. First, Hobbes is not, and does not need to be, committed to the premise that death is always the worst fight, there is, on one side or both, a running away; yet when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonorably. For the same reason, to avoid battle is not injustice, but cowardice. But he that enrolleth himself a soldier, or taketh imprest money, taketh away the excuse of a timorous nature, and is obliged, not only to go to the battle, but also not to run away from it without his captain’s leave” (Leviathan, 21.16). 69 Deborah Baumgold, “Subjects and Soldiers:  Hobbes on Military Service,” History of Political Thought 4, no. 1 (1983), 43–64.

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evil. Second, the conceptual and psychological impossibility arguments are too strong and, if taken at face value, generate inconsistencies in Hobbes’s account. These arguments purport to rule out the possibility of any valid covenant to renounce the right of self-defense, but as I have shown, Hobbes does recognize the validity of at least one such covenant, the soldier contract. The result of these lines of reasoning is the same: we need to look for other resources in order to ground the Hobbesian right of self-defense. An alternative interpretation of Hobbes’s argument for the inalienability of the right of self-defense Having developed this line of argument, I now turn to offer an alternative interpretation of the Hobbesian right of self-defense. If a distinction is made between the social contract and other contracts, it is possible to construct a Hobbesian argument that the right of self-defense is inalienable in the social contract while acknowledging that it may be given up in other contracts. Ultimately, Hobbes’s position on self-defense is most comprehensible and most convincing when his claims about the inalienability of the right of self-defense are indexed to the social contract. My analysis picks up on three neglected themes in the Hobbesian account of covenants. I call these the “reasonable expectations principle,” the “fidelity principle,” and the “necessity principle.” In brief, the reasonable expectations principle requires that the parties to a valid covenant are able to reasonably expect each other to perform. The fidelity principle prohibits rights from being transferred in a covenant if those rights contradict the purpose of the covenant. The necessity principle limits the rights transferred in a covenant to those rights the transfer of which is necessary for the covenant to fulfill its purpose. These principles are explicit to varying degrees in his account, and I show how Hobbes appeals to and uses them in his justification for the inalienability of the right of self-defense. Taken together, these three principles provide the grounds for a revised picture of the Hobbesian right of self-defense. My strategy is to show that once one understands what Hobbes thinks is necessary for a covenant to be valid, then the reason he thinks that the right of self-defense cannot be transferred in the social contract will become evident. The reasonable expectations principle The reasonable expectations principle: a covenant is valid only if each party can reasonably expect every other party to perform their part of the covenant.

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Hobbes does not use the term “reasonable expectations”; rather, he speaks in terms of “trust.” According to Hobbes, “trust is the only bond of agreements.” That is, if the parties to an agreement cannot trust each other to fulfill it, they literally cannot make a binding agreement. Hobbes describes distrust as “fear of not performance,” but it is not simply fear that the other party will not perform; rather, it is a particular kind of fear – a “ just cause for fear” or a “reasonable suspicion.”70 Trust, then, is the absence of a just or reasonable fear of nonperformance; that is, it is the presence of a reasonable expectation.71 The reasonable expectations principle is a general principle of covenants on Hobbes’s account, and he uses it towards a number of ends. Most importantly, he invokes it to explain why covenants are invalid in the state of nature but valid in civil society. His general argument is that, In the state of nature agreements made by contract of mutual trust (by which both parties trust the other and neither makes any performance immediately) are invalid if a just cause for fear arises on either side. For most men are of evil character, bent on securing their own interest by fair means or foul; and so the man who performs his part first is laying himself open to the greed of the other party to the contract. For it is not reasonable for anyone to make performance first if it is not likely that the other will perform his part later … But in the civil state where there is someone to coerce both parties, whichever party is called upon to perform first should do so; since the reason why he was afraid that the other party might not perform no longer exists, as the other can be compelled.72

The Hobbesian state of nature is the paradigmatic example of conditions of distrust. Without a mechanism for the enforcement of covenants, there is no assurance that people will perform. In fact, as Hobbes makes clear in the passage above, it is unreasonable for a person to perform her part first just as it is unreasonable for the other party to expect her to do so. Thus, in the state of nature, there can be only “mere promises,” not De Cive, 2.11; Leviathan, 15.3, 14.27, 14.18 (emphasis added); De Cive, 2.10. He thus describes conditions of trust as the lack of a “reason [to be] … afraid the other party might not perform” (De Cive, 2.10). 72 De Cive, 2.11. In Leviathan he makes a similar argument: “If a covenant be made wherein neither of the parties perform presently, but trust one another, in the condition of mere nature (which is a condition of war of every man against every man) upon any reasonable suspicion it is void; but if there be a common power set over them both, with right and force sufficient to compel performance, it is not void. For he that performeth first has no assurance the other will perform after, because the bonds of words are too weak to bridle men’s ambition, avarice, anger, and other passions, without the fear of some coercive power; which in the condition of mere nature, where all men are equal and judges of the justness of their own fears, cannot possibly be supposed. And therefore, he which performeth first does but betray himself to his enemy, contrary to the right (he can never abandon) of defending his life and means of living” (Leviathan, 14.18). 70 71

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genuinely binding covenants. As Hobbes puts it “promises mutual where there is no security of performance on either side (as when there is no civil power erected over the parties promising) … are no covenants.”73 There can be promissory words spoken in the state of nature, but they are only words and do not constitute a genuine transfer of right. As a result, ­injustice – defined as the breaking of a valid covenant – does not exist in the state of nature. To use a Hume-inspired example, suppose Alice and Charlie attempt to make a covenant of mutual cooperation in the state of nature. Alice grows more apples than she needs, and Charlie grows more corn than he needs. Alice agrees to give Charlie half of her apples tomorrow, if Charlie gives Alice half his corn next week. But can Alice and Charlie make a binding covenant to exchange their excess food? For Hobbes, this depends on the following question: can Alice reasonably expect that if she gives Charlie the apples, Charlie will repay the favor next week with his corn? Hobbes says no. By his account, it would be irrational for Alice to perform her part of the covenant, because she knows that it would be in Charlie’s best interest to renege next week. And since Charlie’s obligation depends on Alice’s reasonable expectation that Charlie will perform, Alice and Charlie literally cannot make this covenant. They can say the words, but they cannot thereby impose obligations on themselves. To use a (perhaps) more Hobbesian example, suppose Alice and Charlie want to institute a truce between them such that each agrees to destroy his or her cache of weapons. Just as Alice and Charlie are not able to undertake an obligation to exchange crops, they will not be able to obligate themselves to destroy their weapons, especially given the higher stakes in the latter case. Hobbes says that to act first is irrational. Alice cannot reasonably expect Charlie to destroy his weapons if she destroys hers. Indeed, for her to do so would be to “betray [herself] to the enemy.”74 Charlie knows this and so cannot expect her to perform first. The opacity of private judgment in the state of nature exacerbates this problem. Even if Alice actually did intend to perform first and would have done so, Charlie cannot reasonably expect her to act that way, and so they cannot make a genuine covenant. Notice that both of these putative covenants fulfill the two conditions stipulated by the conceptual and psychological impossibility arguments: there is some good to each party, and it is psychologically possible for the parties to perform. But, according to Hobbes, fulfillment of those 73

Leviathan, 15.5.

Leviathan, 14.18.

74

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conditions is not sufficient to make the covenants valid. Each party must also be able to reasonably expect that the other will fulfill his or her part of the bargain. But because each knows it would be irrational for the other to do so, neither can form the requisite beliefs or expectations. Hobbes does recognize that on rare occasions, a covenant can be valid in the state of nature. Suppose Alice actually performs her part of the covenant and gives Charlie half of her apples. Hobbes is clear that Alice would be irrational to do so. However, if Alice does in fact perform first, then, according to Hobbes, Charlie is genuinely obligated to perform his part of the covenant and turn over half of his corn to Alice at the allotted time. Such covenants will be uncommon in the state of nature because they depend on one of the parties to the covenant acting contrary to the demands of rational self-interest. According to Hobbes, the “validity of covenants begins not but with the constitution of a civil power sufficient to compel men to keep them.”75 In the commonwealth, the existence of an enforcement agency gives people sufficient assurance that others will comply, because they will be punished if they do not. To be more precise, the parties to a covenant can reasonably expect each other to perform, because they are both subject to sufficiently compelling sanctions if they go back on their word. In civil society, Alice and Charlie can expect each other to keep their respective parts of the bargain, and so their contract to exchange apples for corn is valid (presumably an additional covenant to refrain from attacking each other would be unnecessary in civil society). Alice, the first performer, is obligated to perform, and so hand over her apples to Charlie. Note that there is one important exception to Hobbes’s general rule. If reasons for one party to doubt that the other will perform arise after a valid covenant is made, the covenant becomes void. Hobbes says, “The cause of fear which maketh such a covenant invalid must be always something arising after the covenant is made (as some new fact or other sign of the will not to perform), else it cannot make the covenant void.”76 Suppose Sue and Mary make an agreement that Mary will pay Sue an advance of $500 to sing at Mary’s upcoming birthday party. If Mary discovers that Sue is coming down with laryngitis, Mary is no longer bound to give Sue the money. Their covenant was valid when they made it because each party’s expectations of fulfillment were reasonable, but it was invalidated when new information arose. Hobbes is very clear that reasonable suspicion of others’ reneging that arises after the initial agreement invalidates Leviathan, 15.3.

75

Leviathan, 14.20.

76

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the contract. That is, Hobbes makes “trust” a condition of the continued validity of the agreement. Hobbes is most concerned to make the point that the fear of nonperformance must arise after the valid covenant is made. Indeed, fear arising after the covenant is made is the only condition that voids a valid covenant; “for that which could not hinder a man from promising, ought not to be admitted as a hindrance of performing.”77 Perhaps this explains the reasoning behind Hobbes’s insistence that the right of self-defense is nontransferable in the social contract. Rather than allowing for such a transfer and providing an account of how the right is resumed or providing a justification for breaking some valid covenant to renounce all of one’s rights, he simply rejects the possibility of such a transfer. Conceiving of the right of self-defense as inalienable allows him to maintain his general commitment to the validity of covenants in civil society and the necessity of keeping them. There is an interesting and complicated psychological story underlying Hobbes’s account of the validity and invalidity of covenants. Recall some of the specific definitions of Hobbes’s technical terms. “Transferring” a right is giving up a right in such a way that someone in particular benefits, a contract is a “mutual transferring of right,” and a “covenant” is a contract in which one or more of the parties performs at a future time. As Hobbes construes it, transferring a right is a surprisingly complex process that comes with its own series of pitfalls. It is a fundamentally mutual endeavor requiring something from each party to the agreement. Hobbes is especially interested in unsuccessful transfers, those cases in which a person tries to transfer a right but fails; for example, the promissory words are given, but no obligation is incurred. He explains that “[t]he transfer of a right requires the will of the recipient as well as of the transferor. If either is missing, the right does not pass. For if I have attempted to give something of mine to someone who refuses to take it, I have by that move not renounced my right.”78 Just as I cannot succeed in giving you a birthday present if you refuse to accept it, a person cannot transfer one of her rights without some kind of cooperation from the person to whom the right is transferred. Hobbes’s explanation of the practice of covenanting begins with the statement that words alone are insufficient to transfer a right; a “declaration of the will” is required. But the transferor can declare her will as clearly and forcefully as possible without thereby transferring the right; the recipient must also have “understood the words of the other party (the trusted party) as expressing the intention to perform at a specified Ibid., also see De Cive, 2.11.

77

78

De Cive, 2.5.

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time.”79 To be precise, the recipient must form the belief that the transferor has a certain intention, namely, to perform her part when the time comes. The transferor can make the sincerest declaration of will possible, but if the recipient does not form the appropriate beliefs about the transferor’s intentions, the transferor cannot succeed in transferring her right. Lastly, the transferor needs to know that the recipient has understood and accepted the transfer of right, because “no one can make an agreement with someone who gives no sign of acceptance.” The right is only successfully transferred when each party has done her part. Hobbes, thus, makes reciprocity a necessary condition for valid covenants; “without mutual acceptation, there is no covenant.”80 This reading explains Hobbes’s remarks about various types of covenants. For example, it makes sense that he insists that no one can covenant to do the impossible – one can never understand another as forming the intention to do something it is not possible to do. At the heart of Hobbes’s analysis of failed covenants is the idea of intelligibility. A covenant is not valid unless it is intelligible, and it is not intelligible unless the recipient can understand the transferor as having the intention to perform. It is plausible that “to make covenants with brute beasts is impossible because, not understanding our speech, they understand not, nor accept of, any translation of right, nor can translate any right to another; and without mutual acceptation, there is no covenant.” Similarly, “to make a covenant with God is impossible,” because without special revelation “we know not whether our covenants be accepted or not.”81 This psychological story underwrites Hobbes’s views on trust and covenants. When one trusts on Hobbes’s account, one reasonably expects performance; that is, one can form the belief that the other intends to perform. Distrust invalidates a covenant, because the parties do not accept each other’s declaration of will (or intention to perform). In the state of nature, such accepting of intention will be rare because the first performer will not be able to form the belief that the second performer has the relevant intention to perform, and the second performer knows this and so on. The exception of first-performer covenants in the state of nature is the exception that proves the rule – Hobbes says that performance is the surest sign of intention to perform. Now, consider the parties to the social contract. The social contract is a contract of each with all. The parties have to draw on their general Leviathan, 14.14; De Cive, 2.7, 2.10. Leviathan, 14.21–24.

79 81

De Cive, 2.12; Leviathan, 14.22 (emphasis added).

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knowledge of human nature. Is it reasonable for them to expect one another to fulfill a contract not to resist threats on their lives? Hobbes is very clear that they can say the words, “We renounce our right to self-defense,” but the question is: do these words bind? Can the parties thereby succeed in obligating themselves? The social contractors know that humans have a powerful natural impulse to avoid death, even if at times they can succeed in overcoming it. But they know that such moments tend to be rare, and that people, in general, cannot be relied upon to stand firm in the face of certain death. Furthermore, everyone knows this about human nature and so cannot reasonably expect others or even themselves to do otherwise. Hobbes argues this is precisely why condemned men are led to their death in chains – even if they had made an agreement not to resist, one would not trust them to actually abide by it.82 Therefore, it is impossible for each party to the social contract to be able to form an expectation of each of the other parties that they will be able to abide by an obligation not to resist death. It follows that although they may speak the words, “I agree with each of you to give up my right of self-defense,” they cannot succeed in thereby obligating themselves. On my reading, then, Hobbes only establishes that the right of self-defense cannot be given up in the social contract. Luckily, that is essentially what Hobbes wants and needs to establish. Hobbes’s original formulation (i.e., Leviathan, 14.8 and 14.28) makes it sound as though it were literally impossible, within the confines of right reason, to see death as anything other than the greatest evil. But, as has been argued, this is an overstatement. While it might, strictly speaking, be rational in particular extreme cases for someone willingly to accept death, people cannot, in general (and perhaps in these cases) be depended upon to do so. The mere possibility of seeing death as the lesser evil does not give the contracting parties sufficient reason to trust others in the way the social contract demands – the population as a whole, consistently. We can never reasonably count on others, who might be strangers, to choose the lesser evil of death even when they acknowledge it as such. However, while we cannot agree to obey if the sovereign commands us to commit “For there is in every man a kind of supreme stage of fearfulness, by which he sees the harm threatening him as the worst possible, and by natural necessity does his best to avoid it; and is understood not to be able to do otherwise. When one has reached this level of fear, he must be expected to look out for himself either by flight or by fighting … [A] person bound by an agreement is normally trusted to perform (for trust is the only bond of agreements), but when people are being led out to punishment (whether capital or not), they are held in chains or escorted by guards; that is the clearest indication that they are not sufficiently obligated by an agreement not to resist” (De Cive, 2.18).

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suicide, we can agree to obey his laws concerning property, religion, education, and so on. In fact, it is precisely the punishment power of the state that ensures that we are for the most part able to count on other people to obey these laws. This alternative interpretation of Hobbes’s argument for the right of self-defense is preferable because it establishes the requisite conclusion, while also respecting the idea behind the psychological impossibility argument. But it does so in a way that does not require it to be absolute, and so it is not vulnerable to counterexamples. Those cases show that it is possible for death to be the rational choice, on rare occasions. This mere possibility is enough to defeat the traditional psychological impossibility reading. However, the argument for the inalienability of the right of self-defense just constructed rests on the claim that general psychological knowledge of human nature alone cannot establish sufficient reason to trust people to fulfill this kind of contract. To put it another way, the right of self-defense cannot be transferred in the social contract, because the conditions of the reasonable expectations principle cannot be met. In order to capture the important details of Hobbes’s account, two additional principles must be discussed:  the fidelity principle and the necessity principle. As I will show, each of these principles is an integral part of Hobbes’s explanation for why subjects possess an inalienable right of self-defense. The fidelity principle The fidelity principle: the transfer of a right has to be faithful to the purpose of the covenant; that is, one cannot transfer a right when the transfer contradicts (or undermines) the purpose for which that right is transferred. While Hobbes never explicitly articulates the fidelity principle in general terms, it is implicit in his very first mention of the right of self-defense in Leviathan: the motive and end for which this renouncing and transferring of right is introduced, is nothing else but the security of a man’s person, in his life … and therefore if a man by words or other signs seem to despoil himself of the end for which those signs were intended, he is not to be understood as if he meant it, or that it was his will, but that he was ignorant of how such words and actions were to be interpreted.83

Hobbes’s point seems to be that a person cannot incur an obligation to do X under covenant C, if avoiding X is the reason that person undertook 83

  Leviathan, 14.8.

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covenant C in the first place. According to Hobbes, people enter into the social contract for one reason and one reason only: “the foresight of their own preservation, and of a more contented life thereby.”84 Since the fundamental purpose of the social contract is the preservation of life, a covenant within it not to do what one can to preserve one’s life is void. Hobbes makes clear use here of the underlying psychological story just described. If a person attempts to enter into a covenant that violates the fidelity principle, the signs cannot be deemed a sincere and legitimate declaration of will. The covenant is unintelligible, and this holds even if from the perspective of the transferor, the transfer is entirely sincere. So, if a social contractor professes to renounce his right of self-defense, “he is not to be understood as if he meant it.” Consider, in contrast, the covenant in which a mother agrees to give up her own life for that of her daughter. In that covenant, the purpose is not the saving of her life; it is the saving of her daughter’s life. This covenant can generate an obligation for her to give up her life, because her sacrifice is not contrary to the purpose of that specific covenant. Moreover, the fidelity principle and the reasonable expectations principle are connected. We might ask: what can be reasonably expected of people given the purpose of the covenants they are making? Given that the point of the social contract is the preservation of life, the social contractors cannot be reasonably expected to give up the right to defend themselves against deadly attacks. Hobbes thinks that it is unreasonable to expect people not to try to save their own lives; this is the underlying thought behind his argument for the right of nature discussed above. Notice that the argument from the fidelity principle does not rely on any dubious premise about death always being the worst evil, and it leaves room for the kinds of private contracts alienating the right of self-defense that Hobbes needs: the purpose of the soldier contract, presumably, is not the preservation of the soldier’s life. If this is correct, then the reasonable expectations principle has a dual meaning. First, there is an epistemic or predictive sense of the idea of reasonable expectations:  one person can reasonably expect another to perform some action if the former predicts that the latter will perform. A reasonable expectation, in this sense, is connected with the likelihood or probability that the thing expected will come to pass. Second, there is a 84

Leviathan, 17.1. There are further questions about how to understand Hobbes’s reference to “a more contented life.” It is clear that Hobbes thinks that the purpose of the commonwealth is not simply to ensure the physical survival of its subjects, but it is not at all clear what more is required. I briefly take up this issue in the next chapter.

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normative sense of the term; it is what we invoke when we say that it would be unreasonable to expect something of someone, where “unreasonable” means something like “unfair” or “unjustified.” A can reasonably expect B to perform an action (meaning A predicts that B is likely will do it), even though it is unreasonable of A to expect it (meaning that it is unfair). Both of these senses of reasonable expectation are at play in Hobbes’s argument that the social contractors cannot reasonably expect each other to abide by a contract to not resist the sovereign’s attacks on their lives. They cannot predict that each other will do so, and, given the purpose of the social contract, it would be also unfair to expect it. This ambiguity does not constitute a problem for Hobbes, because his argument works on either sense of the term; indeed, it importantly trades on this dual meaning. Moreover, it is possible to reasonably expect the soldier to risk or even sacrifice his life in both senses – we can predict that he will (the overwhelming majority of soldiers do), and it is not unfair to rely on him to do so (the soldier knew what he was getting into when he signed up: risking death comes with the territory of military service). While, as the textual evidence shows, Hobbes clearly endorses what I am calling the fidelity principle, it does not play a significant role in his general account of covenants. It seems only to appear in connection with the question of whether or not a particular right is alienated in the social contract. However, the larger idea that covenants need to be intelligible in order to be valid plays a central role. The necessity principle The necessity principle: one only transfers those rights that are necessary to achieve the purpose of the covenant. Hobbes has a third reason to claim that the right of self-defense is retained in the commonwealth. Not only is it impossible to include this right among the rights transferred in the social contract, for the reasons given above, it is also unnecessary to include it. Hobbes’s position is that people only transfer those rights that are essential for the existence of the absolutely powerful Hobbesian sovereign. Thus, in The Elements of Law, Hobbes says, “Nor doth the law of nature command any divesting of other rights, than those only which cannot be retained without the loss of peace.”85 In Leviathan, he describes the second law of nature as, “that law of nature by which we are obliged to transfer to another such rights as, being retained, hinder the peace of mankind.” Both statements 85

  Elements of Law, I.17.2 (emphasis added).

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presuppose that there are some rights which can be and presumably are retained. In describing the tenth law of nature (against arrogance), Hobbes suggests a criterion for determining what those rights are: “at the entrance into conditions of peace, no man require to reserve to himself any right which he is not content should be reserved to every one of the rest.”86 The principle seems to be that a right can only be retained in the social contract if it can be retained by everyone without loss of peace. It would be arrogant, on Hobbes’s account, to insist that you retain a right that is impossible for everyone to retain. For Hobbes, the only rights that can be retained are those that can be retained universally. This will be referred to as the “universality requirement.” Hobbes goes on to list the various rights that meet this requirement: As it is necessary, for all men that seek peace, to lay down certain rights of nature (that is to say, not to have liberty to do all they list), so is it necessary, for man’s life, to retain some (as, right to govern their own bodies, [right to] enjoy air, water, motion, ways to go from place to place, and all things else without which a man cannot live, or not live well).87

The paradigmatic right that can be retained “without the loss of peace” is the right of self-defense. Hobbes makes this point elsewhere by saying, Nor need the commonwealth itself require of anyone, as a condition of punishment, an agreement not to resist … Hence, if I am told to kill myself, I have no obligation to do so. So if I refuse, the right of government is not frustrated, since others may be found who will not refuse to carry out the order [for me to die].88

Since a subject’s death is easily secured by others, it is not necessary for that subject to be obligated to obey a command to commit suicide. The Hobbesian right of self-defense is merely a permission right; it does not impose any obligations on others to respect the right. The sovereign is just as powerful and has just as much ability to do the things for which he was instituted, without his subjects incurring this obligation.89 Indeed, whether they bind themselves in this way or not is irrelevant to the power and authority of the sovereign. The retention of the right of self-defense means only that if a subject disobeys the command to commit suicide, it is done without injustice. The sovereign is still able to kill the subject and is justified in doing so. Leviathan, 15.1, 15.22. 87 Leviathan, 15.22. De Cive, 2.18, 6.13. 89 S. A. Lloyd makes a similar point, saying:  “the stability of the mighty commonwealth which has the power to punish us without our cooperation, does not depend on our willingness to refrain from attempting to defend ourselves” (S. A. Lloyd, “Hobbes’s Self-Effacing Natural Law Theory,” Pacific Philosophical Quarterly 82, no. 3–4 (2001), 298. 86 88

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In general, Hobbes’s emphasis is on the rights that must be given up in order to establish an effective government. He repeatedly insists that people lay down the right to judge right and wrong, make and interpret laws, levy taxes, raise and maintain an army, punish, decide what doctrines should be taught, and interpret religious scripture. The discussion of what rights subjects are permitted to keep serves to highlight the far more substantial rights that must be given up. If everybody retained all of their natural rights, there would be chaos, “loss of peace,” in Hobbes’s words. Some, if not most, of our natural liberties need to be given up. But a plausible argument can be constructed that the right of self-defense is retained because it is unnecessary to transfer it. The necessity principle is not, strictly speaking, a principle of valid covenants. Hobbes does not say that unnecessary transfers of rights are thereby invalid. They certainly are not unintelligible. Like the fidelity principle, the necessity principle is not part of Hobbes’s general theory of covenants and only appears in discussions of the rights that are transferred in the social contract. In that context, however, these two principles play a brief, but important role. I have argued that the right of self-defense is retained in a Hobbesian commonwealth. It is not retained because death is the worst evil or because it imposes a demand that is psychologically impossible to fulfill. Rather, the right is retained in the commonwealth, first, because there is no assurance that all parties would fulfill a promise not to resist death; second, because such a promise would undermine the purpose of the social contract; and third, because the Hobbesian commonwealth does not require such a promise. Although Hobbes may have tried to defend his claim in the wrong way, it is nonetheless defensible on Hobbesian grounds. As I understand the larger political project, Hobbes intended to show that political obligation coincides with rational or enlightened self­interest.90 Consequently, his views on cases of justified disobedience must be very nuanced. Hobbes noticed that although it is in people’s interests 90

The analysis that I am presenting relies on treating Hobbes’s philosophical project as a kind of “reconciliation project”; see Gregory S. Kavka, “The Reconciliation Project” in Morality, Reason, and Truth:  New Essays on the Foundations of Ethics, ed. David Copp and David Zimmerman (Totowa, NJ: Rowman & Allanheld, 1984), 297–319. That is to say, Hobbes’s intent was to reconcile self-interest and morality, showing that the dictates of morality, rightly understood, were consistent with, and required by, the dictates of self-interest, rightly understood. While this view of Hobbes’s project is widely accepted, it is not uncontroversial. Lloyd, for example, denies that

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to institute and follow an absolute sovereign, there are rare occasions when it is simply not in a subject’s interest to obey particular commands. Almost never will it be in someone’s best interest to obey a command to commit suicide. And so Hobbes argued that in such instances obedience could not be expected, nor was it necessary to the sovereign’s authority. While he argued for the necessity of an “absolute” sovereign, he did not require “absolute” obedience to that sovereign. Hobbes was primarily concerned with the self-interest, construed as a narrow concern with temporal preservation and well-being, arguing instead that Hobbes was concerned to address “transcendental interests,” interests that override the fear of death. Although there are some ways in which I disagree with Lloyd’s reading, my general project is largely consistent with her reading. Hobbes’s discussion of the right to resist the sovereign is almost always couched in terms of selfinterest; e.g., “If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained ” (Leviathan, 27.25; quoted above). However, this need only mean that rational self-interest has some part to play in Hobbes’s theory. It does not entail that it plays the leading role.

Ch apter 2

The true liberties of subjects

The Hobbesian right of self-defense is, as has been demonstrated, far more intriguing and defensible than it initially appears; however, it represents only the very beginning of Hobbes’s theory of resistance rights. Much of the substance of this theory actually lies in the rights that Hobbes derives from the original inalienable right of self-defense. He calls these corollaries the “true liberties of subjects,” which he defines as “the things which, though commanded by the sovereign, he [the subject] may nevertheless without injustice refuse to do.”1 There are references to these corollary rights throughout his texts, but the dedicated discussion of them is in Chapter 21 of Leviathan. The brief list of the corollaries is as follows: (1) Subjects have the right to resist physical harm and confinement. (2) Subjects are not obligated to incriminate themselves or certain others, including those whom they love or depend upon. (3) Subjects may have the right to disobey dishonorable or dangerous commands, including those requiring military service. Much commentary on Hobbes’s political philosophy simply ignores his discussion of the true liberties of subjects. When it is addressed in detail, it is often denigrated. In a representative remark, Glenn Burgess refers to these corollary rights as “peripheral, of little practical political significance, perhaps even embarrassing logical implications of his own theory that Hobbes would have liked to sweep under the carpet.”2 Similarly, Kavka characterizes Hobbes’s discussion as filled with “imprecise claims and weak arguments.”3 Others who come across it simply remark that it seems puzzling, surprising, or dubious in some way, and then leave it at that. Leviathan, 21.10.   Glenn Burgess, “On Hobbesian Resistance Theory,” Political Studies 42, no. 1 (1994), 69. 3 Kavka, Hobbesian Moral and Political Theory, 419. 1

2

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The refusal to take Hobbes seriously on this point is premature, but for the most part understandable. His discussion of these rights is relatively brief and largely unsatisfying. In particular, he gives little or no explanation or defense for some of his most interesting and controversial claims. It is far from obvious, for example, how the right of self-defense entails a right to lie in court to protect a family member. Not only is it mysterious why subjects would be allowed to disobey dishonorable commands, but which commands are dishonorable is not even made clear. The reader is left wondering about the meaning of some of Hobbes’s claims and why he thinks himself justified in making them. It is my contention that, while Hobbes’s account of the true liberties of subjects may appear odd or even baffling, it is not. This chapter shows that one cannot make sense of these corollaries on the standard interpretation (i.e., the conceptual impossibility and the psychological impossibility arguments). Indeed, they make sense only when interpreted along the lines I have been developing here. When the social contract is distinguished from other contracts and the principles of valid covenants are applied to it, a coherent narrative emerges. As I show, when Hobbes argues for these corollaries, it is the very three principles that I identified in the previous chapter to which he makes reference – either implicitly or explicitly. Each corollary is discussed here in turn, demonstrating that this reading provides a superior story about what these rights are and why Hobbes thinks subjects have them. This alternative interpretation provides both argumentative unity and philosophical plausibility to Hobbes’s account of the limits of political obligation. Moreover, when understood correctly, these corollaries provide insight into some of the most basic components of Hobbesian moral and political theory. T h e l i be r t y of s u bj e c t s Hobbes’s discussion of the “true” liberties of subjects is only a small section at the end of Chapter 21, entitled “Of the Liberty of Subjects.” The majority of the chapter is devoted to the following three other ways of understanding in what sense subjects in a commonwealth can be said to have liberty. First, liberty as it is “properly” signified is “natural liberty,” meaning “the absence of opposition; (by opposition, I mean externall impediments of motion).” Chained animals and water constrained by the banks of a river lack this kind of liberty in the exact same way; both face external impediments to their motion. Lack of liberty is distinguished from lack

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of power, because in the latter case the “the impediment of motion, is the constitution of the thing it selfe.” The stationary stone and the man immobilized by sickness lack power, not liberty, because the impediments to their motion are, in some sense, internal. Liberty, on the other hand, is only a function of external impediments. For human beings, liberty in this proper sense is corporal liberty  – the freedom from external things that confine you or otherwise limit the movement of your body. Hobbes cites freedom from chains and prison as examples of this kind of liberty.4 Second, liberty can be understood as the liberty to act only according to one’s own subjective judgments as to the appropriate course of action in any given situation. This is, of course, the kind of liberty afforded by the right of nature. According to Hobbes, subjects often praise and covet the kind of liberty that commonwealths enjoy with respect to each other, that of not being subject to another. But this desire is radically misguided. It is precisely this kind of freedom that must be given up in order to escape the state of nature. The third formulation of the liberty of subjects is the freedom to follow one’s individual judgment in the situations where the law does not require a particular kind of action. One gives up the full right of judgment when leaving the state of nature, thereby agreeing to abide by the judgment of the sovereign or his representatives. However, in cases where the sovereign does not pass judgment, it is left to individual subjects to decide what to do. Thus, “civil liberty,” as Hobbes calls it, consists of what the laws “praetermitted” (i.e., omitted). When the law is silent, men are free to do “what their own reasons shall suggest, for the most profitable to themselves.” While it may be conceivable that the law not be silent on anything, that it speak to every possible mode of conduct, Hobbes thinks that it is practically impossible for laws to regulate all words and actions of men. But according to his principles of sovereignty, it is up to the sovereign to determine the extent of this liberty. In theory, the sovereign can regulate whatever he wants to whatever extent he wants. Nevertheless, Hobbes suggests that individuals retain the right of judgment with respect to specific activities such as “the liberty to buy, and sell, and otherwise contract with one another; to choose their own abode, their own diet, their own trade of life, and institute [i.e., educate] their children as they themselves think fit; and the like.”5 These are “harmless liberties,”6 and he suggests that the sovereign respect such liberties Leviathan, 21.1–6; also see Leviathan, 14.2, De Cive, 5.9. Leviathan (Latin edition), 30.21.

4

6

Leviathan, 21.6.

5

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and give them as wide a scope as possible, consistent with the common peace and safety. The amount and kind of civil liberty will vary between societies; as Hobbes points out, in some times and places, men are permitted to take multiple wives. Nonetheless, Hobbes calls civil liberty the “Greatest” liberty of subjects; presumably, he means that of all the kinds of liberties available to subjects in a commonwealth, civil liberty, despite the variation between cultures, has the widest scope and is the most meaningful.7 The so-called “true” liberties of subjects are given in the fourth and final formulation. This small section of text contains Hobbes’s important but condensed account of what he calls “the particulars of the true liberty of a subject (that is to say, the things which, though commanded by the sovereign, he may nevertheless without injustice refuse to do).”8 A “true” liberty of a subject is the liberty to do X even though the sovereign forbids it, or the liberty to refrain from doing X even though the sovereign commands it. In contrast to the three other definitions of liberty, this kind of liberty is “true,” suggesting that it is the most basic or fundamental. Unlike civil liberties, true liberties inhere in every subject qua subject and do not depend on the contingent will of the sovereign. Before moving forward, it is important to first discuss the relationship between the four formulations of the liberties of subjects. Are they four different versions of the same thing, or are they four fundamentally different kinds of liberty? To begin, there is an obvious difference between the first and the last three. The first is an empirical notion of liberty, while the last three are normative; that is, they are about what people have the right to do. There is also an important difference between the conditions in which the different types of freedom exist. The second kind of freedom exists in the state of nature; in the state of nature, people have the full freedom to do whatever they judge most conducive to their own benefit, and this, of course, leads to a state of war. According to Hobbes, everyone has this right of nature in a state of war. People abandon this unlimited freedom in order to enter civil society, by introducing restraints on themselves in the form of obligations to obey the commands of an absolute sovereign. The third and fourth types of freedom exist only in civil society. The difference between them is that the third is the freedom to act according to one’s own discretion in matters on which the law is silent, while the fourth is the freedom to act according to one’s own discretion in matters on which the law speaks loudly. Leviathan, 21.6, 21.18.

7

Leviathan, 21.10.

8

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It seems wise to read these passages with an eye to Hobbes’s political goals.9 In a time in which the definition and scope of human freedom was under much debate, and many of Hobbes’s contemporaries were “clamour[ing] for liberty,” Hobbes discusses the varieties of liberty in such a way as to forestall their demands and obviate their concerns. The demands for liberty are “absurd” because, in the proper sense of the word, unless they are in prison or chains, people already “manifestly enjoy” ­liberty.10 Indeed, Hobbes seems to think subjects have more of this kind of freedom in civil society than they do in the state of nature. Political theorists who imagined that the state of nature was a condition of natural liberty (in the first sense), also thought that such liberty was lost upon entering into civil society. Hobbes’s point is that there could only be precious little of this kind of liberty in the state of nature. For him, people have more freedom of movement living under the sovereign’s law than they do in its absence. Or, to put it another way, whatever it is that is valuable about freedom of movement is only possible in civil society. People should not demand to be afforded freedom in the second sense (as the unlimited right to do whatever they think is in their interests), because that would mark a return to the undesirable state of war; peace is possible only if no one but the sovereign is free in this sense. They should not demand freedom in the third or fourth senses because they already enjoy both. Liberty in the strict sense, namely corporal liberty, is valueneutral; there is no inherent value simply in the absence of impediments. Impediments, physical or moral, are also value-neutral; being an impediment is neither good nor bad. Hobbes has shown that there is negative value in the complete absence of obligation; unlimited moral freedom leads to a state of war. Everyone must place impediments on their actions in order to achieve peace and security, and these impediments come in the form of obligations to obey the civil laws. The question remains: which impediments or obligations must be incurred because of their necessity in order to achieve the goods of civil society and which liberties can be left intact? Political stability, according to Hobbes, requires that the only liberties afforded to subjects in civil society are (1) the liberty to direct their lives   Quentin Skinner reads Hobbes’s discussion of liberty as a rebuttal to the republican theories put forth by some of his contemporaries, according to which a person is unfree to the extent that she is subject to the arbitrary will of another; and as such “constitute[s] an epoch-making moment in the history of Anglophone political thought” (Hobbes and Republican Liberty [Cambridge University Press, 2008], xiii). 10 Leviathan, 21.6. 9

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as they wish on matters that the law does not regulate, and (2), the liberty to disobey a very particular set of directives from the state. He turns his attention to the specifics of this latter case and asks: under what circumstances is a subject at liberty to refuse to obey a sovereign’s command? T h e t ru e l i be r t i e s of s u bj e c t s Hobbes’s discussion in Chapter 21 can be divided into two parts. The first, contained in ¶¶12 and 13, is the list of commands that a subject never has an obligation to obey and so can always refuse without injustice. Let us call the first set of cases “the unconditional liberties of subjects.” The second (¶¶14, 15, and 16) is a list of commands that subjects might or might not have an obligation to obey, depending on the circumstances. Let us call this second set of cases “the conditional liberties of subjects.” Hobbes provides a test to determine when one is at liberty to disobey. The section heading is “Liberty of Subjects how to be measured.” According to Hobbes, subjects’ liberties need to be “measured”; that is, they need to be identified and their scope determined. By doing so, he defines the limits of both the obligation to obey and the liberty to disobey. To make such determinations, he recommends consider[ing] what rights we pass away, when we make a commonwealth, or (which is all one) what liberty we deny ourselves by owning all the actions (without exception) of the man or assembly we make our sovereign. For in the act of our submission consisteth both our obligation and our liberty, which must therefore be inferred by arguments taken from thence, there being no obligation on any man which ariseth not from some act of his own; for all men equally are by nature free. And because such arguments must either be drawn from the express words, I authorize all his actions, or from the intention of him that submitteth himself to his power (which intention is to be understood by the end for which he so submitteth), the obligation and liberty of the subject is to be derived, either from those words (or others equivalent) or else from the end of the institution of sovereignty, namely, the peace of the subjects within themselves, and their defense against a common enemy.11

The general idea is that, for each particular case, whether one has an obligation to obey or a liberty to disobey can be inferred from (1) the act of submitting to the sovereign, or (2) the reason one submitted. By appealing either to the words of the social contract or to the purpose for which the sovereign was instituted, one can establish whether an instance of refusal to obey is justified. The two concepts at work here each perform a dual role   Leviathan, 21.10.

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of generating obligations and limiting those obligations. Hobbes’s account of how these two concepts serve to “measure” the liberties of subjects only emerges in his discussion of particular cases, as elaborated below. The unconditional liberties of subjects Those commands that subjects always have the liberty to disobey – “the unconditional liberties of subjects” – are described first. The following are the relevant passages in Chapter 21 of Leviathan: [¶11] … it is manifest that every subject has liberty in all those things the right whereof cannot by covenant be transferred. I have shown before in the 14th chapter that covenants not to defend a man’s own body are void. Therefore,   [¶12] If the sovereign command a man (though justly condemned) to kill, wound, or maim himself, or not to resist those that assault him, or to abstain from the use of food, air, medicine, or any other thing without which he cannot live, yet hath that man the liberty to disobey.   [¶13] If a man be interrogated by the sovereign, or his authority, concerning a crime done by himself, he is not bound (without assurance of a pardon) to confess it, because no man (as I have shown in the same chapter) can be obliged by covenant to accuse himself.

Hobbes claims that from the inalienability of the right of self-defense, it follows that one has the following liberties:  (1) the liberty to disobey commands to do those things which will ensure one’s death (e.g., ceasing to eat, breathe, or take one’s medication); (2) the liberty to disobey commands to inflict bodily harm on oneself, or to not resist such assaults; and (3) the liberty to disobey a command to incriminate oneself without assurance of a pardon. To this list we should add a fourth, (4) the liberty to disobey commands to deprive oneself of corporal liberty (e.g., chains and imprisonment). Hobbes does not include (4) in his discussion in Chapter 21. However, in earlier discussions of what follows from the right of self-defense, he almost always includes the right to avoid chains and imprisonment together with the right to avoid wounds and death. For example, in the beginning of Chapter 14, immediately after he claims that one cannot transfer the right of resisting those who “assault him by force, to take away his life,” Hobbes says, “the same may be said of wounds, chains, and imprisonment.” Later in the chapter he says, “no man can transfer or lay down his right to save himself from death, wounds and imprisonment.”12 For that reason, it is included here.   Leviathan, 14.8; 14.29.

12

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Recall here that while Hobbes frames the discussion in Chapter 21 in terms of liberties and disobedience, it can also be understood in terms of rights and resistance. A liberty to disobey a certain command of the sovereign is equivalent in Hobbes’s system to the right to resist that exercise of sovereign power. If a subject has the liberty to disobey a command to wound himself, then he is under no obligation to submit to those attempting to enforce the command. Thus, when he resists, he does so without injustice. Since sovereigns do not usually command subjects to carry out their own punishment sentences (Socrates aside), 1–4 above are best thought of as resistance rights, specifically, the rights to resist capital and corporal punishment and imprisonment. Elsewhere in the text, Hobbes uses the language of resistance more explicitly when he discusses precisely these cases. For example, he describes the right against self-incrimination, saying, “accusation is followed with punishment, which being force, a man is not obliged not to resist.”13 The real question, then, is how these rights are supposed to logically follow from the right to defend oneself from death. It is clear from the text that Hobbes means to derive the true liberties from the previously established right of self-defense. After all, he introduces the section with the word therefore (quoted above). Setting aside (1), the right to disobey commands to do those things which will ensure one’s death, because it is included in the original right of self-defense (i.e., if you have the right to defend yourself from death, then you have the right to defend yourself from the things that cause death), the things to be explained are: (2), the right to resist wounds, (3), the right to resist imprisonment, and (4), the right against self-incrimination. I will discuss each in turn, showing in each case that if one interprets the right of self-defense in the standard way, these corollary rights do not follow. Hobbes simply cannot establish these corollary rights by appeal to the explicit arguments for the right of self-defense in Chapter 14 (the conceptual and psychological impossibility arguments). However, if the grounds for the right of self-defense are interpreted along the lines presented in the previous chapter, then we can see not only how the true liberties of subjects, are meant to be established but also how they are supposed to follow from the original right of self-defense. This interpretation provides argumentative unity and coherence to a part of Hobbes’s political philosophy that otherwise seems disjointed and confused. Leviathan, 14.30 (emphasis added). He also characterizes the right that it is impossible to give up as a right of resistance (Leviathan, 14.8).

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The right to resist corporal punishment (wounds) It is worth examining why the standard interpretation – the conceptual and psychological impossibility arguments – cannot ground the right to resist wounds. Recall that Claire Finkelstein is critical of Hobbes on precisely this point; she argues that Hobbes cannot establish the invalidity of a covenant not to resist being wounded or imprisoned. Finkelstein’s point is that it is possible to obligate oneself not to resist being wounded and physically restrained. According to the conceptual impossibility argument (what Finkelstein calls the “argument from benefit”), one cannot transfer the right of self-defense because doing so would contradict something central about the concept of transferring a right, namely the “good to oneself.” There can be no benefit to a promise to give up the right to defend one’s life, because death is the worst evil. But, as Finkelstein points out, because a covenant to submit to wounds or prison could in fact be beneficial to the promisor, Hobbes cannot use this argument to invalidate such a covenant.14 Hobbes’s arguments do not work because the special status of death as the worst evil, precisely what is required to get the argument off the ground, is missing. The fact that a particular thing will necessarily involve pain and people generally avoid pain, does not mean that a person cannot contract to endure that thing. Why, then, does Hobbes think that there is a right to resist being wounded? It is helpful to put Hobbes’s discussion of corporal punishment and our right to resist it in historical context. After all, in the United States at least, corporal punishment no longer exists; criminals are not punished with lashes or maiming. Such practices, however, were common in England in the seventeenth century (and are still common today in some places in the world). What follows is a description of just what Hobbes had in mind when he discussed corporal punishment; it describes the punishment of a vagabond. The roge being apprehended, committed to prison, and tried in the next assises  … if he happen to be convicted for a vagabond, either by inquest of office, or the testimonie of two honest and credible witnesses upon their oths, he is then immediately adjudged to be greevouslie whipped and burned through the gristle of the right eare, with a hot iron of the compasse of an inch about, as a manifestation of his wicked life, and due punishment received for the same … If he be taken a second time … he shall then be whipped againe, bored likewise through the other eare.15 14

  Finkelstein, “Puzzle about Hobbes’s Right of Self-Defense,” 338–339.   Molly Harrison, ed., How They Lived (Oxford: Blackwell, 1962), 272.

15

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In general, punishments were extremely severe. One commentator explains, Punishments seem, to our more tolerant eyes, wickedly severe. Londoners were accustomed to seeing traitors hung, drawn and quartered, heretics burned at the stake and thieves hanged. In other towns crimes were punished by whipping, branding and by exhibiting the wrongdoer in the stocks or the pillory, for the mockery and ill-treatment of the citizens.16

One reason to think that social contractors would not give up the right to resist being wounded is the high probability or risk that such wounds would lead to their deaths. Hobbes makes a note of this explicitly: Less than capital [punishment] are stripes, wounds, chains, and any other corporal pain, not in its own nature mortal. For if upon the infliction of a punishment death follow not in the intention of the inflictor, the punishment is not to be esteemed capital, though the harm prove mortal by an accident not to be foreseen; in which case death is not inflicted but hastened.17

Unsurprisingly, corporal punishment in the seventeenth century often hastened death. Given the nature of corporal punishment – and the state of medicine – in Hobbes’s time, it is possible that subjects would often see a punishment sentence of wounding as a death sentence. In those cases, the subject’s right to resist the punishment might be attributable to the original right of self-defense, since it includes the right to resist that which is believed to cause death. However, Hobbes is trying to establish a more general right to resist corporal punishment; he never claims that a person has the right to resist being wounded if and only if he thinks that the wounds will kill him. Presumably, it is possible for subjects to know, at least some of the time, whether or not the particular type of wound involved in their punishment is likely to prove deadly. But the force of Hobbes’s claim is stronger: even if a subject could be sure the wounds were not going to kill him or hasten his death, he still has the right to resist the punishment. At one point Hobbes tries to ground this extension of the right of selfdefense in an epistemic claim. His explanation is that every person has the right to resist wounds, chains and imprisonment because “a man cannot tell, when he seeth men proceed against him by violence, whether they intend his death or not.”18 Even if this sometimes is the case, these are weak grounds for a general right to resist wounds and imprisonment. Surely in some, if not most cases, one would be able to make such determinations, Ibid. 17 Leviathan, 28.17. Leviathan, 14.8.

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especially since Hobbes insists that the punishments for specific crimes be made public. Hobbes would have to assume that wounds would always be life-threatening and that one’s safety is always jeopardized when one is under the physical control of another. These assumptions are highly questionable. Kavka argues that Hobbes does not succeed in establishing this claim; “the argument fails because wounds and imprisonment are often temporary, or bearable, and because it rests on the invalid first argument for the inalienability of the right to resist deadly attack.”19 According to this explanation, at least, Hobbes cannot establish the general prohibition against any possible covenant not to resist wounds as such, that is, bodily harm that is known to be painful but not life-threatening. Since the right to resist wounds cannot be plausibly grounded in this kind of epistemic claim, it is worth considering how the framework I have been developing might apply in this case. This framework, I argue, can explain many of Hobbes’s broader resistance rights quite straightforwardly. As demonstrated in Chapter 1, Hobbes thinks, in general, people cannot be trusted to face great physical pain. He observes that people are led in chains and under guard “(whether [their punishment is] capital or not),” saying that the “supreme stage of fearfulness” covers not only death but also “wounds or other bodily harm.”20 On the whole, people simply cannot be counted on not to flee, or in some other way attempt to avoid the pain of corporal punishment. It is not that people necessarily will flee in such situations. Rather, the claim is that they cannot be relied upon to remain of their own accord and receive their blows; otherwise, there would be no need to put them in chains or surround them with guards. If they do flee, however, they have not committed an injustice. Because the social contractors, reasoning from general principles of human nature, cannot reasonably expect each other to fulfill an obligation to submit to corporal punishment, they cannot succeed in transferring the right to resist it. Hence, on the reasonable expectations principle, a covenant not to resist wounds would be invalid, and these are precisely the grounds to which Hobbes appeals. The necessity principle also functions to justify the right to resist wounds. An obligation on the part of the subjects to stand and accept the violence required by their punishment sentence in no way enhances the power of the sovereign. And their lack of obligation in no way detracts from the sovereign’s power; there are always others to do the job. Like the right of self-defense, the right to resist wounds is a right that can be retained without “loss of peace.” Such an individual right to resist does 19

Kavka, Hobbesian Moral and Political Theory, 325–326.

De Cive, 2.18.

20

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not induce sedition or rebellion and so satisfies the kinds of criteria for a right that Hobbes thinks can be retained in the social contract. The fidelity principle is also at work in Hobbes’s explanation of the right to resist wounds. According to the fidelity principle, one cannot transfer a right in making a covenant if the transfer of that right contradicts the purpose of the covenant. The constant threat of violence at the hands of another is one of the main features of the state of war. In that state, people are fearful of their own deaths but also of injuries inflicted by others. Indeed, it is the fear of violence just as much as it is the fear of death that motivates people to leave the state of nature. Hobbes often speaks of the reason people enter civil society as the “protection of life and limb,” suggesting that he did not think that one could protect one’s life without also protecting one’s limbs. Part of the essential purpose of the social contract is, at the very least, to ensure bodily security. More specifically, the goods of society can only be achieved if people enjoy the protection of and control over their bodies. In fact, Hobbes insists that it is necessary for people to retain the right to “govern their bodies.” Retaining this right, he continues, is necessary both for life and to “live well.”21 Hobbes, at times, has a tendency to characterize the purpose of the social contract in very broad terms, saying that the end of the institution of sovereignty is a certain quality of life. The final goal of people who institute a sovereign is “a more contented life.” Hobbes explains that people have the right to resist “wounds, and chains, and imprisonment,” because the only reason they renounce their rights at all is a view toward “the security of a man’s person, in his life and in the means of so preserving life as not to be weary of it.”22 This explanation fairly obviously invokes the idea of the purpose of the covenant; however, it is not clear how to understand exactly what he means. Hobbes’s thought might be that a person facing certain extreme kinds of corporal punishment could plausibly expect an extended, perhaps even a lifetime period of suffering and disfigurement in addition to the pain and mutilation of the infliction of the punishment. Thus, it might be argued that the right to resist wounds could not be given up in the social contract because its transfer would contradict the very purpose of the transfer, namely the protection of life and limb and a certain minimum quality of life so as “not to be weary of it.” However we understand the precise nature of Hobbes’s point here, it is clear that his explanation for why subjects have a right to resist wounds relies on a connection to the point or purpose of the social contract, and so invokes some version of what I have been calling the “fidelity principle.” 21

Leviathan, 15.22; also see De Cive, 10.1.

22

Leviathan, 14.8.

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(As an aside, note that Hobbes’s texts are peppered with references to quality of life considerations like this one, but the references are vague, and it is unclear how far to extend Hobbes’s resistance rights on this basis alone. Because they arise fairly often in this context and because some commentators have understood them to usher in a host of problems for Hobbes, let me pause to give a few brief comments. To foreshadow a bit, there are a number of instances where Hobbes suggests that a subject may be justified in resisting the sovereign if obedience promises a sufficiently awful quality of life. As we will see later in this chapter, Hobbes thinks that disobedience is justified in a case where one would prefer to die rather than live a life of “infamy and loathing” and that lying in court to protect a loved one is permitted if the loss of that loved one would so “embitter” the person’s life. In both cases Hobbes excuses their disobedience by reference to the incredibly poor life that would result from obedience. However, it is not clear how to generalize Hobbes’s thought here. Part of the reason that Hobbes excuses disobedience in these cases is that such disobedience has no effect on the punishment power of the sovereign. That is, disobedience motivated by quality of life concerns is only justified if it has no political effect. In fact, references to the possible misery of the subject’s life are invoked to explain why their obedience cannot be expected. For example, it is because the loss of his wife would so “embitter” the husband’s life that we cannot trust that his testimony is truthful. There is no suggestion that the sovereign has some sort of obligation to remedy these kinds of miseries. So, while Hobbes sometimes invokes quality of life considerations in his explanation of the various retained rights, quality of life considerations are not on their own sufficient to ground an act of justified resistance. In my view, this language is best understood in the context of Hobbes’s account of the duties of sovereigns vis-à-vis private property rights. Notice that he primarily invokes quality of life considerations in explaining why people institute a sovereign and the corresponding duties of that sovereign. People enter into commonwealths not merely out of “foresight of their own preservations,” but out of a “hope for a more contented life”.23 Accordingly, sovereigns have a duty to provide security, the absence of “reasonable cause to fear other men so long as he refrains from ­wronging them”;24 and the conditions necessary for each person to enjoy “all other Contentments of life, which every man by lawfull Industry … shall acquire to himselfe”.25 I take the latter to require the establishment of a system of private property and the protection of property rights. In   Leviathan, 17.1. 

23

24

  De Cive, 6.3. 

25

  Leviathan, 30.1.

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the state of nature, “there is no place for industry, because the fruit thereof is uncertain.”26 In civil ­society, however, ­property laws make it possible for people to enjoy the products of their labor. So happiness, ­contentment, enjoyment (the seemingly vague terms ­utilized by Hobbes in ­characterizing quality of life considerations) are only ­possible when there is an ­assurance that one’s efforts will be worthwhile. In short, ­property laws are a ­necessary condition for industry and all the goods which industry makes possible, what Hobbes calls “commodious living.” Since subjects enter into a commonwealth on the basis of a hope for a better life, and this hope is made possible by the institution of property: “The passions that incline men to peace, and are feare of death; desire of such things as are necessary to commodious living, and a hope by their industry to obtain them.”27 Hobbes even implies that protection of property rights is the only duty a sovereign has besides providing security, noting that “supreme commanders can confer no more to their [subjects’] civil happiness than that being preserved from foreign and civil wars, they may quietly enjoy that wealth which they have purchased by their own industry.”28 In the context of retained rights, the meaning of this quality of life language is harder to discern; but, as I have argued, we should not understand quality of life considerations as constituting an independent source of justification for disobedience.) To return to the general right to resist punishment, notice that Hobbes never explicitly gives an argument for this right; it seems obvious to him that such a right derives from the right of self-defense. But on the standard interpretation of the right of self-defense, it is not clear how this could be. If the normative force behind the right of self-defense is supposed to derive from the special moral status of death (as being the worst evil and canceling out all obligations), then there is no reason to think that there is a special, inalienable right to resist attacks that are not deadly. Against this standard interpretation, I have argued that the best way to understand the inalienability of the right of self-defense is to apply the three principles of valid covenants to the social contract and see that the right of self-defense cannot be alienated. As I have shown, the inalienable right to resist wounds is best understood along the same lines. The right to resist imprisonment A similar analysis can be undertaken with regard to the right to resist imprisonment, beginning with the historical picture. One historian describes what prisons were like in Hobbes’s time, saying, “Conditions   Leviathan, 13.9.   27  Leviathan, 13.14.  

26

  De Cive, 13.6.

28

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in prisons were appalling. Ordinary prisoners lived in misery and filth, but those who could afford it lived comfortably by bribing their gaolers. Many citizens were sickened by violence and cruelty meted out to those in prison.” He then gives a first-hand account: Beleve me, it greeveth me to heare (walking in the streetes) the pittifull cryes and miserable complayntes of poore prisoners in durance for debte, and the like so to continue all their life, destitute of libertie, meate, drink (though of the meanest sorte), and clothing to their backes, lying in filthie straw and lothsome dung, worse than anie dogge, voyde of all charitable consolation and brotherly comforte in this worlde, wishing and thirsting after deathe, to set them at libertie and loose them from their shackles … and iron bandes.29

Seventeenth-century prison life was clearly horrendous  – worse than a dog’s life, if this witness is to be believed. However, being imprisoned was not in itself a death sentence. Thus, the right to resist being imprisoned (or put in chains) seems even harder to justify on the standard interpretation than the right to resist being wounded. Surely, there is no reason why a covenant to transfer this right could not have some benefit. For example, there is no reason why we cannot make a valid covenant in which you agree to give me $1,000 if I submit to being shackled for a certain amount of time. Finkelstein makes this point saying, “There is probably some large sum of money someone could offer me that would make me regard abandoning it [the right to resist being physically restrained] as worthwhile, especially if the imprisonment were of limited duration.”30 The psychological and conceptual impossibility arguments, even if successful in justifying the right of self-defense, are even less likely to justify a right to resist being imprisoned or put in chains than they are to justify a right to resist being wounded. Following the same strategy as in the previous section: can the social contractors reasonably expect each other to abide by a covenant not to resist imprisonment? Hobbes insists that the deprivation of corporal liberty is an undesirable state of affairs; according to him, “men … naturally love liberty.”31 However, this does not make men unable to sacrifice the freedom of mobility, if such a sacrifice was necessary in order to achieve some higher good or set of goods. Reference to the purpose of the social contract can help us make sense of the reasoning behind Hobbes’s assertion that the right to resist chains Harrison, How They Lived, 287. Finkelstein, “A Puzzle about Hobbes’s Right of Self-Defense,” 339. Kavka makes a similar point; see Hobbesian Moral and Political Theory, 324–326, 336. 31 Leviathan, 17.1. 29 30

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and imprisonment cannot be alienated within it. He often speaks of the reason people enter the civil society as a desire to protect their life and limbs; interestingly, he also speaks of it as the desire to protect life and liberty; “fear of oppression disposeth a man to anticipate or to seek aid by society; for there is no other way by which a man can secure his life and liberty.”32 Moreover, one of the features of the state of nature is that people’s physical liberty is always at risk. According to Hobbes, “men naturally love … dominion over others.” And so in the state of nature, where there are no rules against acting on such desires, men “endeavour to … subdue one another.” One’s physical liberty is extremely insecure in the state of nature (and necessarily or unavoidably so). Hobbes says, [I]t comes to pass that, where an invader hath no more fear than another man’s single power, if one plant, sow or build, or possess a convenient seat, others may probably be expected to come prepared with forces united, to dispossess and deprive him, not only of the fruits of his labour, but also of his life or liberty.33

Only in civil society can people be secure from the attempts by others to dominate, subdue, and presumably enslave, them. Recall that Hobbes describes the social contract as aiming at a “more contented life” or “the means of so preserving life as not to be weary of it.” Having corporal liberty seems a precondition for the enjoyment of other goods in society; indeed, if one does not have it, one cannot pursue any goods effectively, if at all.34 We enter into civil society to make it possible for us to profit from our own industry and so on, and these goals seem predicated on the absence of confinement by chains or bars. Hobbes insists that the right to freedom of movement, and so the right to resist physical restraint, is a right that the social contractors cannot give up for these reasons. He maintains that “it is necessary, for man’s life, to retain some [right to] enjoy air, water, motion, ways to go place to place, and all things else without which a man cannot live, or not live well.”35 Hobbes makes it clear that freedom from the kind of physical restraint imposed by chains and bars is essential to even a minimally acceptable, if not a good, life (the desire for which is the reason why people enter civil society). Hence, abandoning this right is impossible because doing so would Leviathan, 6.9. 33 Leviathan, 15.22, 17.1, 13.3 (emphasis added). Hobbes does seem to think that there is something morally special about freedom from chains. He makes some peculiar claims about how if a person is in chains, then he cannot make covenants or incur obligations at all. He also says that slaves cannot obligate themselves to obey their master; it is only when they are given their physical freedom that they can bind themselves as servants (e.g., Leviathan, 20.10–11). 35 Leviathan, 15.22. 32

34

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violate both the reasonable expectations principle and the fidelity principle. It seems that transferring the right to resist imprisonment would undermine the aims of the social contract; that is, its transfer would violate the fidelity principle. In addition, there is no reason to think that renouncing the right to resist imprisonment is necessary to institute the Hobbesian sovereign, and so its renunciation is not required for the very possibility of the social contract. Furthermore, we cannot reasonably expect people to forsake this right given that part of the purpose of the social contract is to avoid the deprivation of physical liberty. So, according to both principles, neither the right to resist being wounded nor the right to resist chains can be transferred in the social contract. It should be clear at this point that thinking about these rights in terms of covenants in general is unhelpful, and it makes more sense to think about them in terms of the nature and purposes of particular covenants – in this case the social contract. Granted, from a purely philosophical perspective, it might be interesting to consider whether some promises are inherently invalid; and, I can imagine an argument according to which suicide pacts would not impose genuine obligations. However, while this might be an interesting philosophical question that could potentially be asked from a Hobbesian perspective, it is certainly not the question that Hobbes himself was asking. Unfortunately, Hobbes himself introduces this ambiguity and invites this confusion. By placing the first mention of a retained right where he did in Leviathan (i.e., at 14.8), it appears that he is making a claim about rights as such. The immediately preceding discussion is about what a right is and what it means to transfer a right. The previous chapter (13) is about the state of nature, and he does not introduce the social contract until three chapters later. At this point in Chapter 14, his discussion is still very abstract; he is still laying his foundation and making general observations about human nature, positing definitions, and doing general conceptual analysis. He has not yet turned his attention explicitly to the particular context of civil society. As a result, it appears that he is addressing the general question of what rights are possible and impossible to transfer in general. Furthermore, he presents the claim as if it held universally, pertaining to contracts as such. So it is perfectly understandable that most read him as making the general claim. But, as I have shown, the argument that is needed to establish the general claim is faulty and requires attributing to Hobbes a dubious premise about the evilness of death – a premise that Hobbes elsewhere seems to reject. Additionally even if such an argument were successful, it could not fund the other true liberties of

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subjects, thereby preserving the mystery as to why Hobbes insisted that these other rights could be derived from the right of self-defense. As such, it renders Hobbes textually and philosophically inconsistent. Thus, this interpretation, though tempting, should be resisted. The right against self-incrimination To some extent, the right to refuse to testify against oneself without the assurance of a pardon is covered by what has already been said, since in many cases it reduces to the right to resist punishment. Indeed, Hobbes justifies it along these lines, saying A covenant to accuse oneself, without assurance of a pardon, is likewise invalid. For in the condition of nature, where every man is judge, there is no place for accusation; and in the civil state the accusation is followed with punishment, which being force, a man is not obliged not to resist.36

The idea is that since a given subject has the right to resist the infliction of punishment, then he has the right to resist that which leads to the infliction of punishment. Since self-accusation without the assurance of a pardon leads to conviction and ultimately punishment, the refusal to accuse oneself is not an injustice. Hobbes gives further arguments for the right against self-incrimination and broadens it so that it includes not only the right to refuse to testify against yourself, but also against other people who stand in certain relationships to you. He says (and this immediately follows the quotation just cited), The same is also true of the accusation of those by whose condemnation a man falls into misery (as, of a father, wife, or benefactor). For the testimony of such an accuser, if it be not willingly given, is presumed to be corrupted by nature, and therefore not to be received; and where a man’s testimony is not to be credited, he is not bound to give it. Also accusations upon torture are not to be reputed as testimonies. For torture is to be used but as a means of conjecture and light in the further examination and search of truth; and what is in that case confessed tendeth to the ease of him that is tortured, not to the informing of the torturers, and therefore ought not to have the credit of a sufficient testimony; for whether he deliver himself by true or false accusation, he does it by the right of preserving his own life.

His reasoning is almost exactly identical in De Cive, Similarly, one is not bound by any agreement to accuse oneself or anyone whose loss would embitter one’s own life. Hence a father is not obliged to give evidence against his son, nor spouse against spouse, nor son against father; nor anyone 36

  Leviathan, 14.30.

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against the person on whom he depends for survival; for evidence which is presumed to be tainted by nature is useless. But although one is not obliged by any agreement not to accuse oneself, one may be compelled by torture to reply in a public trial. Such replies are not evidence of fact but as means of investigating the truth. So whether he gives a true or a false answer under torture or says nothing at all, he is acting rightly.37

There are three different rights supported in these passages: (1) the right to refuse to bear witness against oneself, which includes the right to give false testimony; (2) the right to refuse to bear witness against people whose conviction would “embitter one’s life” (or “make one fall into misery”); and (3) the right to lie under torture. An analysis of each shows that the framework I have been developing provides a better explanation than does the standard interpretation for why, on Hobbes’s account, people have these rights. The standard interpretation of Hobbes can provide neither an adequate explanation for nor a justification of these rights. It is only in the case in which the criminal is charged with a capital crime that his right to refuse to accuse himself would follow from the right to self-defense. If he is charged with a crime whose punishment was anything less than capital, the standard interpretation would be unable to explain why he could legitimately remain silent. Of course, if the punishment for his crime was wounds he thought he could not survive, then his refusal to testify would be justified by the right to resist that which leads to death, as suggested above. But Hobbes intends the right against self-incrimination as the right to refuse to testify against oneself under any circumstance. On Hobbes’s account, even if the crime is only punishable with a short jail sentence, one can still, without injustice, remain silent. Furthermore, the standard interpretation has nothing at all to say about why the right against self-incrimination extends to the right to refuse to accuse a loved one or benefactor. The conviction of such a person might make one’s life significantly worse, but it is highly unlikely to be a direct cause of one’s death. The standard interpretation might have better success explaining the right to say whatever you want under torture. Presumably, one could confess (truthfully or falsely) because one thought the torture posed a serious threat to one’s life – a reasonable fear, given seventeenth-century mechanisms of torture.38 Yet, on balance, neither the conceptual impossibility argument nor the psychological impossibility argument promises to vindicate the extended scope of Hobbes’s claim. 37

De Cive, 2.19.

38

Note that the English common law banned the use of torture.

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In contrast, there are several ways in which the three principles I have been developing can explain Hobbes’s seemingly puzzling remarks about the duties of subjects with regard to giving testimony in court. First, Hobbes explicitly invokes the reasonable expectations principle to explain why a subject is not obligated to give testimony against himself or a loved one, as well as why the accused can say whatever he wants under torture. One is bound to give testimony only if one can expect others to believe that testimony. Both the testimony of a defendant concerning his own defense and the testimony of a witness concerning a loved one or benefactor are “presumed to be tainted by nature,” and so they are useless. On Hobbes’s account, one cannot be expected to tell the truth in cases where telling the truth would mean the conviction of oneself or the loss of someone close. He invokes the reasonable expectations principle when he explains why: people are likely to keep their agreement not to defend others against the sovereign’s punishment, except “when they or those close to them are to be punished.” He seems especially concerned about familial relationships; the things that “are dearest to a man are his own life and limbs; and in the next degree (in most men) those that concern conjugal affection; and after them riches and means of living.”39 If people value their lives and limbs most, and then their families, then they cannot reasonably be expected – in either the predictive or normative sense – to assist in the state’s efforts to take those things of value away. Second, underlying Hobbes’s position on self-incrimination is the necessity principle. It is unnecessary for people to obligate themselves to bring accusations against themselves or their loved ones. Since one’s testimony in such cases is useless, giving it cannot be necessary to the functioning of the court. Similarly, even if an obligation to give honest answers under torture were possible, subjects would not need to incur it since answers given under torture do not count as evidence. On Hobbes’s account, requiring subjects to participate in their own conviction (or the conviction of certain others) adds nothing to the effectiveness of the court proceedings. And so it is unnecessary that subjects bind themselves in this way. The argument presented here has explained and justified Hobbes’s claims that one can never be obligated to obey commands to wound, imprison, or testify against oneself (or certain other people) in terms of the three principles. This interpretation is compelling because it illustrates the theoretical unity among the true liberties themselves as well as unity between the true liberties and the original right of self-defense. 39

  De Cive, 6.5; Leviathan, 30.12.

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The general right to resist punishment What the unconditional liberties of subjects primarily establish is a general right to resist the punishment commands of the sovereign.40 Subjects are never obligated to obey a command to punish themselves, and when they resist a punishment sentence, their resistance is not an injustice. A set of interesting and important interconnections between the three principles emerges from this discussion of punishment. The important dual meaning of the reasonable expectations principle can be seen here as well. As presented in Chapter 1, a covenant is valid if and only if both parties can reasonably expect the other to perform his part. In the first sense, “can reasonably expect” means “can trust” or more precisely, “can make certain predictions about the likelihood of fulfillment.” The phrase addresses the reliable predictions the social contractors can make about each other’s behavior under certain conditions and what covenants they can expect each other to fulfill. The claim is not normative but descriptive; it concerns predictions that will turn out to be correct or incorrect. One of the reasons it is impossible to alienate the right of self-defense in the social contract is that social contractors cannot form the right kind of beliefs about each other’s likely performance in circumstances of grave danger. Reasoning from general principles about human psychology  – people have a very strong tendency to avoid violent death – they cannot reasonably expect each other (in the predictive sense) to fulfill an obligation to submit willingly to their own deaths. Similarly, Hobbes appeals to general facts about human nature when explaining why people cannot be relied upon either to submit to “wounds, chains, and imprisonment” or to incriminate themselves or their loved ones. There is a second sense in which the parties to the social contract cannot reasonably expect one another to incur the obligation not to resist punishment in general:  this would be “unreasonable to expect” in the normative sense of “reasonable expectations” introduced in Chapter 1. Recall that because people submit to a sovereign power in order to secure the preservation of life, and because it is unnecessary that they undertake an obligation not to resist death, it is thereby unreasonable (i.e., unfair) to Strictly speaking, the claim is a bit more limited. Hobbes claims that there are two different kinds of punishment, human and divine. The human punishments are corporal, capital, pecuniary, and the infliction of ignominy, imprisonment and exile. Hobbes does not defend the claim that subjects have the right to resist all of the different kinds of human punishment. All he wants to establish is the right to resist capital and corporal punishment and imprisonment. There is not a right to resist pecuniary penalties (i.e., fines), for example, unless of course, one can reasonably see payment of those fines as posing a threat to one’s self-preservation.

40

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expect them to give up the right of self-defense. Security of life, limb, and (corporal) liberty play a foundational role in Hobbes’s theory. So, it is not surprising that he thinks it would be unreasonable to expect any subject to jeopardize such security. Hobbes’s most basic argument for why one cannot reasonably expect others to incur an obligation that puts their life, limb, or liberty at risk is twofold. First, the commonwealth was instituted for the protection from the very harms punishment inflicts; and second, it is entirely unnecessary for subjects to incur such an obligation. This suggests an important convergence of two themes:  it is precisely those actions that cannot be expected of subjects that are not required of subjects. However, the resources for explaining such rights are scattered throughout his various texts. Hobbes does not fully explicate the principles that must be employed in the defense of the right to resist various kinds of punishment. I hope to have shown that a Hobbesian explanation and justification of these rights can be constructed on the basis of these resources. The question of whether a subject is obligated to submit to punishment was debated in the seventeenth century. Recall from the last chapter that the royalist position endorsed an obligation to “suffer patiently” the punishment of the sovereign, even if one was innocent of the crime charged. Hobbes’s stand in this debate rests largely on the assumption that a stable commonwealth can countenance a wide array of resistance as long as such resistance is confined to the narrow sphere of the individual and her family. It is, of course, conceivable that the willful surrender of one’s life under any condition is, in fact, necessary to guarantee the power of the sovereign (lots of things meet the requirement of conceivability). However, empirical evidence would need to be offered in order to establish this contentious assumption. And, it seems doubtful that the resistance of condemned men or those unwilling to submit themselves or their families to punishment would diminish the awesome power of the Hobbesian Leviathan. Barring such evidence, Hobbes’s argument that there is no moral obligation for a subject to accept punishment seems plausible as a claim about the conditions necessary to ensure a stable political order. A brief remark about authorization At the beginning of this discussion, it was noted that Hobbes introduces the true liberties of subjects with the puzzling claim that both our obligation and our liberty derive from either the authorization of the sovereign or the purpose of the institution of sovereignty (the intention of the man who submits). It has been shown how the latter plays an essential role in

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justifying the unconditional liberties of subjects. But what role does the former, the concept of authorization, play in Hobbes’s attempt to “measure the unconditional true liberties of subjects”? The concept of authorization is a significant feature of the mature version of Hobbes’s political theory (it does not appear until Leviathan). The meaning of authorization and the role it plays in Hobbes’s theory is a subject of debate among Hobbes scholars, and it will be discussed in the next chapter. In brief, authorization is one of the main elements of the social contract, the contract that establishes the commonwealth. Parties to the (Leviathan version of the) social contract agree to authorize and own all the actions of the sovereign. In the next chapter I will explain that to authorize the sovereign without limitation is not to undertake an unlimited obligation to obey him. Moreover, I argue that Hobbes’s notion of authorization is entirely compatible with both the conditional and the unconditional true liberties of subjects. For the present, it is enough to note that the notion of authorization in no way challenges the argument just presented. Hobbes only mentions authorization once in his discussion of the true liberties of subjects. In that case, he invokes it in order to argue that, under certain circumstances, the subject is not obligated to obey the sovereign. The conditional liberties of subjects The conditional liberties of subjects are those liberties that subjects may have, depending on the circumstances. These liberties address the question:  under what circumstances are subjects obliged to obey dangerous and dishonorable commands? Hobbes says, [¶14] Again, the consent of a subject to sovereign power is contained in these words I authorize, or take upon me, all his actions, in which there is no restriction at all of his own former natural liberty; for by allowing him to kill me, I am not bound to kill myself when he commands me. It is one thing to say kill me, or my fellow, if you please, another thing to say I will kill myself, or my fellow. It followeth, therefore, that   [¶15] No man is bound by the words themselves, either to kill himself or any other man; and consequently, that the obligation a man may sometimes have, upon the command of the sovereign, to execute any dangerous or dishonorable office, dependeth not on the words of our submission, but on the intention, which is to be understood by the end thereof. When, therefore, our refusal to obey frustrates the end for which the sovereignty was ordained, then there is no liberty to refuse; otherwise there is.   [¶16] Upon this ground a man that is commanded as a soldier to fight against the enemy, though his sovereign have right enough to punish his refusal with

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death, may nevertheless in many cases refuse without injustice, as when he substituteth a sufficient soldier in his place; for in this case he deserteth not the service of the commonwealth. And there is allowance to be made for such natural timorousness, not only to women (of whom no such dangerous duty is expected), but also to men of feminine courage. When armies fight, there is, on one side or both, a running away; yet when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonorably. For the same reason, to avoid battle is not injustice, but cowardice. But he that enrolleth himself a soldier, or taketh imprest money, taketh away the excuse of a timorous nature, and is obliged, not only to go to the battle, but also not to run away from it without his captain’s leave. And when the defence of the commonwealth requireth at once the help of all that are able to bear arms, every one is obliged, because otherwise the institution of the commonwealth, which they have not the purpose or courage to preserve, was in vain.41

In ¶14 Hobbes gives a version of his oft-repeated claim that, although I have consented to a sovereign who has the power to command X, I do not necessarily have an obligation to do X. The words of submission are not obligation-generating with regard to certain commands. Hobbes takes ¶14 to entail ¶15, in which he asserts that there is no obligation to kill oneself or anyone else. The second part is new and raises a couple of questions. First, what other men are we not bound to kill? In ¶14 he says our “fellow” man, in ¶15 it is just “any other” man. Does this mean fellow citizens? Citizens of other nations? Second, and more importantly, why exactly is it that people do not have this obligation? How could the right to disobey a command to kill another person possibly follow from the right of self-defense or any of the unconditional liberties of subjects just discussed? Hobbes’s answer here seems to be that the command to kill another person could be dangerous or dishonorable: whether one has an obligation to obey a dangerous or dishonorable command depends not on the words of submission, but on the intention. If our refusal to obey the dangerous or dishonorable command frustrates “the end for which the sovereignty was ordained,” then we are obligated to carry out the command, because our overriding intention was to create a sovereign. If our refusal to act upon the command does not frustrate the purpose of the commonwealth, then we are at liberty to refuse. Presumably, “dangerous commands” are those requiring people to fight in wars or to otherwise assist in the defense of the commonwealth. It is less clear what he has in mind with regard to the dishonorable commands.42   Leviathan, 21.14–16. While it is difficult to know to what “dishonourable offices” are meant to refer, it is plausible to assume that (at least in part) they are supposed to refer to a subset of law enforcement duties,

41

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The right to disobey dishonorable commands Hobbes’s discussion of the liberty to resist dishonorable commands receives far less attention than his discussion of the liberty to resist dangerous commands. In Leviathan 21.15, he makes the surprising and puzzling claim that subjects might not be obligated to obey dishonorable commands. However, no explanation or argument is given for why dishonorable commands are singled out as candidates for justified disobedience, rather than simply unpleasant commands. And nothing else in Leviathan suggests such a claim; there is no mention of dishonorable commands at all. No other discussion of the right of self-defense in Leviathan is helpful in understanding Hobbes’s suggestion that subjects could be justified in disobeying dishonorable commands. Indeed, in all of his works, Hobbes gives only one example of a sovereign commanding a subject to do something dishonorable – in De Cive, where Hobbes considers whether a son can be obligated to execute his father: For it is one thing to say, I give you the right to command whatever you wish, another to say I will do whatever you command. There are commands that I would rather be killed than perform. Since no one can be obliged to want to be killed, much less is he obliged to do something worse than death. Hence if I am told to kill myself, I have no obligation to do so. For if I refuse, the right of government is not frustrated, since others may be found who will not refuse to carry out the order, and I am not refusing to do anything I have agreed to do … Nor is [a subject] obliged to kill a parent, whether innocent or guilty and rightly condemned; since there are others who will do it, if ordered to do so, and a son may prefer to die rather than live in infamy and loathing. There are other cases in which commands are dishonorable for some people to carry out but not for others; the former are right to refuse to do them but not the latter; and this will be without prejudice to the absolute right given to the ruler. For in no case is his right of killing those who refuse obedience excluded.43

What is significant about this case for the purposes of this discussion? To begin, it is yet another example which the standard interpretation fails namely, those whose job it is to actually carry out punishment sentences. In the “Review and Conclusion” (¶10) Hobbes describes executioners as those “in whom want of means, contempt of honour, and hardness of heart concurred to make them sue for such an office.” Hobbes seems to presume that there is something inherently dishonorable about being an executioner, but he does not explain what that might be. 43 De Cive, 6.13. There is a related passage in Behemoth in which he considers the question “What if he [the King] command me with my own hands to execute my father, in case he should be condemned to die by law?” (p. 51). Hobbes answers that it “is a case that need not be put” because no King or tyrant would be so cruel as to command such a thing. Interestingly, he also suggests that such a command might actually not have the status of a law; this suggestion is absent from the De Cive passage.

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to explain. Hobbes’s recognition that the son could legitimately prefer death to dishonor serves as a counterexample to the key premise behind the conceptual and psychological impossibility arguments for the right of self-defense, namely, the premise that death is always the worst evil. Second, Hobbes invokes one of the principles of covenants presented here to explain why the son is not obligated to obey – that is, the necessity principle. The primary reason that the son is not obligated to carry out a command to kill his father is that his refusal to obey does not threaten the right of government. As long as someone else can be found to carry out the command, the son’s refusal has no effect on the right or power of the sovereign. It might be possible to apply the other two principles to this case. It seems that the son cannot be reasonably expected to obey such a command; after all, he would rather die than do it. And it seems many children would feel that way about their parents. Therefore, the social contractors cannot reasonably expect all their fellow contractors to comply. In addition, requiring the son to kill his father might be requiring him to do something that would contradict the reason why people institute the sovereign (living a life one is “not weary of”). Obeying the command would cause the son to “live in infamy and loathing,” and arguably this violates the fidelity principle. While these explanations are relatively plausible, there is nothing specific in the text to warrant them. So, although they are compatible with his account, they should not be attributed to Hobbes in any straightforward way. Hobbes’s claim that there might be a liberty to disobey dishonorable commands is a direct application of the method he uses to “measure” the obligations and liberties of subjects. Whether one has an obligation to obey or a liberty to disobey is supposed to be derived from the fundamental purpose of the institution of sovereign – namely, the peace and safety of the subjects. If the sovereign commands a subject to do something dishonorable, whether or not he has an obligation to obey depends on whether his refusal would frustrate the end of sovereignty. Hobbes is saying that whether or not the son is obligated to obey depends on whether his obedience undermines the purpose of the sovereign. Since his refusal does not affect the right or power of the sovereign to keep the peace, he can refuse without injustice. Hobbes may have thought there could be situations in which one would in fact be obligated to carry out a dishonorable command, but he gives no examples of such cases. There are a number of obvious questions that are likely to present themselves at this point:  who gets to decide what frustrates the end for

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which sovereignty was ordained? Is it the sovereign? Or, is it the individual who wishes to disobey? Are there objective criteria for making this determination? Faced with these questions, Hobbes has a couple of responses. First, the determination is not to be assessed solely by appeal to the likely consequences of particular acts carried out by particular individuals. For Hobbes, the proper question is:  would the ability of the sovereign to effectively exercise power be threatened if everyone could refuse to obey commands of this kind? In the original passage, Hobbes says that the obligation that an individual subject may have to obey a dishonorable command depends on our collective intention in creating a commonwealth; “when, therefore, our refusal to obey frustrates the end for which the sovereignty was ordained, then there is no liberty to refuse, otherwise there is” (quoted above; emphasis added). Recall from the last chapter that each subject only retains those rights which everyone can retain consistent with the effective exercise of sovereign authority; I called this the “universality requirement.” Second, in Chapter 27 of Leviathan, “Of Crimes, Excuses, and Extenuations,” Hobbes addresses this question, albeit indirectly, when he asks us to suppose the sovereign were to legalize perjury: If that man or assembly that hath the sovereign power disclaim any right essential to the sovereignty, whereby there accrueth to the subject any liberty inconsistent with the sovereign power (that is to say, with the very being of the commonwealth), he who exercises such a liberty sins, and acts contrary to the duty of a subject. For all subjects ought to know what is and is not inconsistent with the right of the commonwealth (because the commonwealth was instituted by the individual subjects, for their well-being, and by the consent of each one), and to know that that liberty (insofar as it is inconsistent with the sovereignty) was granted by the ignorance of the one who granted it, because he did not see the dangers consequent upon it to the commonwealth.44

One of the sovereign’s essential rights is adjudicating disputes. Hobbes makes it clear that perjury is a very serious crime because it undermines the ability of the courts to do their job and “renders all judgments useless.”45 If the sovereign issued a command repealing the law against perjury, then a liberty would “accrue to a subject [which was] inconsistent with the sovereign power.” Hobbes’s claim is that the subject should refrain from exercising this supposed liberty and should instead treat this   Leviathan (Latin edition), 27.28; also see Leviathan, 21.20. Leviathan, 27.38.

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command as deriving from the ignorance of the lawmaker. It would be, in Hobbes’s words, a “sin” and “contrary to the duty of a subject” actually to exercise this liberty. In this passage Hobbes asserts that subjects “ought to know” what kinds of obedience are necessary for the maintenance of the commonwealth, and that they should therefore be able to determine whether some particular liberty has only been granted as a result of ignorance on the part of the sovereign. This does not seem to be a moral “ought.” Rather, the standard is one of reasonableness; it is an epistemic standard according to which subjects who are reasoning well will come to the fairly obvious conclusions. After all, as the authors of the social contract, they should be able to determine what is required to achieve its basic goals; and such determinations should call for only a short chain of basic reasoning.46 This makes Hobbes’s vision of the structure of education in the commonwealth quite relevant. According to his plan, subjects will not only be taught obedience, but also the “grounds for their obedience”; that is, they will be taught the underlying principles and justifications that are supposed to ground their obligations. So, even though there will be cases where a determination must be made about whether there is a right to disobey, subjects who are educated in the way Hobbes suggests would have the capacity to reason well about such things – at least most of the time. Thus, in a well-ordered commonwealth governed by a wise sovereign, we can expect that subjects will negotiate the matter at hand relatively well. Notice, however, that this possibility falls within the scope of the duties of sovereigns. It is up to sovereigns to ensure that subjects will be able to make these determinations, and that they do this by establishing the kind of educational structure Hobbes lays out. Perhaps there is a fact of the matter about which liberties are inconsistent with the effective exercise of sovereignty. However, even if this is the case, it is still up to the subject to judge whether a particular liberty that has been granted is, as a matter of fact, permissible. To put the point another way, the subject has no judgment to act on other than her own. She is not permitted to judge on the basis of self-interested reasons, of course, and she is required to judge whether everyone could retain the right to disobey in such circumstances. But this judgment is necessarily subjective. It is obvious, however, that if everyone was permitted to shirk 46

David Gauthier offers a different interpretation; he argues that the sovereign must be the one to decide whether or not any particular kind of obedience is necessary for the peace and safety of the commonwealth. Thus, Gauthier concludes that “subjects can never take advantage of the exemption Hobbes offers them” (Logic of Leviathan, 152, emphasis added).

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their taxes, then the sovereign could not perform the duties for which he was instituted, namely procuring our peace and safety. Thus, there can be no retained right to shirk taxes, because such a right would clearly frustrate the purpose of government. However, there are examples of disobedience that do not frustrate the end of sovereignty that also seem quite plausible. While perjury is prohibited because it frustrates the purposes of the court, the refusal to testify against oneself or a loved one does no such thing because such testimony is not likely to be believed – making it useless in court. Similarly, a son can refuse to execute his father because someone else can be found to carry out the order in his place, leaving the power of the sovereign to punish intact. Every subject can refuse to accuse himself or disobey a command to commit patricide without “frustrating the end of sovereignty.” However, there might be cases where the determination is less clear. There might be commands where one cannot straightforwardly determine if universal disobedience would frustrate the sovereign in providing for peace and safety. Perhaps in these cases there is no fact of the matter. So, what is the subject to do in these cases? In such cases, she must be her own judge. Hobbes does not seem to recognize this as a problem. He simply assumes that (properly educated) subjects will know what kinds of liberties can be awarded to all (or at least this is the impression he gives in his perjury example). Given his account of civic education, he is arguably entitled to this assumption. In Hobbes’s account, it must be the case that these determinations are made on a caseby-case basis according to the subjective reasoning of individual subjects. However, given the resources in his theory, there are reasons to think that this does not pose a genuine problem for his account. The right to disobey dangerous commands In Leviathan Chapter 21 ¶16 (quoted in full above), Hobbes considers the obligations subjects might have in wartime, specifically, when, and under what conditions, they are obligated to go to battle at the command of the sovereign.47 These liberties are “measured” in the following way: (1) a subject can avoid conscription without injustice if he pays another to take his place; (2) if a drafted subject flees the battlefield out of fear, he is dishonorable but not unjust; and (3), if all are needed to fight, then the excuse is lost. 47

Hobbes focuses here on duties subjects might have to help with the external defense of their country, but it will also be necessary for subjects to assist in keeping internal peace. Being a law enforcement officer presumably is a dangerous office. Apprehending criminals and bringing them to justice had its risks, especially since subjects have a right to resist punishment.

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The necessity principle underwrites the whole of this discussion. In fact, this is one of the places that the necessity principle is most noticeably at work. There is no right to refuse when “the defence of the commonwealth requireth at once the help of all that are able to bear arms,” because “otherwise the institution of the commonwealth … was in vain.” If the protection of the state requires the help of all, all are obliged to come to its service. Those who cannot “bear arms” are obligated to “contribute something, however little, to victory.”48 The refusal to obey in such circumstances clearly interferes with the ability of the sovereign to do the job for which he was instituted, “namely, [provide for] the peace of the subjects within themselves, and their defense against a common enemy.”49 Obedience in this case is necessary, and those who refuse do so without right. On the other hand, if obedience is not necessary – that is, if the sovereign’s ability to provide for the defense of the commonwealth is unaffected by the refusal – then there is a liberty to disobey. As long as he provides a substitute to take his place in battle, the conscripted soldier “deserteth not the service of the commonwealth.” Such disobedience is morally permissible because it does not affect the sovereign’s ability to provide for the common defense. The Hobbesian sovereign, of course, has the absolute right to raise an army of whatever size he wants, and this means he can issue conscription orders for a certain number of men. So, suppose that the conscription orders issued by the king require your locality to provide 1,000 soldiers for the king’s service; further, suppose that you have been chosen to serve. If you have the means to pay another (who presumably was not so ordered), then the 1,000 men that are required by the conscription orders will still be provided. Regardless of what your reasons happen to be for refusing to fight, be it fear or something else, by providing an equally capable substitute to serve in your place you have not deserted the service of the commonwealth. In fact, your action constitutes a sort of service-by-proxy. Hobbes seems to think that subjects are fungible (maybe because they are all equally untrained); your refusal, then, is of no consequence at all to the sovereign’s ability to summon whatever forces he deems necessary to provide for the common defense. Of course, Hobbes is not encouraging such behavior; indeed, he reminds the reader that the “sovereign have right enough to punish his refusal with death.” The liberty a subject might have to avoid battle is importantly different from the liberty a subject has, for example, to refuse to accuse himself Leviathan (Latin edition), 21.24.

48

Leviathan, 21.10 (quoted in full above).

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without assurance of a pardon. In the case of self-incrimination, the liberty is unconditional; that is, there are no possible circumstances in which subjects can be said to be obligated to accuse themselves without assurance of a pardon. In contrast, the liberty to avoid battle is conditional; it only obtains when it will have no effect on the power of the sovereign. Moreover, not every subject can avail himself of this kind of liberty by arranging the necessary conditions. Only those of considerable means will be able to benefit from the liberty to substitute another person in their place. Rich and poor alike share in the unconditional liberties of subjects, but the poor may be excluded from exercising this conditional liberty.50 Hobbes also provides a moral exemption for desertion in certain cases. When those who are “natural[ly] timorous,” namely, women and “men of feminine courage” flee the battlefield, “they do it not out of treachery, but fear, [so] they are not esteemed to do it unjustly, but dishonourably.” Deserting the battlefield clearly counts as a case of disobedience to the sovereign’s command, but Hobbes only condemns it as dishonourable, not as unjust. Generally unwilling to lay blame on people who act out of fear for their lives, Hobbes refuses to call fleeing the battlefield out of fear an injustice. Of course, “if the help of all are needed,” Hobbes removes this excuse. His real concern is people avoiding battle out of “treachery.” The reasons people have for avoiding conscription are crucial to figuring out whether their actions constitute injustices. For example, Hobbes does not take “reasons of conscience” to be acceptable grounds for avoiding conscription; subjects are not excused if they desert because they think that a particular war is unjust or foolish. The sovereign decides when war is appropriate and the subject must defer. If a person who does not fear for his life but believes the war to be unjust deserts, his desertion is an injustice. But, so long as the reasons for avoiding battle are apolitical, Hobbes does not see such acts of disobedience – in themselves – as a threat to the stability of the sovereign power. This particular aspect of Hobbes’s account, thus, has a troubling side. It seems to depend, at least in part, on a class of poor people who are driven by necessity to perform the dangerous duties necessary to keep everyone else safe. If the social contract is to fulfill its purpose of preserving life and security for the general public, it will require that some people be willing to lay down their lives for the security of the political community. This requirement, in turn, seems likely to yield a system of private transactions where those who are economically better off will be able to buy their way out of military service. So there must exist significant economic inequalities and vulnerabilities in order for some to be induced to accept a wage in exchange for a willingness to risk serious emotional and physical harm (on the presumption that natural risk-takers will not make up the whole of the armed forces). Of course, this is not a unique problem for Hobbes; indeed, I would argue that it is a problem for any modern state, ours being no exception at all.

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Notice that while it is clear how the provision of a substitute soldier can be accommodated within Hobbes’s overall framework, the claim that avoiding battle out of fear is not unjust sits less easily with the sovereign’s ability to raise and maintain whatever forces he deems necessary. In fact, in the Latin edition of Leviathan, Hobbes admits that “something is to be subtracted from the supreme right because of the natural timidity of certain men.”51 I am thus inclined to read the “allowance” here as indicating that the sovereign should prepare and compensate for the foreseeable and inevitable losses that are likely to come about because of the natural fear of death. On the assumption that the sovereign will compensate for this natural timorousness of men, the fact that some people are likely to defect on the battlefield does not necessarily or even likely “frustrate the end for which the sovereignty was ordained.” But again, his real concern is not with individual acts of desertion motivated by fear, but with organized resistance. The genuine threat to civil society comes from the organized resistance of a group of subjects acting in concert, especially if they are motivated by a desire (or sense of entitlement) to overthrow the sovereign. When we enter civil society, we give up the right to join together to attempt to depose the ruling powers. It is necessary that we transfer this right and obligate ourselves to obey the sovereign’s commands. But an individual draft-dodger or deserter does not threaten political stability, and so can be excused without consequence. The soldier contract Hobbes contrasts the moral obligations of the soldier, who voluntarily enlists or accepts money for joining, with the obligations of the ordinary subject conscripted to fight:  “he that enrolleth himself a soldier, or taken imprest money, taketh away the excuse of a timorous nature, and is obliged, not only to go to battle, but also not to run away from it without his captain’s leave.” Unlike the conscript, the soldier cannot flee the battlefield without injustice. If the soldier deserts, then he has committed an injustice. And, by Hobbes’s account, the only way in which he could have committed an injustice is if he did indeed have some obligation not to desert. According to Hobbes, all obligations are the result of a covenant, so the soldier must have made a covenant in which he agreed not to flee the battlefield but to stay until his captain gave the order to retreat. The soldier contract was discussed in the previous chapter, but it deserves closer examination. Hobbes says that soldiers have an obligation   Leviathan (Latin edition), 21.16.

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to remain in battle until they have their captain’s permission to leave. Therefore, the covenant that established this obligation must have involved the soldier saying something like, “I hereby obligate myself not to flee the battlefield without my captain’s leave.” For Hobbes, all obligations arise from a transfer of rights. So, what right does the soldier thereby transfer with such a statement? One way to understand this is to say that, in obligating himself to stay in a battle until his captain gives him permission to leave, the soldier obligates himself not to act on his own judgment of an imminent, deadly threat. That is, he transfers his right to act on his own assessment of the threat to his life. Even if the soldier is in what he regards as a life-threatening situation, he is obligated to remain unless his captain gives him leave to retreat. Indeed, presumably if a captain sends an enlisted soldier into what that soldier sees as a suicide mission, that soldier is obligated to obey. He has obligated himself to refrain from resisting death, or, to put it in Hobbesian language, he is obligated to “abandon his own preservation.”52 This is exactly what the abandonment of the right of self-defense looks like. The Hobbesian right of self-defense is the right to do X if not doing X will lead to your immediate death, or the right to not do X, if doing X will lead to your immediate death. And, in general, the person whose life is in danger is the one who gets to judge the seriousness of the threat, specifically, whether it is immediate and deadly. Hobbes is quite clear that the right of self-defense entails the right to private judgment of deadly threats. But this is precisely what the subject gives up when he becomes a soldier. The soldier must act according to the captain’s judgment of the danger. And if he disagrees with the captain’s assessment of the danger, he may not follow his own judgment on the matter; this is one way in which the soldier differs from the drafted subject. Moreover, even if the captain judges the threat to be the gravest possible, the soldier must still follow the captain’s command (the soldier does not have a right to disobey, even to avoid what is judged by all to be a suicide mission). When the draftee flees out of fear for his life, he has not committed an injustice. By contrast, the soldier, whose fear of death causes him to desert, does, on Hobbes’s account, commit an injustice. Positing that the soldier gives up his right of self-defense is the only way to make sense of the claim that it is unjust for him to flee the battlefield without his captain’s leave. Although Hobbes does not explicitly draw this conclusion, it follows necessarily from what is said.53 Leviathan, 27.25. Hobbes slightly amends his picture in the “Review and Conclusion,” stipulating conditions under which a soldier “may lawfully submit himself to a new master.” The soldier’s obligation to

52 53

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Indeed, the Hobbesian political system relies on the “soldier contract” and the existence of a sufficient number of people willing to risk their lives. Without soldiers, the Hobbesian commonwealth would lack protection from external threats. It is essential to his system that a certain proportion of the population show the virtue of courage. It seems unfair to infer that Hobbes is saying that soldiers are irrational or that the covenants they make upon joining the army are invalid. But on the standard reading, the soldier contract cannot be valid. So, I argue that the existence of this contract proves that Hobbes did see the right of self-defense as an alienable right, which thereby undermines one of the foundations of the standard reading of Hobbes on the right of self-defense. He did recognize the validity of agreements to put oneself in harm’s way. The obligation of the ordinary citizen derives from the original political covenant. But the soldier makes a new covenant when he joins the army. In the original political covenant, the right of self-defense cannot be alienated because of the specific features of this covenant in particular, not covenants in general. The soldier contract lacks these features and so makes room for the transfer of the right of self-defense. We can reasonably expect the soldier to abide by his agreement; he knew what the position entailed. Unlike the social contract, in which contractors are reasoning about strangers from general principles of human nature, specific knowledge is available in the soldier contract about the person who is trying to give up his right of self-defense (i.e., the person who is promising to stand firm in the face of death). Unlike in the social contract, where giving up the right of selfdefense would contradict the purpose of the contract, the purpose of the soldier contract is not first and foremost the preservation of the soldier’s life, or even his protection from harm. Finally, unlike in the social contract, where it is unnecessary to give up the right of self-defense, in the soldier contract the renunciation of this right is essential to achieving the purpose of the covenant. The army could not function properly if every individual soldier had the right to act according to his own calculations of danger. The institution of sovereignty is not threatened by the retention of the right of self-defense (and its accompanying right to stay and fight only holds “as long as the old one [sovereign] keeps the field and giveth him means of subsistence, either in his armies or garrisons. For in this case he cannot complain of want of protection and means to live as a soldier” (Leviathan, “Review and Conclusion,” 6). While Hobbes seems more sensitive here to the plight of the soldier, this addition does not affect my basic point. As long as the soldier’s sovereign “keeps the field,” he does not have the right to act on his own judgment about how best to stay alive.

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private judgment of danger), but the institution of the army would be. So the three principles explain not only why the right of self-defense is retained in the commonwealth, but also how and why it has to be given up by those joining the military. It is only with reference to these principles that one can make sense of Hobbes’s claims about the obligations of soldiers. Considering the contrast between the rights of conscripts and obligations of soldiers reveals two recommendations for how ruling sovereigns should wage war. First, given that “natural timorousness” is inescapable, there is always the possibility for conflict between the “execution of dangerous offices” that the state requires and the levels of risks subjects are willing to accept. Thus, the sovereign has reason to inculcate values that go beyond the narrow self-interest of the members of the general public, for example, patriotic or religious duties. If subjects believe in the divine sanction of a particular war or that salvation demands acting in accordance with the demands of one’s king, we can expect them to make every attempt to obey commands to help defend the commonwealth. In line with this suggestion, S. A. Lloyd, who argues that Hobbes grounds political obligation in subjects’ transcendent interests, says, “in cases where the sovereign has commanded him to bear arms to defend the commonwealth [the demands of salvation] give [every subject] a transcendent interest in defending the commonwealth.”54 Second, a wise sovereign will wage war only when absolutely necessary (i.e., in defense) and will maintain only the forces needed for these purposes. In general, ordinary subjects are unlikely to make particularly good soldiers, not only are they untrained but (if the law is doing its job!) they are unaccustomed to using violence to harm one another or defend themselves, or to overcoming their natural fear of death. Their lives as peaceful subjects will ill-prepare them for the kinds of dispositions and behaviors characteristic of good warriors. The wise Hobbesian sovereign will call on Hobbesian subjects to execute dangerous offices as little as possible. I began this chapter by acknowledging that Hobbes’s discussion of the corollaries to the right of self-defense, or what he calls “the true liberties of subjects,” are difficult to understand as they are presented in the text. I then argued that the standard interpretive frameworks about the right of self-defense fail to make sense of Hobbes’s account. If the right of selfdefense depends on a strong premise about the fear of death (i.e., that 54

  Lloyd, Ideals as Interests, 154.

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death is always the worst evil), then Hobbes’s arguments for the broad rights to resist punishment and the special case of the soldier contract are mysterious and unjustifiable. I have constructed arguments for these claims with nothing beyond principles espoused by Hobbes: specifically, the reasonable expectations principle, the fidelity principle, and the necessity principle. Together these fashion what I take to be the most accurate (closest to the text) and most plausible (in terms of narrative coherence) account of Hobbes’s theory of resistance rights.

Ch apter 3

Limited obedience to an unlimited sovereign

In the previous two chapters I made the case for a new interpretation of Hobbes’s right of self-defense and its corollaries, the true liberties of subjects. Together, these form a coherent doctrine of retained rights – cases wherein subjects retain the right to disobey or resist the commands of the sovereign. The relationship between Hobbes’s theory of resistance rights and his claim that subjects authorize an absolute sovereign can now be examined. At first glance, it seems odd, or perhaps blatantly inconsistent, that a staunch absolutist such as Hobbes would be willing to allow such a broad spectrum of disobedience. As I noted in the Introduction, Jean Hampton famously argues that Hobbes’s doctrine of retained rights is, in effect, the Achilles heel of his theory. Hampton’s criticism of Hobbes focuses precisely on the supposed incompatibility between the rights he affords subjects, on the one hand, and his picture of, and justification for, absolute sovereignty, on the other. There is, thus, a genuine puzzle about how to understand the relationship between the conditional nature of Hobbes’s account of political obligation and the unconditional, or absolute, nature of the Hobbesian sovereign. However, I argue in this chapter that this puzzle has a solution, and that Hobbes’s political philosophy exhibits a unity and coherence that has heretofore been unrecognized. While the rights of resistance are famously a problem for Hobbes because of their connection to the issue of rebellion, the conceptual problem about absolutism takes precedence. After all, if it is impossible to reconcile his arguments for an absolute sovereign with his arguments for political disobedience, then the question of rebellion becomes a moot point  – for Hobbes’s project would not even get off the ground. This being the case, I take up the issue of rebellion in the next chapter after dispelling the worry that his theory is flatly inconsistent. In order to understand the Hobbesian notion of sovereign authority and to evaluate the objections raised against it, it is necessary to address the following set of related questions: 89

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(1) What are people obligating themselves to do when they institute a sovereign? (2)  What is the role of private judgment in the commonwealth? (3) Is there a principled distinction between cases in which subjects are obligated to obey and cases in which they are not? Correlatively, who gets to make this decision, the sovereign or the subjects themselves? (4) W hat is the relationship between Hobbes’s arguments for political obligation and his claims about when it is justifiable to disobey? And more specifically, is Hobbes’s doctrine of retained rights consistent with his justification of absolute sovereignty? In this chapter I introduce a new reading of the Hobbesian idea of submission to a political authority and argue that this new reading offers the most satisfactory answer to all of these questions. I employ the conceptual machinery that was developed by Joseph Raz to analyze the concept of authority, in a way that makes Hobbes’s strategy more perspicuous. I argue that Hobbes’s notion of political authority is best understood along Razian lines: in entering the social contract, people agree to treat the sovereign’s commands as what Raz calls “exclusionary reasons.” This Razian model enables the contemporary reader to see Hobbes’s theory of resistance rights in a new light, treating instances of justifiable disobedience as cases in which subjects have a nonexcludable first-order reason for action. This interpretation of Hobbes allows us to see how retained rights can be consistent with the idea of absolute sovereignty. On this reading, it is clear that (1) Hobbes’s commitment to uniting enlightened self-interest with political obligation requires that his theory includes retained rights; and (2), his particular diagnosis of the causes of civil unrest determines the content of those rights. In laying out this interpretation of Hobbes’s arguments, it is important to begin with a quick review of the interpretive difficulties that are involved in understanding Hobbes’s notion of the social contract, which both establishes the sovereign and obligates subjects to obey. With this background in hand, I will then turn to address the most significant criticism of Hobbes’s argument for absolute sovereign authority, namely what I call “Hampton’s objection.” According to Hampton, Hobbes’s insistence that absolute sovereignty requires subjects to surrender their private judgments contradicts Hobbes’s own claim that subjects may be justified in acting on their private judgments when they disobey the sovereign. This objection is very powerful, but, as I will show, it can be answered.

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Hobbe s’s s o c i a l c on t r ac t : s om e probl e m s of i n t e r pr e tat ion According to Hobbes, establishing a commonwealth and instituting a common power is the only solution to the problems that necessarily exist in the state of nature. In a famous passage, Hobbes describes the social contract that creates this common power – the sovereign. Upon entering into the social contract, people agree to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will, which is as much as to say, to appoint one man or assembly of men to bear their person, and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act, or cause to be acted, in those things which concern the common peace and safety, and therein to submit their wills, every one to his will, and their judgments, to his judgment … [It is] as if every man should say to every man I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner.1

According to this passage, all people must “submit” all their wills and judgments to the will and judgment of the sovereign; each person gives up his “right of governing” himself to the sovereign, on the condition that everyone else does so as well. In this case, moreover, every person “authorizes” the sovereign and “owns” all of his actions, or more precisely, all of his actions that concern the common peace and safety – and, presumably, these are all of the sovereign’s actions qua sovereign. Notice that Hobbes’s phrasing here is categorical: the social contract requires that all people submit all their wills and judgments and authorize and own all of the sovereign’s actions. It is not clear how to interpret this metaphorical language, and this passage has puzzled many of Hobbes’s readers. How does a person submit her will and judgment to the will and judgment of another? What is involved in giving up one’s right of self-governance? What does Hobbes mean to emphasize by saying that every person “owns” and “acknowledges himself to be the author” of the sovereign’s actions? In short, what exactly is each person covenanting to do in the social contract? There are two different, and perhaps related, aspects to Hobbes’s sovereign-making covenant: first, his concepts of authorization, authorship and ownership; second, his idea that people give up their rights and surrender   Leviathan, 17.13.

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their judgments. I discuss each of these in turn. Because this is the passage in which Hobbes describes the agreements subjects make with each other to institute a sovereign, it is natural to first ask: what kind of sovereign is being instituted and what kinds of obligations are being undertaken? One might be tempted to read this passage as an endorsement of an unconditional claim about obligation, authorization, and ownership – each subject is obligated to obey all of the sovereign’s commands and, or perhaps because, each subject authorizes and owns all of the sovereign’s actions. However tempting as this interpretation might be, I argue that we should reject it. The unconditional authorization of the sovereign does not require subjects to undertake unconditional obligations of obedience. Hobbes distinguishes between the scope of a sovereign’s power to issue commands and the scope of subjects’ obligations. Subjects institute a sovereign and invest him with the authority and power to command anything he wants, but that does not entail that they are obligated to obey all of those commands. But before addressing the scope of the authorization of the Hobbesian sovereign, I pause briefly to discuss the notion of authorization itself. Authorization, authorship, and ownership The terms authorization and authorize have a number of different, though closely related meanings. In describing the social contract, Hobbes uses the term authorize to mean “own, and acknowledge himself to be author of.” At this point, Hobbes invokes his distinction between authors and actors. An actor is a person whose actions are owned by somebody else, and an author is a person who has responsibility for (or owns) some action – either her own action or the action of an actor. When a person acts for herself, she is both actor and author. In contrast, when Mel Gibson plays Hamlet and utters the phrase “To be or not to be, that is the question,” he is the actor but not the author of these words: these words are owned by Shakespeare, who is their author. While Hobbes himself uses the relationship between a playwright and a stage actor in order to illustrate the differences between authors and actors, this example does not capture the intricacies of his notion of authorization. In particular, it does not capture the way in which Hobbes connects authorization with authority. Hobbes defines authority (which also gets translated as “warrant”) as “a right of doing any act” and “done by authority” as “done by commission, or license from him whose right it

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is.”2 A person becomes an actor when he or she is authorized by an author. The actions of the actor are then “done by the authority” of the author, meaning that they are “done by commission, or license from him whose right it is,” that is, the author. This right can be understood as a kind of “normative power.” Therefore, authorization entails the transfer of a normative power. Suppose a brother grants his sister power of attorney so that she can manage his investments while he is out of the country. When the brother authorizes his sister, he is the author of this action and she is the actor; today we use the terms principal (the brother) and agent (his sister) to capture this same distinction. In this transaction, the brother had the right and (normative) power to invest his money as he pleased, but he transferred that right and (normative) power to his sister. And so, the investments she makes while he is gone are “done by [his] authority.” More importantly, as long as she acts within the scope of her authority, her brother has no right to complain about the investments she chooses. He might think she chooses to invest foolishly, but he has no legal grounds for complaint. If a person authorizes another person to act on his behalf, then the second person not only has the authority to act for the first person and speak in his voice, but the first person thereby owns the actions of the second person. That is, the first person can become obligated by the actions that are carried out by the second person. Returning to our investment example, if the sister buys stocks under her brother’s authorization, he owns the stock (not her) and he is obligated to make the payment (not her). Moreover, if the deal goes sour, it is his responsibility to pay off the debt, not hers. Hobbes makes this clear saying, “when the actor maketh a covenant by authority, he bindeth thereby the author, no less than if he had made it himself, and no less subjecteth him to all the consequences of the same.”3 In Hobbes’s framework, authorizing a political authority has the same structural features as authorizing someone using a power of attorney. For Hobbes, every party to the social contract agrees to see herself as the author of the sovereign’s actions. The sovereign is an actor, and the subjects are the authors of his behavior. This notion of authorization explains how the sovereign acquires authority. Being authorized, the sovereign has the right to act in the name of another – each of the authors. Thus, the sovereign has authority, or warrant, and his actions are done by the authority of each of his subjects. Leviathan, 16.4.

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Hobbes’s notion of authorization thus serves three key functions. First, it explains the unity of the political order:  according to Hobbes, the sovereign represents and so bears the person of the commonwealth. A multitude of men is made into one person (the commonwealth) in virtue of being represented by a unified representer (the sovereign). In this way, many wills are made into one.4 Second, this notion of authorization explains how the sovereign acquires authority – the subjects each acknowledge themselves to be the authors of his actions; therefore each subject authorizes the sovereign to act on his or her behalf. In sovereignty by institution, subjects constitute the sovereign; conversely, in sovereignty by acquisition, subjects merely recognize him as such. Third, and crucially, this notion makes the subjects responsible for the actions of the sovereign. If the subjects are the authors of the sovereign’s behavior and the sovereign is simply an actor, then the subjects have no right to complain because they themselves authorized the sovereign to act. But this leaves us with a question: how does the authorization of the Hobbesian sovereign entail an obligation to obey on the part of his subjects? There seems to be a clear conceptual link between authorization and obligation. A subject is obligated to follow the sovereign’s commands because the subject, as the author, owns those commands; the subject has authorized them by giving the sovereign the authority to make them. The key element of authorization for Hobbes is the transfer of normative power. Returning to the example of modern-day power of attorney, if the brother only authorizes his sister to manage his investments, she has no general authority over him. The normative powers he has transferred to her are quite limited and specific. In contrast, according to Hobbes, the sovereign is authorized to rule, to govern, and put us under obligations with his commands. There is obviously a wider scope of authority in this case. But what, precisely, is the normative power that is transferred in the social contract? On one interpretation, there must be some sense in which what is transferred is the power to rule or command. The argument for this claim runs as follows. In the state of nature, each person has the complete power of self-command (perhaps this is one way to understand the right of nature). Authorizing the sovereign requires that each subject gives him (the sovereign) her power to command herself so that, in turn, the sovereign can command everyone, thereby ensuring the peace and safety of all. But the sovereign’s power to command, and hence his ability to   Leviathan, 16.13–14.

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rule, requires the power to bind his subjects to him. He must be able to obligate the subjects in order to carry out the functions for which he was authorized. On this interpretation, authorization suffices for obligation: if one has authorized the sovereign to command “X,” then one is obligated to obey the sovereign’s command to carry out or enforce “X.” Thus, it seems that authorization necessarily entails obligation, especially when it comes to the authorization of political rulers. However, I will argue that Hobbes’s notions of authorization and obligation are not linked in this way – though they are intimately related. While the sovereign is authorized to issue any command, the reason for that authorization limits the scope of the subjects’ obligations to obey. Authorization without qualification Unlike the modern example in which a brother authorizes his sister to manage his investments, the authorization of the sovereign is supposed to be unqualified. That is, the subjects authorize and own all of his actions. Hobbes’s primary goal in making the authorization of the sovereign unqualified is to remove any limits on the right and power of the sovereign. The subject’s authorization of the sovereign is thus unlimited in its scope: each subject unconditionally authorizes the sovereign in the sense that no subject puts any limits on what the sovereign can do. As Hobbes describes, “owning all the actions [of] the representer doth … give him authority without stint; otherwise … they limit him.”5 In the power of attorney example, when the brother authorizes his sister to manage his investments, the authorization is conditional  – there are firm limits to what she can do and she would face consequences for violating the limits. If she used her brother’s money to buy a car for herself, then she has acted outside the scope of her authority. Not only does the brother not own the car, but his sister could now be subject to legal sanctions. The Hobbesian sovereign, by contrast, is authorized without qualification. The most important implication of the unqualified authorization is that it serves to completely insulate the sovereign from blame, specifically, accusations of and punishments for injustice. Subjects should treat the sovereign’s actions as their own, as authorized by them, and as a result, they have no grounds for complaint against the sovereign. Ideally, subjects should regard themselves as sanctioning and approving the sovereign’s decisions; yet, at the very least, the concepts of authorizing and owning take away any ground for allegations of injustice against the sovereign.   Leviathan, 16.14.

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This means that subjects are responsible for the sovereign’s actions, and as such cannot accuse him of injury, punish him, or worst of all, put him to death. Hobbes employs the notion of complete authorization and ownership in this way when he argues, [B]ecause every subject is by this institution author of all the actions and judgments of the sovereign instituted, it follows that whatsoever he doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice. For he that doth anything by authority from another doth therein no injury to him by whose authority he acteth; but by this institution of a commonwealth every particular man is author of all the sovereign doth; and consequently he that complaineth of injury from his sovereign complaineth of that whereof he himself is author, and therefore ought not to accuse any man but himself; no nor himself of injury, because to do injury to one’s self, is impossible. It is true that they that have sovereign power, may commit iniquity, but not injustice, or injury in the proper signification … [A]nd consequently to that which was said last, no man that hath sovereign power can justly be put to death, or otherwise in any manner by his subjects punished. For seeing every subject is author of the actions of his sovereign; he punisheth another for the actions committed by himself.6

Since the subject owns all of the sovereign’s actions in this sense, the sovereign has a complete grant of immunity. Moreover, if subjects only authorized the sovereign conditionally or only authorized him in part, he would not have this complete grant of immunity. However, given that he is unconditionally authorized to act as he sees fit, the Hobbesian sovereign has no straightforward duties to his subjects and he is not susceptible to any restraint by them. Of course, he is still bound by natural law, and so has some sorts of duties with regard to his subjects. The sovereign can violate natural law, but it is up to God to judge those violations. Natural law cannot provide grounds for the subjects to judge or punish the sovereign. At risk of overdetermining the issue, Hobbes also derives the complete immunity of sovereigns from his argument that the sovereign is not party to the contract, and so by definition cannot be charged with injustice. However, the idea that subjects own the actions of their ruler serves to shore up his claim that the sovereign’s decisions should be understood to be impervious to blame – even in the absence of any such additional argument.7 Leviathan, 18.6–7. Indeed, some commentators argue that the notion of authorization adds nothing of philosophical import to Hobbes’s analysis of the structure of sovereignty and the obligations of subjects (e.g., Hanna Pitkin, “Hobbes’s Concept of Representation II,” American Political Science Review 58, no. 4 (1964), 904–905.

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It is this aspect of authorization that leads to the authorization of an absolute sovereign:  a sovereign who enjoys a complete grant of immunity and total freedom from any and all limits, divisions, or powers above him. Thus, in De Cive, Hobbes defines absolute power as follows: The greatest power that men can transfer to a man … For anyone who has subjected his will to the will of the commonwealth on the terms that it may do with impunity whatever it chooses – make laws, judge disputes, inflict penalties, make use of everyone’s strength and wealth at its own discretion – and may do all of this by right, has surely given him the greatest power he could give.8

The absoluteness of the sovereign derives not only from the fact that he can rule entirely at his own discretion, but also, and more importantly, he does so “by right” and “with impunity.” This notion of absolute sovereignty as unlimited sovereignty follows from the idea that the sovereign’s authorization was unqualified. The sovereign cannot be punished because the subjects have given him “authority without stint”; that is, no limits or constraints have been placed on his authority. If there were limits on what the sovereign could command, then there would have to be a power above him to judge whether or not he violated one of the limits. The power above him could then punish him; but that greater power would then be sovereign. The Hobbesian sovereign is beholden to no other. On my reading, then, the word “all” in “I authorize all [the sovereign’s] actions” is best understood as indicating that the sovereign is being given authority “without stint.” With this language Hobbes ensures that the contract establishes an absolute sovereign by making his authorization unqualified and unconditional. There is a second sense in which the sovereign’s authority could be said to be unlimited or absolute: if he had all possible power – specifically, all possible power to issue commands that bind subjects. This sense of absolute is not operative in Hobbes’s theory. The Hobbesian sovereign does not have unlimited power in this sense as the subjects retain rights to disobey and resist  – and this point is key. There are limits on political obligation that are set by those rights that cannot be transferred. Thus, there clearly is a limit on the sovereign’s power to generate obligations for his subjects. In summary, there are two ways in which the authority of a Hobbesian sovereign could be said to be “absolute” or “unlimited.” According to the first, the sovereign’s authority is unlimited if there is no power above him to judge and punish his actions. According to the second, the sovereign is unlimited if there is no limit to the scope of his power, specifically his   De Cive, 6.13.

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power to issue commands that bind subjects. Hobbes is only entitled to say that the sovereign is absolute in the first sense, but he need say no more than that for his arguments to go through. Does “I authorize all his actions” mean “I am obligated to obey all his commands”? While there might be a general connection between authorization and obligation, the quote “I authorize all his actions” cannot mean “I am obligated to obey all his commands.” As discussed above, it might seem plausible to understand the authorization of a sovereign as entailing obligations on the subjects to obey. On this understanding, authorization becomes sufficient for obligation (or perhaps they are coextensive). However, there are two significant reasons for rejecting this understanding of the Hobbesian social contract. First, in Hobbes’s discussion of punishment, authorization and obligation are necessarily disconnected. He claims at one point that subjects are the authors of their own punishment and that they are punished by their own ­authority.9 But he also insists that subjects are not obligated to submit to their own punishment. If a subject has authorized the sovereign to punish her, yet she is free to resist or escape that punishment, then there must be some conceptual distance between the notions of authorization and obligation. Authorization – by itself – does not entail an obligation to obey. It seems that Hobbes may have been aware of this tension. After all, he suggests that the sovereign’s right to punish cannot be attributed to his authorization in the social contract. When he must account for the sovereign’s right to punish, he rests it squarely upon the sovereign’s original right of nature.10 Second, Hobbes consistently separates the obligation-conferring aspect of the social contract from the aspect of the social contract that grants an unlimited right to command. For Hobbes, there is a clear distinction between the question of what form sovereignty should take (absolute or nonabsolute) and the question of what obligations subjects need to undertake to institute a sovereign with that form. He makes this clearest in De Cive 6.13 where he states, “For it is one thing to say, I give you right to command whatever you wish, another to say, I will do whatever you command.” Hobbes does not use the language of authorization in De Cive; instead, he speaks of subjects granting the sovereign an unlimited command. But the point remains the same: there is a difference between granting the sovereign an unlimited command and undertaking an unconditional obligation to obey those commands. “I give you the right to command what you will” does not mean “I will do whatever you command.” And as noted Leviathan, 18.3.

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Leviathan, 28.2.

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above, Hobbes specifically emphasizes the absolute/unlimited nature of the sovereign; there are no limits on what the sovereign can command. In Leviathan, he puts this point in the language of authorization: Again, the consent of a subject to sovereign power, is contained in these words, I authorize, or take upon me, all his actions; in which there is no restriction at all, of his own former natural liberty: for by allowing him to kill me, I am not bound to kill myself when he commands me. It is one thing to say, kill me, or my fellow, if you please; another thing to say, I will kill myself, or my fellow. It followeth therefore, that … No man is bound by the words themselves, either to kill himself, or any other man.11

This passage is located in Hobbes’s discussion of the circumstances under which a subject has the liberty to disobey a command of the sovereign, which I discussed in the last chapter. According to Hobbes, the words, “I authorize, or take upon me, all his actions,” do not bind the subject to obey a command to kill himself or any other person. They are actually a source of the liberty to disobey (at least with regard to killing oneself). This makes it clear that Hobbes does not understand the authorization itself as generating unconditional obligations. Instead, he invokes it to emphasize the unrestricted nature of the sovereign’s power to command. Hobbes does not repeat these distinctions when he characterizes the sovereign-making covenant at Leviathan 17.13. According to that passage, the Hobbesian social contract seems to impose on subjects unconditional obligations to obey. But, as I argued at the beginning of this chapter, we should not understand Hobbes in this way.12 In sum, Hobbes’s claims about unconditional authorship and ownership should be read as claims that sovereignty needs to be absolute – that is, without stint – rather than as claims about the obligations of subjects. Thus, to authorize the sovereign without limitation is not to undertake an unlimited obligation to obey him. However, given that it is an essential goal of the social contract to establish political obligation, it is necessary to see how Hobbes intends this to be achieved. Leviathan, 21.14–15. From a present-day perspective, one might wonder whether Hobbes is really entitled to make such a strict separation between authorization and obligation. In our modern example, if the brother authorizes his sister to sign a lease for him, he is obligated to pay the bill when it comes. There seems intuitively to be some necessary conceptual link between the two notions. However, there are different ways to answer this. Perhaps the Hobbesian notion of authorization is unavoidably problematic, and he should have kept the initial characterization of the social contract he offered in De Cive. Commentators disagree about why Hobbes added the language of authorization to Leviathan. Baumgold, for example, argues that his reasons were political, not philosophical (Hobbes’s Political Theory, 48–55).

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I suggest that Hobbes accomplishes this goal with the other component of the contract, namely, the requirement that subjects give up their rights of self-governance and “reduce and submit their wills and judgments to the will and judgment of the sovereign.” Yet, with this claim in mind, two interpretive questions immediately arise:  (1) how does one make sense out of this metaphorical language?; and (2), what is the extent of the obligations subjects undertake when they give up their rights and submit their judgments? Once we understand what Hobbes has in mind when he uses phrases such as “submitting one’s judgment,” then the limits, or lack thereof, of the obligations will become clear. But first, we shall consider some initially plausible ways of understanding Hobbes’s metaphors. The “surrender of judgment model” The passage we have been considering – Leviathan 17.13 – is, unsurprisingly, a much discussed part of Hobbes’s texts, and it is usually interpreted as offering a so-called “surrender of judgment” model of authority. Hampton attributes such a model to Hobbes in part because it was the prevailing model of the time; “even the critics of absolute sovereignty in the seventeenth century had trouble conceiving of a ruler’s institution in anything but ‘surrender’ terms.”13 But the phrase “surrender of judgment” is far from self-evident. What exactly does it mean to surrender one’s judgment? The most literal reading of this passage implies the utter abandonment of individual decision-making and, thus, individual self-governance and autonomy.14 In this passage Hobbes seems to describe subjects as having no wills of their own, at least insofar as obedience to the sovereign is Hampton, Hobbes and the Social Contract Tradition, 122. See also A. P. Martinich, A Hobbes Dictionary (Oxford:  Blackwell, 1995), 38; and Howard Warrender, The Political Philosophy of Hobbes: His Theory of Obligation (Oxford: Clarendon Press, 1957), 104–110. 14 According to Hampton, Gauthier reads Hobbes in this way, suggesting that we interpret his sovereign-making covenant as requiring a kind of “conversion” on the part of the participants in the social contract. On Gauthier’s reading, when people authorize a ruler, they “literally lose their private ability to judge the rationality of action,” and instead simply substitute the sovereign’s judgment for their own. See Gauthier, Logic of Leviathan, 124 and Morals by Agreement (Oxford: Clarendon Press, 1986), chapter 6. And so the creation of the sovereign involves “quite literally the destruction of all reason but the sovereign’s own … the abandonment of the use of one’s own expected-utility calculation to judge the advisability of performing any action” (Hampton, Hobbes and the Social Contract Tradition, 209–210). Moreover, Hobbes is interpreted along these lines not only by Hobbes scholars but also by those in contemporary political philosophy interested in the concept of authority. See, for example, R. B. Friedman, “On the Concept of Authority in Political Philosophy” in Authority: Readings in Social and Political Theory, ed. Joseph Raz (New York University Press, 1990), 65–66. Though I am arguing that this is not the way Hobbes should be understood, I acknowledge that it is a natural reading of the text. 13

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concerned; the sovereign’s will and judgment simply takes the place of their own individual wills and judgments. The language of forfeiture of self-governance and the reduction or submission of individual will thus seems to imply that the commands of the sovereign require unconditional and unreflective obedience. On this understanding of the social contract, not only is there is no room for disobedience to the sovereign, there is no room for consideration on the part of the subjects at all. Obedience would be immediate; whether or not to obey would not even be a question that arises for subjects in a commonwealth. Instead, subjects would be like unthinking automatons following commands automatically. On this most literal interpretation, agreeing to “surrender one’s judgment” means agreeing to cease forming judgments of one’s own. However, this literal reading of the passage is misleading because it focuses on what happens in the minds of subjects. To be sure, Leviathan 17.13 does emphasize things that are internal to the subject:  judgments and wills are part of deliberative processes that happen in the minds of subjects. On this understanding of the surrender of judgment model, the notions of “submitting one’s will” and “giving up one’s right to govern oneself” imply that political authorization requires giving up the capacity to think for oneself. But, for Hobbes, the subject matter of authority is clearly the actions of subjects, rather than their beliefs.15 Moreover, Hobbes does not argue that subjects can, nor that they even need to, follow the sovereign in their beliefs. He adamantly proclaims that the law does not govern the beliefs of subjects: “But of Intentions, which never appear by any outward act, there is no place for human accusation.”16 It is an “Error … to extend the power of the law, which is the rule of actions only, to the very thoughts and consciences of men, by examination, and inquisition of what they hold, notwithstanding the conformity of their speech and actions.”17 The law is a “rule of action”; all the law requires is that people conform to its dictates in their speech and actions. The law’s power does not extend to people’s private beliefs, which Hobbes says simply cannot be dictated, though they can and should be shaped by education. Since civil law cannot reach the realm of belief, it can command only external actions. Similarly, Raz argues that authority seems to be in the first case, if not exclusively, about requiring action – it must be if it is to impose obligations. Note that the idea that authority applies to action and not belief is not an uncontroversial one. Friedman, for example, disputes this understanding of authority, and instead takes seriously the idea that authority also governs belief (“On the Concept of Authority in Political Philosophy,” 57–59). This is clearly an important question for political philosophers and philosophers of law, but it is beyond the scope of this project. 16 Leviathan, 27.2. 17 Leviathan, 46.37. 15

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This point becomes more pronounced when Hobbes considers the question “What if the king, or a senate, or other sovereign forbids us to believe in Christ?” He says, “To this I answer, that such forbidding is of no effect, because belief, and unbelief never follow men’s commands.”18 In Hobbes’s view, religious beliefs simply are not under endogenous control. Consequently, we should not interpret Hobbes as requiring subjects to conform to the sovereign’s commands in their thoughts. But, what else might it mean for subjects to surrender their judgment? A more plausible and somewhat less literal understanding of this passage could take the metaphorical language of surrendering one’s judgment and giving up one’s right of self-governance to mean simply agreeing to unconditionally obey the sovereign’s commands irrespective of what those commands say. On this interpretation, whenever one acts, one substitutes the sovereign’s will for one’s own. To make it clear how this might work, we need to make a distinction between abandoning consideration and abandoning acting on one’s consideration; the most literal reading advocates the first, and this less literal reading advocates only the second. Thus, it is not that subjects cease having their own thoughts and opinions, but instead they agree not to act on them. Renouncing the right to self-governance, according to this interpretation, is simply giving up the right to act on one’s own judgment. Indeed, Lloyd interprets Hobbes in just this way, arguing that the institution of an absolute sovereign entails unconditional obedience.19 A subject can think whatever she wants, but she must obey each and every one of the sovereign’s commands in her actions. Her actions, not her thoughts, are dictated by the will of the sovereign and not her own will. Perhaps the best way to understand this is to say that when people consent to authorize an absolute sovereign, they give up the right to act on their own private judgments. They agree always to take the sovereign’s will as their own Leviathan, 42.11. Lloyd is adamant that Hobbes holds an unconditional view of political obligation. She consequently has an unusual way of dealing with the right of self-defense. She wants to say that people whose lives are in danger are no longer members of the political community, and so no longer obligated to obey at all. She therefore does not see Hobbes’s doctrine of retained rights as constituting a limit on political obligation (Lloyd, Ideals as Interests, 290–308). While Hobbes definitely describes people who are taken as prisoners of war in this way, namely as no longer being members of the commonwealth, this analysis cannot accommodate the other cases of justifiable disobedience that Hobbes describes. A man whose wife is on trial for her life is still a member of the political community. While Hobbes allows him to legitimately disobey a command to give incriminating testimony against his wife, it is pretty clear that he is still obligated to obey all the other laws. Just because he is allowed to refuse to testify does not mean that he is released from his obligation to obey, say, a law against stealing. I take up this issue in the next chapter.

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when deciding what to do, on all matters dictated by the law. If a person does disobey the sovereign, then, he does so without right. According to the less literal reading, subjects agree to always take the sovereign’s will as their own in action. While this second interpretation of the passage is more plausible than the most literal interpretation, it is still unsatisfactory because its scope is too broad. It denies what Hobbes insists upon: some cases of disobedience are justified. In other words, in some cases subjects may permissibly act on their own judgment. As discussed earlier, Hobbes argues that subjects retain the right of self-defense (and a whole host of other resistance rights). Take the case in which a subject is sentenced to death for committing a crime. Hobbes repeatedly insists that the condemned subject has the right to try to escape. Now it is clear that the sovereign’s will (as expressed through his appointed judges) is that the subject submit himself to being killed. If the second interpretation of the surrender of judgment model is applied, the subject would be obligated to always follow the sovereign’s will as if it were his own. However, in Hobbes’s system, subjects clearly have the ability to govern themselves when it comes to matters of life and death. Therefore it cannot be the case that they completely submit or surrender their judgment to the sovereign where their actions are concerned. Indeed, Hobbes’s insistence on a retained right of self-defense (and the rights, he argues, that follow from it) throws a wrench into any attempt to provide an easy or simple interpretation of his social contract or his theory of political obligation. We are forced to ask: how can we understand Hobbes’s claims that subjects reduce and submit their wills and judgments to the will and judgment of the sovereign, and that they give up their rights of self-governance in a way that is compatible with his continual assertion that subjects retain a right to resist under a variety of circumstances? Moreover, how is it possible for people to authorize an absolute sovereign while at the same time reserving to themselves the right to resist under certain circumstances (and the right to judge when those circumstances obtain)? If a subject always has the right to act on her own private judgment in cases of justified disobedience, then in what sense has she submitted her judgment to the judgment of the sovereign? Why isn’t she still in the state of nature? Unfortunately, such questions seem unanswerable from the perspective of the approaches that we have examined thus far. This being the case, this seeming inconsistency in Hobbes’s view has proven to be a sticking point for a whole host of commentators. Hampton offers the most fully developed, and also the most compelling, articulation of this objection. The general theme of

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this kind of objection is that Hobbes’s argument that subjects retain the right to resist the commands of the sovereign undermines his case for political absolutism. Hampton contends that, “this problem is so serious that it renders the entire Hobbesian justification for absolute sovereignty invalid.”20 This objection is well known, but has not yet received a satisfactory answer.21 H a m p t on’s obj e c t ion Stage one Hampton’s objection proceeds in two stages. First, she argues that the right of self-defense – even when it is understood in the narrowest possible sense as the right to defend oneself against immediate deadly attacks and as the right to procure what is necessary for physical survival – contradicts the so-called surrender of judgment condition of the social contract. The sovereign is supposed to be absolute in the sense that he is the sole and final judge of all questions in the commonwealth. Hampton immediately points out that Hobbes’s retention of the right of self-defense entails granting the subjects the right of private judgment concerning whether or not their lives have been endangered … and make[s] their obedience to [the sovereign] conditional on his commands not threatening their lives, where they are the judges of this question … By granting that the subjects had a right to defend themselves, even when the right is very limited in scope, Hobbes makes the subjects the judges of whether or not the sovereign has endangered their survival, and hence allows the subjects to decide whether or not they will disobey certain of the sovereign’s commands. This means that the sovereign is not the only authority in a commonwealth and that he will have to reckon with disobedience or rebellion on the part of some or all of his subjects if they decide that his laws or actions jeopardize their lives.22 Hampton, Hobbes and the Social Contract Tradition, 197. Two kinds of attempts to address this objection can be found in the literature. First, Gauthier argues that Hampton’s objection can be answered, but only at the cost of eliminating absolutism (“Hobbes’s Social Contract” in Perspectives on Thomas Hobbes, ed. G. A. J. Rogers and A. Ryan [Oxford: Clarendon Press, 1988], 125–152). In contrast, my interpretation tries to answer the objection while leaving Hobbes’s core commitments intact. Second, Peter J. Steinberger argues that Hampton’s objection can be avoided if we interpret disobedient Hobbesian subjects as being back in the state of nature and so exercising their natural right to preserve themselves against the sovereign; see “Hobbesian Resistance,” American Journal of Political Science 46, no. 4 (2002), 856–865. Michael Davis gives a similar analysis; see “Heavenly Philosophy: What Thomas Hobbes said to Jean Hampton,” Social Theory and Practice 32, no. 3 (2006), 341–364. This solution is tempting, but ultimately unsuccessful. Hobbes simply does not think of the rights to resist in this way; after all, he refers to them as the liberties of subjects. I return to this issue in the next chapter. 22 Hampton, Hobbes and the Social Contract Tradition, 199. 20 21

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According to Hampton, even if the scope of the right of self-defense is limited to mere bodily survival, this right is inconsistent with Hobbes’s claim that people surrender all of their rights to the sovereign and make him the sole judge of all questions in the commonwealth. A person has not really surrendered all of her rights to judge if, at each moment, she retains the right to judge whether her obedience is appropriate (that is, whether or not obedience would immediately cause her death). As I explained in Chapter 1, the right of self-defense is fundamentally a subjective right. Hobbes gives a subjective account of the conditions that justify self-defense in the sense that it is left to the agent to decide when the conditions are met and when something poses a threat to her life. Hobbes’s only stipulation is that the judgment be sincere. There is no requirement that the judgment be correct, nor even that it be probable. If his notion had instead been objective, we might have avoided many of these problems; for in this case, the subject’s thoughts on the matter would have been irrelevant. In this case, we could say that if there was an objective threat, then the subject’s resistance would not be unjust; if there was not, in fact, such a threat, then her resistance would be unjust. Unfortunately, this is simply not Hobbes’s view. The force of the objection so far is this: it seems impossible to completely submit one’s judgment to the judgment of the sovereign while simultaneously retaining the right to judge whether or not one’s submission is required. It must be granted that in a Hobbesian system, subjects can always ask themselves: will obeying this command immediately end my life? Hobbes repeatedly insists that a person has no obligation to obey a command to kill himself, but such situations are unlikely to come up often in practice. How often is a person commanded to commit suicide (Socrates and Seneca aside)? And, as we have seen, Hobbes did not view the right of self-defense as a potential threat to the sovereign’s ability to do his job. But, even if there is no reason to think that there will be a practical problem, the conceptual problem still remains. Stage two Hampton’s objection becomes significantly more persuasive when one realizes that Hobbes does not limit justified disobedience to only those cases in which the subject’s lives are immediately endangered. As I showed in Chapter 2, Hobbes allows subjects to disobey in order to avoid bodily injury (wounds), restriction of physical movement (chains and imprisonment), the loss of a loved one or benefactor, and, in some

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cases, the loss of honor. Hampton says that the retention of the right to disobey in these circumstances “seriously undermines the supposedly limitless and absolute power of the sovereign.” She sounds incredulous when she discusses Hobbes’s claim that subjects have a right against self-incrimination and the right to disobey dishonorable commands; she exclaims, “What? Is Hobbes saying that people have a right to lie to their sovereign, that they can refuse not only to kill other men but also to commit those actions that are dangerous or dishonorable?”23 Lying in order to protect a loved one and disobeying to preserve a reputation are not cases in which disobedience is necessary for one’s self-preservation; rather, they are cases (as Hampton sees them) in which disobedience furthers one’s interests in general (family well-being, honor, and so forth). Hobbesian political obligation is defeasible and it is up to subjects to decide for themselves if their obligations are annulled. And so, according to Hampton, Hobbes finds himself committed to the claim that subjects are obligated to “obey a sovereign command only when, in their eyes, it will further their lives to do so.”24 This move – from subjects being obligated to obey as long as they judge that obedience is not life-threatening, to subjects being obligated to obey only as long as they judge that obedience furthers their interests – is crucial. Hampton insists that this is not a case of genuine submission, and hence not a case of genuine authority. Mixing some metaphors, Hampton charges that because Hobbes’s theory amounts to “the slave letting the master hold the whip,” he is therefore “skewered with his own sword.”25 Subjects have not given up any rights to govern themselves; and, private judgment has not been destroyed in the commonwealth because every instance of a subject’s obedience depends on a prior judgment by the subject that obedience is more conducive to her interests than any alternatives. A subject’s obligation to obey the Hobbesian sovereign, according to Hampton’s analysis, is reduced to a simple “expected-utility calculation,” which is not really obligation at all  – let alone the particularly strong brand of obligation for which Hobbes is so famous. On Hampton’s view, the worst consequence of this slippage for Hobbes’s theory is that subjects would be justified in switching allegiances to other sovereigns in any case wherein they thought that they could do better.26 She concludes that the Hobbesian sovereign possesses no control Ibid., 200. 24 Ibid., 201. Ibid., 202–203. 26 Hampton also makes a very quick but very important move here. She moves from the claim that there is an individual right to disobey particular commands of the sovereign to the claim that 23 25

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over whether he remains in power or who succeeds him. Hobbes’s exceptions, thus, undermine his rule. The Hobbesian sovereign is supposed to be the final decider of all questions in the commonwealth and, most importantly, of the question of whether he should remain in power. But, according to Hampton, the Hobbesian subjects – not the sovereign – possess the right to decide who should be in power, a claim which Hobbes himself adamantly rejects. Hampton continues by arguing that the grant of power given by Hobbesian subjects to the Hobbesian sovereign is a temporary and conditional loan, an argument that effectively turns Hobbes’s theories into those of Locke. Hampton’s crucial move is to interpret Hobbes as committed to the claim that subjects retain the right to disobey whenever they judge that disobedience furthers their interests better than obedience. But clearly this move is too quick. It does not follow from the fact that Hobbes allows subjects to disobey in order to protect their loved ones from punishment or to protect their honor that he thinks that they can justifiably disobey whenever they judge that it furthers their interests to do so. Hampton seems to be capitalizing on the fact that there is nothing that clearly sets Hobbes’s cases of justified disobedience apart – once we admit that subjects can disobey even when their lives are not immediately in danger, then we have admitted that they can and probably will judge whether their obedience is due most of the time. In considering this objection, I suggest there are two questions that arise. First, what is the correct way to understand the notion of “surrender of judgment” in Hobbes’s authorization contract, and is it compatible with Hobbes’s conception of the retention of rights? Second, is there a principled distinction between cases in which Hobbes believes subjects can justifiably disobey and cases in which he argues they cannot? In other words, is it possible to avoid the slippery slope leading to the idea that Hobbesian subjects are only obligated to obey as long as they judge obedience to be more conducive to their interests than any alternative? The central problem thus concerns the reconciliation of the conditional nature of the Hobbesian political obligation with the unconditional (or absolute) nature of the Hobbesian sovereign’s right to command. Hampton and others are correct to insist that Hobbes’s notion of political obligation is conditional – and unavoidably so given his commitment to the right of there is a collective right held by the people that gives them license to, as a whole, withdraw their allegiance to a particular sovereign if they, as a whole, decide that they could do better under someone else. While Hobbes holds the former, he strictly denies the latter. This will be very important for our discussion of rebellion in the next chapter.

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self-defense and his admission of rights to disobey under certain circumstances where one’s own life is not threatened at all. I argue, however, that they are wrong to conclude that this is a devastating problem for his notion of absolute sovereignty. Nonetheless, it is fair to say that Hobbes left himself open to this kind of criticism. He uses metaphorical language without precisely spelling out his point, and he overlooks a number of important distinctions. In the next section, I provide an alternative interpretation of Hobbes’s notions of sovereignty and political obligation that takes its cue from the Razian model of authority. With this alternative interpretation in hand, I then turn to a possible answer to Hampton’s objection. T h e r a z i a n mode l Raz argues that authority can be usefully understood by reference to the effects it has on the practical reasoning of those subject to it. He offers a formal account of how authorities are supposed to affect someone’s reasons for action. On Raz’s account, authoritative directives provide what he calls “exclusionary reasons,” that is, reasons which serve to rule out a certain class of reasons for action. Taking oneself to have an exclusionary reason means that one is bound to disregard some of one’s own reasons (or judgments) when deciding how to act. While the surrender of judgment model seems to require that private judgment cease, Raz’s model shows how the persistence of private judgment is compatible with being subject to the normative constraints of an authority. As such, it can give us the tools to answer Hampton’s objection on Hobbes’s behalf. In circumstances where a person is not subject to an authoritative directive, she typically considers all the available and relevant reasons and makes her decision about how to act accordingly. A person can have firstorder reasons (considerations that count in favor of acting a certain way) and second-order reasons (reasons to “act for a reason” or not). If a person has only first-order reasons, she simply chooses an action based upon her own private judgment of the merits of the circumstances; she can attend to whatever reasons she desires. Her practical calculations are entirely a function of which goals she wants to pursue and how she wants to pursue them. If two or more first-order reasons conflict, then the deliberator assesses each reason against the same metric to establish the “balance of reasons.”27 First-order reasons may vary in strength; when a person makes   Joseph Raz, Practical Reason and Norms (London: Hutchison, 1975), 37–45.

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a decision on a course of action, she weighs the different strengths of all the reasons against each other. But, there are cases in which people do not, or should not, act on their own estimation of which first-order reasons are the strongest. Sometimes people simply refuse to even attempt the calculations. In these cases, what Raz calls a “second-order” reason binds them; that is, they have a second-order reason to act for a reason or not. In this case, a personal judgment of the weight of one’s first-order reasons may dictate some course of action, but it is also possible to have a second-order reason that stands above those and gives one a reason to act or not act on that judgment. Raz then makes a distinction between two types of second-order reasons. Positive second-order reasons are reasons to act for a reason. Negative second-order reasons – which Raz calls “exclusionary reasons” – are reasons to refrain from acting for a reason. Exclusionary reasons can prohibit acting on all of a person’s first-order reasons but one, or they can prohibit acting on some or most of a person’s first-order reasons. Raz claims that authorities give exclusionary reasons that ban a person from considering many of her first-order reasons. This leads to two questions. First, why should one believe that there are exclusionary reasons? Second, why should one believe that authority should be understood in terms of them? Raz motivates his notion of exclusionary reasons by an analysis of certain kinds of conflicts that commonly arise in practical deliberation. He argues that not all such conflicts can be adequately explained as conflicts of first-order reasons. Indeed, he claims that many important practical conflicts take a different form. According to Raz, exclusionary reasons, or something like them, are necessary to understand certain cases of practical conflict and ultimately to make sense of how authorities function. To better understand this idea of conflict, consider a situation in which someone has a negative second-order reason – a reason for not acting on a reason (or set of reasons). Suppose Sarah is at home one day with a severe case of the flu. She forgets herself for a minute and answers the phone without checking the caller ID. Unfortunately, there is a telemarketer on the other end of the line trying to convince her to switch her cellphone carrier to AT&T. The telemarketer presents a seemingly enticing onetime-only deal. Sarah must decide whether or not to switch carriers. Under ordinary circumstances, Sarah would weigh the balance of reasons – the time limit on the deal, the money saved by the deal, her current plan’s advantages, the hassle of changing, and so forth – and decide what to do on the merits of the case. But her temporary incapacity may

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give her a reason not to act on what she judges to be the merits of the case. In this case, she doubts her judgment because she is sick. In such circumstances, Sarah’s incapacity might be a second-order reason that closes off – or excludes – consideration of the ordinary first-order reasons that either support or oppose a particular choice. Raz’s point is that the best way to make sense of this situation is to say that Sarah has a reason to refrain from acting on her best judgment of the balance of reasons. It is not that Sarah forgets about her first-order reasons; rather, she has a reason not to act on the basis of them. When deciding what she should do, Sarah does not simply weigh all the available and relevant reasons to determine which is the strongest.28 Sarah’s incapacity gives her a reason not to act on a set of reasons, namely, her judgment of the pros and cons of switching phone services. But her sickness does not itself dictate a certain course of action – incapacity does not provide a reason to do or not do something. The upshot could be that Sarah chooses not to switch carriers. Yet this decision might not be based on her judgment that, on balance, the switch was a bad idea (or that her first-order reasons against switching were stronger than her first-order reasons in favor of switching). While Sarah’s refusal to consider the merits of switching phone services may result in declining the offer, the work is done by a second-order reason (she simply does not trust her own judgment). She might decline the offer after evaluating and weighing all the relevant pros and cons. It may be that, had Sarah calmly examined the offer, it would have become clear that joining AT&T was a bad idea. But that is beside the point. Sarah does not reject the offer because she judges that, all things considered, the switch was a bad deal. Rather, her refusal is based on her reason to refrain from acting on her judgment of the merits of the case. Such considerations no longer count in her practical deliberation – her judgment of how to act. Raz’s point is that situations like Sarah’s simply cannot be understood as a conflict of first-order reasons – she may not have a strong first-order reason not to switch. According to Raz, the notion of exclusionary reasons is necessary for a complete understanding of Sarah’s situation. Raz’s key move is to analyze authority in terms of exclusionary reasons and their effects on practical deliberation. He observes that people who Raz illustrates this point with an example of a woman who is very upset and has to make a decision about a certain investment. Raz describes this woman saying, “She insists that, though she is taking a decision against the offer, she can rationally do so not on the ground that on the merits the offer ought to be rejected but because she has a reason not to act on the merits of the case” (ibid., 37).

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view themselves as being subject to an authority often understand the orders from that authority as bearing a special kind of practical reason. Specifically, authoritative directives are supposed to function as exclusionary reasons. Raz illustrates this point by giving a paradigmatic example of authority and how the commands of an authority give reasons for action. He presents Jeremy, a soldier in the military, for consideration.29 Jeremy regards himself as being subject to an authority and views his superiors as having authority over him. Suppose Jeremy’s sergeant commands him to perform a specific task, for example, he might say “Jeremy, go commandeer that van.” What effect does this command have on Jeremy’s practical reasoning? Raz points out that Jeremy regards the command as giving him a strong reason for action, but it is a special kind of reason for action. Jeremy may think that there are good reasons for or against commandeering the van that are separate from the fact that doing so is a direct order. However, consideration of those reasons is irrelevant in terms of what Jeremy is bound to do. Raz calls this the thesis of the “content-independence” of commands;30 the command itself is a strong reason for action and one that is entirely independent of Jeremy’s judgment of its content. The command of his sergeant is an exclusionary reason; it excludes from practical deliberation most of Jeremy’s first-order reasons. Specifically, it excludes reasons that dictate against commandeering the van. According to Raz, authoritative directives are “preemptive,” meaning they provide a reason for action that excludes or defeats some of Jeremy’s other reasons. Jeremy’s practical calculations now only dictate commandeering the van – all of the reasons against doing so have been defeated. Moreover, the command’s reason does not require compliance in virtue of being the strongest of all the reasons; rather, it succeeds in directing action because it is of a different, higher kind. Raz explains, “The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of them.”31 Authorities do not Ibid., 41–43. “A reason is content-independent if there is no direct connection between the reason and the action for which it is a reason. The reason is in the apparently ‘extraneous’ fact that someone in authority has said so, and within certain limits his saying so would be reason for any number of actions, including (in typical cases) for contradictory ones. A certain authority may command me to leave the room or stay in it. Either way, its command will be a reason. This marks authoritative reasons as content-independent.” Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 35. 31 Ibid., 46. He puts this another way saying, “The arbitrator’s decision is also meant to replace the reasons on which it depends. In agreeing to obey his decision they agreed to follow his judgment of 29 30

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function by giving incredibly strong reasons for action; rather, they function by excluding or defeating incompatible first-order reasons. Raz’s argument for understanding authoritative directives as exclusionary reasons is that it is the only way to make sense out of “Jeremy’s own conception of the situation.”32 Like Sarah, Jeremy thinks that he has a reason not to act on his own evaluation of the merits of the case. His private judgment of the pros and cons does not determine what action he takes; indeed, whether he believes the action is warranted is irrelevant. Because Jeremy views himself as being subject to an authority, he understands that his role is one of following orders (of doing what the sergeant says because the sergeant said it). Raz adds an important caveat to Jeremy’s story – if he is commanded to perform an atrocity, Jeremy is permitted to disobey. Raz adds little by way of explanation for this claim, but we can infer that the fact that the order entails an atrocity somehow puts it outside the scope of the exclusionary power of his sergeant’s command. Jeremy views himself as bound to obey an order even when he thinks it is ill-conceived, but he might also think he does not have to obey an order if he thinks it requires some horrendous violation of morality. Unfortunately, this situation is underdescribed in Raz’s account. In particular, he does not explain who is to judge whether or not a particular action constitutes an atrocity. Raz continues by arguing that in order to be successful, authorities must provide “protected reasons” – which include a first-order reason to do a particular thing and a second-order, exclusionary reason to disregard whatever reasons favor not doing that thing.33 Notice that the sergeant’s order provides a protected reason but Sarah’s sickness does not (it only gives her the second-order exclusionary reason). Raz, however, does not argue that authorities always do (or should) succeed in excluding incompatible reasons from the subject’s practical deliberations. As he defines them, exclusionary reasons have a scope  – “an exclusionary reason may exclude all or only a certain class of first-order reasons. The scope of an exclusionary reason is the class of reasons it excludes.”34 But what determines which reasons get excluded and which do not? According to Raz, the answer lies in the justification for treating a particular utterance as authoritative. That is, the rationale for treating a reason as an exclusionary reason the balance of reasons rather than their own. Henceforth his decision will settle for them what to do” (Joseph Raz, “Authority and Justification,” Philosophy and Public Affairs 14, no. 1 [1985], 10). 32 Raz, Practical Reason and Norms, 42. 33 Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), 18. 34 Raz, Practical Reason and Norms, 46.

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determines its scope. Presumably, the exclusionary power of the sergeant’s command has a scope that does not defeat certain kinds of moral reasons, although Raz does not make this explicit. Jeremy’s desire to avoid committing an atrocity is a nonexcluded reason. It is precisely Raz’s notion of the scope of exclusionary reasons that is most important for our purposes in trying to interpret the Hobbesian notion of authority. Note that Raz does not need to argue that everyone who acknowledges an authority always deliberates like Jeremy, who seems acutely aware that he is obligated not to act on his own judgment of the balance of reasons. People may follow orders because of a quick and dirty calculation of pros and cons, including the desire to avoid punishment. But this observation in no way challenges the foundations of Raz’s model. His model does not purport to describe how people actually deliberate when given an authoritative directive. Rather, Raz’s claim is that to think of someone as an authority is to regard his directives as offering exclusionary reasons. Raz’s conceptual machinery, as described above, makes possible a more perspicuous articulation of certain elements of Hobbes’s argument, though Raz himself never puts it to this use.35 Viewing parts of the Hobbesian story through a Razian lens provides a new opportunity to understand the differences between the state of nature and civil society, the social contract (or the nature of the agreements made in the social contract), the commands of the sovereign, and the persistence of private judgment in the Hobbesian commonwealth. Recall from Chapter 1 that Hobbes’s state of nature accords everyone the right of nature, which is the right to act according to all and only one’s own private judgments about what might be useful in one’s quest for survival. But such “privacy of judgment,” combined with the radical uncertainty of the state of nature, produces conflict and the constant threat of violence. The condition in which everyone only acts on his private judgment will inevitably result in a “war of all against all.” Hobbes emphasizes that in the state of nature moral judgments (as well as judgments about I suspect that the affinities between Raz and Hobbes are likely to be fairly striking to those who read them together – though this probably occurs too infrequently to be useful. Interestingly, H. L. A. Hart mentions in passing that he notices this kind of resemblance between Hobbes and Raz: “The main criticism … was first suggested to me by Hobbes who said some simple but illuminating things about commands and the similarity and differences between commands and covenants as sources of obligation or as obligation-creating acts. But I do not think I should have seen the full importance of Hobbes’s remarks on these topics had I not had the benefit of the work of Joseph Raz on what he terms ‘exclusionary reasons’ which resembles in many respects the notion which I have taken from Hobbes” (“Commands and Authoritative Legal Reasons” in Authority: Readings in Social and Political Theory, ed. Joseph Raz [New York University Press, 1990], 93).

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what is most conducive to one’s preservation) are subjective, private, and conflict-causing. Hobbes’s meta-ethics begins with the idea that there is nothing in the nature of objects that guarantees uniformity as to the value (moral or otherwise) of those objects. Moral language is subject-relative in the absence of a political authority.36 In the absence of some authoritative arbitrator who defines and enforces common standards and rules for action, conflict, insecurity, and war are the only possible outcomes. The only way to achieve peace, in this case, is to somehow prevent people from acting exclusively on the basis of their own private judgments. So how does this happen? Hobbes argues that people must give up their right to act only on their own judgments. They must institute a sovereign who can give them all exclusionary reasons to obey his commands, thereby coordinating their actions and making social activity possible. Hobbes defines “command” saying, “command is, where a man saith, Do this, or Do not this, without expecting any other reason than the Will of him that says it.”37 But this is precisely what Raz calls the “content-independent” feature of authoritative directives. The sovereign’s command offers reasons for action that hold regardless of what the command says. Furthermore, the command can be understood as a protected reason: it provides a first-order reason for action and a second-order exclusionary reason that excludes potentially conflicting first-order reasons. The command is sufficient for action; it may exclude whatever conflicting reasons a subject might have from his practical deliberation. This analysis creates a useful way to understand Hobbes’s description of the sovereign-making covenant. One can understand the covenant, not as a surrender of judgment, but as an agreement to treat the sovereign’s commands as Razian authoritative directives. As such, the commands give subjects a first-order reason for action and a second-order exclusionary reason that excludes conflicting first-order reasons. Unfortunately, Hobbes was not sufficiently precise in his writing about what needs to be surrendered. Private judgment itself is not surrendered, and the whole of the right to act on one’s private judgment is not surrendered; rather, it is one’s unrestricted right to act on one’s private judgment against the sovereign (in the absence of a kind of special reason) that is surrendered. Of course, the framework of Hobbes’s social contract also makes room for nonexcludable first-order reasons. That is, there are some cases in which reasons for action cannot be excluded on the basis of a further secondorder reason. I return to discuss these sorts of reasons shortly. 36

E.g., Leviathan, 6.7.

37

Leviathan, 25.2.

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In the state of nature, people have the “liberty to do all they list” – the liberty to judge – on the basis of all available and relevant reasons what they ought to do.38 But people’s judgments radically diverge, and therefore their practical deliberations bring them into conflict. A way to order people’s deliberations around a single judgment is needed, and this is the essential function of the sovereign. To institute a sovereign, people must surrender the “liberty to do all they list.” This being the case, in civil society, some of the subjects’ reasons may be excluded from their practical deliberations in those cases where their actions are dictated by the sovereign’s laws. Raz’s analysis sheds light on these features of the Hobbesian story. After all, Hobbes, like Raz, explicitly denies that the commands of an authority are especially weighty first-order reasons, rather than exclusionary reasons. In doing so, Hobbes denies the claim that political obligation is mere cost–benefit analysis. This can be seen in both his metaphorical language of the sovereign-making covenant and his continual insistence that exiting the state of nature requires people to give up at least part of their right of nature. The obligation that people undertake when entering the social contract cannot be understood entirely in terms of expected-utility calculations. Also Hobbes, like Raz, is not committed to the claim that people do not use prudential reasons when deciding whether or not to obey the law. He clearly recognizes that they do; hence, his reply to the “foole.” Moreover, on his own principles, Hobbes must reject the proposal that the reason for action given by a command is an especially strong reason rather than an exclusionary reason. Understanding the commands of the Hobbesian sovereign to be unusually strong and generally overriding first-order reasons would mean that Hobbesian subjects always act on their own private judgments of the pros and cons of obeying the sovereign. Hobbes insists that one cannot understand obedience to the sovereign along these lines. One of the [D]iseases of a Commonwealth that proceed[s] from the poison of seditious doctrines, whereof one is:  That every private man is judge of good and evil actions. This is true in the condition of mere nature, where there are no civil laws, and also under civil government, in such cases as are not determined by the law. But otherwise, it is manifest, that the measure of good and evil actions is the civil law, and the judge the legislator, who is always the representative of the commonwealth. From this false doctrine men are disposed to debate among themselves, and dispute the commands of the commonwealth, and afterwards to obey 38

  Leviathan, 15.22.

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or disobey them, as in their private judgments they shall think fit. Whereby the commonwealth is distracted and weakened.39

According to Hobbes, the doctrine that people may use their private judgment of “good and evil actions” when deliberating over whether or not to obey is both false and poisonous. His argument for this claim is predicated on the idea that allowing each subject to judge for himself whether the law is worth obeying risks reintroducing the dangers of the state of nature. In the passage above, Hobbes describes what kind of conflict would ensue were everyone allowed to act on their own judgments of good and evil – subjects would be allowed to debate the merits of the law and obey or disobey “as in their private judgments they shall think fit.” He specifically prohibits this:  such debates and the disobedience these debates encourage serve to weaken a commonwealth. If each subject is his own private judge, then he obeys because he judges it prudent, not because he is obligated. Hobbes thus explicitly rejects the idea that considerations of prudence alone should guide obedience to the law.40 When men follow no rule other than their own judgments (or conscience), then “no man dare to obey the sovereign power farther than it shall seem good in his own eyes.”41 If they do so, subjects are not really deferring to the law; rather, they are acting on their own assessment of the situation in precisely the way that would lead to Hampton’s worries about Hobbes’s project. If people only obeyed the sovereign insofar as they thought it prudent, then they would be free to switch allegiances and obey a new sovereign if they thought that course most conducive to their interests: this Hobbes emphatically denies. So, in order to establish and maintain peace and stability, the sovereign must have the ability to issue “protected reasons”  – giving subjects a reason to act in a certain way and excluding their reasons for not acting in the way prescribed. The sovereign can only do his job and serve his purpose if his orders are viewed as excluding (at least) some private judgment. Raz’s conceptual machinery also helps explain Hobbes’s idea that private judgment persists in various ways without undermining the power of the sovereign and the stability of the commonwealth. On Hobbes’s account, private judgment continues to exist in the commonwealth in at Leviathan, 29.6. To be clear, he does not equate private judgment with mere consideration of prudence; people also make private judgments of equity, honor, and all sorts of non-prudential bases. However, this only exacerbates the problem, multiplying the possible ways in which subjects can privately judge matters. 41 Ibid., 29.7. 39

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least three important ways. First, recall that Hobbes allows the operation of private judgment in matters about which the law is silent: he calls this “civil liberty.” Hobbes says, The Liberty of a Subject, lyeth therefore only in those things, which regulating their actions, the Sovereign hath praetermitted:  such as is the Liberty to buy, and sell, and otherwise contract with one another; to choose their own diet, their own trade of life, and institute their children as they themselves think fit; & the like.42

In such matters, subjects act on their own assessment of the balance of reasons. For example, subjects can choose what clothes to wear, what to name their children, or what profession to pursue on the basis of their first-order reasons alone. This allowance does not pose a problem for the notion of authority, because there is no authoritative order concerning how people make these personal, everyday decisions. If the sovereign were to command that all children be named after him, or that no one could wear the color purple, people would be obligated to follow.43 In such a case, these subjects would not be free to act on their own assessments (they would not give their children the names they most wanted to give them); rather, the conflicting private reasons (such as the desire to name one’s child a specific name or the fact that a subject may really hate how he looks in purple) would be excluded from practical deliberation – that is, excluded from consideration of how to act. The second way in which private judgment endures has to do with the description of subjects when they are obeying the commands of the sovereign. Returning to Raz’s example of Jeremy, now cast as a Hobbesian subject, recall that the authoritative directive does not prevent Jeremy from thinking about the pros and cons of commandeering the van. He need not follow the order mechanically and commandeer the van without a second thought. In fact, it is possible that he would do so, but that has little bearing on what is required of him. It might be the case that he judges that the balance of reasons dictates against commandeering the van, but those reasons are excluded from his practical deliberation, and therefore, he does not act on them. If one is obligated to obey the sovereign, then, in an important sense, one becomes – like Jeremy – obligated not to let one’s private judgment of Leviathan, 21.6. For instance, the Oppian Law passed by the Romans in 216 bc forbade women from wearing dresses with purple trim. It is not uncommon for the directives of authorities to extend to attire: many school authorities prescribe dress codes.

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the merits of the command sway one’s actions toward disobedience. Raz makes it clear that “there is no reason for anyone to restrain their thought or their reflections on the reasons which apply to the case … It is merely action for some of these reasons which is excluded.”44 In other words, it is not that Jeremy is bound to never think “this command is a really bad idea” or “there is a better way to get the job accomplished.” Rather, he must not act on such considerations. So, private judgment is not extinguished (as it would have been in the most literal interpretation of the sovereign-making covenant). This application of Raz’s principle is particularly appropriate because it provides a way in which to understand authority as compatible with the private beliefs that Hobbes says simply cannot be dictated. People might not consider all the relevant reasons or even reflect on the merits of the case, but they are permitted to do so. In other words, they are under no obligation not to do so. To be subject to an authority, or to obey an authoritative directive, does not mean that a person is denied the ability to have any opinion that she wishes on the matter; rather, all that it means is that the authority provides an exclusionary reason for action. An authoritative utterance of a Hobbesian sovereign gives subjects a first-order reason to do what is commanded and an exclusionary reason to disregard private, conflicting, firstorder reasons to do something other than what is specifically commanded. The excluded reasons still exist for the subject, but they are excluded from practical deliberation – deliberation about how to act. Thus, Raz’s model illustrates and supports Hobbes’s claim that people’s beliefs are beyond the reach of the law, even though they are bound by that law. This solves part of the surrender of judgment problem; but the question of qualification still remains. This brings us to the third, and perhaps most interesting, way in which private judgment persists. This point concerns the conditions under which one is not obligated to obey the sovereign’s commands. If the sovereign issues a life-threatening command, according to Hobbes, the subject is justified in disobeying. The subject must retain the right to private judgment in such cases, since it is up to the subject to judge whether her life is in danger. To make sense of this, one must interpret self-defense as a nonexcludable reason; more precisely, “if I obey this command, I will die” is a first-order reason that, according to Hobbes, one need not and indeed cannot exclude.45 What happens when Raz, Morality of Freedom, 42. It is not that the danger of immediate death is a reason that can never be overridden by any other first-order reason (i.e., it is not what Raz calls an “absolute reason”). Recall from Chapter 1 that Hobbes recognizes cases in which a rational agent may prefer death to some other outcome.

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there is an incompatible, nonexcluded reason? Raz answers, “when this is the case one must decide what to do on the balance of the non-excluded first-order reasons, including the order itself as one prima facie reason for the performance of the ordered action.”46 Some reasons are, by their very nature, nonexcludable; this point is crucial to understanding why Hobbes does not fall prey to Hampton’s objection. However, figuring out which reasons these are is a substantive matter that is determined by reference to the structure of practical reason alone. Exclusionary reasons have what Gerald Postema calls “substancescope,” defined as “the class of other reasons they exclude from the practical deliberation of these agents … the scope of any given exclusionary reason is a function of the reasons that can be given for certain agents treating a given rule as an exclusionary reason.”47 So, what for Hobbes defines the scope of the exclusionary reason provided by the sovereign’s commands? Raz posits that the scope of exclusionary reasons is determined by the purpose of treating something as giving exclusionary reasons in the first place. The purpose of authorizing the sovereign, according to Hobbes, is to better protect your life; and that is why threats to one’s life are nonexcludable reasons  – they fall outside of the exclusionary scope of the sovereign’s authority. The conceptual machinery provided by Raz makes possible a more perspicuous articulation of this part of Hobbes’s view.48 H a m p t on’s obj e c t ion r e v i s i t e d Stage one We can now begin to answer Hampton’s objection to the Hobbesian doctrine of retained rights. According to the first stage of Hampton’s argument, because Hobbes grants that subjects retain a right of self-defense, he cannot maintain that the subjects give up the right of judgment that is For example, one may prefer to die than to live a life of ignominy. But the prospect of death is a nonexcludable first-order reason because, according to Hobbes, one can never be obligated to disregard it. As we will see, Raz states that the justification for treating an authority’s directives as giving exclusionary reasons gives us the scope of the exclusionary reason. For Hobbes, the justification for submitting to the sovereign is the hope of preserving one’s life, so it makes sense that the prospect of death is outside the exclusionary scope of the sovereign’s commands. 46 Raz, Authority of Law, 22. 47 Gerald J. Postema, “Law’s Autonomy and Public Practical Reason” in The Autonomy of Law: Essays on Legal Positivism, ed. Robert P. George (Oxford University Press, 1999), 86. 48 For Hobbes, unlike Raz, the limits on the exclusionary scope of the sovereign’s commands do not constitute a limit on the power or right of the sovereign. The sovereign is absolute: he can

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necessary to institute an absolute sovereign (the final decider of all questions in the commonwealth). Having the right of self-defense, as I have already discussed, involves having the right to judge when one’s life is in danger and, in those circumstances, to act on one’s private judgment against the sovereign. If the sovereign orders a subject to commit suicide, the subject is justified in disobeying – that is, refusing to treat the order as an exclusionary reason. Recall that Hampton’s argument begins with the observation that “Hobbes makes the subjects the judges of whether or not the sovereign has endangered their survival, and hence allows the subjects to decide whether or not they will disobey certain of the sovereign’s commands.”49 She then goes on to argue that since it is possible that obedience to any one of the commands could be life-threatening, the subject has the “right to decide whether or not to obey any of the ruler’s commands, and hence private judgment has not been destroyed in the commonwealth.”50 The subject retains the right to judge whether obedience to the sovereign’s commands will endanger her life, but since any command could do this, she retains the right to judge each and every command. She has not, then, surrendered her right to act on her private judgment at all. This argument, however, overlooks an important distinction, which when acknowledged takes away much of the force from the objection. We should distinguish between two very different cases of judgment. The first is the judgment of whether or not the subject is obligated to obey the authority in the type of case in question.51 The subject can judge whether following this command is going to threaten her life. In Razian terms, the subject is asking, “Do I have a nonexcludable reason for disobeying this command?” The second is the judgment of whether or not the command merits the subject’s obedience. Here, the subject asks himself, “Given all the first-order reasons I have, does my practical judgment of the balance of reasons dictate obeying this command?”

command whatever he wants without injustice. Moreover, recall that the sovereign’s right to punish is part of his right of nature, not something given to him in the social contract. On this reading of Hobbes, to say that a certain range of reasons is nonexcludable is not to say that authority cannot extend to them. I cannot be said to own my own punishment, but the sovereign still has the authority to punish me. 49 Hampton, Hobbes and the Social Contract Tradition, 199. 50 Ibid., 203. 51 Hobbes is clear that the sovereign has the right to judge what conduces to the peace and security of the commonwealth as a whole, but this does not mean he has the right to judge for each subject which course of action imperils her individual security.

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In authorizing the sovereign, subjects surrender the right to the latter kind of judgment, but not the right to the former. In cases where a Hobbesian subject’s actions are dictated by law, they retain only the right to judge in the first way. Subjects can judge whether obeying the command threatens their lives and then act accordingly – meaning disobey; but they are not permitted to order their practical deliberation around their private judgment about whether the law should be followed (at least not in cases in which it does not constitute a threat). For example, a subject can ask herself “Do I have a nonexcludable reason for disobeying this command?” If she judges that obeying the command will threaten her life, she is permitted to disobey – “If I obey this command, I will die” is a nonexcludable reason on Hobbes’s account. If the subject judges that there is no such nonexcludable reason, however, she is obligated to obey, even if she thinks that the command is stupid, unjust, or sacrilegious. The Hobbesian subject does genuinely surrender at least part of her right of private judgment. In those cases in which obedience is not life-threatening, which are presumably the vast majority of the cases, she should treat the command as an exclusionary reason and therefore should not act on her judgment of the balance of reasons. Thus, Hampton is right that a kind of private judgment is not surrendered at all, but she is wrong to conclude that in light of this fact Hobbes’s conception of sovereign authority is inexplicable. Hampton’s mistake is to see the decision of whether or not to obey the sovereign as involving only first-order reasons. But as we have seen, there is a distinction between judging whether a reason is excluded and judging what one ought to do on the basis of all available and relevant reasons. Hampton does not recognize this distinction, and so she concludes that because Hobbes must allow the first kind of judgment, he must also allow the second kind of judgment. However, once we introduce second-order reasons, and in particular exclusionary reasons, this part of Hobbes’s view becomes explicable. Hobbes’s conception of authority can and should be understood along Razian lines; this understanding illustrates how the authority of the Hobbesian sovereign is consistent with the right to disobey in cases of self-defense. Raz’s notion of an exclusionary reason explains the nature of practical reason in such a context:  the prospect of immediate death is a nonexcludable first-order reason. Subjects interpret the sovereign’s commands as providing exclusionary reasons in order to achieve peace and security (the prerequisite of which is the immediate protection of one’s life). Raz’s model provides a mechanism to respond to the first stage of Hampton’s objection that Hobbes’s conception of authority is

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incompatible with the retention of the narrow right of self-defense. We now need to consider the second stage of her objection. After all, even if the right to resist on the basis of a fear of immediate death can be clearly demonstrated to involve a nonexcludable reason, more needs to be said about why the additional liberties of subjects ought also to be so understood. Stage two As Hampton points out, the fear of immediate death is not the only justification for disobedience in Hobbes’s analysis, and accordingly he seems to allow enough private judgment – and hence enough disobedience – that his entire justification of absolutism seems to collapse. Hobbes allows subjects to resist non-life-threatening forms of punishment (wounds, chains, and imprisonment). He also allows them to refuse to testify in court against themselves and their loved ones. And worst of all, in Hampton’s view, he allows them to disobey commands that they judge to be dishonorable. Thus, there is a real worry that even if Hampton were to recognize the distinction between judging whether a reason is excluded or not and judging what one ought to do on the basis of all available and relevant reasons, she could respond that Hobbes allows so many exceptions to a subject’s duty to obey that the distinction is rendered useless. The judgment of what reasons are excluded is so comprehensive that subjects end up always being allowed to act according to their own assessment of reasons. To adequately address this concern, it is necessary to determine whether there is a principled way to draw a line between those cases in which a subject is obligated to obey and those cases in which she is not. To put the question in Razian terms: what is the difference between an excludable and a nonexcludable reason for Hobbes? Could just any reason in principle be nonexcludable on his account? Can one determine the scope of nonexcludable reasons? If not, then must one accept Hampton’s conclusion that Hobbes’s claims about retained rights fundamentally destabilize his conception of absolute sovereignty? I argue that we can, in fact, draw a principled distinction between excludable and nonexcludable reasons in Hobbes’s account. Therefore, the scope of subjects’ nonexcludable reasons is compatible with their submission to an absolute sovereign. My approach is twofold. First, I argue that we can extend the strategy used to answer the first stage of Hampton’s objection. This allows us to determine which reasons are nonexcludable by making reference to the reason people enter into the social contract (that

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is to say, the reason they have for treating the sovereign’s commands as giving exclusionary reasons in the first place). Second, I argue that Hobbes implicitly relies on a principle that excuses disobedience in cases in which obedience is unnecessary to the maintenance of sovereign power. Even in the cases that Hampton finds so problematic, we can see that Hobbes carefully circumscribes the rights to resist such that none can pose a threat to the absolute right or power of the sovereign. The right to resist punishment (wounds, chains, and imprisonment) is a good place to start. As I argued in Chapters 1 and 2, it is not merely the hope of bodily survival that motivates people to join a commonwealth. Freedom from the threat of violence in general and freedom of mobility are also goods that only civil society can provide. These cases seem to fall under the following general rule: if obedience to a command has consequences that undermine the reason why one entered civil society, one can disobey. The final result of obeying a command to kill or wound oneself, or to put oneself in chains, are the very sorts of evils that people are trying to avoid when they leave the state of nature. Hobbes argues here that political obligation runs out if its results negate the very reason why we obligate ourselves in the first place. This kind of analysis supports the right to disobey those commands that promise physical harm or the utter restriction of physical freedom. This is recognizable as a version of the “fidelity principle,” which I defended in the first two chapters. Perhaps we can say that a first-order reason is beyond the scope of the exclusionary power of the sovereign’s commands if failure to act on that reason would undermine the justification for taking the command as providing an exclusionary reason in the first place (in this case, avoiding bodily harm and total loss of corporal liberty). A reason is nonexcludable if treating it as excludable (and so not acting upon it) contradicts the reason you have for treating the sovereign’s commands as offering exclusionary reasons. For example, there is a nonexcludable reason of the form, the consequences of obedience to this command involve substantial violence or bodily harm at the hands of another. Suppose the sovereign commands a subject to wound himself (an example Hobbes gives in Chapter 21 of Leviathan). Treating the reason as excluded, and so obeying the sovereign, results in actions that undermine the point of submitting to the sovereign in the first place. While such a reason may be capable of being overridden, it is beyond the exclusionary scope of the sovereign’s commands. Hobbes also offers another argument for allowing people to resist the sovereign’s attempts to punish them. Hobbes argues that it is unnecessary for people to undertake an obligation to submit to their own punishment.

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All that is necessary is that they agree not to defend others against the sovereign. Recall, Hobbes allows a subject to disobey in certain cases if their disobedience does not “frustrate the end for which the sovereignty was ordained.” He invokes this principle to explain why people are justified in attempting to resist punishment at the hands of the state: such attempts have no important effects on sovereign right or power. The sovereign can rightfully punish you, and you can rightfully resist. Thus, it seems to follow that a reason is nonexcludable if treating it as nonexcludable does not materially reduce the power of the sovereign. As I argued in Chapter 1, Hobbes incorporates a “universality requirement” into this justification for disobedience, insisting that a right is retained in the social contract only if it can be retained by everyone without a “loss of peace.” Perhaps Hobbes’s idea is captured more accurately by saying, a reason is nonexcludable if everybody can treat it as nonexcludable without materially reducing the power of the sovereign. For Hobbes, every subject who is commanded to wound himself can refuse without threatening the right or power of the sovereign. This explains how, contra Hampton, the Hobbesian right to resist punishment does not undermine his notion of absolute sovereignty. This leaves us with a set of problematic cases in which Hobbes says a subject can disobey even if her own preservation or security is not at issue. Hampton points to Hobbes’s recognition of the right to disobey dishonorable commands and the right to refuse to testify in order to protect a loved one or benefactor. These cases are especially puzzling because both may involve resisting the sovereign’s attempts to punish others, and Hobbes is clear that subjects do not retain the right to defend others. The lesson Hampton draws from these examples is that Hobbes is committed to the claim that subjects have the right to disobey when they judge that disobedience furthers their interests more than obedience. To put it in Razian terms, in their deliberations about how to act, subjects will include the sovereign’s commands as first-order reasons to be weighed against all their other first-order reasons. This means that subjects will exercise and act on their own private judgments of the matter in each and every case. But, this reintroduces the state of nature into civil society and, on Hobbes’s own principles, the commonwealth will inevitably dissolve if this is the case. Moreover, Hampton argues that the Hobbesian rights to resist are so broad that they serve to legitimize, or even encourage, widespread disobedience and resistance to the sovereign, and therefore destabilize the commonwealth. Yet, I believe that it is possible to show how Hobbes can avoid these conclusions. Each of his examples become

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perfectly explicable once we understand that the particular features of each case prevent them from being a threat to the absolute power of the sovereign and, therefore, permissible in a Hobbesian commonwealth. Consider the right to disobey a dishonorable command, for example. As discussed in Chapter 2, the only example that Hobbes gives of this sort of case is the son refusing to obey a command to kill his father. To make sense of this case, it is necessary to look carefully at the reason Hobbes believes the son has for disobeying. Hobbes says that the son would prefer death to a life of ignominy. In this case, it is not that the son thinks that the sovereign is wrong to issue such an order, or that the issuance of such an order is outside of the sovereign’s right. Rather, the son wishes to avoid a fate that he sees as worse than death, namely a life of disgrace. In this case, Hobbes insists that the son’s refusal is permitted because it is inconsequential:  “Nor is [a subject] obliged to kill a parent, whether innocent or guilty and rightly condemned; since there are others who will do it, if ordered to do so.”52 The son’s refusal to obey such a command in no way threatens the power of the sovereign because someone else can easily be found to kill the man’s father. The son’s reason can perhaps be understood as “obedience to this command would result in the ‘ignominy and disgrace’ which accompanies the life of a parricide.” Even if everyone treated this reason as nonexcludable, the right and power of the sovereign would not be reduced. That is, even if every son put in this position were to disobey, the power of the sovereign would remain intact. On the basis of this case, Hampton interprets Hobbes’s defense of this right as a blanket permission to disobey the sovereign in order to “protect their reputation.”53 But her reading is not only uncharitable, it is also misleading. Hobbes asserts in Chapter 21 of Leviathan that subjects can disobey dishonorable commands unless their disobedience “frustrates the end for which the sovereignty was ordained.” But, as I argued in Chapter 2, this statement is vague; it is not at all clear what he has in mind. And the only example he gives is the one in De Cive, which was discussed above. Interestingly, Hobbes uses this case as a way of explaining how retained rights can coexist with absolute sovereignty. He posits that there are other cases in which commands are dishonorable for some people to carry out but not for others; the former are right to refuse to do them but not the latter; and this will be without prejudice to the absolute right given to the ruler. For in no case is his right of killing those who refuse obedience excluded.54 De Cive, 6.13. Hampton, Hobbes and the Social Contract Tradition, 200.

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Hobbes thus concedes that subjects for whom a particular command is dishonorable can be justified in disobeying. But he uses this opportunity to stress that their right to disobey is “without prejudice to the absolute right given to the ruler.” That is, the right to disobey is not in any way a detriment to any existing right of the sovereign because “in no case is his [the sovereign’s] right of killing those who refuse obedience excluded.” Recall that the right to disobey is simply a permission right; it imposes no duties on the sovereign (or anyone else) to respect that right. If the Hobbesian retained rights were instead claim rights or protected liberties, then they could pose a threat to his notion of absolute sovereignty – the sovereign might be prohibited from punishing disobedience with death, or others might have a duty to help the subject disobey. But because they are unprotected liberties, the sovereign does not have a duty not to interfere with the exercise of that liberty and no obligation to refrain from killing “those who refuse obedience.” His absolute right, then, is intact. One may infer that this kind of disobedience will occur only in extreme cases where the threat of punishment is preferable to the dishonor one supposes will result from obedience. After all, Hobbes does not give subjects a general license to disobey in order to “protect their reputation.” Rather, he acknowledges that in cases in which a subject finds obedience to a command so dishonorable that he would prefer to die for his refusal, he can justifiably disobey. The case of the husband refusing to testify against his wife is similar (and again, Hampton uncharitably calls this “the right to lie to your sovereign”). The husband does not refuse because he thinks that the trial is unjust or that the sovereign should not be prosecuting his wife; rather he refuses to give incriminating testimony against her because doing so would “embitter his life.” Like the son in the previous example, the husband’s disobedience is justified in part because his obedience is unnecessary. Indeed, Hobbes argues that such testimony is useless because it cannot be believed.55 And again, even if every husband refuses to incriminate his wife, the sovereign power would not be threatened; it would not even be affected. At this point, it should be clear how Raz’s model can be used to understand Hobbes’s doctrine of retained rights. The nonexcludable first-order reasons in the Hobbesian system seem to take one of the following two general forms:  (1) obedience to this command has consequences that contradict the justification for submitting to the sovereign (death, bodily   De Cive, 6.4.

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harm, total loss of corporal liberty, and so forth); and (2), disobedience, even if universal, to this command does not materially reduce the power of the sovereign. Absent one of these two reasons, subjects are obligated to obey the sovereign. That is, the exclusionary power of the sovereign’s command is effective. Of course, subjects can always ask themselves if they have one of these reasons, but such reflection is not itself a reason, first or second order, even where it can provide a reason. I have now shown how we can make a principled distinction in Hobbes’s account between cases in which subjects are obligated to obey and those in which they are not, and so we can avoid the slippage that most concerns Hampton. Of course, Hampton might reply that Hobbes is forced by his own principles to prohibit any exercise of private judgment in the commonwealth. Even if we clearly define the conditions in which subjects are justified in acting on their private judgments, my interpretation of Hobbes still acknowledges some private judgment. But according to Hobbes’s analysis of the state of nature, it might be pointed out, people acting on their own private judgments inevitably leads to conflict. Stable societies and private judgments seem opposed to each other. We can answer this concern by attending to the distinction between Hobbes’s diagnosis of the privacy of judgment problem in the state of nature and his diagnosis of the privacy of judgment problem in civil society. It turns out that the kind of private judgment which leads to conflict in the state of nature is not the kind of private judgment which leads to conflict in commonwealths. As I discussed above, part of what makes the state of nature a state of war is that the only judgments which people appeal to are their own; each person judges for herself what is necessary and conducive to her preservation, what counts as good and bad, and so forth. Yet the stakes are high and such judgments frequently lead to conflict; therefore, violence is an ever-present threat. Moreover, in conditions of radical uncertainty, the right to do what one judges most conducive to one’s survival expands to the right to do almost anything. Judgments about self-preservation do cause conflict in the state of nature. In civil society, on the other hand, the privacy of judgment problem looks significantly different. For Hobbes, the private judgments that are problematic and potentially destabilizing in civil society are not preservation-related; rather, they are moral, ideological, and religious. Hobbes denies that subjects can disobey or resist the sovereign on the grounds that, for example, they disagree with his interpretation of scripture or

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they think that his laws are unjust or illegal. It is the exercise of this kind of private judgment that Hobbes wants to rule out.56 Matters of religion, morality, and ideology are highly disputable, and if everyone acted on their own private judgments of such things, conflict, perhaps even violent conflict, might ensue. Hobbes insists that in these cases, subjects must “submit their judgments to the judgment of the sovereign.” Political stability requires uniformity of judgment; it requires that everyone be guided by one judgment, namely, the sovereign’s. In his diagnosis of political and social disorder, Hobbes finds fault with the notion that people can act against the sovereign for moral, ideological, or religious reasons (see Chapter 29 of Leviathan, “Of those things that Weaken, or tend to the dissolution of a Common-wealth”). In Razian terms, such reasons are excludable first-order reasons. According to Hobbes, the existence of a stable political society depends on the exclusion of such reasons from the practical deliberations of subjects. Indeed, Hobbes speaks of excludable first-order reasons in precisely these terms. Consider Hobbes’s argument concerning the role of individual conscience in civil society. Another doctrine repugnant to civil society is that whatsoever a man does against his conscience is sin; and it dependeth on the presumption of making himself judge of good and evil. For a man’s conscience and his judgment is the same thing; and as the judgment, so also the conscience may be erroneous. Therefore, though he that is subject to no civil law sinneth in all he does against his conscience, because he has no other rule to follow but his own reason, yet it is not so with him that lives in a commonwealth, because the law is the public conscience, by which he hath already undertaken to be guided. Otherwise, in such diversity as there is of private consciences, which are but private opinions, the commonwealth must needs be distracted, and no man dare to obey the sovereign power farther than it shall seem good in his own eyes.57

First-order reasons that stem from private conscience are necessarily excludable for Hobbes. More specifically, the scope of the exclusionary power of the sovereign’s command must extend to all such judgments of conscience. Hobbes’s argument seems to be this. Subjects submit to the will of the sovereign in order to enjoy the benefits of living in a peaceful and stable commonwealth. Allowing every subject to act according to his In some cases, this distinction between preservation-related and non-preservation-related reasons might not be so sharp, considering people’s concerns for salvation and the dangers to themselves of an arbitrary, unjust (in the non-Hobbesian sense) ruler. Hobbes is aware of this problem and so spends time showing that one’s salvation is best secured by obedience to one’s sovereign and that even a tyrannical ruler is preferable to the state of nature. 57 Leviathan, 29.7. 56

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or her own conscience would undermine that goal. Hence, subjects are not allowed to act against the sovereign because of their own private judgments of good and evil. Similarly, Hobbes argues against the “seditious doctrine” that encourages any person to “take his own inspiration  … [instead of] the law of his country … for the rule of his action.”58 The kinds of private judgments that must be excluded in the Hobbesian commonwealth are matters of conscience and matters of faith. Instead, every subject should “be guided … by the public conscience” and “take the law of his country … for the rule of his action.” One can see how Hobbes’s language lends itself to the Razian analysis. Furthermore, Hobbes is clear about what kinds of reasons (or private judgments) must be excluded from the practical deliberations of subjects in civil society – preservationrelated reasons are not among them. L i m i t e d obe di e nc e t o a n u n l i m i t e d s ov e r e ig n I have argued that Hobbes’s notion of conditional political obligation can be reconciled with his notion of unconditional (or absolute) sovereignty. Hobbes’s sovereign is absolute (and absolutely authorized) in that he can command with impunity (he is unlimited, undivided, and immune from blame). But unlike many absolutists, Hobbes does not think that absolute sovereignty requires absolute obedience. For example, in De Cive, Hobbes argues that the sovereign must have absolute right. He clearly distinguishes it from absolute obedience: To absolute right on the part of the sovereign ruler corresponds so much obedience on the part of the citizens as is essential to the government of the commonwealth, that is, so much as not to frustrate the grant of that right. Though such obedience may sometimes rightly be refused for various reasons, we shall call it simple obedience, because it is the greatest obedience that can be given.59

Hobbes clearly recognizes the difference between necessary and unnecessary obedience. Neither the obedience of a condemned man nor the obedience of a son ordered to kill his father is “essential to the government of the commonwealth.” In both cases, disobedience does not “frustrate the grant of [absolute] right,” and so obedience can “rightly be refused.” It is precisely because the retention of such permission rights does not limit the right or power of the sovereign that Hobbes allows them. Leviathan, 29.8. De Cive, 6.13. Note that this quotation almost immediately precedes Hobbes’s discussion of the son disobeying a command to kill his father.

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Moreover, it is precisely these cases where Hobbes says that obedience cannot reasonably be expected. As I discussed in the previous chapter, after explaining that instituting a sovereign requires agreeing not to interfere with the sovereign’s attempt to punish other subjects, Hobbes observes that “men generally keep this kind of agreement well enough, except when they or those close to them are to be punished.”60 The obedience subjects give to the sovereign is “the greatest obedience that can be given.” He must mean that it is the greatest obedience that can be expected to be given, because surely some subjects can and do give more obedience. On my view, this claim should be articulated even more strongly: the cases in which obeying would undermine the point of submitting to the sovereign are exactly those cases in which the power of the sovereign is not materially reduced by a subject’s disobedience. That is, the obedience that cannot be expected is the same as the obedience that need not be given. The beauty of this picture is that there seems to be a perfect symmetry between what Hobbesian subjects can reasonably be expected to do and what they must do. All of the cases of justified disobedience are cases in which the threat of punishment is likely to be ineffectual. In Hobbes’s own example, the son does not care that he will face death for his disobedience. Most punishment threats have no effect on the condemned man who tries to escape on his way to the guillotine. Hobbes clearly thinks that these are cases in which disobedience can be systematically expected. Because they do not pose a threat to the power of the sovereign, these are also exactly the cases of disobedience that the sovereign can systematically permit. Of course, the sovereign could always try to increase the severity of the threats. For example, in the case of the condemned man on his way to the guillotine, the sovereign could hold his family hostage and threaten them harm if the man attempts to escape. This might work in some cases. But Hobbes’s point seems to be that these measures are, in an important sense, gratuitous. The sovereign power is not substantially increased, in Hobbes’s view, by requiring an obligation on the part of subjects to submit to their own punishments. So Hobbes is permitted to allow the doctrine of retained rights; that is, he can do so without logical inconsistency. He is required to allow the retention of the very same rights because of his commitment to uniting enlightened self-interest with political obligation. Hobbes’s thesis is that people ought to submit to an absolute sovereign because only then can 60

  De Cive, 6.5.

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they avoid the ills of the state of nature. His deepest conviction is that any effective government is preferable to no government at all, and that it is virtually always in our interests to obey the government. So his view of political obligation cannot demand people’s obedience in cases in which it is clearly and utterly against their self-interest to obey. Thus, while Hampton and others were correct to point out that Hobbes’s doctrine of retained rights is puzzling, I have argued that these puzzles do not, in fact, pose a problem for Hobbes’s theory. If we interpret Hobbes along Razian lines, then we find a useful way of understanding the Hobbesian notion of sovereign authority. Moreover, if we understand Hobbes’s doctrine of retained rights as cases in which subjects act on nonexcludable first-order reasons, then we get a deeper understanding of Hobbes’s project. Hobbes was not trying to eliminate private judgment in the commonwealth; he knew this to be impossible. Rather, he was trying to quarantine it by limiting it to those cases where its exercise would be politically insignificant. By exploring these issues, a fundamental symmetry in the derivation of the doctrine of retained rights has been uncovered; one that goes to the heart of Hobbes’s political philosophy:  what Hobbesian subjects are not obligated to do turns out to be precisely what they cannot reasonably be expected to do and what they need not do.

Ch apter 4

Is Leviathan a “rebel’s catechism”?

On a natural reading of his philosophy, Hobbes is a man of extremes. His positions on various questions often come in the form of absolutes. He defends absolute materialism and absolute moral subjectivism, and he maintains that the condition of man outside civil society – the “state of nature”  – is absolutely terrible. The political authority of the sovereign is also absolute, and rebellion by subjects against their political order is absolutely prohibited. Hobbes makes it easy to take his positions in this way, and the interpretation of Hobbes as advancing an absolute prohibition on rebellion finds a great deal of explicit textual support. For example, he argues against rebellion saying that it is “but war renewed.”1 Indeed, at times Hobbes writes as though his entire project, at least in De Cive and Leviathan, is to demonstrate the illegitimacy and imprudence of rebelling against an established and stable political order. But this view strikes our modern eyes as implausible. We take it for granted that rebellion is sometimes justified, even though there is much disagreement about the specific circumstances that justify it. Read as an absolute prohibition, Hobbes’s position on rebellion is, thus, easily dismissed; though this dismissal is usually accompanied by a sympathetic nod, acknowledging that this unreasonable view is understandable given the political climate in which Hobbes wrote. After all, he lived through the rebellion against King Charles I and the English Civil War, and was, therefore, acutely aware of the potentially disastrous consequences of rebellion. So, although modern readers might not hold Hobbes’s views on rebellion against him, they also do not take them seriously. Some scholars have developed readings of Hobbes that moderate his positions, and these attempts have been successful to varying degrees. However, among contemporary commentators relatively little attention   Leviathan, 28.23.

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has been paid to Hobbes’s view of rebellion. Most take Hobbes at his word and so understand him to be endorsing an absolute and unconditional prohibition on rebellion. Thus, it has seemed plausible to say that Hobbes was “above all, an anti-revolutionary”;2 that “there is no ‘right of rebellion’ in Hobbes”;3 that Hobbesian subjects “certainly have no right to remove a sovereign and put another in its place”;4 and that “for Hobbes, rebellion against established authority can never be justified.”5 Others hesitate to take Hobbes’s purported antirebellion stance at face value. For example, a number of commentators have noticed that while Hobbes does indeed say that rebellion is never justified, aspects of his theory imply that rebellion is sometimes permissible.6 As has been shown, Hobbes’s account of political obligation explicitly admits of exceptions; that is, he is clear that there are a number of cases in which subjects are not obligated to obey the commands of their sovereign. Thus far the case has been made that Hobbes’s right of self-defense and the true liberties of subjects form a unified, coherent theory of resistance rights and that these rights are compatible with Hobbes’s insistence on absolutism. It has yet to be determined, however, whether his account of resistance rights is compatible with his stated position on rebellion. The general worry is that the core idea behind Hobbes’s account of the limits of political obligation seems to entail a justification not only of disobedience, but also of rebellion against the state. For if there are cases in which subjects have the right to disobey, then perhaps there are also cases in which they have the right to rebel. Instead of finding this reading of Hobbes to be a strength, interpreters have tended to see it as a weakness. They charge Hobbes with inconsistency: he explicitly denies any justification for rebellion, but at the same time is committed to such a justification. Many of Hobbes’s contemporaries in the seventeenth century (most famously Bishop Bramhall and Edward, Earl of Clarendon) also noticed Andrew Levine, Engaging Political Philosophy: From Hobbes to Rawls (Oxford: Blackwell, 2002), 15. Friedrich O. Wolf, “Kant and Hobbes Concerning the Foundations of Political Philosophy” in Proceedings of the Third International Kant Congress, ed. Lewis White Beck (New York: Humanities Press, 1972), 609. 4 Barry Hindess, Discourses of Power from Hobbes to Foucault (Oxford: Blackwell, 1996), 54. 5 Sabrina P. Ramet, Whose Democracy? Nationalism, Religion, and the Doctrine of Collective Rights in Post-1989 Eastern Europe (Lanham, MD: Rowman & Littlefield, 1997), 16. See also, D. J. C. Carmichael, “Hobbes on Natural Right in Society: The ‘Leviathan’ Account,” Canadian Journal of Political Science 23, no. 1 (1990), 16. 6 Representative examples include:  Hampton, Hobbes and the Social Contract Tradition; Kavka, Hobbesian Moral and Political Theory; Alan Ryan, “Hobbes’s Political Philosophy” in The Cambridge Companion to Hobbes, ed. Tom Sorell (Cambridge University Press, 1996), 208–245; Finkelstein, “Puzzle about Hobbes’s Right of Self-Defense,” 358; Curran, Reclaiming the Rights of Hobbesian Subjects, 186; and Steinberger, “Hobbesian Resistance,” 865. 2 3

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this implicit commitment to a right of rebellion, and some used this as a way to disparage his work.7 That Hobbes was taken to be legitimizing rebellion is evidenced in a letter from Edward Nicholas to Lord Hatton stating that Hobbes’s “writings justified the reasonableness and righteousness of their [the rebels’] arms and actions.”8 The right of rebellion was a “hot-button” issue in Hobbes’s time, and the possibility that Hobbes himself could allow such a right generated a great deal of controversy. When Bishop Bramhall famously called Leviathan a rebel’s catechism, he was indicting not only the internal consistency of Hobbes’s philosophical views, but also his political commitments as a supporter of the king against his rebellious subjects. Indeed, Leviathan was met with horror by many in royalist circles, especially among those who thought that subjects did not retain any rights at all that could be enforced against the king. Moreover, the right of private judgment implicit in the right of rebellion struck many royalists in the seventeenth century as both false and pernicious, and offended those with absolutist sensibilities. In present-day Hobbes scholarship, there has been serious and sustained debate about how best to understand Hobbes’s loyalties and allegiances in the complex and changing political arena of the seventeenth century. Some take him to be a proponent of the royalist cause, though there are disagreements in this camp about the exact nature of his particular brand of royalism. Others maintain that he was a proponent of defactoism, though, again, there are further disputes about how best to cash out the details of his commitments. Finally, some count Hobbes as a consent theorist. There are also differences of opinion about whether Hobbes consistently maintained any of these views or whether (and at what point) he changed his mind.9 One key question has been how to interpret the Bramhall, “Catching of Leviathan”; Edward, Earl of Clarendon, “A Survey of the Dangerous Mr Hobbes His Leviathan” in Leviathan: Contemporary Responses to the Political Theory of Thomas Hobbes, ed. G. A. J. Rogers (Bristol: Thoemmes Press, 1995), 180–300. Filmer raised similar concerns, though he was less worried that Leviathan unintentionally defends or encourages rebellion than he was that it is ambiguous or self-contradictory. Thanks to Johann Sommerville for helping me clarify the differences between Filmer and the other royalists. 8 Quoted in A. P. Martinich, Hobbes: A Biography (Cambridge University Press, 1999), 219. 9 To get a flavor of this debate, see Quentin Skinner, Visions of Politics, vol. III, Hobbes and Civil Science (Cambridge University Press, 2002); John Wallace, Destiny his Choice:  The Loyalism of Andrew Marvell (Cambridge University Press, 1968); Tuck, Philosophy and Government; Arihiro Fukuda, Sovereignty and the Sword:  Harrington, Hobbes, and Mixed Government in the English Civil Wars (Oxford University Press, 1997); Deborah Baumgold, “When Hobbes Needed History” in Hobbes and History, ed. G. A. J. Rogers and T. Sorell (London: Routledge, 2000), 25–43; Kinch Hoekstra, “The De Facto Turn in Hobbes’s Political Philosophy” in Leviathan after 350 Years, ed. Tom Sorell and Luc Foisneau (Oxford: Clarendon Press, 2004), 33–73; and Eleanor Curran, “A Very Peculiar Royalist: Hobbes in the Context of his Political Contemporaries,” British Journal for the History of Philosophy 10, no. 2 (2002), 167–208. 7

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political theory of Leviathan, particularly the “Review and Conclusion,” which was written after most of the main text of the English edition and is taken by many to constitute Hobbes’s attempt to justify submission to the new regime after the beheading of Charles I. In a new twist to this debate, Jeffrey Collins has recently argued that Leviathan should be read as a “revolutionary text” which emerged “out of the forward-looking state-building and religious reform projects of the English Revolution.” In Collins’s view, “Leviathan represented the flowering of Hobbes’s long germinating sympathy with the Erastian ideology of the Revolution.”10 Questions about Hobbes’s actual political loyalties at any given time, as well as questions about the details of Hobbes’s position on the legitimacy of Cromwell’s rule, are interesting in their own right; however, such issues are, in an important sense, separable from the question that is the focus of this chapter, namely the right of rebellion. The issue of the right of rebellion includes, to use Hobbes’s words, a question about whether or not “sovereigns can be rightly stripped of their authority,” or to put it another way, whether “citizens [can legitimately] unite in conspiracy against the sovereign power.”11 This is a philosophical question; that is, it is a question about whether Hobbes’s theory of political obligation confers a right to conspire with others in order to strip an established sovereign of his authority. Even if a successful usurper’s power once established is legitimate, it does not follow that the act of usurpation was thereby justified. The question here does not concern the authority of, or obligations to, a postrebellion government (though this is the question we can answer by getting a better handle on Hobbes’s precise brand of royalism, defactoism, or consent theory). Rather, our question – which is logically distinct – is about the permissibility of engaging in rebellious behavior in the first place. Kinch Hoekstra points out that “Hobbes thinks that the parliamentary and army leaders violated precedent obligations to obey the king …This does not, however, affect their sovereign authority, for the sin and injustice of their rebellion does not invalidate their subsequent right.”12 Similarly, the validity of the subsequent right does not validate the act of rebellion. Legitimacy is not, as it were, retroactive. Even Collins acknowledges that “Hobbes was [not] a revolutionary firebrand … He was deeply averse, theoretically and personally, to factionalism and political resistance. There is no doubt that his initial political sympathies were with Charles I.”13 Even if Collins is ultimately right that Jeffrey R. Collins, The Allegiance of Thomas Hobbes (Oxford University Press, 2005), 116. De Cive, 6.20. 12 Hoekstra, “De Facto Turn,” 4, footnote 39. 13 Collins, Allegiance of Thomas Hobbes, 58. 10 11

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Hobbes’s allegiances were with the ideology of the revolutionaries, it does not follow that Hobbes thought their attempt to enact a regime change in order to institute those ideologies was thereby justified; in fact, he did not. We can take it for granted that for Hobbes the parliamentary rebellion against Charles I was wrongful; the question before us is whether or not rebellion could ever be justified on Hobbes’s account. How should we read the Hobbesian position on the legitimacy of rebellion? In particular, can we understand his theory in a way that allows for a right of rebellion without contradiction? In this chapter I explore these questions and attempt to resolve at least some of the interpretive difficulties. I argue that there is an identifiable and coherent Hobbesian right of rebellion and, moreover, I argue that this right is consistent with Hobbes’s stated rejection of rebellion in the cases that he addresses. I begin by describing this right of rebellion and argue that Hobbes is  – and must be – committed to it. I then show how this right, correctly understood, is compatible with Hobbes’s explicit arguments against rebellion. I conclude by responding to the objections put forth by some of the most prominent among Hobbes’s critics on this point. In the end, I suggest that Hobbes’s solution to the problem of rebellion is best understood as an object lesson for political rulers on how to govern well, such that subjects are not disposed to rebel. Understood as counsel for wise sovereigns, Hobbes’s views on rebellion appear more plausible than they at first might seem. T h e Hobbe s i a n r ig h t of r e be l l ion We can understand the right of rebellion to be the right to engage in collective action in an unlawful attempt to overthrow, replace, or reform an existing political authority.14 It is important to note that the right to rebellion is framed in terms of collective action. While there can be lone rebels, rebellions themselves only occur and succeed when large numbers of people join forces. Even paradigmatic lone rebels such as Guy Fawkes are usually part of a larger movement. Moreover, it was rebellion as a collective act that worried political 14

A note on terminology: many use the terms rebellion and revolution interchangeably and it is not clear that there is any difference between a “right to rebel” and a “right to revolt.” There might be some differences between the connotations of the two words; for example, oftentimes, revolution is used to signify a successful rebellion; see Roger Scruton, A Dictionary of Political Thought (London: Macmillan, 1982), 395–396 and 406–407. But such differences are of no consequence here. Moreover, this definition of rebellion is meant to be sufficiently broad as to cover instances of sedition, insurgency, uprising, and even protest. So, according to this understanding, the food riots that occurred so regularly in early modern Europe would count as rebellions. Hobbes spoke most often in terms of rebellion, though, as Reinhart Kosellack notes, in Behemoth he refers to the period between 1640 and 1660 as a “revolution,” saying, “I have seen in this revolution a

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philosophers of the time, including Hobbes. While this definition of rebellion is relatively uncontroversial, the circumstances under which Hobbesian subjects can rightfully rebel are idiosyncratic. As I see it, the Hobbesian right of rebellion takes the following form: a subject has the right to rebel if and only if that subject judges that the sovereign is not providing adequately for his security and that rebellion is the best means to his self-preservation. There are at least two arguments for the claim that Hobbes is committed to the existence of such a right. First, it is natural to understand the right of rebellion as part of Hobbes’s doctrine of retained rights. Second, Hobbes adheres to a general principle of political obligation – what I will call the “no obligation without security” principle – that entails the right of rebellion. I take each of these in turn. Hobbes’s doctrine of retained rights and the case of continued rebellion Hobbes never explicitly states that the right to rebel is one of the rights retained by subjects, but this seems to be implied by his analysis. Hobbes concludes his discussion of the true liberties of subjects by noting that people involved in an ongoing act of resistance have the right to continue resisting if they are not offered pardons: To resist the sword of the commonwealth, in defence of another man, guilty, or innocent, no man hath liberty, because such liberty takes away from the sovereign the means of protecting us, and is therefore destructive of the very essence of government. But in case a great many men together have already resisted the sovereign power unjustly, or committed some capital crime for which every one of them expecteth death, whether have they not the liberty then to join together, and assist, and defend one another? Certainly they have; for they but defend their lives, which the guilty man may as well do as the innocent. There was indeed injustice in the first breach of their duty; their bearing of arms subsequent to it, though it be to maintain what they have done, is no new unjust act. And if it be only to defend their persons, it is not unjust at all. But the offer of pardon taketh from them to whom it is offered, the plea of self-defence, and maketh their perseverance in assisting or defending the rest, unlawful.15 circular motion of the sovereign power through two usurpers … it moved from King Charles I. to the Long Parliament; from thence to the Rump; from the Rump to Oliver Cromwell; and then back again from Richard Cromwell to the Rump; thence to the Long Parliament; thence to King Charles II. Where long may it remain” (Behemoth, 204). According to Kosellack, Hobbes’s usage is indicative of the way in which the history of political change was understood in this time period; see Reinhart Kosellack, Future’s Past:  On the Semantics of Historical Time (New York: Columbia University Press, 2004), 46. 15 Leviathan, 21.17.

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It is not clear how we should understand Hobbes’s reference to a “case [when] a great many men together, have already resisted the sovereign power unjustly.” Many readers have taken it for granted that Hobbes is referring to people engaged in an ongoing rebellion.16 While he uses neither the word rebels nor rebellion here, I think that this interpretation is justified. Not only do participants in an ongoing rebellion nicely fit this description, but the original act of resistance was also a collective action of the right sort (“a great many men together” committed a certain act, namely, “resisting the sovereign power”). Other groups of people might also fit this description; a band of thieves would likely count. However, it seems unnatural to describe stealing as an instance of resisting the sovereign power, even though such an act is unjust according to Hobbes’s account. Rebellion, however, is an obvious case of an act of collective resistance to a sovereign power. Most importantly, there is an almost identical passage in The Elements of Law where Hobbes uses very similar language to describe a case in which a group of people charged with a capital crime band together for self-protection: “when a great multitude or heap of people, have concurred to a crime worthy of death, they join together, and take arms to defend themselves for fear thereof.”17 And this passage is in the middle of his discussion of rebellion. So it seems fair to infer that Hobbes might have had rebels in mind when composing the comparable passage in Leviathan. In any case, rebels fit the description he gives there. The question of whether rebels should be considered subjects at all will be addressed later in this chapter. For now, the interpretive point will be granted. Now, consider what this passage suggests about a group of rebels. Although their initial act of rebellion is “indeed injustice,” the continuation of the rebellion is morally permissible because if such rebels were obligated to turn themselves in without pardon, then they would be For example, the author of a recent article on Hobbes references this passage and simply inserts the word “rebels” in brackets to indicate that it is the intended referent of “a great many men” (Delphine Thivet, “Thomas Hobbes:  A Philosopher of War or Peace?,” British Journal for the History of Philosophy 16, no. 4 [2008], 707, footnote 38). This is just one representative example of a dominant trend in the literature; Thivet is certainly not alone in making this move and many others make it with similar ease. I think that at least some justification needs to be given for this interpretive move, since Hobbes gives no indication that he has rebels in mind, and other groups of people fit the same description. Indeed, I think it is likely that Hobbes does not only have rebels in mind here; my claim is simply that he is addressing a range of cases that includes those engaged in an ongoing rebellion. Scholars that have taken an interpretive interest in this particular passage tend to reach the same conclusion. Interestingly, although Kavka agrees with my interpretation of this passage, he argues that Hobbes is not entitled to the claim that rebels are justified in continuing their rebellion (Kavka, Hobbesian Moral and Political Theory, 433–436). 17 Elements of Law, II.8.2. 16

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obligated to do something that was contrary to their self-preservation (especially since Hobbes advocates giving traitors and rebels the death penalty). So, rebels have the right to continue rebelling because doing so is necessary for their self-preservation. Hobbes, thus, must understand the right to continue rebelling as continuous, in some important sense, with the other rights that are retained in the commonwealth, and as such, we should consider it one of the true liberties of subjects. Like many of the other true liberties of subjects, Hobbes conceives of this right as a right to resist punishment. And so if such rebels are offered a pardon  – thereby removing the threat of punishment  – they are obligated to accept it and cease their rebellion. While the right to continue rebelling is different from the other retained rights because it is explicitly a right to engage in collective action against the government, it is clear that Hobbes’s claims are all of a piece:  if a subject judges that doing X is necessary for his self-preservation, then he does X without injustice. There are no limits placed on what can be substituted for X. When faced with conditions of necessity, subjects have the right to do whatever they judge to be necessary for survival, including joining forces with others. And so the Hobbesian right of rebellion, like many of the other resistance rights, is a right that is exercised in extremis. This particular passage is crucial to my interpretation of the Hobbesian right of rebellion because in it we see Hobbes taking the right of self-defense to its logical conclusion, explicitly acknowledging that it permits engaging in collective resistance to the sovereign power. Unsurprisingly, this passage provoked outrage from Hobbes’s royalist contemporaries.18 The “no obligation without security” principle Hobbes also has a general principle of political obligation committing him to a right of rebellion. He explicitly endorses the following general principle: a subject has no obligation to obey the sovereign if he judges that the sovereign is not providing for his security. If we add a plausible premise (if the sovereign is not protecting a person, joining forces with others in order to effect political change may be the best way to preserve himself), this implies a right of rebellion. There are a number of passages in which 18

Bramhall immediately understood the logical implications of Hobbes’s claim, and he cites this passage immediately before he charges Leviathan with being a rebel’s catechism (“Catching of Leviathan,” 145). Clarendon references this passage in his similar critique (Brief View and Survey, 234).

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Hobbes either explicitly puts forth or implicitly assumes this principle. Here are two particularly clear examples. First of all it is essential to peace that each man be adequately protected from the violence of other men, so that he may live in security, i.e. so that he may not have reasonable cause to fear other men so long as he refrains from wronging them. It is in fact impossible to secure people from harm from each other, so that they cannot be wrongly hurt or killed; and so this is not for discussion. But one can provide that there will be no reasonable ground for fear. Security is the End for which men subject themselves to others, and if it is not forthcoming, the implication is that no one has subjected himself to others, or lost the right to defend himself as he thinks best. People are assumed not to have bound themselves to anything or to have given up their right to all things until arrangements have been made for their security.19 The obligation of subjects to the sovereign is understood to last as long, and no longer, than the power lasteth by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no covenant be relinquished … The end of obedience is protection, which, wheresoever a man seeth it, either in his own or in another’s sword, nature applieth his obedience to it, and his endeavour to maintain it.20

Hobbes uses the terms security and protection interchangeably, but what he clearly means by these terms is the absence of a reasonable fear that one will be subject to violence at the hands of others (as long as one does not provoke them first). Without security, people have no obligations to obey, and if they are secure, then they are obligated to obey. And as the last line of the Leviathan passage makes clear, it is the subject’s own judgment of whether or not he is protected and by whom that determines where his obedience is due: a person owes his obedience “wheresoever … he sees it.”21 Of course, Hobbes does not introduce this principle in order to justify rebelling against an existing political order. Rather, he uses it to explain how people can be released from their obligations to obey the commands of the state. There are two categories of cases. First, there are cases in which all subjects are released:  (1) when the sovereign abdicates power; 20 De Cive, 6.3. Leviathan, 21.21. We find a version of the “no obligation without security” principle in Leviathan’s “Review and Conclusion” (17), in Hobbes’s reference to “the mutual relation between protection and obedience.” Many have taken this particular statement as an indication of Hobbes’s support for Cromwell’s rule and so infer that it is a justification for rebellion, but as I noted in the Introduction, this does not follow. Since legitimacy is not retroactive, even the strongest justification for Cromwell’s authority will not suffice to justify the actions necessary to establish that authority; and indeed, Hobbes thought they were not. Moreover, even if Hobbes’s theory requires individuals who accept the protection of a conqueror to submit to that conqueror and recognize his sovereignty, this in no way legitimates the act of conquest, especially if that conquest involved deposing and

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(2), when the sovereign is vanquished or the commonwealth has fallen to a foreign power; and (3), if no successor is apparent. In these cases, the sovereign either cannot or will not provide for the security of his subjects, and so they are under no obligation to obey him. Second, there are cases when one or more, but not all, of the subjects are released: (1) if a subject is exiled, banished, or given permission to live abroad, or (2), if a subject is taken prisoner in war. In these cases, the relevant subjects no longer have an obligation to obey the sovereign because the sovereign is not providing for their security.22 Hobbes’s commitment to this general principle sows the seeds for a pro-rebellion stance that goes far beyond the particular cases he enumerates. If a number of subjects suffer lives that are fundamentally insecure or if they have persistent reasons to fear violence at the hands of others, then they have no obligation to obey the sovereign. Moreover, if they judge that the best way to protect themselves is to join forces against the sovereign, then they have the right to do so. This provides a relatively substantial Hobbesian justification for initiating a rebellion, not just for continuing one that is already in progress. Although Hobbes only acknowledges the right of rebels to continue rebelling, if people are justified in continuing a rebellion out of regard for their self-preservation, then there is no reason to think they are not justified in starting one for the same reason. While cases of self-defense are paradigmatic for Hobbes, the right of rebellion must also cover cases in which there is no direct threat of violence at the hands of others. Surely the lives of people not charged with a capital crime can be similarly endangered, either by the direct action of the state or by its inaction. As we have seen, threats to one’s life do not always take the form of violent attacks. Hobbes himself claims that if one lacks the basic necessities of life (e.g., food, water, air, medicine), one is executing a sitting monarch. But more importantly, the right to submit to a successful usurper is logically distinct from the right to take action to usurp an existing political ruler. If one has a right of rebellion, one has the right to attempt to overthrow an existing political order in order to establish a new one. This is a different and much stronger right than the right to submit to the new political order once it is established. Submitting to Cromwell in 1650 does not constitute rebellion in the same way as did the actions of the members of parliament in the 1640s (i.e., declaring rebellion and gathering troops to fight). So while the “no obligation without security” principle can be used to legitimate rebellion in certain cases, it does not legitimate the rebellion that occasioned the English Civil Wars. On a side note, the principle, as it is articulated in the Leviathan passage, might have interesting implications for how we understand the current situation in Afghanistan: Afghanis in certain parts of the country do not enjoy the protection of the Afghani State; rather, there are warlords who serve to protect them. I think Hobbes would have to say that those people owe their allegiance to the warlords, not the Afghani State. 22 The examples in the paragraph are taken from Leviathan, 21.22–45 and De Cive, 7.18.

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permitted to disobey the sovereign in order to procure them. Presumably, if such things are denied to a group, then the members of that group are justified in joining forces if such collective action is what they judge necessary to survive. Of course, taking organized action against one’s government might not be the best way to preserve oneself. But if it is the best way, then one has the right to take such action. I am now in a position to give a preliminary definition of what it means, on Hobbes’s account, for one’s life to be insecure (or unprotected): a subject’s condition is insecure (or unprotected) if, (1) he has reasonable cause to fear violence at the hands of others, or (2) he lacks one or more of the basic necessities of life. On Hobbes’s account, insecurity is sufficient for the termination of political obligation, and once one is freed from one’s obligation to obey the law, one can undertake whatever one judges to be the best means for selfpreservation, including rebel. It is important to note that the absence of security has to be a continual and pervasive feature of subjects’ lives; they do not have the right to take up arms against their governments if they suffer a temporary lapse in security. According to Hobbes, if someone breaks into my house to do me harm and the “help of the law is unavailable” (for example, the police cannot get there in time), then I have the right to kill the intruder. This is a temporary lapse in security, which of course does not give me the right to try to radically reform the existing political institutions. If I thought that the police would never help me if I needed it (perhaps because they do not come into the neighborhood in which I live), it might be possible to say that I was “unprotected” in the Hobbesian sense of the word. Hobbes argues that people “did institute the commonwealth for their perpetual (and not temporary) security.”23 Also, a subject’s life can be insecure even if he enjoys some of the benefits of the state. For example, a person who has a reasonable fear of violence at the hands of his neighbors could still be benefiting from public roads. The subject who lacks food is still being protected from foreign enemies. Finally, notice that Hobbes’s notion of security is consistent with his position on the subjectivism of rights of self-protection. When it comes to judgments about self-protection, the individual is sovereign, so to speak. This means that it is for the individual to judge whether or not his life is secure. This analysis provides a better understanding of the nature and scope of Hobbes’s purported antirebellion stance; it also shows that his stance is   Leviathan, 19.15.

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more sophisticated and nuanced than has commonly been suggested. A close look at his arguments reveals that Hobbes only wanted to reject the justification for certain types of rebellion. He neither wanted nor needed to rule out rebellion in all cases. Next, I argue that his particular right of rebellion is largely consistent with his general prohibition on rebellion. R e n de r i ng t h i ng s c ons i s t e n t (or , W h y t h e Hobbe s i a n r ig h t of r e be l l ion, s o de f i n e d, i s c om pat i bl e w i t h Hobbe s’s a rgu m e n t s ag a i ns t r e be l l ion) It might seem that the arguments I have given above for the Hobbesian right of rebellion, however limited a right it might be, serve to make Hobbes’s political philosophy more appealing (or at least, less unappealing). However, while I think that this is the case, there remain objections to incorporating a right of rebellion into a viable interpretation of Hobbes. After all, Hobbes spends considerable time giving detailed arguments against the legitimacy of rebelling against an existing political authority. He offers at least three arguments against rebellion: an argument from prudence, an argument from metaphysics, and an argument from contract. In this section I consider these arguments and show that they do not rule out the Hobbesian right of rebellion as described above. Before I begin, I must distinguish between two types of rebellion: ideological rebellion and rebellion from necessity. These two types of rebellion are distinguished by their motivations. Ideological rebellions are motivated by moral, political, or religious concerns; although the rebels have complaints against the government, their lives are secure.24 In contrast, rebellions from necessity are motivated by self-preservation; the lives of the rebels are insecure and they judge rebellion to be the best, or the only, means to self-preservation. My strategy is to show how Hobbes’s arguments against rebellion apply to the former but not to the latter. Consider a paradigmatic example of an ideological rebel:  John Hampden. In the 1630s Hampden committed what Hobbes calls “an open act of rebellion” by publicly refusing to pay the Ship Money on some of his lands and accusing King Charles I of acting illegally. The Ship Money was a relatively small levy and Hampden could have easily 24

Hobbes was concerned with the seditious nature of particular ideological doctrines, such as the idea that sovereigns are subject to the civil law, that a subject should follow her conscience against the sovereign, and that subjects have an absolute property right that excludes the sovereign (see De Cive, chapter 12 and Leviathan, chapter 29).

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afforded it. His refusal to pay was a symbolic act with overtly political purposes. Hampden persuaded others, including former members of Parliament, to join him in resisting the king, and their resistance was ultimately successful. Their actions culminated in the civil war and the beheading of Charles I. Hampden himself did not live to see the fruits of his resistance: he was killed in battle during the civil war. The Warsaw Ghetto Uprising, on the other hand, is a paradigmatic case of a rebellion from necessity. When the Nazis invaded Poland, they confined more than 400,000 Jews to the Warsaw Ghetto. Many died as a result of starvation and disease and about 300,000 were sent to concentration camps. Many of the remaining Jews organized to form the Jewish Combat Organization. In April 1943 about 60,000 Jews rebelled against their German captors. The rebellion was unsuccessful; the ghetto was burned to the ground and 56,000 of the resistors were killed, and the remainder were sent to the camps.25 It is clear that the residents of the Warsaw Ghetto did not lead secure lives. Indeed, their lives were likely worse than they would have been in Hobbes’s state of nature, where at least they would have been on a more equal footing with their attackers.26 Given this insecurity, the Warsaw Ghetto Uprising can be justified on Hobbesian principles. There are numerous other (admittedly anachronistic) examples in which the lives of certain individuals or groups under particular regimes can be described as insecure, in the Hobbesian sense of the word; these include the millions who starved as a result of Stalin’s forced collectivization, Kurds in Saddam’s Iraq, the people of Darfur in 2004 and 2005, Rwandan Tutsis and moderate Hutus in 1994, people living under Pol Pot’s Khmer Rouge, the Armenians under the Turks in the early twentieth century, and the list goes on. According to my argument, Hobbesian principles serve to justify rebellion in all of these cases (depending on the exact circumstances, of course). These are extreme cases, and it may seem that the conditions under which a person can legitimately rebel are so limited that they are of little theoretical interest. More importantly, there are significant questions about how perceptions of insecurity should be treated when they are unreasonable. I believe that there are Hobbesian responses to each The example of the Warsaw Ghetto Uprising is slightly complicated by the fact that the subjects were rebelling against an invading state, not their own political rulers. But we can overlook this complexity for our purposes here. 26 Being the prey of an all-powerful sovereign is arguably more dangerous than the Hobbesian state of nature. John Locke makes this point with his famous pole-cats and lions analogy (Second Treatise of Government, section 93). 25

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of these worries, and I will return to them at the end of this chapter. We are now in a position to look at the details of Hobbes’s arguments against rebellion. In each case, I show that Hobbes’s arguments are directed towards – and only successful against – ideological rebellion. The argument from prudence Hobbes’s first argument against rebellion involves an appeal to prudence. He argues that people should not rebel because it is not in their self-interest to do so. According to this argument, rebellion is irrational because “rebellion is but war renewed,”27 and war is never in one’s self-interest. Rebellions often result in social unrest, political instability, and even civil war. These consequences are obviously detrimental to the well-being of the population as a whole since, as Kavka puts it, “there will very likely be substantial loss of life and limb, separation of families, destruction of economic and natural resources, disruption of productive economic activity and economic growth, and at least temporary weakening of the society compared to its neighbors and foreign foes – rendering it more vulnerable to outside pressures, threats, or even conquests.”28 Rebellions thus reintroduce many of the horrors of the state of nature, from increased insecurity to the loss of industry. Hobbes feels so strongly about this that he repeatedly emphasizes that a stable government, even a tyrannical one, is preferable to political instability, especially the kind of instability that results from rebellion and the civil war it produces.29 Hobbes also argues that individuals can never reasonably expect to gain from initiating or participating in a rebellion, even if the rebellion is successful. On the assumption that Hobbesian actors for the most part act from self-interest, this is supposed to be a motivating reason. Consider what happens to the rebels if they are unsuccessful. The traditional punishment for treason in Hobbes’s time was death, and Hobbes forcefully advocates this punishment.30 As such, the consequences for the rebels in an unsuccessful rebellion nullify whatever gains they might have expected had the attempt been successful. This is an especially motivating reason in Hobbes’s philosophy; Hobbesian agents almost always fear their own death, especially their own violent death, above all else. The cost of failure in this case means that it is against one’s self-interest to engage in Leviathan, 28.23; see also chapters 13, 15, and 17. Kavka, Hobbesian Moral and Political Theory, 280. 29   Leviathan, 18.20, 19.9; De Cive, 6.13 footnote 10; Elements of Law, II.5.7. 30 Elements of Law, II.8.1, De Cive, 11.6, Leviathan, 18.3. 27 28

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rebellious behavior. Moreover, even in successful rebellions, many of the rebels never see the fruits of their labor. Hobbes could be describing John Hampden himself when he says, “Of them that are the first movers in the disturbance of common-wealth, (which can never happen without a civill warre,) very few are left alive long enough, to see their new designes established.”31 So even if your rebellion is a great success, there is a significant chance that you will not be around to enjoy it; Hampden was killed during the civil war so his life was far more secure before he instigated the rebellion than after. Hobbes also argues that rebelling is against reason, even if you attain sovereignty by doing so:  “As for the other Instance of attaining Soveraignty by Rebellion; it is manifest, that though the event follow, yet because it cannot be reasonably expected, but rather the contrary; and because by gaining it so, others are taught to gain the same in like manner, the attempt thereof is against reason.”32 There are two claims in this passage. First, usurping the sovereign’s power is against reason because it is self-defeating: it sends a message that such actions are possible and teaches others to do the same by example. Even if your takeover is successful, the power you inherit is, thus, unstable. Second, a successful rebellion “cannot reasonably be expected.” It is reasonable to expect failure not success, and so the attempt is “against reason.” This claim is part of Hobbes’s larger discussion of rationality and risk aversion. In his “response to the foole,” Hobbes argues that breaking one’s covenants is irrational, even if you get away with it. Gambling with one’s own wellbeing is precisely what is foolish: “when a man doth a thing, which notwithstanding anything can be foreseen, and reckoned on, tendeth to his own destruction, howsoever some accident which he could not expect, arriving may turne it to his benefit; yet such events do not make it reasonably or wisely done.”33 A covenant-breaker can only succeed thanks to the errors of others. But that they will err or remain in error cannot be relied upon. Hobbes writes: “it is by the errors of other men, which he could not foresee, nor reckon upon as the means of his own security.”34 To put it bluntly, if one gets away with committing a crime, it is only by way of accident or the unforeseen errors of others, neither of which Hobbes believes can reasonably be anticipated.35 Leviathan, 27.16. 32 Leviathan, 15.7. Leviathan, 15.5. 34 Ibid. 35 This, of course, ascribes an implausible claim to Hobbes, namely, that it can never be rational to break one’s covenant or commit a crime, presumably no matter what the predicted costs or benefits may be. For an interpretation of this part of Leviathan that tries to read it without attributing 31

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In short, Hobbes’s argument from prudence is as follows. It is against one’s rational self-interest to rebel. It risks reintroducing the horrors of the state of nature into the commonwealth in the form of political instability and civil war. Furthermore, if you are unsuccessful, you face unimaginably bad consequences; even if you succeed, either you will not be around to reap the benefits or you will only achieve a tenuous hold on power. Moreover, Hobbes’s general principle of rationality dictates risk aversion, and so rebellion is “against reason” regardless of the potential gains. Prudential considerations, then, always count against rebelling. There are obviously a number of concerns about the success of Hobbes’s argument from prudence, and many people have criticized Hobbes on these points, especially his response to the foole and his commitment to risk-averse rationality. However, my goal here is not to defend the soundness or validity of the argument from prudence, only to show that it does not tell against the Hobbesian right of rebellion. I do not want to show that Hobbes was right; I only want to show that he was not inconsistent. So, do prudential considerations count against rebelling from necessity? No; prudential considerations count in favor of rebelling in precisely those cases where self-preservation is on the line. Famine victims have to choose between death from starvation and the possibility of punishment if their rebellion is defeated. Participants in the Warsaw Ghetto Uprising were in a similar situation. Such people have nothing to lose. Doing nothing meant almost certain death, so the worst consequences of rebellion were no worse than the consequences of not rebelling.36 Similarly, if members of an ongoing rebellion turned themselves in without assurances of a pardon, they would be executed – a fate clearly worse than what they could expect from continuing the rebellion (even if it is just time of life gained). In this case, prudence dictates continuing the rebellion. Thus, even the most risk-averse conception of rationality would not prohibit rebellion from necessity. The targets of Hobbes’s argument from prudence were the John Hampdens of the world, not the Jews who were facing the gas chamber. Hampden led his rebellion because of commitments to political ideology, such a claim to Hobbes, see Kinch Hoekstra, “Hobbes and the Foole,” Political Theory 25, no. 5 (1997), 620–654. Hoekstra’s interpretation is compatible with my general project here, because in the case of rebellion there is little or no chance that the crime will go undetected. 36 Hobbes, of course, sets the bar quite high with his well-known claim that “sovereign power is not so hurtful as the want of it” (Leviathan, 18.20). Hobbes’s thought seems to be that even the rule of a cruel or incompetent sovereign is preferable to the miseries of life in the state of nature. One’s situation would have to be extremely desperate in order to make rebellion appear the rational choice, but as I have shown, it is not impossible to imagine such conditions.

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not out of a concern for his continued existence. This is why Hobbes thought that the parliamentary Rebels, including Hampden, were “seditious blockheads, that were more fond of change than either of their peace or profit.”37 Only a “blockhead” would jeopardize his own security (not to mention the peace and security of the nation) for the promise of “change.” And so we can see that there is nothing in the prudential part of Hobbes’s antirebellion stance which rules out the existence of a right of rebellion based on necessity. The argument from metaphysics The right of rebellion was commonly conceived in Hobbes’s time to be a collective right, that is, a right that was held by the people.38 Of course, it need not be exercised by the whole collective, but it was presumed to be a collective right. This notion of a right of rebellion is the target of what I am calling Hobbes’s metaphysical argument. Hobbes wants to deny that there is an entity (the community) that has a right of self-defense against the government. In Leviathan Chapter 16, “Of persons, authors, and things personated,” Hobbes argues that only Persons, either natural or artificial, can (rightly speaking) have rights and perform actions. He makes a distinction between Persons and Multitudes saying, A multitude of men, are made one person, when they are by one man, or one persons, represented … For it is the unity of the representer, not the unity of the represented, that maketh the person one. And it is the Representer that beareth the person, and but one person: and unity, cannot otherwise be understood in multitude.39

Hobbes’s discussion of the differences between a unity and a multitude, actors and authors, representation, and authorization is quite complicated, but for present purposes the relevant point is simple. According to Hobbes, there is no such entity (the multitude) which can act or have a right to act and, therefore, can be said to have acted rightly or wrongly. For Hobbes, all actions and all rights have to be attributed to Persons.40 The 38 Behemoth, 304. Henry Parker is a good example of this view. See Chapter 1. Leviathan, 16.13. 40 E.g., “One must not attribute to [the crowd] a singe action of any kind. Hence a crowd cannot make a promise or an agreement, acquire or transfer a right, do have, possess, and so on, except separately or as individuals, so that there are as many promises, agreements, rights, actions, as there are men” (De Cive, 6.1). Note that in his translation of De Cive, Tuck translates the Multitudo as “crowd.” In Leviathan, Hobbes uses the word multitude. The terminological differences need not concern us here. 37 39

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multitude as such is not a Person; it is only made a Person by the submission of each person’s will to the will of the sovereign. The sovereign is an artificial Person, and so he can perform actions and have rights. Because the multitude is not a Person, it can do neither. The multitude as such cannot disobey the sovereign, because disobedience is an act. And, the multitude as such cannot be said to have the right to disobey, because the multitude as such cannot be said to have any rights, including a right of rebellion. Hobbes’s metaphysics of politics purposefully does not allow such a possibility. Hobbes explicitly reaches this conclusion in De Cive saying, The first and crucial question is this: what actually is a Crowd of men (who unite by their decision in a single commonwealth)? For they are not a single entity but a number of men, each of whom has his own will and his own judgment about every proposal … Nor is there any action which should be attributed to the crowd as their action; but (if all or several of them reach an agreement) it will not be one action but as many actions as there are men. For despite the fact that it is commonly said of some great rebellion that the people of the commonwealth has taken up arms, it is only true of those who have actually taken up arms or are in league with them. For a commonwealth which is one person cannot take up arms against itself. So whatever is done by a crowd must be understood as being done by each of those who make up that crowd.41

Part of Hobbes’s point here is that it is a linguistic mistake to say “the people” have taken up arms against the commonwealth. The people, understood as one thing, can do no such thing according to Hobbes, because they are a crowd, and crowds cannot act. But does this argument rule out the Hobbesian right of rebellion? It seems that we are forced to interpret Hobbes in one of two ways:  (1) Hobbes offers a metaphysical argument against the existence of a right of rebellion, and so there is no such right; or (2), there is a right of rebellion and so his metaphysical argument must fail. Either way, we end up reading Hobbes as mistaken in some way. Hobbes seems to acknowledge a specific instance of the right to rebel (the case of continued rebellion discussed above), and it has been shown that his general account of political obligation, specifically the principle that there can be no obligation without security, commits him to a more general right of rebellion. Must his metaphysical argument against rebellion be simply rejected? This conclusion can be avoided by making a distinction between collective rights and individual rights to collective action. Hobbes is   De Cive, 6.1.

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concerned with denying the existence of a collective right of rebellion conceived as a right held by the people, an entity separate from and against the state. As I have been developing it, the Hobbesian right of rebellion is not a collective right. Rather, it is a right held by individuals to engage in collective action, which Hobbes describes as “joyn[ing] together [to] assist and defend one another.”42 The right of rebellion is a right to act in concert, but it is fundamentally and exclusively an individual right. The denial of a collective right of rebellion does not preclude the acknowledgement of an individual right of rebellion that is exercised collectively. Thus, the Hobbesian right of rebellion is permitted by Hobbesian metaphysics of politics. The argument from contract Hobbes’s third explicit argument against rebellion stems from his theory of contract-based obligation. In the De Cive version of what I am calling the argument from contract, Hobbes’s strategy is twofold. First, he argues that in order to justifiably attempt to depose a sovereign, one would need to have the consent of every member of the commonwealth, and that is a practical impossibility. He says, Sovereign power, then, is established by force of the agreement into which individual subjects or citizens mutually enter one with another; and all agreements get their force from the will of the contracting parties, and likewise may lose their force and be dissolved by consent of the same parties. Someone will perhaps make the inference that sovereign power can be abolished by the simultaneous consent of all the subjects. Even if this were true, I cannot see what danger to sovereigns could rightly arise. For as the assumption is that each man has obligated himself to every other man, if any one of those citizens does not wish it to happen, all the rest will be bound whatever they may have agreed to. Nor can any one of them do without wrong what he has bound himself not to do by his agreement with me. By no stretch of the imagination could it ever happen that all citizens together would unite in conspiracy against the sovereign power, without one single exception. There is therefore no danger that sovereigns can be rightly stripped of their authority.43

Hobbes’s social contract is a contract of each with all; every party makes an agreement (by transferring a right and undertaking an obligation) with every other party to obey the sovereign. But for Hobbes, all agreements are, by definition, dissolvable. One way to dissolve them is by “forgiveness”; if the parties to an agreement forgive each other, the original 42

Leviathan, 21.16.

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De Cive, 6.20.

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right returns to each. In the above passage Hobbes addresses a concern about his contractual justification for political authority, namely, whether it is possible for subjects to forgive each other of their obligations to obey the sovereign and thereby release each other from the social contract. If they could do so, they would be free to organize against the sovereign. Hobbes’s argument against this possibility is fundamentally a practical one, as securing the forgiveness of each and every member of society would be virtually impossible. Even in a relatively small commonwealth, there are a large number of contracts between each subject and every other. If any one of these subjects does not wish to forgive, every other subject remains bound by their obligation to that one person. In short, there are three moves here: (1) any justified attempt to depose one’s sovereign (i.e., a right of rebellion) would require the consent of all to release each other from their agreements to obey the sovereign; (2) getting the unanimous consent of all is a practical impossibility; and (3) any actual attempt to depose one’s sovereign is never justified. Hence, no rebellion is ever done by right. Second, Hobbes argues that even if it were possible to acquire such unanimous consent, it would still be insufficient because subjects would still be bound by their free gift of power to the sovereign. This claim is drawn out in the text as follows: But although power is constituted by the agreements of individuals with each other, that is not the only obligation on which the right of government rests. There is also the obligation towards the holder of power. For this is what each citizen says as he makes his agreement with each of his fellows citizens: I transfer my right to this man on condition that you transfer your right to him also … Thus by the agreements made between individuals which bind them to each other and by the gift of right which they are obliged to the ruler to respect, the power of government is secured by a double obligation on the part of the citizens, an obligation to their fellow citizens and an obligation to the ruler. Therefore no number of citizens can rightly strip the ruler of his power unless he gives his own consent as well.44

Notice that the unique features of the Hobbesian social contract do the work of grounding the claim that even the consent of all is insufficient to release subjects from their political obligations. The Hobbesian social contract involves more than simply the agreements of each with all; it also involves a free gift of power and right to the sovereign. Hobbes defines a free gift as “the transfer of a right to another person not for a good   De Cive, 6.20.

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received in return nor on the basis of an agreement.”45 The sovereign himself is not party to the social contract and so incurs no obligations to his subjects. But subjects make a free gift to the sovereign, thereby obligating themselves to obey him, and they cannot simply take that gift back by their own volition. Of course, it is possible for the sovereign to release the subjects from their obligations to him; he can forgive them just as they can forgive each other. Hobbes calls this abdication. But as he puts it here, “no number of citizens can rightly strip the ruler of his power unless he gives his own consent as well.” If a sovereign abdicates power, subjects are back in the state of nature, and whatever actions they might then take cannot properly be called a rebellion. But presumably a sovereign will not relinquish the free gift of obedience that his subjects have bestowed upon him, and so rebellion is never justified. Thus, the De Cive social contract bestows upon subjects a “double obligation” of obedience, an obligation to their fellow subjects and an obligation to the ruler. This double obligation ensures that no rebellion is ever done by right; in Hobbes’s words, “there is therefore no danger that sovereigns can be rightly stripped of their authority.” The Leviathan version of the social contract is somewhat different, though the intended result is the same. Hobbes retains the notion of a mutual transfer of rights but adds the language of authorization: in order to institute a sovereign, every contractor – on the condition that others do the same – gives up his right of self-governance and agrees to authorize (to “own and acknowledge himself to be the author of”) all the actions of the sovereign.46 As in De Cive, Hobbes uses the first opportunity to draw the inference that rebellion is impermissible; he says, “they that have already instituted a commonwealth, being thereby bound by covenant to own the actions and judgments of one, cannot lawfully make a new covenant amongst themselves to be obedient to any other, in any thing whatsoever, without his permission.”47 Since the subjects have authorized all of the sovereign’s actions, they have no grounds to complain about such actions, nor any right to withdraw or transfer their allegiance. Now, consider whether or not this argument from contract is inconsistent with the Hobbesian right of rebellion, as I have been explicating it. I have suggested that we should understand the right of rebellion as one of the “true liberties of subjects” and as part of the doctrine of retained rights. If this is correct, then the right of rebellion is a right that is not 45

De Cive, 2.8; also see Leviathan, 14.11. Leviathan, 18.3.

47

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Leviathan, 16.13.

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given up in the social contract; the argument from contract does not apply to the right of rebellion, just as it does not apply to the right of selfdefense. On this reading, subjects qua subjects retain a right to rebel if they are in conditions of necessity. To put this point another way, rebelling under these circumstances does not break the social contract, because the right to rebel under these circumstances was never given up. Nor will the additional conceptual machinery of authorization serve to prohibit rebellion from necessity. After all, Hobbes sees the subjects’ authorization of the sovereign’s actions as compatible with the various rights they retain to disobey or resist certain exercises of the sovereign power. Recall that in his discussion of the true liberties of subjects, Hobbes distinguishes between authorizing the sovereign to command a certain action and being obligated to obey that command: the consent of a subject to sovereign power is contained in these words I authorize, or take upon me, all his actions, in which there is no restriction at all of his own former natural liberty; for by allowing him to kill me, I am not bound to kill myself when he commands me. It is one thing to say kill me, or my fellow, if you please, another thing to say I will kill myself, or my fellow.48

I have authorized the sovereign to make laws and enforce those laws with punishments, but I am not obligated to obey a command to inflict punishment on myself or on certain other people close to me. But from the fact that I am at liberty to disobey a command, it does not follow that I have not thereby authorized that command. On Hobbes’s account, the retained rights do not conflict with the unconditional authorization of the sovereign.49 This point is especially clear in Hobbes’s discussion of the specific true liberty of subjects that grants exemptions from military service. Recall that a subject who is commanded to fight can sometimes “refuse without injustice” even though the sovereign can “punish his refusal with death.” Clearly, the fact that the conscripted subject has the liberty to disobey does not entail that he has not authorized the sovereign’s use of his power to raise troops. Thus, neither the description of a mutual transfer of rights nor the account of authorization serves to ground a ­prohibition on Leviathan, 21.14; see also De Cive, 6.13. Hobbes is being somewhat disingenuous when he attempts to prohibit rebellion on the grounds that rebellious subjects would be the authors of their own punishment: “if he that attempt to depose his sovereign be killed, or punished by him for such attempt, he is author of his own punishment, as being, by the institution, author of all his sovereign shall do; and because it is injustice for a man to do anything for which he may be punished by his own authority, he is also, upon that title, unjust” (Leviathan, 18.3). If rebellion really were prohibited on these grounds, Hobbes would have to also eliminate all of the true liberties of subjects.

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rebellion in cases of necessity. This reading preserves both the argument from contract and the right of rebellion. There are a number of interesting implications of this analysis. First, there is a very narrow, but still recognizable, Hobbesian right of rebellion. Perhaps such an attenuated right seems unsatisfactory, or woefully inadequate, to non-Hobbesian eyes. Even if we acknowledge that the Hobbesian picture allows subjects the right to rebel under very special circumstances, we might still find Hobbes’s notion of political obligation much too strong. We might think that Hobbes prohibits types of disobedience that should be allowed (e.g., conscientious objection or civil disobedience) and that he denies such rights that should be protected (such as the right to free speech or the right to vote). Second, Hobbes’s prohibition on rebellion is more complicated than is usually acknowledged. While he appears to place an absolute prohibition on rebellion, his arguments and his diagnosis of the causes of political unrest only commit him to prohibiting certain kinds of rebellion, namely ideological rebellion. By its own logic, Hobbes’s theory can and should admit the legitimacy of rebellion based on necessity. I have offered a partial resolution to the apparent paradox about the Hobbesian position on rebellion. Recall that commentators tend either to (1) understand Hobbes’s prohibition on rebellion to be absolute, making his position wildly implausible; or (2), understand Hobbes’s prohibition on rebellion to be nonabsolute, making his theory inconsistent. On my reading, Hobbes’s position on rebellion can be defended against both charges. I have argued that a right of rebellion is a clear and, more importantly, an unproblematic implication of his political philosophy. We are now in a position to consider why Hobbes himself was loath to admit as much. There is no doubt that Hobbes does, in fact, seriously neglect the possibility that a portion of the population  – which is neither just isolated individuals nor the whole  – could have lives which are fundamentally insecure, and so would not be obligated to obey the sovereign. In all of his works, his discussions of the limits of political obligation focus almost exclusively on cases in which all of the population is unprotected (like when the sovereign has been vanquished) and cases in which one individual is unprotected (such as the person who has been banished or charged with a capital crime). On the one hand, this omission is surprising. Hobbes was a classical scholar, well versed in ancient and modern history. There are numerous examples of “unprotected subgroups” both in classical literature and in what would have been Hobbes’s own recent memory. The term genocide

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was only coined in the 1940s, but those living in the seventeenth century were familiar with instances of religious persecution that made the lives of many of its victims patently insecure. During Hobbes’s lifetime, religious minorities were deprived of the protection of the state and were subjected to extreme violence. In France (where Hobbes spent a significant portion of his life) the Huguenots suffered immensely and tens of thousands were slaughtered in the Saint Bartholomew’s Day Massacre (24 August 1572), though they were tolerated from 1598 to 1685. Other examples of racial or religious persecution in the decades before Leviathan include the expulsion of the Moriscos from Spain in 1609 and the massacres of Jews under Bogdan Chmielnicki in Ukraine in 1648–9 (the latter is considered the first modern pogrom). Moreover, in medieval Europe there were wellknown cases of rebellion from necessity; many members of the Peasants’ Revolt of 1381 were on the verge of starvation. Given Hobbes’s predilection for using historical examples, it seems odd that there are virtually no references to such cases, especially given that they would have been justified according to his own principles.50 On the other hand, Hobbes might have been expected to refrain from examining the revolutionary potential of unprotected subgroups, given the political climate of the time, the English Civil War, and the political purpose of his work – namely, justifying absolute monarchy and dissuading rebellion. The rebellions that were at the forefront of Hobbes’s mind occurred in the first half of the seventeenth century and were motivated by ideological, political, and religious doctrines, not by a lack of security or the desire for self-preservation. Moreover, Hobbes was highly aware of the catastrophic results of these rebellions: civil unrest at best, the horrors of civil war at worst. His philosophical project was a recipe for political stability, and so he denounces such rebellions and the “seditious doctrines” that cause them; for instance, the idea that sovereignty should be limited or divided, or the idea that the sovereign was subject to the civil law and so could be judged and punished by his subjects. So, it should come as no surprise that Hobbes did not spend time developing an account of a right of rebellion. Perhaps he did not want to acknowledge the political implications of the very real possibility that some, but not all, of a population could be deprived of the protection of the state. Hobbes, if pressed, might have admitted the legitimacy of, for example, the Peasants’ Revolt; but it There is a passage in the Latin edition of Leviathan where Hobbes makes reference to the Beggars’ Revolt. Though it does not count as a rebellion from necessity, I will discuss this case at the end of this chapter.

50

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is clear why he would not have wanted to make it a focus of his work.51 Whatever the reason, Hobbes’s avoidance of the issue cannot be chalked up to mere oversight or philosophical carelessness. Thus far I have construed the right of rebellion as a right held and exercised by subjects in a commonwealth against their sovereign, and my focus has been on showing that such a right is consistent with Hobbes’s explicit disavowals of rebellion. But this initial construal is controversial and requires further support. Lloyd disagrees, claiming that people who are unprotected are not members of a commonwealth and she understands Hobbes’s cases of justified disobedience as cases of nonmembers “resuming all of their natural liberty.”52 This move fits with her larger interpretation of Hobbes’s theory of political obligation as unconditional. In general, it is tempting to think of rebels (and people whose lives are unprotected) as former members of the commonwealth. After all, this move saves Hobbes from the purported inconsistency between his official statements against rebellion and the fact that his own principles seem to justify rebellion in some cases. On this reading, there is no problem of a possible right of rebellion; a rebel is simply an erstwhile subject exercising her right of nature against the sovereign. And Hobbes speaks in this way on at least one occasion. In the Latin edition of Leviathan, Hobbes says that “the transgression [of rebels] is not to be punished as a violation of the civil laws, but avenged as a hostile act. For [transgressions of the essential rights of sovereignty] involve rebellion, i.e., the transgression (or rather, repudiation) of all civil laws at once, and for that reason, they would be prohibited in vain by the civil law.”53 This omission could also be explained by appeal to something akin to Kinch Hoekstra’s idea of a “doctrine of doctrines.” Hoekstra argues that Hobbes’s own theory prevents him from espousing certain ideas, forcing him to become a “principled trimmer” (“Tyrannus Rex vs. Leviathan,” Pacific Philosophical Quarterly 82, no. 3–4 [2001], 434). Interpreters should remember that what doctrines Hobbes can put forth are constrained by “his position that he should only express positions consistent with those of his sovereign” (Hoekstra, “De Facto Turn,” 54). Following this interpretive principle it becomes clearer why Hobbes would have omitted any discussion about or examples of justified rebellion. He had no intention of empowering religious minorities, which he saw as a dangerous force. Moreover, on Hobbes’s account, to acknowledge the possibility that rebellion was acceptable, if only in very rare and extreme cases, could have no positive effect, since he believed that actual rebellions had negative net consequences. So, even if he did recognize that his theory committed him to the legitimacy of rebellion under certain circumstances of necessity, he would have had good reason to remain silent on the issue. 52 Lloyd, Ideals as Interests in Hobbes’s Leviathan, 75. Others make this move as well; see Davis, “Heavenly Philosophy,” 361; Steinberger, “Hobbesian Resistance,” 865; and Ristroph, “Respect and Resistance in Punishment Theory,” 601. Many thanks to Kinch Hoekstra for pushing me to consider this possibility and helping me to develop this point. 53 Leviathan (Latin edition), 30.4. 51

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On my view, we should be reluctant to accept this interpretation. Despite its original appeal, there are at least three reasons to resist this move. First, in general, Hobbes does not seem to understand political membership in this way. He does not think that if a person’s life is in danger, then that person is no longer a member of the commonwealth; nor does he believe that being permitted to disobey the law means one is no longer a subject. After all, he refers to these cases as the true liberties of subjects. The person who is commanded to incriminate himself is still a member of society; he just has the right to disobey that particular command. He is not back in the state of nature with the full right of nature. He is not permitted to then rob a bank. Hobbes thinks of the rights to disobey or resist the sovereign as rights that are retained by subjects, not as rights that are exercised by people who are effectively in the state of nature, despite the fact that they reside within the boundaries of a commonwealth. Moreover, while Hobbes does in Leviathan 30.4 characterize rebels as enemies, not as subjects – at least for the purposes of punishment – there is other textual evidence to the contrary. To give just one example, his use of the phrase “rebellious subjects” (e.g., Leviathan 40.10), suggests that he thought engaging in rebellion was not sufficient to terminate one’s membership in civil society and one’s standing as a subject. And it seems clear that he thought of the parliamentary rebels as subjects; they were subjects behaving badly, but they were subjects nonetheless. In the end, the textual evidence is simply ambiguous and perhaps even contradictory; however, on balance, it points to the claim that Hobbes did not think of “rebel subject” as an oxymoron. Third, simply denying that rebels (or even potential rebels) are subjects leaves the underlying problem unaddressed, and Lloyd’s move would not satisfy Hobbes’s critics on this point. There is a sense in which it is hard to know where to draw the line between when someone’s life is insecure and when it is not; consequently, there is a corresponding difficulty in drawing a sharp line between when someone is a member of civil society and when she is not. That is to say, there is a genuine question about whether people whose lives hang in the balance due to widespread hunger or extreme poverty, for example, are properly understood to be subjects. However these cases are decided, it is irrelevant to evaluating the objection to Hobbes on this point. Even on the supposition that unprotected people are not, strictly speaking, subjects, it still follows that actual subjects have the right to decide whether their lives are sufficiently protected, and so they have the right to decide whether they are subjects at

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all. So, the person who lives within a territory but whose life has ceased to be secure, in this special sense, is either a subject with a right of rebellion or a former member of society who can rebel as part of her now full right of nature. Either way, Hobbes must give a positive answer to the question: is rebellion ever justified? Thus, conceding a right of rebellion, but framing it as part of the full right of nature erstwhile subjects have against their former sovereigns, would not satisfy Hobbes’s critics on this point. This interpretation does not allow him to evade the criticism that his theory allows for internal uprisings against an established ruler to be legitimate, even if those uprisings are not characterized properly as rebellions by subjects against their sovereign. It is hard to imagine that Bramhall’s fear that Hobbes’s Leviathan was a “rebel’s catechism” would be assuaged by the simple denial that rebels are subjects on Hobbes’s account. Is

l e v i at h a n

a “r e be l’s c at e c h i s m”?

Now that I have sufficiently delineated the Hobbesian right of rebellion and reconciled it with Hobbes’s explicit arguments against rebellion, I am in a better position to address some of his critics. I now suggest some ways in which Hobbes might have responded to their concerns. I defend Hobbes against his opponents, but my defense is only partial. On this point, perhaps the best one can do is to mitigate some of their fears. As I noted at the beginning of this book, Hobbes’s twin commitments to a general prohibition on justified rebellion and to an inalienable right of self-defense provoked not only philosophical criticism, but also personal and political outrage among his readers. Many of his contemporaries were indignant – politically and philosophically – at how much liberty he allowed subjects to possess. Royalists (e.g., Bramhall, Clarendon, and Filmer) in the seventeenth century typically found the idea of any legitimate resistance to the king repugnant. To the extent that they were divine command theorists, this is unsurprising. If one thinks that the monarch is divinely ordained and that one’s obligation to obey the king is part of one’s obligation to obey God, then it is understandable why one would find Hobbes’s theory repugnant – a subject does not have the right to disobey the king anymore than a person has a right to disobey God. Sommerville characterizes the standard royalist position as the position that “our duty to obey the civil magistrate is of a higher order than our obligation to defend ourselves. So we may never defend ourselves against

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the king.”54 Philosophers of the twentieth and twenty-first centuries raise many of the same concerns, although they are not motivated by the same political positions. According to these critics, Hobbes’s retained rights of resistance and his commitment to even a limited right of rebellion are subversive. That is, they subvert the actual institution of sovereignty. We can pose the question in the following way: does the existence of a moral right to resist the state and even to rebel against it under some circumstances pose a significant threat to the maintenance of stable and effective political orders? Bramhall and Clarendon clearly believe that it does. In the famous quotation, Bramhall says of Hobbes’s right to resist: “there need no other bellows to kindle the fire of a civill war, and put a whole commonwealth into a combustion, but this seditious article … Why should we not change the Name of Leviathan into Rebells catechism?”55 Similarly, Clarendon protests that Hobbes is “so cruel as to devest his Subjects of all that Liberty, which the best and most peaceable men desire to possess, yet he literally and bountifully confers upon them such a liberty as no honest man can pretend to, and which is utterly inconsistent with the security of the Prince and People.”56 In recent Hobbes scholarship, this objection is most fully explicated in the work of Hampton, but we also find it in others. For example, Alan Ryan says of Hobbes’s theory, [B]ecause it was built on individualist and rationalist foundations, [it] must, in spite of its author’s intentions, leave room not only for individual resistance but also, in extremis, for fully fledged rebellion. Leviathan may well have framed the minds of many gentlemen to a conscientious obedience, but it also framed in many others a disposition to ask whether the sovereign had failed to secure our peace and safety or was visibly about to do so.57

On Ryan’s view, Hobbes’s theory is rendered incoherent because “in spite of its author’s intentions,” it must justify rebellion under some circumstances. Even though Ryan is writing three hundred and fifty years after Bramhall and Clarendon, it is clear that he is making the same general point. Sommerville, Hobbes: Political Ideas in Historical Context, 35. Bramhall, “Catching of Leviathan,” 145. For a nice discussion of Bramhall’s particular brand of royalism, see J. W. Daly, “John Bramhall and the Theoretical Problems of Royalist Moderation,” Journal of British Studies 11, no. 1 (1971), 26–44. 56 Clarendon, “Brief Survey,” 234. 57 Alan Ryan, “Hobbes’s Political Philosophy” in The Cambridge Companion to Hobbes, ed. Tom Sorell (Cambridge University Press, 1996), 208–245, at 241. For a very similar point, see George Shelton, Morality and Sovereignty in the Philosophy of Hobbes (New York:  St. Martin’s Press, 1992), 260. 54 55

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These criticisms focus on the worry that Hobbes’s notion of political obligation leaves too much room for disobedience in ways that threaten the stability and effectiveness of states. The Hobbesian social contract was supposed to institute a “Leviathan” – an absolutely powerful, completely untouchable, almost godlike ruler – but the limits Hobbes places on that contract seem to undermine that very goal. Moreover, given that Hobbes intended to provide a recipe for political order, it is very worrisome to think he might have instead provided a recipe for political disorder. One main factor in these concerns is the subjective nature of the Hobbesian right to resist. The right of rebellion, like all of Hobbes’s retained rights, is entirely subjective:  as long as a sane person sincerely judges that his life is insecure, he has the right to rebel, if he judges doing so to be the best means to his preservation. Hobbes, then, is committed to the claim that it is up to each subject to decide for himself whether or not the state is adequately providing for his security. It is here that Bramhall objects, claiming that to allow subjects to judge whether or not their obedience is due provides a “catechism” for widespread resistance and insurrection. Arguably, on Hobbes’s own principles, authorizing private judgments about one’s own security, or lack thereof, poses a threat to the peace and safety of the commonwealth. Hobbes’s diagnosis of the radical dangers of the state of nature located the privacy of judgment as the chief cause of conflict and violence. It looks as though the acknowledgement of a subjective right to rebel risks reintroducing many of the dangers of the state of nature into civil society. It is important to note that Hobbes’s rights to individually disobey or resist individual commands, the true liberties of subjects, do not seem to involve the dangerous exercise of private judgment. First, they applied to cases in which there does not seem to be much dispute (e.g., “does this executioner’s axe pose an immediate threat to my life?”). Second, the effects of the exercise of these rights are negligible. What would it look like if everyone who had the right to disobey or resist actually did so? Every condemned person would resist the infliction of the death penalty. People would lie in court to protect themselves and their loved ones. Prisoners would attempt escape; and those facing prison terms would resist arrest. The starving man would steal food. These individual acts of disobedience and resistance are unthreatening to the sovereign’s power, according to Hobbes. Indeed, one of the ways he argues for the true liberties of subjects is by appeal to the negligible consequences of their exercise. The condemned man is still put to death. His resistance, although justified, is politically ineffectual, especially since, as Hobbes insists, the

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sovereign’s right to punish the resistance is in no way jeopardized by the subject’s right to resist. Contrast this with the Hobbesian right to rebel. As noted above, the concept of security is vague and can be the subject of disagreement. People may disagree about whether or not the sovereign is providing them with sufficient protection. Each person judges for himself whether or not he has a reasonable fear of violence, where he is the sole judge of the reasonableness of that fear. Moreover, the effects of the exercise of a right of rebellion are not politically negligible at all; in fact, their very point is to pose a genuine threat to societies and states. Governments fall, kings are beheaded, and civil wars develop because of the concerted actions of many, not as a result of individual subjects disobeying individual commands. Even unsuccessful rebellions cause at least some degree of social unrest and violence – the very things which Hobbes was trying so desperately to prevent. To permit any rebellion, then, seems especially problematic for Hobbes, and so these worries are understandable and even well founded. There are three things we can say on Hobbes’s behalf that might allay some of these concerns. First, as we have seen, Hobbes was concerned to prohibit particular kinds of rebellion, namely, ideological rebellions. He might argue that judgments about self-preservation and security would not foment rebellions  – people would not be moved to rebel because they judged, correctly or incorrectly, that their security was not being adequately provided. On Lloyd’s interpretation, Hobbesian people are most likely to rebel because of what she calls “transcendent interests,” which by definition do not concern self-preservation or security. But his critics might respond that he is wrong about that. Timothy McVeigh, the Oklahoma City Bomber, ostensibly justified his crimes by saying that the United States government was failing to protect him. The Montana Freemen and other militia groups routinely argue that they need to maintain their private arsenals because the government does not keep them sufficiently safe (they have not rebelled yet, but you never know). In Hobbes’s time, a right of self-defense was often invoked to justify resistance to tyrants. Moreover, the key part of the critics’ argument seems to be that Hobbesian theory is an incitement to rebel. This allegation is implicit in Ryan’s claim above that Hobbes somehow unwittingly encourages rebellious behavior by encouraging people to question whether or not the sovereign is adequately providing for their security. Similarly, Bramhall reads Leviathan as a “rebel’s catechism” in part because it operates as a “bellows to kindle the fire of a civill war.”

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Hobbes’s second response might be to point out that his notion of security is actually very narrow, and according to it, certainly the Oklahoma Bomber and the Montana Freemen are simply wrong to think that their lives are insecure. Moreover, given that the jury recommended that he receive the death penalty, the Oklahoma Bomber was also clearly mistaken to think that his act of rebellion was the best means to his preservation. Unfortunately, this response is not particularly effective because it does not matter that people judge wrongly on Hobbes’s account; all that matters is that they judge sincerely. Even if we dismiss the Oklahoma Bomber as a “madman” in the Hobbesian sense of the word, surely there are sane people who can judge sincerely and reasonably (but incorrectly) that their lives are insecure (or that they are not adequately being protected) and that rebellion is the best means to their preservation.58 Of course, there might be no fact of the matter about whether or not a person is sufficiently protected or about what constitutes the best means to his preservation. Reasonable people can surely disagree about such things, and it will always be hard to draw the line. Moreover, recall that Hobbes admits that having the “pretense of right” is a necessary condition to move people to rebel. So perhaps the fact that Hobbes is committed to the existence of a right to rebel would serve to motivate rebellion among his readers, who would have otherwise remained law-abiding citizens. And of course, Hobbes himself intended exactly the opposite; he thought the Leviathan should be required reading in the Universities because it disposed men to obedience. Third, Hobbes might point out that not every person who judges that his life is insecure will actually rebel. He also has to judge that rebelling is the best means to his preservation, and he has to find others who have similar judgments. Hobbes could argue that even if certain people would be justified in rebelling, they are seldom likely to do so. According to Hobbes, the threat of punishment will keep people in order, even if those people judge that their lives are insecure. The prospect of failure and the fear of reprisal will always serve as deterrents; no matter how justified you take yourself to be in thinking that your life is insecure. Even if you judge correctly that your life is insecure, you very well may judge that rebelling is not the best means to your preservation. And, Hobbes is clear that no one is inclined to rebellion without the “hope of success.”59 Some people might be tempted to use claims about insecurity as an excuse to rebel, when they are actually motivated by ideological concerns or the desire for gain. This is not a problem for Hobbes, because such people are not sincerely judging that their lives are insecure, and so they do not actually have a right to rebel. 59 Elements of Law, II.8.11. 58

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These three responses are meant to lessen the concerns that the acknowledgement of a right to rebellion would itself serve to increase the likelihood of rebellions and the political instability and social unrest they produce. Underlying these concerns is the implicit assumption that somehow conceding the right of unprotected subgroups to rebel will motivate people to rebel who otherwise would not. I hope I have said enough to show that this assumption is fairly dubious. There is another important assumption at work in these criticisms of Hobbes. Many of Hobbes’s contemporaries shared his commitment to absolutism, but they believed that absolute government required an unconditional doctrine of nonresistance. Some claim that subjects are allowed, and even required, to disobey commands that are contrary to God’s law, but subjects are never allowed to actively resist their political rulers. Hobbes rejects this claim; instead, he makes a distinction between necessary and unnecessary obedience. Moreover, Hobbes must reject this claim. It is because he grounds political obligation in enlightened selfinterest, that he must recognize some limits on the subjects’ obligations to obey the sovereign. Thus, part of the debate between Hobbes and his critics concerns the scope of the obligations necessary to maintain an absolutist state. I do not want to enter that debate here. Instead, I suggest that the best resources to answer the critics’ concerns are found elsewhere in Hobbes’s account. C ou ns e l t o w i s e s ov e r e ig ns Hobbes cannot require more obedience of subjects than he already does; that is, he cannot require obedience from those who judge that their lives are endangered. Instead, he directs his attention to the duties of the sovereign, and it is here that we find an important part of his recipe for political stability and social order. Ultimately, Hobbes’s position on rebellion is perhaps best understood to be a denial that rebellion could ever be justified in a well-governed commonwealth. The sovereign’s general duty is to provide for the peace and security of his subjects. In the chapter of Leviathan entitled “Of the Office of the Sovereign Representative,” Hobbes enumerates the specific responsibilities that necessarily accompany this end. This chapter reads like an instruction manual for what is in many ways an attractive government. Hobbes advocates the redistribution of wealth and land, public charity, and in general, a sovereign who acts to provide for the basic needs of his people. The sovereign must keep his subjects safe from violence and

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theft, administer justice equally, and even try to provide work for the unemployed. He does all this by passing “Good Lawes” (laws that are “Needfull for the Good of the People”) and enforcing those laws with threats of punishment.60 According to Hobbes, one of the most important duties of sovereigns is “publique instruction.” Subjects must be taught to obey the sovereign and the justification for that obedience. Hobbes argues that if subjects know why sovereignty must be absolute and why they are obligated to obey, they are less likely to “be seduced, and drawn to resist [the sovereign].” Additionally, subjects should be taught not to attempt to change or reform the government, not to dispute the sovereign power, and not to injure or steal from each other.61 He argues that the Universities were responsible for the dissemination of the false and dangerous opinions that caused people to rebel against the king. So, Hobbes insists that the commonwealth have a monopoly on the educational systems and teach only those doctrines which conduce to the peace and security of the commonwealth. There are two important points to be made about Hobbes’s discussion of the duties of sovereigns. First, he assumes the sovereign will act in his own self-interest and that the interests of the sovereign (especially if the sovereign is a monarch) are the same as the interests of the people.62 The sovereign did not undertake an obligation in the social contract to fulfill any of these duties, and so he cannot be accused of injustice. But the sovereign remains bound by natural law. This means that his reason – if it operates properly – prescribes to him rules of conduct for safeguarding his life. Among these are rules minimizing the grievances that induce subjects to rebellion. The sovereign violates natural law if he acts without the intention of serving the good of the people, even though he cannot be punished for doing so. The key claim is that if the sovereign acts according to natural law, he will act in the interests of the commonwealth as well as in his own personal interest. All of these duties collectively are in the sovereign’s interests. For example, he claims that a well-reasoning sovereign will not allow his subjects to want for food because a weak citizenry will be unable to help in the nation’s, and so the sovereign’s, defense.63 Leviathan, 30.21, 30.24. 61 Leviathan, 30.4; 30.8, 30.10, 30.13. Leviathan, 30.22. 63 “[I]f the holder of sovereign power exacts so much money from the citizens that they cannot feed themselves and their families and maintain their physical strength, it is as big a disadvantage for the ruler as for themselves, since however rich he may be, he cannot protect his own wealth and power without the physical aid of the citizens” (De Cive, 10.2). 60 62

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Hobbes makes it explicit that many of these duties include the express intent of maintaining the commonwealth, and so the sovereign, safe from rebellion. For example, Hobbes explains the duty to ensure proper education in the Universities saying, “it is [the sovereign’s] duty, to cause them so to be instructed; and not only his duty, but his benefit also, and security, against the danger that may arrive to himself in his natural person, from rebellion.”64 Hobbes says that to the extent that discontent stemming from material deprivation (“want” and “oppression”) can cause rebellion, the sovereign, as much as possible, should remove the causes of such discontent.65 The best example of this comes in Hobbes’s explanation of the sovereign’s duty to provide public charity: And since there are some who, through no fault of their own, but because of accidents they could not have foreseen, fall into misfortunes, so that they cannot provide for their maintenance by their own industry, it is the duty of the sovereign to see that they do not lack the things necessary for life. For since the right of nature permits those who are in extreme necessity to steal, or even to take by force, the goods of others, they ought to be maintained by the commonwealth, and not left to the uncertain charity of private persons, lest they be troublesome to the commonwealth.66

Hobbes’s reasoning is that those who cannot provide for themselves should be provided for by the commonwealth for fear that they will otherwise consistently break the law in order to obtain the necessities of life, thus becoming “troublesome” to the civil order. Indeed, a preoccupation with preventing rebellion pervades Hobbes’s discussion of the duties of sovereigns. Even Hobbes’s recommendations for monetary policy reveal a concern with eliminating the conditions that foment sedition. Using the uprisings under Henry VII as an example, Hobbes argues that sovereigns should refrain from demanding heavy taxes because “great exactions, though the right thereof be acknowledged, have caused great seditions.”67 In addition, sovereigns have a duty to be equitable, which requires them to opt for a consumption tax instead of a tax on income or benefits. He also counsels sovereigns to rein in the “great” and make sure that “ordinary citizens” are not “oppressed” or even denigrated unfairly. He uses the Beggars’ Revolt to illustrate this, saying, “The sedition of those in Holland, called the Beggars, ought to serve as a warning how dangerous it is to the commonwealth to scorn citizens of modest means.”68 Interestingly, though the perpetrators of the Leviathan, 30.7. 65 Elements of Law, II.9.7. Leviathan (Latin edition), 30.18. 67 Elements of Law, II.8.2; also see De Cive, 12.2. 68 Leviathan (Latin edition), 30.16. 64

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Beggars’ Revolt were, on Hobbes’s account, citizens of “modest means,” he does not attribute the cause of their revolt to their low-class status. As Hobbes tells it, they were not motivated by deprivation or “want”; rather, they became rebellious because they were insulted by the upper classes and the sovereign did not intervene. Simply put, Hobbesian sovereigns need to bring about the conditions under which subjects will judge that their lives are secure and obey accordingly. This is why education is so important. Hobbes is aware that his subjectivism commits him to the claim that the sovereign’s continued rule depends on the vast majority of his subjects’ judgments that their lives are secure. He says, “the power of the mighty hath no foundation but in the opinion and belief of the people.”69 Because the sovereign’s power is fully dependent on the beliefs of his subjects, he must control those beliefs and mold them towards obedience.70 Control is exercised not only by the sword but also by the book. The critics are correct to worry that Hobbes’s individualism and subjectivism might provide grounds for rebellion and thereby undermine the political stability that he was desperately trying to achieve. If enough subjects judge that they are genuinely unprotected, they might be likely to consider rebellion. Perhaps they will be more likely to actually rebel if they read Leviathan (and interpret it as I do, of course) and become convinced that they have the right to rebel. But the fault in these cases lies with the actions of the sovereign, not with the limits of the obligations of subjects. Hobbes explicitly recognizes this when he notes that negligent princes are punished with rebellion. That the “negligent government of princes” suffer the “natural punishment” of rebellion does not thereby serve to excuse rebellion; indeed, rebels suffer their own natural punishment, namely, “slaughter.”71 But, to the extent that Leviathan is a “rebel’s catechism” at all, it is only a “rebel’s catechism” for those living under negligent princes! The critics’ concerns are based on a fundamental misinterpretation or partial reading of Hobbes’s project. Everyone agrees that Hobbes’s goal was to provide a solution to the problem of political instability, to design a social and political order that would be, as much as possible, safe from internal and external threats. But his recipe for political order has two Behemoth, 184. Hobbes could put a great deal of faith in the power of education to shape beliefs given that he thought the minds of common men were like “clean paper, fit to receive whatsoever by public authority shall be imprinted on them” (Leviathan, 30.6). 71 Leviathan, 31.40. 69

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parts:  the obligations of subjects to obey and the structure and content of sovereign power. He wants to establish the grounds for and the scope of subjects’ obligations and to justify and clarify the nature of sovereign power. With regard to the latter, he argued that sovereignty must be absolute (and preferably monarchical) and indicated the sovereign’s duties to his subjects. What this means is that Leviathan is a handbook not only for those considering obedience, but also for those who command it. Most critics ignore this half of Hobbes’s solution. Hobbes spends a great deal of time enumerating and justifying subjects’ obligation to obey the sovereign, but he devotes almost as much time to spelling out what sovereigns themselves must do to ensure the peace and stability of the commonwealth. A sovereign who tries to slaughter many of his citizens, or who allows them to starve, is responsible for the disorder that ensues. So, if the sovereign fails to protect so many of his subjects that they are moved to rebel, then the blame lies at the door of the sovereign or of external misfortunes. If a well-functioning Hobbesian commonwealth dissolves, it will probably not be because of the unjustified resistance of its subjects.

Conclusion

I began this book by noting several puzzling features of Hobbes’s account of legitimate political resistance. First, I noted that Hobbes allows for a much wider range of circumstances in which subjects are permitted to disobey the commands of their sovereign than the reader might expect. This peculiarity is compounded by the scarcity of identifiable arguments or explanations. Although he does give arguments – however weak they might be – for the right of self-defense, his account of the broader rights of resistance seems to amount to little more than an assortment of bare assertions and appeals to random examples. For instance, Hobbes simply asserts that subjects do not have to give incriminating testimony against those members of society with whom they have a certain relationship (spouse, benefactor, and unspecified people “whose loss would embitter one’s life”); and in De Cive, for example, he builds a substantive discussion around a single example in which a subject is ordered to kill his own father, although this would presumably be an extremely rare occurrence. These claims seem even more confusing in light of the fact that Hobbes fails to distinguish between the inalienability of a certain right in any contract whatsoever and the inalienability of a right in the social contract in particular. As a result, he often gives the impression that he is arguing that there is no covenant at all in which one party can assume an obligation to submit to physical restraint or bodily injury, deadly or not – a claim that seems to invite immediate counterexample. As Finkelstein and others have shown, it is possible to imagine covenants in which one party agrees to be subject to physical restraint, harm, or even death. Furthermore, the explicit arguments for an inalienable right of self-defense that Hobbes does provide are dubious and often fail to support the various examples and extensions he gives. To make matters worse, his views on legitimate resistance seem to be in tension not only with his commitment to the absolute character of political authority but also with his opposition to rebellion. It is no surprise, then, that Hobbes’s 168

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views on legitimate resistance garnered such forceful criticism from some of his seventeenth-century readers. It is also understandable that most of the cases of legitimate resistance that Hobbes discusses receive little attention in the majority of the secondary literature today and, further, that those who do pay attention to the details of his account, with few exceptions, tend to be disparaging. In the face of these worries, I have offered a new understanding of Hobbes’s account of when resistance to the sovereign is legitimate. I have argued that Hobbes is not concerned to determine which rights can never be given up in any contract whatsoever. Rather, his focus is on the rights that are impossible to alienate in the agreement one makes when instituting or entering into a commonwealth – that is, the social contract. These are the rights that are inalienable for people qua subjects in a political order, not the rights that are inalienable for people qua people. When we investigate the grounds for these inalienable rights, now understood as the inalienable rights of subjects in a political order, we find a series of overlapping and related questions. What can be reasonably expected of people given certain facts about human psychology? What can be reasonably expected of subjects given that the purpose of the social contract is the provision of their peace and safety? What are the obligations subjects must assume in order to establish an effective sovereign? And what freedoms to disobey are consistent with the maintenance of civil order? I have formalized these various ideas, notions, and considerations into a set of principles that provide constraints on valid covenants. That is, I have identified the basic themes that Hobbes seems to suggest for why particular rights cannot be transferred or why particular obligations cannot be undertaken, and have constructed three formal rules for determining which rights are retainable or inalienable. I called these principles the “reasonable expectations principle,” the “fidelity principle,” and the “necessity principle.” To be clear, these principles are neither explicitly identified nor endorsed by Hobbes in his texts. Rather, they emerge from a detailed analysis of the background conditions of each instance in which Hobbes grants subjects the liberty to resist their sovereign. My analysis, however, is not merely suggestive: in discussing the individual cases, I demonstrate that in each instance it is precisely these three principles that lie behind Hobbes’s claim of justifiable disobedience. In sum, on Hobbes’s behalf and using only the resources he had available to him, I have constructed a theory of resistance rights, that is, a system of ideas and statements that explain and account for the set of phenomena he describes. With this theory in hand, I then turned to Hobbes’s project as a whole to show

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how the theory of resistance rights, as I have laid it out, is largely consistent with Hobbes’s overriding commitment to absolute sovereignty and his prohibition on rebellion, once both are correctly understood. I have thus defended Hobbes against his critics – both in his time and in ours – who charge that his notion of retained rights is incompatible with his overarching philosophical and political goals. It is fortunate, from Hobbes’s perspective, that his account of resistance rights is consistent with his wider project since, as I have argued, it turns out to be an essential component of his doctrine – namely, to construct a theory of political obligation that it would be rational for people who live in a stable commonwealth to follow. Indeed, its rationality is a large part of his theory’s ultimate justification. It would be rather devastating to Hobbes’s political theory if his theory of political obligation had to require subjects to obey commands that were against their most fundamental interests – for example, the command to commit suicide. It would also be problematic if the requirements of his theory included actions that were, on Hobbesian grounds, unreasonable to expect. It would be even worse if these were obligations that, given human psychology, we could expect people to flout if given the chance. Yet without the interpretive work that construes his larger project and his theory of resistance rights in light of each other, Hobbes’s account of political obligation is vulnerable to all of these possibilities. Though Hobbes’s views on resistance rights take up relatively little space in his corpus as a whole, they are crucial to understanding his moral and political theory. Hobbes’s resistance rights as I present them are more comprehensible and defensible than they appear in their unreconstructed form in the text. Although, according to my interpretation, his views still retain certain gaps, puzzles, and inconsistencies, the detailed analysis I have given serves to distinguish the genuine problems in Hobbes’s theory from those that are merely apparent. It also provides the basis for new insight into other aspects of his political philosophy. For example, the issues surrounding rebellion generate a tension in Hobbes’s project, but this tension is instructive. It illustrates the complexities of his recommendations for preventing rebellion and demonstrates the crucial role of the sovereign in this regard. The Hobbesian sovereign necessarily shares in the responsibility for preventing rebellion, but this fact is easily lost in Hobbes’s admonishments of disobedient subjects and his corresponding inducements for subjects to obey. My analysis of Hobbes’s theory of resistance rights also yields some intriguing insights into his underlying motivations and strategies, and

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indeed, these nuances of his account of resistance rights have been largely unnoticed and relatively unappreciated. Unlike his royalist peers, Hobbes readily acknowledged that subjects possess certain inalienable rights and liberties that provide the basis for resisting sovereign power. He did not acknowledge that organized resistance to the sovereign power might be legitimate in certain extreme cases, though this is a fairly obvious logical implication of his account, and his own contemporaries certainly called attention to it. Again, fortunately for Hobbes, the particular kind of organized resistance he was so concerned to oppose – namely the parliamentary rebels – would not have been justifiable according to his theory. In effect, Hobbes was able to co-opt the theoretical tools of his opponents, the “seditious blockheads” in Parliament, in order to develop an innovative account of the right to resist the sovereign – now defanged and incorporated into a general theory dictating submission, acquiescence, and deference to an all-powerful sovereign. The conceptual tools that were, and still are, so powerfully used to underwrite ideological opposition to the state – rights, liberty, and justice – are thus rendered politically innocuous by Hobbes’s political theory. Indeed, in Hobbes’s hands, these relatively radical ideological tools are transformed into key tools for producing a docile populace. His delimited set of cases of justified resistance also serves to underscore all of the ways in which subjects are not at liberty to disobey the sovereign. Permitting resistance in very particular cases allows him to highlight the idea that in the vast majority of cases, people’s obligations are to obedience. Finally, in a well-functioning commonwealth (i.e., one structured on the model he sets out), we can expect legitimate resistance to be not only relatively rare (most likely, only in cases of punishment) but to be entirely unthreatening to the maintenance of the political order. In short, by appropriating the language of resistance rights, Hobbes undermines actual political resistance. This is not to say that he actually succeeded in convincing others to accept his transformed notion of inalienable rights and liberties. Indeed, he did not. But his was a valiant, and surprisingly convincing, effort. While this move earned the scorn of Hobbes’s fellow royalists, it also makes his project more attractive than theirs. His royalist counterparts unreasonably required subjects to “suffer patiently” their punishment, even when such punishment included execution.1 Yet, for Hobbes, the idea of an obligation to submit willingly to This is Dudley Digges’s phrase, but there were similar sentiments expressed by a number of royalist and absolutist writers. See Chapter 1 above.

1

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torture or death – or to even to inflict such things on oneself – was either repellent or absurd. Hobbes’s ingenuous move was, rather, to demonstrate how obedience to the sovereign is not, in these cases, required. I would like to conclude by noting the important consequences that these nuances in Hobbes’s account have for how we should understand his legacy. In the contemporary literature there is a disagreement about how we ought to understand Hobbes’s place in the history of political thought. Some commentators see him as a protoliberal, arguing that the key elements of his political theory – natural liberty and equality, individual rights, and government justified by the consent of the people – serve to make it a harbinger of modern liberalism.2 (Of course, there is further disagreement about whether or not this outcome should be praised or lamented.) Others, in sharp contrast to this view, emphasize those aspects of Hobbes’s philosophy that appear to stand firmly against basic tenets of liberal political theory, such as the centrality of (monarchic) absolutism. Hobbes insists that democracies and aristocratic assemblies can be forms of absolute sovereignty no less than monarchies, and he willingly admits that he has not definitively established the preferability of monarchy over these other forms. However, his opposition to any and all ideas of limited or divided government, his insistence that the state mandate and control both religious doctrine and practice in the commonwealth, and his denial of the legitimacy or usefulness of any sort of ideological dissent or protest against an established political order all stymie efforts to paint him with a liberal brush. In light of this ongoing debate, it is useful to consider how the picture of Hobbes that I have developed might bear on our assessment of his relationship to contemporary political theory and philosophy. What is perhaps most striking in this regard is the seemingly alien quality of his account of resistance rights. The kinds of questions that he asks about political obedience, and the way in which he frames the issues surrounding the limits of political obligation, are fundamentally different from the questions we ask and the ways we frame the same issues today. For instance, his concern with self-defense centers on defense against threats of violence coming from the state. Such issues are rarely seen as even being “on the table” in contemporary debates on the same topic, where it is taken for granted that both the party who poses the threat and the party who potentially defends against it are private individuals or For a representative example see D. D. Raphael, “Hobbes on Justice” in Perspectives on Thomas Hobbes, ed. G. A. J. Rogers and A. Ryan (Oxford: Clarendon Press, 1988), 153–170.

2

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nonstate actors.3 Furthermore, the question that guides Hobbes’s inquiry concerns the duty to submit to one’s own punishment. But this issue is rarely, if ever, discussed in the wide-ranging debates about the nature and justifiability of punishment that occupy those interested in contemporary moral, political, and legal philosophy. The ethics of war and the duty to fight for one’s country are not only extensively discussed in academic circles, they are also arguably among the most important in today’s political arena. But the idea that fear for one’s life could serve as a legitimate excuse for avoiding battle is not a possibility that is even considered now – though it was, of course, Hobbes’s primary concern on that topic.4 And while questions about the limits of political obligation continue to preoccupy political philosophers, their discussions of civil disobedience, conscientious objection, revolutionary theory, and political violence bear almost no resemblance to Hobbes’s discussion of legitimate resistance to state power. Given these differences, it might seem that the points of intersection between contemporary treatments and Hobbes’s approach in the seventeenth century are too few and far between to make a meaningful comparative analysis useful or even possible. In my opinion, however, such a rejection of the Hobbesian project would be too quick. A large part of the explanation for why Hobbes’s views on resistance rights are so foreign from the perspective of our modern liberal theoretical framework is that the basic questions he engages and the very terms of his engagement with them are difficult to formulate from our perspective. In the first place, he uses “right” to mean simply a moral freedom or permission, an action a person cannot be blamed for performing. This position remains undefended in contemporary political philosophy, despite ongoing vigorous debate over what, exactly, a right is. For a particularly interesting exception, see Sanford H. Kadish, “Respect for Life and Regard for Rights in the Criminal Law,” California Law Review 64, no. 4 (1976), 871–901. In most contemporary work on the subject, the simple fact that a person fears for her safety is not seen as legitimate justification for draft-dodging, dereliction of duty, or desertion. This view seems to be so taken for granted that most do not even bother to articulate it, much less explore it. Consider David Mapel’s discussion of people’s responsibility for military service, a representative example in this regard. He considers a person who is trying to decide whether to participate in a war she believes to be unjust and says: “In this context, fear does not seem to be very plausible as a general excuse. If we do not think that civilians can generally justify escaping military service by pleading personal cowardice, why should they be able to justify joining an army engaged in a criminal war on the grounds of personal cowardice?” (“Coerced Moral Agents? Individual Responsibility for Military Service,” Journal of Political Philosophy 6, no. 2 [1998], 178). It is clear that Mapel simply assumes that fear is not a legitimate excuse for evading military service; however, it is not clear whether – or on what grounds – such an assumption is justified.

3

4

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In the second place, Hobbes’s basic concern is with whether or not the obligation to obey the law includes an obligation to submit to punishment. This is not a question that occupies many today – an oversight that is, in my opinion, regrettable. Consider Hobbes’s basic question to be: do people’s duties qua citizens morally require them to submit to the state’s efforts to punish them? That is, are people blameworthy when they resist the punishment power of the state? This is separate from any question about legal liability; it concerns the moral status of one’s actions when one resists the state in order to avoid incarceration or execution. The challenge that is implicit in Hobbes’s question  – what exactly grounds a duty to submit to one’s own punishment? – is harder to answer than it might at first appear. It is plausible to think that there might be some cases in which people cannot in fact be blamed for trying to escape from the violent force of the state when it is turned upon them. Consider the case of Leslie Dale Martin, who escaped from death row in a Louisiana prison in 1999. No one was injured or killed during the escape; Martin cut his way out of his cell with a hacksaw that had been smuggled into the prison by a bribed corrections officer. Untangling the source of Martin’s blameworthiness or lack of blameworthiness is a difficult business, but suppose – for the sake of argument – the course of action that landed him on death row in the first place is temporarily put aside. Instead, the focus is purely on the act of escaping prison (and a death sentence). Considered in isolation, it is strange to argue that Martin’s actions are either morally blameworthy or in violation of his duties as an American citizen. In escaping, Martin committed no violence against persons and only (presumably minimal) violence against public property. He did so in order to avoid certain death. Did Martin do wrong in seizing an opportunity to avoid the electric chair? It seems difficult to make a case for affirmative answers to a question such as this. This difficulty seems especially acute for consent theories of political obligation:  how can we conceive that Martin consented – actually, tacitly, or hypothetically – to obey the law even when it dictated that he pass up opportunities to avoid the electric chair? Arguably, if a moral duty to submit to execution does exist, it must be noncontractual.5 Legal theorist Alice Ristroph has very recently attempted to develop a Hobbesian theory of punishment that could serve as a competitor in the contemporary discourse about punishment. Her intriguing account promises both to yield a novel critique of retributivist and other popular theories of punishment and to provide a Hobbesian (or Hobbes-inspired) grounding for a variety of legally recognized rights of criminal defendants (“Respect and Resistance in Punishment Theory,” California Law Review 97 [2009], 601–632).

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Hobbes, of course, starts from the premise that Martin was under no obligation to submit to his sentence on death row. To the extent that Martin’s story is compelling, therefore, we are faced with a certain irony:  we find Hobbes’s lack of liberal intuitions in general distasteful, but he offered subjects certain rights of resistance that we do not. In fact, contemporary attitudes towards resisting punishment most closely resemble those of the royalists in a seventeenth-century context. After all, we also expect citizens to “suffer patiently” through trial and punishment, even when unjustly accused. There are, of course, a number of crucial distinctions between the rights Hobbes offers and those we now expect. My point is thus not to valorize Hobbes at the expense of the liberal tradition or of contemporary political theorists. Nevertheless, it is hard not to appreciate that Hobbes’s stringent view of political obligation and his broad view of liberties that must be extended to subjects are almost unimaginable to most of us today  – either individually or certainly in combination. Hobbes’s theory of resistance  – as I have laid it out in this book  – bestows upon subjects liberties to disobey that contemporary liberals would likely find hard to countenance. My reading suggests that Hobbes is thus, at the very least, a fruitful resource and potential interlocutor for ongoing discussions about the limits of political obligation. It is neither immediately obvious how to accommodate his insights into that territory, nor how to show how they need not be accommodated. Yet Hobbes is and remains a figure who, in our imagination, occupies the role of apologist for authoritarianism, enemy of the freedoms of the people. He is made to serve as a foil to Montesquieu, Locke, and Jefferson – the true forefathers of liberalism. What becomes of this view, however, if we come to recognize that we are not prepared to allow liberties where he was? In some respects, our conception of political obligation may actually be more stringent than his. Turning our attention to this particular aspect of Hobbes’s philosophy renders him less a foil than a mirror in which we may somewhat uncomfortably look upon some of our own (perhaps unjustifiable) illiberal tendencies.

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Index

absolutism  52, 97–99, 102–104, 107–108, 119n, 125–126, 129–130, 163, 172 authorization  74–75, 91–101, 152–153

Finkelstein, Claire  30n, 38, 61, 67, 133n, 168 foole, reply to the  115, 146–147 Friedman, R. B.  100n, 101n Fukada, Arihiro  134n

Baumgold, Deborah  27, 39, 99n, 134n Beggars’ Revolt  155n, 165–166 Bramhall, Bishop (John)  3, 20, 133–134, 139n, 158, 159–160, 161 Buchanan, George  19n Buckle, Stephen  8n Burgess, Glenn  53

Gauthier, David  33n, 80n, 100n, 104n Gert, Bernard  8n, 35n God  20–21, 23, 45, 158 God’s Law  96, 163 Grotius, Hugo  17–18 Hammond, Henry  21, 23 Hampden, John  143–144, 146, 147–148 Hampton, Jean  100 objection to Hobbes  3, 5, 89, 90, 103–108, 116, 133n, 159 objection to Hobbes answered  119–131 on Hobbes’s views on death  33 Harrison, Molly  61n Hart, H. L. A.  113n Hindess, Barry  133n Hoekstra, Kinch  134n, 135, 147n, 156n “doctrine of doctrines”  156n Hohfeld, Wesley (Hohfeldian theory of rights)  14n

Carmichael, D. J. C.  133n Charles I, King  3, 20, 132, 135–136, 137n, 143–144 Chillingworth, William  21, 22n Civil War, English  3, 18, 132, 141n, 144, 146, 155 Clarendon, Edward, Earl of  133, 139n, 158, 159 Collins, Jeffrey  135 conscience  83, 101, 116, 128–129, 134n courage  35, 86 “feminine courage”  83 Cromwell, Oliver  135, 137n, 140–141 cruelty  13 Curran, Eleanor  14n, 27n, 133n, 134n Daly, J. W.  159n Davis, Michael  104n, 156n death, Hobbes on the evil of  30, 31–38, 47, 48 Digges, Dudley  21–23, 171n dishonorable commands  76–77 right to disobey  54, 77–78 Divine Right of Kings  20–21, 158 drunkenness  13

James I, King  20 Kadish, Sanford  173n Kateb, George  4n, 14n Kavka, Gregory  6n on Hobbes’s views on death  33 on rebellion  133n, 138n, 145 on the true liberties of subjects  4n, 53, 63, 67n reconciliation project  51n Kosellack, Reinhart  136–137

Ewin, R. E.  11n executioners  77n

law(s) of nature  9, 12, 15, 35, 50 as binding on the sovereign  96, 164 Levine, Andrew  133n

Fawkes, Guy  136 Filmer, Sir Robert  20, 24, 134n, 158

181

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Index

liberty civil liberty  55–56, 117 corporal liberty  54–55, 59, 67, 68, 123, 127 true liberties of subjects  58–59; see right of self-defense; punishment, right to resist; military service, right to refuse; and dishonorable commands, right to disobey see also right of nature, right of self-defense Lloyd, S. A.  102, 156–157 on transcendent interests  35, 51–52n, 87, 161 Locke, John  19, 26, 107, 144n, 175 Mapel, David  173n Martel, James  26, 32 Martinich, A. P.  100n May, Larry  7n military service  173n right to refuse  75–76, 81–84, 153 see also soldier contract Milton, John  19–20 Murphy, Mark  33 Oppian Law  117n Parker, Henry  18–19, 148n Parliamentarians  3, 18–19, 23, 135, 141n, 148, 157, 171 Peasants’ Revolt  155 perjury  79–80, 81 Pitkin, Hanna  96n Postema, Gerald  119 Prynne, William  19 punishment right to resist  59–74 sovereign’s right to  16, 47, 98, 126 see also right of self-defense Ramet, Sabrina  133n Raphael, D. D.  172n Raz, Joseph analysis of authority  108–113 as applied to Hobbes  5, 90, 113–119, 120, 121, 124, 126, 128–129, 131 reasons absolute  118n content-independence of  111, 114 exclusionary: see Raz, analysis of authority protected  112, 116 right of nature  9, 11–15, 94, 113, 157, 165 subjective nature of  9 limits on  11 as a liberty (or permission right)  13–14, 55, 56

as belonging to the sovereign  16, 98 as compared with the right of selfdefense  15–16 as a right of rebellion  156, 158 as transferred in the social contract  115 Hobbes’s argument for  35–37, 48 right of self-defense as a misnomer  9 as a resistance right  10 as compared with contemporary legal contexts  24–28 Hobbes’s conception of  7 inalienability of  28 in historical context  15–16 see also Hampton, objection to Hobbes and soldier contract right reason  35–37, 46 rights, transfer of  15, 30, 44–45, 49, 150–152 see also right of self-defense, inalienability of Ristroph, Alice  156n, 174n Royalists (royalism)  3, 21–24, 134–135, 158 see also Divine Right of Kings Ryan, Alan  133n, 159, 161 Sanderson, John  17n Schochet, Gordon  27 Schrock, Thomas  16n Scruton, Roger  136n Selden, John  17–18 Shelton, George  159n Ship Money  143 simple obedience  129–130 Skinner, Quentin  17n, 19n, 134n Socrates in the Crito  7–8, 16, 19, 22, 34 Sommerville, Johann  17n, 29n, 138n, 158 social contract problems of interpretation  104 see also authorization and rights, transfer of soldier contract  38–40, 49, 84–88 St. Bartholomew’s Day Massacre  155 state of nature  9, 12–15, 31, 41–45, 55–57, 64, 66n, 68, 127, 160 see also right of nature Steinberger, Peter  104n, 133n, 156n Strauss, Leo  33n Suarez, Francisco  19 Thivet, Delphine  138n trust  41, 44, 47, 63, 73 Tuck, Richard  11n, 17, 29n, 134n, 148n Vanderschraaf, Peter  6n

Index Vindiciae contra tyranno  19 Wallace, John  134n Waldron, Jeremy  25, 30n, 34 Warrender, Howard  100n

Warsaw Ghetto Uprising  144, 147 Watkins, J. W. N.  33 Wolf, Friedrich  133n Zagorin, Perez  17n

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